author: BEACH, J.

text:
    STATE OF CONNECTICUT v. GERALD W. ELLIOTT
    (AC 31022)
    Lavine, Beach and Lavery, Js.

      Argued December 6, 2010
    officially released March 22, 2011

      Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

      James A. Kitten, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kevin C. Doyle, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Gerald W. Elliott, appeals from the judgment of conviction, rendered after a trial to the court, of attempt to commit risk of injury to a child in violation of General Statutes §§ 53a-49 (a) (1) and 53-21 (a) (1), and attempt to entice a minor to engage in sexual activity in violation of General Statutes §§ 53a-49 (a) (1) and 53a-90a (a). On appeal, the defendant claims that (1) § 53-21 (a) (1) is unconstitutionally vague as applied to him and (2) the evidence adduced at trial was insufficient to support his conviction. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In August, 2006, Detective Robert Nash of the Milford police department was working as part of a statewide task force, in conjunction with the Federal Bureau of Investigation, created to investigate crimes against children. Specifically, Nash patrolled Internet chat rooms looking for adults who were attempting to initiate inappropriate sexual relationships with minors. One of Nash’s investigative techniques was to create an online “persona” of a minor girl and to communicate with others in online chat rooms in such a manner as to convince them that they were conversing with a young teenage girl. Nash was equipped with technology that enabled him to record and to save any conversations that he had with individuals and any images or videos that he received through another individual’s web cam.

On August 11,2006, Nash entered a Connecticut adult romance chat room using the persona of a fourteen year old girl from Milford with the screen name “Vol-leygirlct.” While in the chat room, the defendant, using the screen name “Jerryatwork24,” contacted Vol-leygirlct and sought a private chat session. The first question the defendant asked Volleygirlct was her age, to which she replied that she was fourteen years old. The defendant stated that he was thirty-seven years old and commented that Volleygirlct was “so young.” The defendant then began to initiate a sexually graphic conversation with Volleygirlct. The defendant asked Vol-leygirlct multiple times if she wanted to watch him expose himself to her through his web cam. The defendant also inquired about Volleygirlct’s prior sexual experience and stated that he wanted her to perform sexual acts on him. Throughout the course of the conversation, the defendant exposed his genitals to Vol-leygirlct multiple times via his web cam.

From September, 2006, through January, 2007, the defendant engaged Volleygirlct in six additional sexually graphic online conversations. During the course of these conversations, the defendant repeatedly insisted that he wanted to engage in a series of sexually explicit acts with Volleygirlct, including intercourse. The defendant also repeatedly exposed himself to Volleygirlct via his web cam during many of the conversations, often while masturbating, and persisted that he wanted Vol-leygirlct to expose herself to him. During a conversation on October 4, 2006, upon the request of the defendant, Volleygirlct sent the defendant what she alleged to be an image of herself but was actually an image of an undercover task force agent that was taken when the agent was fourteen years old. Upon receiving the image, the defendant responded by making more sexually explicit statements to Volleygirlct. On two separate occasions, the defendant suggested that Volleygirlct call him so that he could continue the sexually explicit conversations with her over the telephone. The defendant also twice informed Volleygirlct that he previously had engaged in sexual relations with a sixteen year old female.

On October 4, 2006, the defendant suggested that Volleygirlct should meet him in person so they could engage in sexual intercourse in his truck. On December 2, 2006, the defendant again suggested that Volleygirlct should meet him in person and asked if she wanted to “hook up after school next week one day” so they could “kiss and make out” in his truck. Although the defendant suggested that he and Volleygirlct meet somewhere private, she suggested that they meet at a local coffee shop instead. The defendant suggested that Volleygirict wear a skirt so that it would be easy to “get to [her]” and also asked her if she would perform oral sex on him in his truck. The defendant and Volleygirict then agreed on a date and time that they would meet. Nash and other police officers set up surveillance outside the coffee shop on the date of the planned meeting; however, nobody fitting the defendant’s description appeared at the location at or around the designated meeting time. The defendant and Volleygirict engaged in two online conversations following the planned meeting, and neither party mentioned the planned meeting or what prevented the defendant from appearing.

On April 13, 2007, Nash and other police officers executed valid search and seizure warrants at the defendant’s home in Old Lyme. The defendant was read his Miranda rights, which he knowingly and voluntarily waived. The defendant told Nash that the screen name that he used in Yahoo chat rooms was “Jerryatwork24,” and he admitted that he had conversed in one such chat room with a fourteen year old girl from Milford who used the screenname “Volleygirict.” The defendant stated to Nash that he had arranged to meet with Volleygirict at a strip mall in Milford for the purposes of engaging in sexual activities. The defendant also admitted that paper copies of relevant conversations and web cam images shown to him by Nash, in fact, had been sent by him to Volleygirict.

The defendant’s trial commenced on October 28, 2008. The next day, the court rendered judgment finding the defendant guilty of both attempt to entice a minor to engage in sexual activity and attempt to commit risk of injury to a child. On February 4, 2009, the court sentenced the defendant to a total effective term of ten years incarceration, execution suspended after five years, with three years probation. This appeal followed.

I

The defendant first claims that § 53-21 (a) (l) is unconstitutionally vague as applied to him. Specifically, he argues that because the risk of injury statute does not specifically provide that the conduct he engaged in was prohibited and there allegedly exists no case law from which he could discern that his conduct was prohibited, the risk of injury statute is unconstitutionally vague as applied to him under the facts of this case. We disagree.

We begin by setting forth the standard of review and legal principles that govern the defendant’s claim. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue. ... A defendant whose conduct clearly comes within a statute’s unmistakable core of prohibited conduct may not raise a facial vagueness challenge to the statute. . . .

“[T]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute .... [0]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited .... References to judicial opinions involving the statute . . . may be necessary to ascertain a statute’s meaning to determine if it gives fair warning. ” (Citations omitted; internal quotation marks omitted.) State v. Thomas W., 115 Conn. App. 467, 472-73, 974 A.2d 19, cert, granted on other grounds, 294 Conn. 911, 983 A.2d 276 (2009).

Our Supreme Court has recognized that “[i]t is not necessary that [§ 53-21] list the precise actions prohibited by it. Penal laws may be general and prohibit a wide range of conduct; the constitution requires no more than reasonableness of certainty.” State v. Eason, 192 Conn. 37, 47, 470 A.2d 688 (1984), overruled in part on other grounds by Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987). The risk of injury statute, therefore, is necessarily somewhat broad such that it can encompass a vast variety of circumstances that reasonably may be considered harmful to children. See State v. Aziegbemi, 111 Conn. App. 259, 265, 959 A.2d 1, cert, denied, 290 Conn. 901, 962 A.2d 128 (2008). Ultimately, “ [o]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .” (Internal quotation marks omitted.) State v. Stuart, 113 Conn. App. 541, 562, 967 A.2d 532, cert, denied, 293 Conn. 922, 980 A.2d 914 (2009).

In the present case, the court held that “each act of [the defendant] exposing his genitals on the web cam to a person he believes to be a fourteen year old girl is an attempted risk of injury under the situation prong of ... [§ 53-21 (a) (1)], and . . . case law amply establishes that.” The defendant argues that because the statute does not make it apparent that such conduct is prohibited and “there exist no factually similar prior cases from which to extract a judicial gloss,” § 53-21 (a) (1) is unconstitutionally vague as applied to him under these circumstances. We are not persuaded.

We conclude that the statutory language of § 53-21 (a) (1), in addition to significant precedential authority, provided the defendant with sufficient notice that exposing himself to a fourteen year old girl via his web cam and masturbating in her view was prohibited by § 53-21 (a) (1). The risk of injury statute prohibits wil-fully creating a situation in which the morals of a child are likely to be impaired. General Statutes § 53-21 (a) (1). This court repeatedly has held that conduct similar to that in the present case is prohibited by the risk of injury statute. State v. Thomas W., supra, 115 Conn. App. 474 (holding that defendant masturbating in kitchen where six year old child could observe him violated § 53-21 [a] [1]); State v. Cutro, 37 Conn. App. 534, 541, 657 A.2d 239 (1995) (holding that defendant masturbating in vehicle in mall parking lot while aware fourteen year old girl could see him violated risk of injury statute); State v. Erzen, 29 Conn. App. 591, 595-96, 617 A.2d 177 (1992) (holding that defendant exposing his genitals to two eight year old girls violated risk of injury statute). Accordingly, we conclude that a person of ordinary intelligence would comprehend that the defendant’s conduct was prohibited by § 53-21 (a) (1).

We are not persuaded by the defendant’s argument that Thomas W., Cutro and Erzen are factually distinguishable from the present case because the defendant was not in the physical presence of Volleygirict but, rather, exposed himself to her over the Internet. The defendant claims that because the exposure took place online, his conduct was “wholly devoid of the coercion inherent in risk of injury scenarios.” He further maintains that because Volleygirict had to take affirmative steps to accept his web cam videos and images, the victim was not an “unwitting or unwilling recipient.” Section 53-21 (a) (1) requires only that the defendant wilfully causes or permits a child to be placed in a situation likely to impair his or her morals; the statute does not require an element of coercion and does not provide that the victim be in the defendant’s physical presence, nor does it require that the victim be an unwilling one. The defendant has not provided any legally meaningful distinction between a defendant exposing himself to a child in person and doing so over the Internet. Accordingly, we conclude that the text of § 53-21 (a) (1) and the previously mentioned cases provided the defendant with sufficient notice that his conduct was prohibited under § 53-21 (a) (1).

II

The defendant finally claims that the evidence adduced at trial was insufficient to support his conviction. Specifically, he claims that the state did not prove beyond a reasonable doubt that he (1) attempted to commit risk of injury to a child and (2) attempted to entice a minor to engage in sexual activity. We disagree.

We begin by setting forth our standard of review. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the [trier of fact’s] verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the [trier of fact] could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In this process of review, 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. . . .

“While the [trier of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, 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 [trier of fact] to conclude that a basic fact or an inferred fact is true, the [trier of fact] 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, [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Edwin M., 124 Conn. App. 707, 723-24, 6 A.3d 124 (2010), cert, denied, 299 Conn. 922, 11 A.3d 151 (2011).

A

Having determined that § 53-21 (a) (1) is not unconstitutionally vague as applied to the defendant, we first consider the defendant’s claim that the state adduced insufficient evidence to prove beyond a reasonable doubt that he attempted to commit risk of injury to a child.

To convict the defendant of attempt to commit risk of injury to a child in violation of §§ 53a-49 (a) (l) and 53-21 (a) (l), the state must prove beyond a reasonable doubt that, if the circumstances were as the defendant believed them to be, he wilfully or unlawfully caused or permitted a child under the age of sixteen years to be placed in such a situation that the life or limb of such child was endangered, the health of such child was likely to be injured or the morals of such child were likely to be impaired, or did any act likely to impair the health or morals of any such child. As our Supreme Court has observed, risk of injury to a child is a general intent crime. State v. Aziegbemi, supra, 111 Conn. App. 265. Thus, it is “not necessary, to support a conviction under § 53-21, that the [accused] be aware that his conduct is likely to impact a child younger than the age of sixteen years.” Id.

The defendant’s argument supporting his insufficiency claim is essentially the same as discussed in part I of this opinion, namely, that because the defendant’s conduct occurred online and not in the physical presence of Volleygirlct, the state failed to produce sufficient evidence to convict him of attempt to commit risk of injury to a child. Having already determined in part I of this opinion that the defendant’s conduct is prohibited by § 53-21 (a) (1), we conclude that the state provided sufficient evidence to prove beyond a reasonable doubt that the defendant committed attempt to commit risk of injury to a child.

At trial, the state produced evidence showing that the defendant believed that the individual with whom he was conversing in the chat room was a fourteen year old girl. The state further provided evidence of several recorded web cam videos in which the defendant can be seen exposing his genitals to Volleygirlct. These videos showed both the date and the time that they were recorded. The dates and times of the web cam videos all corresponded to separate online chat sessions between the defendant and Volleygirlct, corroborating the fact that the defendant was exposing himself during the online conversations. These videos support the court’s conclusion that the defendant’s act of exposing himself on the web cam to Volleygirlct was a violation of the statute. Accordingly, we conclude that the state produced sufficient evidence to prove beyond a reasonable doubt that the defendant attempted to commit risk of injury to a child.

B

We next consider the defendant’s claim that the state produced insufficient evidence to prove beyond a reasonable doubt that he attempted to entice a minor to engage in sexual activity. We are not persuaded by the defendant’s claim.

Our determination of this claim depends on the meaning of the phrase “entice ... to engage in . . . sexual activity” as used in § 53a-90a (a). Section 53a-90a (a) provides in relevant part: “A person is guilty of enticing a minor when such person uses an interactive computer service to knowingly persuade, induce, entice or coerce any person under sixteen years of age to engage in . . . sexual activity for which the actor may be charged with a criminal offense. ...” The defendant argues that the plain meaning of the phrase “entice ... to engage in . . . sexual activity” requires that a defendant actually engage in sexual activity with a minor to be convicted under § 53a-90a (a). The state argues that the plain meaning of the phrase merely requires that a defendant tries to, but need not succeed in, engaging a minor in sexual activity. We agree with the state.

“[I]ssues of statutory construction raise questions of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) In re A.R., 123 Conn. App. 336, 339, 1 A.3d 1184 (2010).

The text of § 53a-90a (a) is clear and unambiguous. This court previously has defined the word “entice” to mean “to lure, induce, tempt, incite, or persuade a person to do a thing . . . .” (Internal quotation marks omitted.) State v. Harris, 32 Conn. App. 831, 841 n.9, 632 A.2d 50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994). None of these words suggests that one actually must succeed in getting a person to act to have enticed that person. To the contrary, Webster’s dictionary defines the word tempt as “to entice or allure to do something ... to attract, appeal strongly to, or invite . . . to try or test . . . .” Webster’s Unabridged Dictionary (2d Ed. 2001). Accordingly, the plain meaning of the word “entice” does not require that an individual actually succeed in convincing a person to act for an enticement to have occurred. Therefore, it is not necessary that a defendant actually engage in sexual activity with a minor to be convicted under § 53a-90a (a).

Having determined the meaning of the phrase “entice ... to engage in . . . sexual activity” as used in § 53a-90a (a), we now examine the defendant’s sufficiency claim. To convict the defendant of attempt to entice a minor to engage in sexual activity in violation of § § 53a-49 (a) (1) and 53a-90a (a), the state must prove beyond a reasonable doubt that, if the circumstances were as he believed them to be, the defendant used an interactive computer service to knowingly persuade, induce, entice or coerce any person under sixteen years of age to engage in prostitution or sexual activity.

At trial, the state produced evidence that showed that the defendant believed he was conversing with a fourteen year old girl in a Yahoo chat room. The state also provided a transcript of the conversation that occurred between the defendant and Volleygirlct on December 2, 2006. During this conversation, the defendant arranged to meet with Volleygirlct for the purpose of engaging in sexual activity. He agreed on a date, time and location for the meeting to occur. Contrary to the defendant’s contention, it is of no consequence that he actually did not attend the meeting. Section 53a-90a (a) does not mandate that a defendant actually meet in person with a minor but merely that the defendant induced or enticed a minor to engage in sexual activity. Here, the defendant’s December 2, 2006 conversation with Volleygirlct was sufficient evidence to support the court’s finding that the defendant enticed Volleygirlct to engage in sexual activity. Accordingly, we conclude that the state produced sufficient evidence to prove beyond a reasonable doubt that the defendant attempted to entice a minor to engage in sexual activity.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with attempt to commit risk of injury to a child and attempt to entice a minor to engage in sexual activity because the individual with whom he was speaking was neither a minor nor a child; rather, it was Nash posing as such. See General Statutes § 53a-49 (a) (1).

       Because the defendant does not contest the content of his conversations with Volleygirlct, we need not describe the explicit nature of the conversations in detail.

       These conversations occurred on September 7, October 4, November 28, and December 2 and 21, 2006, and January 23, 2007.

        Nash suggested meeting at this location because it was more public and, thus, was better suited for setting up surveillance.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       General Statutes § 53-21 (a) provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony . . . .”

       In addition to determining that the defendant’s exposing himself to Volleygirlct violated § 53-21 (a) (1), the court determined that the defendant’s attempt to arrange a meeting with Volleygirlct for the purpose of engaging in sexual activity also violated § 53-21 (a) (1). The defendant, therefore, also claims that § 53-21 (a) (1) is unconstitutionally vague as applied to him because there exists no case law that put him on notice that attempting to arrange a meeting with a child to engage in sexual activity is prohibited by the statute. Because we conclude that § 53-21 (a) (1) is not unconstitutionally vague as applied to the defendant, as he had adequate notice that exposing himself to a child over a web cam is prohibited, we need not address the defendant’s separate claim that § 53-21 (a) (1) is unconstitutionally vague as applied to him because he did not have notice that attempting to arrange a meeting with a child for the purpose of engaging in sexual activity is prohibited.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be ... .”

       See footnote 6 of this opinion.

       The defendant also argues, in the alternative, that the court erred in determining that he did not abandon the attempt to commit risk of injury to a child. Specifically, he argues that because he never actually attended the meeting he arranged with Volleygirlct, he abandoned any attempt to engage in sexual activity with her. Because we determined that there was sufficient evidence to convict the defendant of attempt to commit risk of injury to a child on the basis of his exposing himself to Volleygirlct, we need not address the defendant’s abandonment claim.

       The defendant also argues, in the alternative, that the court erred in determining that he did not abandon the attempt to entice Volleygirlct to engage in sexual activity. Again, he argues that because he did not attend his scheduled meeting with Volleygirlct and made no subsequent attempt to meet with her, he abandoned any attempt to entice her to engage in sexual activity.
      General Statutes § 53a-49 (c) provides: “When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      As mentioned, it is not necessary for the defendant actually to have engaged in sexual activity with Volleygirlct to be convicted under § 53a-90a (a); rather, it is enough that he tried to engage Volleygirlct in sexual activity. Here, the crime of attempt to entice a minor to engage in sexual activity was completed when the defendant scheduled a meeting with Volleygirlct for the purpose of engaging in sexual activity. The situation may be different, by way of illustration, in circumstances in which an attempt pursuant to § 53a-49 (a) (2) is alleged. Finally, even if abandonment logically could be a viable defense in the circumstances presented, the court specifically found that abandonment was not proved.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    H. P. T.
      v. COMMISSIONER OF CORRECTION
    (AC 31281)
    Gruendel, Alvord and Dupont, Js.

      Argued January 5
    officially released March 22, 2011

      Michael Proto, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, chief state’s attorney, for the appellant (respondent).

      Adele V. Patterson, senior assistant public defender, for the appellee (petitioner).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54r86e.

   Opinion

GRUENDEL, J.

The respondent, the commissioner of correction, appeals from the judgment of the habeas court granting, in part, the amended petition for a writ of habeas corpus filed by the petitioner, H. P. T. On appeal, the respondent claims that the court improperly vacated the petitioner’s underlying criminal sentence on the basis of ineffective assistance of counsel during pretrial proceedings. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to the resolution of the respondent’s appeal. In 2002, the state charged the petitioner with various criminal offenses in two informations. Specifically, in docket number CR-02-0562000, the state charged the petitioner with one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (1) and one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). In docket number CR-02-0563146, the state charged the petitioner with three counts of risk of injury to a child in violation of § 53-21 (a) (1) and one count of sexual assault in the second degree in violation of General Statutes (Rev. to 2001) § 53a-71 (a) (1).

Attorney Thompson Page represented the petitioner throughout the pretrial phase of the criminal proceedings. On July 31, 2003, during a pretrial conference, the prosecutor offered that if the petitioner pleaded guilty to the charges of sexual assault in the first degree, risk of injury to a child and assault in the second degree, she would recommend a sentence of twenty-five years incarceration, execution suspended after twelve years, with ten years of probation (state’s offer). Also during this pretrial conference, the court, Solomon, J., made its own offer of twenty years incarceration, execution suspended after nine years, with twenty years of probation (court’s offer). The prosecutor neither explicitly accepted nor rejected the court’s offer, thus, acqui-escencing to its terms.

In August, 2003, Page met with the petitioner to discuss the terms of the court’s offer. Page did not, however, retain the services of an interpreter to assist the petitioner, whose native language is Vietnamese, in understanding the terms of the court’s offer and the charges to which he would be pleading guilty. Additionally, Page never advised the petitioner to accept the court’s offer, and, on September 18,2003, the petitioner rejected both the state’s offer and the court’s offer. Thereafter, in October, 2003, Page withdrew his representation of the petitioner, and the petitioner retained attorneys Michael A. Georgetti and Salvatore Bonanno to represent him throughout trial.

In 2004, the matter was tried to a jury. On April 15, 2004, the jury returned a verdict, finding the petitioner guilty of one count of sexual assault in the second degree, one count of assault in the second degree, two counts of assault in the third degree and two counts of risk of injury to a child. The petitioner was found not guilty of the remaining two counts of risk of injury to a child. On July 26, 2004, the court, Keller, J., sentenced the petitioner to a total effective term of twenty-three years incarceration, execution suspended after thirteen years, with ten years of probation. The petitioner directly appealed to this court, and his conviction was affirmed. See State v. H. P. T., 100 Conn. App. 183, 917 A.2d 586, cert, denied, 282 Conn. 917, 925 A.2d 1100 (2007).

The petitioner then commenced the present action for a writ of habeas corpus. In his third amended petition, filed November 18, 2008, he alleged, inter alia, that Page provided ineffective assistance of counsel by failing to communicate and to advise him adequately with respect to the court’s offer. More specifically, he alleged that because Page had “failed to translate and explain” the court’s offer, he “so lacked an understanding of that offer that [he] . . . was unaware ... it had even been made” until well after Ms criminal conviction and sentencing. He further alleged that had Page “adequately comimmicate[d] and . . . advise[d]” him to accept the court’s offer, he would have accepted the nine year sentence and not proceeded to trial.

Following the presentation of evidence, the habeas court issued a memorandum of decision, filed June 18, 2009, granting, in part, the petition for a writ of habeas corpus. The habeas court concluded that Page’s pretrial representation of the petitioner, particularly with respect to the plea negotiation process, amounted to ineffective assistance of counsel under Strickland and its progeny. The habeas court reasoned that, given Page’s deficient representation during pretrial proceedings, the petitioner was prejudiced by rejecting the court’s offer, wMch carried a shorter term of incarceration than that wMch the petitioner received after trial. Nonetheless, finding “no constitutional infirmity related” to the petitioner’s conviction, the habeas court declined to vacate the jury verdicts and to remand the case for a new trial. Instead, the habeas court directed the sentencing court to vacate the petitioner’s sentence and to resentence the petitioner “to a total effective sentence that may not exceed the court indicated sentence of twenty years to serve, execution suspended after the service of nine years, followed by twenty years probation.” TMs appeal followed. Additional facts will be set forth as necessary.

The respondent now claims that the habeas court improperly vacated the petitioner’s sentence on the basis of the ineffective assistance of Page during the pretrial phase of the underlying criminal case. In support of this claim, the respondent does not argue that the habeas court incorrectly concluded that Page’s pretrial representation of the petitioner constituted deficient performance. Rather, the respondent claims that, because there is no substantive statutory or constitutional right to a plea offer, the petitioner could not possibly show that he was prejudiced by Page’s deficient pretrial performance. Therefore, as argued by the respondent, even assuming that Page’s pretrial representation amounted to deficient performance, the habeas court incorrectly determined that he was prejudiced thereby, as otherwise required under Strickland.

Before addressing the merits of the respondent’s claim, we begin by setting forth the applicable legal principles and standard of review governing our analysis. “A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ... As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied. . . . Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings.” (Citations omitted; internal quotation marks omitted.) Ebron v. Commissioner of Correction, 120 Conn. App. 560, 566-67, 992 A.2d 1200, cert, granted on other grounds, 297 Conn. 912, 995 A.2d 954 (2010).

“In Strickland, the United States Supreme Court began its discussion regarding the prejudice prong by observing: An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. . . . The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. . . . The court then reasoned that a criminal defendant must affirmatively prove prejudice and show that the attorney’s errors actually had an adverse effect on the defense. . . . Last, it noted that it was not enough to show that the errors had some conceivable effect on the outcome . . . but instead that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Citations omitted; internal quotation marks omitted.) Id., 574.

Finally, “[h]abeas corpus is a civil proceeding.” Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). “It is well established that the burden of establishing grounds for relief in a habeas corpus proceeding rest[s] with the petitioner. . . . The petitioner, as the plaintiff in a habeas corpus proceeding, bears a heavy burden of proof. . . . When the factual basis of the court’s decision is attacked, [w]e are called upon to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in the light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion.” (Citations omitted; internal quotation marks omitted.) Morales v. Commissioner of Correction, 99 Conn. App. 506, 509, 914 A.2d 602, cert, denied, 282 Conn. 906, 902 A.2d 308 (2007). “In a case that is tried to the court . . . the judge is the sole arbiter of the credibility of witnesses and the weight to be given to their specific testimony. . . . It is the right of the trier of fact to draw reasonable and logical inferences from the facts that it finds to be proved. . . . We cannot substitute our judgment for that of the habeas court.” (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 51 Conn. App. 818, 823, 725 A.2d 971 (1999). Nonetheless, we note that “our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn. App. 120, 125, 977 A.2d 772, cert, denied, 294 Conn. 904, 982 A.2d 647 (2009).

Here, the respondent maintains that, because there is no substantive right to a plea offer, the petitioner could not prevail on his ineffective assistance of counsel claim, as he could not show that Page’s deficient pretrial performance prejudiced his defense within the meaning of Strickland. We find the respondent’s claim in the present case to be akin to that rejected by this court in Ebron v. Commissioner of Correction, supra, 120 Conn. App. 580-82. In Ebron, as in the case at bar, the respondent claimed, inter alia, that the habeas court improperly concluded that the petitioner had been prejudiced by counsel’s deficient performance in deciding to reject “a very favorable plea offer . . . .” Id., 562-63. On appeal, this court rejected the respondent’s argument that, because the petitioner was not deprived of a “substantive or procedural right to which he was entitled”; id., 581; by rejecting the plea, he could not satisfy the prejudice prong required under Strickland. Id., 581-82. In so holding, this court focused on the fact that by rejecting the plea offer, the petitioner in Ebron received a term of incarceration greater than that which he would have received if he had accepted the plea offer. Id., 582. We conclude that the same scenario is present in this case. As in Ebron, the habeas court in this case found that, but for counsel’s deficient performance, the petitioner would have accepted a plea offer and that by rejecting that offer, the petitioner ultimately received a greater term of incarceration. Id.; see also Glover v. United States, 531 U.S. 198, 203, 121 S. Ct. 696, 148 L. Ed. 2d 604 (2001) (“Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.”). Thus, “the habeas court properly determined that the petitioner suffered prejudice as a result of [his counsel’s] deficient performance.” Ebron v. Commissioner of Correction, supra, 582.

We take this opportunity to emphasize the lack of appellate authority guiding habeas courts in fashioning an appropriate remedy when the deficient pretrial performance of counsel results in the rejection of a plea offer that would otherwise have been accepted by a criminal defendant. In this regard, we are mindful of the concerns raised by the respondent, particularly with respect to the doctrine of the separation of powers. Nonetheless, we are equally mindful that “[o]ur approach has . . . been to identify and then neutralize the [constitutional] taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel . . . .” United States v. Morrison, 449 U.S. 361, 365, 101 S. Ct. 665, 66 L. Ed. 2d 564 (1981). This approach stems from the doctrine that “the [habeas] trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established.” (Emphasis in original; internal quotation marks omitted.) Brooks v. Commissioner of Correction, 105 Conn. App. 149,160, 937 A.2d 699, cert, denied, 286 Conn. 904, 943 A.2d 1101 (2008). In concluding that the petitioner fell victim to the ineffective assistance of his pretrial counsel, we cannot say that the habeas court improperly strayed from these principles in the present case. See Sanders v. Commissioner of Correction, 83 Conn. App. 543, 553, 851 A.2d 313 (affirming remedy of habeas court reducing sentence to reflect pending plea offer rejected as result of ineffective assistance of pretrial counsel), cert, denied, 271 Conn. 914, 859 A.2d 569 (2004).

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s offer was made in return for the petitioner’s guilty plea to the same charges articulated in the state’s offer.

       During a hearing on the petitioner’s habeas corpus petition, the prosecutor indicated that she would not “make afuss about” the differences between the state’s offer and the court’s offer if the petitioner had, in fact, pleaded guilty under the court’s offer.

       For purposes of this appeal, we assume that the petitioner required the assistance of an interpreter in understanding adequately the conditions of the court’s offer and the nature of the charges to which he would be pleading guilty thereunder.

       The charges against the petitioner were consolidated and tried jointly.

       Although the habeas corpus petition references specifically the state’s offer, it is clear from the record that this reference is actually to the court’s offer, as the petitioner testified that he would have accepted the “nine year sentence” but for Page’s ineffective assistance of counsel. As such, we analyze the petitioner’s habeas corpus petition with respect to the court’s offer only.

       The petitioner also sought a writ of habeas corpus on the basis of the alleged ineffective assistance of Georgetti and Bonanno, as well as his appellate counsel. The habeas court, however, granted the petition only with respect to the ineffective assistance of Page during the pretrial phase of the criminal proceedings.

       See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).


text:
    STATE OF CONNECTICUT v. KEVIN C. CREECH
    (AC 31379)
    Graendel, Alvord and Stoughton, Js.

      Argued January 11
    officially released March 22, 2011

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

      Kathryn Ward Bare, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Joseph S. Danielowski, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Kevin C. Creech, appeals from the judgment of conviction, following a jury trial, of attempt to commit robbery in the third degree in violation of General Statutes §§ 53a-136 (a) and 53a-49 (a) (2), attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-123 (a) (3) and 53a-49 (a) (2), and unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a). On appeal, the defendant claims that (1) the trial court improperly admitted evidence that he possessed a box cutter at the time the crimes were committed and (2) the evidence adduced at trial was insufficient to sustain Ms conviction of unlawful restraint in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11 a.m. on October 16, 2008, the victim, eighty-one year old Inn Sutherland, departed her home on Cherry Ann Street in New Haven for a brief walk to a bank. Soon thereafter, she was confronted by the defendant, who held her against a fence and attempted to steal her purse. Suddenly, however, the defendant was startled by the appearance of Officer Malcolm Davis of the New Haven police department, and he released Sutherland and began to flee the scene. Davis, who had been dispatched to the area to locate an individual matching the defendant’s description, quickly observed the defendant and asked him to approach his police cruiser. As the defendant approached, Davis noticed that the defendant was wearing heavy winter gloves, despite the fact that the temperature outside was between 70 and 80 degrees Fahrenheit. When asked by Davis if he was carrying any weapons, the defendant removed his gloves, retrieved a box cutter from his pants pocket and dropped the box cutter on the ground. At this time, Sutherland approached Officer Davis and identified the defendant as the individual who had attacked her. The defendant then was arrested and subsequently charged with attempt to commit robbery in the third degree, attempt to commit larceny in the second degree and unlawful restraint in the second degree.

Prior to trial, the defendant filed a motion in limine, seeking to preclude the state from offering any evidence as to his possession of the box cutter. On May 19, 2009, the court, after hearing the testimony of Davis and Sutherland, denied the motion. The court reasoned that sufficient evidence had been presented to support the conclusion that the defendant’s criminal activity was interrupted by the presence of Davis. As such, the court determined that, in accordance with § 53a-49, the jury should be allowed to consider whether the defendant’s possession of the box cutter was corroborative of a substantial step in consummating the crimes of third degree robbery and second degree larceny. Following a jury trial, the defendant was convicted on all counts, and the court imposed a total effective sentence of ten years incarceration, execution suspended after five years, with three years of probation. This appeal followed. Additional facts will be set forth as necessary.

The defendant now claims that the court improperly admitted evidence as to his possession of the box cutter at the time the crimes were committed. Additionally, he claims that the evidence adduced at trial was insufficient to sustain his conviction of unlawful restraint in the second degree. We address each of these claims in turn.

I

The defendant first claims that the court improperly denied his motion in limine, thereby allowing the state to present evidence as to his possession of the box cutter at the time he attacked Sutherland. Specifically, he argues that the court incorrectly determined that his possession of the box cutter was relevant to the issues at trial, as there was an insufficient factual basis to support the conclusion that his criminal behavior was interrupted by Davis. Additionally, the defendant argues that even if it is assumed that evidence of his possession of the box cutter was relevant, the probative value of this evidence was substantially outweighed by its prejudicial effect on the jurors. We disagree.

The following additional facts and procedural history are relevant to the resolution of the defendant’s claim. In support of his motion in limine, the defendant argued that, because it was undisputed that he did not use the box cutter during the confrontation with Sutherland, evidence of his possession of the box cutter was not relevant to the issues involved in his trial. In response, the state argued that the defendant’s possession of the box cutter, coupled with the fact that he was wearing heavy gloves and had been interrupted in his criminal conduct by Davis, was evidence of a substantial step in his commission of the crimes and therefore admissible. To demonstrate that the defendant’s conduct had been interrupted, the state presented the testimony of Sutherland, who explained that the defendant ran away “like he [knew] that the police [were] coming” shortly after attacking her. After hearing Sutherland’s testimony, the corut denied the defendant’s motion in limine, and the state presented the testimony of Davis. Davis testified that, when asked if he had any weapons, the defendant reached into his pants pocket, retrieved a box cutter and dropped the box cutter on the ground. Thereafter, when delivering its jury charge, the court instructed the jury that evidence regarding the defendant’s possession of the box cutter was “admitted solely to show or establish the defendant’s alleged criminal purpose and in support of the state’s claim of a substantial step.”

Before addressing the merits of the defendant’s claim that the court improperly denied his motion in limine, we begin by setting forth the applicable legal principles and standard of review governing our analysis. “It is axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. ... In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence .... Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Furthermore, [i]n determining whether there has been an abuse of discretion, every reasonable presumption should be made in favor of the correctness of the trial court’s ruling, and we will upset that ruling only for a manifest abuse of discretion. . . . Despite this deferential standard, [however], the trial court’s discretion is not absolute. . . . Thus, [i]n reviewing a claim of abuse of discretion, we have stated that [discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 626-27, 930 A.2d 628 (2007).

Here, our review of the record demonstrates unequivocally that the court properly denied the defendant’s motion in limine seeking to preclude the state from presenting evidence as to his possession of the box cutter. The defendant was charged with both the attempt to commit third degree robbery and the attempt to commit second degree larceny. As an essential element, the state had the burden of proving beyond a reasonable doubt that the defendant took a “substantial step” in the culmination of these offenses. See General Statutes § 53a-49 (a) (2). In addition to introducing the box cutter into evidence, the state demonstrated that the defendant was wearing winter gloves during a warm fall day and that he was interrupted in his criminal activity by the presence of Davis. As such, we fail to see how the evidence regarding the defendant’s possession of the box cutter at the time he attacked Sutherland was irrelevant in his criminal trial. See General Statutes § 53a-49 (b) (6). Moreover, in light of the limited nature of Davis’ testimony regarding the box cutter, as well as the court’s instruction to the jury as to the purpose for which this evidence was being offered, we cannot say that this evidence was more prejudicial than probative. See, e.g., State v. Llera, 114 Conn. App. 337, 345, 969 A.2d 225 (2009) (holding that evidence regarding murder weapon not more prejudicial than probative in light of brief testimony and hmiting jury instruction). Accordingly, the defendant’s claim fails.

II

The defendant next claims that the evidence adduced at trial was insufficient to sustain his conviction of unlawful restraint in the second degree. Specifically, he argues that, on the basis of the evidence presented at trial, no rational juror could conclude beyond a reasonable doubt that he “restrained” Sutherland within the meaning of § 53a-96 (a). We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. During trial, Sutherland testified in detail as to her confrontation with the defendant, including how he held her against a fence as he attempted to steal her purse. More precisely, Sutherland explained that the defendant “[held her] down on [a] fence” as he tried to wrestle her purse from her shoulder but suddenly “let [her] go” and ran away when Davis appeared. Additionally, Sutherland described that during the confrontation she “was trying to leave [and] move away from [the defendant] . . . [but] he [held her]” against the fence.

“The standard of review employed in a claim of insufficient evidence is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the [evidence] so construed . . . the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Chimenti, 115 Conn. App. 207, 218, 972 A.2d 293, cert, denied, 293 Conn. 909, 978 A.2d 1111 (2009).

Applying this test to the present case, it is clear that the jury reasonably could have concluded that the state had proven beyond a reasonable doubt that the defendant restrained Sutherland within the meaning of § 53a-96 (a). As is evident from Sutherland’s testimony, the defendant “intentionally and unlawfully” held Sutherland against a fence “in such a manner as to interfere substantially with [her] liberty”; General Statutes § 53a-91 (1); in an effort to more easily steal her purse. See General Statutes § 53a-96 (a). When construed “ ‘in the light most favorable to sustaining the verdict,’ ”; State v. Chimenti, supra, 115 Conn. App. 218; it is abundantly apparent that this evidence would support the defendant’s conviction under § 53a-96 (a). Accordingly, the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant’s principal brief initially frames his first claim as an appeal from the court’s allegedly improper denial of his motion for a new trial. Nonetheless, the majority of the defendant’s brief in support of this claim is devoted to a substantive analysis of the court’s ruling denying the defendant’s motion in limine seeking to preclude the state from presenting evidence as to his possession of a box cutter at the time the crimes were committed. Moreover, the record is clear that the court’s denial of the motion for a new trial was premised on the same grounds on which the motion in limine was denied. Accordingly, we conclude that the defendant’s first claim on appeal is more appropriately analyzed pursuant to the court’s evidentiary ruling denying the defendant’s motion in limine, rather than the court’s denial of the defendant’s motion for a new trial.

       Prior to locating the defendant, Davis received a dispatch call that a black male, approximately five feet, ten inches tall, and wearing a blue skull cap, had been seen waving a box cutter at a private residence in the area of Cherry Ann Street. Davis testified that the defendant fit this description exactly.

       It is undisputed that the box cutter was not used in any way by the defendant during the altercation with Sutherland.

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental slate required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law . . . (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances . . . .”

       The box cutter also was introduced into evidence as a full exhibit.

       General Statutes § 53a-96 (a) provides: “A person is guilty of unlawful restraint in the second degree when he restrains another person.” “Restrain” in this context “means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with [her] liberty by . . . confining [her] either in the place where the restriction commences or in a place to which [she] has been moved, without consent. . . .” General Statutes § 53a-91 (1).


text:
    RENEE GIORDANO v. CARL V. GIORDANO
    (AC 31779)
    DiPentima, C. J., and Gruendel and Flynn, Js.

      Argued January 31
    officially released March 22, 2011

      John F. Morris, for the appellant (defendant).

      Campbell D. Barrett, with whom, on the brief, was Jon T. Kukucka, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendant, Carl V. Giordano, appeals from the judgment of the trial court granting the postjudgment, amended motion for contempt filed by the plaintiff, Renee Giordano. On appeal, the defendant claims that the court improperly (1) concluded that a provision of the parties’ separation agreement (agreement) pertaining to the parties’ property settlement was unambiguous and (2) determined that he failed to comply wilfully with that same provision. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. The parties divorced on October 14, 2005, and their agreement was incorporated into the court’s judgment of dissolution. At the time of the dissolution, the defendant was a 50 percent shareholder in several businesses that owned real property in East Hartford (East Hartford properties). In exchange for retaining his ownership interests in the East Hartford properties, the defendant agreed to pay the plaintiff $425,000 in variable installments over ten years. Article VI of the agreement provided in relevant part, however, that “[i]f the [defendant] sells, transfers or otherwise divests himself of any of his interest in [the East Hartford properties], he shall immediately pay the [plaintiff] any funds due her at that time so that she is paid in full.”

By late 2007, the East Hartford properties began to suffer serious financial downturns, and the defendant grew concerned over the continued viability of his businesses. As such, the defendant considered the possibility of selling the East Hartford properties, “but initially found the tax and other financial consequences [of such a transaction] to be prohibitive . . . .” Nonetheless, after consulting with both his attorney and accountant, the defendant, together with his brother, decided to sell and transfer the East Hartford properties by way of a “like-kind” exchange pursuant to § 1031 of the Internal Revenue Code. On June 26, 2008, the East Hartford properties were sold for a net profit of approximately $4.1 million. To avoid tax liabilities, under the like-kind provision the net proceeds of the sale were transferred to a third party intermediary, LandAmerica 1031 Exchange Services, Inc., which was a subsidiary of LandAmerica Financial Group, Inc. (LandAmerica). Thereafter, the defendant and his brother sought to utilize the net proceeds to acquire two new commercial properties; however, before they could do so, LandAm-erica declared bankruptcy, rendering the defendant’s attempted like-kind exchange impossible. At no time was the plaintiff informed of any of the transactions involving the East Hartford properties.

On March 19, 2009, the plaintiff filed a postjudgment, amended motion for contempt seeking full payment of the outstanding property settlement. In support of this motion, the plaintiff argued that the like-kind exchange of the East Hartford properties constituted the type of transaction by which the defendant’s payment obligation was triggered under article VI of the agreement. In response, the defendant disagreed with the plaintiffs characterization of the like-kind exchange and argued that the “transaction was not a sale or transfer triggering his obligation” under article VI. Extensive hearings ensued in the spring and summer of 2009, during which both parties presented testimony in support of their respective arguments. Then, on November 9, 2009, the court issued a memorandum of decision granting the plaintiffs amended motion for contempt, concluding both that article VI of the agreement was unambiguous as to the defendant’s payment obligation in this context and that the defendant wilfully had violated that provision by not paying the plaintiff in full at the time of the like-kind exchange. This appeal followed.

The defendant now claims that the court improperly granted the plaintiffs postjudgment, amended motion for contempt. Specifically, the defendant claims that the court incorrectly determined that article VI of the agreement was unambiguous in the context of the like-kind exchange of the East Hartford properties. Additionally, the defendant claims that, even if it is assumed that article VI is unambiguous, the court incorrectly concluded that he wilfully had violated that provision, as otherwise required for a finding of contempt.

Before addressing the merits of the defendant’s claims, we begin by setting forth the legal principles and standard of review governing our analysis. “[0]ur analysis of a [civil] judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Internal quotation marks omitted.) In re Marcus S., 120 Conn. App. 745, 749-50, 994 A.2d 253, cert, denied, 297 Conn. 914, 995 A.2d 955 (2010).

I

AMBIGUITY INQUIRY

The defendant first claims that article VI of the agreement is ambiguous because it fails “to consider that the property settlement trigger could only be effective to the extent that the corporate decision produced money in the defendant’s hands.” Stated differently, the defendant argues that article VI was meant to apply only when the sale or transfer of his ownership interests in the East Hartford properties yielded liquid assets sufficient to satisfy his payment obligation to the plaintiff. We are not persuaded.

“[I]t is familiar law that a marital dissolution agreement is a contract. . . . Thus, in reviewing it, we are guided by the law that the inteipretation of a contract may either be a question of law or fact, depending on whether the language of the contract is clear and unambiguous. . . . When the language of the agreement is clear and unambiguous, its meaning is a question of law subject to plenary review. . . . When the agreement at issue is ambiguous, however, its meaning is a question of fact, and the court’s interpretation thereof will not be disturbed on appeal unless it is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) Tobet v. Tobet, 119 Conn. App. 63, 68, 986 A.2d 329 (2010).

“Contract language is unambiguous when it has a definite and precise meaning . . . concerning which there is no reasonable basis for a difference of opinion .... In contrast, an agreement is ambiguous when its language is reasonably susceptible of more than one interpretation. . . . Nevertheless, the mere fact that the parties advance different interpretations of the language in question does not necessitate a conclusion that the language is ambiguous.” (Citations omitted; internal quotation marks omitted.) Remillard v. Remil-lard, 297 Conn. 345, 355, 999 A.2d 713 (2010). “A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... [Rather], any ambiguity in a contract must emanate from the language used in the contract, [as opposed to] one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 692, 941 A.2d 301 (2008).

In the present case, article VI of the agreement provides that “[i]f the [defendant] sells, transfers or otherwise divests himself of any of his interest in [the East Hartford properties] ... he shall immediately pay the [plaintiff] any funds due her at that time so that she is paid in full.” Contrary to the narrow interpretation that the defendant would ascribe to this provision, the operative terms of article VI — “sells, transfers or otherwise divests” — are broad and, arguably, all-encompassing. Instead of limiting the defendant’s payment obligation to a transaction yielding only money, article VI, by its plain language, applies to any situation in which the defendant’s ownership interest in the East Hartford properties is sold, transferred or otherwise divested. As the court correctly explained, “the ‘like-kind exchange’ merely deferred [the defendant’s] tax liability, but did not change the fundamental nature of the transaction” — that the East Hartford properties were sold and the proceeds transferred to a third party intermediary. Moreover, we will “ ‘not torture words to import ambiguity’ Eckert v. Eckert, supra, 285 Conn. 692; on the effect of article VI, when, as here, the operative terms of that provision have “ ‘ordinary meaning [leaving] no room for ambiguity . . . .’’’Id. Indeed, given the broad connotation of the operative terms of article VI, we fail to see “ ‘the reasonable basis for a difference of opinion’ ”; Remillard v. Remillard, supra, 297 Conn. 355; as to article Vi’s applicability to the case at bar.

Accordingly, we agree with the court that “[u]pon [the ‘like-kind’] transfer . . . the balance of the property settlement became due” pursuant to the unambiguous trigger language of article VI. “When the defendant failed to pay the full balance to the plaintiff [at the time of that transfer], he violated his obligations” under article VI of the agreement.

II

WILFULNESS INQUIRY

Having concluded that article VI of the agreement is sufficiently clear and unambiguous, we now turn to a consideration of “whether the trial court abused its discretion in issuing . . . [the] judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Internal quotation marks omitted.) In re Marcus supra, 120 Conn. App. 750. The defendant claims that the court incorrectly determined that he wilfully violated article VI of the agreement because he lacked the ability to comply with the payment obligation of that provision. Specifically, the defendant argues that, given his shared ownership interest in the East Hartford properties, the court’s failure to consider his inability to disburse the proceeds of the like-kind exchange to the benefit of the plaintiff constituted an abuse of discretion. Further, the defendant maintains that, even if he had the ability to disburse the proceeds in favor of the plaintiff, the court failed to appreciate that he lacked the financial resources to satisfy the plaintiffs claim under article VI. We disagree.

“In order to constitute contempt, a party’s conduct must be wilful. . . . The contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court. . . . One cannot be placed in contempt for failure to read the court’s mind. ... A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor’s nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within the trial court’s discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court’s order.” (Internal quotation marks omitted.) Sablosky v. Sablosky, 72 Conn. App. 408, 423-24, 805 A.2d 745 (2002).

In Sablosky v. Sablosky, 258 Conn. 713, 719-20, 784 A.2d 890 (2001), our Supreme Court explained that “[a]n order of the court must be obeyed until it has been modified or successfully challenged. . . . [T]he fact that the plaintiff exercised self-help when he was not entitled to do so . . . by disobeying the court’s order without first seeking a modification was a sufficient basis for the trial court’s contrary exercise of discretion. The [trial] court [is] entitled to determine that to exonerate the plaintiff would be an undue inducement to litigants’ exercise of self-help.” (Citations omitted; emphasis in original; internal quotation marks omitted.)

Here, the defendant clearly violated the terms of article VI of the agreement by not paying the plaintiff upon the like-kind transfer of the East Hartford properties. Furthermore, at no time before or after the transfer did the defendant pursue a motion for modification to the agreement to reflect the specific transaction at issue or how that transaction would have triggered enforcement of article VI. See id., 722 (“[although one party may believe that his . . . situation satisfies [self-help avoidance of a court order], until a motion is brought to and is granted by the court, that party may be held in contempt in the discretion of the trial court if, in the interim, the complaining party fails to abide by the support order”). Nor do we find persuasive the defendant’s argument that his inability to comply with article VI constitutes a legitimate ground for violating the order in this instance. As the court articulated in its memorandum of decision, the defendant’s “most recent financial affidavit valued his interest in his businesses as worth $1,275 million . . . [and] [h]e thus owns sufficient assets to satisfy his obligation to pay the full property settlement . . . .” The fact that the defendant does not exercise majority shareholder control with respect to his businesses is a nonissue, as the defendant has the ability to “pledge his existing corporate stock [in favor of the plaintiff] and produce his stock certificates to be held in escrow until the [plaintiff] is paid in full.” (Internal quotation marks omitted.) Therefore, on the basis of the facts in this case, we cannot say that the court’s finding that the defendant wilfully violated article VI of the agreement constituted an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The remaining 50 percent shareholder interest is owned by the defendant’s brother.

       To further secure this obligation, the parties’ agreement provided for the award of alimony in the “event that the court chooses to use alimony as a means of securing the defendant’s obligations regarding payment to the plaintiff . . . .”

       “ [Section 1031 of title 26 of the United States Code] is an exception to the general rule requiring recognition of gain or loss upon the sale or exchange of property. Under 26 U.S.C. § 1031 (a), if property held for productive use is exchanged for like-kind property, the taxable gain is not realized until the acquired property is disposed of.” (Internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., 268 Conn. 264, 266 n.2, 842 A.2d 1113 (2004), quoting American International Enterprises, Inc. v. Federal Deposit Ins. Corp., 3 F.3d 1263, 1265 n.3 (9th Cir. 1993).