text:
    George Glinski v. Barbara Glinski
    (10143)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued December 12, 1991
    decision released February 11, 1992

      Jason E. Pearl, with whom was J. Bruce Sussman, for the appellant (plaintiff).

      Bernard E. Francis, with whom, on the brief, was Nicholas W. Francis, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment of the trial court, denying his motion to modify his obligation to pay child support and ordering a reduction, rather than a suspension, of his obligation to pay alimony. We affirm the judgment of the trial court.

The plaintiff is an American citizen and a resident of this state. On June 10, 1987, the plaintiff married the defendant, then a citizen of Poland residing in New Britain, who had applied for American citizenship. A child was bom to the parties during their marriage. On October 1,1990, the parties’ marriage was dissolved. Pursuant to the judgment of dissolution, the plaintiff was ordered to pay $75 per week as alimony “for a period of two years or until [the defendant] is employed on a full-time basis, or until she is legally permitted to accept employment in the United States.” The plaintiff was also ordered to pay $49 per week as support for the minor child.

In November, 1990, the defendant was deported to Poland by the United States Immigration and Naturalization Service. She continues to reside in Poland with the parties’ minor child.

On January 2, 1991, the plaintiff filed a motion for modification of support and suspension of alimony. In the motion and at the hearing on the motion, the plaintiff argued that there had been a substantial change in circumstances since the entry of the financial orders because the defendant was now living in Poland. The plaintiff produced expert testimony to substantiate his contention that rent, utilities, food, and other necessities of life are not as costly in Poland as in New Britain.

The trial court denied the motion to modify child support, but reduced the alimony award to $50 per week. In its articulation of the basis for its decision, the court found that “the financial assets, liabilities and expenses of both the defendant and the parties’ minor child were not able to be determined as to whether there was a substantial change in their financial circumstances since taking residence in Poland” and that “the evidence presented by the plaintiff was not credible as to the specific financial circumstances of the defendant nor of the defendant’s expenses.” With respect to its prior order of time limited alimony, however, the court did find that “the defendant wife has a potential earning capacity based on her educational background as a teacher” and that “this was sufficient for the court to reduce the alimony payments to her, but not sufficient to suspend them as no specific income of the defendant was presented to the court; nor was evidence presented that she was, in fact, employed.”

In this appeal, the plaintiff raises a number of arguments attacking the procedures used and conclusions reached by the trial court in deciding the motion for modification of support and suspension of alimony. We summarize these arguments as follows: (1) The trial court was required to suspend the plaintiffs alimony obligation because a condition of the original order had been met; (2) the trial court improperly prevented the plaintiff from presenting additional evidence comparing the cost of living in Poland with the cost of living in Connecticut; (3) the decision of the trial court ignores the undisputed evidence; (4) the trial court was required either to credit the plaintiffs evidence regarding the cost of living in Poland or to order the defendant to provide a financial affidavit; (5) it was inconsistent for the trial court to find a substantial change in circumstances justifying a reduction in alimony and to have ignored the same evidence with respect to the cost of living of the child in setting child support; (6) the trial court did not apply the Connecticut child support guidelines properly because the plaintiff is now left with less than $135 in net income.

“A trial court is endowed with broad discretion in domestic relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Flynn v. Flynn, 7 Conn. App. 745, 746, 510 A.2d 1005 (1986). As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable. The trial court has the advantage of reviewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action. Thus, we do not retry the facts. Leo v. Leo, supra; Koizim v. Koizim, 181 Conn. 492, 498, 435 A.2d 1030 (1980).” Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987).

The plaintiff first claims that the trial court was required to suspend alimony payments because a condition that would result in the termination of alimony under the original judgment had been met. He argues that the condition that alimony be terminated when the defendant is legally permitted to accept employment in the United States must be interpreted as though the words “in the United States” were absent. If those words are eliminated, the plaintiff contends, the alimony payments should cease because the defendant is legally permitted to accept employment in Poland.

We find nothing in the record, however, to support the contention that the condition would be fulfilled should the defendant return to Poland and legally be able to work there. The defendant is still not permitted to accept employment in the United States, and having been deported, she is precluded from living in this country. Moreover, in construing a judgment, “[t]he determinative factor is the intention of the court as gathered from all parts of the judgment.” (Internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 196, 496 A.2d 491 (1985); Scoville v. Scoville, 179 Conn. 277, 282, 426 A.2d 271 (1979) (Healey, J., dissenting). Here, the same trial court established this condition in its original judgment only six months earlier and was in the best position to interpret the wording of its orders and whether the condition had been met.

The plaintiffs next two claims revolve around the trial court’s use of the evidence presented on the cost of living in Poland. The fact that the trial court did not find this information to be useful in determining the specific financial circumstances of the defendant, however, undermines each of these arguments.

Although the trial court permitted the plaintiff to introduce testimony regarding the comparative costs of only a few basic necessities rather than the costs of the many items for which his expert witness was prepared to testify, this limitation on the evidence could not have affected the court’s decision in light of its conclusion that evidence of comparative costs did not provide it with a basis for determining the defendant’s actual expenses. It was well within the discretion of the trial court to reach this conclusion. Similarly, the plaintiff misunderstands the trial court’s conclusion when he asserts that the court ignored the evidence he presented regarding the cost of living in Poland. Rather than ignoring this evidence, the court found it to be of limited value in assessing the defendant’s particular financial situation. The plaintiffs argument that a $50 per month order is more consistent with the evidence that he presented than the court’s order of $50 per week is similarly flawed in that it ignores the fact that the trial court was not convinced that the plaintiff’s evidence required the conclusions that he wanted the trial court to draw.

As to each of these claims, the trial court determined that the plaintiff failed to sustain his burden of proof. We, as a reviewing court, will not retry the facts. Morganti, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 20 Conn. App. 67, 74, 563 A.2d 1055 (1989). The plaintiff’s second and third claims, therefore, must fail.

The plaintiff’s fourth claim requires little discussion. He argues that because the defendant failed to submit a financial affidavit as required by Practice Book § 463, the trial court was required either to credit his evidence regarding the lower cost of living in Poland or to order the defendant to file an appropriate Practice Book § 463 affidavit. We disagree.

First, we note that while “[t]hese sworn statements have great significance in domestic disputes”; Cohen v. Cohen, 11 Conn. App. 241, 247, 527 A.2d 245 (1987); Practice Book § 463 specifically allows a court to render permanent financial orders in the absence of the opposing party’s financial affidavit. See Sachs v. Sachs, 22 Conn. App. 410, 419, 578 A.2d 649, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990). Nothing in § 463 even remotely suggests that the failure of a party to submit a financial affidavit compels the court to view the evidence most favorably to the party who submits an affidavit. While the trial court may certainly draw adverse inferences from the failure of a party to submit the required financial information, it is under no obligation to do so. Sachs v. Sachs, supra.

Second, the plaintiff never asked the trial court to order the defendant to produce her financial affidavit. In fact, at the hearing on the motion, he specifically disavowed such a request.

The plaintiff here wants to have his cake, by requiring the court to accept his evidence in the absence of the defendant’s financial statement, and eat it too, by never requesting that the plaintiff be required to submit her affidavit before the trial court decided his motion. He cannot. The trier of fact had the discretion to view the plaintiff’s evidence more favorably in light of the absence of a financial affidavit from the defendant, but it was not required to do so. The trial court was required only to evaluate the evidence carefully. See Sachs v. Sachs, supra, 419-20.

The plaintiff next contends that it was inconsistent for the trial court to find a change in economic circumstances justifying a reduction in alimony and to have ignored the same evidence regarding child support. This argument again demonstrates his misunderstanding of the court’s order. The court did not find a change in the financial circumstances of the defendant or the parties’ child sufficient to warrant a modification of alimony or child support. The circumstance that the court found had changed from its prior order was that the defendant, now in her native Poland, was able to accept employment as a teacher, the field of her training. In light of this change in circumstances, then, the court recognized that part of the rationale for its original order of time limited alimony mandated an adjustment in the order. Because of the trial court’s conclusion that credible evidence concerning the specific financial circumstances, including expenses or possible income, of the defendant was lacking, however, the court would not suspend the alimony. The findings of the trial court, therefore, went only to the issue of the defendant’s circumstances vis-a-vis her need for alimony, i.e., her “potential earning capacity,” and not to the issue of her (or the child’s) economic circumstances. Accordingly, we find no inconsistency in the court’s order that would suggest that the failure to modify the child support order was improper.

Finally, the plaintiff claims that the trial court did not apply the Connecticut child support guidelines correctly. General Statutes § 46b-215b provides that our child support guidelines “shall be considered in all determinations of child support amounts within the state.” The trial court, however, did not make any determination of child support when it denied the plaintiff s motion for modification. Accordingly, it had no occasion to consider the guidelines. The plaintiffs claim is therefore without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       During oral argument before this court, the defendant’s counsel stated that the plaintiff has not complied with various financial orders and continues to violate them. The record and transcript here, however, are insufficient to warrant a sua sponte dismissal of the plaintiff’s appeal pursuant to Greenwood v. Greenwood, 191 Conn. 309, 464 A.2d 771 (1983). Pascal v. Pascal, 2 Conn. App. 472, 474 n.2, 481 A.2d 68 (1984).

       “[Practice Book] Sec. 463. [dissolution of marriage]—sworn STATEMENTS TO BE FILED
      “At the time a motion concerning alimony, support or custody is filed, or at the time a dissolution of marriage, legal separation or annulment action is claimed for a hearing, the moving party shall file a sworn statement substantially in accordance with a form prescribed by the chief court administrator, of current income, expenses, assets and liabilities, and pertinent records of employment, gross earnings, gross wages and all other income. The opposing party shall file such sworn statements at least three days before the date of the hearing on any of the above matters. When the attorney general has appeared as a party in interest, a copy of the sworn statements shall be served upon him in accordance with Sec. 120. Unless otherwise ordered by the court, all appearing parties shall file sworn statements within thirty days prior to the date of the decree. Notwithstanding the above, the court may render pendente lite and permanent orders, including judgment, in the absence of the opposing party’s sworn statement.”

       In explaining why the plaintiff was prepared to offer extensive expert testimony regarding the comparative cost of many basic necessities, his counsel explained: ‘Your Honor, I’m going to be as extensive as the court will permit me for this simple reason: We do not have an affidavit on the other side and 1—7 do not make any comment as to whether that’s excusable or non-excusable. ” (Emphasis added.)

       We note that any deviation from the child support guidelines in the original judgment can be explained by the fact that the child support order was based, in part, on the court’s finding that the plaintiff’s actual earnings did not adequately represent his earning potential. Specifically, the court found that his earning potential was approximately $125 per week above his actual gross income.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    State of Connecticut v. Koungthong Sirimanochanh
    (9352)
    Dupont, C. J., O’Connell and Foti, Js.

      Argued September 23, 1991
    decision released January 17, 1992

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Broume, state’s attorney, and GerardEisenman, assistant state’s attorney, for the appellant (state).

      Sandra P. Lax, with whom, on the brief, was Anthony Slez, Jr., for the appellee (defendant).
   Dupont, C. J.

The defendant was charged in a two count information with one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), and one count of risk of injury to a child in violation of General Statutes § 53-21. After a jury trial, the defendant was found guilty of what the court considered a lesser included offense of sexual assault in the second degree, namely, sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). The jury also returned a verdict of guilty of risk of injury to a child. The trial court then granted the defendant’s motions for judgment of acquittal because it concluded that there was insufficient evidence to sustain either verdict. The state appeals from the judgment of the trial court rendered following its granting of the defendant’s motions.

The state claims that the trial court improperly concluded that there was not sufficient evidence to sustain the convictions. We affirm the judgment of the trial court as to the first count on the alternate ground proffered by the defendant, namely, that sexual assault in the fourth degree is not a lesser included offense of sexual assault in the second degree in this case. We, therefore, do not reach the question of whether there was sufficient evidence to sustain the jury’s verdict of guilty of sexual assault in the fourth degree. We reverse the judgment of the trial court as to the risk of injury count and reinstate the jury’s guilty verdict because the trial court improperly concluded that there was insufficient evidence to support it.

The state and the defendant presented certain evidence. On March 11,1989, the complainant, C, who was four years old at the time, went next door to play with a friend, S. C testified that when she knocked on her neighbor’s door, the defendant, S’s uncle, answered. The defendant asked her to come in “five times until he said it loud enough that I could hear.” C went into the house and into the living room, where the defendant told her to kneel down. The defendant then lowered C’s pants and underpants to her ankles. In C’s words, the defendant then “put my crotch into his crotch,” and “his peepee in my peepee.” C testified that, at this time, the defendant’s penis was standing straight. Afterwards, the defendant got a paper towel, wet it with cold water, and wiped C’s crotch with it, which hurt C. The defendant then tried to pull C’s pants up, but she pulled them up herself. After the incident, the defendant gave C two cookies and she went home crying.

Regarding her arrival home after the incident, C first testified that she went to the bathroom, it hurt to urinate, and then she told her mother. Later, C testified that she told her mother as soon as she arrived home, and then she went to the bathroom and it hurt to urinate.

The state bolstered the testimony of C by presenting constancy of accusation testimony from several witnesses, including C’s parents, the responding police officer, and a nurse. Each witness testified that C told him or her that the defendant had stuck “his peepee in my peepee.” The state also presented the results of forensic tests that indicated that antigenic substances present in the defendant’s blood and semen were also present in a stain found in the crotch of C’s underpants, and that only 4 percent of the population has this blood type. C does not have that blood type. Further tests of the stain identified the presence of spermatozoa, although the tests did not determine whether the spermatozoa were human or animal.

The state also presented the testimony of two physicians who examined C at the hospital on March 11, 1989. Steven Berger, a physician who was on duty in the emergency room when C arrived with her father, testified that he noted that C’s vagina appeared normal, with some redness or irritation between the folds of the labia. He found no evidence of forced entry, such as bruising or tearing, and found no evidence of vaginal, anal or oral penetration. He stated that he did not believe that the redness could be caused by penile contact because the nature of the redness required repeated irritation and not a single event.

Avner Herschlag, an obstetrician-gynecologist, also examined C and testified at trial. He similarly found no signs of trauma or penetration of either the vagina or the anus. Herschlag also testified, however, that a sexual assault can “definitely” have occurred even when a doctor cannot find signs of it. He further testified that there could be sexual touching without penetration, and he could not testify with reasonable medical certainty that there had not been any sexual touching.

The defendant presented an extensive defense. First, William Holly, a neighbor of both the defendant and the victim’s family, testified as to three occasions in which he saw C and S playing together with the their pants down or off. He also testified that C had a lively imagination, and wandered away from her home frequently. Finally, he testified that he saw C and S playing together the day of the alleged incident, that he saw C in the days following the incident, and that she acted in a normal manner. In fact, he testified that he even witnessed her going to the defendant’s house on several occasions to play with S after the date of the alleged incident.

Holly also testified as a character witness for the defendant, as did the defendant’s employer, the defendant’s brother and two of the defendant’s friends. Each stated that, on the basis of his knowledge of the defendant, he believed that the defendant was not a risk of any kind to any small child. Each also testified that the defendant was of good moral character and had a good reputation in his community.

The defendant’s brother also testified regarding the chain of events on the day of the incident. He stated that on the day in question, while he and the defendant were outside washing a car, S and C played together inside the house. They played in the living room with blankets and took off their clothes. Finally, he stated that he had seen C on several occasions since the alleged incident and that she appeared to be acting normally.

The defendant took the stand and testified on his own behalf. He flatly denied any allegation that he in any way sexually assaulted C. He stated that he likes to sleep downstairs in the living room when it is cold because his bedroom upstairs has no heat. The night before the alleged incident he slept between two blankets on the living room floor. When he got up in the morning, he rolled up the blankets and put them next to a wall in the room. He also testified that that night, while sleeping in his underwear, he had a “wet dream.” Finally, he testified that when C came over to play in the afternoon after S and his family had left, he told C that S was not home, he gave her a cookie, she left and he went to sleep.

At the close of the state’s case, the defendant moved for judgment of acquittal on both counts. In arguing against the defendant’s motion with respect to the first count, the state argued that “even if the jury were not able to [find] sexual assault second beyond a reasonable doubt, they certainly might be able to find the lesser included sexual assault four.” The trial court queried whether sexual assault in the fourth degree is a lesser included offense of sexual assault in the second degree and requested both parties to present him with relevant case law. Due to its uncertainty, the trial court denied the defendant’s motion for acquittal.

At the close of all evidence, the defendant again moved for judgment of acquittal on both counts. The trial court reserved decision. The trial court then instructed the jury in accordance with an agreement reached by both parties. The instructions included an instruction on the crime of sexual assault in the fourth degree as a lesser included offense of sexual assault in the second degree. With respect to the second count, the trial court instructed the jury only on risk of injury to a child. The jury returned verdicts of not guilty of sexual assault in the second degree, guilty of sexual assault in the fourth degree, and guilty of risk of injury to a minor.

Immediately thereafter, the trial court granted the defendant’s motion for judgment of acquittal as to the risk of injury count, and rendered judgment as to sexual assault in the fourth degree. The defendant was to be sentenced the following day. The next day, the state reargued its opposition to the defendant’s motion for a judgment of acquittal on the risk of injury count but the trial court stood by its decision. The defendant then moved for a judgment of acquittal as to the conviction of sexual assault in the fourth degree, and argued that it is not a lesser included offense of sexual assault in the second degree. The defendant also argued that there was insufficient evidence to support the conviction. The trial court granted the defendant’s motion for a judgment of acquittal as to the conviction of sexual assault in the fourth degree, because it believed there was insufficient evidence to prove the defendant guilty beyond a reasonable doubt. With the permission of the trial court, the state appealed.

I

The state claims that the trial court improperly granted the defendant’s motion for judgment of acquittal on the first count, in which the jury returned a verdict of guilty of sexual assault in the fourth degree. The state argues that the trial court incorrectly concluded, as a matter of law, that the state failed to meet its burden of proof, that corroboration of C’s complaint is required by law, that there was no substantial corroboration of her story, and that there was insufficient evidence to sustain the conviction in the first count. The defendant, however, claims an alternate ground on which the judgment of the trial court may be affirmed. He filed a preliminary statement of issues pursuant to Practice Book § 4013, raising the question of whether sexual assault in the fourth degree is a lesser included offense of sexual assault in the second degree. The state did not brief the issue raised by the defendant as an alternate ground to affirm the trial court’s judgment. It did, however, argue in its reply brief that the issue is unpreserved and not reviewable under Practice Book § 4185 or State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

Although the defendant did not object to the trial court’s charge to the jury, which allowed the jury to consider sexual assault in the fourth degree as a lesser included offense of sexual assault in the second degree, we consider the issue to have been preserved. The defendant, at the time he argued his motion for judgment of acquittal of the charge of sexual assault in the fourth degree, argued that the charge was not a lesser included offense of sexual assault in the second degree. Thus, the trial court was afforded an opportunity to render a judgment of acquittal on this basis. Furthermore, even if this were not the case, we are not precluded from reviewing an alternative ground on which a judgment may be affirmed, which was not raised at trial. See Peck v. Jacquemin, 196 Conn. 53, 61-62 n.13, 491 A.2d 1043 (1985).

It is a basic principle in criminal law “ ‘that an accused is required to defend only against the charge[s] alleged.’ ” State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). “The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the charge[s] against him ‘with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .' State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979) . . . .” State v. Franke, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Peterson, 13 Conn. App. 76, 84, 534 A.2d 1237 (1987). The constitutional right to notice is satisfied where one or more offenses are lesser than and included in the crime charged in the information because notice of the crime charged includes notice of all lesser included offenses. State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985); State v. Jacobowitz, 182 Conn. 585, 591, 438 A.2d 792 (1981).

“The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser.” State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986). Proof of a lesser included offense must not require proof of any element that is not needed to commit the greater offense. State v. Castro, supra, 428; State v. Gonzalez, 14 Conn. App. 216, 221, 541 A.2d 115 (1988), aff’d, 210 Conn. 446, 556 A.2d 137 (1989). This court will look at the statutes, the information and the bill of particulars, if any, as opposed to the evidence presented at trial, in order to determine what constitutes a lesser included offense of the offense charged. State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977); State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).

In this case, the state charged the defendant, in the first count, with the crime of sexual assault in the second degree. The state’s long form information charged that the defendant “engaged in sexual intercourse with another person and such other person was under the age of sixteen years, in violation of Section 53a-71 (a) (1) of the Connecticut General Statutes.” The elements of such an offense are simply that the defendant engage in sexual intercourse with a person who is under the age of sixteen years old. The defendant was convicted, however, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). The elements of such an offense are that the defendant intentionally subject a person who is under the age of fifteen to sexual contact. General Statutes § 53a-65 (3) defines sexual contact as contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor, or degradation or humiliation of the other person.

In determining whether sexual assault in the fourth degree is a lesser included offense of sexual assault in the second degree, it is helpful to look to cases that analyze our sexual assault statutes in terms of double jeopardy. “In the context of a single trial, double jeopardy analysis is a two-step process. ‘First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. . . ” (Citation omitted.) State v. Mezrioui, 26 Conn. App. 395, 402, 602 A.2d 29 (1991). “[T]he test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In State v. Anderson, 211 Conn. 18, 557 A.2d 917 (1989), the court held that convictions of sexual assault in the first degree and attempted sexual assault in the first degree did not violate the double jeopardy provision, and affirmed convictions of two counts of sexual assault in the first degree, and one count each of kidnapping in the first degree, sexual assault in the third degree, and attempted sexual assault in the first degree. In State v. Blackwell, 20 Conn. App. 193, 197-98, 565 A.2d 549 (1989), we held that first degree sexual assault and second degree sexual assault are separate offenses. In State v. Snook, 210 Conn. 244, 266, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989), the court held that convictions of sexual assault in the second degree and sexual assault in the third degree do not violate the double jeopardy prohibition. Similarly, in State v. Hufford, 205 Conn. 386, 393, 533 A.2d 866 (1987), the court concluded that the crimes of sexual assault in the third degree and sexual assault in the fourth degree are separate offenses. These cases indicate that our courts have repeatedly held that in a single trial, there can be criminal liability under two separate sexual assault statutes, even if the liability arises out of the same act. Our analysis of the statutes and the charging documents in this case leads us to conclude that sexual assault in the fourth degree is not a lesser included offense of sexual assault in the second degree, but is, rather, a separate offense. Sexual assault in the fourth degree requires proof of the element of sexual contact for the purpose of sexual gratification of the actor or degradation or humiliation of the victim, whereas sexual assault in the second degree has no such element. The latter crime requires proof of sexual intercourse whereas the former crime does not. Each crime, therefore, requires proof of an element that the other does not.

The state could have proven all the elements of § 53a-71 (a) (1) and not convicted the defendant of § 53a-73a (a) (1) (A) if it had failed to prove that the defendant had a prohibited purpose. Similarly, the state could have proven all of the elements of § 53a-73a (a) (1) (A) and not convicted the defendant of § 53a-71 (a) (1) if it had failed to prove, for example, that sexual intercourse had occurred. Thus, it was improper for the trial court to instruct the jurors that they could consider sexual assault in the fourth degree as a lesser included offense of sexual assault in the second degree. It was, therefore, correct to render a judgment of acquittal of the offense of sexual assault in the fourth degree. See State v. Hodge, supra.

II

The state also claims that the trial court improperly granted the defendant’s motion for a judgment of acquittal on the second count, risk of injury to a child in violation of General Statutes § 53-21. The state argues that the trial court incorrectly concluded that impairment of particular morals of the child is an element of the crime which the state must prove beyond a reasonable doubt, and that the trial court improperly found that there was insufficient evidence to sustain the jury’s verdict. We agree, and reinstate the jury’s verdict of guilty in the second count.

As a threshold matter, the trial court incorrectly concluded, as a matter of law, that the state had the burden of proving beyond a reasonable doubt that particular morals of C had been impaired by the defendant’s conduct. To the contrary, the state need prove merely that the defendant deliberately touched the intimate parts of a child under the age of sixteen in a sexual and indecent manner. State v. Zwirn, 210 Conn. 582, 588, 556 A.2d 588 (1989); State v. Apostle, 8 Conn. App. 216, 243, 512 A.2d 947 (1986). It is not necessary that the defendant intend “to injure the child or impair its health”; State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988); nor is it necessary that the conduct actually injure the child or “impair the health or morals of the victim.” State v. Apostle, supra, 242. Therefore, the absence of proof of a particular injury or an actual impairment of the morals of the minor victim is irrelevant.

“Appellate analysis of a claim of [sufficiency] of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the [jury’s] verdict. . . . We then must determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Internal quotation marks and citations omitted.) State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991).

In State v. Avcollie, 178 Conn. 450, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), a trial court judgment of acquittal was reversed and a jury verdict was reinstated. The Avcollie court set forth the grounds on which a trial court may render a judgment of acquittal. First, the verdict may be overturned if the manifest injustice is so plain and palpable as to justify a suspicion that the verdict was produced by improper influences in passing on the credibility of witnesses and weighing conflicting testimony. Id., 457. The verdict may also be set aside if it is based on physically impossible conclusions, when testimony is “ ‘in conflict with indisputable physical facts, the facts demonstrate that the testimony is either intentionally or unintentionally untrue, and [the facts] leave no real question of conflict of evidence for the jury concerning which reasonable minds could reasonably differ.’ ” Id. Finally, a verdict may be set aside if the jury could not reasonably have concluded, from the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. Id., 457-58. It is this latter basis on which we must test the court’s action in this case.

A determination of whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt “does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light mpst favprable to the prosecution.” (Citations omitted.) Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); accord State v. Rodriguez, 200 Conn. 685, 688, 513 A.2d 71 (1986).

The evidence produced at trial sufficiently established that the defendant pulled down the victim’s pants and underpants, exposed his penis to the victim, and that there was sexual touching involved. Such conduct by an adult is violative of General Statutes § 53-21. State v. Pickering, 180 Conn. 54, 64, 428 A.2d 322 (1980). The evidence in this case, therefore, was sufficient to support the jury’s guilty verdict and the trial court improperly granted the defendant’s motion for a judgment of acquittal of the offense of risk of injury to a child.

The judgment is reversed as to the acquittal of risk of injury to a child and the case is remanded to the trial court with direction to render judgment reinstating the conviction of a violation of General Statutes § 53-21 and to sentence the defendant in accordance with that conviction. The judgment is affirmed as to the acquittal of sexual assault in the fourth degree.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such person is (1) under sixteen years of age . . . .”
      General Statutes § 53a-65 (2) defines “sexual intercourse” as “vaginal intercourse, anal intercourse, fellatio, or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse, or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.”

       General Statutes § 53-21 provides: “injury or risk of injury to, OR impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-73a (a) provides in pertinent part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”
      General Statutes § 53a-65 (3) defines “sexual contact” as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”
      General Statutes § 53a-65 (8) defines “intimate parts” as “the genital area, groin, anus, inner thighs, buttocks or breasts.”

       Despite the trial judge’s previous request for input from the parties on the issue of whether one crime is a lesser included offense of the other, the record does not reflect any discussion of such law. The record does reflect, however, that in a conference off the record between the state, the defendant and the trial judge, the defendant agreed with the state that they are lesser included offenses and consented to such an instruction being given to the jury. The defendant failed to submit its own request to charge. He failed to object to the state’s request to charge which did include such an instruction. Finally, he failed to object after the trial court gave the lesser included offense instruction.

       The trial court stated that in the face of “this child playing, playing naked, playing as children do, of adults talking to her parents, et cetera, about it and everything what, in that context, if there were sexual contact, would it mean to say that this impaired the health or morals of a minor .... And, I’m going to resolve that difficulty, as I think I must, in favor of the defendant by granting [the motion with respect to the second count.]” In reargument the next day, the trial court further stated that he believed that General Statutes § 53-21, defining risk of injury, was “so clearly vague, so broad, as to defy definition when you talk about, as in this case, any act likely to impair the health or morals of a child. He also reiterated that there was no evidence of the morals of the child. Finally, he ruled that the charge of risk of injury was inextricably linked to, or riding “piggy-back” on, the charge of sexual assault in the second degree, which required proof of sexual intercourse. He stated that where all the evidence at trial was presented to prove the crime of sexual assault in the second degree, and the jury acquitted the defendant of that charge, “then don’t ask me to somehow pick out, as a judge on a motion for judgment of acquittal, some evidence to support the charge of risk of injury, because I won’t buy into that, I just won’t do it.” The judge stated that it would be speculation to try to determine what act the jury regarded as an act likely to impair the morals of a minor.

       The trial court stated, in granting the motion for a judgment of acquittal, that there was no corroboration of the sexual assault.

       The defendant also attempts to raise an issue allegedly relating to prosecutorial misconduct during the state’s closing argument, and lists the issue as another alternate ground for sustaining the trial court’s judgments of acquittal. The statement of which he complains is claimed by him to require a new trial. This claim is unrelated to an alternate ground to sustain the trial court’s judgments, and we, therefore, need not consider it.

       Practice Book § 4013 (a) (1) provides in pertinent part: “If any appellee wishes to (A) present for review alternate grounds upon which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues within fourteen days from the filing of the appellant’s preliminary statement of the issues.”

       “[Practice Book] Sec. 4185. errors considered
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       In State v. Arline, 25 Conn. App. 653, 658, 596 A.2d 7, cert. granted on other issues, 220 Conn. 924, 598 A.2d 364 (1991), the state conceded that sexual assault in the third degree is a lesser included offense of sexual assault in the first degree. The decision, however, turned on whether the defendant was entitled to a charge on sexual assault in the third degree, and we concluded that he was not because there was no evidence to justify a conviction on that charge.

       In this case, the state did not seek to add the additional offense of sexual assault in the fourth degree to the information, and, therefore, the trial court never granted permission for such an amendment to the information pursuant to Practice Book § 624. We, therefore, need not reach the question of whether the defendant’s agreement that the court should charge the jury on the offense of sexual assault in the fourth degree was tantamount to his “express consent” as provided in Practice Book § 624. See State v. Hahn, 207 Conn. 555, 564, 541 A.2d 499 (1988); State v. Scognamiglio, 202 Conn. 18, 21-25, 519 A.2d 607 (1987).


author: Landau, J.

text:
    State of Connecticut v. Manuel Estrada
    (9360)
    Dupont, C. J., Landau and Heiman, Js.

      Argued December 5, 1991
    decision released February 18, 1992

      Robert G. Golger, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Manuel Estrada, appeals from his conviction of burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and four counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). He received a total effective sentence of twenty years incarceration. On appeal, the defendant raises five claims. He contends that the trial court improperly (1) instructed the jury on the principles of accessory liability in its charge on assault in the first degree, (2) admitted the testimony of a state’s witness as evidence of an “admission by silence” and instructed the jury that the defendant’s failure to respond to an accusatory statement could be considered an admission of guilt, (3) denied his motion for judgment of acquittal as to the count of assault in the first degree because the state failed to prove that the victim sustained serious physical injury, (4) admitted into evidence a written statement of a witness that was not based on personal information for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and (5) instructed the jury that the defendant could be found guilty as a principal in the assault although the state presented no evidence to substantiate such an instruction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the night of January 22, 1988, there was a knock on the door of the second floor apartment at 466 Kossuth Street in Bridgeport. Rose Roman Crawley opened the door and was grabbed and forced back into the apartment by a short black male, one of three men standing outside the door. The three armed men, two black and one Hispanic, entered the apartment in search of individuals they referred to as “Junior,” “Felipe” and “Macho.” In the apartment at that time were John Roman, his sisters Maria Roman, Rose Roman Crawley and Carmen Maldonado, his mother Marina Roman, and a friend of one of his sisters, Carmen Orellano. Immediately upon entering the apartment, the shorter black male locked all of the women in the bathroom. The three men then searched the apartment. After an unsuccessful search, they returned to the kitchen. The shorter black male turned out the light. At the time the lights were turned out, the short black male was standing approximately ten feet to John Roman’s left, the tall black male was standing about five feet to his right and the defendant was standing in the middle of the room, twelve feet in front of him. About four seconds later, John Roman was shot twice, once in each leg. Before falling, he saw flashes from a gun being fired from the center of the room, where the defendant was standing. The three assailants then ran out of the apartment.

The women broke out of the bathroom and found John Roman sitting in a pool of blood on the floor in the kitchen. He was taken to Bridgeport Hospital and was treated for the gunshot wounds. He remained in the hospital overnight, experienced pain, was required to use crutches for over two months and was permanently scarred by the bullet wounds.

I

The defendant first argues that the trial court should not have instructed the jury on the principles of accessory liability in its charge on assault in the first degree, thus impermissibly broadening the theory of liability beyond the allegations of the pleadings. Specifically, on the basis of State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), the defendant claims that because he was charged in the amended information as a principal to the crime of assault in the first degree, he could not be an accessory to that crime. Thus, he claims that the trial court improperly instructed the jury. We disagree.

There is no practical significance in being labeled an “accessory” or a “principal” for the purpose of determining criminal responsibility. See General Statutes (1875 Rev.) tit. XX, c. XIII, part X; State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879). The modern approach wholly abandons the common law terminology and provides that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. See W. LaFave & A. Scott, Criminal Law (1972) § 63, p. 501; see also Model Penal Code (1985) § 2.06, comment 6. Connecticut has taken the same approach through General Statutes § 53a-8. See State v. Baker, 195 Conn. 598, 608, 489 A.2d 1041 (1985); State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971). It is well established in this state that there is no such crime as “being an accessory.” State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute, General Statutes § 53a-8, merely provides an alternative under which criminal liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985). The law in this state clearly holds that the fact that the defendant was not formally charged as an accessory does not preclude his being so convicted. State v. Crump, 201 Conn. 489, 493, 518 A.2d. 378 (1986); State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981); State v. Greene, 11 Conn. App. 575, 583-84, 528 A.2d 855 (1987). “ ‘ “[A] defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial liability.” State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 465 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986).’ ” State v. Rice, 25 Conn. App. 646, 649, 595 A.2d 947 (1991), quoting State v. Hopkins, 25 Conn. App. 565, 568-69, 595 A.2d 911 (1991).

On appeal, the defendant contends that the trial court improperly instructed the jury on the theory of accessory liability because, like the defendant in State v. Steve, supra, he premised his whole defense on the belief that he was being charged solely as a principal and not as an accessory and that he did not have notice that the state would request an instruction on accessory liability. We disagree and conclude that this case is more analogous to State v. Hopkins, supra, where this court upheld the defendant’s conviction as an accessory, than to State v. Steve, supra.

“In State v. Steve, supra, 40, the state had alleged in both its substitute information and its bill of particulars that the defendant was being prosecuted as a principal. In addition, the state orally affirmed, pursuant to the defendant’s request, that the defendant was the principal with regard to the charges. Id., 41-42. Only after the state had finished presenting evidence in its case-in-chief did the defendant himself testify that another person had actually committed the crime. On appeal, this court concluded, and the Supreme Court affirmed, that the trial court improperly charged the jury on accessorial liability. In reaching this conclusion, the Supreme Court determined that the court’s instruction was improper because it was ‘not in substantial conformity with either the allegations in the bill of particulars or the evidence in the state’s case-in-chief . . . .’ Id., 46.” State v. Hopkins, supra, 568.

In State v. Hopkins, supra, the defendant, who was charged as a principal, withdrew his request for a bill of particulars regarding the original information and did not submit a request for a bill of particulars after the state filed its substitute information. Moreover, the defendant was in possession of information that should have alerted him to the increased possibility that he could be convicted as an accessory. Specifically, the defendant heard the victim testify that the defendant held him while the defendant’s companion attacked him. Additionally, the defendant obtained, through pretrial discovery, a copy of the police incident report that indicated that the defendant was not the individual who inflicted the wounds on the victim. Id., 569-70.

Here, the state initially charged the defendant as an accessory to the crime of assault in the first degree and alleged that the defendant “intentionally aided one Timothy Dobson, while the latter, with intent to cause serious physical injury to one John Roman, did cause serious physical injury to the said John Roman . . . in violation of Section 53a-59 (a) (1) and Section 53a-8 of the Connecticut General Statutes.” The state filed an amended information, in response to the defendant’s motion for a bill of particulars, in which it charged the defendant as a principal with the crime of assault in the first degree and alleged that the defendant “with intent to cause serious physical injury to one John Roman, did cause serious physical injury to said John Roman ... in violation of Section 53a-59 (a) (1) of the Connecticut General Statutes.” In its charge to the jury, the trial court instructed on accessory liability.

At the hearing on the motion for the bill of particulars the state explained, on three occasions, that it was alleging that the defendant was the principal, but that it was anticipating testimony in support of an accessory theory of liability, and thus would request an instruction on accessorial liability if such evidence did in fact materialize at trial. The prosecutor based this claim of anticipated accessorial liability testimony on the fact that such testimony had been adduced at the trial of Timothy Dobson, one of the other individuals previously tried in connection with John Roman’s shooting.

We conclude that the evidence adduced through the victim’s testimony did in fact support the trial court instruction on accessorial liability. The victim testified that, at the time he was shot, he was alone in the kitchen with the three assailants. He further testified that the shorter black man turned off the lights, that about four seconds later he was shot twice, once in each leg, and that it was the tall “black dude” who shot him with an Uzi. This testimony reasonably supports the conclusion that the defendant was not the principal, but rather an aider or abettor. Thus, not only was the defendant given adequate notice that the state would be seeking an instruction on accessory liability, there was substantial evidence presented at trial in support of the theory that the defendant was an accessory to assault in the first degree. The trial court’s instruction on accessory liability as it relates to the charge of assault in the first degree was proper.

II

The defendant next contends that the trial court improperly admitted the testimony of a state’s witness as evidence of an admission by silence and instructed the jury that the defendant’s failure to respond to an accusatory statement could be considered as an admission of guilt. We disagree.

The following facts are relevant to this claim. During its case-in-chief, the state called Rose Roman Crawley as a witness. Crawley testified that in the summer of 1988 she encountered the defendant in Rite-Aid Pharmacy in downtown Bridgeport, and that she initiated a conversation with him. She further testified that she told him that the incident involving her brother’s shooting was “messed up,” in response to which he replied that he did not shoot her brother. Crawley then accused the defendant of being there when her brother was shot. He made no response. The state offered this conversation and the defendant’s failure to respond to Crawley’s accusation as an admission by silence.

The state submitted a request to charge that sought, inter alia, an instruction on silence as an admission of guilt. The defendant objected on the ground that there was insufficient evidence to substantiate such a charge. He argued that there was no evidence presented that the defendant actually heard what was said and that he may have been walking by the witness at the time she addressed him. The trial court concluded that because this was a “back and forth conversation,” the exchange indicated that it was within the defendant’s earshot and that the defendant “wasn’t walking by in a pharmacy.” The court overruled the defendant’s objection.

On appeal, the defendant argues that there was no information provided that would demonstrate that the defendant either heard or under stood Crawley’s statement that he was present when the victim was shot. Alternatively, the defendant argues that even if he had heard and comprehended the statement, the statement was not accusatory in nature. Specifically, the defendant claims that it did not accuse him of aiding or abetting or soliciting others to shoot John Roman but rather accused him of no more than being present at the scene of a crime.

“The rule in Connecticut is that when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d. 550 (1986); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927).” State v. Daniels, 18 Conn. App. 134, 138, 556 A.2d 1040 (1989); see also State v. Torrice, 20 Conn. App. 75, 90, 564 A.2d 330 (1989), cert. denied, 213 Conn. 809, 568 A.2d 794 (1990). “Evidence of silence in the prearrest setting may be used either as an admission or for impeachment purposes. State v. Leecan, supra. The theory underlying the rule is that the natural reaction of an innocent person to an untrue accusation is promptly to deny, contradict or otherwise object to it; 29 Am. Jur. 2d, Evidence §§ 633, 638; and that the failure of the person to contradict or reply is probative of his adoption of the assertion. Obermeier v. Neilsen, 158 Conn. 8, 11, 255 A.2d 819 (1969).” State v. Daniels, supra, 138-39.

Although the doctrine of admission by silence has been criticized by commentators; see C. Gamble, “The Tacit Admission Rule: Unreliable and Unconstitutional—A Doctrine Ripe for Abandonment,” 14 Ga. L. Rev. 27 (1979); note, “Tacit Criminal Admissions,” 112 U. Pa. L. Rev. 210 (1963); our Supreme Court has not abandoned the doctrine but has joined other states in establishing standards regulating the admissibility of evidence of a defendant’s prearrest silence in the face of accusation. In Connecticut, “[t]he trial judge must decide, as a preliminary matter, whether proffered evidence of a defendant’s silence in the face of accusation is, under the circumstances, sufficiently probative of assent by the defendant to the accusatory statement made in his presence. See Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 315, 268 A.2d 639 (1970); Obermeier v. Neilsen, supra. The inference of assent may be made only when no other explanation is equally consistent with silence. State v. Vitale, 197 Conn. 396, 405, 497 A.2d. 956 (1985); State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980). Relevant considerations in determining the proper explanation for the actor’s silence are whether the actor heard, understood, and comprehended the statement to which he did not respond; State v. Vitale, supra, 406; whether the circumstances naturally called for a reply from him; id; and whether there were present physical or emotional factors which render the inference of assent unreliable. State v. Harris, supra.” State v. Daniels, supra, 139-40.

Initially, we note that ordinarily the trial court’s rulings on the admissibility of evidence are accorded great deference and will be disturbed on appeal only upon a showing of clear abuse of discretion. Ellice v. INA Life Ins. Co. of New York, 208 Conn. 218, 222, 544 A.2d 623 (1988); State v. Erhardt, 17 Conn. App. 359, 553 A.2d 188 (1989). In reviewing the trial court’s decision to admit Crawley’s testimony, we, therefore, consider whether the trial court could reasonably have concluded, on the basis of the evidence before it, that the fact of the defendant’s silence was sufficiently probative of assent to an accusatory statement to permit its admission into evidence as an admission by silence. See State v. Daniels, supra, 140.

The first question that must be addressed is whether Crawley’s statement was sufficiently accusatory in import to call naturally for a response from the defendant. As recognized in State v. Daniels, supra, the incriminating content of a statement is to be considered in determining whether an ordinary person would deny it. See United States v. Schulman, 624 F.2d 384 (2d Cir. 1980); United States v. Flecha, 539 F.2d 874 (2d Cir. 1976). In the context of the conversation between Crawley and the defendant, it is reasonable for the trial court to have concluded that the statement “you were there” carried sufficiently accusatory implications to call for a response from the defendant. The statement expressed the declarant’s belief that the defendant had been involved in her brother’s shooting. Such an expression, in this context, can clearly be characterized as accusatory.

Additionally, the record reveals sufficient evidence from which the trial court could reasonably have concluded that the defendant heard, understood and comprehended Crawley’s statement. Crawley testified that the conversation with the defendant occurred indoors at a pharmacy in Bridgeport, that she initiated the conversation by stating that what had happened to her brother was “messed up,” and that the defendant had responded to her statement. She further testified that this comment immediately preceded her statement that the defendant was present at the time her brother was shot. The defendant’s response that he did not shoot Crawley’s brother supports the conclusion that he heard her comment and that he clearly and correctly understood it. We, therefore, conclude that the trial court did not abuse its discretion in admitting this testimony as an admission of guilt.

Ill

The defendant next claims that the state failed to prove beyond a reasonable doubt that John Roman suffered a “serious physical injury” within the meaning of General Statutes §§ 53a-59 (a) (1) and 53a-3 (4) when he was shot. He contends that because the state failed to prove an essential element of the crime of assault in the first degree, the trial court improperly refused to grant his motion for judgment of acquittal of that charge. The defendant argues that no evidence was introduced that would demonstrate that, as a result of the assault, the victim faced a substantial risk of death, was seriously disfigured, lost or suffered an impairment of any bodily organ or faced serious impairment to his health. He further argues that the victim’s scars alone cannot sustain a conviction of assault in the first degree. We disagree.

General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) with intent to cause serious physical injury to another person, he causes such injury to such person or a third person by means of a deadly weapon or a dangerous instrument. . . .” Serious physical injury is defined by § 53a-3 (4) as “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” Physical injury, however, is defined as merely “impairment of physical condition or pain.” General Statutes § 53a-3 (3).

Although it may be difficult to distinguish between serious physical injury and physical injury, such a distinction must be drawn here. A person may be found guilty of assault in the first degree under General Statutes § 53a-59 (a) (1) only if he causes serious physical injury to another person. See State v. Rossier, 175 Conn. 204, 207, 397 A.2d 110 (1978).

“Connecticut courts have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. Whether we review the findings of the trial court or the verdict of a jury, our underlying task is the same. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens, 25 Conn. App. 181, 192, 594 A.2d 991 (1991). We then decide whether, on the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991), and cases cited therein.” State v. Johnson, 26 Conn. App. 433, 435, 602 A.2d 36 (1992).

Here, the state introduced copies of Roman’s hospital records in support of its allegations of serious physical injury. It is undisputed that these records and the trial testimony reveal that Roman was shot twice, once in each leg, remained in the hospital for at least one night, suffered pain, was required to remain on crutches for over two months and was left with scars on both legs as a result of the gunshot wounds. The scars were shown to the jury.

Despite the difficulty in drawing a precise line where “physical injury” leaves off and “serious physical injury” begins, we cannot say that the jury could not reasonably have found that he suffered serious physical injury. The trial court, therefore, properly denied the defendant’s motion for judgment of acquittal as to the charge of assault in the first degree.

IV

The defendant next argues that the trial court improperly admitted a statement of a witness for substantive purposes when the statement contained information that was not based on the declarant’s personal knowledge. The trial court admitted into evidence, over the defendant’s objection, a redacted version of the signed statement of Maria Roman in which she indicated that she knew the defendant and that he was present in the apartment at the time her brother was shot. The defendant contends that because Maria Roman testified at trial that it was her sister who told her who the defendant was, her identification of the defendant in the statement was not based on personal knowledge, and thus the statement was not admissible for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). We disagree.

The admission of prior written statements for substantive purposes is governed by State v. Whelan, supra, 753. State v. Grant, 221 Conn. 93, 96-103, 602 A.2d 581 (1992). In Whelan, the Supreme Court ruled that a written statement is admissible for substantive purposes if the following conditions have been satisfied: (1) the statement is signed by the declarant; (2) the declarant has personal knowledge of the facts contained within the statement; and (3) the declarant testifies at trial and is subject to cross-examination. State v. Whelan, supra, 753.

Here, the defendant does not challenge the first or the third requirement. It is undisputed that the statement is written and signed by the declarant. Additionally, the witness testified at trial and was subject to cross-examination about her statement to the police. The defendant asserts only that the second requirement, that the declarant has personal knowledge of the facts contained within the statement, has not been satisfied, and relies on State v. Green, 16 Conn. App. 390, 547 A.2d 916, cert. denied, 210 Conn. 802, 553 A.2d 616 (1988), for this proposition.

The specific components of the personal knowledge prong of Whelan, supra, were recently interpreted by our Supreme Court in State v. Grant, supra. The Grant court concluded that the “personal knowledge” requirement of Whelan “does not require that the declarant have witnessed the commission of the crime that is the subject of the prior inconsistent written or recorded statement.” State v. Grant, supra, 99. As the Supreme Court noted in State v. Grant, supra, and this court noted in State v. Green, supra, the declarant must have personal knowledge of the facts contained within the statement sought to be introduced. In order to determine whether the declarant has the requisite personal knowledge we look to the statement itself; see State v. Grant, supra, 101-102; State v. Green, supra, 397-98; and consider whether the statement indicates that the declarant personally knew the truth of the contents of the statement. The declarant need not have personally witnessed the commission of the crime that is the subject of the prior statement in order to have personal knowledge of the facts contained within his statement. State v. Grant, supra, 99. His presence or absence at the scene of the crime is merely one factor that may be considered in determining whether the declarant has such personal knowledge.

Our review of the redacted version of the statement supports a finding that the declarant had personal knowledge of the facts underlying her statement. It is undisputed that the declarant was present at the scene of the crime and had an opportunity to observe the three assailants. In her statement to the police, Maria Roman indicated that she had known the defendant for approximately two and one-half years from the PT Barnum project where they both had lived. These statements clearly demonstrate that she had independent knowledge as to the defendant’s identity. There is sufficient indicia of personal knowledge in the statement to support the trial court’s conclusion that the statement satisfied the Whelan criteria. Thus, the trial court properly admitted the declarant’s statement for substantive purposes.

V

The defendant’s final claim is that the state failed to introduce sufficient evidence to prove beyond a reasonable doubt that he acted as a principal in the crime of assault in the first degree. The crux of the defendant’s argument is that the victim, who was the only person in the room with the three assailants at the time he was shot, testified that it was the tall “black dude” who shot him, and no other evidence was presented that the defendant was the principal offender. We disagree with the defendant.

No exception to this instruction was taken at trial. The defendant, therefore, seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because there is abundant authority that states that claims of insufficiency of the evidence fall within the ameliorative penumbra of State v. Golding, supra; see State v. Aleksiewicz, 20 Conn. App. 643, 645 n.1, 569 A.2d 567 (1990); we review this claim.

As stated previously, there is no such crime as “being an accessory.” State v. Foster, supra. Rather, the accessory statute; General Statutes § 53a-8; merely provides an alternative under which criminal liability for one underlying substantive crime may be proved. See State v. Baker, supra. Where a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision on which the trier may have relied. Leary v. United States, 395 U.S. 6, 31-32, 89 S. Ct. 1532, 23 L. Ed. 2d. 57 (1969); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983). “ ‘The trial court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.” State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987), quoting Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982).

At trial, the state presented evidence that both of the bullets that struck the defendant were fired from the same weapon. The state also presented evidence indicating that the gun in the possession of the tall black male could not have been the weapon that fired the bullets that struck the defendant. Moreover, Roman testified that, at the time the lights were turned out, the short black male was standing approximately ten feet to his left, the tall black male was standing about five feet to his right and the defendant was standing in the middle of the room, twelve feet in front of him. He further testified that when he was struck he fell backwards after seeing flashes coming from the middle of the room, where the defendant was standing. On the basis of these facts, we conclude that sufficient evidence was presented from which the trial court and the jury could have reasonably concluded that the defendant acted as a principal in the assault against Roman. The trial court, therefore, properly instructed the jury that the defendant could be found guilty of assault in the first degree as a principal.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant is not arguing that the instruction erroneously defined accessorial liability. His only claim is that the instruction, as it relates to the crime of assault in the first degree, should not have been given at all. He does not challenge the applicability of the trial court’s instruction on accessory liability as it applies to any of the remaining charges.

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

       To establish the guilt of an accused as an accessory for aiding and abetting the criminal act of another, the state must prove criminality of intent and community of unlawful purpose. State v. McCalpine, 190 Conn. 822, 832, 463 A.2d 545 (1983); State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 (1976). The mental state of an aider and abettor incorporated in General Statutes § 53a-8 does not require that the accused know of or endorse every act of his coparticipant in crime. Parham v. Manson, 500 F. Sup. 551, 558 (D. Conn. 1980); see State v. Parham, 174 Conn. 500, 506-508, 391 A.2d 148 (1978).

       This withdrawal was without prejudice.

       “The function of a bill of particulars under Connecticut practice is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense.” State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied. 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

       Although the defendant failed to take exception to the charge at trial, we will review this claim on appeal. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Steve, 208 Conn. 38, 40, 544 A.2d 1179 (1988).

       The state first explained that it was “alleging that [the defendant] was the shooter in that the shots were fired from the direction from where the witness observed the defendant standing.” The prosecutor continued, “[n]ow there would also be testimony that the lights were off, so the state would also be submitting that on an accessory theory should the jury believe that he was an accomplice and aider and abettor to one of the others.” The prosecutor also stated that “under the circumstances, depending on how the evidence comes out, the jury may reasonably believe that he was an aider and abettor if they don’t believe he was the shooter. So the state is also going to be requesting that instruction again should the facts indicate that there is some question about whether he is the shooter or not.” Finally, the state commented, “I am indicating orally what, just so there is no question about it, that the state’s position is he is a principal, and the facts are going, as I believe they are going to come out, would suggest that even an aiding and abetting charge may be appropriate.”

       The state then asked the witness what the defendant had said to her during this encounter. Defense counsel objected, arguing that there had been no disclosure of any statement that was claimed to have been made by the defendant. The trial court overruled the objection, stating that there was no rule of practice requiring that a defendant’s statement to civilians be disclosed, and instructed the witness to answer the question.

       The following colloquy occurred:
      “Q. Didn’t you just indicate to the court that you had a conversation with [the defendant] concerning the shooting of your brother?
      “A. Yeah. But I spoke to him first.
      “Q. What did you say?
      “A. I told him that this was messed up, what happened to my brother.
      “Q. What did he say?
      “A. He said he didn’t shoot him.
      “Q. And then what did you tell him? What did you say to him after he said to you he didn’t shoot your brother?

        “A. That you were there.
      “Q. And what did he respond?
      “A. He didn’t say anything.
      “Q. He didn’t say anything to that did he?
      [Pause]
      “Q. Did he?
      “A. No.”

       It must also be noted that the defendant does not challenge the accuracy of the trial court’s instructions on admissions by silence.

       When ruling on a defendant’s motion for judgment of acquittal the trial court must first view the testimony and evidence presented at trial in the light most favorable to the state, and then determine whether any rational trier of fact could conclude, on the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence establishes guilt beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), relying on Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

       Both the federal and state constitutions guarantee that a criminal defendant may be convicted only on proof of each element of the offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). Jurors are not permitted to resort to speculation or conjecture. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984).

       The defendant’s argument that because the victim has recovered full use of his legs, he has not suffered a serious physical injury is without merit. Because General Statutes § 53a-3 (4) does not require that the injury sustained be permanent in nature, the fact that the victim regained full use of his legs does not preclude a finding of serious physical injury. See State v. Anderson, 16 Conn. App. 346, 357, 547 A.2d 1368, cert. denied, 209 Conn. 828, 552 A.2d 453 (1988); State v. Dickson, 10 Conn. App. 462, 466, 523 A.2d 935 (1987). of marijuana in the wooded area where Anziano was seen to run. Anziano had not been seen to actually drop the illegal drugs on that occasion and was not arrested. At this time he was operating a 1973 Ford color blue bearing Connecticut Reg number 925BVS which he is still the registered owner of.

       In the redacted statement, the declarant recounted her knowledge of the defendant as follows:
      “Q. Who was the third suspect that came into the apartment?
      “A. The Puerto Rican one.
      “Q. Did you ever see any of these suspects before?
      “A. Yes, the Puerto Rican one, Manuel.
      “Q. Where do you know him from?
      “A. We used to live in PTB and I knew him from there.
      “Q. How long have you known him?
      “A. For a good two and one-half years.
      “Q. Do you know where he lives?
      “A. He used to live in building eleven on the first floor ....
      “Q. Describe Manuel.
      “A. He’s around five feet, five inches tall, he has pimples all over his face, real short hair, heavy set, about eighteen or nineteen years old; he was wearing blue jeans and a black hooded sweat shirt.
      “Q. Did he have a weapon on him?
      “A. Yes. It looked like a thirty-eight, black.”


author: Daly, J.

text:
    Michael Ceci v. National Indemnity Company
    (10112)
    Daly, O’Connell and Foti, Js.
    Argued December 2, 1991
    decision released February 18, 1992

      Steven D. Jacobs, with whom, on the brief, were Richard L. Jacobs and Rachel M. Dufault, law student intern, for the appellant (plaintiff).

      Daniel P. Scapellati, with whom, on the brief, was John W. Lemega, for the appellee (defendant).
   Daly, J.

The plaintiff, Michael Ceci, appeals from the trial court’s decision confirming an arbitration award rendered in favor of the defendant insurance company. The trial court concluded that because the policy was unambiguous, the plaintiff was not covered by the policy issued to his employer, Victor Ceci Refuse, Inc., a family owned business. We affirm the judgment of the trial court.

The trial court found the following facts. On September 13, 1986, the plaintiff was a pedestrian when he was struck by an underinsured motorist. He requested uninsured motorist benefits pursuant to a business automobile policy of insurance issued by the defendant to Victor Ceci Refuse, Inc. The policy was effective from July 15, 1986, through July 15, 1987, and covered three pickup trucks and two trucks owned by the corporation. The policy identified Victor Ceci, Inc., as the “named insured” and did not identify any individual officers or employees. The policy classified the insured’s business as a corporation.

At issue in this case are the provisions of the insurance policy that dealt with uninsured motorist coverage. According to these provisions, the defendant would pay for damages caused by an uninsured vehicle. Individuals covered by this provision included: “(1) you or any family member (2) anyone else occupying a covered auto or a temporary substitute for covered auto.” The policy defined “ ‘Family member’ ” as “a person related to you by blood, marriage or adoption who is a resident of your household, including a ward or foster child.” The policy defined “occupying” as “in, upon, getting in, on or off.”

The plaintiff submitted his claim for uninsured motorist benefits to an arbitration panel. The arbitrators denied the plaintiff’s claim for coverage, finding that because the plaintiff was neither a family member of the named insured nor occupying any of the insured vehicles, he was not an insured under the policy. The plaintiff filed an application to vacate the arbitration award. The defendant asserted a counterclaim seeking to confirm the decision of the arbitration panel. The trial court rendered judgment in favor of the defendant by confirming the arbitration award. The plaintiff appealed that decision to this court.

The plaintiff contends that the trial court incorrectly concluded that the policy was unambiguous. He argues that because the policy was issued to a corporation, the language referring to coverage of family members created an ambiguity in the policy’s coverage that should be resolved in his favor. The plaintiff argues that the provisions dealing with uninsured motorists are ambiguous because the language indicates that these provisions covered persons and their families, unlike the rest of the policy which involves the named insured corporation. The plaintiff argues that the references to family members and bodily injuries apply only to persons and not to a corporation. Thus, according to the plaintiff, because the policy language has two different definitions of who is insured, it is ambiguous and should be construed in favor of the plaintiff. We disagree.

We begin by noting that an ambiguous provision in an insurance policy is to be construed in favor of the insured. Schultz v. Hartford Fire Ins. Co., 213 Conn. 696, 702, 569 A.2d 1131 (1990). Before an insured can take advantage of this principle, however, there must be a finding that the insurance policy provisions were in fact ambiguous. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 583-84, 573 A.2d 699 (1990) . The trial court’s conclusion that the policy provision was not ambiguous was a legal conclusion concerning the construction of the contract, which is subject to de novo review on appeal. Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 58, 588 A.2d 138 (1991).

Under Connecticut law, the named insured refers only to the name actually appearing on the insurance policy. Testone v. Allstate Ins. Co., 165 Conn. 126, 129-30, 328 A.2d 686 (1973). Testone involved an employee injured by an uninsured motorist during the course of his employment. The employee sought coverage under the employer’s uninsured vehicle provisions. The named insured was a corporation and the policy protected “against damages caused by an uninsured vehicle to ‘(a) the named insured and any designated insured and, while residents of the same household, the spouse and relatives of either . . . .’ ” Id. The court determined that he was not entitled to protection under the uninsured policy provision. Id., 130. The court looked to the language of the policy and held that because the employee was not a “designated insured,” he was not covered by the corporation’s policy. It is important to note that our Supreme Court did not find that the policy language referring to a “spouse and relatives” of the named insured, the corporation, to be ambiguous or misleading.

According to the language of the policy in this case, Victor Ceci Refuse, Inc., was the named insured. The policy did not list any other people as designated insureds. The policy specifically stated that “you” and “your” referred to the “name insured,” Victor Ceci Refuse, Inc. Because the plaintiff was not the named insured, to be entitled to uninsured motorist coverage, he must satisfy one of the provisions referring to who is insured. The resolution of this case turns on whether the language referring to “you or any family member” applied to the plaintiff in this case.

Neither our Supreme Court nor this court has interpreted language referring to a “family member” in a policy where the named insured is a corporation. A corporation is a distinct legal entity that acts only through its agents. Lieberman v. Reliable Refuse Co., 212 Conn. 661, 673, 563 A.2d 1013 (1989). Although the plaintiff is the brother of the owner of the corporation, he cannot be related to a corporation. The inclusion of language concerning family members in a policy issued to a corporation does not make the policy ambiguous. Because it is clear that the plaintiff could not be related to the corporation, there was no ambiguity that would entitle him to coverage based on the presumption favoring an insured where an insurance policy is ambiguous.

The plaintiffs status as an employee of the named insured corporation also fails to bring him within the uninsured motorist provision for family members. We adopt the majority position that employees do not qualify for uninsured motorist benefits as “family members” of a corporation by which they are employed. Hogan v. Mayor & Aldermen of Savannah, 171 Ga. App. 671, 672, 320 S.E.2d 555 (1984); Kaysen v. Federal Ins. Co., 268 N.W.2d 920, 923-24 (Minn. 1978); Cutter v. Maine Bonding & Casualty Co., 133 N.H. 569, 573, 579 A.2d 804 (1990); Giambri v. Government Employees Ins. Co., 170 N. J. Super. 140, 143, 405 A.2d 872 (1979), aff'd, 174 N.J. Super. 162, 415 A.2d 1202 (App. Div. 1980) (per curiam); Buckner v. Motor Vehicle Accident Indemnity Co., 66 N.Y.2d 211, 214, 486 N.E.2d 810, 495 N.Y.S.2d 952 (1985); Dixon v. Gunter, 636 S.W.2d 437, 440-41 (Tenn. App. 1982).

The reasoning for this rule as explained by the Court of Appeals of New York in Buckner v. Motor Vehicle Accident Indemnity Co., supra, is persuasive. In that case, the plaintiff, a child of the sole shareholder of a family owned corporation was struck while riding his bicycle by a hit-and-run driver. The plaintiff had worked part-time for the corporation but was not involved in the corporation’s business when he was injured. The plaintiff sought uninsured motorist benefits under the corporation’s insurance policy. The language of the policy was very similar to the language in the policy at issue in this case. The court noted that an average person reading the entire policy would conclude that a corporation could not have family members related by blood, marriage or adoptions. Buckner v. Motor Vehicle Accident Indemnity Co., supra, 214. The court noted that its construction of this provision concerning a family member of a corporation did not render the uninsured vehicle coverage without meaning because the other provision covered “any person while occupying an automobile owned by the corporation . . . .” Id., 215. In this case, the uninsured vehicle provision also covers other persons who occupy a covered automobile, so our construction of the inapplicability of the family member provision does not leave the uninsured vehicle provision without meaning.

The plaintiff argues that the family member provision of the insurance policy must be construed to cover his claim. His argument is based on the principle that “ ‘[ejvery provision [of a contract of insurance] is to be given effect, if possible, and no word or clause eliminated as meaningless, or disregarded as inoperative, if any reasonable meaning consistent with the other parts of the policy can be given to it.’ ” A.M. Larson Co. v. Lawlor Ins. Agency, Inc., 153 Conn. 618, 622, 220 A.2d 32 (1966), quoting Downs v. National Casualty Co., 146 Conn. 490, 495, 152 A.2d 316 (1959). The policy in this case was issued to a corporation, not an individual person. The endorsement concerning uninsured motorist coverage was to be read in light of the entire policy. It is impossible to give any reasonable meaning to “family member” that would qualify the plaintiff as a family member of a corporation. Construing this insurance policy as a layperson would understand it; Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980); there is no reasonable interpretation of the family member provision that would entitle the plaintiff to recover under this policy.

When interpreting an insurance policy, “[a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity, and words do not become ambiguous simply because lawyers or laymen contend for different meanings.” Downs v. National Casualty Co., supra, 494-95. The language of the uninsured motorist provision was clear and unambiguous. We will not torture the meaning of family member to accept the plaintiffs claim that he was related to the corporation.

We conclude that the trial court’s decision confirming the arbitration panel’s ruling was proper.

The judgment is affirmed.

In this opinion the other judges concurred.