author: ALVORD, J.

text:
    STATE OF CONNECTICUT v. BRENT M. ARTHURS
    (AC 30516)
    Flyun, C. J., and Robinson and Alvord, Js.

    Argued February 8
    officially released June 8, 2010

      David V. DeRosa, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Donna Krusinski, assistant state’s attorney, for the appellee (state).

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

   Opinion

ALVORD, J.

The defendant, Brent M. Arthurs, appeals from the judgment of conviction, rendered following a trial to the court, of stalking in the first degree in violation of General Statutes § 53a-181c and criminal violation of a protective order in violation of General Statutes § 53a-223. He claims that there was insufficient evidence to support his conviction. We affirm the judgment of the trial court.

The following facts are relevant to the defendant’s appeal. The defendant and the victim were married for approximately thirteen months, from October, 2006, until their divorce was finalized in November, 2007. Just before midnight on June 3, 2007, the police were dispatched to the couple’s house after a 911 call was placed by the victim. The defendant had been pounding on the side of the house and the front and back doors, yelling and threatening to break things in an attempt to gain access to the house. Although the victim was afraid to let the defendant inside, she eventually did so. Once inside, the defendant continued to yell and threaten to break things, and the victim locked herself in a bedroom. The defendant broke down the bedroom door and forced his way into the bedroom. The victim called 911. When police arrived on the scene, she was nervous and shaken. The defendant was arrested, and, as a result of the incident, a protective order was issued on June 4,2007. A total of four protective orders naming the victim as the protected person were issued against the defendant. The order issued on June 4, 2007, provides in relevant part: “Defendant shall refrain from threatening, harassing, stalking, assaulting, molesting, sexually assaulting or attacking the Protected Person. . . . Defendant shall refrain from having any contact in any manner with the Protected Person. Defendant shall refrain from coming within 100 yards of the Protected Person. . . .”

On July 8, 2007, the victim volunteered at a triathlon in Norwalk in which she had previously participated. The defendant, who knew the victim usually participated in the triathlon, also was present at the event. One of the victim’s friends, Dan Kurzatkowski, testified that he saw the defendant at the triathlon. The defendant told Kurzatkowski that he had the victim’s bicycle wheels and wanted to return them to her. The defendant asked Kurzatkowski if he had seen the victim, and Kur-zatkowski replied no.

During the event, the victim kept hearing someone call her name, but she could not identify who it was. A short time later, she saw the defendant standing fifteen to twenty yards away from her in the crowd. The victim panicked and started to shake. She felt unsafe and wanted to escape. She immediately left the scene, walking backward to her car to make sure she was not being followed. Still afraid and shaking, the victim drove to Black Rock Congregational Church in Fairfield where she hoped to see some of her friends. The victim was not a member of the church but had previously attended it with friends and, on four or five occasions, with the defendant for marriage counseling sessions.

The victim was afraid of parking in the church’s main parking lot. Instead, she parked in a remote lot and took a church shuttle to the building. When the victim reached the church’s entrance, she saw the defendant ten yards away, hiding against a wall, staring at her. The victim panicked and entered the church. The defendant also entered the building and proceeded upstairs. The victim left the church a few minutes later and called the police. The defendant’s conviction of stalking at issue in this appeal arises from the incidents on July 8, 2007, at the triathlon in Norwalk and at Black Rock Congregational Church in Fairfield. The defendant’s conviction of criminal violation of a protective order at issue in this appeal arises from the incident at Black Rock Congregational Church in Fairfield on July 8,2007.

I

The defendant first claims that there was insufficient evidence to support his conviction of stalking in the first degree in violation of § 53a-181c. “The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Ancona, 120 Conn. App. 324, 328, 991 A.2d 663 (2010). “In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Russell, 101 Conn. App. 298, 309-10, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

In order to obtain a conviction under General Statutes § 53a-181d, the state must prove all of the following elements beyond a reasonable doubt: (1) that the perpetrator acted with intent to cause another person to fear for his or her physical safety, (2) that the perpetrator acted wilfully, (3) that the perpetrator acted repeatedly, (4) that the perpetrator followed or lay in wait for the other person and (5) that the perpetrator caused the other person reasonably to fear for his or her physical safety. See State v. Cummings, 46 Conn. App. 661, 669, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997). The defendant argues that there was insufficient evidence to prove that (1) he intended to cause the victim to fear for her physical safety, (2) he followed or lay in wait for the victim and (3) the victim’s fear for her physical safety was reasonable under the circumstances. We disagree.

A

The defendant first asserts that the state failed to adduce sufficient evidence that he intended to cause the victim to fear for her physical safety because no evidence was presented of any direct physical contact, threats or harassment. “[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Intent may be and usually is inferred from conduct .... [W]hether such an inference should be drawn is properly a question for the [trier of fact] to decide. . . .

“Proof of verbal threats or harassing gestures is not essential to prove a violation of § 53a-181d. The stalking statute was enacted to address the situation where the criminal does not physically take an act against the person or does not verbally make a direct an[d] immediate threat of harm, but merely stalks the victim. . . . The statute can be violated without a defendant’s uttering a syllable, writing a word, or making a gesture.” (Citations omitted; internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 94-95, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997); see also State v. Culmo, 43 Conn. Sup. 46, 52, 642 A.2d 90 (1993), adopted by State v. Marsala, supra, 97. The evidence adduced at trial, including the victim’s account of the domestic dispute that took place on June 3, 2007, the defendant’s disregard of the protective order issued against him and the defendant’s “creepy” behavior at the triathlon and Black Rock Congregational Church, was sufficient for the court to conclude that the defendant intended to cause the victim to fear for her physical safety on July 8, 2007.

B

The defendant additionally argues that there was insufficient evidence that he followed or lay in wait for the victim. We do not agree. The court reasonably could have inferred from the evidence presented at trial that the defendant knew the victim would be participating in the triathlon, went there specifically to see her and waited in the crowd until he did. Further, the court could have inferred that the defendant followed the victim to the church, arriving first because the victim parked in the remote lot, lay waiting for her by the church’s entrance, hid when she approached and stared at her from the nearby sidewalk and bushes.

C

The defendant also maintains that there was insufficient evidence that the victim’s fear was reasonable because he never physically assaulted or injured the victim. The defendant’s claim is both distressing in its suggestion that physical violence is a precondition of reasonable fear; see State v. Culmo, supra, 43 Conn. Sup. 51-52 (discussing legislative history of stalking statutes, §§ 53a-181c and 53a-181d); and meritless. “The standard to be applied in determining the reasonableness of the victim’s fear in the context of the crime of stalking is a subjective-objective one. ... As to the subjective test, the situation and the facts must be evaluated from the perspective of the victim, i.e., did she in fact fear for her physical safety? ... If so, that fear must be objectively reasonable, i.e., a reasonable person under the existing circumstances would fear for his or her physical safety.” (Citations omitted; internal quotation marks omitted.) State v. Russell, supra, 101 Conn. App. 319. The victim repeatedly testified that she felt afraid, shaken and unsafe. Moreover, the evidence introduced through the testimony of the victim and the responding police officer regarding the incident that occurred at the couple’s house on June 3, 2007, was sufficient for the court to conclude that the victim’s fear on July 8, 2007, was objectively reasonable. During the June 3,2007 incident, the defendant yelled, pounded on the front and back doors, threatened to break things and ultimately broke down the bedroom door and forced his way into the bedroom where the victim was hiding. In the process, he broke not only the bedroom door but also a mirror attached to the door and punctured holes in the wall.

II

In his second claim, the defendant challenges the sufficiency of the evidence underlying his conviction of criminal violation of a protective order. “A person is guilty of criminal violation of a protective order when an order . . . has been issued against such person, and such person violates such order.” General Statutes § 53a-223 (a). The defendant does not contest the existence of a valid protective order. Instead, he argues that his presence at the church was accidental, and, as a result, the state failed to prove he possessed the requisite mens rea. See State v. Charles, 78 Conn. App. 125, 128, 131, 826 A.2d 1172 (criminal responsibility for violation of protective order requires general intent), cert. denied, 266 Conn. 908, 832 A.2d 73 (2003). Although evidence was introduced through a police officer that the defendant had been going to Black Rock Congregational Church since October, 2006, and claimed to be a member, the court was free to reject this evidence and the chance encounter theory put forward by the defendant. See State v. Russell, supra, 101 Conn. App. 320 n.23 (“[é]vidence is not insufficient merely because it is conflicting or inconsistent” [internal quotation marks omitted]). Consequently, we conclude that the evidence presented was sufficient to support the court’s determination that the defendant violated the June 4, 2007 protective order.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was convicted in the same proceeding of three additional counts of criminal violation of a protective order in violation of § 53a-223, disorderly conduct in violation of General Statutes § 53a-182 (a) (1), criminal trespass in the first degree in violation of General Statutes § 53a-107 and interfering with an officer in violation of General Statutes § 53a-167 (a). These convictions are not at issue in this appeal.

       Subsequent protective orders were issued on August 6 and 29, and November 8, 2007.

       The defendant told police that when he first saw the victim at the church he was on a sidewalk area outside the church and that upon seeing the victim, he hid in some bushes, then went inside after the victim and went upstairs.

       General Statutes § 53a-181c provides in relevant part: “A person is guilty of stalking in the first degree when he commits stalking in the second degree as provided in section 53a-181d and . . . such conduct violates a court order in effect at the time of the offense . . . .”
      General Statutes § 53a-181d (a) provides in relevant part: “A person is guilty of stalking in the second degree when, with intent to cause another person to fear for his physical safety, he wilfully and repeatedly follows or lies in wait for such other person and causes such other person to reasonably fear for his physical safety.”

       The additional requirement imposed by § 53a-181c, that the defendant’s conduct constitute a violation of a court order in effect at the time of the offense, is not in dispute with respect to the incident at the triathlon and is disposed of in part II of this opinion with respect to the incident at the church.

       The defendant also asks us to overrule the definition of “repeatedly” that this court adopted in State v. Jackson, 56 Conn. App. 264, 273, 742 A.2d 812 (“repeatedly in the context of the statute means precisely what the commonly approved usage of the word suggests—acting on more than one occasion” [internal quotation marks omitted]), cert. denied, 252 Conn. 938, 747 A.2d 4 (2000), and State v. Russell, supra, 101 Conn. App. 318 (repeatedly means acting on more than one occasion). We decline to do so.

       We note that the defendant did not retreat or leave the church when he noticed that the victim was also there.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    THOMAS T. LONARDO, P.C. v. ALBERTO DICHELLO
    (AC 30656)
    Flynn, C. J., and Robinson and Sullivan, Js.

      Argued October 26, 2009
    officially released June 8, 2010

      Peter E. Ricciardi, with whom was Albert J. Oneto IV, for the appellant (defendant).

      Thomas T. Lonardo, for the appellee (plaintiff).

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

   Opinion

ROBINSON, J.

The defendant, Alberto Dichello, appeals from the judgment of the trial court, rendered after a trial to the court, awarding the plaintiff, Thomas T. Lonardo, P.C., $7472.50 in damages for legal services provided by the plaintiff that were not remunerated by the defendant. On appeal, the defendant claims that the court improperly: (1) awarded damages after finding that no fee agreement existed between the parties; (2) awarded damages on the basis of its determination that the plaintiff had complied with rule 1.5 of the Rules of Professional Conduct; (3) awarded damages after finding that the plaintiff failed to notify the defendant of its intended billing rates; (4) awarded damages after finding that the plaintiff had continued to provide legal services after it had been discharged as counsel by the defendant; (5) awarded damages on the basis of quantum meruit even though the plaintiffs complaint alleged only breach of contract; and (6) impugned the defendant’s right to due process, as enshrined in the fourteenth amendment to the United States constitution and in article first, § 10, of the constitution of Connecticut, by awarding damages on the basis of a claim that was not alleged in the plaintiffs complaint and was not argued to the court. Although the plaintiff did not file a cross appeal, it argues in its appellate brief that the judgment should be reversed because the court improperly found that (1) the parties had not entered into an oral agreement for legal services and (2) it was only entitled to $7472.50 in damages. Because we conclude that the record is inadequate for our review, we affirm the judgment of the trial court.

The record discloses the following procedural history and findings of fact. Between 1995 and 2003, the plaintiff represented the defendant in several commercial real estate transactions. Although there had never been a written fee agreement, the plaintiff normally charged the defendant either a flat fee or billed him at an hourly rate of $200 per hour. In December, 2000, the plaintiff billed the defendant a flat fee of $1500 for representing him in a real estate transaction, while in November, 2002, the plaintiff billed the defendant a flat fee of $1150 for representing him in a real estate transaction of similar complexity. Contemporaneously with these transactions, the plaintiff also represented the defendant in a third transaction from February, 2000, through June, 2002. This third transaction was more complex, and the plaintiff billed the defendant at a rate of $200 per hour, which culminated in a final bill totaling $4930.

The plaintiffs representation of the defendant in the transaction at issue began on June 22, 2003, and lasted until June 24, 2004, during which the plaintiff billed the defendant $16,822.50. This transaction was more complicated than those in the past, requiring the plaintiff to assist the defendant with the formation of multiple, limited liability companies and to represent the defendant in connection with his securing a commercial loan to build a structure that was to house these new businesses. The transaction proceeded slowly, and the defendant retained new counsel, Peter E. Ricciardi, on or before April 1,2004. At that time, the plaintiff submitted to Ricciardi a bill for services rendered, and Ricci-ardi indicated in a letter dated April 1, 2004, that the defendant agreed to pay the bill at the time of the closing. Moreover, the plaintiff continued to provide legal services to the defendant in connection with this transaction subsequent to April 1, 2004, billing the defendant an additional $7000 in legal fees between April 21, 2004, and June 10, 2004.

The plaintiff filed this action on July 14, 2006, and trial was held on September 24, 2008. In its one count complaint, the plaintiff alleged that it had provided legal services to the defendant “under an agreement between the parties” and that the defendant had not paid the amount due under that agreement, and, as a result, the plaintiff claimed damages. In its memorandum of decision, the court found that there was neither a written nor an oral fee agreement between the parties that governed the transaction, although the court also found that the plaintiff had complied with rule 1.5 (b) of the Rules of Professional Conduct, which waives the need for a written fee agreement “when the lawyer will charge a regularly represented client on the same basis or rate. . . .” Rules of Professional Conduct 1.5 (b). The court then cited Cole v. Myers, 128 Conn. 223, 230, 21 A.2d 396 (1941), which considered the remuneration of attorney’s fees for claims alleging breach of contract and quantum meruit, and awarded the plaintiff $7472.50 in damages. This appeal followed.

We begin by noting that it is unclear from the court’s memorandum of decision which legal theory it relied on to award damages. By way of example, although the court found that there was not a fee agreement governing the transaction at issue, it also found that “[t]he plaintiffs claim for [its] fee does fall under the exception of rule 1.5 (b), as the defendant was a regularly represented client.” Thus, it is unclear whether the court predicated its award of damages on a breach of contract or on compliance with rule 1.5 (b) of the Rules of Professional Conduct. Moreover, the court’s citation of quantum meruit precedent in a case alleging only a breach of contract claim further obscures the legal basis it relied on to award damages. Finally, there is nothing in the record to indicate how the court arrived at the amount of damages that it awarded. Accordingly, the record does not reveal the basis for the court’s judgment.

As we often have observed: “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claim] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608-609, 710 A.2d 190 (1998). Furthermore, it is axiomatic that the appellant must provide this court with an adequate record for review. See Practice Book § 61-10. Indeed, “[u]nder these circumstances, the [appellant] should have filed a motion for articulation to preserve an adequate record for review. See Practice Book §§ 61-10 and 66-5. It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P] roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 685-86, 911 A.2d 300 (2006). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). Accordingly, because the record does not reveal the basis for the court’s judgment and the defendant failed to file a motion for articulation, we are unable to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the plaintiff argues in its appellate brief that the court’s judgment should be reversed, it should have filed a cross appeal. See Mitchell v. Silverstein, 67 Conn. App. 58, 60 n.5, 787 A.2d 20 (2001) (“[i]f an appellee wishes to change the judgment in any way, the party must file a cross appeal” [internal quotation marks omitted]), cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002). Moreover, although this court has discretion to address a claim that should have been raised by a cross appeal; see DeBeradinis v. Zoning Commission, 228 Conn. 187, 198 n.7, 635 A.2d 1220 (1994) (addressing issue that should have been raised by cross appeal because issue had been fully briefed and it appeared parties would not be prejudiced); we decline to do so because the record is inadequate for our review, and the plaintiff, as a cross appellant, failed to file a motion for articulation. See Knapp v. Knapp, 270 Conn. 815, 825, 856 A.2d 358 (2004) (cross appellant’s failure to seek articulation of judgment left reviewing court without ability to engage in meaningful review). Thus, just as we are unable to review the defendant’s claims due to an inadequate record, we also are unable to review the plaintiffs claims for the same reason. As we will more fully explain, both an appellant and a cross appellant have the burden of producing an adequate record for us to review their respective claims, and neither party has met that burden in this case.

       It is unclear from the record whether the defendant requested this additional work. During oral argument to this court, however, the defendant conceded both that the plaintiff continued to work on the file after April 1, 2004, because he had greater familiarity with the transaction and that the defendant did not object to the plaintiffs continuing work, even after receiving this invoice.

       It bears emphasis, however, that the portion of Cole cited by the court related to the justification for remunerating attorney’s fees under a claim of quantum meruit; the cited passage did not involve a breach of contract claim.

       Although rule 1.5 (b) does not provide an independent cause of action; see Gagne v. Vaccaro, 255 Conn. 390, 403, 766 A.2d 416 (2001) (Rules of Professional Conduct “are' not designed to be a basis for civil liability” [internal quotation marks omitted]), on appeal after remand, 80 Conn. App. 436, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004); ambiguity nevertheless is created because the court’s decision fairly could be read to base the award of damages on compliance with this rule.

       Although the court never used the term “quantum meruit” explicitly in its decision, its apparent reliance on quantum meruit precedent further obfuscates the legal analysis that it relied on to support its judgment.

       We note that the defendant agrees with our assessment in this regard. During oral argument to this court, the defendant stated that he was “struggling to try to find out what the basis was for awarding any damages.”


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. EDUARDO ADORNO
    (AC 30484)
    Bishop, Beach and Schaller, Js.

      Argued February 2
    officially released June 8, 2010

      Alice Osedach, assistant public defender, for the appellant (defendant).

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Matthew A. Crockett, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Eduardo Adorno, appeals from the judgment of conviction, rendered following a jury trial, of two counts of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (A) and three counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). The defendant claims that the trial court improperly (1) precluded evidence related to the prior sexual history of the victim, (2) prohibited him from introducing evidence of bias, prejudice or interest pursuant to § 6-5 of the Connecticut Code of Evidence and (3) instructed the jury that to find him guilty of risk of injury to a child, it had to find that his conduct was “likely to impair the child’s health or morals” and that the term “likely” was to be understood as meaning that in all “probability or possibility” the defendant’s conduct had impaired the victim’s health or morals. We reverse in part and affirm in part the judgment of the trial court.

The state presented evidence that, in November, 2005, the defendant, who is a relative of the victim’s father, moved into the victim’s father’s home with his girlfriend. The victim was thirteen years old at the time. Her parents were divorced, and she stayed primarily at her father’s home in Danielson, which had a finished basement where the victim and her two older sisters each had their own bedrooms. The basement also contained a guest room, a room used for the computer and laundry and a living room area. The defendant and his girlfriend stayed in the living room area of the basement.

A few days after the defendant moved in, around mid-November, the defendant was lying on his bed, and the victim was sitting on the edge of the bed, watching television. The victim was telling the defendant that her shoulders were sore from cheerleading practice, which she had just attended. In response, the defendant stood up, walked over to the victim and began massaging her shoulders. Soon thereafter, the defendant moved his hands downward and began massaging the victim’s breasts with both hands. After two or three seconds, the defendant stopped and left the room. The victim did not tell anyone about this incident at that time.

Approximately one week later, the victim was in the computer room, talking to a friend on the telephone. She was seated at a desk when the defendant came in and began massaging her shoulders, eventually moving his hands to her breasts. After approximately two seconds, the victim pushed the defendant’s hands away. As the defendant left the room, he stopped and told the victim that he loved her. The victim responded by telling the defendant that she hated him.

The victim testified that, later that night, she was lying on her bed, underneath the covers, watching television. She stated that the defendant entered her bedroom and asked if he could watch television with her, to which she acceded. The victim testified that the defendant joined her under the covers and, after a few minutes, pushed her pants down and put his penis into her vagina two or three times. The victim indicated that it lasted for a few seconds and that she tried to scream, but she did not know if anybody heard her. The defendant left her room without saying anything, and she stayed in her room and cried. She did not tell anybody about this incident at that time.

A few days later, the victim told her boyfriend that the defendant had touched her inappropriately on two occasions. She did not tell him about the last incident involving the alleged sexual penetration. Shortly thereafter, the victim told her mother that the defendant had touched her twice, but she did not tell her mother about the incident in her bedroom. After the victim’s mother told her father, the father confronted the defendant, who denied the allegations. The victim’s father nevertheless drove the defendant back to New York, and the defendant did not return to the victim’s father’s house again.

Several months later, in May, 2006, the victim’s mother took her to a doctor because she had symptoms of a urinary tract infection. In the waiting room of the doctor’s office, the victim, for the first time, told her mother that the defendant had sexually assaulted her in November, 2005. They did not disclose this information to the doctor.

A couple of weeks later, the victim’s mother took her to Planned Parenthood of Connecticut, Inc. (Planned Parenthood). Planned Parenthood contacted the department of children and families to report the defendant, and the department of children and families contacted the state police in Danielson to report the allegations. When the defendant was interviewed by the police, he denied that he had engaged in any kind of sexual contact with the victim but later stated that if there had been any type of sexual contact between him and the victim, it was accidental. Before signing his written statement, however, the defendant insisted that the line, “[a]nd if I did it,” be crossed out.

Consequently, the defendant was arrested and charged with two counts of sexual assault in the fourth degree, and two corresponding counts of risk of injury, for allegedly touching the victim’s breasts. The defendant was also charged with one count of sexual assault in the first degree, and one corresponding count of risk of injmy, for the alleged incident that occurred in the victim’s bed. The jury found the defendant not guilty of sexual assault in the first degree but found him guilty of the remaining charges. The defendant was sentenced to concurrent terms of incarceration of six years, followed by fourteen years of special parole, for each risk of injury conviction, and concurrent terms of five years for each fourth degree sexual assault conviction. The sentences were all to run concurrently with each other for a total effective sentence of six years to serve and fourteen years special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly precluded him from introducing evidence related to the sexual histoiy of the victim. We agree, in part, with the defendant’s claim.

The following additional facts are relevant to the defendant’s claim. Prior to the commencement of trial, on June 19, 2008, the defendant filed a motion to introduce evidence of the victim’s sexual relationship with her boyfriend, as well as a motion for a hearing on the admissibility of such evidence pursuant to the rape shield, statute, General Statutes § 54-86f. On July 3, 2008, the defendant filed an amended motion for an evidentiary hearing as to the admissibility of evidence of the victim’s sexual history, which superseded his earlier motion. Prior to the start of evidence, on July 14, 2008, the court heard arguments on the defendant’s motions. According to the defendant’s representations to the court, he intended to introduce evidence to establish that when the victim initially discussed the sexual assault with the Planned Parenthood counselors, she denied that she had been sexually active with anyone else. Subsequently, however, she told the counselors that she and her boyfriend had been engaging in sexual relations from November, 2005, until May, 2006, approximately two times per month, and that her parents did not know that she was sexually active.

Although the defendant’s motions invoked all four exceptions of. the rape shield statute, when defense counsel argued the motions before the court, he limited the defendant’s claim of admissibility to subdivisions (2) and (4) of the statute. The defendant’s argument was twofold. First, the defendant contended that the evidence regarding the victim’s allegedly deceptive comments to Planned Parenthood counselors about her sexual activity with her boyfriend was relevant to her general credibility. Second, the defendant asserted that evidence of the victim’s sexual relationship with her boyfriend was relevant to his theory of defense that the victim feared that her urinary tract infection was the result of sexual activity and that she falsely accused the defendant so that her sexual relationship with her boyfriend would not be discovered. The court denied the defendant’s motions as premature because the victim had not yet testified.

After the victim testified on direct examination, the defendant renewed his request to question the victim about her sexual relationship with her boyfriend. The defendant argued that the case was dependent on the victim’s credibility and that the fact that she had concealed her sexual relationship with her boyfriend bore directly on her credibility. The defendant sought to cross-examine her regarding her sexual conduct with her boyfriend, including her inconsistent statements to others about that conduct, insofar as it related to her general credibility. The defendant argued that the victim’s desire to conceal her sexual relationship with her boyfriend provided her motive for alleging that the defendant sexually assaulted her in that she was trying to keep secret her sexual conduct with her boyfriend. The court denied the defendant’s request, stating that inquiry into specific instances of conduct is not the proper method to attack a witness’ character under § 4-4 of the Connecticut Code of Evidence. The court found that the victim had not “opened up the door” to the evidence under § 54-86f (2) and denied the defendant’s motion again without prejudice.

Audrey Courtney, a nurse who specializes in the examination of sexual assault victims and who examined the victim in this case, also testified for the state. During the cross-examination of Courtney, defense counsel asked: “And are you aware that [the victim] gave a contradictory history to another agency regarding certain aspects of your examination?” Courtney responded: “No, I’m not.” The state objected to the question, and the defendant contended that the question had been asked and answered, and the court agreed. The court ruled, however, that the defendant could not attack the victim’s credibility in this manner and held that the defendant could not further pursue this line of inquiry.

After the state rested its case, the defendant again renewed his motion to introduce evidence of the victim’s sexual history and the “deceptive comments” that she had made to two Planned Parenthood counselors regarding her sexual relationship with her boyfriend. The court again denied the defendant’s request, concluding that the proffered testimony constituted improper extrinsic evidence of specific conduct of the victim for the purpose of impeaching her credibility.

On August 13, 2008, following the acceptance of the jury’s verdict, the defendant filed a motion to set aside the verdict and a motion for a new trial, in which he again argued that the evidence of the victim’s sexual relationship with her boyfriend was admissible under § 54-86f (4) and contended that he had been denied his constitutional right to confrontation. The court denied the defendant’s motions.

On appeal, the defendant argues that the court improperly precluded evidence that the victim had a sexual relationship with her boyfriend. The defendant argues that this evidence was admissible under § 54-86f (4) and that its preclusion violated his constitutional rights to confront his accuser and to present a defense.

“Upon review of a trial court’s decision, we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . The trial court has wide discretion in determining the relevancy of evidence and the scope of cross-examination and [e]very reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Rolon, 257 Conn. 156, 173, 777 A.2d 604 (2001).

“The rape shield statute excludes evidence of prior sexual conduct of the victim of a sexual assault, unless one of the statutory exceptions is satisfied. . . . The statute was enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. . . . Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. . . .

“Although the state’s interests in limiting the admissibility of this type of evidence are substantial, they cannot by themselves outweigh the defendant’s competing constitutional interests. . . . The determination of whether the state’s interests in excluding evidence must yield to those interests of the defendant is determined by the facts and circumstances of the particular case.

“[T]he right to confront and cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. . . . Such an interest includes the trial court’s right, indeed, duty, to exclude irrelevant evidence.” (Citations omitted; internal quotation marks omitted.) State v. Christiano, 228 Conn. 456, 469-70, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994).

Section 54-86f provides in relevant part: “In any prosecution for sexual assault under sections 53a-70,. 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.

“Section 54-86f provides for a two step process before evidence proffered by a defendant as falling under one of the statute’s exceptions may be admitted. First, if the defendant has satisfied his preliminary burden in his offer of proof to show that the evidence is potentially relevant, pursuant to the statute the trial court must conduct a hearing to determine the admissibility of the evidence. Second, [i]f, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. ...

“In the first step of this two part process, the defendant bears the burden of showing that the proffered evidence overcomes the presumption, inherent in § 54-86f, that evidence of the sexual conduct of a rape victim is inadmissible and satisfies the statute’s requirement that only evidence relevant to the case, rather than evidence relevant merely to demonstrate the unchaste character of the victim, be admissible. . . .

“If the trial court determines that the evidence is relevant and admissible under one of the exceptions enumerated in § 54-86f, the trial court must proceed to the second part of the two part process outlined in the statute. That is, the evidence is admissible only if its probative value outweighs the prejudicial impact on the victim. . . .

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. ... In considering whether evidence was sufficiently relevant to fall under one of the exceptions enumerated in § 54-86f, we have drawn a distinction between, on the one hand, evidence that is relevant to establish some portion of the theory of defense or rebut some portion of the state’s case, which is admissible if the court determines that the probative value of the evidence outweighs its prejudicial impact on the victim, and, on the other hand, evidence that is offered as an impermissible attempt to establish the victim’s general unchaste character as prohibited by the rape shield statute.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 280 Conn. 285, 295-97, 907 A.2d 73 (2006).

Here, the state concedes that the defendant satisfied the burden of showing that the victim may have had a motive to lie about the defendant’s sexual assault in order to conceal her sexual relationship with her boyfriend from her parents. We agree. Because the proffered evidence would have been relevant to the defendant’s theory that the victim lied about the sexual assault by the defendant in order to cover up the possibility that her boyfriend was the source of any infection that a medical examination might reveal, it should have been allowed into evidence as to the charge of sexual assault in the first degree. The defendant’s claim is moot as it pertains to the charge of sexual assault in the first degree as he was acquitted of that charge. Because the risk of injury charge set forth in count six of the information stemmed from that sexual assault charge, however, that conviction should be reversed and the case remanded for a new trial on the risk of injury charge set forth in count six of the information.

The proffered evidence of the victim’s sexual history does not, however, bear on the allegations that the defendant touched the victim’s breasts. Whatever motive to he the victim may have had in May, 2006, regarding a possible infection stemming from her sexual relationship with her boyfriend, did not exist in November, 2005, when she first reported to her parents that the defendant had touched her breasts. Additionally, the victim would not have suffered from symptoms of a urinary tract infection as a result of the defendant’s contact with her breasts. Thus, the defendant has not persuaded us that the evidence of the victim’s sexual relationship with her boyfriend was relevant to understanding the victim’s motive, bias or interest on the remaining counts. Accordingly, we conclude that the court properly precluded this evidence on the ground of relevance.

The defendant also argues that the court’s ruling violated his right to confrontation. This aspect of the claim requires little discussion. “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. . . . The constitutional standard [for cross-examination] is met when defense counsel is permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Citations omitted; internal quotation marks omitted.) State v. Cassidy, 3 Conn. App. 374, 381, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). “It is axiomatic that [a criminal] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination.” (Citation omitted; internal quotation marks omitted.) State v. Glenn, 97 Conn. App. 719, 726, 906 A.2d 705 (2006), cert. denied, 281 Conn. 913, 916 A.2d 55 (2007). Because we already have determined that the evidence at issue properly was precluded on the ground of relevance, the defendant cannot demonstrate that the court’s proper application of a fundamental rule of evidence infringed on his right to confront his accuser.

The defendant also alleges a violation of his right to present a defense, arguing that the court improperly precluded material and relevant evidence. “As to the defendant’s right to present a defense, [t]he sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . [T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 102 Conn. App. 819, 826-27, 927 A.2d 358, cert. denied, 284 Conn. 911, 931 A.2d 932 (2007). The defendant has not distinguished this claim from his confrontation clause claim, and our conclusion that the court properly precluded the evidence on the ground of relevance leads us to conclude further that the preclusion of the evidence did not violate his constitutional right to present evidence in his defense.

II

The defendant next claims that the court improperly excluded evidence of the victim’s bias, interest or prejudice. Specifically, the defendant contends that the court improperly precluded him from offering the testimony of two Planned Parenthood employees to whom the victim had given inconsistent or false statements that should have been admissible under § 6-5 of the Connecticut Code of Evidence. We disagree.

In Ms case-in-cMef, the defendant sought to mtroduce the testimony of two Planned Parenthood employees who had met with the victim regarding allegedly deceptive comments made by the victim. The defendant contended that he was seeking to impeach the victim’s credibility and argued that admitting the evidence under § 6-5 would not implicate the rape shield statute because they would not be offering evidence of the victim’s sexual conduct, but only that the victim made deceptive comments to the witnesses. The court denied the defendant’s request to present this evidence on the basis that it is not proper to introduce extrinsic evidence of the conduct of a witness for the purpose of impeachmg that witness’ credibility.

“A witness may not be impeached by contradicting his or her testimony as to collateral matters, that is, matters that are not directly relevant and material to the merits of the case. . . . Thus, the answer of the witness on cross-examination [as] to a collateral matter is conclusive and cannot be later contradicted.” (Citations omitted; internal quotation marks omitted.) State v. Colton, 227 Conn. 231, 247-48, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996); see also Conn. Code Evid. § 6-6 (b), commentary (“the examiner must introduce the witness’ untruthful conduct solely through examination of the witness himself or herself’). Thus, “[i]t has long been the rule in Connecticut that extrinsic evidence may not be used to contradict the testimony of a witness with regard to a particular act of misconduct. . . . [I]f the witness stands Ms ground and denies the alleged misconduct, the examiner must take Ms answer not that he may not further cross-examine to extract an admission, but m the sense that he may not call other witnesses to provide the discrediting acts. . . .

“Extrinsic evidence may be admitted, however, if the subject matter of the testimony is not collateral, that is, if it is relevant to a material issue in the case apart from its tendency to contradict the witness. . . . Evidence tending to show the motive, bias or interest of an important witness is never collateral or irrelevant. It may be . . . the very key to an intelligent appraisal of the testimony of the [witness]. . . . The determination of whether a matter is relevant or collateral . . . generally rests within the sound discretion of the trial court.” (Citation omitted; internal quotation marks omitted.) States. West, 274 Conn. 605, 640-41, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).

Here, evidence that the victim made unexplained “deceptive comments” to Planned Parenthood counselors, without more, would not have informed the jury as to the victim’s bias, prejudice, interest or motivation to he. Although the defendant contends on appeal that his proffer in this regard went to the victim’s motive to lie about her sexual relationship with her boyfriend, the defendant indicated to the trial court that the “sole purpose would be to have [the witnesses] testify as to the fact that deceptive statements were made to them.” The court properly concluded that the defendant was seeking to present extrinsic evidence of a specific instance of conduct of the victim for the purpose of impeaching the victim’s credibility. Thus, in refusing to admit this evidence, the court did not abuse its discretion.

Ill

The defendant finally claims that the court improperly instructed the jury that to find him guilty of risk of injury to a child in violation of § 53-21 (a) (2), the jury had to find that his conduct was “likely to impair the child’s health or morals” and that the term “likely” was to be understood as meaning that in all “probability or possibility,” his conduct had impaired the victim’s health or morals. Conceding that his claim was not preserved at trial, the defendant asserts that it is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Smith, 70 Conn. App. 393, 397, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).

In instructing the jury on the risk of injury offenses, the court stated, in relevant part: “[T]he state does not have to prove that the defendant actually did impair the health or morals of the child. Rather, the state must show that the defendant’s behavior was likely to impair the child’s health or morals. And likely means in all probability or possibility. Thus, the state must show that it was possible or probable that the sexual and indecent behavior of the defendant would injure or weaken the child’s health or morals.”

On the basis of our Supreme Court’s decision in State v. Romero, 269 Conn. 481, 849 A.2d 760 (2004), the state concedes, and we agree, that the instruction was improper. In Romero, the trial court provided an instruction to the jury on the “likely to impair” requirement of § 53-21 that was identical to that at issue in the present case. Id., 488. On appeal, the Supreme Court concluded that “the term ‘likely,’ as used in § 53-21 (a), cannot be understood fairly to encompass a meaning of either ‘possible’ or ‘in all possibility’ and, therefore, the trial court’s instructions to the contrary were improper.” Id., 491. Because the instruction in the present case mirrors the instruction at issue in Romero, we conclude that the court’s instruction in that regard was incorrect.

That determination, however, does not end our inquiry. Having concluded that the court improperly instructed the jury, we now turn to a consideration, under the third prong of Golding, of whether there exists a reasonable possibility that the jury was misled by these improprieties. See id., 492.

Here, as in Romero, the court’s improper definition of the term “likely” as “possible” was accompanied by the proper definition of the term as “probable.” As our Supreme Court concluded in Romero, such “accurate instructions nunimized the potential harm flowing from the trial court’s improper instructions on the meaning of the term ‘likely.’ ” Id., 494. Additionally, the court in the present case provided a thorough instruction on the concept of reasonable doubt and the state’s burden to prove each element of the charged offense beyond a reasonable doubt.

In Romero, the court also considered that the jury, by reason of its verdict, necessarily found the defendant to have engaged in sexual intercourse and sexual contact with the minor victim. The Romero court stated that “[o]nce the jury determined that . . . intercourse and mutual sexual touching took place, as described by [the victim], it is difficult to imagine a finding that this conduct could not be deemed likely—in the context of probably—to impair [the victim’s] morals.” (Emphasis in original.) Id., 493. Guided by the Romero precedent, this court reached a similar result in State v. Arcia, 111 Conn. App. 374, 389, 958 A.2d 1253 (2008) (“because the jury found the defendant guilty of having sexual intercourse with someone younger than age sixteen, it is difficult to imagine a finding that this conduct could not be deemed likely ... to impair [the victim’s] morals” [internal quotation marks omitted]), cert. denied, 290 Conn. 907, 964 A.2d 543 (2009); State v. Michael A., 99 Conn. App. 251, 266, 913 A.2d 1081 (2007) (“defendant’s indecent sexual conduct in relation to the victim, conduct the jury found to have occurred, must be conduct that is ‘likely to impair’ the health or morals of a child”); and State v. Ritrovato, 85 Conn. App. 575, 605, 858 A.2d 296 (2004) (“because the jury . . . found the defendant guilty of having sexually assaulted the victim, we find no basis for any argument that the jury could have been uncertain that such an assault did, in fact, impair the child, as alleged in the risk of injury charge”), rev’d in part on other grounds, 280 Conn. 36, 905 A.2d 1079 (2006).

In Romero, Arda, Michael A. and Ritrovato, where there was a jury finding of sexual intercourse, the court, on review, was able to conclude, based on the underlying conduct found by the jury, that the jury was not likely to have been misled by the improper instruction on risk of injury. Here, the jury found the defendant guilty of the two charges of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2005) § 53a-73a (a) (1) (A). Thus, by reason of the definition of sexual assault in the fourth degree, the jury had to have found that the defendant intentionally subjected the victim, who was thirteen years old at the time of the incidents at issue, to sexual contact. Additionally, in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), in which our Supreme Court was confronted with a claim that the risk of injury statute was unconstitutionally vague, the court observed that “[t]his court’s opinions pursuant to § 53-21 make it clear that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of that statute.” Id., 64. Based on Pickering, we can say, as well, as to sexual contact, that, it would be “difficult to imagine a finding that this conduct could not be deemed likely—in the context of probably—to impair [the victim’s] morals.” State v. Romero, supra, 269 Conn. 493. Accordingly, we conclude that the jury could not reasonably have been misled by the court’s improper instruction in reaching the conclusion that the defendant’s sexual contact with the minor victim was likely to impair her morals. Thus, the defendant’s final claim must fail.

The judgment is reversed only as to the conviction of risk of injury to a child as alleged in the sixth count of the information and the case is remanded for a new trial on that charge only. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

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

       General Statutes § 54-86f provides in relevant part: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. . . .”

       Although the defendant argued to the court that the evidence was admissible also pursuant to subdivision (2) of the rape shield statute, the defendant has not briefed that claim on appeal.

       For the first time, on appeal, the defendant argues that the evidence was relevant to the victim’s motive to falsely accuse the defendant in order to have him removed from the house so that she could be alone with her boyfriend, and that the evidence was admissible under § 54-86f (1) as to the issue of whether the defendant was the source .of the victim’s urinary tract infection. We first note that there was no evidence before the jury that the victim actually had a urinary tract infection, nor did the victim ever allege that the defendant was the cause of such an infection. Additionally, the defendant did not raise these grounds of relevance before the trial court. Ordinarily, we will not consider a theory of relevance that was not raised before the trial court. See State v. Pratt, 235 Conn. 595, 602, 669 A.2d 562 (1995). The defendant, however, does not bring a purely evidentiary claim, but claims that the exclusion of the evidence deprived him of his right to confrontation and his right to present a defense. The defendant asserts that this claim is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). As stated previously in this opinion, however, the preclusion of irrelevant evidence does not infringe on a defendant’s right to confrontation or his right to present a defense. Because no constitutional violation exists, the defendant’s claim fails under the third prong of Golding.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.


author: SCHALLER, J.

text:
    DREAMBUILDERS CONSTRUCTION, INC. v. EMALIE DIAMOND
    (AC 30796)
    Bishop, Beach and Schaller, Js.

      Argued February 2
    officially released June 8, 2010

      Noah J. Schafler, for the appellant (defendant).

      Michael S. Bonnano, with whom, on the brief, was Paul M. Geraghty, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Emalie Diamond, appeals from the judgment of strict foreclosure rendered in favor of the plaintiff, Dreambuilders Construction, Inc. On appeal, the defendant claims that the trial court’s (1) order of a strict foreclosure instead of a foreclosure by sale was improper, (2) finding that there was a contract between her and the plaintiff was clearly erroneous, (3) finding of the value of the services and material furnished to support the mechanic’s lien was clearly erroneous, (4) finding that she could not avail herself of the protection of the Home Improvement Act (act); General Statutes § 20-418 et seq.; because she invoked it in bad faith was clearly erroneous and (5) finding that a general release she executed in favor of the plaintiff, which included a release of her counterclaim, also was a release of her defenses was improper. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history that are relevant to our resolution of the defendant’s appeal. The defendant owns the property located at 96 Coventry Way in Guilford. The house on the property suffered extensive water damage after apipe broke during the winter of 2004 and into 2005. According to the water company’s meter reading, approximately 183,000 gallons of water had spilled into the house over the course of the winter. The defendant hired the plaintiff to remediate the damage and to remodel the entire house. The plaintiff drafted a contract for the necessary work totaling $110,000. The plaintiff never received a signed copy of the contract from the defendant but was constantly reassured by her that she had signed the contract and would deliver it at their next meeting. At each meeting, the defendant failed to provide the plaintiff with the signed contract, despite numerous reminders from the plaintiff. Regardless, the defendant continued to pay the plaintiff pursuant to the payment schedule and expressed, on numerous occasions, her satisfaction with the plaintiffs work. During the course of the work, the parties agreed to an adjustment of the contract price to $111,000. The defendant paid the plaintiff $75,000 and refused to pay any further sums under the contract, even though the plaintiff had completed all the necessary work.

On August 2, 2006, the plaintiff commenced an action to foreclose its mechanic’s lien in the amount of $36,000, as a result of the unpaid moneys due for the work and services performed on the property. On September 9, 2008, trial was held, and the defendant personally did not appear but was represented by counsel. On February 3, 2009, the court issued its memorandum of decision. The court found that the plaintiff was owed $36,000 for labor and materials and rendered judgment of strict foreclosure. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court’s order of a strict foreclosure instead of a foreclosure by sale was improper. The defendant argues that the court abused its discretion in ordering a strict foreclosure because the value of the property substantially exceeds the value of the lien being foreclosed. We are not persuaded.

In order to resolve the defendant’s claim, we begin by setting forth the relevant legal principles and the standard of review. “A foreclosure action is an equitable proceeding. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Savings Bank of Danbury v. Karam, 119 Conn. App. 847, 850, 989 A.2d 664 (2010).

Any mechanic’s hen may be foreclosed in the same manner as a mortgage. See General Statutes § 49-33 (i). “In all essential respects the attributes of foreclosure of mortgages apply to mechanics’ hens. ... In Connecticut, a mechanic’s hen is a creature of statute and estabhshes a right of action where none existed at common law.” (Citation omitted; internal quotation marks omitted.) Anthony Julian Railroad Construction Co. v. Mary Ellen Drive Associates, 50 Conn. App. 289, 296, 717 A.2d 294 (1998).

The defendant failed to file a motion requesting a foreclosure by sale rather than a strict foreclosure. General Statutes § 49-24 provides: “Ah hens and mortgages affecting real property may, on the written motion of any party to any suit relating thereto, be foreclosed by a decree of sale instead of a strict foreclosure at the discretion of the court before which the foreclosure proceedings are pending.” See also New Haven v. God’s Corner Church, Inc., 108 Conn. App. 134, 139, 948 A.2d 1035 (2008) (“At common law, the term foreclosure meant strict foreclosure. . . . [Section] 49-24 appends to that definition the remedy of foreclosure by sale without altering the existing common law definition.” [Internal quotation marks omitted.]). In the absence of a motion requesting a foreclosure by sale, the court did not abuse its discretion in ordering a strict foreclosure. See Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 323, 898 A.2d 197 (“[i]n Connecticut, strict foreclosure is the rule, foreclosure by sale the exception” [internal quotation marks omitted]), cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006).

II

The defendant’s second claim is that the court’s finding that a contract existed between the plaintiff and the defendant was clearly erroneous. Specifically, the defendant argues that no contract existed because the terms of the contract were not definite and certain. We disagree.

We begin by setting forth our standard of review. “Under well established contract law, a contract must be definite and certain as to its terms and requirements. ... In addition, there must be a manifestation of mutual assent to those terms and requirements. . . . The defendant’s challenges to the agreement’s certainty and definiteness and the parties’ mutual assent therefore raise questions of whether a valid contract ever existed. It is well settled that the existence of a contract is a question of fact, which we review for clear error. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . . Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) Bender v. Bender, 292 Conn. 696, 728-29, 975 A.2d 636 (2009).

The defendant argues that the terms of the contract were not definite and certain because no documents were ever signed, nor was a price agreed upon. The plaintiffs president, Randall J. Bouchey, testified in detail as to the terms of the agreement and introduced an unsigned copy of the contract, which included a description of the work to be completed, the cost of the work and a payment schedule. Even though the plaintiff did not receive a signed copy of the contract from the defendant, the plaintiff received assurances from the defendant that she had signed the contract. Furthermore, the defendant paid the plaintiff pursuant to the payment schedule and praised the defendant, on numerous occasions, during the completion of the work. On the basis of this evidence, the court’s finding that a contract existed was not clearly erroneous.

m

The defendant next claims that the court’s finding as to the value of the services and material furnished to support the mechanic’s hen was clearly erroneous. Specifically, the defendant argues that the amount of the mechanic’s hen was based on the contract price and not the value of the services and material furnished by the plaintiff. We disagree.

“In this state, a mechanic’s hen is a creature of statute and gives a right of action which did not exist at common law. . . . The purpose of the mechanic’s hen is to give one who furnishes materials or services the security of the building and land for the payment of his claim by making such claim a lien thereon. . . . Moreover, [t]he guidelines for interpreting mechanic’s lien legislation are . . . well established. Although the mechanic’s lien statute creates a statutory right in derogation of the common law ... its provisions should be liberally construed in order to implement its remedial purpose of furnishing security for one who provides services or materials. . . . Our interpretation, however, may not depart from reasonable compliance with the specific terms of the statute under the guise of a liberal construction. . . .

“[General Statutes § 49-33 (a)] provides: If any person has a claim for more than ten dollars for materials furnished or services rendered in the construction, raising, removal or repairs of any building or any of its appurtenances or in the improvement of any lot or in the site development or subdivision of any plot of land, and the claim is by virtue of an agreement with or by consent of the owner of the land upon which the building is being erected or has been erected or has been moved, or by consent of the owner of the lot being improved or by consent of the owner of the plot of land being improved or subdivided, or of some person having authority from or rightfully acting for the owner in procuring the labor or materials, the building, with the land on which it stands or the lot or in the event that the materials were furnished or services were rendered in the site development or subdivision of any plot of land, then the plot of land, is subject to the payment of the claim. . . . The statute is designed to furnish security for a contractor’s labor and materials and, as this court has noted previously, is remedial in nature. . . . Prior precedent from this court concluded that the statute was not intended to provide a security interest for a builder’s expectation of profit or other contract measure of damages.” (Citations omitted; internal quotation marks omitted.) Intercity Development, LLC v. Andrade, 286 Conn. 177, 183-85, 942 A.2d 1028 (2008).

The court clearly found that the amount of the mechanic’s lien was for the value of the services rendered and material furnished and was not based on the builder’s expectation of profit or other contractual measure of damages. The court’s factual finding regarding the value of the services and material furnished with respect to the mechanic’s hen was supported by the evidence introduced at trial. Specifically, Bouchey testified about the value of the labor and materials provided, that profit was not claimed in the mechanic’s hen and that the contract was underbid. On the basis of the evidence in the record, the court’s finding as to the value of the services rendered and the materials furnished was not clearly erroneous.

IV

The defendant next claims that the court’s finding that she could not avail herself of the protection of the act because she invoked it in bad faith was clearly erroneous. Specifically, the defendant argues that the plaintiff introduced no evidence of any kind to support a finding of bad faith in this case, and, in the alternative, if bad faith properly was found, it occurred after the formation of the contract. We conclude that the record is inadequate to review this claim.

“It is well established that the appellant bears the burden of providing an appellate court with an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision .... Without an adequate record, [w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by the trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us . . . would be entirely speculative.” (Internal quotation marks omitted.) DuBaldo Electric, LLC v. Montagno Construction, Inc., 119 Conn. App. 423, 433-34, 988 A.2d 351 (2010).

The court’s February 3, 2009 memorandum of decision concerning the act simply states: “The defendant also claims that the contract violated the [act] because it failed to disclose certain terms. The invocation of the [act as a] defense by the defendant was made in bad faith and falls within the bad faith exception to the [act], which provides: ‘The central element giving rise to this exception [to the act] is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act.’ Habetz v. Condon, 224 Conn. 231, 237, 618 A.2d 501 (1992).” Although the court found bad faith on the part of the defendant, its memorandum of decision does not reveal the factual basis for the finding. Because the defendant failed to seek an articulation related to this issue, we are bound to conclude that the record is inadequate for review.

V

Finally, the defendant clams that the court’s finding that the general release she executed, which resulted from a settlement between her and the plaintiffs insurer and which included a release of her counterclaim, also was a release of her defenses was improper. Specifically, the defendant argues that “to the extent the court may have ruled that the general release was a release of defenses, it did so incorrectly.” (Emphasis added.) The defendant does no more than assert this vague claim, without explaining the factual basis for the claims of error and without providing any legal support. We therefore decline to address this issue. See Statewide Grievance Committee v. Rapoport, 119 Conn. App. 269, 280, 987 A.2d 1075 (2010) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” [Internal quotation marks omitted.]).

The judgment is affirmed and the case is remanded for the purpose of setting a new law day.

In this opinion the other judges concurred.

       Judgment was entered in favor of Dreambuilders Construction, Inc., doing business as Bouchey Enterprises, LLC, the name in which the action was brought.

       Specifically, the description of the work in the contract states the following: “First floor remove all damaged and moldy [S]heetrock and wallpaper and replace and tape, paint and trim to finish. Install new interior doors where needed. Remove and replace all flooring where needed with [t]ile and oak to match existing. Replace [k]itchen [cabinets] with new to match existing. All rooms listed on first floor will be completely finished and returned to their new condition. From top of basement stairs down will be completely gutted. Basement will be completely finished with choice of carpet. This quote is to replace water damage and restore that damage back to its original condition. If upgrades or changes are to be made beyond the original materials or spaces this would increase price which will be worked out with owner at that time.”

       Specifically, the defendant elected to upgrade the kitchen, which reduced the contract price by $7500 because the work was to be completed by an independent contractor, and the defendant requested that the plaintiff paint and fix the rotted trim on the outside of the house, which increased the contract price by $8500.

       Specifically, the court stated: “[T]he defendant claims the Hen is not for material and labor; rather, it seeks to provide for a security interest for the builder’s contract measure of damages. Just because the amount claimed is equal to the contract price less the amount paid does not mean it is for ‘profit.’ The plaintiff testified extensively regarding the value of the services and the material rendered which supports the plaintiffs claim for at least the amount of $111,000. The plaintiff having been paid $75,000 results in a balance due for labor and materials in the amount of $36,000—the amount of the claimed Hen.” (Emphasis in original.)

       We note that the defendant does not challenge the court’s finding that the release applied to her counterclaim. The defendant raised only a single special defense—the alleged failure of the plaintiff to comply with the act— which the court did address in its memorandum of decision. See part IV of this opinion.