author: ALVORD, J. BORDEN, J.,

text:
    STATE OF CONNECTICUT v. TERRELL WILLIAMS POND
    (AC 32468)
    Beach, Alvord and Borden, Js.

      Argued March 20
    officially released September 25, 2012

      Kate MacLeman, certified legal intern, with whom were Timothy H. Everett, special public defender, Sabrina Copp and Andrew Veale, certified legal interns, and, on the brief, Matthew Bristol, Irene Kim and Louisa Lindberg, certified legal interns, for the appellant (defendant).

      Leonard C. Boyle, deputy chief state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Lion, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The crime of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) provides that a person is guilty of that crime when he commits robbery and “in the course of the commission of the crime ... he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.” The inchoate crime of conspiracy in violation of General Statutes § 53a-48 (a) provides that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any of them commits an overt act in pursuance of such conspiracy.” The two related issues in this appeal present the question of whether, in order to convict a defendant of conspiracy to commit robbery in the second degree in violation of §§ 53a-48 (a) and 53a-135 (a) (2), the state must prove that the defendant conspirator had the specific intent that there would be a display or threat of the use of what was represented to be a deadly weapon or dangerous instrument, even if that specific intent is not required for proof of the underlying crime of robbery in the second degree. We conclude that our Supreme Court authority requires the state to prove such specific intent.

On appeal, the defendant, Terrell Williams Pond, claims that (1) there was insufficient evidence of his specific intent that, in the course of the robbery, another participant in the robbery would display or threaten the use of what that participant represented to be a deadly weapon or dangerous instrument and (2) the trial court improperly failed to instruct the jury that the state had to prove that the defendant had such specific intent. We agree with the defendant’s second claim and, accordingly, reverse the judgment of conviction.

The jury reasonably could have found the following facts. On October 27, 2008, Stanislaw Grzadko, the victim, returned home from work at approximately 5:45 p.m. Grzadko’s home is located on Church Street in Hamden. Upon returning home, he ate dinner and then went for his evening walk. At approximately 6:45 p.m., while he was walking on the Dixwell Avenue sidewalk, he was approached from behind by the defendant and Montel Harris, both of whom were riding bicycles on the sidewalk. Harris approached the victim on his left, the defendant approached on his right, each wearing a dark hooded sweatshirt and dark pants. Harris asked the victim where he was going and then demanded that he stop, repeating the order “two [or] three times . . . .” When the victim continued to walk, the defendant pushed his bicycle in front of the victim, forcing him to stop. With the victim now unable to move forward, Harris raised his jacket and lifted the handle of what appeared to be a gun, later determined to be a C02 pistol, from his waistband, asking the victim, “do you know what it is?” When the victim responded, “yes, yes, I know,” and as the defendant continued to block the victim from moving, Harris ordered the victim to remove everything from his pockets. Rather than turn his belongings over to the two young men, the victim turned to the side and ran into traffic on Dixwell Avenue in order to escape. The defendant and Harris rode off on their bicycles. Shortly thereafter, the victim called the Hamden police and reported the incident. Later that evening, the Hamden police detained the defendant and Harris, and the victim later identified them as the two young men who had accosted him.

The defendant was charged with attempt to commit robbery in the second degree in violation of General Statutes §§ 53a-49 and 53a-135 (a) (2), and conspiracy to commit robbery in the second degree in violation of §§ 53a-48 and 53a-135 (a) (2). Following a jury trial, the defendant was convicted of the conspiracy count and acquitted of the attempt count. The court sentenced the defendant to five years incarceration, suspended after fifteen months, and three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that there was insufficient evidence to support the jury’s verdict on the conspiracy charge. Specifically, he claims that the charge of conspiracy to commit robbery in the second degree required the state to prove that (1) he and Harris specifically “had an agreement to display a deadly weapon or dangerous instrument” and (2) he had the specific intent that such a weapon or instrument would be displayed by Harris. The defendant argues further that the evidence was insufficient to prove that he and Harris had such a specific agreement and that he had such a specific intent.

The state responds that, as a legal matter, in order to prove a conspiracy to commit robbery in the second degree under § 53a-135 (a) (2), “the state is not required to offer independent proof that the defendant specifically intended that a dangerous instrument or deadly weapon would be displayed.” The state further contends, however, that as a factual matter, if there is such a requirement, it produced sufficient evidence thereof. While we disagree with the state’s legal contention, we agree that, nevertheless, the state produced sufficient evidence for the jury reasonably to conclude that the defendant specifically intended that a dangerous instrument or deadly weapon would be displayed.

We begin with the pertinent language of the conspiracy statute. Section 53a-48 (a) provides in relevant part that a “person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct . . . .” (Emphasis added.) Although the language of the conspiracy statute does not, by its terms, establish whether the specific intent provided by the statute — the “intent that conduct constituting a crime be performed” — requires proof of a specific intent to perform all of the elements of the crime conspired, including any aggravating elements, our Supreme Court addressed this issue in State v. Padua, 273 Conn. 138, 869 A.2d 192 (2005).

In Padua, the defendants were convicted of conspiracy to sell marijuana within 1500 feet of apublic housing project. Id., 145. The court stated that it was an essential element of the conspiracy charge that the conspirators agreed to sell marijuana specifically within 1500 feet of a public housing project. Id., 166. Our Supreme Court held, in accord with the state’s concession, that the trial court’s instruction, which had omitted this element, was improper but that the impropriety was harmless beyond a reasonable doubt. Id. In doing so, the court stated that “[p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Internal quotation marks omitted.) Id., 167. This means that the specific intent required by the conspiracy statute requires specific intent to bring about all of the elements of the conspired offense, even those that do not by themselves carry a specific intent with them. We must reach this conclusion because, when Padua was decided, it was already settled law that in a prosecution for sale of drugs within 1000 feet of a school, the state was not required to prove that the defendant knew that his sale was within 1000 feet of a school. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (“[T]he plain language of [General Statutes] § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school. The state is not, however, required to prove that the defendant knew that this location was within the zone.”).

In the present case, we are bound by the holding in Padua to conclude that, in order to prove the defendant guilty of conspiracy to commit robbery in the second degree in violation of § 53a-135 (a) (2), the state needed to prove that he and his coconspirator specifically had an agreement to display a deadly weapon or dangerous instrument and that the defendant had the specific intent that such a weapon or instrument would be displayed. We agree with the state that there was sufficient evidence of both an agreement and the defendant’s specific intent that such a weapon or instrument would be displayed.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 147, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133, 172 L. Ed. 2d 101, after remand, 110 Conn. App. 171, 954 A.2d 256 (2008), appeal dismissed, 295 Conn. 192, 989 A.2d 1072 (2010). “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. Ledbetter, 275 Conn. 534, 543, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

The law in this regard is well established. There need not be evidence of a formal agreement; it is sufficient to show that the alleged conspirators were knowingly engaged in a mutual plan to do a forbidden act. State v. Millan, 290 Conn. 816, 825-26, 966 A.2d 699 (2009). The requisite agreement may be inferred from the separate acts of the individuals accused as coconspirators, the circumstances surrounding their commission and from the activities of the accused. Id., 826. Furthermore, a “coconspirator’s conduct at the scene can provide the requisite evidence of an agreement.” Id., 828.

In the present case, as the state points out, the jury reasonably could have found that the defendant and Harris intended to rob the victim by the display of what was represented to be a deadly weapon or dangerous instrument. As they approached the victim, neither struck nor touched him; thus, it was inferable that this was not intended to be simply “a strong-arm robbery.” When the victim ignored Harris’ demand to stop, neither the defendant nor Harris restrained him. Instead, it was only after the defendant had positioned himself to block the victim’s path and both the defendant and Harris were less than an arm’s length away from him that Harris displayed the pistol in his waistband and demanded the victim’s money. Therefore, there was ample evidence that they intended to stop the victim and display the gun in such a way that would threaten the victim into giving up his money without, at the same time, attracting the attention of anyone else who might be in the area. Furthermore, “[t]he fact that the defendant stood by silently when a gun was displayed in order to [force the victim to give up his property] . . . is evidence from which the jury might reasonably have inferred the defendant’s acquiescence in [an] enlarged criminal enterprise.” State v. Crosswell, 223 Conn. 243, 256, 612 A.2d 1174 (1992). Accordingly, we conclude that there is a reasonable view of the evidence that supports the jury’s verdict of guilty.

II

The defendant’s second claim is that the trial court improperly “failed to instruct the jury that the agreement element of the conspiracy charge required that the state prove . . . the defendant had an agreement with . . . Harris to commit a robbery in which one of them would display” what was represented to be a deadly weapon or dangerous instrument. In this regard, the defendant seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because, although he did not raise this claim at trial, the omitted part of the instruction involves an essential element of the crime, and, therefore, its omission from the jury instruction is a constitutional violation. We agree.

The following additional facts are necessary for the resolution of this claim. At the close of evidence, the court offered both parties the opportunity to submit proposed jury instructions. The defendant’s proposed instruction set forth the applicable language from §§ 53a-48 and 53a-135 (a) (2). The proposed instructions asked the court to instruct the jury that “the [s]tate must prove the following elements beyond a reasonable doubt: (1) that the [d] efendant and Montel Harris agreed to commit a robbery, (2) that the [d] efendant committed a robbery; and (3) that in the course of the commission of the robbery or of immediate flight [therefrom] the [d] efendant or another participant in the crime displayed or threatened the use of what he represented by his words or conduct to be a deadly weapon or a dangerous instrument.” The court received the defendant’s proposed instructions, and they were discussed in a charging conference that was held off the record. The state did not submit a formal request to charge.

The trial court’s instructions were to the effect that the specific intent required for the conspiracy charge was that as for a charge of larceny. After reading the conspiracy statute to the jury, giving general instructions on what was and was not required to prove an agreement and instructing on the necessity of an overt act, the court stated: “The third element is that the defendant had the intent to commit robbery in the second degree. The intent for that crime is that at the time of the agreement he intended to commit larceny. The defendant may not be found guilty unless the state has proved beyond a reasonable doubt that he specifically intended to commit a larceny when he entered into the agreement. In summary, the state must prove beyond a reasonable doubt that the defendant had an agreement with one or more other persons to commit robbery in the second degree, at least one of the coconspirators did an overt act in furtherance of the conspiracy, and the defendant specifically intended to deprive the owner of his property.”

We first consider the state’s argument that the defendant induced the instructional error of which he now complains. Specifically, the state points out that the defendant submitted a request to charge that had no specific intent requirement in it. Thus, the state contends that, because the trial court instructed on the specific intent requirement as it did — namely, the specific intent to commit a larceny — the defendant “received a jury instruction that imposed a higher burden on the state than the defendant himself proposed . . . .” We reject this contention and see no justification for the application of the induced error doctrine where the defendant has simply requested one erroneous instruction and received another. See State v. Kitchens, 299 Conn. 447, 469, 10 A.3d 942 (2011) (“[t]his court has found induced error undeserving of appellate review in the context of a jury instruction claim when the defense has affirmatively requested the challenged jury instruction ... or has encouraged or prompted the court to refrain from giving an instruction that arguably should have been given” [citations omitted]).

In light of our discussion in part I of this opinion, it is clear to us that the court’s instruction on the specific intent required for the charge of conspiracy to commit robbery in the second degree in violation of § 53a-135 (a) (2) was constitutionally defective and was likely to have misled the jury in arriving at its verdict. The court did not tell the jury that the state was required to prove that the defendant specifically intended that, in the course of the robbery, what was represented to be a deadly weapon or dangerous instrument would be used or displayed. Contrary to the state’s argument, there is nothing in the rest of the language of the jury instructions that would render this omission in the instruction harmless.

The judgment is reversed and the case is remanded for a new trial.

In this opinion BEACH, J., concurred.

BORDEN, J.,

concurring. I agree with and join the well reasoned opinion of the majority. I write separately, however, to point out what I regard as an anomaly in our Supreme Court’s interpretation of the conspiracy section of the Penal Code that our Supreme Court may wish to revisit.

I agree that we are constrained by the decision of onr Supreme Court in State v. Padua, 273 Conn. 138, 869 A.2d 192 (2005), to conclude that the specific intent required by the conspiracy statute requires specific intent to bring about all of the elements of the conspired offense, even those elements that do not by themselves carry a specific intent with them. For me, however, that should not end the discussion. I am also constrained to discuss what may well be regarded as an anomaly in our Supreme Court’s intexpretation of the conspiracy section of the Penal Code. I begin with the case law that has produced that anomaly.

The competing legal contentions of the defendant, Terrell Williams Pond, and the state raise a fundamental question about the scienter requirement under General Statutes § 53a-48 (a), the conspiracy statute, as applied to General Statutes § 53a-135 (a) (2), robbery in the second degree by the display or threat of use of what is represented to be a deadly weapon or dangerous instrument. That question is: must the state prove that the conspirators specifically agreed that such a weapon or instrument would be displayed or threatened to be used, as the defendant contends; or, as the state contends, is it sufficient for the state to prove that the conspirators agreed to commit a robbery and that, irre-. spective of any specific scienter requirement on the part of any one conspirator, one of the participants did display or threaten the use of such a weapon or instrument?

The pertinent language of the conspiracy statute, § 53a-48 (a), provides in relevant part that a “person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct . . . .” (Emphasis added.) The language of the conspiracy statute does not, by its terms, answer the question posed by this case, namely, whether the specific intent provided by the statute— the “intent that conduct constituting a crime be performed” — requires proof of a specific intent to perform all of the elements of the crime conspired, including any aggravating elements.

The Supreme Court first addressed this question in State v. Beccia, 199 Conn. 1, 505 A.2d 683 (1986). In that case, in which the defendant had been convicted of conspiracy to commit arson in the third degree, the court stated: “Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy. ... To sustain a conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators intended to agree but also that they intended to commit the elements of the offense.” (Emphasis in original; internal quotation marks omitted.) Id., 3-4. “[P]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Emphasis in original; internal quotation marks omitted.) Id., 5. The court therefore vacated the conviction because one of the elements of the crime was the reckless damage to or destruction of a building and, the court concluded, “conspirators cannot agree to accomplish a result recklessly when that result is an essential element of the crime . . . .’’Id. Thus, Beccia stands for the proposition that a conspiracy charge requires proof of intent to commit all of the elements of the conspired offense. Beccia does not answer the question posed by the present case, however, because, unlike the present case, in which the questioned element — namely, the display of what is represented to be a deadly weapon — does not carry any specific mens rea with it, in Beccia the questioned element — recklessly causing damage to property — does carry a specific mens rea with it, namely, recklessness. See General Statutes § 53a-5.

In State v. Crosswell, 223 Conn. 243, 256, 612 A.2d 1174 (1992), the court posed the question in the following terms: “If two or more persons conspire to take particular property from someone who has a superior right of possession, and agree to do so peacefully, do subsequent changes in the modus operandi to accomplish the taking operate to discharge a willing participant from culpability?” The court did not need to answer that question, however, because there was sufficient evidence “from which the jury might reasonably have inferred the defendant’s acquiescence in this enlarged criminal enterprise.” Id.

The question has been answered, however, at least implicitly, by our Supreme Court in State v. Padua, supra, 273 Conn. 138. In that case, the defendants wére convicted of conspiracy to sell marijuana within 1500 feet of a public housing project. Id., 145. The court stated that it was an essential element of the conspiracy charge that the conspirators agreed to sell marijuana specifically within 1500 feet of a public housing project. Id., 166. The Supreme Court held, in accord with the state’s concession, that the trial court’s instruction, which had omitted this element, was improper but that the impropriety was harmless beyond a reasonable doubt. Id. In doing so, the court again reaffirmed the notion that “[p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Internal quotation marks omitted.) Id., 167. This must be read to establish the notion that the specific intent required by the conspiracy statute requires specific intent to bring about all of the elements of the conspired offense, even those that do not by themselves carry a specific intent with them, because it was already settled law that in a prosecution for sale of drugs within 1000 feet of a school, the state need not prove that the defendant knew that his sale was within 1000 feet of a school. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (“[T]he plain language of [General Statutes] § 21a-278a [b] requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school. The state is not, however, required to prove that the defendant knew that this location was within the zone.”).

This court’s case law, however, is somewhat in conflict on this issue. In State v. Leggett, 94 Conn. App. 392, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006), the defendant was convicted of the same offense as that involved in the present case, namely, conspiracy to commit robbery in the second degree in violation of § 53a-135 (a) (2). In rejecting the defendant’s argument that “the state must prove separately his intent to use or threaten the use of physical force,” this court held that “[t]he larceny component of robbery, as described in General Statutes § 53a-119, is an intent crime. The use or threatened use of force described in General Statutes § 53a-133, however, has no additional intent element. The state, therefore, need only prove that the defendant intended the larceny and carried it out through the use or threatened use of physical force.” Id., 402-403 n.14. A fortiori, in such a case the state need not prove the additional aggravating circumstance of the use or threat of the use of what is represented to be a deadly weapon or dangerous instrument.

Leggett, however, has been essentially overtaken by subsequent case law in this court. In State v. Haywood, 109 Conn. App. 460, 952 A.2d 84, cert. denied, 289 Conn. 928, 958 A.2d 161 (2008), this court read Padua as answering the question posed by the Supreme Court in Crosswell. We stated: “We believe, moreover, that the question posed in Crosswell was later answered in Padua, which, as noted, held that, for culpability, one must conspire to commit the particular crime and not merely to perform an undefined criminal act.” Id., 476 n.13.

Furthermore, in State v. Palangio, 115 Conn. App. 355, 973 A.2d 110 (2009), the defendant was charged with conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a) (4). Robbery in the first degree under that section is defined as robbery during the course of which the robber or another participant “displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver ... or other firearm . . . .” General Statutes § 53a-134 (a) (4). The state in Palangio contended that it was not necessary to prove that the defendant knew that his coconspirator would use a firearm during the robbery. State v. Palangio, supra, 362. This court disagreed, relying on State v. Padua, supra, 273 Conn. 138, for the proposition that “[p]roof of conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Internal quotation marks omitted.) State v. Palangio, supra, 362. Thus, the court in Palangio concluded that the state was required to prove that the defendant and his coconspirator agreed to commit robbery, and that he “intended to commit robbery with a firearm . . . .’’Id.

With this background in mind, I now turn to the anomaly that it has produced. It is fundamental in our criminal law that there is no legal difference between liability as an accessory and liability as a principal. State v. Gonzalez, 300 Conn. 490, 507, 15 A.3d 1049 (2011). Liability as an accessory is “legally indistinguishable” from liability as a principal because the accessory statute specifically provides that an accessory may be “prosecuted and punished as if he were the principal offender.” (Internal quotation marks omitted.) Id. Put another way: “Under [General Statutes] § 53a-8, acces-sorial liability is not a distinct crime, but only an alternative means by which a substantive crime may be committed . . . .” (Internal quotation marks omitted.) Id., 500. It is also well established, under the Supreme Court’s holding in State v. Crosswell, supra, 223 Conn. 261 n.14, “that when a defendant is charged with robbery in the first degree on the basis that he or another participant ... is armed with a deadly weapon; General Statutes § 53a-134 (a) (2); the defendant need not be proven to have intended to possess a deadly weapon.” (Internal quotation marks omitted.) Under our Supreme Court’s similar holding in State v. Avila, 223 Conn. 595, 609, 613 A.2d 731 (1992), it is also well recognized that a defendant charged as an accessory to robbery in the first degree under the same section need not be proven to have intended to possess a deadly weapon.

These principles of interpretation were recently reaffirmed and explained — as I will discuss in more detail— by our Supreme Court in State v. Gonzalez, supra, 300 Conn. 502. In Gonzalez, the defendant was charged as an accessory to manslaughter in the first degree with a firearm under General Statutes §§ 53a-8 and 53a-55a, which requires proof that “in the commission of [the offense of manslaughter in the first degree] he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses, a firearm. General Statutes § 53a-55a (a). The court held that the language referred to previously — namely, that the perpetrator “uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses,” a firearm — is simply an aggravating circumstance of the underlying crime for which no specific mental state is required and which, therefore, “drops out of the calculation” insofar as proof of a mental state is required. (Internal quotation marks omitted.) State v. Gonzalez, supra, 505. Thus, in Gonzalez, our Supreme Court affirmed the defendant’s conviction of manslaughter in the first degree with a firearm as an accessory, concluding that the state did not have to prove that the defendant specifically intended that a firearm be used in the commission of the offense. Id., 506.

Consequently, if a defendant is charged either as a principal or an accessory to robbery in the second degree in violation of § 53a-135 (a) (2), under Crosswell, Avila and Gonzalez the state would not be required to prove that he, or another participant, specifically intended to possess or display a deadly weapon or dangerous instrument. Yet, if the defendant is charged with conspiring to commit robbery in the second degree, the offense involved in the present case, under the same Penal Code provision, according to Padua, Haywood and Palangio the state is required to prove that he or another participant specifically intended to possess or display a deadly weapon or dangerous instrument.

The anomaly in these lines of precedent is this: it means that, in charging the inchoate — or uncompleted — crime of conspiracy to commit a particular offense, the state is required to prove more, by way of mens rea, than it is required to prove when it charges the completed crime itself. It is difficult, if not impossible, to see why the legislature would put that anomalous burden on the state. Our statutes are to be read, where possible, with common sense; see State v. Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010); and as forming a coherent, rational whole, rather than as forming an anomalous, inconsistent scheme. See Aspetuck Valley Country Club, Inc. v. Weston, 292 Conn. 817, 829, 975 A.2d 1241 (2009) (“we read related statutes to form a consistent, rational whole, rather than to create irrational distinctions” [internal quotation marks omitted]). That principle is particularly appropriate for interpretation of the Penal Code, which was enacted to rationalize our state’s former patchwork quilt of criminal laws. It is simply anomalous that the state would be required to prove a greater mens rea for an inchoate crime— conspiracy — than for the completed, crime itself.

Furthermore, the conspiracy section of our Penal Code, § 53a-48, is based on the New York Revised Penal Law. Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-48 (West 2007). Thus, decisions by the New York courts construing the same language as that in our Penal Code have long been held to be instructive in construing our Penal Code language. See State v. Courchesne, supra, 296 Conn. 671 (“this court may turn to the parallel statutory provisions set forth in the Model Penal Code and the [revised] New York . . . Penal Law ... for guidance” [internal quotation marks omitted]); see also State v. Henry, 253 Conn. 354, 363, 752 A.2d 40 (2000) (“[w]e note that our Penal Code is modeled after the New York Penal [Law]”). In this regard, the Appellate Division of the Supreme Court of New York has characterized Penal Law § 105.00, which is the basic conspiracy statute in New York and which contains precisely the same language as our § 53a-48, as “a general conspiracy statute.” People v. Joyce, 100 App. Div. 2d 343, 347, 474 N.Y.S.2d 337, leave to appeal denied, 62 N.Y.2d 807 (1984). Thus, the court in Joyce contrasted New York’s § 105.00, which, in its view, did not require a specific intent to commit aggravating circumstances, with Penal Law § 105.10, which had more specific mens rea language and did, therefore, require proof of intent to commit the aggravating circumstance. Id.

It may well be that this anomaly can be explained by the fact that our courts, in interpreting the language of the conspiracy statute, lost sight of the difference between the criminal law concepts of general intent and specific intent, and assumed that the mens rea language of § 53a-48 referred to general as well as specific intent. That difference has recently been illuminatingly discussed by our Supreme Court in State v. Gonzalez, supra, 300 Conn. 490. In that case, as I noted previously, the defendant was charged, as an accessory, with manslaughter in the first degree with a firearm, and the issue was whether the court was required to instruct the jury that he specifically intended to use or display what was represented to be a firearm. Id., 498-99. In answering that question in the negative, the court explained the difference between general and specific intent.

The term “general intent” refers, in criminal law parlance, to the fact that “the perpetrator act volitionally in some way”; id., 502; as opposed to the peipetrator acting inadvertently. It requires no more than “an intention to make the bodily movement which constitutes the act which the crime requires. . . . Such an intent, to perform certain acts proscribed by a statute, we have referred to as the general intent ordinarily required for crimes of commission rather than omission.” (Internal quotation marks omitted.) Id. In such crimes, that general intent is always “implicitly a part of the state’s burden of proof and, in that sense, an element of the crime.” (Internal quotation marks omitted.) Id., 502 n.14. Furthermore, unless there is some evidence in the case indicating that the perpetrator’s conduct may not have been voluntary in this sense — may have been inadvertent or accidental, for example — there is ordinarily no need for a jury charge on that aspect of the case. Id. The term “specific intent,” by contrast, requires more; it refers to the specific criminal mental state provided by the statute defining the crime charged. See id., 501-502; see also State v. Nixon, 32 Conn. App. 224, 249, 630 A.2d 74 (1993) (“[w]hen the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent”), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995).

Therefore, the court concluded in Gonzalez, the language, “in the commission of such offense [the perpetrator] uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses” a firearm, “[l]ack[s] a specifically enumerated mental state . . . clearly indicating] . . . that the firearm element is one of general intent, requiring only that the perpetrator act volitionally in some way to use, possess or threaten to use a firearm in the commission of the offense.” (Internal quotation marks omitted.) State v. Gonzalez, supra, 300 Conn. 501-502; accord State v. Miller, 95 Conn. App. 362, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006). Our Supreme Court made clear in this context that the element of the use or threat of a firearm was one of general intent, and not specific intent, and, therefore, the state was not required to prove it and the court was not required to instruct on that element. State v. Gonzalez, supra, 503. Significantly, the court stated that, in such a prosecution, “the state must prove only that the perpetrator acted voluntarily to use, possess or threaten to use a firearm in the commission of the offense, with no obligation to prove any mental state beyond that required by the underlying manslaughter statute.'" (Emphasis added.) Id. Thus, the court drew a parallel between the specific intent required for the underlying substantive crime and the specific intent required for committing it as an accessory; an accessory perpetrator need have no more of a specific mental state than the specific mental state required for the crime to which he is an accessory.

This discussion may illuminate where our precedents on conspiracy may have gone off the track, so to speak. Viewing the present case through this prism, the element of use or threat of the use of, or display of, what is represented to be a deadly weapon or dangerous instrument, under § 53a-135 (a) (2), would be an element of general, not specific, intent, and would simply be viewed as an aggravating circumstance of the crime that does not carry with it a specific intent. See id., 502. As applied to the conspiracy statute, this would mean that the mens rea element of § 53a-48, namely, that the defendant, acting “with intent that conduct constituting a crime be performed . . . agrees with one or more persons to engage in or cause the performance of such conduct,” refers, not to the general intent aspects of the crime conspired to be committed, but only to the specific intent aspects thereof. It would also mean that when a conspiracy is charged, the state would be required to prove that the defendant had the same specific intent required for the underlying crime, but not the general intent attached to that crime. Under that analysis, a conspiracy charge would carry the same mens rea burden as the substantive crime — no less, but no more. And this analysis would eliminate the anomaly that I have identified.

This analysis would also be consistent with that part of the official commentary to § 53a-48 of the Penal Code that refers to the mens rea for conspiracy. That commentary provides: “A second change is the requirement that the defendant must have a specific intent to agree in the performance or causation of criminal conduct. A general intent to promote or facilitate the criminal object or means is not sufficient to establish guilt.” Commission to Revise the Criminal Statutes, Penal Code Comments, supra, commission comment, § 53a-48. The reference to “performance or causation of criminal conduct” refers simply to the underlying crime conspired to be committed, including, however, only its specific intent elements. Thus, it means that the conspiracy charge requires the same specific intent as is required for the underlying crime — no less, but no more.

Although it is a legitimate function of a judge of an intermediate appellate court to point out, where appropriate, an anomaly in governing Supreme Court precedent and possible reasons and solutions, as I have done here, it is not my function to do anything more. See State v. Robinson, 105 Conn. App. 179, 201, 937 A.2d 717 (2008) (“as an intermediate appellate court, it is beyond our function to overrule controlling Connecticut Supreme Court precedent”), aff'd, 290 Conn. 381, 963 A.2d 59 (2009). If anything is to be done to correct such an anomaly, it is for our Supreme Court to do so.

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery . . . [and] (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       Robbery is defined by General Statutes § 53a-133 as, in general terms, committing a larceny, defined by General Statutes § 53a-119, by the use or immediate threat of physical force for the purpose of compelling the giving up of property. Neither the definition nor the application of those particular statutes is pertinent to this appeal.

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any oneofthem commits an overt act in pursuance of such conspiracy.”

       This appeal does not involve any question about the “overt act” element of the crime of conspiracy.

       “[A] defendant can prevail on a claim of constitutional errornotpreserved 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.” (Emphasis omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239-40.

       This was obviously incorrect, as there is no requirement, in a conspiracy charge, that the defendant have committed the completed crime.

       The state does not appear to rely on the waiver doctrine of State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). The state acknowledges that the trial court neither held a charging conference on the record nor provided the defendant with a copy of its charge in advance.

       General Statutes § 53a-5 provides: “When the commission of an offense defined in this title, or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms ‘intentionally’, ‘knowingly’, ‘recklessly’ or ‘criminal negligence’, or by use of terms, such as ‘with intent to defraud’ and ‘knowing it to be false’, describing a specific kind of intent or knowledge. When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.”

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm-. ...”

       I note the singular similarity of this statutory language to that in the present case.

       See part IH of the Penal Code, titled “Inchoate Offenses,” the very first of which is the conspiracy statute, § 53a-48.

       New York Penal Law § 105.00 (McKinney 2009) provides: “A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct.”

       I have not found any decision of the New York Court of Appeals construing Penal Law § 105.00.

       New York Penal Law § 105.10 (McKinney 2009) provides in relevant part: “Aperson is guilty of conspiracy in the fourth degree when, with intent that conduct constituting ... a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct . . . .”

       I acknowledge that I was part of the Supreme Court panel that decided State v. Padua, supra, 273 Conn. 138.

       This is the type of intent to which the Penal Code refers in § 53a-5, namely, such states of mind as intentionally, knowingly, recklessly or criminal negligence.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    GEORGINA SPILKE v. JOSEPH M. WICKLOW III ET AL.
    (AC 33712)
    Lavine, Robinson and Espinosa, Js.

      Argued May 14
    officially released September 25, 2012

      Georgina Spilke, pro se, the appellant-appellee (plaintiff.

      Glenn L. Formica, for the appellees-appellants (defendant Kenneth Spilke et al.).
   Opinion

ROBINSON, J.

The self-represented plaintiff, Georgina Spilke, appeals from the judgment of the trial court awarding her $30,003 against the defendant, her former husband, Kenneth Spilke, and $1 in nominal damages against the defendant Jennifer Ballard on her vexatious litigation claim. The defendants cross appeal from the judgment rendered against them. The vexatious litigation action stemmed from a motion for contempt brought by Spilke against the plaintiff. On appeal, the plaintiff argues that the trial court erred in (1) determining that Ballard did not materially participate in the motion for contempt filed by Spilke, (2) limiting the proximate cause for her vexatious litigation claim to Spilke’s motion for contempt, and (3) not holding Ballard hable for damages and not awarding a larger damages award. In Spilke’s cross appeal, he argues that the trial court erred in (1) finding that the plaintiff had proven emotional distress and (2) awarding the plaintiff damages for emotional distress. In both Spilke’s and Ballard’s cross appeals, they argue that the trial court (1) erred in denying their motion to strike the case from the hearing in damages list when the plaintiff had repleaded her complaint and (2) abused its discretion in failing to open the default judgment entered against the defendants. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the plaintiffs and the defendants’ claims on appeal. The plaintiff and Spilke were divorced in 2003. In 2004, Spilke filed a postjudgment motion for contempt against the plaintiff. In its memorandum of decision, the court, Frazzini, J., detailed the background of the motion for contempt: “[Kenneth Spilke’s] motion for contempt claims that his ex-wife [Georgina Spilke] has violated a provision in the dissolution decree barring her from pursuing a deficiency judgment against him in a foreclosure action on a condominium unit that was once the marital home. [Kenneth Spilke] claims [that Georgina Spilke] has violated this clause because a limited liability company (LLC) owned by [Georgina Spilke’s] sons has acquired and exercised the right to proceed on the deficiency judgment. [Georgina Spilke] denies that the LLC, owned by her sons, is acting on her behalf.” The court determined that Spilke did not meet his burden of proving that the plaintiff was in violation of the dissolution judgment and ruled in the plaintiffs favor on the motion for contempt.

The plaintiff filed a complaint in January, 2007, alleging vexatious litigation based oh Spilke’s motion for contempt. As to the defendants, the complaint asserted that Spilke at no time had “any facts or evidence to demonstrate that [she] in any way violated the [d]ivorce [judgment [agreement.” The plaintiff provided detailed background of the relationship between her and Spilke, and she asserted that the filing of the motion for contempt was used as a means to prevent a deficiency judgment against Spilke in another matter and to prevent the plaintiff, creditors and the Internal Revenue Service from discovering Spilke’s hidden assets and income.

On March 9, 2007, the plaintiff filed a motion for default for failure to plead against the defendants. The court granted the motion as to Spilke on March 15, 2007, and as to Ballard on March 26, 2007. On April 12, 2010, the plaintiff filed a certificate of closed pleadings and requested a hearing in damages. The hearing in damages was held on February 21,2011. In its memorandum of decision, the court noted that, because the defendants did not give notice that the allegations of the complaint would be contested under Practice Book § 17-34, the entry of a default operated as a confession by the defendants of the material facts alleged in the complaint. Construing the pleadings liberally, the court determined that the complaint made a claim for vexatious litigation at common law and also under the vexatious litigation statute, General Statutes § 52-568. The court found that the plaintiff “is entitled to $1 in nominal damages for economic damages and $10,000 in noneco-nomic damages on her common-law claim [and that] she would also be entitled to the same compensatory damage claim on the statutory claim under § 52-568 of the General Statutes. . . . Given the serious allegations of the complaint, treble damages would be warranted under the statute, which will make the total judgment $30,003.” The court continued by determining that, on the basis of the complaint, it could not “conclude how or in what manner the defendant Ballard was directly responsible for instigating the motion for contempt or [what] can be said, in any ascertainable way, to have caused the damage resulting from the unsupported and unjust motion as dictated by the complaint.” The court therefore awarded damages in the amount of $30,003 against Spilke and $1 in nominal damages against Ballard. These appeals followed. Additional facts will be provided when necessary.

I

PLAINTIFFS APPEAL

We begin with the plaintiff’s claims. She argues that the trial court erred in (1) determining that Ballard did not materially participate in the motion for contempt filed by Spilke, (2) limiting the proximate cause for the vexatious litigation claim to Spilke’s motion for contempt, and (3) not holding Ballard hable for damages and not awarding a larger damages award. We address each argument in turn.

A

The plaintiffs first claim on appeal is that the court erred in determining that Ballard did not materially participate in the motion for contempt filed by Spilke. In her complaint, the plaintiff detailed what she deemed to be an intricate conspiracy between Spilke and Ballard, stemming from 1997, to hide Spilke’s assets and income. The plaintiff argues that the complaint detailed the “plan” to transfer assets to Ballard, and to defraud the plaintiff, creditors and the Internal Revenue Service. She argues that the “collusive transfer of assets in 1999, just prior to [the] divorce proceedings,” ultimately led to Spilke’s motion for contempt. We disagree.

The court determined that the complaint did not demonstrate a link between Ballard and the motion for contempt filed by Spilke. The court found: “The original complaint contains a litany of how the defendants . . . conspired to conceal marital assets, and Mr. Spilke falsely testified as to his business activities. It then claims [that the defendants] hired an attorney and his firm, who were originally defendants but who were removed from the case pursuant to a motion to strike. In any evenj; the attorney is said to have filed the motion for contempt at issue here ‘on behalf of his client Kenneth Spilke.’ In the fifty-five paragraphs of the entire complaint there is no actual link between any efforts made to hide Mr. Spilke’s assets by Ballard to the actual filing of the motion for contempt; for all the complaint alleges this was an adventure he pursued on his own.”

“A default admits the material facts that constitute a cause of action . . . and entry of default, when appropriately made, conclusively determines the liability of a defendant. ... If the allegations of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested, the plaintiff, on the entry of a default against the defendant, need not offer evidence to support those allegations. . . . Therefore, the only issue before the court following a default is the determination of damages. ... A plaintiff ordinarily is entitled to at least nominal damages following an entry of default against a defendant in a legal action. . . .

“In an action at law, the rule is that the entry of a default operates as a confession by the defaulted defendant of the truth of the material facts alleged in the complaint which are essential to entitle the plaintiff to some of the relief prayed. It is not the equivalent of an admission of all of the facts pleaded. The limit of its effect is to preclude the defaulted defendant from making any further defense and to permit the entry of a judgment against him on the theory that he has admitted such of the facts alleged in the complaint as are essential to such a judgment. It does not follow that the plaintiff is entitled to a judgment for the full amount of the relief claimed. The plaintiff must still prove how much of the judgment prayed for in the complaint he is entitled to receive. . . .

“Thus, we must examine whether the allegations set forth in each count of the plaintiffs complaint are sufficient on their face to make out a valid claim for the relief requested. . . . Our review of the legal sufficiency of pleadings is plenary. ... To the extent that our analysis goes beyond the facial validity of the complaint and into the court’s findings of fact at the hearing in damages, such findings will be reversed only if they are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Whitaker v. Taylor, 99 Conn. App. 719, 725-27, 916 A.2d 834 (2007).

“The cause of action for vexatious litigation permits a party who has been wrongfully sued to recover damages. ... In Connecticut, the cause of action for vexatious litigation exists both at common law and pursuant to statute. Both the common law and statutory causes of action [require] proof that a civil action has been prosecuted .... Additionally, to establish a claim for vexatious litigation at common law, one must prove want of probable cause, malice and a termination of suit in the plaintiffs favor. . . . The statutory cause of action for vexatious litigation exists under § 52-568, and differs from a common-law action only in that a finding of malice is not an essential element, but will serve as a basis for higher damages.” (Citations omitted; internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 553-54, 944 A.2d 329 (2008).

We conclude that the court did not err in determining that Ballard did not participate in the motion for contempt that is the basis of the plaintiffs vexatious litigation claim. Although the plaintiff argues that Ballard was involved in a purported conspiracy to hide Spilke’s assets from the plaintiff, the vexatious litigation claim stems solely from the motion for contempt filed by Spilke, and not the divorce proceedings that took place between Spilke and the plaintiff. Taking the allegations set forth in the complaint as true, Ballard may have assisted Spilke in concealing assets from the plaintiff. The plaintiff, however, did not allege in the complaint, nor demonstrate at the hearing in damages, that Ballard played any part in the actual filing of the motion for contempt. As the trial court correctly noted, the complaint specifically asserts that Spilke filed the motion for contempt on October 27, 2004. The court therefore did not err in determining that Ballard did not participate in the filing of the motion for contempt.

B

The plaintiffs second claim on appeal is that the court erred in limiting the proximate cause for the vexatious litigation claim to Spilke’s motion for contempt. She argues that the defendants’ conspiracy stemming from the time of the divorce proceedings is the cause of all subsequent tortious litigation, including Spilke’s motion for contempt. She contends that all of the proceedings surrounding the divorce were “vexatious litigation superimposed on a simple divorce . . . .” We disagree.

In its memorandum of decision, the court stated: “The court in no way disputes [the plaintiffs] assertions about her past treatment, but given the specific nature of the action brought and the requirements of proximate cause it concludes the claims made are far beyond what is just and reasonable. The issue before the court, however, must be the damages caused the plaintiff by the vexatious suit at hand — i.e., the bringing of the contempt motion. It cannot be the function of this court to make amends through this judgment for every past misdeed and unfair and irresponsible act now alleged against the defendant Spilke. . . . There was much testimony and argument presented about [Spilke’s] abandonment of the children, his fraudulent concealment of assets to avoid marital obligations and tax responsibilities, and all of the pain and suffering caused the plaintiff long before the contempt action was brought, let alone contemplated. . . . The plaintiffs basic theory seems to be that the motion [for] contempt was another fraudulent attempt to keep hidden assets concealed, since, if a deficiency judgment were allowed those assets would be discovered. Default has entered, so the court accepts this allegation made in the complaint as true. But on the separate question of damages emanating from this contempt action the court cannot piggyback on this claim all the deleterious effects of similarly fraudulent activities perpetrated by Mr. Spilke in the past; those effects long antedated the contempt litigation.”

“Proximate cause is ordinarily a question of fact. . . . To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . .” (Citation omitted; internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn. App. 162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006).

We conclude that the court did not err in limiting the vexatious litigation claim and the resulting damages the plaintiff suffered from the time of the filing of the motion for contempt onward. A vexatious litigation claim arises when a plaintiff has wrongfully been sued by another individual. Bernhard-Thomas Building Systems, LLC v. Dunican, supra, 286 Conn. 553. An individual is entitled to recover damages that resulted from the unlawful lawsuit. Id., 554. In the present case, the wrongful lawsuit at issue was the filing of the motion for contempt. Although the divorce between the plaintiff and Spilke may have been acrimonious, the plaintiffs vexatious litigation claim stems from the filing of the motion of contempt, and not from the divorce proceedings. The alleged concealment of assets and fraudulent financial affidavits happened prior to the filing of the motion for contempt and are not relevant to the plaintiffs damages for her vexatious litigation claim. Although the plaintiff asserts that all of the proceedings between the parties, including the divorce itself, were vexatious, the complaint asserts a claim for vexatious litigation based on the filing of the motion for contempt, and the court therefore properly Incited its review to damages arising out of the filing of the motion for contempt in October, 2004. We therefore conclude that the court did not err in limiting the proximate cause for the vexatious litigation claim to the filing of the motion for contempt.

C

The plaintiffs last claim is that the court erred in not assessing damages against Ballard, and also in not awarding the plaintiff “for all [of] the maltreatment” she suffered over the extensive period of litigation. On his cross appeal, Spilke contends that the court erred in finding that the plaintiff had proven emotional distress and in awarding $10,001 in damages. Because both the plaintiff and Spilke contend that the court’s award for damages was improper, we analyze these claims together.

A trial court is vested with “broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed . . . absent a clear abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999).

Because we already have determined that the court did not err in concluding that Ballard did not participate in the filing of the motion for contempt, we conclude that the court did not abuse its discretion in awarding only nominal damages as to Ballard. The plaintiff, however, also claims that the court erred in not assessing a greater damages award for all of the “maltreatment” that she suffered. As indicated in part IB of this opinion, the court correctly limited its focus as to what occurred after the filing of the motion for contempt. The plaintiffs vexatious litigation claim stemmed from the motion for contempt, and, therefore, the court properly limited its damages award to only damages that resulted from the filing of the motion. We therefore must determine whether the court abused its discretion in awarding $10,001 in damages against Spilke on the plaintiffs vexatious litigation claim.

The court found that the plaintiff was entitled to $10,001 in noneconomic damages for emotional distress and was entitled to treble damages. The court took the allegations of the complaint as true and found that the plaintiff “was threatened with contempt for violating a paragraph of a settlement agreement entered into by the parties just two years before and according to the complaint was instituted solely to hide fraudulently concealed assets, which, although apparently known about by her, was not further pursued because she wanted to settle the case and apparently move on with her life. One can imagine her aggravation and distress in being accused of violating a provision of an agreement she entered into despite her belief that the defendant had acted in the improper way alleged in concealing and transferring his assets. This litigation, even if it need not have prevented [the plaintiff] from moving to Chicago to be with her mother, complicated the decision whether or not to do so and must have been a source of emotional distress. She also must have experienced distress proceeding from her annoyance in having to spend eighty to 100 hours to prepare for what was knowingly bogus litigation.”

Giving every reasonable presumption in favor of the correctness of the court’s ruling, we conclude that the trial court did not abuse its discretion when it awarded the plaintiff $1 in nominal damages and $10,001 in non-economic damages for her emotional distress. The plaintiff testified that she was prevented from going to Uve with her mother in Chicago due to the filing of the motion for contempt. The plaintiff testified that she was planning to move to Chicago to be with her ailing mother and to move closer to her friends and family. She testified that during the planning of this move, however, Spilke filed the motion for contempt, which forced her to stay in Connecticut. Although she may have been able to move and still defend herself in the motion for contempt, she thought that the better decision for the purpose of defending herself as to the motion for contempt was to remain in Connecticut, which prevented her from taking care of her mother and from reuniting with her children and friends in Chicago. The court properly could infer that this decision Ukely caused the plaintiff some distress.

Spilke argues that the plaintiff provided no evidence to the court regarding her emotional distress and that her testimony referenced events that occurred prior to the filing of the motion for contempt. While it is true that the plaintiff often testified in generalities, referencing what in her opinion were all of the atrocities that Spilke had committed against her without specific regard to the motion for contempt, we find that the court could have inferred that the plaintiff suffered emotional distress from the filing of the motion for contempt. The plaintiff testified regarding the distress of the divorce proceedings, the aftermath of the divorce and her belief that Spilke had perpetrated fraud against her at the time of the divorce. It is clear from the record that the plaintiff had endured a contentious divorce with Spilke and that after the divorce was finalized, she was served with a motion for contempt, resulting in even more time in litigation with Spilke. She testified that “in terms of . . . emotional distress, you could see that previously ... I was really quite upset. It is that it can never — it’s never really straightened out.” Furthermore, the plaintiff testified that, after the divorce from Spilke, “I felt like a burdened beast, insulted by this former husband . . . who has said some horrible things about me to the children; at the end of all this I had at least an opportunity to spring to life and then [Spilke] brought positjudgment action against me without any evidence that I participated in anything unlawful.” We therefore conclude that the court did not abuse its discretion in finding that the plaintiff suffered emotional distress and awarding $10,001 in compensatory damages. As for the plaintiffs claim, she has provided no reason why the court abused its discretion in awarding only $10,001 in compensatory damages other than her own belief that she is entitled to more damages. We find that the award was not unreasonable and conclude that the court did not abuse its discretion in its award of damages as to Spilke.

II

DEFENDANTS’ CROSS APPEALS

We next address the remainder of the defendants’ claims raised in their cross appeals. The defendants claim that the court erred in denying their motion to strike the case from the hearing in damages list when the plaintiff had repleaded her complaint. They argue that the plaintiff filed an amended complaint on July 28, 2008, well after default was entered as to the defendants, and that no new motion for default was filed by the plaintiff. The defendants argue, therefore, that the amended complaint extinguished their default. Furthermore, the defendants claim that the court abused its discretion in failing to open the default judgment entered against them.

The complaint originally was brought against the two defendants as well as Spilke’s attorney, Joseph M. Wicklow III, and the law firm of Lasala, Walsh, Wicklow & Velardi, LLC (law firm). Wicklow and the law firm filed a motion to strike count one and count two of the plaintiffs complaint, which was granted by the court on July 11,2008. The plaintiff filed an amended complaint on July 25, 2008, including counts against Wicklow and the law firm. Wicklow and the law firm filed a motion to strike the counts of the complaint directed against them, which was granted by the court on October 2, 2008.

On April 12, 2010, the plaintiff filed a certificate of closed pleadings and requested a hearing in damages. The defendants filed a motion to strike the matter from the hearing in damages docket on September 16, 2010, arguing that the plaintiff had amended her complaint numerous times since the entry of default against the defendants, which, in turn, extinguished the default. They also filed an answer to the plaintiffs complaint, pending the court’s decision on the motion. The court denied the motion on September 16, 2010.

The court’s order denying the defendants’ motion to strike stated: “The defendants . . . move to strike this case from the hearing in damages list, to which it was assigned following the entry of a default for failure to plead. They rely on the fact that following the granting of a motion to strike the complaint as to the other defendants in this case, the plaintiff filed a substitute pleading in an effort to cure the defects that the court had found in the stricken pleading. . . . They have filed an answer and special defenses, and they seek to have the case removed from the hearing in damages docket so that it can be claimed for a trial on the merits. The problem with the defendants’ argument is that the plaintiff, in the previously mentioned substituted complaint, makes it abundantly clear that the substitution relates only to the former defendants Joseph Wicklow III and Walsh, Lasala, Wicklow and Velardi, LLC, and that it does not seek to be a substitute for the original counts against the defendants Kenneth Spilke and Jennifer Ballard. In light of the foregoing, the default against Kenneth Spilke and Jennifer Ballard still stands, and the case is appropriately docketed on the hearing in damages list.”

The defendants then filed a motion to open the default for failure to plead on October 18, 2010. In the motion, the defendants argued that the default was due to mis-communication between the defendants and their attorney as well as their attorney’s chronic illness. Attached to the motion was an affidavit from the defendants’ attorney, Henry N. Silverman. The defendants also argued that there was no prejudice to the plaintiff because the default was pending for three years before the plaintiff claimed the matter to the hearing in damages docket.

The motion was denied by the court on December 23, 2010. In denying the defendants’ motion, the court noted that “[t]he gravamen of the defendants’ argument in support of the instant motion is that they were prevented by a combination [of] their misunderstanding of the status of the case and prior defense counsel’s health problems from responding to the plaintiffs complaint.”. The court stated that, although the defendants had apprised it that their attorney had health issues in late 2009, that “does not answer, or even address, the question of how or why defaults which entered in March, 2007, were permitted to stand unchallenged for more than three years. The only explanation given, essentially that [the defendants] had instructed [their counsel] to try to handle their case ‘on the cheap’ . . . is hardly ‘good cause’ for allowing three years ... or even the first two of those years, before [the defendants’ attorney’s] health problems created additional problems ... to pass without taking any action with respect to the defaults. ” The court therefore determined that there was no good cause to set aside the default and denied the defendants’ motion.

As for the defendants’ first claim, even though the defendants’ motion was labeled a motion to strike, “a motion is to be decided on the basis of the substance of the relief sought rather than on the form or the label affixed to the motion. ... It is the substance of a motion, therefore, that governs its outcome, rather than how it is characterized in the title given to it by the movant.” (Citations omitted.) State v. Taylor, 91 Conn. App. 788, 791-92, 882 A.2d 682, cert. denied, 276 Conn. 928, 889 A.2d 819 (2005). The defendants labeled the motion as one to strike the matter from the hearing in damages docket. The stated reason for the motion was that, because the plaintiff had filed amended complaints, the defendants’ default had been extinguished. Essentially, the defendants sought to set aside the default because the plaintiff had filed an amended complaint. We therefore apply the same standard of review to the defendants’ claim as we would to a motion to set aside a default, namely, we must determine if the trial court abused its discretion. See Higgins v. Karp, 243 Conn. 495, 508, 706 A.2d 1 (1998).

Although not completely analogous, we find this court’s recent decision in Willamette Management Associates, Inc. v. Palczynski, 134 Conn. App. 58, 38 A.3d 1212 (2012), instructive. In Willamette Management Associates, Inc., the plaintiff served a complaint on May 28, 2008, that included an erroneous return date. Id., 62-63. In June and July, 2008, the court granted the plaintiffs motions for default against the defendant for failure to appear and failure to plead to the complaint. Id., 62. In October, 2008, the defendant filed an answer, special defenses and counterclaim. Id. In April, 2009, the error in the return date was discovered, and the court ruled that it was a defect that was curable by amendment, and, at the court’s direction, the plaintiff amended the writ of summons and served an amended complaint to reflect the correct return date. Id., 63. At the scheduled hearing in damages in August, 2009, the defendant moved to strike the matter from the hearing in damages list, claiming that the plaintiff had not filed a reply to the special defenses asserted by the defendant, and, therefore, the pleadings were still open. Id., 64. The trial court rejected the defendant’s argument. Id.

On appeal, the defendant argued that “because the court granted the plaintiff leave to amend the writ of summons and complaint to correct the return date, [the defendant] should have been allowed to plead to the amended complaint.” Id., 65. The defendant argued that, due to the filing of the amended complaint, “the default was in effect opened and she should have been allowed to plead to the newly filed amended complaint.” Id., 66-67. This court determined that the trial court did not abuse its discretion in prohibiting the defendant from filing a pleading as to the amended complaint. Id., 69. In reaching that conclusion, this court noted that the “only change between the original complaint and the amended complaint was the return date and the date of the complaint. All substantive allegations in the complaint remained precisely the same. . . . The defendant’s substantive rights were not affected by the amendment, and she has not demonstrated prejudice. If the effect of an amendment of a complaint so made is to substantially change the cause of action originally stated, the defendant is entitled to file new or amended pleadings and present further evidence. Also, if the amendment interjects material new issues, the adversary is entitled to reasonable opportunity to meet them by pleading and proof.” (Internal quotation marks omitted.) Id., 68-69. This court determined that no substantial change was made to the action, and, therefore, the trial court did not abuse its discretion by prohibiting the defendant from filing pleadings as to the amended complaint. Id., 69.

Although the question in Willamette Management Associates, Inc., was whether the court abused its discretion by prohibiting the defendant from filing pleadings, and in this case it is whether the court abused its discretion in denying the motion to strike the matter from the hearing in damages list, in both cases the question primarily was whether the filing of an amended complaint after a finding of default extinguished the default and allowed the defendant to plead in response. In the present case, the plaintiff filed four amended complaints after the defendants were defaulted. Three of those amended complaints were filed after Wicklow and the law firm filed requests to revise. Although the complaints differed in some respects from the original complaint, the substantive allegations remained the same. As in Willamette Management Associates, Inc., we conclude that the amendments worked no substantial change in the cause of action and that the defendants have not demonstrated any prejudice suffered. Further, we note that the defendants did not file their motion to strike until September 16, 2010, more than three years after the defendants had been defaulted. We therefore conclude that the court did not abuse its discretion in denying the motion to strike the matter from the hearing in damages list.

The defendants also claim that the court abused its discretion in failing to set aside the default judgment. “[T]he determination of whether to set aside [a] default is within the discretion of the trial court . . . and will not be disturbed unless that discretion has been abused or where injustice will result. In the exercise of its discretion, the trial court may consider not only the presence of mistake, accident, inadvertence, misfortune or other reasonable cause . . . factors such as [t]he seriousness of the default, its duration, the reasons for it and the degree of contumacy involved . . . but also, the totality of the circumstances, including whether the delay has caused prejudice to the nonde-faulting party.” (Citations omitted; internal quotation marks omitted.) Higgins v. Karp, supra, 243 Conn. 508.

The defendants argue that the motion to set aside the default should have been granted because the default was entered due to “prior counsel’s inadvertence and subsequent health issues.” The affidavit from the defendants’ prior counsel, which was attached to the motion, stated that the defendants “had a misunderstanding as to the nature of this lawsuit, they had it confused with other legal proceedings” and that the defendants instructed him that “they would appreciate it if I would keep the expense of this lawsuit to a minimal amount in order to mitigate the amount of legal fees . . . The affidavit also mentioned that counsel endured health problems in late 2009 and early 2010, and therefore was unable to handle claims relating to this case.

Given the assertions in the affidavit, we cannot conclude that the court abused its discretion in denying the motion to set aside the default judgment. Counsel’s health problems did not begin until nearly two years after the default was entered against the defendants. We also note that the default had been entered more than three years prior to the motion to set aside the default. On the basis of the foregoing, we conclude that the court did not abuse its discretion in denying the motion to set aside the default judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Ballard is presently married to Kenneth Spilke. Kenneth Spilke will be referred to as Spilke or jointly with Ballard as the defendants, and Georgina Spilke will be referred to as the plaintiff. The plaintiff originally brought suit against Spilke and Ballard as well as Spilke’s attorney, Joseph M. Wicklow m, and the law firm of Lasala, Walsh, Wicklow & Velardi, LLC. The court granted a motion to strike count one and count two of the complaint as to Wicklow and Lasala, Walsh, Wicklow & Velardi, LLC.

       The plaintiff filed revised complaints on May 4 and August, 20, 2007, and on April 14, 2008, after the defendant Joseph M. Wicklow HI and the defendant law firm of Lasala, Walsh, Wicklow & Velardi, IXC, filed requests to revise. The court subsequently granted a motion to strike as to those defendants. See footnote 1 of this opinion. The plaintiff also filed an amended complaint on July 28, 2008.

       There is a handwritten note on the order page, dated January 30, 2008, which states that “[u]pon review [t]he court recognizes an appearance for Jennifer Ballard was in file'as of 3/22/07 so default for failure to plead should have been granted on 3/26/07.”

       General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.” We note that Spilke only claims on appeal that the plaintiff did not prove her damages for emotional distress and therefore that the court erred in awarding $10,001. Spilke does not argue that the court erred in awarding treble damages under § 52-568; therefore, we limit our analysis as to whether the court abused its discretion in awarding $10,001 in damages for emotional distress.

       We also note that the plaintiff represented herself during the hearing in damages as well as in the present appeal. “Connecticut courts are solicitous of self-represented parties when it does not interfere with the rights of other parties.” Argentinis v. Fortuna, 134 Conn. App. 538, 539, 39 A.3d 1207 (2012).

       The defendants also claim that the court abused its discretion because its decision was based on a misapprehension that the defendants wanted the case handled “on the cheap,” when they never instructed counsel not to defend the lawsuit or to compromise their defense in order to save money. In the court’s decision on the motion, the court stated that “[t]he only explanation given, essentially that [the defendants] had instructed [their counsel] to try to handle their case ‘on the cheap’ ... is hardly ‘good cause’ for allowing three years ... or even the first two of those years, before [the defendants’ attorney’s] health problems created additional problems ... to pass without taking any action with respect to the defaults.” We do not believe that the court misapprehended the affidavit attached to the motion, which explicitly stated that counsel was instructed by the defendants that “they would appreciate it if I would keep the expense of this lawsuit to a minimal amount in order to mitigate the amount of legal fees as it was their hope that the Plaintiff . . . would abandon what they considered to be a malicious lawsuit . . . .”


author: PER CURIAM.

text:
    PETER LARSON v. MATILDE LARSON
    (AC 33082)
    (AC 33334)
    Alvord, Espinosa and West, Js.

      Argued April 12
    officially released September 25, 2012

      Peter J. Larson, pro se, the appellant (plaintiff).

      Matilde Larson, pro se, the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Peter Larson, appeals from the judgment of the trial court (1) reducing the amount of alimony and child support payable by him to the defendant, Matilde Larson, (2) finding him in contempt for failure to comply with the prior child support and alimony orders and (3) ordering him to pay the defendant’s attorney’s fees. On appeal, the plaintiff claims that each of the court’s orders was an abuse of discretion. We affirm the judgment of the trial court.

The following undisputed facts are necessary for our resolution of the plaintiffs claims. The parties were married on June 19,1982, and have two minor children. The marriage of the parties was dissolved on January 31,2003. Under the terms of the judgment of dissolution, the plaintiff was ordered to pay alimony in the amount of $500 per week and child support in the amount of $347 per week. Prior to the modification from which the plaintiff appeals in the present case, the court twice had modified the plaintiffs child support obligations, and, as of the last modification, the plaintiff was ordered to pay $424 per week. On November 17,2010, the plaintiff filed an amended motion for modification, seeking a reduction in alimony and child support orders due to a change in income of the parties. The defendant filed a motion for contempt for failure to comply with child support and alimony awards and a motion for counsel fees.

On December 7, 2010, the court issued a memorandum of decision reducing the plaintiffs alimony and child support obligations and granting the defendant’s motions for contempt and counsel fees. This appeal followed. Additional facts will be set forth as necessary.

Ón appeal, the plaintiff claims that the court erred in (1) the calculation of the reduction in his child support and alimony obligations, (2) finding that he was in contempt for failure to comply fully with the child support and alimony orders and (3) ordering him to pay attorney’s fees to the defendant.

Although the court’s orders significantly reduced the plaintiffs child support and alimony obligations, the plaintiff argues that the court made several errors in its calculation of the new child support and alimony orders and erred in applying the orders retroactively. None of the plaintiffs arguments have merit. “[I]n reviewing a trial court’s decision on a motion to modify, every reasonable presumption will be made in favor of the trial court’s exercise of discretion. ... Its decision will not be disturbed unless it acted illegally or unreasonably.” (Citation omitted; internal quotation marks omitted.) Nicholson v. Nicholson, 66 Conn. App. 885, 887, 786 A.2d 462 (2001). The court found that, at the time of his motion for modification, the plaintiff was unemployed and his net income was $21,648, compared to $85,452 at the time of the judgment of dissolution. On these grounds the court determined that there had been a substantial change in circumstances and reduced the alimony order to a sum of $1 per year. With regard to child support, the court had found in connection with its previous modification, that the net income of the plaintiff was $118,000 per year and that the defendant’s net income was $30,680 per year. The court, in considering the present motion to modify child support, determined that there had been a substantial change in circumstances, and, on the basis of the court’s calculation that the parties’ presumptive child support was $348 per week, reduced the plaintiffs obligation to $116 per week. The court applied the new child support and alimony awards retroactively to March 1, 2010. After our careful review of the record, we conclude that the court did not abuse its discretion in its formation of the new alimony and child support awards.

Next, the plaintiff claims that the court erred in finding him in contempt for failure to pay child support and alimony and ordering him to pay $99,809.12 in arrearages. We must determine “whether the trial court abused its discretion in issuing . . . a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” In re Leah S., 284 Conn. 685, 694, 935 A.2d 1021 (2007). “We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous.” (Internal quotation marks omitted.) Oldani v. Oldani, 132 Conn. App. 609, 626, 34 A.3d 407 (2011). The plaintiff contends that, because he was unable to pay alimony and child support due to a lack of funds, his failure to pay was not wilful or without good cause. The court found that the plaintiff had the means to comply with the orders due to his employment from 2006 through 2009. After our review of the record, we conclude that the trial court’s finding that the plaintiff had the ability to pay his child support and alimony obligations was not clearly erroneous. Therefore, we conclude that the court’s determination that the plaintiff wilfully failed to comply with the court’s orders was not an abuse of discretion.

Lastly, the plaintiff claims that the court erred in ordering him to pay the defendant’s attorney’s fees in the amount of $26,795. The plaintiff does not claim that the award of attorney’s fees was unreasonable, but instead claims that he was denied the opportunity to challenge the reasonableness of the fees. “Our law for awarding attorney’s fees in contempt proceedings is clear. General Statutes § 46b-87 provides that the court may award attorney’s fees to the prevailing party in a contempt proceeding. The award of attorney’s fees in contempt proceedings is within the discretion of the court. ... In making its determination, the court is allowed to rely on its familiarity with the complexity of the legal issues involved. . . . [T]he award of attorney’s fees pursuant to § 46b-87 is punitive, rather than compensatory . . . .” (Internal quotation marks omitted.) Allen v. Allen, 134 Conn. App. 486, 502-503, 39 A.3d 1190 (2012). “Once a contempt has been found, § 46b-87 establishes a trial court’s power to sanction a noncomplying party through the award of attorney’s fees. : . . Pursuant to § 46b-87, that sanction may be imposed without balancing the parties’ respective financial abilities.” (Citations omitted; emphasis in original.) Dobozy v. Dobozy, 241 Conn. 490, 499, 697 A.2d 1117 (1997). The party found in contempt, however, must be given an “effective opportunity to challenge the reasonableness of the attorney’s fees.” Id., 501.

In the present case, the court scheduled a separate hearing for the plaintiff to challenge the reasonableness of the affidavit of attorney’s fees filed by the defendant. At the November 12, 2010 hearing, the plaintiff did not present any evidence challenging the reasonableness of the attorney’s fees. Therefore, we conclude that the court did not abuse its discretion in awarding attorney’s fees to the defendant after providing the plaintiff with an “effective opportunity” to challenge such fees.

The judgment is affirmed.

       The plaintiff initially appealed from the court’s December 7, 2010 judgment. The court issued a corrected memorandum of decision on March 24, 2011, from which the plaintiff brought another appeal. This court consolidated these appeals.

       On May 27, 2004, the plaintiff moved for a modification of the parenting arrangement and alimony and support orders. On January 11,2005, the court denied the motion for modification of alimony but reduced the child support order to $280 per week. The defendant moved to open and modify the child support order on July 12, 2005. The court granted the motion and increased child support to $424 per week on the basis of a finding that the plaintiffs net income was $118,924 and the defendant’s net income was $30,680. The plaintiff appealed the modification, and this court affirmed the trial court’s judgment. See Larson v. Larson, 99 Conn. App. 904, 916 A.2d 129 (2007).

       The court allowed the plaintiff to amend his motion for modification to raise the issue of the change in income of the parties.

       On April 6, 2006, the plaintiff filed his original motion for modification of custody and visitation, child support, alimony and life insurance. In his motion for modification, the plaintiff asserted that (1) there was a substantial change in circumstances on the basis of his move to California, (2) the defendant had “conducted a campaign of fraud and parental alienation” and (3) the underlying decision was “illegal from [the] inception [for] violating [General Statutes §] 46b-215d.” In its December 7, 2010 memorandum of decision, the court rejected all three grounds.

       The court based its calculation on the defendant’s stipulated income of $55,000. On March 24, 2011, the court issued a corrected memorandum of decision. The court noted that, in its December 7, 2010 memorandum of decision, in listing the defendant’s net weekly income, it erroneously recited the defendant’s gross weekly income. Nevertheless, the court stated that it properly based its calculation of the plaintiffs child support obligation on the net weekly income of both parties. Therefore, despite this scrivener’s error, the court used the correct figures in its calculation.

       Prior to the court’s December 7, 2010 order, the parties stipulated that any order would not be retroactive prior to January 1, 2009, and each party reserved the right to argue for or against any retroactive order.

       We first must determine “whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt.” In re Leah S., supra, 284 Conn. 693. We agree with the undisputed finding of the court that the underlying child support and alimony orders were clear and unambiguous.