author: PETERS, J.

text:
    CHRISTOPHER B. KENNEDY v. LEANNA L. KENNEDY
    (AC 29059)
    DiPentima, Beach and Peters, Js.
    Argued November 20, 2008
    officially released May 5, 2009

      Christopher B. Kennedy, pro se, the appellant (plaintiff).

      Ira A. Jacobs, for the minor child, Kathleen Kennedy.

      Jacqueline A. Wilson filed a brief for the minor child, Brenna Kennedy.
   Opinion

PETERS, J.

A judgment of civil contempt is improper if “the contemnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) In re Leah S., 284 Conn. 685, 692, 935 A.2d 1021 (2007). Accordingly, “a court may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.” Wilson v. Wilson, 38 Conn. App. 263, 275-76, 661 A.2d 621 (1995). In this highly contentious family litigation, the plaintiffs principal claim on appeal is that, because protective and restraining orders prohibited him from having “any contact in any manner” with the defendant, his former wife, the trial court improperly found that he wilfully had failed to honor his obligation to notify her that he had obtained employment. We agree and vacate the contempt judgment against him, although we affirm a second order with respect to his visitation rights.

By a court order entered on May 7, 2002, the marriage between the pro se plaintiff, Christopher B. Kennedy, and the defendant, Leanna L. Kennedy, was dissolved in accordance with the parties’ separation agreement. Thereafter, their original plan for joint custody and shared parenting of their three children was superseded by a court order of February 4, 2003, that made the defendant the primary custodian and gave the plaintiff visitation rights. On numerous occasions since that date, the plaintiff has filed motions for modification of custody and for unsupervised visitation. Although considerable and protracted litigation has expanded substantially the plaintiffs access to his daughters; see Kennedy v. Kennedy, 109 Conn. App. 591, 597 n.10, 952 A.2d 115 (2008); at the time the visitation orders challenged in this appeal were entered, he had not yet obtained all of the visitation rights he claimed were warranted.

Two separate rulings by the trial court, Shluger, J., are before us in this appeal. The plaintiff contests the court’s orders (1) finding him in contempt for failure to disclose his employment as stipulated in a postdissolution agreement by the parties and (2) declining to award him unsupervised visitation rights with their daughters. In addition, the plaintiff maintains that the court engaged in unlawful discrimination by failing, sua sponte, to make accommodations to his attention deficit disorder disability. We address each of these three claims separately.

I

CONTEMPT

On January 18, 2007, the defendant filed a motion for contempt alleging that the plaintiff had failed to comply with their stipulated postdissolution agreement of May 17, 2004, that “each party will notify the other when he or she obtains employment.” At the hearing on this motion, the plaintiff acknowledged that he had failed to inform the defendant that, for two years, he had been employed by Pratt & Whitney Aircraft as an engineer with an approximate salary of $65,000. The court found that the party’s agreement was “clear and understandable,” and that the plaintiffs failure to provide this information was a wilful violation of it. It rejected the plaintiffs defense that he was uncertain “if he could or how” to notify her, finding instead that he “had a financial motivation” for neglecting to inform the defendant of his employment. Despite its finding of wilfulness, however, the court imposed no sanction on the plaintiff. On July 16,2007, the court denied the plaintiffs motion to reconsider.

Without contesting most of the court’s findings of fact, the plaintiff contends that the court improperly found his nondisclosure to be wilful. His principal claim reiterates the argument that he made at trial that the judicially imposed constraints on his contact with the defendant made it improper to find fault with his failure to comply with the postdissolution agreement. In the alternative, the plaintiff argues that the contempt order contravened the facts on record because the defendant had admitted facts in her pleadings that attested to her having known that he was employed prior to filing her motion for contempt.

A

Although the briefs submitted in this appeal do not address the issue, “mootness implicates this court’s subject matter jurisdiction and is a threshold matter for resolution.” Monsam v. Dearington, 82 Conn. App. 451, 455, 844 A.2d 927 (2004). The issue of mootness is implicated in this case because the trial court imposed no penalty on the plaintiff and he, therefore, cannot obtain practical relief if we vacate the court’s contempt judgment.

Whether our judgment can afford practical present relief to the plaintiff is not dispositive of mootness, however, if “there is a reasonable possibility that prejudicial collateral consequences will occur” as a result of the judgment. (Internal quotation marks omitted.) Putman v. Kennedy, 279 Conn. 162, 169, 900 A.2d 1256 (2006) (lapse of restraining order does not moot appeal due to collateral consequences). Our jurisprudence establishes that “a contempt finding has collateral consequences . . . unless or until it is vacated or rendered invalid.” Kendall v. Pilkington, 253 Conn. 264, 278 n.7, 750 A.2d 1090 (2000). Even without the imposition of a penalty, the fact that a trial court has made a finding of contempt may well affect a later court’s determination of the penalty to be imposed after a future finding of contempt. Sgarellino v. Hightower, 13 Conn. App. 591, 594-95, 538 A.2d 1065 (1988). In this case, the record describing the plaintiffs employment suggests that he may need to maintain a security clearance that may well be adversely affected by a judgment of contempt. We are persuaded, therefore, that, because of the reasonable possibility of adverse consequences, we have jurisdiction to consider the merits of the court’s contempt order.

B

The plaintiff claims that the court improperly found that he had acted wilfully in failing to apprise the defendant of his employment directly because outstanding judicial protective and restraining orders forbade him to have “any contact in any manner” with her. We agree.

“[0]ur analysis of a [civil] judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order . . . was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . This is a legal inquiry subject to de novo review. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was wilful or excused by a good faith dispute or misunderstanding.” (Internal quotation marks omitted.) Zoll v. Zoll, 112 Conn. App. 290, 303, 962 A.2d 871 (2009), quoting In re Leah S., supra, 284 Conn. 693-94. In this case, because the separation agreement between the parties unambiguously required that “each party will notify the other when he or she obtains employment,” we need address only the trial corut’s finding of wilfulness.

“Contempt is a disobedience to the rules and orders of a court which has power to punish for such an offense.” (Internal quotation marks omitted.) Edmond v. Foisey, 111 Conn. App. 760, 769, 961 A.2d 441 (2008). Nonetheless, “[n]oncompliance alone will not support a judgment of contempt.” (Internal quotation marks omitted.) Prial v. Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001). “[A] corut may not find a person in contempt without considering the circumstances surrounding the violation to determine whether such violation was wilful.” Wilson v. Wilson, supra, 38 Conn. App. 275-76. A judgment of civil contempt is improper if “the contemnor, through no fault of his own, was unable to obey the court’s order.” (Internal quotation marks omitted.) In re Leah S., supra, 284 Conn. 692.

In support of the plaintiffs claim that his noncompliance with his disclosure obligation was not wilful, he testified that he was uncertain “if he could or how” to contact the defendant without being arrested, at least while protective and restraining orders were pending against him. Although no such orders were outstanding when the defendant filed her motion for contempt on January 18, 2007, they had been in effect for most of the time encompassed by the notification agreement. Even though all of the “no contact” orders had been removed by October, 2006, the court restated, in its memorandum of decision of June 26, 2007, that “no contact whatsoever should be permitted” between the parties. At the very least, therefore, the plaintiff had been faced repeatedly over the course of this litigation with contradictory judicial directives that he both notify the defendant of his employment and yet have no contact whatsoever with her. The plaintiff thus had received mixed signals from the court about how he should conduct himself with respect to the defendant. We are persuaded that such contradictory directives undermine the finding that the plaintiffs noncompliance with the reporting requirement was wilful. “The inability of [a party] to obey an order of the court, without fault on his part, is a good defense to a charge of contempt.” Tobey v. Tobey, 165 Conn. 742, 746, 345 A.2d 21 (1974). Under these circumstances, the judgment of contempt must be vacated. See Wilson v. Wilson, supra, 38 Conn. App. 275-76.

C

In the alternative, the plaintiff claims that the court improperly found him in contempt “against the facts and findings” in the record because the defendant had independently learned of his employment before she filed her motion for contempt. For two reasons, we need not pursue this claim. First, the record does not disclose that it was addressed by the trial court. Second, there is no need to undertake a further examination of a contempt order that we have already determined must be set aside.

II

VISITATION

The plaintiffs second claim on appeal challenges the court’s failure to afford him the unrestricted visitation rights that he sought in his October 17, 2006 motion for modification of custody and visitation. Although this order increased his rights of visitation with his two daughters, it failed to grant his request for unsupervised visitation. According to the plaintiff, this order violated his fundamental liberty interest under the federal constitution in the nurture, upbringing, companionship, care, and custody of his children. We do not agree.

Before addressing the merits of the plaintiffs second claim, we must determine whether judicial rulings subsequent to the specific order on appeal have rendered the order moot and thus have deprived us of subject matter jurisdiction to consider his claim. Monsam v. Dearington, supra, 82 Conn. App. 455. The record establishes that subsequent judicial modification of the plaintiffs parental rights has expanded these rights so that they now include unsupervised visitation. The plaintiff, therefore, cannot obtain practical relief if we reverse the June 26, 2007 order from which he appeals. “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” (Internal quotation marks omitted.) Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 366, 957 A.2d 821 (2008). “When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot.” In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994).

Nevertheless, “[t]he mootness doctrine does not preclude a court from addressing an issue that is capable of repetition, yet evading review.” (Internal quotation marks omitted). Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 367, quoting Loisel v. Rowe, 233 Conn. 370, 378, 660 A.2d 323 (1995). “[F]or an otherwise moot question to qualify for review under the capable of repetition, yet evading review exception, it must meet three requirements. First, the challenged action, or the effect of the challenged action, by its very nature must be of a limited duration so that there is a strong likelihood that the substantial majority of cases raising a question about its validity will become moot before appellate litigation can be concluded. Second, there must be a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate. Third, the question must have some public importance. Unless all three requirements are met, the appeal must be dismissed as moot.” (Internal quotation marks omitted.) Dutkiewicz v. Dutkiewicz, supra, 367.

The facts in the record before us fail to satisfy the first requirement of this three part test. It is true that child custody and visitation orders are peculiarly subject to repeated modification with the changing circumstances of the parents’ lives, until they are mooted permanently when the children in question reach adulthood. See General Statutes § 46b-56 (court may modify visitation order “at any time” after return date for dissolution of marriage complaint). In the present case, appellate review of the plaintiffs constitutional claim was potentially mooted by each incremental expansion of his visitation rights. It is not clear, however, that court orders requiring supervised visitation are by their “very nature” of so limited a duration that a substantial majority of cases challenging their constitutionality will become moot before they can receive appellate review. Although continually subject to modification, such orders may remain in place a decade or more until the children reach the age of majority. We conclude, therefore, that, we do not have jurisdiction to address the merits of the plaintiffs constitutional claim, as later judicial orders that removed the supervision restriction on the plaintiffs visitation rights have made that claim moot.

m

DISABILITY

Finally, the plaintiff claims, as a matter of law, that the court violated his statutory rights under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., by conducting the hearings on the contempt and visitation motions without providing accommodation to his attention deficit disorder. Because we have vacated the contempt judgment, we need not consider the plaintiffs disability claim with respect to that proceeding. The question remains, however, whether the plaintiff is entitled to review of the visitation order on this ground. We conclude that he is not.

The plaintiff claims that the visitation order resulted from a biased judicial analysis of its merits. He maintains that the court “expressed its bias against his motion” for modification by not giving it “proper review,” and by failing to afford him extra time to respond to various unspecified motions. We decline to reach the merits of this claim for lack of a reviewable record.

The plaintiff does not state with clarity what accommodation his disability required the court to provide. He likewise has not provided us with a transcript from which we might determine whether he apprised the court of his disability, and, if so, how the court responded. Because the plaintiff, who, as the appellant, has the burden to provide this court with an adequate record, has failed to do so, we decline to review the merits of the plaintiffs claims. See Sabanovic v. Sabanovic, 108 Conn. App. 89, 92, 946 A.2d 1288 (2008); see also Practice Book § 61-10.

The judgment of contempt is vacated. The order modifying visitation is affirmed.

In this opinion the other judges concurred.

       See Kennedy v. Kennedy, 83 Conn. App. 106, 847 A.2d 1104, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004); Putman v. Kennedy, 273 Conn. 913, 870 A.2d 1080 (2005) (granting of certification following Appellate Court dismissal without opinion); Putman v. Kennedy, 273 Conn. 915, 870 A.2d 1083 (2005) (same); Kennedy v. Kennedy, 88 Conn. App. 442, 869 A.2d 1252, cert. denied, 275 Conn. 902, 882 A.2d 671 (2005); Kennedy v. Kennedy, 92 Conn. App. 902, 884 A.2d 23 (2005); Putman v. Kennedy, 279 Conn. 162, 900 A.2d 1256 (2006); Kennedy v. Putman, 97 Conn. App. 815, 905 A.2d 1280 (2006); Kennedy v. Kennedy, 282 Conn. 916, 924 A.2d 138 (2007) (denial of certification following Appellate Court dismissal without opinion); Putman v. Kennedy, 104 Conn. App. 20, 932 A.2d 439 (2007); Putman v. Kennedy, 104 Conn. App. 26, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008); Kennedy v. Kennedy, 284 Conn. 921, 933 A.2d 721 (2007) (denial of certification following Appellate Court dismissal without opinion); Kennedy v. Kennedy, 109 Conn. App. 591, 592 n.1, 952 A.2d 115 (2008).

       Because one of the children is no longer a minor, the visitation issues now concern only the parties’ two daughters.

       In an October 2, 2006 hearing on an earlier proceeding in this case, the plaintiff testified as follows:
      “The Court: What happened to your criminal case? Is that open?
      “[The Plaintiff]: Every case has been resolved. It has been dismissed or I have been acquitted.
      “The Court: So, the protective order is from this court . . .
      “[The Plaintiff]:—there is no protective order—there is no protective order in any court in the state. No restraining order, no criminal case, my record is clean.”

       We note that the plaintiff claimed, in his motion to reconsider, that the defendant’s counsel in the trial court, Susan Boyan, has “refused to communicate” with him about this case, either by mail or by telephone, and has “threaten[ed] him with trespassing and arrest if he attempts to drop off legal documents at her office . . . .” He also claims that two attorneys he retained to contact Boyan confirm that she “refuses to communicate or respond to issues in this case.” Although the memorandum of decision contains no findings as to these claims, and the court dismissed the plaintiffs motion to reconsider without comment, the defendant neither opposed the motion to reconsider, nor contested these allegations on appeal, despite having filed an appearance. Under our rules of practice, “[e]very material allegation in any pleading [that] is not denied by the adverse party shall be deemed to be admitted . . . .” Practice Book § 10-19. We cannot say, therefore, that the plaintiff was able to contact the defendant through her attorney.

       We note that the plaintiff does not seek to restore the original joint custody and shared parenting plan in the separation agreement that was incorporated into the order dissolving the parties’ marriage in 2002. In this appeal, he challenges only the court’s requirement that his visitation be supervised.

       Subsequent to the court’s two June 26, 2007 decisions that are directly at issue in this appeal, the court’s expansion of the plaintiff s visitation rights has included the following: On September 5, 2007, the court granted the plaintiff “unsupervised visits forthe first time in several years.” On November 15,2007, the court expanded the Wednesday visits and extended an unsupervised visit on the day after Christmas to eight hours. On January 11, 2008, the court granted the plaintiff an additional eight hour unsupervised visit with his daughters. Kennedy v. Kennedy, supra, 109 Conn. App. 597 n.10. Most recently, the court on February 26, 2008, continued the incremental expansion of the plaintiffs access to his children by removing Kidsafe as supervisor of the visits, and by adding one weekend per month to his visitation schedule. See Kennedy v. Kennedy, Superior Court, judicial district of Tolland, Docket No. FA-01-0075660-S (February 26, 2008).

       Although this court did not address the mootness exception in Kennedy v. Kennedy, 109 Conn. App. 599-600, that case was decided before our Supreme Court, in Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 370-71, clarified the applicability of the “capable of repetition but evading review” analysis to constitutional claims concerning fundamental parental rights.

       Even if the plaintiffs claim were not moot, it would founder substantively on a fundamental misconception of the scope of the case law on which it relies, chiefly Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), and Roth v. Weston, 259 Conn. 202, 789 A.2d 431 (2002). Those decisions recognized that “[t]he family entity is the core foundation of modem civilization. The constitutionally protected interest of parents to raise their children without interference undeniably warrants deference and, absent a powerful countervailing interest, protection of the greatest possible magnitude.” Roth v. Weston, supra, 228.
      As our Supreme Court explained in Dutkiewicz v. Dutkiewicz, supra, 289 Conn. 373, however, the fact that a governmental ruling impinges on a parent’s relationship to his children does not, without more, suffice to establish that the parent has suffered a constitutionally cognizable claim. The cases in which the United States Supreme Court or our Supreme Court have concluded that “government interference with a parent’s right to raise his or her child”; id.; violated parental due process rights have all done so in the context of governmental action that diminished the rights of parents at the instance of a state actor or of an individual who is a nonparent. Under such circumstances, the cases cited by the plaintiff hold that “a parent’s decision with respect to the care, custody and control of his or her child cannot be overridden by the state in the absence of a showing that the parent is unfit or that the parent’s decision will jeopardize the health or safety of the child, or will have a potential to impose significant social burdens.” (Emphasis added.) Id., 378.
      Those cases shed no light on custody disputes between parents because each parent has an equal and undiminished constitutional right to make reasoned decisions about the welfare of his or her minor children. Although constitutional rights to procedural due process apply to intrafamily legal disputes about custody and visitation, as they do to all litigation, the case law on which the plaintiff relies does not give him a greater substantive due process right to be with his daughters than the law affords to the defendant, their mother.

       We note, however, that the plaintiff has competently filed pro se motions for continuance and extensions of time over the course of this litigation. With respect to an earlier claim concerning his alleged attention deficit disorder, this court stated that “the plaintiff indicated that he should have been provided with an ‘interpreter’ at the hearing on his application, i.e., someone familiar with his disability who could have effectively communicated his position to the trial court. In essence, the plaintiff was describing the services of an attorney. The general rule is that court-appointed counsel is not available in civil proceedings. . . . We also note that the plaintiffs argument before this court, although not legally persuasive, was articulate.” (Citation omitted.) Kennedy v. Putman, 97 Conn. App. 815, 816 n.3, 905 A.2d 1280 (2006).


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MARQUETTE TOWNS
    (AC 28223)
    DiPentima, Harper and Hennessy, Js.

      Argued February 2
    officially released May 5, 2009

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Joseph R. LaMotta, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Marquette Towns, appeals from the judgment of conviction, rendered after a jury trial, of assault of an elderly person in the third degree in violation of General Statutes § 53a-61a (a) (1), attempt to commit larceny in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-123 (a) (3), and attempt to commit escape from custody in violation of General Statutes §§ 53a-49 (a) (2) and 53a-171 (a) (1). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of attempt to commit larceny in the second degree and assault of an elderly person in the third degree and (2) the trial court improperly instructed the jury on attempt to commit escape from custody. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of October 13, 2005, the victim got off a bus and headed to her home while carrying a Kohl’s department store shopping bag and her pocketbook. On the date of the incident, the victim was sixty-three years old. The defendant ran up behind the victim, grabbed her shoulders, spun her around and caused her to fall to her knees and elbows, which gave the victim a headache. The defendant ran a distance from the victim but then turned around to run toward the victim and “startled] to go down to grab . . . [the victim’s] bag or her purse.” An off-duty New Haven police officer, Hector Valentin, was driving by the scene during the incident. He testified that he made eye contact with the defendant, who then stood and walked away from the victim. Valentin identified himself as a police officer and told the defendant to stop. While Valentin was trying to secure the defendant, the defendant broke free and ran away. Meanwhile, the victim walked home and called 911. Police officers came to the area in response to the 911 call, joined Valentin in his search for the defendant and arrested the defendant for the felony of attempt to commit robbery, handcuffed the defendant and placed him in the back of one of the marked police cruisers. While the officers were transporting the defendant to the police station, the police car stopped at a traffic signal, and the defendant opened the back door of the police cruiser and started to exit the vehicle. The officers responded and pushed the defendant back into the car, but the defendant tried to kick the window out. The defendant was taken out of the vehicle and a transport wagon was called to take him to the police station.

The jury found the defendant guilty, and the court sentenced him to a total effective term of thirteen years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support his conviction of attempt to commit larceny in the second degree and assault of an elderly person in the third degree. Specifically, the defendant claims that the evidence was insufficient as to the assault charge to establish that he intended to injure the victim and as to attempt to commit larceny to prove that he intended to take the victim’s property. We do not agree.

“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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Owens, 100 Conn. App. 619, 635, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926 A.2d 668 (2007). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 801, 877 A.2d 739 (2005).

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 454, 939 A.2d 581 (2008), aff'd after remand, 113 Conn. App. 488, 966 A.2d 798 (2009). “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Internal quotation marks omitted.) State v. Davis, 68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518 (2002).

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. . . . This court has stated that [j]urors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion.” (Citation omitted; internal quotation marks omitted.) State v. Rose, 112 Conn. App. 324, 329-30, 963 A.2d 68, cert. granted on other grounds, 290 Conn. 920, 966 A.2d 238 (2009).

Having set forth the general principles that govern our review of the claim, we next consider the claim as it relates to each crime at issue.

A

We begin our analysis with a review of the relevant statutory provisions for assault of an elderly person in the third degree under § 53a-61a. The defendant was convicted of that crime because the jury found that he had “commitfed] assault in the third degree under section 53a-61 and . . . the victim of such assault ha[d] attained at least sixty years of age . . . .” General Statutes § 53a-61a. The cross-referenced statute, General Statutes § 53a-61, provides in relevant part that a person is guilty of assault in the third degree when “[w]ith intent to cause physical injury to another person, he causes such injury to such person . . . .” General Statutes § 53a-61 (a). General Statutes § 53a-3 (11) provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” General Statutes § 53a-3 (3) defines “physical injury” as “impairment of physical condition or pain . . . .”

The evidence in this case was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of assault of an elderly person in the third degree. The victim testified that she was sixty-three years old at the time of the incident and that falling to the ground caused her a severe headache. On the basis on their common knowledge, it was not unreasonable for the jurors to find that her headache was painful. See State v. Jimenez, 74 Conn. App. 195, 207, 810 A.2d 848 (2002) (jury not expected to set aside common knowledge and life experience). Further, from the testimony of both the victim and Valentin, the jury reasonably could infer intent to injure from the defendant’s running up behind the victim, grabbing the victim and causing her to fall. On the basis of the foregoing testimony, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant was guilty of assault of an elderly person in the third degree.

B

We next analyze the relevant statutes for attempt to commit larceny in the second degree. General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119, and ... (3) the property ... is taken from the person of another . . . .” General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner . . . .”

The evidence presented to the jury was sufficient to prove the elements of attempt to commit larceny in the second degree. The juiy reasonably could infer intent to deprive the victim of her property from the defendant’s having caused the victim to fall to the ground and then reaching toward her bag or purse. This reaching also reasonably could be inferred to have been a substantial step toward the defendant’s taking of the victim’s property. This evidence was sufficient to prove attempt to commit larceny in the second degree.

II

The defendant’s final claim is that the court improperly instructed the jury regarding the elements of the crime of attempt to escape from custody. Specifically, he argues that the court improperly omitted the requirement that the defendant knew he was in custody on a felony charge. The state argues that the plain language of § 53-171 and the case law do not require that the defendant know he is in custody for having committed a felony. We agree with the state.

“[I]in order to conclude that the jury acted in a fair manner, we must first conclude that a basic instruction was given that included an identification of each and every essential element for which the state has the burden of proof beyond a reasonable doubt. . . . Failure to charge on an essential element of a crime is a constitutional defect.” (Citations omitted.) State v. Laws, 37 Conn. App. 276, 287, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). To determine the essential elements of the crime of attempt to commit escape from custody, we must interpret the relevant statutes. “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Internal quotation marks omitted.) State v. Custer, 110 Conn. App. 836, 840, 956 A.2d 604 (2008).

General Statutes § 53a-171 (a) provides in relevant part that “[a] person is guilty of escape from custody if such person (1) escapes from custody . . . .” Subsection (b) adds a sentence enhancement for persons escaping when they are charged with or convicted of a felony: “If a person has been arrested for, charged with or convicted of a felony, escape from such custody is a class C felony, otherwise, escape from custody is a class A misdemeanor.” General Statutes § 53a-171 (b). Custody is defined by General Statutes § 53a-168 (2) as “restraint by a public servant pursuant to an arrest or court order . . . .” Specifically, “[t]he state’s burden of proof for a conviction of escape from custody was to prove that the defendant was in custody, that he escaped from that custody, that the custody was pursuant to an arrest, and, for purposes of classification as a class C felony rather than a class A misdemeanor, that the escape was the result of being arrested for, charged with, or convicted of, a felony.” State v. Laws, supra, 37 Conn. App. 285. As discussed in part I, “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” General Statutes § 53a-49 (a). The plain language of § 53a-171 is clear, and knowledge of being charged with a felony, rather than a misdemeanor, is not an. essential element. Therefore, the court properly instructed the jury when it did not add knowledge of a felony charge as an element of the crime.

The judgment is affirmed.

In this opinion the other judges concurred.


text:
    SUZANNE BARBER v. NELSON BARBER
    (AC 29853)
    Bishop, DiPentima and Peters, Js.
    Argued February 9
    officially released May 5, 2009

      Donald A. Mitchell, for the appellant (plaintiff).

      James Ryan Mulvey, for the appellee (defendant).
   Opinion

PETERS, J.

Although Connecticut generally permits a creditor to enforce a money judgment against any property of the adjudged debtor; see General Statutes § 52-3501; most family support judgments are exempt from this rule. See General Statutes § 52-350a (13). Accordingly, our Supreme Court has held that a family support judgment that is based on a stipulated agreement by the parties “is to be regarded and construed as a contract.” Barnard v. Barnard, 214 Conn. 99, 109, 570 A.2d 690 (1990). The dispositive issue in this case is whether the trial court properly relied on these governing principles in concluding that a former spouse may not enforce a judgment incorporating a stipulated agreement for child support without introducing evidence of the arrearage allegedly outstanding and unpaid. We affirm the judgment of the court.

On June 4, 2004, the plaintiff, Suzanne Barber, filed a two count complaint alleging that the defendant, her former husband, Nelson Barber, owed her in excess of $15,000 in unpaid child support and alimony pursuant to a stipulated separation agreement incorporated into the judgment that dissolved their marriage in 1992. The defendant filed two special defenses alleging that (1) he had paid all sums due under the agreement and (2) the plaintiffs acquiescence in the payments that he had made estopped her from claiming further support payments.

At trial, the plaintiff rested her case after placing into evidence the dissolution judgment and agreement. She offered no evidence to show that the defendant was in arrears. Pursuant to Practice Book § 15-8, the defendant moved to dismiss for failure to make out a prima facie case and then rested without offering further proof. The plaintiff appeals from the judgment of the court granting the defendant’s motion to dismiss.

The underlying facts are not in dispute. The parties’ marriage was dissolved on February 5,1992, by a decree that incorporated the parties’ agreement obligating the defendant periodically to make child support and alimony payments to the plaintiff until their minor child reached the age of majority. Although the parties disagree about whether the defendant has complied with his obligations under the agreement, that disagreement is not before us in this appeal.

The issue before us is whether, in light of applicable statutory and common-law principles, the court properly granted the defendant’s motion to dismiss. The court concluded, on two grounds, that the plaintiff could enforce her family support agreement in a contract action and not by way of an execution on a judgment. First, our legislature has expressly excluded family support judgments from the class of money judgments that may be enforced by execution. See General Statutes § 52-350a (7) and (13). Second, a stipulated family support judgment should be deemed to be a contract because it does not reflect a judicial determination of any litigated right. See Lind-Larsen v. Fleet National Bank of Connecticut, 84 Conn. App. 1, 17-18, 852 A.2d 799, cert. denied, 271 Conn. 940, 861 A.2d 514 (2004). Because “[t]he interpretation of pleadings is always a question of law for the court”; (internal quotation marks omitted) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985); the court’s conclusions are entitled to plenary review. See Young v. Vlahos, 103 Conn. App. 470, 476, 929 A.2d 362 (2007), cert. denied, 285 Conn. 913, 943 A.2d 474 (2008).

The plaintiff maintains that the court improperly concluded, as a matter of law, that she was required to make out a prima facie case for breach of contract because her first count sounded in common-law debt, which, she claims, carries a presumption of nonpayment. According to the plaintiff, the defendant’s allegedly unpaid support obligation became a money judgment enforceable by an action in debt solely by the passage of time and by her proof of the existence of the original agreement, notwithstanding either § 52-350a (13) or the lack of any finding of arrearage. We do not agree.

The plaintiffs argument runs counter to several decisions of our Supreme Court that squarely support the judgment of the trial court. It is well established that when an “agreement of the parties was ordered incorporated by reference into [a marital] dissolution decree ... [a] judgment rendered in accordance with such a stipulation of the parties is to be regarded and construed as a contract.” Barnard v. Barnard, supra, 214 Conn. 109. “A stipulated judgment is not a judicial determination of any litigated right. ... It may be defined as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. ... [It is] the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. . . . The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute or disputes at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement.” (Internal quotation marks omitted.) Reichenbach v. Kraska Enterprises, LLC, 105 Conn. App. 461, 475, 938 A.2d 1238 (2008).

To avoid the compelling force of these cases, which the plaintiffs brief does not address, the plaintiff contends that, rather than sounding in contract, the first count of her complaint sought to enforce her family support judgment by an action in debt. She maintains that she is entitled to pursue a remedy in debt because (1) a support obligation is imposed by law rather than by agreement, (2) the judgment is an obligation “in the nature of a debt,” (3) her dissolution judgment unconditionally established the amount of the defendant’s periodic obligation to make payments of alimony and child support as they accrued, and (4) those obligations, in fact, have now accrued.

The plaintiff acknowledges indirectly that this syllogism runs squarely into our legislature’s preclusion of execution as a permissible postjudgment remedy for the enforcement of family support judgments. See General Statutes § 52-350a (7) and (13). Her resolution of this serious obstacle to her pursuit of a remedy in debt is the bald assertion that the statutory prohibition should not be read “exclusively.” She hypothesizes that the statute would not preclude an action in debt to enforce a family support decree requiring a defendant unconditionally to pay a fixed sum of money as alimony but has cited no Connecticut case that has so held.

We cannot agree with the plaintiffs assumption that we have the authority to depart from the plain meaning of a remedial statute to engraft onto its text an exclusion for which there is no textual support, either in the statute itself or in other related statutes concerning the same subject matter. See General Statutes § l-2z. Presumably, the legislature decided that because family support judgments are more often subject to modification than commercial judgments, this warranted the enactment of different rules for their enforcement. Whatever its motivation, the legislature had the authority to determine that not all judgments would be equally enforceable by execution and, inferentially, by an action for debt.

The court properly applied the statutory and case law that governs this case. Because the plaintiff was not entitled to enforce her stipulated family support judgment through an action in debt, the court properly treated her cause of action as one for breach of contract. Her pleadings, however, were insufficient to establish a prima facie case on that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-350f provides in relevant part: “A money judgment may be enforced against any property of the judgment debtor unless the property is exempt from application to the satisfaction of the judgment under . . . any other provision of the general statutes or federal law. . . .”

       General Statutes § 52-350a (13) provides in relevant part: “ ‘Money judgment’ means a judgment, order or decree of the court calling in whole or in part for the payment of a sum of money, other than a family support judgment. Money judgment includes ... in IV-D cases, overdue support in the amount of five hundred dollars or more accruing after the entry of an initial family support judgment.” The term “IV-D” refers to child support enforcement through the department of social services, pursuant to title IVD of the federal Social Security Act. See General Statutes § 46b-231 (b) (12); see also Torres v. Kunze, 106 Conn. App. 802, 805 n.3, 945 A.2d 472 (2008).

       The first count alleged that the defendant had failed and neglected to pay sums due under a judgment, while the second count alleged that the defendant had failed and neglected to pay sums due under a written agreement between the parties.

       The plaintiff does not dispute the court’s conclusion that, if both counts of her complaint must be construed as contract actions, she bore the burden of establishing a prima facie case.

       The only Connecticut case cited by the plaintiff is one involving the payment of workers’ compensation benefits. The plaintiffs citation of out-of-state cases is unpersuasive without a showing that the relevant statutory law in those jurisdictions contained provisions similar to those enacted by our legislature.

       General Statutes § l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”


author: GRUENDEL, J.

text:
    CRYSTAL M. SHAH v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 26998)
    Gruendel, Beach and Peters, Js.
    Submitted on briefs February 6
    officially released May 5, 2009

      Richard Blumenthal, attorney general, and Laurie Adler and William J. McCullough, assistant attorneys general, filed a brief for the appellant (named defendant).

      Susan Nofi-Bendici, principal attorney, filed a brief for the appellant (intervening defendant employment security board of review).
   Opinion

GRUENDEL, J.

The defendant administrator of the Unemployment Compensation Act appeals from the judgment of the Superior Court sustaining the plaintiffs appeal from the determination by the employment security board of review (board) denying the plaintiff, Crystal M. Shah, unemployment compensation benefits. On appeal, the defendant claims that the court improperly concluded that the plaintiff complied with the requirements of Practice Book § 22-4. We agree and, accordingly, reverse the judgment of the Superior Court.

On January 5, 2004, the plaintiff resigned from her employment as a file clerk with the Connecticut Conference of Municipalities (employer). Her resignation letter stated in relevant part that “[d]ue to a condition in my neck called Lipona, it is becoming increasingly difficult for me to meet the physical demands (mail matching, file straightening, etc.) of the file room. At this time, I wish to pursue a job utilizing my computer skills full time.” The plaintiff thereafter filed a claim for unemployment compensation benefits, which the defendant approved. From that determination, the employer timely appealed. Following a hearing at which the plaintiff testified and submitted evidence, the appeals referee reversed the determination of the defendant, concluding that the plaintiff was disqualified from receiving benefits. Specifically, the referee found that the plaintiff had not informed the employer of her medical restrictions prior to resigning, thereby failing to adequately explore alternatives to resignation. In addition, the referee credited the testimony of the employer’s human resource manager that “after receiving the [plaintiffs] resignation letter indicating medical reasons, she offered the [plaintiff] accommodations in order to remain employed and the [plaintiff] refused.”

The plaintiff appealed from that decision to the board on April 19, 2004. She described her reason for appeal as follows: “I do not agree with the [r]eferee’s decision because the employer succeeded in confusing the referee through lies and manipulation of the facts during the hearing.” The plaintiff further requested the “chance to exercise my rights to seek legal advice in this case and to request access to my employee file ... in search of more evidence.” In addition, she submitted a written argument to the board, alleging factual similarity between her case and a published decision of the board. By decision dated June 2, 2004, the board denied the plaintiffs request for an evidentiary hearing “because she has failed to show, pursuant to § 31-237g-40 of the Regulations of Connecticut State Agencies, that the ends of justice require that the board receive additional evidence or testimony in order to adjudicate the appeal.” The board further affirmed the decision of the referee: “[W]e find that the [plaintiffs] leaving her job was premature and that she could have explored alternatives to preserve her employment. We thus conclude that the [plaintiff] left her job without good cause attributable to the employer pursuant to General Statutes § 31-236 (a) (2) (A). The parties have not offered any argument in support of or in opposition to the appeal that would disturb the referee’s findings of fact. We further find that the findings are supported by the record, and that the conclusion reached by the referee is consistent with those findings and the provisions of the Connecticut Unemployment Compensation Act [General Statutes § 31-222 et seq.]. Accordingly, we adopt the referee’s findings of fact and decision as modified in this section. We specifically add the following finding of fact: ‘Where positions become available, the employer generally promotes its employees from within. The [plaintiff] could have applied for work in the employer’s clerical department for positions including receptionist [and] word processor .... The week that the [plaintiff] left her job, the employer promoted one of her coworkers in the clerical department.’ ” On June 8, 2004, the plaintiff filed a motion to open the decision of the board on the ground of new evidence. The board denied that motion on August 27, 2004, finding that the allegedly new evidence was discoverable at the time of the referee’s hearing and was not likely to alter the outcome of the case.

The plaintiff appealed from the board’s decision to the Superior Court on August 30, 2004. The court conducted a hearing on the matter on June 24, 2005, at which it heard argument from the plaintiff and the board. In its September 21, 2005 memorandum of decision, the court acknowledged that Practice Book § 22-4 required the plaintiff to file a motion to correct findings as a condition precedent to her challenge to the board’s findings before the Superior Court. At the same time, the court emphasized that the plaintiff was appearing pro se. In addition, the court invoked Practice Book § 1-8, which provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.” In light of the plaintiffs pro se status, the court concluded that “the ends of justice will be met by treating [the plaintiffs motion to open] as a motion to correct the findings.” The court thus sustained the plaintiffs appeal and remanded the matter to the board with instruction “to grant the motion to open and to allow the plaintiff a reasonable time within which to obtain an attorney as well as access to her personnel file, prior to a de novo hearing.” This appeal followed.

The defendant claims that the court improperly concluded that the plaintiff complied with the requirements of Practice Book § 22-4 by filing her June 8,2004 motion to open the decision of the board. Our review of the court’s interpretation of a rule of practice is plenary. Travelers Property & Casualty Co. v. Christie, 99 Conn. App. 747, 757, 916 A.2d 114 (2007).

Our analysis begins with the seminal case of Calnan v. Administrator, Unemployment Compensation Act, 43 Conn. App. 779, 686 A.2d 134 (1996), in which this court addressed noncompliance with the rule of practice now at issue. The court explained that “appeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by General Statutes § 31-249b. Section 31-249b specifically provides that any finding of the board ‘shall be subject to correction only to the extent provided by section 519 [now § 22-9] of the Connecticut Practice Book. . . Practice Book § 519 (a) specifies that the trial court ‘does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. . . .’ Practice Book § 515A [now § 22-4] provides the mechanism for the correction of the board’s findings. If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.” Calnan v. Administrator, Unemployment Compensation Act, supra, 783-84. The court held that the timely filing of a motion for correction is “a necessary prerequisite to a challenge to the board’s decision.” Id., 785. Because the plaintiff failed to comply with that prerequisite, she could not challenge the board’s findings on appeal to the Superior Court. Id.

Our Supreme Court ratified that precedent in JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, 265 Conn. 413, 422, 828 A.2d 609 (2003), concluding that a plaintiffs “failure to file a timely motion for correction of the board’s findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board.” See also Guerrera v. W. J. Megin, Inc., 130 Conn. 423, 425, 34 A.2d 873 (1943). Likewise, this court has relied on Cal-nan in concluding that the plaintiffs failure to file a timely motion for correction was determinative of the appeal. Reeder v. Administrator, Unemployment Compensation Act, 88 Conn. App. 556, 558, 869 A.2d 1288, cert. denied, 275 Conn. 918, 883 A.2d 1245 (2005); Chavez v. Administrator, Unemployment Compensation Act, 44 Conn. App. 105, 106-107, 686 A.2d 1014 (1997). It is undisputed that the plaintiff did not file a motion for correction of the board’s findings in the present case.

The allegations raised by the plaintiff in her appeal to the Superior Court pertain solely to the board’s factual findings. In its memorandum of decision, the court characterized the issues presented as follows: “[The plaintiff] cites three reasons as the basis for her appeal. First, [she] alleges that the board did not understand the nature of her job requirements. . . . [Her] second reason for appealing ... is that she believes that her employer provided false and misleading information to the board and she ‘would like a credibility determination on her employer. ’ As the third reason for the appeal, [the plaintiff] states that she has ‘evidence that the board may have biased and prejudiced beliefs about the type of work . . .’ that she performs.” Because those allegations concern the findings of the board, they are not subject to further review absent a timely motion for correction pursuant to Practice Book § 22-4. The court thus lacked authority to consider the plaintiffs challenge to the board’s findings.

Although we are mindful of our policy to be solicitous of pro se litigants; see, e.g., Shobeiri v. Richards, 104 Conn. App. 293, 296, 933 A.2d 728 (2007); “such policy is applicable only when it does not interfere with the rights of other parties. Although our courts allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.” (Internal quotation marks omitted.) Mercer v. Cosley, 110 Conn. App. 283, 294 n.9, 955 A.2d 550 (2008). As this court recently noted, “[f] or justice to be done . . . any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 107 Conn. App. 507, 513, 946 A.2d 252, cert. denied, 289 Conn. 902, 957 A.2d 870 (2008). Significantly, this court repeatedly has held that a pro se litigant’s failure to file a motion for correction precludes further review of the board’s findings by the Superior Court. Reeder v. Administrator, Unemployment Compensation Act, supra, 88 Conn. App. 558; Calnan v. Administrator, Unemployment Compensation Act, supra, 43 Conn. App. 785. The record reveals that the plaintiff never alleged that her motion to open constituted compliance with Practice Book § 22-4; rather, that novel proposition first surfaced in the court’s September 21, 2005 memorandum of decision. As a result, the defendant was deprived of notice and an opportunity to be heard on that issue.

In attempting to accommodate the plaintiffs pro se status, the court disregarded binding precedent and the mandate of our rules of practice. This case is controlled by JSF Promotions, Inc. v. Administrator, Unemployment Compensation Act, supra, 265 Conn. 413, and Calnan v. Administrator, Unemployment Compensation Act, supra, 43 Conn. App. 779. Because the plaintiff failed to file a motion for correction as required by Practice Book § 22-4, further review of her appeal is precluded.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       Although the plaintiff, Crystal M. Shah, filed a pro se appearance in this appeal, she has not filed an appellate brief.

       The plaintiffs employer, the Connecticut Conference of Municipalities, was a defendant at trial but is not involved in this appeal. We refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       The defendant also claims that the court (1) improperly permitted the introduction of evidence outside of the administrative record, (2) exceeded the scope of the issues raised by the plaintiff in reviewing, sua sponte, the board’s denial of the plaintiffs motions to open and for an evidentiary hearing and (3) improperly reversed the decision of the board denying the motion to open. We do not address those issues in light of our resolution of the defendant’s principal claim.

        In addition, we note that subsequent to the commencement of this appeal, the board filed a motion to intervene pursuant to General Statutes § 31-249c, which this court granted. The board concurs with the defendant’s contention that the court wrongly determined that the plaintiff had complied with Practice Book § 22-4.

         Practice Book § 22-4 provides in relevant part that “[i]f the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding . . . .”


author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. JOSEPH MARSHALL
    (AC 28068)
    Flynn, C. J., and McLachlan and Pellegrino, Js.

      Argued January 22
    officially released May 5, 2009

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

      James A. Killen, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Michael A. DeJoseph, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Joseph Marshall, appeals from the judgment of conviction, rendered after a jury trial, of possession of one-half gram or more of cocaine in freebase form with intent to sell or dispense by a person who is not drug-dependent in violation of General Statutes § 21a-278 (a) and possession of narcotics with intent to sell or dispense within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the court improperly (1) admitted evidence of his prior uncharged misconduct, (2) permitted the state to elicit evidence regarding the possession by the police of a search warrant for the defendant’s person and (3) denied defense counsel’s motion to withdraw. We affirm the judgment of the trial court. We conclude that evidence of the prior controlled purchase of narcotics from the defendant in the same car became relevant when he introduced evidence that he did not own the car in question. We further conclude that evidence of the fact that the police possessed a warrant to search the defendant’s person was relevant to explain the context of why the police were at the scene, and the court’s limiting instruction minimized the risk of undue prejudice to the defendant. Finally, the court did not abuse its discretion in denying defense counsel’s motion to withdraw, occasioned by the defendant’s grievance against the attorney and made on the brink of the defendant’s first trial, which ended in a mistrial. Furthermore, the defendant can show no harm because almost two months elapsed between his first and second trials, but the defendant did not move to obtain new counsel.

The record reveals the following facts, which the jury reasonably could have found. On April 7, 2004, Norwalk police officers sought to execute a search warrant that they had obtained for the defendant’s person. The officers employed a confidential informant with whom they were working to contact the defendant by telephone and to arrange for a purchase of narcotics. The informant set up the purchase to occur at the West Cedar Grocery Store, located at 155 West Cedar Street, which is within 1500 feet of the Colonial Village public housing project. When the call concluded, Officer Terrence Blake, who was with the informant, contacted Officer Salvatore Calise and Detective Mark Lepore, who were surveilling a house on North Taylor Street where they believed the defendant to be, to inform them of the arranged purchase. Shortly thereafter, Calise and Lepore observed the defendant and Samuel Branch leave the house in a black Saturn, with the defendant driving and Branch in the passenger seat. The officers followed the vehicle until it arrived at the West Cedar Grocery Store.

When the defendant parked his vehicle, the officers immediately drove in behind him, blocking his path. Calise observed the defendant “[dip] down to the right into the center console” of the car. Calise then removed the defendant from the vehicle and performed a pat-down search, which revealed no weapons. Blake removed Branch and similarly patted him down, again finding no weapons. Officer Mark Edwards, having been informed by Calise of the defendant’s movements within the car, noticed that the car’s change holder, which was located in the car’s center console, was not flush with the console’s surface. Removing the change holder, Edwards found a plastic bag containing 107 smaller plastic bags, each holding an amount of cocaine in freebase form.

After being provided Miranda warnings by Sergeant Ronald Pine, the defendant admitted ownership of the narcotics and further stated that Branch had had no knowledge of them. In addition to Pine, to whom the defendant made this admission, Blake and Lepore also heard the defendant state that the narcotics were his.

The defendant was arrested and later charged with possession of one-half gram or more of cocaine in freebase form with intent to sell or dispense by a person who is not drug-dependent and possession of narcotics with intent to sell or dispense within 1500 feet of a public housing project. A jury trial was commenced in November, 2005, before the court, Tyma, J. The trial resulted in a hung jury and a mistrial. The defendant was retried to a jury on the same charges before the court, Dooley, J., in January, 2006. The jury returned a guilty verdict on both charges, and the court thereafter sentenced the defendant to a total effective term of ten years incarceration, to be followed by six years of special parole. This appeal followed. Additional facts will be supplied where necessary.

I

The defendant first claims that Judge Dooley improperly allowed the state to present evidence of the defedant’s prior uncharged misconduct. Specifically, the defendant argues that the prejudicial impact of the evidence regarding a controlled purchase of narcotics from him by police that occurred prior to April 7, 2004, outweighed its probative value and should have been excluded.

The following additional facts relate to the defendant’s claim. Prior to the start of evidence in the first trial, the state filed a notice of its intention to offer evidence of uncharged misconduct of the defendant. The state sought to offer evidence that the defendant sold cocaine to a confidential informant during controlled purchases on three separate occasions in March, 2004, arguing that such evidence was admissible to establish the intent, common plan or scheme, system of criminal activity or an element of the crime charged pursuant to § 4-5 (b) of the Connecticut Code of Evidence. The defendant objected, arguing that the danger of unfair prejudice outweighed the probative value of the evidence. Judge Tyma agreed with the defendant and sustained his objection, noting in particular the likelihood of prejudice due to the similarity of facts between the offered prior misconduct evidence and the conduct charged in the information.

At the start of the defendant’s second trial, Judge Dooley indicated that she would not revisit Judge Tyma’s previous evidentiary rulings, including that concerning the admissibility of the uncharged misconduct evidence. On direct examination by the state, Blake testified that the vehicle driven by the defendant on April 7, 2004, was a black Saturn. The state then elicited the following testimony from Blake concerning the defendant’s statements while in custody:

“[The Prosecutor]: Did you overhear any conversations between Sergeant Pine and the defendant at the scene at 155 West Cedar Street?

“[The Witness]: I did.

“[The Prosecutor]: Did you hear the defendant say anything to Sergeant Pine?

“[The Witness]: I heard the defendant state that the narcotics that we located were his.

“[The Prosecutor]: And did he state what Mr. Branch was doing in his car?

“[The Witness]: He was just giving Mr. Branch a ride and that Mr. Branch had no knowledge of the narcotics in the car.”

A portion of defense counsel’s subsequent cross-examination of Blake focused on the black Saturn referenced by Blake earlier in his testimony:

“[Defense Counsel]: This vehicle, do you know who the owner of that vehicle was, the black Saturn?

“[The Witness]: Registered to, yes.

“[Defense Counsel]: And who was that?

“[The Witness]: A Diane Jameson.

“[Defense Counsel]: And it was—the vehicle was not owned by [the defendant], was it?

“[The Witness]: It was not registered in his name, no.

“[Defense Counsel]: Well, generally isn’t a vehicle that’s registered to someone presumed to be owned by that person?

“[The Witness]: Yes.

“[Defense Counsel]: All right. And this black Saturn, was that vehicle seized by you or anyone else in the Norwalk police department on April 7, 2004?

“[The Witness]: No.

“[Defense Counsel]: And if you know, what did happen with the vehicle that day?

“[The Witness]: The vehicle was turned over to a female that claimed to be [the defendant’s] girlfriend.

“[Defense Counsel]: Do you know who that female was?

“[The Witness]: I believe her name is Rose Cruz.

“[Defense Counsel]: Okay. Now, who turned that vehicle over to Ms. Cruz, if you know?

“[The Witness]: I believe I gave the keys back to her as per [the defendant’s] request.

“[Defense Counsel]: All right. Where was Ms. Jame-son, this Diane Jameson? Was she there?

“[The Witness]: No, not that I recollect.”

When defense counsel concluded his cross-examination of Blake, the prosecutor, outside the presence of the jury, moved to admit evidence that the defendant had used the black Saturn in question on March 20, 2004, during one of the previous controlled purchases. The prosecutor argued that defense counsel had opened the door to such previously excluded evidence by eliciting testimony concerning ownership of the black Saturn, specifically, the fact that the defendant was not the owner. The defendant’s line of questioning and Blake’s responses thereto, the prosecutor contended, could lead the jury to infer that because the defendant did not own the car, he had no knowledge of the narcotics found in the vehicle’s console. The defendant disagreed that the door had been opened, noting that there was no dispute over the fact that the defendant drove the black Saturn on April 7,2004, or with the fact that the vehicle belonged to someone other than the defendant.

The court ruled that it would permit testimony concerning the March 20, 2004 controlled purchase but would not allow testimony about the two other purchases, during which the defendant had used different vehicles. On redirect examination, Blake testified about the details of the March 20, 2004 controlled purchase of narcotics. Pine also testified as to the previous transaction and the defendant’s use of a black Saturn. In its charge to the jury, the court instructed that the evidence of the March 20, 2004 purchase was to be considered only as evidence of the defendant’s intent to sell or dispense narcotics and his knowledge of such narcotics on April 7, 2004.

We begin our analysis of the defendant’s claims with the well known standard of review governing evidentiary matters. “Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005). We also observe that evidence may become relevant when placed against the matrix of other evidence that has been admitted. We further note that motions in limine cannot always anticipate that evidentiary matrix because trials are fluid and do not follow a script.

Prior to his first trial before Judge Tyma, the defendant successfully moved in limine to keep the evidence of three controlled narcotics purchases from being introduced because their probative value was outweighed by their potentially prejudicial effect on the jury. At his second trial before Judge Dooley, the court admitted evidence of only one incident on the theory that the defendant had “opened the door” to this inquiry and offer of evidence. On appeal, the defendant claims that the court improperly admitted this evidence on the ground that the door to it had been opened in cross-examination and that in any event, its prejudicial effect outweighed any probative value and, therefore, militated against its admission.

Cross-examination of Blake by defense counsel had raised questions about the ownership of the black Saturn in which the defendant was said to have possessed narcotics and had brought out that the vehicle was not owned by the defendant. The court ruled that by raising questions about the ownership of the vehicle in which the narcotics were found, in a case in which the state would be required to prove dominion and control over the narcotics beyond a reasonable doubt, evidence that the defendant had used the same black Saturn to sell drugs to an undercover agent on a prior occasion was probative on an issue raised by the cross-examination. The court excluded evidence of two prior sales to agents in which the defendant had used cars different from the one used in the crime charged.

The crime of possession of narcotics with intent to sell requires that the state establish beyond a reasonable doubt that the defendant possessed a substance that was of a narcotic character with knowledge both of its narcotic character and the fact that he possessed it. See State v. Gooden, 89 Conn. App. 307, 315, 873 A.2d 243, cert. denied, 275 Conn. 918, 919, 883 A.2d 1249 (2005). Had the defendant owned the vehicle, it would tend to prove that he exercised dominion or control over the narcotics within it. The defendant’s cross-examination, bringing out the fact that he did not own the vehicle in which the narcotics were found, raised doubt about whether he possessed the narcotics because of the lack of dominion or control over the vehicle. However, evidence that he previously had sold narcotics from the same vehicle to an undercover agent was relevant to dispel that doubt about a necessary element of the crime and to show knowledge on the part of the defendant and a system of criminal activity. See Conn. Code Evid. § 4-5 (b). Like Judge Tyma, Judge Dooley recognized that the evidence of past narcotics sales had a potentially prejudicial aspect. She excluded evidence of two of these sales that were conducted from different cars. She admitted evidence of the prior sale from the black Saturn only after the defendant offered evidence that it was owned by another person.

Finally, when a ruling on evidence is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. State v. Sawyer, 279 Conn. 331, 352, 904 A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418, 455 n.23, 953 A.2d 45 (2008) (en banc). The evidence in the case also showed that the defendant had admitted in the presence of others that the narcotics were his. Evidence that he previously had dominion and control of narcotics that he sold from the same car was probative. We fail to see how the defendant could demonstrate harm from the admission of that evidence that reasonably affected the verdict in the case when he had admitted the contraband was his, and conclude that this claim has no merit.

II

We next turn to the defendant’s second claim, namely, that the court improperly permitted the state to elicit evidence that the police were in possession of a search and seizure warrant for the person of the defendant at the time they arrested him. As this claim challenges an evidentiary ruling, similar to the defendant’s first claim, we review the court’s decision under the abuse of discretion standard. See State v. Smith, supra, 275 Conn. 219.

Prior to the start of evidence in the second trial, the state notified the court of its intention to offer evidence that the police were executing a search warrant on April 7, 2004, when they arrested the defendant. The defendant moved to exclude the evidence, arguing that its potential prejudicial effect on the jury, in that it would lead the jury to speculate that he had done something wrong, outweighed its potential probative value. In opposition to the defendant’s motion, the state contended that the existence of the warrant put the police officers’ actions on April 7, 2004, into the proper context, explaining why they were at the location where the defendant was arrested and why the defendant was searched.

The court denied the defendant’s motion. It noted that testimony regarding the existence of the warrant was proper to place the police conduct into context. The court also stated its belief that the testimony to be elicited by the state would not include information pertaining to the circumstances under which the search warrant was obtained. Furthermore, the court stated that without evidence of the warrant, the jury could be left to speculate about the police officer’s actions. The state elicited testimony from Blake, Calise, Edwards, Lepore and Pine to the effect that on April 7, 2004, the officers were involved in an operation to execute a warrant to search the defendant’s person. Following the conclusion of evidence, the court included a limiting instruction in its charge to the jury, instructing that the evidence of the search warrant was relevant only as to the context of the police investigation and that the jury was not to speculate as to the circumstances preceding the execution of the warrant.

We conclude that the court did not abuse its discretion by determining that the evidence regarding the possession of a search warrant by the police prior to April 7, 2004, and the fact that, at the time of the events in question, they were executing that warrant, was not more prejudicial than probative under the circumstances of this case. Admission of this evidence provided the jury the proper context for the actions taken by the police officers. Without such evidence, there would have been a danger that the jury would speculate on the underlying reasons for the officers’ actions. Further, the testimony was limited to the bare facts that a warrant existed and that the officers were attempting to execute the warrant when they stopped and searched the defendant.

Finally, the court provided a limiting instruction, guiding the jury in the proper use of the evidence. In so doing, the court took appropriate action to minimize any potential that the evidence of the search warrant would prejudice the defendant. Without clear evidence to the contraiy, we presume that the jury followed the court’s instruction. State v. Wallace, 290 Conn. 261, 276, 962 A.2d 781 (2009). The defendant presents no evidence that the jury failed to follow the court’s instructions, and we have found none. We therefore conclude that the court did not abuse its discretion in allowing evidence of the search warrant to be presented to the jury.

Ill

The defendant’s final claim is that the court improperly denied his trial counsel’s motion to withdraw before the first trial commenced. Specifically, the defendant claims that when his trial counsel, attorney William A. Pelletreau, met with him while he was incarcerated prior to trial, he refused to cooperate with Pelletreau and informed him that he had filed a grievance against him and also complained about him to the National Association for the Advancement of Colored People. This prompted Pelletreau to file a motion to withdraw.

Following a hearing during which the court heard from the defendant, Pelletreau and the prosecutor, the court denied the motion to withdraw. The court held that the defendant had failed to show with any specificity any deficiencies on the part of his attorney in terms of trial preparation, strategy or other trial handling, or that he had suffered any prejudice. Citing our Supreme Court’s decision in State v. Vega, 259 Conn. 374, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002), the court concluded that the mere filing of a grievance against trial counsel in and of itself is insufficient to establish a violation of the sixth amendment right to counsel, that the inquiry had shown no prejudice and that the defendant had not shown that the nature of the representation had been affected. Pelletreau continued to represent the defendant at the first trial. His representation created enough reasonable doubt that the jury could not agree on the defendant’s guilt. A mistrial was declared after the jury was unable to agree on a verdict. Ultimately, the defendant was retried before Judge Dooley almost two months later and convicted.

On appeal, we review a court’s decision regarding a motion to withdraw as counsel under the abuse of discretion standard. See State v. Fernandez, 254 Conn. 637, 647, 758 A.2d 842 (2000), cert. denied, 532 U.S. 913, 121 S. Ct. 1247, 149 L. Ed. 2d 153 (2001). We conclude that the defendant has failed to meet his burden to show that the court abused its discretion. First, the defendant was accorded a full hearing on the record before Judge Tyma, who took into account the nature of the defendant’s grievance and properly considered that the defendant’s dissatisfaction was expressed on the eve of trial, despite the fact that he had been represented by the same attorney for almost one year, permitting an inference that the objections were being interposed for the sake of delay. The defendant’s complaints were generalized and lacked the particularity necessary to establish that Pelletreau could not function effectively, which would have justified delaying the trial to permit another attorney to be retained and to prepare the case. The court listened to both the defendant and Pelletreau.

Second, we agree with the state that it is significant that the defendant chose to retain the services of Pelletreau throughout the course of both trials and during the course of almost two months between the declaration of a mistrial after the hung jury in the first trial and the beginning of evidence in the retrial. We see no prejudice that can be shown by the denial of Pelletreau’s motion to withdraw because a new trial was held and the defendant made no change in his privately retained defense counsel, Pelletreau, from the first trial before Judge Tyma, to the second trial before Judge Dooley. In short, the defendant appeals from the judgment of conviction following the second trial, and the record is devoid of anything that would indicate that he sought to obtain new counsel during the hiatus of several weeks between the first and second trial or that his counsel could not function effectively.

The judgment is affirmed.

In this opinion the other judges concurred.

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

         Section 4-5 of the Connecticut Code of Evidence provides in relevant part: “(a) Evidence of other crimes, wrongs or acts inadmissible to prove character. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.
      “(b) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . . ."

       The relevant portion of the court’s instruction was as follows: “The state has offered evidence of prior acts by the defendant which allegedly occurred on March 20, 2004. This evidence offered by the state of prior acts of misconduct of the defendant is not being admitted to prove the bad character of the defendant or the defendant’s tendency to commit criminal acts. This evidence is being admitted solely to show or establish the existence of the defendant’s intent to sell or dispense, as well as the defendant’s knowledge regarding the possession of the alleged narcotics on April 7, 2004, both of which are necessary elements of the crimes charged.
      “You may not consider such evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. You may consider such evidence if you believe it and further find [that] it logically, rationally and conclusively supports the issues for which it is being offered by the state, but only as it may bear here on the issues of intent and knowledge.
      “On the other hand, if you do not believe such evidence, or even if you do, if you find that it doesn’t logically, rationally and conclusively assist on the issues of either knowledge or intent, you may not consider that testimony for any purpose. In sum, you may consider this evidence only on the issues of knowledge and intent and for no other purpose.”

       The court instructed the jury, in relevant part, as follows: “Now, the state has introduced evidence that the police executed a search warrant. The fact that a search warrant was executed was offered to explain the context in which the investigation unfolded. You are not to speculate as to the events or circumstances leading up to the execution of the search warrant, as this is not before you.”