author: ROBINSON, J.

text:
    CHRISTINE SCHADE v. EDGAR W. SCHADE
    (AC 28543)
    DiPentima, Robinson and Peters, Js.
    Argued April 17
    officially released September 2, 2008

      Julia B. Morris, for the appellant (defendant).

      Philip K. Meister, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendant, Edgar W. Schade, appeals from the judgment of the trial court rendered on his motion for modification of alimony. On appeal, the defendant claims that the court improperly failed to reduce the alimony award on the basis of a substantial change in circumstances. We disagree and, accordingly, affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion. The defendant and the plaintiff, Christine Schade, were married on September 25,1982. The court rendered a dissolution of the parties’ marriage on June 22, 2004. The court incorporated the terms of a separation agreement, signed by the parties, into its judgment. The eighteen page agreement provided, inter alia, that the defendant would pay the plaintiff alimony in the amount of $120,000 per year at the rate of $2308 per week. This obligation would begin at the time the marital home was sold and continue for a period of twelve years. Alimony was nonmodifiable as to duration, but the amount was subject to modification. The settlement agreement specifically provided that “[t]he amount of alimony paid to the [plaintiff] is based on the [defendant’s] gross earnings of [$325,000] per year as reflected on his current financial affidavit at the time of dissolution.”

At the time of the dissolution, the defendant was a cofounder, shareholder, vice president and employee of the Stone Insurance Agency. In July, 2005, the president of the Stone Insurance Agency, Donald Rittman, learned of potential problems with some financing agreements. Rittman hired attorney David Ryan to investigate the possibility of fraud in certain financing agreements and insurance contracts involving the defendant. In early August, 2005, Rittman placed the defendant on paid leave. The defendant met with Rittman and Ryan on two subsequent occasions and acknowledged “inaccuracies in the listing of insurance companies and premiums in the referenced documents” that the defendant had signed. On September 9, 2005, Rittman discharged the defendant from his employment.

The plaintiff received alimony payments from September, 2005, until November, 2005. On November 18, 2005, the defendant filed a motion to modify alimony, alleging a substantial change of circumstances. Specifically, he claimed that he had not received a severance package or any income since the date of his discharge. He also indicated that he was subject to a noncompete clause that would hinder his ability to obtain comparable employment. On November 22, 2005, the parties entered into a written agreement, approved by the court, which provided, in part, that three alimony payments would be paid to the plaintiff from an escrow account.

On December 20, 2005, the plaintiff filed a motion for contempt, alleging that the defendant had failed to make alimony payments and was in arrears for the past four weeks. In February, 2006, the plaintiff filed a motion for modification, seeking, inter alia, child support payments. The basis for this request was the defendant’s failure to pay alimony as ordered. She also filed a motion for contempt and claimed that the defendant’s arrearage was eleven weeks and totaled $25,377.

Following an evidentiary hearing concerning the issues raised by the parties’ motions, the court issued a memorandum of decision on August 11, 2006. The court observed that the defendant’s talents and efforts appeared to have been a significant factor in the success of the Stone Insurance Agency. The court specifically found that “[t]here was only one reason for the change in the employment status of [the defendant]—his own actions in making inaccurate representations in financing agreements. . . . His very own affirmative actions placed him in that situation. ” It noted that the defendant had spoken to people in the insurance trade and to former clients of the Stone Insurance Agency and attended industry conventions. In late February, 2006, the defendant began a consulting position with a Massachusetts entity known as the Lighthouse Insurance Agency, earning $50,000 per year.

The court found that the defendant was licensed to sell various forms of insurance and could have regained his securities license but had not made any effort to do so. It also found that the defendant had not met with any employment recruiters, despite his talent and experience. The court further found that the defendant had not made any effort to obtain a release of the noncompete agreement.

The court determined that the defendant had not made any alimony payments to the plaintiff since mid-November, 2005. He had maintained, however, all of his other personal expenses, including $65,000 in attorney’s fees. He had purchased a gift of diamond earrings for his girlfriend and a $16,000 automobile for his daughter. The court found that “despite his assertion of being unable to keep up his alimony payments, he was looking into buying a more expensive home for himself.”

The court found that the defendant’s earning capacity was far in excess of his present earnings and that he did not pursue any of the considerable potential avenues to remedy his financial situation. It observed that the defendant intentionally was causing a financially stressful situation for the plaintiff and was avoiding his “present familial financial obligations of unallocated support and alimony.”

The court found the defendant in contempt and ordered him to pay all alimony due. It then modified the support award to weekly alimony in the amount of $854, weekly child support in the amount of $300 and a weekly accrual of an alimony arrearage in the amount of $1154 on a temporary basis. The defendant also was ordered to pay the plaintiffs attorney fees.

The defendant filed a trilogy of motions following the court’s decision. Specifically, he moved for reargument, reconsideration and an articulation.

The court granted the motion for articulation and, to clarify its prior decision, issued a memorandum of decision on January 24, 2007. It stated that it had reviewed the evidence and considered the applicable case law and statutory guidelines in issuing its decision. It further found the defendant’s present and temporary earning capacity to be approximately $100,000. The court, however, also indicated that “the amount used is a ‘minimum,’ ” as it had not been “convinced by [the defendant’s] testimony and presentation that his earnings and earning capacity are as limited as he professes.” The court therefore did not alter its August 11, 2006 orders. It scheduled a hearing for November 28, 2007, to review the financial situation of the parties. The defendant then filed the present appeal.

On appeal, the defendant claims that the court improperly failed to reduce the alimony award on the basis of a substantial change in circumstances. Specifically, he argues that the court’s order did not provide him with any substantive relief and that it is inequitable, given his employment situation. We conclude that the court’s financial orders do not constitute an abuse of discretion.

As a preliminary matter, we set forth the standard of review and legal principles relevant to our discussion. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case . . . .” (Internal quotation marks omitted.) Simms v. Simms, 283 Conn. 494, 502, 927 A.2d 894 (2007); Doody v. Doody, 99 Conn. App. 512, 516, 914 A.2d 1058 (2007).

The present case concerns the postjudgment modification of a support award. “Modification of alimony is governed by General Statutes § 46b-86, subsection (a) of which provides in relevant part: Unless and to the extent that the decree precludes modification ... an order for alimony . . . may at any time thereafter be . . . altered or modified . . . upon a showing of a substantial change in the circumstances of either party . . . .” (Internal quotation marks omitted.) Eckert v. Eckert, 285 Conn. 687, 693, 941 A.2d 301 (2008); see also Kalinowski v. Kropelnicki, 92 Conn. App. 344, 350, 885 A.2d 194 (2005). As the party seeking modification, the defendant had the burden of proving a substantial change in circumstances. See Simms v. Simms, supra, 283 Conn. 502; Arena v. Arena, 92 Conn. App. 463, 467, 885 A.2d 765 (2005).

We previously have “explained the specific method by which a trial court should proceed with a motion brought pursuant to § 46b-86 (a). When presented with a motion for modification, a court must first determine whether there has been a substantial change in the financial circumstances of one or both of the parties. . . . Second, if the court finds a substantial change in circumstances, it may properly consider the motion and, on the basis of the [General Statutes] § 46b-82 criteria, make an order for modification. . . . The court has the authority to issue a modification only if it conforms the order to the distinct and definite changes in the circumstances of the parties.” (Emphasis in original; internal quotation marks omitted.) Gervais v. Gervais, 91 Conn. App. 840, 850-51, 882 A.2d 731, cert. denied, 276 Conn. 919, 888 A.2d 88 (2005). Simply put, before the court may modify an alimony award pursuant to § 46b-86, it must make a threshold finding of a substantial change in circumstances with respect to one of the parties. Id., 854; see also Borkowski v. Borkowski, 228 Conn. 729, 735-36, 638 A.2d 1060 (1994).

In the present case, the court did not expressly find a substantial change in circumstances in either the August 11, 2006 memorandum of decision or the January 24, 2007 articulation. A careful reading of these memoranda reveals that such a finding was found implicitly. We previously have determined that an implicit finding of a substantial change of circumstances by the trial court will satisfy the threshold predicate for modification of a support order. It does not escape our scrutiny that the question of a substantial change in circumstances was thoroughly addressed by the trial court in its memorandum of decision, in which it notes the defendant’s financial status at the time of the dissolution and at the time of the hearing. A fair reading of the trial court’s memorandum of decision and its articulation leads us to the more logical and compelling conclusion that the trial court did find a substantial change of circumstances and then concluded that the alimony order should remain the same. See Schorsch v. Schorsch, 53 Conn. App. 378, 383, 731 A.2d 330 (1999).

The court found that, at the time of the dissolution, the defendant’s income was $325,000. Following the termination of his employment, he obtained employment with the Lighthouse Insurance Agency, earning $50,000 per year. The court described the defendant’s employment situation as having changed significantly, albeit as a result of his actions. As a result, the court modified the support award from approximately $2300 per week in alimony, to $854 per week in alimony, $300 per week in child support and an alimony accrual of $1154 per week. We conclude, therefore, that the court implicitly found a substantial change in circumstances and modified the support award.

We now address whether the court abused its discretion with respect to the modification of the support order. The defendant maintains that as a result of the substantial change in circumstances in both his employment situation and overall earning capacity, the court should have lowered his support obligations. He asserts that the support order is unjust or inequitable, that the finding of an earning capacity of $100,000 necessitated a reduction and that the court should have considered the same criteria as when the initial award was made. We are not persuaded.

As we previously noted, trial courts exercise broad discretion with respect to financial awards in dissolution cases. “Trial courts are vested with broad and liberal discretion in fashioning orders concerning the type, duration and amount of alimony and support, applying in each case the guidelines of the General Statutes. If the court considers the relevant statutory criteria when making its alimony and support award, the award may not be disturbed unless the court has abused its discretion.” Hartney v. Hartney, 83 Conn. App. 553, 559, 850 A.2d 1098, cert. denied, 271 Conn. 920, 859 A.2d 578 (2004). Furthermore, “[a]ppellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cleary v. Cleary, 103 Conn. App. 798, 800-801, 930 A.2d 811 (2007).

We have explained the specific method by which a trial court should proceed with a motion to modify after finding a substantial change in circumstances. “The trial court is limited to reviewing the current [financial] situation of the parties in light of the statutory criteria set forth in § 46b-82. . . . The use of the § 46b-82 criteria with respect to actions concerning § 46b-86 (a) has long been endorsed by our Supreme Court. For example, in Borkowski v. Borkowski, [supra] 228 Conn. 729 . . . the court stated: In general the same sorts of [criteria] are relevant in deciding whether the decree may be modified as are relevant in making the initial award of alimony. They chiefly have to do with the needs and financial resources of the parties. . . . More specifically, these criteria, outlined in General Statutes § 46b-82, require the court to consider the needs and financial resources of each of the parties ... as well as such factors as the causes for the dissolution of the marriage and the age, health, station, occupation, employability and amount and sources of income of the parties. . . . Once a trial court determines that there has been a substantial change in the financial circumstances of one of the parties, the same criteria that determine an initial award of alimony . . . are relevant to the question of modification.” (Citation omitted; internal quotation marks omitted.) Gervais v. Gervais, supra, 91 Conn. App. 850-51. We note that the court, in its January 24, 2007 articulation, expressly indicated that it considered, inter alia, “the statutory guidelines set forth in the various governing legislative enactments, including but not limited to [General Statutes §§] 46b-62, 46b-82, 46b-86 and 46b-87.” To the extent that the defendant claims that the court failed to consider the applicable statutory criteria, we are not persuaded.

We conclude that the record supports the court’s findings underlying its modified support order and that the order does not constitute an abuse of discretion. There was evidence in the record detailing the defendant’s talents and efforts in the success of the Stone Insurance Agency. Although there was a period of time when the defendant was not earning income and then a period where he obtained employment at an annual salary of $50,000, the court found that the defendant was not actively pursuing the options available to an individual with his experience and training. The court also was troubled by his failure to make any alimony payments or even to initiate a discussion with the plaintiff as to a proposed payment plan. The court made this finding clear in both of its decisions. For example, in the August 11, 2006 decision, the court wrote that the defendant had “revealfed] an intent to delay present income potential and to lay the groundwork for future earnings.” In the January 24,2007 articulation, the court stated: “It is clear to the court that [the defendant] is pacing himself so as to avoid to the extent possible his obligations for the twelve year alimony payment period to which he himself had previously committed.”

On the basis of the testimony regarding the defendant’s employment history, the court found his earning capacity to be “far in excess” of his $50,000 income. The court later expressly indicated his temporary and minimum earning capacity to be $100,000 per year. It further described this amount as a “ ‘minimum,’ ” as it was not persuaded by the defendant’s testimony that his earning capacity was more limited.

It is well established that earning capacity may form the basis of an order of support. Wolf v. Wolf, 39 Conn. App. 162, 169, 664 A.2d 315 (1995); see also Venuti v. Venuti, 185 Conn. 156, 161, 440 A.2d 878 (1981). “In appropriate circumstances, the trial court may base its financial orders on earning capacity rather than actual earned income. . . . The ultimate inquiry in determining the income reasonably available to the supporting paying spouse is the earning capacity of the supporting paying spouse. . . . The weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court, which had the unique opportunity to view the evidence presented in a totality of circumstances.” (Citations omitted.) Broderick v. Broderick, 20 Conn. App. 145, 147-48, 565 A.2d 3 (1989).

“While there is no fixed standard for the determination of an individual’s earning capacity ... it is well settled that earning capacity is not an amount which a person can theoretically earn, nor is it confined to actual income, but rather it is an amount which a person can realistically be expected to earn considering such things as his vocational skills, employability, age and health.” (Citation omitted; internal quotation marks omitted.) Bleuer v. Bleuer, 59 Conn. App. 167, 170, 755 A.2d 946 (2000). The court ordered the defendant to pay $1154 in alimony and child support to the plaintiff on a weekly basis. This equals approximately $60,000 per year. On the basis of the record before us, we cannot conclude that this award was improper or that the court abused its discretion.

Furthermore, with respect to the court’s order requiring that alimony accrue on a weekly basis in the amount of $1154, we also conclude that there was no abuse of discretion. As we noted, the court found the defendant’s temporary and minimum earning capacity to be $100,000. It is clear, however, that after considering the evidence, the court was convinced that the defendant’s capacity would rise in the near future. It found that the defendant’s “apparent successful prospects reinforce[d] the court’s belief that his earning capacity is strong and his talents are underused.” It also noted that the noncompete clause would expire in September, 2008.

Finally, the court found that the defendant was attempting to avoid, to the extent possible, his twelve year alimony obligation. “When determining earning capacity, it also is especially appropriate for the court to consider whether the defendant has wilfully restricted his earning capacity to avoid support obligations.” Bleuer v. Bleuer, supra, 59 Conn. App. 170.

Given all of the aforementioned factors, we cannot say that it was an abuse of discretion for the court to order that weekly alimony accrue. The court’s order afforded the defendant relief by decreasing his immediate financial obligation by half. This resulted in allowing him the time and opportunity to resolve his employment and financial situations. It also provided him with interim protection from contempt actions for nonpayment while he remedied the situation. Finally, it served as an equitable resolution, as it protected the financial interests of the plaintiff, who received a durational alimony award and prevented the defendant from simply running out the clock on the award, which was premised on the parties’ separation agreement. We conclude, therefore, that the court’s award did not constitute an abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Rittman testified that a major client threatened to end its business relationship with the Stone Insurance Agency. The termination of the defendant’s employment was necessary to keep this client’s business.

       The sale of the marital home had been completed, commencing the alimony payments in September, 2005.

       The parties’ separation agreement did not include a specific award of child support.

       We note that in the January 24, 2007 articulation, the court stated that it previously had “ordered a reduced alimony payment obligation . . . .”

       “The construction of a judgment is a question of law with the determinative factor being the intent of the court as gathered from all parts of the judgment. ... As a general rule, the court should construe [a] judgment as it would construe any document or written contract in evidence before it. . . . Effect must be given to that which is clearly implied as well as to that which is expressed.” (Internal quotation marks omitted.) Moasser v. Becker, 107 Conn. App. 130, 135, 946 A.2d 230 (2008).

       We note that in the August 11, 2006 decision, the court stated: “While [the defendant] protests that his diminished income prevents him from paying alimony, the fact that he himself brought on the situation forecloses him from legitimately escaping his obligations. Sanchione v. Sanchione, 173 Conn. 397, 407, 378 A.2d 522 (1977); Wanatowitz v. Wanatowitz, 12 Conn. App. 616, 620, 533 A.2d 239 (1987).”
      In the Sanchione case, our Supreme Court concluded: “Inability to pay does not automatically entitle a party to a decrease of an alimony order. It must be excusable and not brought about by the defendant’s own fault. There is no way to determine simply from the affidavits and finding what factors the court considered, whether the husband’s expenses were greater than necessary, whether his inability to pay was a result of his own extravagance, neglect, misconduct or other unacceptable reason, or why so many of his financial obligations were satisfied, as evidenced by his affidavits, yet the plaintiff wife was paid absolutely nothing on her weekly alimony.” (Internal quotation marks omitted.) Sanchione v. Sanchione, supra, 173 Conn. 407. It further determined that the trial court’s finding of a substantial change in circumstances was not warranted and therefore that the alimony award should not have been modified. Id.
      Similarly, in Wanatowitz, we concluded that the husband had failed to sustain his burden of establishing a substantial change in circumstances as a result of his alcoholism and expenditure of $7000. Wanatowitz v. Wanatowitz, supra, 12 Conn. App. 619. In that case, the husband admitted that he “ ‘blew’ ” the $7000 while drinking, and there was no evidence connecting that money to counseling or medical assistance. Id., 620. We then indicated that “[a]n inability to pay alimony due to indebtedness or other factors must be excusable and not brought about by the defendant’s own fault.” Id.; cf. Richard v. Richard, 23 Conn. App. 58, 63, 579 A.2d 110 (1990) (trial court improperly prevented defendant from presenting testimony on issue of whether he voluntarily changed jobs and improperly found he failed to show substantial change in circumstances).
      Both Sanchione and Wanatowitz stand for the principle that if a party’s culpable conduct causes an inability to pay an alimony award, then the threshold question of whether a substantial change of circumstances exists is not met. Accordingly, a trial court may not then modify the alimony award. In the present case, the court modified the award. We conclude, therefore, that the court’s use of Sanchione and Wanatowitz in its decision was misplaced. Nevertheless, we conclude that the court’s decision remains proper. “[I]t is axiomatic that [w]e may affirm a proper result of the trial court for a different reason.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 805 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005).

       We note that “[a] judge is presumed to have performed [her] duty properly unless the contrary appears.” (Internal quotation marks omitted.) Chyung v. Chyung, 86 Conn. App. 665, 675, 862 A.2d 374 (2004), cert. denied, 273 Conn. 904, 868 A.2d 744 (2005).


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. CHEVOL A. SMITH
    (AC 27762)
    Bishop, Lavine and Robinson, Js.

      Argued May 19
    officially released September 2, 2008

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Michael Proto, deputy assistant state’s attorney, with whom were Michael E. O'Hare, supervisory assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, and Alison Thomas Flood, deputy assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Chevol A. Smith, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent as an accessory in violation of General Statutes §§ 53a-8 and 2 la-278 (b), sale of narcotics within 1500 feet of a school as an accessory in violation of General Statutes §§ 53a-8 and 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279 (d). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction, (2) the state engaged in prosecutorial impropriety during closing arguments, thereby depriving him of his due process right to a fair trial, and (3) the identification of the defendant through the use of a prior police photograph was prejudicial to his right to a fair trial. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 31, 2005, Mark Grandpre, a detective with the statewide cooperative crime control task force, was working undercover in the Arthur Street area of New Haven. He observed two men who were later identified as Joseph Harris and the defendant. Grandpre made eye contact with Harris, who entered his vehicle and instructed Grandpre to drive around the block. During the drive, Harris and Grandpre negotiated a drug deal for crack cocaine, eventually settling on the sale of three bags for $40. After the negotiations concluded, Harris gave Grandpre two clear plastic bags of a substance later identified as crack cocaine. He then instructed Grandpre to stop the car at the intersection of Rosette Street and Dewitt Street.

After the car was stopped, Harris called over the same individual who Grandpre previously had observed with Harris before he entered the vehicle. The man, who Harris referred to as “Stutter,” and was later identified by Grandpre as the defendant, provided a third bag of crack cocaine; this one, however, was made of red plastic. Grandpre then paid $40 to Harris in exchange for the three bags. The entire transaction was videotaped by a hidden video camera inside the vehicle, but, due to the camera’s angle, only the hand of the defendant was visible.

No arrests were made on May 31, 2005, to preserve Grandpre’s undercover status. Over the next several weeks, Grandpre circulated still photographs of Harris in the New Haven police department and sought to identify the man known as “Stutter.” An officer recognized the street name “Stutter” and showed Grandpre a photographic array that included an arrest photograph of the defendant. On the basis of his observations prior to picking up Harris, as well as his observations during the transaction itself, Grandpre identified “Stutter” as the man in the photograph. Quincy Freeman, a New Haven police officer, also identified the defendant as the man known as “Stutter” and further stated that he knew no one else by that moniker.

On the basis of the preceding facts, the defendant was charged in a four count information with (1) sale of narcotics by a person who is not drug-dependent, (2) sale of narcotics within 1500 feet of a school, (3) possession of narcotics and (4) possession of a narcotics within 1500 feet of a school. On March 9, 2006, after a jury trial, the defendant was found guilty on all four counts. On May 18, 2006, the court imposed a total effective sentence of eleven years, suspended after eight years, with three years probation. On June 19, 2006, the court subsequently modified the defendant’s sentence resulting in a total effective sentence of twelve years, suspended after five years, five months, with three years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction. Specifically, he argues that there was insufficient evidence to prove (1) his identity as the second participant in the drug transaction and (2) that he had the requisite intent as an accessory. We are not persuaded.

“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 [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... 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. Sanchez, 75 Conn. App. 223, 238-39, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . 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). Furthermore, “[i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant’s innocence. . . . Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Farnum, 275 Conn. 26, 36, 878 A.2d 1095 (2005). Guided by these principles, we now turn to the defendant’s specific claims.

A

The first argument posed by the defendant is that the evidence adduced at his trial was insufficient to establish his identity with respect to the charges stemming from the drug transaction. On the basis of our review of the record, we conclude that sufficient evidence existed from which the jury could find that the defendant was the second participant.

“It is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant’s identity as one of the perpetrators of the crime charged.” State v. Smith, 280 Conn. 285, 302, 907 A.2d 73 (2006). In the present case, the defendant argues that the state presented insufficient evidence to link him to the transaction. Specifically, the defendant contends that Grandpre had limited time to observe him and was preoccupied during that limited time with other tasks. The defendant also maintains that Grandpre was not previously familiar with him and that the passage of several weeks before the identification made Grandpre’s subsequent identification suspect. Furthermore, the defendant refers to Grandpre’s inability to provide specific identifying characteristics during his testimony. He also emphasizes the testimony of Harris, who repeatedly testified that he did not know the defendant and that he had acted alone during the transaction.

The jury logically and reasonably could have concluded that the defendant was the second participant involved in the drug transaction on the basis of the testimony of Grandpre. Grandpre, a trained undercover narcotics officer, testified that he was patrolling the area with the specific purpose of locating and identifying drug dealers. Grandpre testified that during his patrol, he had observed the defendant on two separate occasions. The first was when Grandpre was driving and the defendant and Harris were walking toward him on the right side of the street. Grandpre was close enough to both men to be able to establish eye contact and to signal his intention to purchase narcotics. The second observation was made when the defendant approached the passenger window of Grandpre’s stopped vehicle. At this time, the defendant was close enough to Grandpre that the defendant’s hand was visible on the hidden camera film depicting the events inside the vehicle. Our Supreme Court has stated that “when determining whether a witness had sufficient time to observe a defendant to ensure a reliable identification ... a good hard look will pass muster even if it occurs during a fleeting glance. ... In particular, we have recognized that a view of even a few seconds may be sufficient for a witness to make an identification . . . and that it is for the trier of fact to determine the weight to be given that identification.” (Citations omitted; internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 801-802, 877 A.2d 739 (2005). Therefore, on the basis of these two observations, the jury reasonably could have concluded that Grandpre was able to recognize the defendant when shown photographs of males at the police station several weeks after the transaction took place.

This conclusion was buttressed by the fact that Grandpre was also able to identify the defendant in court during the trial. Although the defendant argues that Grandpre’s testimony was not credible, it falls within the province of the jury to determine what weight the testimony should be afforded. “[W]e must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). Additionally, because the jury has the opportunity to observe the conduct, demeanor and attitude of the witnesses and to gauge their credibility, “[i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it is within the province of the jury to believe all or only part of a witness’ testimony.” State v. Meehan, 260 Conn. 372, 381, 796 A.2d 1191 (2002).

Furthermore, regarding the testimony of Harris, the jury reasonably could have found his testimony to lack credibility and, therefore, could have chosen to afford it little or no weight. At the trial, Harris testified that he worked alone and had no knowledge of a man named “Stutter”; his testimony, however, was contradicted by a letter he signed while incarcerated that identified the defendant by name as “Stutter” and stated that Harris used “Stutter” as a decoy in the transaction. Harris also testified that he did not know who handed him the third bag through the window, having been high for the previous three days. The jury reasonably could have concluded that his testimony lacked credibility, given his conflicting statements. See State v. Meehan, supra, 260 Conn. 381.

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that Grandpre’s testimony was sufficient to establish the identity of the defendant as the second participant in the drug transaction.

B

The defendant also claims that there was insufficient evidence to support his conviction because the evidence adduced at trial did not establish that he, as an accessory, possessed the requisite intent to assist the primary actor, Harris. We disagree.

Section 53a-8 (a) provides in relevant part that “[a] person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . as if he were the principal offender.” Our Supreme Court has stated that “a conviction under § 53a-8 requires proof of a dual intent, i.e., that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original; internal quotation marks omitted.) State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987).

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 656, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

The defendant argues that his mere presence at the scene of the drug transaction is insufficient to establish that he acted with the intent to assist Harris in the commission of the crime. In support of this contention, the defendant references Harris’ testimony to establish that Harris acted alone and without his aid. We already have stated, however, that it is within the province of the jury to determine the credibility of a witness and, accordingly, to determine whether to believe all or only part of a witness’ testimony. See State v. Meehan, supra, 260 Conn. 381; State v. Mejia, supra, 233 Conn. 224.

Notwithstanding the conflicting testimony provided by Harris, the jury reasonably could have found that the defendant acted with the dual intent to commit the offense and to assist Harris during the drug transaction. According to Grandpre, he saw the defendant with Harris before Harris entered the vehicle and instructed Grandpre to drive around the block. Grandpre also testified that the same man was standing at the intersection where Harris ordered Grandpre to stop. When the car was stopped, Harris called the defendant over, referring to him by the name “Stutter.” When the man approached, he handed Harris a red plastic bag through the window. Although the defendant’s face does not appear on the film, the hidden camera film depicted the passing of the bag to complete the transaction. This bag was tested subsequently and found to contain crack cocaine.

Furthermore, the course of events described by Grandpre was in conformity with the testimony of Michael Wuchek, a narcotics expert. According to Wuchek, it is common for drug dealers to work in pairs, each carrying a limited quantity of drugs. It is also common, in these circumstances, for dealers to combine their limited quantities if necessary to make a sale. Given the cumulative force of this evidence, the jury reasonably could have concluded, beyond a reasonable doubt, that the defendant had the requisite dual intent necessary to support a conviction as an accessory to the charges of possession and sale of a narcotic substance.

II

The defendant next claims that the state engaged in prosecutorial impropriety during closing arguments and thereby deprived him of his due process right to a fair trial. Specifically, he maintains that the prosecutor improperly injected her personal opinion, as well as the opinion of the state, into her closing arguments regarding the credibility of Harris.

Before we examine the challenged remark, we set forth the appropriate standard of review. “Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute [an impropriety]. Second, if [an impropriety] occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process.” (Citation omitted; internal quotation marks omitted.) State v. Pedro S., 87 Conn. App. 183, 187, 865 A.2d 1177, cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005).

We are also guided by additional legal principles regarding claims of prosecutorial impropriety during closing argument. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. . . . Moreover, [i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument. . . . Nevertheless, the prosecutor has a heightened duty to avoid argument that strays from the evidence or diverts the juiy’s attention from the facts of the case.” (Internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 682, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008). With these principles in mind, we now address the defendant’s claim.

The defendant takes issue with the following statement made by the prosecutor during her closing arguments: “We heard from Joseph Harris, and I don’t think I have to spell out for you what exactly is going on here. Joseph Harris testified himself it’s not good to be a snitch in prison, it’s not good to testify when you’re in prison. He was very inconsistent with his testimony on the [witness] stand. I think it was quite obvious— the state thinks it was quite obvious.” (Emphasis added.) The defendant argues that this statement inappropriately expressed the opinion of the prosecutor and, even more importantly, the opinion of the state. In light of the record as a whole, we conclude that this remark does not constitute prosecutorial impropriety.

“[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact.” (Internal quotation marks omitted.) State v. D’Haity, 99 Conn. App. 375, 389, 914 A.2d 570, cert. denied, 282 Conn. 912, 924 A.2d 137 (2007). “The prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. ... Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 546, 944 A.2d 947 (2008).

A review of the transcript reveals that the prosecutor’s remark at issue was made as part of her broad summary of each witness’ testimony. She began her summary of Harris by stating, “I don’t think I have to spell out for you what exactly is going on here,” and then referring to his testimony that he recognized that it is not good to be known as a “snitch” in prison. Although the general rule provides that a prosecutor may not inject a personal opinion regarding credibility, our Supreme Court has explained that “[i]t is not improper for a prosecutor to remark on the motives that a witness may have to lie, or not to lie, as the case may be.” (Internal quotation marks omitted.) State v. Stevenson, 269 Conn. 563, 585, 849 A.2d 626 (2004). Therefore, to the extent that this statement can be seen as a comment on Harris’ credibility, the prosecutor’s comment is appropriate to indicate his potential motive to lie and, accordingly, does not amount to prosecutorial impropriety.

The comment relating to a potential motive was then followed by a statement that Harris was inconsistent with his testimony on the witness stand. During the trial, a letter signed by Harris while incarcerated was referenced in his testimony, and the letter itself was admitted into evidence. The contents of the letter contradicted the testimony given by Harris during the trial; therefore, the prosecutor’s comment about the inconsistencies did not amount to prosecutorial impropriety because it appropriately related to the evidence presented at trial and posited a reasonable conclusion that the jury itself could have reached without the prosecutor’s personal knowledge of the case. See State v. Smith, supra, 107 Conn. App. 682.

Finally, the prosecutor concluded her commentary on the inconsistencies in Harris’ testimony with the statement: “I think it was quite obvious—the state thinks it was quite obvious.” We note that “[although prosecutors generally should try to avoid using phrases that begin with the pronoun I, such as I think or / believe, [our Supreme Court has] recognizfed] that the use of the word I is part of our everyday parlance and . . . because of established speech patterns, it cannot always easily be eliminated completely from extemporaneous elocution. . . . Therefore, if it is clear that the prosecutor is arguing from the evidence presented at trial, instead of giving improper unsworn testimony ■with the suggestion of secret knowledge, his or her occasional use of the first person does not constitute misconduct.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 436, 902 A.2d 636 (2006). Furthermore, “[t]he mere use of phrases such as I would think, I would submit, and I really don’t think, does not transform a closing [argument] into the improper assertions of personal opinion by the [prosecutor].” (Emphasis added; internal quotation marks omitted.) State v. Santiago, 103 Conn. App. 406, 421, 931 A.2d 298 (concluding that prosecutor’s use of phrases, “I believe,” “I would think” and “the state believes” does not amount to interjection of personal opinion or beliefs), cert. denied, 284 Conn. 937, 937 A.2d 695 (2007). As we already have determined that the prosecutor’s statement regarding the inconsistencies in Harris’ testimony was properly based on the evidence and the reasonable inferences arising therefrom, her use of the phrases “I think” and “the state thinks” as addenda to this statement does not rise to the level of prosecutorial impropriety.

Having concluded that there was no prosecutorial impropriety in closing argument, there is no need to undertake a due process analysis.

Ill

The defendant’s third claim is that his right to a fair trial was unfairly prejudiced by witness testimony that referenced the existence of a prior arrest photograph of the defendant. At the trial, Grandpre testified that he spoke with another officer who, on the basis of his knowledge of street names, identified the defendant as the person known as Stutter. Upon receiving this information, Grandpre testified: “[M]y partner went into the system and obtained a—an arrest photo—of the defendant.” The defendant contends that this remark unfairly prejudiced his right to maintain his innocence. We do not agree.

The defendant did not preserve his claim at trial but now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). As a preliminary matter, we note that “[e]videntiary claims do not merit review pursuant to State v. Golding, [supra, 239-40], because they are not of constitutional magnitude.” (Internal quotation marks omitted.) State v. Nelson, 105 Conn. App. 393, 413, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). Although we acknowledge that the record in the present case is adequate for review, we are not persuaded by the defendant’s attempts to transform an evidentiary issue into one of constitutional magnitude. “Regardless of how the defendant has framed the issue, he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review.” (Internal quotation marks omitted.) State v. Warren, 83 Conn. App. 446, 452, 850 A.2d 1086, cert. denied, 271 Conn. 907, 859 A.2d 567 (2004). “[R]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature. . . . Putting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender.” (Internal quotation marks omitted.) State v. Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert. denied, 284 Conn. 912, 931 A.2d 932 (2007).

In the present case, the defendant claims that the reference to his arrest photograph violated his right to a fair trial because it eroded the presumption of innocence that is a fundamental aspect of the right to a fair trial. We have stated that, as a general rule, “evidence of the commission of other crimes or specific acts of misconduct is inadmissible to prove that a defendant is guilty of the crime charged against him. . . . [However] [t]he rule of admission of evidence of other crimes is a rule of evidence and not a rule of constitutional law. . . . Generally . . . the admissibility of evidence is a matter of state law and unless there is a resulting denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Pharr, 44 Conn. App. 561, 579, 691 A.2d 1081 (1997). Specifically addressing remarks by witnesses about a defendant’s prior criminal record, our Supreme Court has concluded that “[t]he rule against admitting evidence of prior crimes where such crimes are neither relevant to the state’s case in chief nor appropriate for impeaching the defendant’s credibility is a rule of evidence”; (emphasis added) State v. Gunning, 183 Conn. 299, 303, 439 A.2d 339 (1981); and does not implicate a fundamental constitutional right to a fair trial. Id., 302-303 (concluding that defendant not denied fundamental constitutional right or fair trial by reference, in testimony by witness for state, to his status as parolee).

The defendant has sought Golding review of an evidentiary claim and has failed to establish a denial of fundamental fairness or a specific constitutional right that would bring his claim within the ambit of Golding review. Therefore, we decline to review the defendant’s third claim. “[T]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the evidentiary claim and a fundamental constitutional right. . . . Thus, [o]nce identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” (Internal quotation marks omitted.) State v. Gilbert I., 106 Conn. App. 793, 796, 944 A.2d 353, cert. denied, 287 Conn. 913, 950 A.2d 1289 (2008).

The judgment is affirmed.

In this opinion the other judges concurred.

       In State v. Fauci, 282 Conn. 23, 917 A.2d 978 (2007), our Supreme Court concluded that the term “prosecutorial impropriety” is more appropriate than the traditional term “prosecutorial misconduct.” Id., 26 n.2. Although the parties briefed and argued the defendant’s claim utilizing the nomenclature of “prosecutorial misconduct,” we have used the term “prosecutorial impropriety” in our analysis of the defendant’s claim.

       Located at 140 Dewitt Street was Hill Central School. The school was located 1145 feet away from the site of the drug transaction.

       The court merged count three into count one and count four into count two.

       The defendant has requested review of this claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). “In cases of unpreserved claims of prosecutorial [impropriety], however, it is unnecessary for the defendant to seek to prevail under the specific requirements of . . . Golding . . . and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test. The reason for this is that the touchstone for appellate review of claims of prosecutorial [impropriety] is a determination of whether the defendant was deprived of his right to a fair trial, and this determination must involve the application of the factors set out by this court in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).” (Internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 681-82, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008).

       In State v. Golding, supra, 213 Conn. 233, our Supreme Court concluded that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. “In the absence of any one of the four Golding conditions, the defendant’s claim will fail. . . . The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Kirk R., 271 Conn. 499, 506 n.12, 857 A.2d 908 (2004).

       Although the defendant attempts to frame his argument as the violation of a fundamental right, it is important to note that the general rule against admission of evidence of other crimes is subject to some exceptions, and therefore, cannot be considered fundamental to a fair trial. “The rationale of [the rule preventing evidence of guilt of other crimes] is to guard against its use merely to show an evil disposition of an accused, and especially the predisposition to commit the crime with which he is now charged. . . . We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. . . . [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony.” (Internal quotation marks omitted.) State v. Stevenson, 53 Conn. App. 551, 570-71, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).


author: McLACHLAN, J.

text:
    ARNOLD PECK v. MILFORD HUNT HOMEOWNERS ASSOCIATION, INC.
    (AC 28896)
    DiPentima, McLachlan and Peters, Js.
    Argued May 23
    officially released September 2, 2008

      Ronald J. Barba, for the appellant (defendant).

      James M. Nugent, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendant, the Milford Hunt Homeowners Association, Inc., appeals from the judgment of the trial court, rendered after a trial to the court, resolving a dispute over a billboard lease in favor of the plaintiff, Arnold Peck. The defendant claims that the court (1) failed to apply the provisions of General Statutes § 47-247 properly so as to allow the termination of the lease and (2) improperly concluded that the lease was not unconscionable or commercially unreasonable. We conclude that the provisions of § 47-247 do not apply under the circumstances of this case and affirm the judgment of the trial court.

The relevant facts are undisputed. On March 2, 1999, Riverview Chase Associates sold a parcel of land in Milford to T & M Homes, LLC. The plaintiff signed the deed conveying title on behalf of Areck Investments, LLC, one of the partners in Riverview Chase Associates. On the same day, T & M Homes, LLC, and the plaintiff entered into a lease agreement for a portion of the conveyed premises permitting the erection and maintenance of a billboard. The lease was for a term of ninety-eight years at a rental fee of $1 per year and provided easements for access to and maintenance of the sign. The lease was recorded in the Milford land records.

On December 2,1999, T & M Homes, LLC, recorded a declaration in the land records pursuant to the Common Interest Ownership Act (act), General Statutes § 47-200 et seq., creating Milford Hunt, a planned community consisting of sixty-two residential lots. The legal description of the development, which was attached as a schedule to the declaration, listed encumbrances on the property that included the billboard lease.

By warranty deed recorded on August 2, 2004, T & M Homes, LLC, conveyed the open space areas and the roads in Milford Hunt, which included the land encumbered by the billboard lease, to the defendant unit owners’ association organized under General Statutes § 47-243 of the act. On January 20,2005, the defendant’s board of directors adopted a resolution terminating the lease between T & M Homes, LLC, and the plaintiff for the billboard on the defendant’s property. A copy of the resolution and a notice of termination was mailed to the plaintiff, advising him of the termination of the lease and the related easements pursuant to § 47-247. The plaintiff then commenced the present action, seeking an injunction and damages and a judgment quieting title to the leasehold interest in his favor. The defendant, in an amended counterclaim, sought a declaratory judgment that the lease had been terminated pursuant to § 47-247 or, in the alternative, that it was unconscionable and void as a matter of common law.

The case was tried before the court on January 12, 2007. The parties filed simultaneous briefs on April 18, 2007, and the court issued its memorandum of decision on May 14, 2007. In that decision, the court first determined that the defendant had the right to challenge the billboard lease pursuant to § 47-247 (a) (3) and the common law. It concluded, however, that the lease was not unconscionable and, therefore, could not be terminated. Accordingly, it declared the lease and the easements to be valid and found in favor of the plaintiff on the defendant’s counterclaim. This appeal followed.

The defendant claims that the court failed to apply the provisions of § 47-247 properly. Specifically, the defendant argues that § 47-247 (a) (3) clearly provides that a homeowners’ association may terminate a lease if it is commercially unreasonable or unconscionable as to the unit owners when entered into under the prevailing circumstances. The defendant claims that the court, contrary to the statutory language, made its determination on the basis of whether the lease terms were commercially unreasonable or unconscionable as between T & M Homes, LLC, and the plaintiff. The plaintiff claims that the provisions of § 47-247 (a) (3) do not apply under the circumstances of this case. We agree with the plaintiff.

Section 47-247 (a) (3) provides that any lease that was “unconscionable or commercially unreasonable to the unit owners at the time entered into under the circumstances then prevailing” may be terminated without penalty by the association, with notice of not less than ninety days to the other party at any time after the association’s executive board takes office. The critical considerations in determining whether § 47-247 (a) (3) applies to the facts of this case include the recording dates of the billboard lease and the declaration of Milford Hunt, the relationship between the plaintiff and T & M Homes, LLC, and whether the billboard lease was unconscionable or unreasonable as to the unit owners at the time the lease was signed.

The billboard lease was signed on March 2, 1999, and was recorded on March 4, 1999. The landlord was identified as T & M Homes, LLC, and the tenant was identified as the plaintiff. The court found that no credible evidence had been submitted to show that the parties were not of equal bargaining power, that they were not dealing at arm’s length or that T & M Homes, LLC, was a sham entity controlled by the plaintiff; the defendant has not challenged those findings on appeal. The court also referenced the plaintiffs testimony that the lease arrangement was important to him and was factored into the sales price of the land to T & M Homes, LLC.

T & M Homes, LLC, as declarant, signed and recorded the declaration creating Milford Hunt on December 2, 1999, almost nine months after the billboard lease was recorded. The legal description provided that the property was subject to various encumbrances, including the billboard lease. The defendant acquired title to the land on which the billboard is located by deed dated July 26, 2004, and recorded in the land records on August 2, 2004.

Preliminarily, the act is a comprehensive legislative scheme that regulates all forms of common interest ownership. It addresses the creation, organization and management of common interest communities. See Weldy v. Northbrook Condominium Assn., Inc., 279 Conn. 728, 735, 904 A.2d 188 (2006). In resolving the defendant’s claim as to the termination of leases pursuant to § 47-247 (a) (3) of the act, we must interpret that provision and other provisions of the act to determine the applicability in the present case. Issues of statutory construction present questions of law, over which we exercise plenary review. Benson v. Zoning Board of Appeals, 89 Conn. App. 324, 329, 873 A.2d 1017 (2005).

“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.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007).

Although the defendant argues that the lease was unconscionable as to the unit owners when the plaintiff and T & M Homes, LLC, signed it on March 2, 1999, the provisions of the act preclude such a conclusion. The relevant provisions of the act are as follows. General Statutes § 47-220 governs the creation of common interest communities and provides that a common interest community may be created “only by recording a declaration executed in the same manner as a deed . . . .” General Statutes § 47-220 (a). General Statutes § 47-202 (32) of the act defines a “unit owner” as “a declarant or other person who owns a unit .... In a condominium or planned community, the declarant is the owner of any unit created by the declaration. . . .” General Statutes § 47-207 provides: “The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property, and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause supplement the provisions of this chapter, except to the extent inconsistent with this chapter.” (Emphasis added.)

The provisions, when read together, clearly establish that a common interest community does not come into existence until the declaration is filed in the land records. Further, a unit and unit owners do not exist until the common interest community is created. Accordingly, in the present case, the lease between the plaintiff and T & M Homes, LLC, could not have been “unconscionable or commercially unreasonable to the unit owners at the time entered into under the circumstances then prevailing”; General Statutes § 47-247 (a) (3); because the lease was executed on March 2, 1999, nine months before Milford Hunt had been created. In other words, there were no unit owners on March 2, 1999. The defendant’s argument that the lease was unconscionable because the defendant was not a party to the negotiations as to its terms likewise fails because there was no unit owners’ association in existence on March 2, 1999.

These facts, together with the previously referenced factual findings of the court, including, inter alia, that the lease transaction was not shown to be anything other than an arm’s length transaction and that no evidence indicated that T & M Homes, LLC, was a sham entity controlled by the plaintiff, compel the conclusion that § 47-247 (a) (3) does not apply under the circumstances of this case.

To adopt the defendant’s position, i.e., that a unit owners’ association can terminate any contract or lease that it deems unfair to its interests, even when executed and recorded in the land records prior to the creation of the common interest community, would be contrary to well established principles as to the priority of interests in recorded transactions. See General Statutes § 47-33b et seq., the Marketable Title Act. The plaintiff, prior to the creation of Milford Hunt, negotiated a ninety-eight year term billboard lease and recorded it in the land records to provide notice of that encumbrance to any party who thereafter acquired an interest in that portion of the property. After the plaintiff conveyed his property to T & M Homes, LLC, he had no control over the type of residential ownership that the developer would choose for the development. The fact that T & M Homes, LLC, decided to create a common interest community rather than a standard subdivision does not provide the defendant with an opportunity to deprive the plaintiff of his interest in that lease.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 47-247 (a) provides: “Except in the case of nonresidential common interest communities as provided in section 47-215, if entered into before the executive board elected by the unit owners pursuant to subsection (f) of section 47-245 takes office, (1) any management contract, employment contract or lease of recreational or parking areas or facilities, (2) any other contract or lease between the association and a declarant or an affiliate of a declarant, or (3) any contract or lease that is not bona fide or was unconscionable or commercially unreasonable to the unit owners at the time entered into under the circumstances then prevailing, may be terminated without penalty by the association at any time after the executive board elected by the unit owners pursuant to subsection (f) of section 47-245 takes office on not less than ninety days’ notice to the other party.”

       Although the court determined that the defendant properly could challenge the billboard lease pursuant to § 47-247, it rendered judgment in favor of the plaintiff because it found that the lease was not unconscionable. We conclude, however, that the provisions of § 47-247 do not apply under the circumstances of this case and, for that reason, do not reach the issue of unconscionability. Therefore, the court’s decision is correct but not for the reasons stated. We are “not required to reverse a ruling of the trial court which reached a correct result, albeit for a wrong reason.” (Internal quotation marks omitted.) Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998).

       General Statutes § 47-243 provides: “A unit owners’ association shall be organized no later than the date the first unit in the common interest community is conveyed. The membership of the association at all times shall consist exclusively of all unit owners or, following termination of the common interest community, of all former unit owners entitled to distributions of proceeds under section 47-237 or their heirs, successors or assigns. The association shall be organized as a profit or nonprofit corporation, trust, partnership or unincorporated association.”

       On appeal, the defendant’s arguments all are addressed to the statutory grounds for termination of an unconscionable or commercially unreasonable lease pursuant to § 47-247 (a) (3). No separate arguments have been made with respect to any other statutory or common-law grounds for termination.

       The court determined that the second count of the plaintiffs complaint, alleging tortious interference with contractual rights and business expectations, had been abandoned because the plaintiff failed to brief that claim in his posttrial brief. Further, the court declined to award the plaintiff damages, punitive damages or interest, as requested in his prayer for relief. The plaintiff did not file an appeal challenging those determinations.

       The defendant filed a motion to reargue on May 24, 2007, claiming, inter alia, that the court had failed to address its argument that the lease was commercially unreasonable. At the hearing on the defendant’s motion held on June 11,2007, the court stated that the lease was not commercially unreasonable.

       In the plaintiffs counterstatement of issues, he also claims that the defendant “failed to appeal from the judgment rendered in favor of the plaintiff on [the complaint] or to brief these issues” and so the appeal is “defective or moot . . . .” Mootness implicates subject matter jurisdiction and would require dismissal of the appeal. See Wiltzius v. Zoning Board of Appeals, 106 Conn. App. 1, 10, 940 A.2d 892, cert. denied, 287 Conn. 906, 907, 950 A.2d 1283, 1284 (2008).
      The plaintiffs claim is without merit. The appeal form indicates that the defendant appealed from “[t]he court’s judgment after trial in favor of [the] plaintiff.” It does not specify whether the appeal is from the judgment on the complaint, the counterclaim or both. We conclude, however, that the appeal was taken from both judgments. The court made the same decision with respect to the complaint and the counterclaim, namely, that the lease should not be terminated because it was not unconscionable. Moreover, even if the appeal is viewed as being taken from the judgment on the counterclaim only, this court’s jurisdiction would not be affected because the issues in the complaint and the counterclaim are so intertwined.

       The defendant admitted in its answer to the plaintiffs complaint that the billboard lease was recorded in the Milford land records pursuant to General Statutes § 47-19. Section 47-19 provides in relevant part: “No lease of any building, land or tenement, for life or for any term exceeding one year . . . shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land . . . .”

       The plaintiff testified that he has a business in Milford and wanted to continue using the billboard for personal advertising and that he would have pursued other options if T & M Homes, LLC, had not agreed to the lease as part of the sales transaction.

       The lease in the present case did not impose any obligations on the Milford Hunt unit owners. The plaintiff, as tenant, was required to maintain the leased premises, to pay for insurance coverage and utility costs, and to repair or replace the billboard if damaged. The defendant’s primary objection was that the plaintiff paid only a rental fee of $1 per year when it could negotiate a much higher rent if the lease was terminated. The plaintiff testified that the lease payment and the sales price of the land were negotiated together.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. LEONARDO MONTOYA
    (AC 28164)
    Bishop, Beach and Foti, Js.
    Argued May 28
    officially released September 2, 2008

      Mary H. Trainer, special public defender, for the appellant (defendant).

      Tamara A. Grosso, special deputy assistant state’s attorney, with whom were Michael E. O’Hare, supervisory assistant state’s attorney, and, on the brief, Jonathan C. Benedict, state’s attorney, and Pamela J. Esposito, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Leonardo Montoya, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2). On appeal, the defendant claims that he is entitled to a judgment of acquittal because the evidence adduced at trial was insufficient to sustain the conviction and that the prosecutor engaged in a pattern of impropriety that deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was a Roman Catholic seminarian in Colombia who came to the United States to continue his religious studies. He became friendly with the sixteen year old victim, T, her father and her stepmother when he assisted with the baptism of T’s stepbrother. The defendant often visited the family at the home of T’s father in Bridgeport and had, at one point, counseled T via e-mail about dreams she was experiencing.

T lived in Waterbury with her mother and stepfather but sometimes spent weekends with her father in Bridgeport. On Saturday, November 29, 2003, T wanted to attend a small farewell party at her father’s house in honor of the extended vacation that her father and stepmother were planning on taking to Colombia the following Friday. As her father was still working, he asked the defendant to drive to Waterbury to bring T to Bridgeport.

The defendant agreed and, accompanied by T’s stepmother and her young son, drove to Waterbury, picking up T from her mother’s home around 5:30 p.m. On the return trip, T’s stepmother sat in the rear seat with her sleeping son, leaving T in the front passenger seat with the defendant driving. During the trip, the defendant touched T’s knee. While T did not like this contact, she was not scared and did not mention it to her parents.

When they arrived in Bridgeport, they went to the kitchen where T’s stepmother prepared food. Shortly thereafter, three adult female friends of the family and a boy arrived. T’s father came home around 7 p.m. After eating dinner, T went upstairs with her stepbrother and the other boy while the adults remained downstairs drinking Colombian liquor until about 9 or 10 p.m. At this point, the female guests and the boy left. T took a shower and went to bed in her room alone.

Around 1 a.m., the defendant entered T’s room and woke her by pulling at her bedsheets and telling her she had pretty eyes. T yelled at the defendant, who smelled of alcohol, telling him to go away. When the defendant just giggled, T got up and pushed him out the door. T then went back to sleep.

At approximately 5:45 a.m., T awoke again because her cellular telephone alarm began ringing. T picked it up, opened it and saw that there was a message from her boyfriend. By the light of her telephone, T noticed that the defendant was asleep in the other twin bed in her room. T then rolled over and went back to sleep. The next time she woke up, she heard the wooden floorboards creak as someone walked out of her bedroom and used the bathroom. She then heard the door shut as the person came back into her room. T took the comforter off her face and saw a man standing over her bed. Thinking it was her father, as he had mentioned he wanted to talk to her the previous night, she rolled away and pulled the covers over her head again.

At this point, she felt the mattress sink and the comforter move as if someone was trying to lift it. Next, she felt a tingling sensation on her upper thigh. The tingling sensation moved up, and she felt her “private area,” or vagina, being rubbed from behind. Though the comforter was still over her head, T could hear breathing over her. When T realized that the defendant was touching her, she sprang from the bed and ran to her father’s and stepmother’s room where she started yelling about what had happened to her. T and her stepmother then went to T’s room where they saw the defendant, awake, lying on top of the covers of his bed looking at the ceiling. T began shouting at the defendant and accusing him of touching her. This woke her father, who came running into the room. When T told her father that the defendant had touched her, he ordered the defendant to leave. In response, the defendant replied, “It’s a lie.”

T went downstairs with her stepmother and had a glass of water. When the defendant came downstairs, T threw the water at him. After the defendant left, T told her father and stepmother that she wanted to go home. They called her mother, who instructed them to bring T home so that she could take her to the police station to file a report. Upon arriving home, T went to the police station with her mother and filed a report about the incident.

The day after the incident, T was very upset. She felt suicidal and threatened to kill one of her teachers at school. T was checked into the psychiatric wing of a hospital where she remained for four days. Upon her release from the hospital, T was prescribed medicine, and she was still taking antidepressants at the time of the trial. T had no history of such episodes before the incident in question.

At the conclusion of the state’s case-in-chief, and again after the close of evidence, the defendant moved for a judgment of acquittal on the basis that there was insufficient evidence to find him guilty of sexual assault. The court denied both motions. Thereafter, the defendant was convicted and sentenced to the custody of the commissioner of correction for a total effective sentence of one year incarceration, execution suspended after ninety days, with three years probation. This appeal followed.

I

The defendant claims that there was insufficient evidence to convict him of sexual assault in the fourth degree. Specifically, the defendant argues that he is entitled to an acquittal both because T’s testimony was inconsistent and, therefore, not credible and because the state failed to prove that he was the perpetrator of the sexual assault. We disagree.

“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. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, 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. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical. . . .

“Finally, [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 [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

With this standard in mind, we turn now to the elements of sexual assault in the fourth degree. Section 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent . . . .” For the purposes of this case, the term “sexual contact” means “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor. . . .” General Statutes § 53a-65 (3). “Intimate parts” as applicable here means the genital area. See General Statutes § 53a-65 (8). Sexual contact can be indirect and through clothing as long as it occurs for the purpose of sexual gratification. State v. Eric T., 8 Conn. App. 607, 613, 513 A.2d 1273 (1986).

When reviewing the facts in the light most favorable to sustaining the verdict, it is plain that the state met its burden of establishing that T was sexually assaulted. T testified that she saw the defendant sleeping in the bed next to hers and, shortly after, she heard someone leave her room, go to the bathroom and return, and felt the bed sink and something rubbing her vagina. When T realized that she was being touched, she jumped up and ran to alert her family. When she returned with her stepmother and father, the defendant was lying on the bed awake. At trial, T testified that the she did not want the defendant to touch her in this manner. Finally, the fact that the defendant chose to touch T’s vagina is evidence of his intent to commit a sexually gratifying act. See id., 614.

Though labeled as a challenge to the sufficiency of the evidence, the defendant’s claim rests on an assessment of T’s credibility. The defendant claims that the report that T provided to the police contradicted her trial testimony in numerous ways, thereby, rendering her unbelievable. In reviewing the alleged discrepancies, we conclude that none of them was central to the elements that the state was required to prove. Furthermore, T was subject to cross-examination, and the defendant does not claim that his cross-examination was unduly limited. “Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Liborio A., 93 Conn. App. 279, 284, 889 A.2d 821 (2006). “Testimony is not rendered inadmissible merely because it is uncorroborated or has inconsistencies.” State v. Bazemore, 107 Conn. App. 441, 458, 945 A.2d 987, cert. denied, 287 Conn. 923, 951 A.2d 573 (2008).

The defendant also claims that because T did not actually see him touching her, the state failed to prove that he was the perpetrator. At trial, T’s father, stepmother, T and the defendant himself testified that aside from T’s father, the defendant was the only adult male in the house at the time of the incident. T testified that she saw the defendant lying in the bed next to hers during the night and that when she returned to her room with her father and stepmother, the defendant was lying on his bed, awake, staring at the ceiling. “[T]he question of [the] identity of a perpetrator of a crime is a question of fact that is within the sole province of the jury to resolve. . . . 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. Ortiz, 71 Conn. App. 865, 881, 804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d 1136 (2002). Consequently, the jury was free to draw the reasonable inference that because everyone else in the house was accounted for and in light of the defendant’s earlier conduct toward T, it was he who had sexually assaulted T. Because the jury reasonably could have determined that T was sexually assaulted by the defendant, we conclude that the court properly denied his motions for a judgment of acquittal.

II

The defendant next argues that the prosecutor engaged in a pattern of improper conduct that deprived him of a fair trial. Specifically, the defendant claims that the prosecutor argued facts that were not in evidence and appealed to the emotions of the juiy during her closing argument, thereby depriving him of a fair trial. We disagree.

At the outset, we note that the defendant did not object to the two alleged instances of prosecutorial impropriety during trial. This failure to object, however, does not preclude review because when the claim is prosecutorial impropriety, “it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test.” State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). The right to challenge alleged prosecutorial impropriety cannot be limited by a failure to object because inherent in a claim of this sort is the constitutional right to a fair trial. Id., 573.

“In analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . Only if we conclude that prosecutorial [impropriety] has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. H. P. T., 100 Conn. App. 183, 186, 917 A.2d 586, cert. denied, 282 Conn. 917, 925 A.2d 1100 (2007).

Accordingly, we first determine if impropriety occurred. The defendant first claims that the prosecutor’s comments during closing argument regarding his seminary school training overreached the facts in evidence. It is axiomatic that “[statements as to facts which have not been proven amount to unsworn testimony that is not the subject of proper closing argument.” State v. Williams, 204 Conn. 523, 544, 529 A.2d 653 (1987). The defendant argues that the prosecutor improperly breached this standard with the following statements:

“A few points. Defense counsel argues that the defendant’s testimony is consistent. Consistent with what? Consistent with his testimony. Okay. That’s fine. Did you hear the defendant testify that at the seminary he received training? Training for what? Training on how to speak to people, on how to gamer their trust, how to be a leader, how to provide guidance and emotional support. Just like [T’s] family let him into their home, and trusted him—like [T] trusted him.”

Contrary to the defendant’s claim, we believe the prosecutor’s comments in this regard fairly flowed from the evidence and reasonable inferences the jury could draw from it. The defendant testified at trial that he received training in counseling people while he was a seminary student. In light of this testimony, the prosecutor did not stray outside the record when she suggested that the jury infer that such an individual would know how to speak to people to gamer their tmst and would know how to provide guidance and emotional support. We therefore see no impropriety in the prosecutor’s remarks concerning the defendant’s training.

The defendant next claims that the prosecutor improperly appealed to the emotions of the jury in her closing arguments. “It is well established that, [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . We have stated that such appeals should be avoided because they have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 595-96, 876 A.2d 1162 (2005), aff'd after remand, 95 Conn. App. 577, 897 A.2d 661 (2006).

The defendant claims that the prosecutor improperly appealed to the emotions of the jury during closing argument when she stated about the victim: “She has lost trust. Didn’t she say she was heartbroken? She has lost trust, she has lost innocence. Hasn’t she lost some happiness, too? Hasn’t she lost some inner peace? She’s sixteen years old, she testified she’s on antidepressants. Lost, lost, lost, lost. All lost to this man. To this man, who—you know, we’ll never know why. Whether it was some sort of horrible plan or if this was just some sudden lapse of really bad judgment. In those few moments, the state argues that she lost all those things to this man.” Although some portions of the prosecutor’s comments in this instance were related to T’s testimony regarding the impact of the assault on her, we agree with the defendant that the comments of the prosecutor went too far.

Although T testified at trial that the defendant’s actions left her “heartbroken” and that she was still taking antidepressants, the prosecutor put an overly dramatic gloss on this testimony by painting a picture of the victim with such emotionally laden words as “innocence,” happiness” and “inner peace” and through her repeated use of the word “lost.” Even though the prosecutor’s statements were grounded in evidence, her language invoked overly sympathetic images of the victim that improperly appealed to the emotions of the jury.

Having established that the prosecutor’s statements were improper, we now determine whether the prosecutor’s impropriety so infected the trial with unfairness that it rendered the defendant’s conviction a denial of his right to due process. In State v. Williams, supra, 204 Conn. 540, our Supreme Court enumerated six factors that guide this determination. These factors include the extent to which the impropriety was invited by defense conduct, the severity and frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the strength of the state’s case and the effectiveness of the curative measures adopted. Id. After weighing all of the factors, we do not believe that the defendant was deprived of his right to a fair trial.

First, the state concedes that defense counsel did not specifically invite the prosecutor’s comments. Next, in determining whether prosecutorial impropriety was severe, we consider it highly significant that defense counsel did not object to the remarks when made, did not request curative instructions and did not move for a mistrial. See State v. Thompson, 266 Conn. 440, 479, 832 A.2d 626 (2003). “A failure to object demonstrates that defense counsel presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 51, 917 A.2d 978 (2007).

As to the frequency of the impropriety, the prosecutor’s comments occurred during closing argument only, the comments were based on evidence admitted at trial and were only a small portion of the state’s summation. See State v. Kelly, 106 Conn. App. 414, 434, 942 A.2d 440 (2008). Next, although the prosecutor’s statements were an overt appeal to the jury’s emotions, the subject of her statements, the impact of the assault on T, was not an element of sexual assault in the fourth degree. Consequently, we conclude that the prosecutor’s comments were not central to a critical issue in the case.

As to the strength of the state’s case, we note that our Supreme Court has stated that cases that lack conclusive physical evidence and are merely credibility contests are not particularly strong cases. See State v. Ceballos, 266 Conn. 364, 416, 832 A.2d 14 (2003). Although it is true that the strength of this case relies heavily on a credibility determination between the defendant and T, T’s accusations regarding the defendant were supported by the circumstantial evidence regarding the location and status of her father and stepmother at the time of the assault, as well as the defendant’s state when T and her father and stepmother returned to the bedroom where the assault took place. Finally, we note that the jury heard evidence of T’s uncharacteristic emotional mien immediately after the assault took place. Given the facts of this case and the nature of the charged offense, it is not surprising that there was no physical evidence. In sum, we do not consider the state’s case as having relied exclusively on a credibility determination between T and the defendant.

Finally, because the defendant failed to object to the impropriety, the court did not provide any specific instructions directed to the improper remarks. Immediately following closing arguments, however, the court gave the jurors the following instruction: “The arguments of counsel are not evidence in the case; they merely provide an opportunity for the lawyers to summarize what they feel the evidence supports or fails to support. But your decision must be based on the evidence in the case. If you find the facts to be in any way different from what counsel argue, then it is your findings that should sway you.” When the impropriety is brief and isolated, as it is in this case, the court’s general instructions to the jury to decide the case on the facts before it and not on the arguments of counsel serve to minimize harm from impropriety. See State v. Ancona, 270 Conn. 568, 616-17, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005). Accordingly we conclude that in the context of the entire trial, the prosecutor’s improper appeal to the emotions of the jury did not deprive the defendant of his due process right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

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