author: DUPONT, J.

text:
    NICHOLAS TARZIA v. GREAT ATLANTIC AND PACIFIC TEA COMPANY
    (AC 16676)
    Hennessy, Sullivan and Dupont, Js.

      Argued October 26, 1998
    officially released March 9, 1999

      Paul J. Pacifico, with whom, on the brief, was Ernest L. Josem, for the appellant (plaintiff).

      James F. Mullen, for the appellee (named defendant).

      Michael T. Bologna, for the appellee (third party defendant).
   Opinion

DUPONT, J.

The plaintiff, Nicholas Tarzia, appeals from the trial court’s granting of summary judgment in favor of the defendant, Great Atlantic & Pacific Tea Company, doing business as Waldbaum’s Foodmart (Waldbaum’s). On appeal, the plaintiff claims that the trial court improperly (1) denied his motion to amend his complaint to assert a claim against a third party defendant and (2) granted Waldbaum’s motion for summary judgment. We agree.

The following facts are necessary for a proper resolution of this appeal. The plaintiff commenced this negligence action against Waldbaum’s after he slipped and fell on a plastic bag in a parking lot leased by Wald-baum’s and used by its business invitees. The one count complaint alleged that Waldbaum’s, the owner of the supermarket in the shopping center where the plaintiff fell, was negligent in keeping the parking lot in an unsafe and dangerous condition by allowing the accumulation of plastic bags.

Subsequently, Waldbaum’s moved to implead its landlord, Samuel Heyman, as a third party defendant in the action. The trial court granted the motion to implead, and Waldbaum’s filed a third party complaint against Heyman. In that complaint, Waldbaum’s sought indemnification from Heyman for any judgment rendered against it in favor of the plaintiff on the ground that Heyman did not keep the parking area “reasonably free of . . . debris,” as required by his lease with Wald-baum’s. An appearance of the third party defendant was filed on February 4, 1994.

On March 23, 1994, the plaintiff filed an “assertion of claim” against the third party defendant, Heyman. The plaintiffs assertion of claim stated as follows: “Pursuant to Section 52-102a, the Plaintiff incorporates by reference the Defendant’s Third Party Complaint and the Plaintiff further asserts a claim against the Third Party Defendant for all injuries and damages sustained by him, as set forth in his complaint. This claim by the Plaintiff against the Third Party Defendant is in addition to the claim against the original Defendants.”

Thereafter, on April 27, 1994, the trial court granted Heyman’s motion to implead Kerrigan Industries (Kerri-gan) as a fourth party defendant in the action. Heyman filed a fourth party complaint against Kerrigan seeking indemnification and claiming that Heyman had discharged his obligations under the lease with Waid-baum’s by engaging the services of Kerrigan to sweep the common areas and to remove debris from the premises. On September 20, 1994, the plaintiff filed an assertion of claim against Kerrigan that was almost identical to the one previously filed against Heyman. On October 19, 1994, Kerrigan filed a motion to strike the plaintiffs assertion of claim against it on the ground that the assertion of claim did not properly assert a cause of action against Kerrigan under the rules of practice. The trial court, Karazin, J., granted the motion on August 27, 1996, finding that it was not a proper pleading under General Statutes § 52-102a.

Although the motion to strike the plaintiffs pleading called “assertion of claim” was granted as to Kerrigan, the plaintiff did not seek to amend his complaint to add a count against Kerrigan as a defendant. Thus, the plaintiffs appeal does not involve any cause of action he might have had against Kerrigan.

On September 10, 1996, after trial had commenced, the plaintiff sought to amend his complaint to include a claim against the third party defendant, Heyman. That request was denied.

On May 13, 1996, the third party defendant Heyman filed a motion for summary judgment against the defendant Waldbaum’s, claiming that his lease with Wald-baum’s made a summary judgment appropriate against the plaintiff in favor of Waldbaum’s. Heyman stated, in his memorandum in support of his motion, that Wald-baum’s did not control or possess the premises on which the plaintiff fell. According to Heyman, because the plaintiff could not prevail against Waldbaum’s if Waldbaum’s obtained a summary judgment against the plaintiff, Heyman would never need to indemnify Wald-baum’s and, therefore, Heyman was entitled to summary judgment against Waldbaum’s. On May 29, 1996, the objection to Heyman’s motion filed by Waldbaum’s was sustained by the trial court, Karazin, J., because the action for indemnification against Heyman could not accrue until a final judgment had entered against Waldbaum’s.

On May 30,1996, Waldbaum’s filed a motion for summary judgment against the plaintiff arguing that, pursuant to the lease, Heyman retained control over the parking area where the plaintiff fell and had a duty to keep it reasonably free of debris and, therefore, Wald-baum’s was not liable for the plaintiffs injuries as a matter of law. The trial court, Karazin, J., denied the motion on August 27,1996. Subsequently, on September 6, 1996, after the trial had commenced, Waldbaum’s filed a motion for permission to reargue the denial of its motion for summary judgment.

On September 10,1996, the trial court, Ryan, J., held a hearing, at which it vacated the other court’s previous order denying the motion for summary judgment filed by Waldbaum’s and granted the motion. Waldbaum’s then withdrew its third party complaint against Hey-man, and Heyman withdrew his complaint against Kerrigan. This appeal followed.

I

The plaintiff first claims that the trial court improperly denied his motion to amend his complaint to add a claim against Heyman. Specifically, the plaintiff claims that this court must look to federal law to determine the effect of the assertion of claim filed by the plaintiff. According to the plaintiff, because federal rules do not require any particular form of pleading, and because our rules of practice are to be liberally construed, the assertion of claim filed by the plaintiff constitutes a pleading sufficient to put the third party defendant, Heyman, on notice that the plaintiff was asserting a claim against him.

“While our courts have been liberal in permitting amendments; Johnson v. Toscano, 144 Conn. 582, 587, 136 A.2d 341 (1957); this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment. Cummings v. General Motors Corporation, 146 Conn. 443, 449-50, 151 A.2d 884 (1959). The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial. . . . Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983). Whether to allow an amendment is a matter left to the sound discretion of the trial court. This court will not disturb a trial court’s ruling on a proposed amendment unless there has been a clear abuse of that discretion. ... It is the [plaintiffs] burden ... to demonstrate that the trial court clearly abused its discretion.” (Citations omitted; internal quotation marks omitted.) AirKaman, Inc. v. Groppo, 221 Conn. 751, 766-67, 607 A.2d 410 (1992).

In January, 1994, Heyman was impleaded as a third party defendant by Waldbaum’s. Heyman has remained a party in the case since then and participated in the selection of a jury. There is no transcript of the voir dire of the jury and, therefore, we do not know if Heyman indicated in his voir dire questions that he was defending a claim against him brought by Waldbaum’s for indemnification or if he was also defending against an independent claim of the plaintiff’s. We know only that he participated in the voir dire and that Waldbaum’s had not yet filed Heyman’s affidavit on which its motion for summary judgment against the plaintiff was based. The plaintiff moved to amend his complaint to assert a separate claim against Heyman after the pleadings had been closed and jury selection had either started or had been completed.

General Statutes § 52-102a (c), which governs the assertion of a claim against a third party defendant by a plaintiff, provides: “The plaintiff, within twenty days after the third-party defendant appears in the action, may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff.” (Emphasis added.)

The plaintiff did not file his assertion of claim until March 23, 1994, more than twenty days after the third party defendant appeared in the action. There are no cases of which we are aware that decide whether the twenty day time limit should be strictly enforced. We conclude that, on the facts of this case, it should not be. The plaintiff could have brought an action against Heyman when he first initiated the action against Waldbaum’s. See Bradford, v. Herzig, 33 Conn. App. 714, 724, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994). Heyman was aware that the plaintiff was attempting to assert a claim against him because the plaintiffs “assertion” stated that his claim was for injuries and damages as set forth in the plaintiffs complaint, and that the plaintiffs claim was “in addition” to his claim against Waldbaum’s.

The plaintiff did not need to add Heyman to the suit by way of writ, summons and complaint as was necessary when Waldbaum’s added Heyman as a third party defendant as provided by § 52-102a (a). Heyman was already a party in the case when the plaintiff asserted his claim and when the plaintiff attempted to amend his complaint. As such, Heyman had the right to address claims against him by Waldbaum’s and by the plaintiff, and could also address the claim of the plaintiff against the original defendant. See Malerba v. Cessna Aircraft Co., 210 Conn. 189, 192-93, 554 A.2d 287 (1989). Because the original defendant’s fate, vis-a-vis the plaintiff, directly affected Heyman, the status of the three parties was intertwined. See Protter v. Brown Thompson & Co., 25 Conn. App. 360, 363, 593 A.2d 524, cert. granted, 220 Conn. 910, 597 A.2d 335 (1991) (appeal withdrawn). Heyman, at the time the plaintiff asserted his claim against him, was not only a third party defendant but was, as to the plaintiff, the same as an original defendant.

On the facts of this case, the trial court abused its discretion in not allowing the plaintiff to amend his complaint because the length of the delay in seeking to amend did not prejudice the third party defendant, Heyman, and it would not have delayed the trial, which had already begun, and would not surprise Heyman in view of the plaintiffs attempt to comply with § 52-102a (c).

II

The plaintiff next claims that the trial court improperly granted summary judgment in favor of Waldbaum’s. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996).” (Citations omitted; internal quotation marks omitted.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991). . . . Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997).” (Internal quotation marks omitted.) Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). “On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.” 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

The following additional facts are necessary for a proper resolution of this claim. Waldbaum’s moved for summary judgment, arguing that based on the unambiguous terms of the lease and the admissions of Heyman that he was in control of the parking lot where the plaintiff fell, issues of fact did not exist as to whether Waldbaum’s was in control of the parking lot and, therefore, Waldbaum’s was entitled to judgment as a matter of law. In support of its motion, Waldbaum’s submitted a copy of the lease and an affidavit of Jack McNamera, the director of property management for Heyman Properties. The affidavit stated that under the terms of the lease, Heyman, not Waldbaum’s, was responsible for maintaining the parking areas and that the lease gave Heyman Properties complete possession and control of the parking area. The motion for summary judgment filed by Waldbaum’s was denied by the trial court, Kara-zin, J., on August 27, 1996.

At the September 10,1996 hearing, however, the trial court, Ryan, J., heard argument on the motion for summary judgment filed by Waldbaum’s. Counsel for the third party defendant, Ileyman, stated that Heyman was in exclusive possession and control of the parking area. The trial court asked the plaintiffs counsel whether he planned to present any evidence, either then or at trial, to contest the evidence offered by Waldbaum’s in support of its motion for summary judgment. The plaintiffs counsel stated that he had no other evidence in the case except the testimony of a witness attesting to the fact that there was debris in the parking lot. The plaintiffs counsel also stated that he intended to elicit testimony from a manager of Waldbaum’s to establish that Waldbaum’s knew or should have known of the existence of the debris, regardless of any contractual duty of Heyman to clear the debris.

Judge Ryan stated: “Unless anybody wishes to speak, I believe it’s necessary for me, even though there’s a rule of this particular case, and the motion for summary judgment was denied in the past, in view of what’s transpired on the record in this particular case, and, of course, Judge Karazin’s ruling as a concept of the pleading, it’s incumbent on me to actually reverse the prior ruling on the motion for summary judgment and grant the same.”

The question to be resolved here—whether a tenant who has actual or constructive knowledge of a dangerous condition in a leased area, which the landlord has contractually agreed to maintain, may be liable to the tenant’s business invitees who use the leased area—is a matter of law. The trial court believed the answer to be no, based on the contractual commitment of Heyman to Waldbaum’s to keep the premises reasonably free of debris and, accordingly, granted summary judgment in favor of Waldbaum’s. The issue is not one of construction of the lease between Ileyman and Waldbaum’s, which would have been the issue to be resolved if we were deciding whether the defendant Waldbaum’s should prevail on its complaint against the third party defendant, Heyman, in the event the plaintiff obtained a judgment against Waldbaum’s. Ordinarily, a cause of action for indemnification must await a final judgment against the defendant. See W. S. Rockwell Co. v. Lindquist Hardware Co., 143 Conn. 684, 687, 125 A.2d 173 (1956).

The plaintiff has alleged that the defendant Waldbaum’s was negligent. To prevail, he must establish that the defendant owed a duty to him and that that duty was breached. The existence of a duty is a legal conclusion. See Ciarlelli v. Romeo, 46 Conn. App. 277, 282, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997). The defendant Waldbaum’s leased premises owned by the third party defendant, Heyman. The lease included the parking lot used by its business invitees. Waldbaum’s had a duty to exercise reasonable care to protect its invitees from dangers that might reasonably be anticipated to arise from the condition of the parking lot. Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).

In essence, the defendant argues that it owes no duty of care to the plaintiff because the defendant delegated that duty and control of the leased parking lot to the third party defendant. The plaintiff was present in the parking lot as a business invitee of the defendant, having alleged that immediately preceding his fall, he had bought groceries in the defendant’s store. See Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). The possessor of premises who has invited persons to those premises for a business purpose cannot escape liability for a claimed breach of its duty to exercise reasonable care to keep the premises in a safe condition by hiring another to maintain the premises in a safe condition. See Newell v. K. & D. Jewelry Co., 119 Conn. 332, 334, 176 A. 405 (1935). Whether a duty was also owed to the plaintiff by the defendant’s landlord, Hey-man, is not the issue of this appeal. See DeLorenzo v. Great Atlantic & Pacific Tea Co., 4 Conn. App. 560, 495 A.2d 1106 (1985).

Waidbaum’s could not absolve itself of its duty to its customers, who shop in its store and use the parking lot to gain entrance and exit from its store, to keep all of the premises it uses for its business purposes in a safe condition by contracting with another. As a matter of law, Waidbaum’s owed a duty to the plaintiff to use reasonable care to keep the leased premises in a reasonably safe condition. Whether that duty was breached and whether there is a causal connection between the breach and the plaintiffs alleged injuries are questions of fact that a trial would resolve. Waidbaum’s was not entitled to summary judgment.

The judgment for Waidbaum’s is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       Both the third party defendant, Heyman, and the defendant, Waldbaum’s, have filed briefs in this appeal.

       The lease entered into between Waldbaum’s and Heyman provided, in relevant part: “Landlord agrees to keep or cause the parking areas in the Shopping Center and the other common areas (excepting sidewalks adjacent and contiguous to any building in the Shopping Center) to be kept reasonably free o/snow, ice and debris (subject to accumulations of snow in portions of the common areas resulting from plowing); to restripe parking lines as necessary; to repave or patch the parking lot, as necessary; to keep the parking areas in good repair; to maintain any landscaping in the common areas; to [maintain] any traffic signals servicing the Shopping Center, if Landlord is so required by law; and to keep the same lighted during normal evening business hours of the Tenant.” (Emphasis added.)

       Practice Book § 17-44, formerly § 379, provides that a party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. Here, implicit in the trial court’s ruling, which occurred after the trial had commenced, was its permission to consider the motion for summary judgment.

       On September 27, 1996, the plaintiff filed a motion to reargue the trial court’s decisions concerning the motion for summary judgment filed by Waldbaum’s and the plaintiffs motion to amend. On September 30, 1996, the plaintiff filed a corrected motion to reargue. The trial court granted the corrected motion to reargue on October 30, 1996, but denied the relief requested therein. Pursuant to Practice Book § 4009, now § 63-1, the plaintiff had until November 19, 1996, in which to file his appeal. On November 19, 1996, however, the plaintiff filed a motion for an extension of time to file an appeal and it is unclear whether the trial court took any action on the motion. The plaintiff did not file his appeal until December 6, 1996. The defendant has not complained that the plaintiffs appeal was untimely and we may, in our discretion, retain jurisdiction because there has been no timely objection to an untimely appeal.

       Heyman, in the brief filed in this appeal, argues that this claim should not be considered on appeal because the plaintiffs appeal form indicated an appeal from summary judgment against the plaintiff in favor of Waldbaum’s as the only appealable issue. Although the denial of a motion to amend is not a final appealable judgment, it can be raised in an appeal from a subsequent final judgment on the underlying complaint. See Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 49 Conn. App. 731, 733-34, 715 A.2d 819, cert. denied, 247 Conn. 920, 722 A.2d 809 (1998).
      Although Heyman is no longer a third party defendant because Wald-baum’s withdrew its complaint against him, the viability of any claim by the plaintiff against Heyman is unaffected by that withdrawal. Section 52-102a (c) allows the plaintiff to assert “any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the original complaint, and the third-party defendant, as against such claim, shall have available to him all remedies available to an original defendant, including the right to assert set-offs or counterclaims against the plaintiff.” This language makes it clear that a cause of action of the plaintiff against Heyman does not depend on any obligation of the third party to indemnify the defendant, but depends instead on the remedies that the plaintiff could have asserted against the third party defendant had the third party defendant been an original defendant. The statute treats the third party defendant as an original defendant vis-a-vis the plaintiff.

       The plaintiffs assertion of claim incorporated the defendant’s third party complaint against Heyman, and asserted a claim against Heyman for the plaintiffs injuries and damages as set forth in the plaintiffs complaint. The assertion also asserted that the plaintiff’s claim was in addition to the claim against Waldbaum’s.

       On September 6, 1996, Waldbaum’s filed a motion to reargue the denial of its motion for summary judgment. The record does not indicate whether the motion for reargument was granted. Waldbaum’s, however, filed a supplemental brief in support of its motion for summary judgment on September 10,1996, and it is clear from the transcript of the September 10,1996 hearing, that the trial court did not raise the summary judgment issue sua sponte, but that at the request of the counsel for Waldbaum’s, the trial court reconsidered the previous order of the court denying the motion for summary judgment filed by Waldbaum’s. A trial court judge may, “in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law.” (Internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 98-99, 439 A.2d 1066 (1982). “A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. . . . Nevertheless, if the case comes before him regularly and he becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment.” (Citation omitted.) Id., 99-100.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAFAL ROZMYSLOWICZ STATE OF CONNECTICUT v. JAKUB KLOCEK
    (AC 17017)
    (AC 17062)
    Foil, Lavery and Sullivan, Js.

      Argued December 11, 1998
    officially released March 9, 1999

      Norman A. Pattis, for the appellants (defendants).

      Toni M. Smith-Rosario, deputy assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendants, Rafal Rozmyslowiez and Jakub Klocek, appeal from judgments of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1) and 53a-8 and larceny in the second degree in violation of General Statutes § 53a-123 (a) (2). The defendants claim that the trial court improperly (1) denied then-motions for judgments of acquittal because there was insufficient evidence to support their convictions of burglary in the first degree and (2) refused to charge the jury on the lesser included offense of using a motor vehicle without permission. We affirm the judgments.

The jury reasonably could have found the following facts. At some time between 11 p.m. on June 29 and 2:40 a.m. on June 30,1995, the defendants entered Mary DellaCamera’s home by cutting a screen on her open living room window. The defendants took a ring, a watch and the keys to DellaCamera’s 1991 automobile. They also took two steak knives. The defendants then exited the home and drove away in DellaCamera’s car.

Officer Edward Keyes of the Branford police department observed the car moving at an unusually slow pace and the brake lights were being repeatedly tapped. Without activating his lights or siren, Keyes followed and requested a license plate check on the car. The license plate check indicated that the car belonged to DellaCamera. The defendants parked the car in an apartment parking lot in Branford. Keyes parked behind the car and stopped the defendants as they began to exit. After the defendants gave their names, Keyes shined a flashlight into the car and observed two steak knives on the backseat. Meanwhile, a second police officer, Ronald Washington, went to DellaCamera’s home, where DellaCamera stated that her car was missing along with a watch and a ring that she had left in her kitchen. The police arrested the defendants. The defendants were convicted, and these appeals followed.

I

The defendants first claim that the trial court improperly denied their motions for judgments of acquittal of burglary in the first degree. Specifically, the defendants assert that there was insufficient evidence to support a conclusion that the defendants possessed a “dangerous instrument” as required by the burglary statute. We disagree.

“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 16, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. State v. Carter, [196 Conn. 36, 44, 490 A.2d 1000 (1985)]. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Carter, supra, 44-45; State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984) . . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, supra, 227. . . . [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. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Citations omitted; internal quotation marks omitted.) State v. Radzvilowiez, supra, 47 Conn. App. 16-18.

General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .” General Statutes § 53a-3 (7) defines dangerous instrument as “any instrument, article or substance which, under the circumstances in which it is used ... is capable of causing death or serious physical injury . . . .” Whether a person arms himself with a dangerous instrument after entering the dwelling or enters the dwelling already armed is irrelevant with respect to his culpability under the statute. State v. Belton, 190 Conn. 496, 507, 461 A.2d 973 (1983). Although an item’s potential for use as a weapon does not make it a dangerous instrument; State v. Grant, 177 Conn. 140, 146 n.5, 411 A.2d 917 (1979); the facts and circumstances of a particular case may make such an inference permissible.

These defendants entered DellaCamera’s dwelling at night and took various valuables. While committing the burglary, the defendants armed themselves with two steak knives. The knives had little value. The knives were not used as tools; the evidence showed that the defendants cut the window screen to gain entry to the home before they acquired the knives. The evidence also showed that the defendants were aware of the presence of the inhabitants in the home. Under these circumstances, the jury could reasonably infer that the defendants took the knives to arm themselves in case the inhabitants of the home confronted them rather than for their value or as tools. That such a confrontation never occurred does not matter.

Contrary to the defendants’ assertion, State v. Grant, supra, 177 Conn. 140, is inapposite. In Grant, the Supreme Court reversed a conviction of attempt to commit burglary in the first degree in which the dangerous instrument was a tire iron used to gain entry to the building. In that case, no evidence was offered to show that the tire iron was used as a weapon, intended or attempted to be used as a weapon or that the tire iron was ever inside the building. That is not the case here where the defendants acquired the knives in DellaCam-era’s kitchen. They neither used the knives as burglary tools nor took them for value. It was not unreasonable for the jury to infer from the evidence that the defendants took the knives to arm themselves during the burglary.

On the basis of our review of the record, we conclude that there was sufficient evidence for the jury to conclude that the defendants were armed with dangerous weapons and thus committed burglary in the first degree.

II

The defendants’ second claim is that, with respect to the charge of larceny in the second degree, the trial court improperly refused to charge the jury on the lesser included offense of operating a motor vehicle without permission.

“In determining whether the trial court was required to charge the jury on a lesser included offense, the reviewing court must apply the four-pronged test in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their prooís, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser. Id. In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, [supra, 588], we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. . . . On appeal, an appellate court must reverse a trial court’s failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense. . . . State v. Collins, 45 Conn. App. 6, 9-10, 692 A.2d 865 (1997).” (Internal quotation marks omitted.) State v. Preston, 46 Conn. App. 778, 781-82, 700 A.2d 1190, cert. granted on other grounds, 243 Conn. 946, 704 A.2d 800 (1997).

The defendants’ claim fails to satisfy the second prong of Whistnant. That prong requires that it not be possible to commit the greater offense without committing the lesser offense. “[T]he court may look only to the information and bill of particulars—as opposed to the evidence presented at trial—to determine what constitutes a lesser included offense . . . .” State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977). The third counts of the informations charges that the defendants “with the intent to deprive another of property or to appropriate the same to himself or a third person, did wrongfully take, obtain or withhold such property from an owner, the value of which exceeds $5000, said conduct being in violation of §§ 53a-123 (a) (2) and 53a-8 of the Connecticut General Statutes.” The fourth counts of the informations charge that the defendants “did possess or retain stolen property knowing that it has probably been stolen, the value of which property exceeds $5000, said conduct being in violation of §§ 53a-123 (a) (2) and 53a-8 and 53a-119 (8) of the Connecticut General Statutes.” As the information is written, it is possible to commit the greater offense of larceny in the second degree without committing the lesser offense of operating a motor vehicle without the owner’s permission. Specifically, one may “wrongfully take, obtain or withhold” or “possess or retain stolen property” the value of which exceeds $5000 without involving a motor vehicle. Thus, the second prong of Whistnant is not met.

The defendants would have us ignore binding case law and look beyond the information to conclude that using a motor vehicle without permission is a lesser included offense in this case because only the car could have provided the $5000 value required by the larceny statute. Even if we were to do so, the defendants’ claim would still fail to satisfy the fourth prong of Whistnant because the proof on the element differentiating the offenses, i.e., intent permanently to deprive, is not sufficiently in dispute. “The fourth prong of Whistnant specifically requires that the ‘proof be ‘sufficiently in dispute.’ Such proof is ‘sufficient’ when it is ‘marked by [a] quality [such as] to meet with the demands, wants or needs of a situation . . . .’Webster, Third New International Dictionary. In the Whistnant context, therefore, the proof is ‘sufficiently in dispute’ where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. See Sansone v. United States, 380 U.S. 343, 349-50, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965); Sparf and Hansen v. United States, 156 U.S. 51, 63-64, 15 S. Ct. 273, 39 L. Ed. 343 (1895); United States v. Brown, 551 F.2d 236, 239 n.4 (8th Cir. 1977). This rationale comports with the view that ‘ [¶] act finding does not require mathematical certainty. [But] [j jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.’ Schulz v. Pennsylvania R. Co., 350 U.S. 523, 526, 76 S. Ct. 608, 100 L. Ed. 668 (1956). Moreover, the trial court, in making its determination whether the proof is ‘sufficiently in dispute,’ while it must carefully assess all the evidence whatever its source, is ‘not required to put the case to the jury on a basis [of a lesser included offense] that essentially indulges and even encourages speculations as to [a] bizarre reconstruction [of the evidence].’ United States v. Sinclair, 444 F.2d 888, 890 (D.C. Cir. 1971).” State v. Manley, 195 Conn. 567, 578-580, 489 A.2d 1024 (1985).

The defendants argue that, because the state’s evidence linking the defendants to the victim’s home was circumstantial rather than direct, the proof is sufficiently in dispute to meet the fourth prong of Whist-nant. “There is no distinction between direct and circumstantial evidence so far as probative force is concerned . . . .” (Citations omitted; internal quotation marks omitted.) State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). The evidence at trial showed that the defendants were in possession of the automobile, watch, ring and knives less than five hours after Della-Camera last saw these items. The evidence also showed that the DellaCamera’s car keys were in her pocketbook when she went to sleep on the night of the burglary and that her car was parked in front of her home. The defendants offered no explanation as to how they came into possession of the stolen property nor did they offer any proof that they did not intend to deprive DellaCam-era of her property. Because the proof of the element differentiating the greater charge from the lesser is not sufficiently in dispute, the defendants have not satisfied the fourth prong of Whistnant.

We conclude that the trial court did not act improperly in refusing to charge the jury on the lesser included offense.

The judgments are affirmed.

In this opinion the other judges concurred.

       The jury also found the defendants guilty of burglary in the second degree in violation of General Statutes §§ 53a-102 (a) and 53a-8.

       “Larceny requires the existence of a felonious intent in the taker to deprive the owner of [the property] permanently.” State v. Marshall, 3 Conn. App. 126, 129-30, 485 A.2d 930 (1985), appeal dismissed, 199 Conn. 244, 506 A.2d 1035 (1986).

       Rozmyslowicz did tell Keyes that he had gotten the car from “John.” He did not explain or elaborate on this, nor do the defendants on appeal point to anything in the record that would create a sufficient dispute to meet the fourth prong of Whistnant.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ANTONIO FORDE
    (AC 17636)
    Lavery, Landau and Hennessy, Js.
    Argued November 10, 1998
    officially released March 9, 1999

      Jeanne M. Zulick, special public defender, for the appellant (defendant).

      Michael L. Regan, senior assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Antonio Forde, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b). The defendant claims that (1) the trial court improperly refused to grant his motion for a judgment of acquittal, which he based on his claim of insufficiency of the evidence, and (2) the prosecutor’s closing argument, which included comments on the defendant’s failure to testify and on facts not in evidence and his personal opinion as to the guilt of the defendant, denied the defendant his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 25, 1996, Officers Corey Poore and Robert Blanch of the Norwich police department received a report of alleged drug activity at the intersection of Lake and Pond Streets in Norwich, an area known for drug activity. After receiving the report, Poore and Blanch, who were patrolling the area on bicycles, responded and took up surveillance behind a fence in the backyard of a house on Boswell Avenue. This surveillance point allowed Poore and Blanch to see the intersection, where they observed three males sitting on a stone wall located approximately thirty-five to fifty yards from their surveillance point.

Within a minute of the officers’ arrival at the surveillance point, one of the three men left the area. Soon thereafter, a male between twenty-five to thirty years of age drove up in a pickup truck. The driver stopped the truck next to the remaining two males. One of the subjects, later identified as the defendant, approached the passenger side of the truck. The officers observed the defendant reach into the open passenger side window and take money from the driver. When he received the money, the defendant made a subtle, waving motion to the second male, later identified as Wayne Scott, who was then standing approximately ten feet from the defendant. Thereafter, Scott walked toward part of the stone wall that was beyond the officers’ view. The officers lost sight of Scott for less than ten seconds, and then Scott returned to the driver’s side of the pickup truck and handed an item, which the officers could not identify from their vantage point, to the driver. The pickup truck then continued down the street and left the area.

After the officers had witnessed what they believed to be a “hand-to-hand narcotics transaction,” Poore called the police dispatcher regarding the pickup truck and requested a police cruiser for assistance; the pickup truck, however, was never stopped.

Poore and Blanch then mounted their bicycles, rode to the area and confronted the defendant and Scott. The defendant and Scott were sitting in the spot where they had been prior to the arrival of the pickup truck. A police cruiser arrived at the same time as the officers. Poore and Blanche noticed that the defendant was still holding money in his hand, which was later seized and determined to be $460.

After the defendant and Scott were detained, Blanch went to the section of the wall where he and Poore had momentarily lost sight of Scott and retrieved a paper bag holding small plastic containers with caps. The vials contained a white rock-like substance that tested positive for cocaine.

The defendant was arrested and subsequently tried before a jury in June, 1997. During trial, an expert witness for the state, Sergeant Jeffrey Hotsky of the Connecticut state police, testified that possession of thirty-two vials of crack cocaine was consistent with possession with intent to sell as opposed to possession for personal use. He stated that it is common for street level drug dealers to have more than one person involved in sales, with one individual handing the money and the other individual handing the drugs. Hotsky also testified that dealers would keep only a small quantity of drugs on their person, while the bulk of the drugs were hidden nearby.

At the close of the state’s case, defense counsel made an oral motion for a judgment of acquittal on all three counts. The trial court denied the motion. The defendant was convicted on all charges, and this appeal followed.

I

The defendant claims that the trial court improperly refused to grant his motion for a judgment of acquittal. Specifically, the defendant argues that the evidence was legally insufficient to establish guilt of any of the charges beyond a reasonable doubt. We disagree.

“This court’s review of claims relating to the sufficiency of the evidence to sustain a criminal conviction is governed by a well established standard of law. Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same. . . . We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. . . . State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993).” (Internal quotation marks omitted.) State v. Knight, 50 Conn. App. 109, 112, 717 A.2d 274 (1998).

A

The first question before us is whether, from the facts presented at trial, it was reasonable for the juiy to determine that the defendant had constructive possession of the cocaine that was seized from the stone wall, thereby supporting the defendant’s conviction for possession with intent to sell in violation of General Statutes § 21a-278 (b). “General Statutes § 21a-278 (b) requires proof that the defendant possessed a narcotic substance. To establish possession, the state must show beyond a reasonable doubt that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); see also State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . State v. Alfonso, [supra, 633]. Thus, the presence of the defendant near the contraband without more is insufficient to support an inference of possession. State v. Brunori, supra, 436.” (Emphasis added; internal quotation marks omitted.) State v. Ober, 24 Conn. App. 347, 351-52, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991).

In this case, evidence was presented that included sufficient indicia of ownership on the part of the defendant to support the jury’s determination. Poore and Blanch observed the defendant and Scott seated on a wall in an area known for active drug trafficking. After a pickup truck pulled up, the police observed the defendant approach the truck and take what appeared to be money from the unidentified driver and put it with money that he took out of his pocket. Poore and Blanch then observed the defendant signal to Scott who then went over to the wall on which they had been seated. Scott returned to the pickup truck and handed an unidentified item to the driver, who then left the scene.

Believing, on the basis of their experience, that a drug sale had occurred, the police confronted and arrested the defendant and Scott. The defendant was found to have $460 on his person. In addition, the officers retrieved a paper bag containing thirty-two vials of what was later determined to be crack cocaine from the wall that Scott had approached. On the basis of those circumstances, the jury could have reasonably inferred that the defendant had control over the drugs and that a sale had taken place. The jury’s verdict with respect to the charge of criminal possession of narcotics with intent to sell is therefore sufficiently supported by the evidence.

B

The second issue is whether, from the facts presented at trial, the jury reasonably could have determined that the defendant had sold a narcotic substance in violation of General Statutes § 21a-278 (b). It is axiomatic that “the offense of the sale of a narcotic substance requires proof of a sale.” State v. Smart, 37 Conn. App. 360, 368, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995). The defendant claims that the state did not prove the essential element of delivery to establish a sale and further that the state did not prove that the unidentifiable item sold was actually cocaine. This claim fails on the basis of our analysis in the preceding section and for the following additional reasons.

Here, Poore and Blanch observed money change hands between the defendant and the driver of the pickup truck. The defendant then signaled to Scott, who went to the stone wall and removed an item from a paper bag, which was later determined to contain a number of vials of cocaine. Scott then gave the item to the driver of the pickup truck. The defendant was later found to have $460 on his person, despite being unemployed. We have, furthermore, previously established that the defendant constructively possessed the paper bag containing thirty-two vials of cocaine. During trial, Hotsky testified as an expert witness for the prosecution that the quantity of narcotics possessed by the defendant and Scott was consistent with sale as opposed to personal use.

In this case, the unidentified item sold to the man in the pickup truck was never recovered, so there was no direct evidence that it was, in fact, cocaine. The state, therefore, had to rely on circumstantial evidence to prove that the defendant sold cocaine. This court has previously stated that “[s]o far as probative force is concerned, there is no distinction between direct and circumstantial evidence . . . and all the evidence must be given a construction most favorable to sustaining the jury’s verdict.” (Citation omitted.) State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987).

On the basis of the verdict in the present case, it is clear that the jury inferred that the item handed by Scott to the unidentified driver of the pickup truck in exchange for money, the transfer of which was orchestrated by the defendant, was a nar cotic substance. We must, therefore, consider whether the jury’s inference was so unreasonable that the verdict cannot be supported. That inference was supported by the facts that the item appeared to have come from the same paper bag that had Scott’s fingerprint on it and was found to contain a number of vials that were later proven to contain cocaine. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence . . . .” (Internal quotation marks omitted.) Id., 317. We conclude that the jury’s inference in this case was not unreasonable and that the evidence was sufficient to support the jury’s verdict on the charge of sale of a narcotic substance.

C

We next must determine whether there was sufficient evidence to support the defendant’s conviction of conspiracy to sell a narcotic substance. The defendant argues that there was insufficient evidence to establish an agreement between the defendant and Scott to sell the cocaine. He further claims that there was insufficient evidence to prove that any of the three overt acts alleged by the state in the third count of the substitute information were committed by the defendant and Scott in furtherance of the conspiracy. We disagree.

1

“To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. . . . The state is also obligated to prove that the accused intended that conduct constituting a crime be performed. (Citations omitted.) State v. Jones, 35 Conn. App. 839, 846-47, 647 A.2d 43 (1994).” (Internal quotation marks omitted.) State v. Elijah, 42 Conn. App. 687, 695, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996).

“[I]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement. State v. Stellato, [10 Conn. App. 447, 453, 523 A.2d 1345 (1987)].” (Internal quotation marks omitted.) State v. Elijah, supra, 42 Conn. App. 696. Indeed, “[b]ecause of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence. State v. Vessichio, [197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986)].” (Internal quotation marks omitted.) State v. Elijah, supra, 696. “ ‘[A] conspiracy can be inferred from the conduct of the accused. State v. Lynch, [21 Conn. App. 386, 400, 574 A.2d 230, cert. denied, 216 Conn. 806, 580 A.2d 63 (1990)].’ State v. Boykin, [27 Conn. App. 558, 565, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992)].” State v. Elijah, supra, 696.

Furthermore, “[t]he size of a defendant’s role does not determine whether that person may be convicted of conspiracy charges. Rather, what is important is whether the defendant willfully participated in the activities of the conspiracy with knowledge of its illegal ends. . . . Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation.” (Citations omitted; internal quotation marks omitted.) State v. Boykin, supra, 27 Conn. App. 565.

The jury reasonably and logically could have inferred that the defendant and Scott had agreed to work in concert to commit the crime of selling cocaine. The defendant spoke with the driver of the pickup truck and took money from him. The defendant then signaled Scott and Scott walked to and from the stone wall where the bag with thirty-two vials of cocaine was hidden and handed an item to the person in the pickup truck. Those facts support the inference that the defendant and Scott had agreed to participate in the venture. We, therefore, conclude that there was sufficient evidence to support the jury’s determination that the defendant and Scott had entered into an agreement to sell cocaine.

2

The defendant further claims that there was insufficient evidence to prove that any of the three overt acts alleged by the state in the third count of the substitute information were committed by the defendant and Scott in furtherance of the conspiracy. Those allegations are “(1) [tjhat prior to 4:30 p.m., Antonio Ricardo Forde and Wayne A. Scott met in the area of the intersection of Lake Street and Pond Street for the purpose of selling cocaine; (2) [tjhat prior to 4:30 p.m., either Antonio Ricardo Forde or Wayne A. Scott or both hid a number of vials of cocaine in a stone wall in the area of the intersection of Lake Street and Pond Street; (3) [tjhat at approximately 4:30 p.m., Antonio Ricardo Forde and Wayne A. Scott sold cocaine to another person in the area of the intersection of Lake Street and Pond Street; in violation of Sections 53a-48 (a) and 21a-278(b) of said Statutes.”

“The law on overt act charges was set forth in United States v. Sellers, 603 F.2d 53, 56 (8th Cir. 1979), vacated in part on other grounds, 447 U.S. 932, 100 S. Ct. 3033, 65 L. Ed. 2d 1127 (1980), modified, 628 F.2d 1085 (8th Cir. 1980). ‘In a conspiracy prosecution, the government is not limited to proof of only those overt acts charged in the indictment and in fact need not prove every overt act alleged.’ United States v. Harris, 542 F.2d 1283, 1300 (7th Cir. 1976), cert. denied [sub nom. Clay v. United States], 430 U.S. 934, 97 S. Ct. 1558, 51 L. Ed. 2d 779 (1977); United States v. Adamo, 534 F.2d 31, 38 (3d Cir.), cert. denied [sub nom. Kearney v. United States], 429 U.S. 841, 97 S. Ct. 116, 50 L. Ed. 2d 110 (1976).” State v. Boykin, supra, 27 Conn. App. 571-72.

“An overt act is an essential ingredient of the crime of conspiracy; it may be committed by either coconspirator. State v. Walton, 227 Conn. 32, 48, 630 A.2d 990 (1993).” State v. Elijah, supra, 42 Conn. App. 697. Here, possession of narcotics with intent to sell was the principal overt act of the conspiracy. See id. This court has previously recognized that “ ‘Possession of the drugs is sufficient for proof of the overt act in a conspiracy. [State v. Walton, supra, 48.]’ State v. Goodrum, 39 Conn. App. 526, 540, 665 A.2d 159, cert. denied, 235 Conn. 929, 667 A.2d 554 (1995).” State v. Elijah, supra, 697. Furthermore, “Participation in a single act in furtherance of the conspiracy is enough to sustain a finding of knowing participation. ...” (Citations omitted.) Statev. Goodrum, supra, 538. Because we have already determined that there was sufficient evidence for the jury reasonably to find that the defendant had constructive possession of the cocaine, we conclude that there was sufficient evidence for the jury reasonably to find the necessary overt act in furtherance of the conspiracy.

II

The defendant next claims that the prosecutor’s closing argument denied the defendant his right to a fair trial. Specifically, the defendant claims that the prosecutor improperly (1) commented on the defendant’s failure to testify, (2) commented on facts not in evidence and (3) gave his personal opinion as to the guilt of the defendant. Although the defendant concedes that he failed to preserve this claim during trial, he argues that his claim is reviewable pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We will review this claim because the record is adequate for review and the defendant alleges a claim of constitutional magnitude in asserting that he was denied his due process right to a fair trial. See State v. Otero, 49 Conn. App. 459, 463, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998); see also State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). The defendant’s claim fails, however, because the alleged constitutional violation did not clearly exist and did not clearly deprive him of a fair trial. We will address each of these issues in turn.

Our Supreme Court has “previously acknowledged that prosecutorial misconduct can occur in the course of closing argument. State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). In order to deprive a defendant of his constitutional right to a fair trial, however, the prosecutor’s conduct must have ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.’ . . . Id., 539-40.” State v. Atkinson, 235. Conn. 748, 768-69, 670 A.2d 276 (1996).

“[T]o determine whether claims of prosecutorial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989).” State v. Garrett, 42 Conn. App. 507, 515-16, 681 A.2d 362, cert. denied, 239 Conn. 928, 929, 683 A.2d 398 (1996). To make this determination, we must focus on several factors: “ ‘(1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.’ State v. Williams, 41 Conn. App. 180, 190, 674 A.2d 1372, cert. denied, 237 Conn. 925, 677 A.2d 950 (1996).” State v. Garrett, supra, 516.

A

We must first examine the prosecutor’s challenged comments. The defendant specifically points to the prosecutor’s reference to the defendant’s failure to give his address and employment status on the personal history form taken by Blanch when the defendant was processed at the police station.

“It is well settled that comment by the prosecuting attorney ... on the defendant’s failure to testify is prohibited by the fifth amendment to the United States constitution. Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106, reh. denied, 381 U.S. 957, 85 S. Ct. 1797, 14 L. Ed. 2d 730 (1965). ... Our legislature has given statutory recognition to this right by virtue of its enactment of General Statutes § 54-84. In determining whether a prosecutor’s comments have encroached upon a defendant’s right to remain silent, we ask: Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify? . . . Further, in applying this test, we must look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury. . . . Finally, [w]e also recognize that 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. . . . State v. Haase, 243 Conn. 324, 332-33, 702 A.2d 1187 (1997).” (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 570-71, 710 A.2d 1348 (1998).

During closing argument, the prosecutor stated, “There is no evidence that Mr. Forde was employed. We are not even sure where he lived.” These comments were based on uncontradicted testimony given by Blanch on both direct and cross-examination that the defendant provided neither his address nor place of employment on the personal history taken by the police as a part of their processing procedure. Indeed “[t]he fifth amendment to the United States constitution, applicable to the states through the fourteenth amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt. . . . This does not mean that the state is prohibited from calling to the jury’s attention any portion of the evidence that stands uncontradicted . . . .” (Citations omitted; internal quotation marks omitted.) State v. Harris, 48 Conn. App. 717, 720, 711 A.2d 769, cert. denied, 245 Conn. 922, 717 A.2d 238 (1998). Here, the prosecutor’s comments highlighted uncontroverted testimony offered, and not objected to, during trial. We agree with the state that the prosecutor’s comments were reasonable inferences based on uncontroverted evidence and, therefore, conclude that the jury would not reasonably have taken them to be comments on the defendant’s failure to testify. As a result, we conclude that the defendant’s claim fails to satisfy the third prong of Golding.

B

We next consider whether the prosecutor improperly suggested an inference from facts not in evidence. The defendant specifically claims that there was no evidence offered to prove that he was unemployed, but the prosecutor improperly stated during closing argument that that was a fact. We disagree with the defendant’s contention. While we recognize that counsel may not comment or suggest an inference from facts not in evidence; State v. Prioleau, 235 Conn. 274, 320, 664 A.2d 743 (1995); here, evidence was offered during Blanch’s direct and cross-examination that the defendant was unemployed because the personal history form listed no employment. Because that fact was properly in evidence, the prosecutor’s comment on it during closing argument was not improper. The defendant’s claim therefore fails to satisfy the third prong of Golding.

C

We last address whether the prosecutor improperly gave his personal opinion as to the guilt of the defendant. As a prehminary matter, we note that a prosecutor may not express his opinion, directly or indirectly, as to the guilt of the defendant. State v. Williams, supra, 204 Conn. 541. “Such expressions of personal opinion are a form of unsworn and unchecked testimony.” Id. We agree with the defendant that the prosecutor improperly stated his opinion on an ultimate issue of fact when he stated: “I think that they were there to sell crack cocaine.” While we agree with this assertion, “[w]e do not scrutinize each individual comment in a vacuum, but rather ‘we must review the comments complained of in the context of the entire trial.’ State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). It is in that context that ‘the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.’ Id.” State v. Chasse, 51 Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). The defendant has failed to meet his burden. That statement was a singular instance of a clearly improper remark, but it was isolated and was not part of an egregious pattern of misconduct that would “[deprive] the defendant of a fair trial ... or otherwise [implicate] the fairness and integrity of and public confidence in the judicial proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Garrett, supra, 42 Conn. App. 517. We conclude, therefore, that the prosecutor’s remarks did not cause substantial prejudice to the defendant and, consequently, that further review of the defendant’s prosecutorial misconduct claim pursuant to Golding is unwarranted. Id., 517-18.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

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

       That man remains unidentified.

       Scott was later searched at the police station, but no money was found on his person.

       The toxicology laboratory of the Connecticut department of public health tested the substance in fifteen of the thirty-two vials, which was subsequently determined to be 97 percent pure freebase, or crack, cocaine. The paper bag containing the vials had Scott’s fingerprint on it.

      The defendant did not present any evidence.

       In support of his claim, the defendant cites three cases, In re Benjamin C., 22 Conn. App. 458, 577 A.2d 1117 (1990), State v. Brunori, 22 Conn. App. 431, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990), and People v. Russell, 34 N.Y.2d 261, 357 N.Y.S.2d 415, 313 N.E.2d 732 (1974). We agree with the state’s assertion that the defendant’s reliance on these cases is misplaced because these cases are factually dissimilar from this case. Brunori and Russell involve scenarios in which the defendant drops something that is later determined to be narcotics. In In re Benjamin C., the respondent minor had physical possession of narcotics at some point dining police surveillance. Here, the defendant never had actual possession of the drugs, thereby distinguishing this case from the three relied on by the defendant.

       The personal history form filled out as part of the arrest procedure indicated that the defendant was unemployed with no known address.

       The following colloquy ensued between the state and Hotsky:
      “[Assistant State’s Attorney]: And when you would see the crack cocaine in an amount that would contain thirty-two separate vials of crack cocaine, if that was kept together, would you have an opinion as to whether that possession would be consistent with personal use or consistent with sale?
      “[Hotsky]: Based on my training and experience, that would be consistent with the sale of that drug.”

       Because participation in a single act is satisfactory, we do not need to address whether there was sufficient evidence to prove that (1) the defendant and Scott met at the intersection prior to 4:30 for the purpose of selling cocaine and (2) the defendant and Scott hid a number of vials of cocaine in the stone wall.

       “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error 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. [State v. Golding, supra, 213 Conn. 239-40.] State v. Graham, 33 Conn. App. 432, 441-42, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). . . . State v. Harris, 46 Conn. App. 216, 242-43, 700 A.2d 1161, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997). State v. Billie, [47 Conn. App. 678, 687 n.7, 707 A.2d 324, cert. granted on other grounds, 244 Conn. 933, 717 A.2d 231 (1998)].” (Internal quotation marks omitted.) State v. Otero, 49 Conn. App. 459, 463 n.6, 715 A.2d 782, cert. denied, 247 Conn. 910, 719 A.2d 905 (1998).


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. JOSE LOPEZ
    (AC 16923)
    Spear, Sullivan and Spallone, Js.
    Argued December 14, 1998
    officially released March 9, 1999

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

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Jose Lopez, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit first degree assault in violation of General Statutes §§ 53a-48 (a) and 53a-59. He claims that (1) the trial court improperly denied as untimely defense counsel’s request to poll the jury and (2) the evidence was insufficient to support the conviction. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On July 9, 1994, Guy Guyton was working in the Union Street area of Bristol as a confidential informant for the Bristol police department. Prior to being sent to Union Street, Guyton was searched and fitted with a body microphone. In the area of 159 Union Street, Guyton approached Antonio Grayer in an attempt to buy narcotics. Grayer indicated that he did not have any narcotics. The defendant then approached Guyton, and Guyton asked if he could buy narcotics. The defendant did not respond. Guyton continued walking and encountered Derek Smith, whom he had known since 1992. Guyton again tried to purchase narcotics but was unsuccessful.

As Guyton began to leave the area, Virgilio Santiago waved to him to come over. As Guyton walked toward Santiago, Santiago was called over to meet with Smith, Grayer and the defendant. The four men huddled, talking for approximately two minutes. Santiago then motioned for Guyton to come over. Guyton and Santiago walked to an apartment building at 159F Union Street, which they entered. Guyton asked Santiago if he had any drugs and if he had change for a $20 bill. Santiago stated that he did not have any drugs, but that he was waiting for someone to bring drugs to him. Santiago looked out the door and said that the person for whom he was waiting was on the way.

The door of the building opened and Smith, followed by Grayer and the defendant, entered. Smith’s face was partially obscured by a towel draped over his head. The four men began to hit and kick Guyton. Smith hit Guyton with a wheel from a bicycle that was in the hallway. Guyton was able to pull the towel from Smith’s face and to grab the bicycle wheel from him. During the assault, Smith said, “Let’s kill this motherfucker.” A young boy came to the door and the four men ran out. The entire assault was recorded by the body microphone and transcribed. The transcript was admitted into evidence as a full exhibit.

Shortly thereafter, Detective David Carello of the Bristol police department arrived. Guyton was taken outside two or three minutes later and he identified Santiago and Grayer as his assailants. Smith was not present, but Guyton told the detective that “Derek” had assaulted him also. Guyton was unable to identify the defendant as his assailant at that time. Guyton was taken to the hospital, suffering from a broken finger, two broken ribs and multiple cuts and bruises.

While at the hospital, Carello remembered seeing the defendant and Santiago walking away from the apartment building when he arrived. Since Guyton had told him that there were others involved in the assault, but that he could not remember who they were, Carello returned to the police department and prepared an array of photographs that included a picture of the defendant. Carello returned to the hospital and showed Guyton the photographic array. Guyton identified the defendant as one of his assailants.

The defendant was subsequently charged with attempted murder in violation of General Statutes §§ 53a-8,53a-49 and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and conspiracy to commit assault in violation of General Statutes §§ 53a-48 (a) and 53a-59. After a jury trial, in which the defendant was tried together with codefendants Grayer and Smith, the defendant was found guilty of conspiracy to commit assault and not guilty of the remaining counts. This appeal followed.

I

The defendant first claims that the trial court improperly denied his request to poll the jury. We disagree.

Certain additional facts are necessary to our resolution of this claim. During jury deliberations, the trial court received a note from the juiy indicating that it had reached a verdict on eleven of the twelve counts. The trial court stated that it intended to call the jury out, receive the eleven verdicts and proceed from there. All parties agreed to this proposed course of action. The jury was brought into the courtroom and the verdicts were read into the record. All counts against Grayer were disposed of. The court then proceeded with the counts against the defendant. The following colloquy occurred:

“The Clerk: Mr. Foreperson, are you agreed upon a verdict in the case of the State of Connecticut v. Jose Lopez in docket number CR94-87691?
“[The Foreperson]: Yes.
“The Clerk: Would the defendant please rise?
^ $ Sj;
“The Clerk: On the fourth count charging the accused with the crime conspiracy to commit assault in the first degree, in violation of Connecticut General Statutes §§ 53a-48, 53a-59 (a) (1) and 53a-59 (a) (4), do you find the defendant guilty or not guilty?
“[The Foreperson]: Guilty.
“The Court: The verdict is accepted and ordered recorded.
“The Clerk: Ladies and gentlemen of the jury, listen to your verdict as accepted by the court and ordered recorded. You, upon your oath, do say that ... on the fourth count, charging the defendant with the crime of conspiracy to commit assault in the first degree, he is guilty. So say you all?
“[The Jurors]: Yes.
“The Court: Affirmative response from each of the jurors. Next case.”

After the jury’s verdict against Derek Smith was recorded, the trial court sent the jury to the jury room to continue deliberations on the remaining count against Grayer. Shortly thereafter, the judge recalled the jury to give them farther instructions on the remaining count. The judge stated, “I am going to give you some additional instructions that are helpful in cases when juries fail to agree. I will ask you to continue deliberating on the third count in the case of State v. Grayer. That will give me more time to chat with you when you’ve finally concluded the case, and you’re still, of course, not to discuss the case—well, I suppose technically, you might be able to discuss State v. Lopez and State v. Smith, and not discuss State v. Grayer.” When the court had finished instructing the jury, counsel for the defendant requested that the jury be polled on the charges against the defendant. The trial court denied the request, concluding that the request was untimely made.

Prior to October 1, 1995, Practice Book § 869 provided that “[a]fter a verdict has been returned and before the jury have been discharged, the jury may be polled at the request of any party . . . .” (Emphasis added.). Since as early as 1880, our Supreme Court has consistently held that the request to poll the jury rests in the sound discretion of the trial court. See, e.g., State v. Tirado, 194 Conn. 89, 95, 478 A.2d 606 (1984); State v. Tucker, 181 Conn. 406, 420, 435 A.2d 986 (1980); State v. Chetcuti, 173 Conn. 165, 172, 377 A.2d 263 (1977); State v. Marshall, 166 Conn. 593, 598, 353 A.2d 756 (1974); State v. Shelton, 160 Conn. 360, 363-65, 278 A.2d 782 (1971); State v. Tucker, 146 Conn. 410, 415, 151 A.2d 876 (1959); State v. Hoyt, 47 Conn. 518, 533-34 (1880). Since October 1, 1995, Practice Book § 869, now § 42-31, has provided that “ [a]fter a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party . . . .’’(Emphasis added.). The defendant argues that the change from “may be” to “shall” was made so that what was previously discretionary now implicates the defendant’s state and federal constitutional right to a unanimous jury verdict. We decline to adopt this reasoning.

Prior to the October 1, 1995 revision, the trial court had the discretion to poll the jury upon the timely request by the defendant. State v. Villanueva, 44 Conn. App. 457, 462, 689 A.2d 1141, cert. denied, 240 Conn. 930, 693 A.2d 302 (1997). We inteipret the 1995 revision as eliminating the discretion given to the court upon the defendant’s timely request to poll the jury. Upon a timely request, the trial court must poll the jury. “A trial court passing upon a motion made pursuant to a mandatory Practice Book rule can exercise no discretion other than in determining whether there is compliance with the rule.” Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 51, 478 A.2d 601 (1984). To comply with the rule, however, the defendant’s request must be made after a verdict has been returned, but before the jury has been discharged. This is not the case here.

The defendant’s request to poll the jury was made after the jury had effectively been discharged in this case and the case against codefendant Smith. All counts against the defendant had been resolved and the jury’s verdict had been accepted and recorded by the trial court. Furthermore, the jury was sent out of the courtroom to deliberate the remaining count against the codefendant Grayer. It was only after the jury was brought back in for further instructions on that remaining count against Grayer that the defendant in this case made his request to poll the jury. The trial court properly exercised its discretion in determining whether there had been compliance with the rules of practice and properly concluded that the request was untimely made.

Neither our Supreme Court nor this court has considered the denial of a request to poll a jury to be of constitutional magnitude. State v. Shelton, supra, 160 Conn. 364; State v. Tucker, supra, 146 Conn. 415; State v. Hoyt, supra, 47 Conn. 533; State v. Villanueva, 44 Conn. App. 463. Our Supreme Court has also held that “ ‘[w]hen the jury have openly, deliberately and unanimously assented to the verdict when called on for that purpose, it [affords] all the evidence of unanimity which could reasonably be required.’ [State v. Hoyt, 47 Conn. 518, 533 (1880)].’ State v. Tucker, [supra, 146 Conn. 415].” State v. Tirado, supra, 194 Conn. 95.

Even if we were to conclude that the trial court improperly determined that the request was untimely made, the defendant has failed to establish the harmfulness of the error. “ ‘The standard for determining whether a nonconstitutional error is harmless is that [t]he defendant must show that it is more probable than not that the erroneous action of the court affected the result.’ ” State v. Delgado, 50 Conn. App. 159, 168, 718 A.2d 437 (1998). Nothing in the record indicates that any of the jurors expressed discomfort or dissatisfaction with the verdict when read in open court. To the contrary, when asked by the trial court if this was their verdict, all jurors responded affirmatively. Moreover, the lack of prejudice is shown by defense counsel’s failure to make any claim at the time of the court’s ruling and his failure to raise the denial of his request to poll the jury in his three posttrial motions. The defendant has failed to sustain his burden of proving the harmfulness of the alleged impropriety.

II

The defendant next claims that the evidence was insufficient to support a conviction of conspiracy to commit assault in the first degree. The defendant argues that the jury did not find him guilty of assault in the first degree, either as a principal or accessory and, therefore, that the evidence must be insufficient to support the conviction of conspiracy to commit assault in the first degree. In the alternative, he argues that if the evidence is sufficient to support the conviction, a new trial must be ordered because the verdicts are logically inconsistent. We are unpersuaded.

“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. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citation omitted; internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, 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, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. ... As 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 [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) Id., 489-90.

“To establish the crime of conspiracy . . . [the state must show] that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts. . . . Further, [conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons.” (Citations omitted; internal quotation marks omitted.) State v. Taylor, 239 Conn. 481, 495-96, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

After a review of the record, we conclude that sufficient evidence existed to support the defendant’s conviction of conspiracy to commit assault in the first degree. The jury reasonably could have found that as Guyton began to leave the area, Santiago waved for him to come over. Guyton walked toward Santiago, but Santiago was called over to meet with Smith, Grayer and the defendant. The four men huddled, talking for approximately two minutes. The jury reasonably could have inferred that an agreement or concerted plan of action had been made. Santiago then motioned for Guy-ton to come over. Guyton and Santiago went into the apartment building at 159F Union Street, and Guyton asked Santiago if he had any drugs. Santiago stated that he was waiting for someone to bring drugs to him. The door to the building opened, Smith, Grayer and the defendant entered, and the four men began to hit and kick Guyton. The jury reasonably could have inferred that the defendant entered into an agreement with Smith, Grayer and Santiago and that the agreement was to lure Guyton into the apartment building and to assault him. Santiago’s efforts to lure Guyton into the apartment building were sufficient to constitute an overt act in furtherance of the conspiracy.

We next turn to the defendant’s argument regarding inconsistent verdicts. “The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted.” State v. Milner, 46 Conn. App. 118, 122, 699 A.2d 1022 (1997). In the present case, however, the defendant was convicted of one offense and acquitted of the other.

“[WJhere the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses, the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. . . . If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citations omitted; internal quotation marks omitted.) Id., 122-23.

Conspiracy requires proof of an agreement; General Statutes § 53a-48 (a); assault in the first degree does not. General Statutes § 53a-59. The two offenses contain different elements. Therefore, the conviction of conspiracy to commit assault in the first degree is not inconsistent with an acquittal of assault in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.