author: BISHOP, J.

text:
    ROBERT V. BREEN ET AL. v. CRAIG T. JUDGE
    (AC 31157)
    Bishop, Beach and West, Js.

      Argued May 17
    officially released September 28, 2010

      George M. Purtill, for the appellants (plaintiffs).

      Christopher D. Hite, for the appellee (defendant).
   Opinion

BISHOP, J.

This appeal stems from an action by the plaintiffs, Robert V. Breen and Susan Breen, to hold the defendant, Craig T. Judge, the managing member of Patriot Truck Equipment, LLC (Patriot), personally liable on a judgment previously recovered against Patriot. The plaintiffs, appealing from the judgment in favor of the defendant, claim that the court improperly (1) failed to pierce Patriot’s corporate veil under either the identity rule or the instrumentality rule, (2) required proof of intent to defraud in order to find certain transfers of assets to be fraudulent under General Statutes § 52-552f (a) and (3) failed to find that the defendant was unjustly enriched by the transfers he received from Patriot. We affirm the judgment of the trial court.

Following a court trial, the court, Domnarski, J., issued a memorandum of decision that set forth the following relevant factual and procedural history. “Susan Breen was employed as a bookkeeper at Patriot from February, 2003, to March, 2004. Beginning in March, 2003, she deposited funds, which she had borrowed from credit card accounts in the name of [the plaintiffs], into Patriot’s checking account. At the time Susan Breen made these deposits, Patriot was unable to pay its current liabilities, including vendor payments. She testified [that] she made these deposits to help Patriot avoid having to cease operation. Neither [the defendant], who was the managing member of Patriot, nor anyone else at Patriot solicited these deposits. Patriot did acknowledge the deposits, which were carried on the books of Patriot as a loan from Susan Breen. She left employment at Patriot in March, 2004. In August, 2005, the plaintiffs . . . sued Patriot to recover the money they loaned, plus interest. . . . [0]n January 8,2006, judgment entered in the plaintiffs’ favor, against Patriot, in the total amount of $58,495.35. ... On May 14 and June 27,2007, the plaintiffs conducted an examination of judgment debtor by examining [the defendant], who appeared as the representative of Patriot.”

On November 8, 2007, the plaintiffs filed a complaint against the defendant, seeking to hold him personally liable on the judgment previously obtained against Patriot. The plaintiffs also alleged violations of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act, and General Statutes § 52-552a et seq., the Uniform Fraudulent Transfer Act (act), and stated a count sounding in unjust enrichment. The defendant denied the allegations and brought special defenses based on res judicata and equitable estoppel. Following atrial, the court, without addressing either of the special defenses, found in favor of the defendant on all counts. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiffs first claim that the court improperly denied their request to pierce Patriot’s corporate veil in order to hold the defendant personally liable for the judgment against Patriot. Specifically, the plaintiffs claim that under either the instrumentality rule or the identity rule, the court should have found that the defendant had complete unity of interest with Patriot and should not be allowed to avoid liability. We are not persuaded.

The following additional facts, as found by the court, are relevant to the plaintiffs’ claim. “Much of the evidence and testimony at trial concerned the books and records of Patriot, and money received by [the defendant] and his mother, Shirley Judge. Shirley Judge was a member of Patriot . . . for a period of time and made capital contributions to Patriot. She also performed bookkeeping services at Patriot for no salary. . . . Patriot was in the business of outfitting trucks with snow plows and truck bodies. Patriot commenced operation in January, 2002, and it filed articles of dissolution with the secretary of the state on September 16,2005. At the trial, the accountant for Patriot and [the defendant], Michael Michaud, testified at length as to information containéd in the tax returns filed by Patriot and [the defendant] for the years 2002 through 2005. The court found his testimony credible and of assistance.”

The court noted that the defendant initially contributed $48,640 to the business and was a 50 percent shareholder of Patriot, with Brian Clark owning the remaining 50 percent. In 2004, the defendant contributed an additional $52,144 to the business. By the end of2004, the defendant was still a 50 percent shareholder of Patriot, but Clark was no longer a shareholder, and the defendant’s mother had become a 50 percent shareholder. The court made findings regarding Patriot’s gross receipts, total income after deducting costs of goods sold, and deductions from the total income for each year from 2002 to 2005. Between 2002 and 2004, Patriot’s gross receipts and income grew each year, but the company still lost money.

The court also found that “[djuring the time Patriot was in existence, [the defendant] worked at the business full-time as its managing member. While Patriot was in business, [the defendant] received money from Patriot in the form of draws and by way of payment of his personal expenses. These draws and personal expenses were noted on the books of the business. For each tax year, the amounts received by [the defendant], by way of draw or payment of personal expenses, were recharacterized as guaranteed payments to the partner. These payments were shown on the business tax returns and were carried over to [the defendant’s] personal tax returns. These guaranteed payments served to reduce the losses that [the defendant] could claim on his personal return from Patriot’s operations. The guaranteed payments to [the defendant] were as follows: for 2002, $23,619; for 2003, $41,686; for 2004 $38,486; and for 2005, $18,896.”

In response to the plaintiffs’ quest to pierce the corporate veil in order to hold the defendant personally hable for Patriot’s debt to them, the court stated: “In applying the instrumentality test to the facts of this case, the court cannot find that [the defendant] exerted such control over Patriot that it had no existence of its own. As noted earlier, [the defendant] shared ownership of Patriot, at various times, with Clark and Shirley Judge. The business did not exist only for [the defendant’s] benefit but was a going business with average annual sales of approximately $660,000 for the four years it was in operation. Furthermore, Patriot kept books and records, filed tax returns and gave notice of its dissolution to the secretary of the state. . . .

“As to the identity test, the court is not persuaded that there was such unity of interest between [the defendant] and Patriot that Patriot’s independence never began or ceased. This case does not present the exceptional circumstances that justify piercing the coiporate veil.”

Initially, we set forth our applicable standard of review. “Whether the circumstances of a particular case justify the piercing of the corporate veil presents a question of fact. . . . Accordingly, we review the trial court’s decision whether to pierce [the] corporate veil under the clearly erroneous standard of review. (Citations omitted; internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 234, 990 A.2d 326 (2010).

“When determining whether piercing the corporate veil is proper, our Supreme Court has endorsed two tests: the instrumentality test and the identity test. The instrumentality rule requires, in any case but an express agency, proof of three elements: (1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the coiporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to peipetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiffs legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Internal quotation marks omitted.) Mountview Plaza Associates, Inc. v. World Wide Pet Supply, Inc., 76 Conn. App. 627, 633-34, 820 A.2d 1105 (2003).

“The identity rule has been stated as follows: If [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise. . . .

“Courts, in assessing whether an entity is dominated or controlled, have looked for the presence of a number of factors. Those include: (1) the absence of corporate formalities; (2) inadequate capitalization; (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes; (4) overlapping ownership, officers, directors, personnel; (5) common office space, address, phones; (6) the amount of business discretion by the allegedly dominated corporation; (7) whether the corporations dealt with each other at arm’s length; (8) whether the corporations are treated as independent profit centers; (9) payment or guarantee of debts of the dominated corporation; and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own. . . . The concept of piercing the corporate veil is equitable in nature. . . . No hard and fast rule, however, as to the conditions under which the entity may be disregarded can be stated as they vary according to the circumstances of each case. . . . Ordinarily the corporate veil is pierced only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice. . . . The improper use of the corporate form is the key to the inquiry, as [i]t is true that courts will disregard legal fictions, including that of a separate corporate entity, when they are used for fraudulent or illegal purposes. Unless something of the kind is proven, however, to do so is to act in opposition to the public policy of the state as expressed in legislation concerning the formation and regulation of corporations.” (Citations omitted; internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., supra, 295 Conn. 232-34.

Upon our review of the record, we conclude that the court’s determination that the facts in this case did not present exceptional circumstances to justify piercing the corporate veil was not clearly erroneous. In analyzing the evidence under the instrumentality test, the court concentrated on the element of control. The court noted that the defendant was at no time more than a 50 percent owner of the limited liability company, with Clark and Shirley Judge also being 50 percent owners during certain periods of time. The court also noted that Patriot was a properly formed company doing business in the state. The court observed that Patriot followed certain corporate formalities, such as maintaining separate books, filing company tax returns and, subsequently, filing the appropriate dissolution documents with the secretary of the state. Although the company was ultimately unsuccessful, during the years that it was in operation, Patriot increased its annual sales each of the first three years it was in business. The court properly considered these facts as evidence that the defendant did not completely dominate Patriot and that Patriot was not a “mere shell, serving no legitimate purpose . . . .” (Internal quotation marks omitted.) Id., 233. Thus, under the instrumentality test, it was reasonable for the court to conclude that the defendant did not control Patriot to such an extent that it had “no separate mind, will or existence of its own . . . .” (Internal quotation marks omitted.) Mountview Plaza Associates, Inc. v. World Wide Pet Supply, Inc., supra, 76 Conn. App. 634.

Likewise, as to the identity test, the facts found by the court, as already noted, support its conclusion that there did not exist such “unity of interest and ownership” between Patriot and the defendant that the independence of the two had in effect ceased or had never begun. See Naples v. Keystone Building & Development Corp., supra, 295 Conn. 232. Accordingly, we affirm the court’s decision not to pierce the corporate veil.

n

The plaintiffs next claim that the court improperly determined that they were required to prove intent to defraud in order to satisfy their claim that certain transfers of money to the defendant were constructively fraudulent in violation of § 52-552f (a). At trial, the plaintiffs claimed that the defendant transferred Patriot assets to, or for the benefit of, himself and did so in violation of the act. Specifically, the plaintiffs claimed that the transfers were fraudulent in violation of § 52-552e (a) (1) and (2) (A) and (B), and § 52-552Í (a). Section 52-552e (a) (1) is the only section of the four raised by the plaintiffs that requires a showing of “actual intent to hinder, delay or defraud any creditor of the debtor . . . .” On appeal, the plaintiffs claim that the court improperly required them to prove actual intent under § 52-552f (a). We disagree.

In addressing the plaintiffs’ fraudulent transfer claims, the court noted: “Considering all of the surrounding circumstances, and applying the required higher standard of clear and precise proof, the court cannot conclude that the payments made by Patriot to [the defendant] were made with the actual intent to hinder, delay or defraud the creditors of Patriot. The compensation [the defendant] received by way of payments does not appear to be excessive, and it does not establish a badge of fraud. . . . Although it may not be a good business practice for an owner-operator to pay himself or herself a reasonable and regular compensation when the business is not making a profit, it is not a fraudulent transfer if he or she does so. To hold otherwise could make any operator who received income from a failed business hable under the [act]. That is not the purpose of the act.”

Initially, we set forth the applicable standard of review and the relevant statutory text. “[W]hether the court applied the correct legal standard is a question of law subject to plenary review.” Wieselman v. Hoeniger, 103 Conn. App. 591, 598, 930 A.2d 768, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). The law in question is § 52-552f (a), which provides in relevant part: “A transfer made ... by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made . . . if the debtor made the transfer . . . without receiving a reasonably equivalent value in exchange for the transfer .. . and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.”

Upon review of the record, we conclude that the court applied the proper legal standard under § 52-552Í (a) in assessing the fraud claim asserted by the plaintiffs. In its memorandum of decision, the court did not discuss separately each of the statutory subsections that the plaintiffs claimed were violated, and because the court did not clearly delineate which facts it considered in relation to each subsection, it is admittedly more difficult to discern the basis for the court’s reasoning. It is amply clear, however, from the facts found by the court, that it considered the money received by the defendant to be reasonable compensation for his full-time management of the company. Unlike the alleged violation of § 52-552f (a), none of the violations of § 52-552e that were alleged by the plaintiffs require proof that the transfers were not for “reasonably equivalent value . . . .” General Statutes § 52-552f (a). The fact that the court gave considerable attention in its finding that the transfers were for compensation is clear evidence that the court separately considered the constructive fraud claim under § 52-552f (a). The court’s decision certainly sets forth its finding that the plaintiffs had failed to establish proof of any intent to defraud on the part of the defendant, but the plaintiffs have not presented any basis for us to conclude that the court’s discussion regarding intent also applied to its conclusions regarding the alleged violation of § 52-552f (a). Accordingly, on the basis of the record provided to us, we cannot conclude that the court improperly required proof of fraudulent intent under § 52-552f (a).

in

Finally, the plaintiffs claim that the court improperly found that the defendant was not unjustly enriched. Specifically, the plaintiffs claim that the court improperly required that, in order to prove unjust enrichment, they had to demonstrate that they directly conferred the alleged benefit on the defendant. We are not persuaded.

“We note at the outset that our analysis of whether the court applied the correct legal standard is a question of law subject to plenary review.” Wieselman v. Hoeniger, supra, 103 Conn. App. 598. We next set forth the law regarding unjust enrichment. “Unjust enrichment applies wherever justice requires compensation to be given for property or services rendered under a contract, and no remedy is available by an action on the contract. ... A right of recovery under the doctrine of unjust enrichment is essentially equitable, its basis being that in a given situation it is contrary to equity and good conscience for one to retain a benefit which has come to him at the expense of another. . . . With no other test than what, under a given set of circumstances, is just or unjust, equitable or inequitable, conscionable or unconscionable, it becomes necessajy in any case where the benefit of the doctrine is claimed, to examine the circumstances and the conduct of the parties and apply this standard. . . . Unjust enrichment is, consistent with the principles of equity, a broad and flexible remedy. . . . Plaintiffs seeking recovery for unjust enrichment must prove (1) that the defendants were benefited, (2) that the defendants unjustly did not pay the plaintiffs for the benefits, and (3) that the failure of payment was to the plaintiffs’ detriment.” (Internal quotation marks omitted.) Vertex, Inc. v. Waterbury, 278 Conn. 557, 573, 898 A.2d 178 (2006).

“[E]quitable remedies are not bound by formula but are molded to the needs of justice. . . . Our Supreme Court has described unjust enrichment as a very broad and flexible equitable doctrine. . . . That doctrine is based upon the principle that one should not be permitted unjustly to enrich himself at the expense of another but should be required to make restitution of or for property received, retained or appropriated. . . . The question is: Did [the party hable], to the detriment of someone else, obtain something of value to which [the party hable] was not entitled?” (Internal quotation marks omitted.) Stewart v. King, 121 Conn. App. 64, 71, 994 A.2d 308 (2010).

The plaintiffs base their assertion on the court’s very brief discussion of their unjust enrichment claim. In its memorandum of decision, the court noted: “In the fifth count, the plaintiffs allege that the [defendant] has been unjustly enriched by funds received [from] the plaintiffs. The evidence shows that any moneys loaned by the plaintiffs were paid directly to Patriot and not [the defendant]. The plaintiffs have not sustained their burden as to this count.” The plaintiffs claim that, by stating that the money was loaned to Patriot and not directly to the defendant, the court mistakenly held that the law requires a direct link between the plaintiffs and the defendant in order to find unjust enrichment. The plaintiffs contend that there is no such requirement under the law. In support of their claim, the plaintiffs refer to decisional law of the Superior Court, holding that there is no requirement that the benefit be incurred directly. See Stefan v. P.J. Kids, LLC, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-04-0185513-S (March 1, 2005). To the contrary, the defendant relies on Superior Corut decisional law for the contention that unless a benefit is conferred by the plaintiff directly, there can be no action for unjust enrichment. See Parker v. Colgate-Palmolive Co., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-03-0193798-S (August 8,2003); Granito v. International Business Machines, Inc., Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07-CV02-0080440-S (April 16, 2003) (34 Conn. L. Rptr. 485).

We agree with the parties that decisions of the Superior Court appear to be divided on this issue and that neither this court, nor our Supreme Corut, has specifically addressed the question of whether an alleged benefit must be directly conferred on a defendant in order for a court to find that the defendant has been unjustly enriched. In this case, however, we need not join the issue, as it is not clear that the court rejected the plaintiffs’ claim due to the lack of a direct link between the plaintiffs and the defendant or because the court simply did not find that the defendant received funds to which he was not entitled. Although the court stated that the loan was conferred to Patriot, not directly to the defendant, the court also opined, earlier in its decision, that the money received by the defendant was reasonable compensation for his work on behalf of Patriot. Thus, the court’s comment about the absence of a direct payment from the plaintiffs to the defendant does not necessarily mean that the court was requiring that, in order for a defendant to benefit, he or she must receive the asset directly from the party conferring the benefit. In sum, because the court’s analysis of this claim is limited and its conclusions regarding payments received by the defendant belie a claim of unjust enrichment, we cannot discern the precise basis for the court’s decision. “Furthermore, it is axiomatic that the appellant must provide this court with an adequate record for review. See Practice Book § 61-10. Indeed, [u]nder these circumstances, the [appellant] should have filed a motion for articulation to preserve an adequate record for review. See Practice Book §§ 61-10 and 66-5. It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P]roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Thomas T. Lonardo, P.C. v. Dichello, 121 Conn. App. 528, 533, 996 A.2d 758 (2010). Accordingly, we cannot conclude that the court improperly applied an incorrect standard of law.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs maintain on appeal that the defendant personally solicited the funds.

       This amount represented the outstanding balance of the loan, which was $22,842.47, plus reimbursement for credit card interest and charges.

       The plaintiffs also appear to claim, for the first time, in their principal brief that the transfers from Patriot to the defendant were fraudulent under § 52-552Í (b), on the basis of their claim that the defendant was an insider. This claim was not made at trial. Because the plaintiffs did not claim a violation of § 52-552f (b) before the trial court, the court had no occasion to address it. “Because [appellate] review is limited to matters in the record, we will not address issues not decided by the trial court.” (Internal quotation marks omitted.) Froom Development Corp. v. Developers Realty, Inc., 114 Conn. App. 618, 626 n.5, 972 A.2d 239, cert. denied, 293 Conn. 922, 980 A.2d 909 (2009). Accordingly, to the extent the plaintiffs now claim a violation of § 52-552f (b), we decline to address it.

       In the plaintiffs’ reply brief, as well as at oral argument, the plaintiffs seem to claim that the court erroneously found that the payments received by the defendant were in the form of compensation. The plaintiffs argue, rather, that the payments were draws of capital, and because the defendant’s capital account had a negative balance from 2003 onward, it was fraudulent for the defendant to make those withdrawals. This is a distinctly different claim from the one that was raised in the plaintiffs principal brief. “[I]t is a well established principle that arguments cannot be raised for the first time in a reply brief . . . .” (Internal quotation marks omitted.) Warner v. Planning & Zoning Commission, 120 Conn. App. 50, 64 n.11, 990 A.2d 1243, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010). Accordingly, we do not address the claim that the court’s factual finding was erroneous.
      The plaintiffs also claimed, for the first time, during oral argument that in order to claim that certain transfers were not fraudulent on the ground that they were compensation, the defendant would have to have specially pleaded that as a defense. Accordingly, we do not address this claim. See Breen v. Synthes-Stratec, Inc., 108 Conn. App. 105, 110 n.4, 947 A.2d 383 (2008) (claims cannot be raised for first time at oral argument before reviewing court).

       To the extent that the plaintiffs believe that the record is not clear as to the court’s application of law, and specifically as to whether the court’s statements regarding intent pertained to the claims of fraud and constructive fraud as well, it was the plaintiffs’ responsibility to seek clarification through a motion for articulation. See Thomas T. Lonardo, P.C. v. Dichello, 121 Conn. App. 528, 533, 996 A.2d 758 (2010).


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JEFFREY SKELLY
    (AC 30936)
    Bishop, Robinson and Schailer, Js.

      Argued May 25
    officially released September 28, 2010

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Brian F. Valko, certified legal intern, with whom were Michele C. Lukban, senior assistant state’s attorney, and, on the brief, Gail P. Hardy, state’s attorney, and Christopher A. Parakilas, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Jeffrey Skelly, appeals from the judgment of conviction, rendered after a court trial, of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). On appeal, the defendant claims that the trial court improperly found that he was the initial aggressor, thereby negating his claim of self-defense pursuant to General Statutes § 53a-19. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history, which support the court’s finding that the state proved beyond a reasonable doubt all of the essential elements of assault in the third degree. The defendant, having been previously convicted of manslaughter, was incarcerated at the Carl Robinson Correctional Institution (Carl Robinson) on the night in question. Sometime after 11 p.m. on January 5,2008, Lieutenant Jason Beau-lieu heard a code blue, which indicates a fight between inmates, announced over his radio. When he arrived on the scene, he found the victim, Joel German, holding a T-shirt over his ear while being restrained by responding officers. Beaulieu instructed the officers to place the victim in handcuffs, but when the victim removed the T-shirt from his ear, Beaulieu observed severe bleeding and that a portion of the victim’s ear was barely attached to the rest of the ear. Beaulieu then ordered that the victim be taken to the medical unit, and the victim subsequently was referred to the emergency room at John Dempsey Hospital where he received twelve stitches to repair the ear.

The following day, state police Trooper Chick Bistany took the statements of the defendant and the victim. Both men reported that the incident took place at approximately 11:20 p.m. in the day room of building 4-A at Carl Robinson. The defendant was sitting at a table when the victim entered the day room with another inmate and sat down at the same table with the defendant. The defendant claims that the victim shook the table and that when the defendant asked the victim to stop, the victim pushed the defendant’s books toward him, told him to get off the table and then punched him in the face, causing the defendant to suffer a bloody nose. The defendant claims that he defended himself by putting a pen against the victim’s eye preparing to stab the victim’s eye. After composing himself, however, he decided not to shove the pen into the victim’s eye but to bite the victim’s ear as he body-slammed the victim to the floor before correction officers broke up the fight.

The victim’s statement to Bistany differed from the defendant’s statement in several significant respects. The victim stated that after sitting down at the table, he reached down to scratch his foot and upon sitting up the defendant accused him of trying to read what the defendant was writing. The victim then told the defendant that the defendant’s work was none of his business, slid the notebooks toward the defendant to emphasize that he was not reading the defendant’s materials and raised his hands to indicate it was not any of his business. The defendant then punched him in the face, lunged at him and bit his ear. The victim then attempted to defend himself and punched the defendant somewhere in the upper body before correction officers arrived and broke up the fight.

The trial before the court commenced on March 3, 2009. Both the defendant and the victim testified as to the disputed facts. Additionally, the state presented the testimony of Bistany, Beaulieu and the physician who ordered the victim’s transfer to the hospital, Edward Blanchette. The state also put into evidence a video recording of the incident. After viewing the recording, Bistany opined that the fight took place in two phases. According to Bistany, the first phase of the fight occurred when the defendant stood up, then the victim stood up to face the defendant and attempted to strike the defendant. After the victim sat down, the second phase of the fight occurred when the defendant lunged at the victim and bit his ear.

Following the state’s presentation of evidence, the defendant orally moved for a directed verdict, arguing that the state had failed to present evidence of his intent to disfigure the victim. The court denied the motion. The defendant testified that he was defending himself from the victim’s attack because he feared for his life. Subsequent to the defendant’s presentation of evidence and the parties’ closing arguments, the court found the defendant guilty of assault in the third degree. The court sentenced the defendant to one year incarceration to run consecutively to the sentence he was serving at the time.

On August 28, 2009, the defendant filed a motion for articulation, requesting that the court articulate what factual and legal findings it made relative to the defendant’s claim of self-defense. The state did not object to the defendant’s motion for articulation. Rather, in the state’s September 8, 2009 response it stated that “[a]n articulation in this case of whether the court accepted all of the [s]tate’s arguments or, if some, which and the factual findings supporting them, such as whether there was a pause between the first fight where the victim was the initial aggressor and the second fight where the defendant was the aggressor would be helpful to addressing any of the claims that the defendant might raise on appeal regarding his defense of self-defense.”

On September 11, 2009, the court granted the defendant’s motion and articulated: “The court found that the defendant was the initial aggressor. The defendant and the victim appeared to be engaged in, at most, a verbal dispute until the defendant rose from his chair and physically confronted the victim. The court did not credit the defendant’s claim that the victim initially punched the defendant, bloodying his nose.” This appeal followed.

The defendant claims that the court improperly found that he was the initial aggressor, thereby negating his claim of self-defense pursuant to § 53a-19. Specifically, he argues that the cumulative force of the evidence was not sufficient for a reasonable finder of fact to conclude that the state proved beyond a reasonable doubt that he was the initial aggressor. We disagree.

The legal principles regarding a claim of self-defense are well settled. Self-defense is a justification defense pursuant to General Statutes § 53a-16 and is a complete defense to a charge of assault in the third degree in violation of § 53a-61 (a) (1). See also General Statutes §§ 53a-12 (a) and 53a-19. In claiming self-defense, the defendant admits engaging in the otherwise illegal conduct but claims he legally was justified, and, therefore, his conduct was not criminal. See State v. Collins, 100 Conn. App. 833, 849, 919 A.2d 1087, cert. denied, 284 Conn. 916, 931 A.2d 937 (2007). “Under our Penal Code ... a defendant has no burden of persuasion for a claim of self-defense; he has only a burden of production. . . . Once the defendant has done so, it becomes the state’s burden to disprove the defense beyond a reasonable doubt. ... As these principles indicate, therefore, only the state has a burden of persuasion regarding a self-defense claim: it must disprove the claim beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 571, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007).

“[T]he standard for reviewing sufficiency claims in conjunction with a justification offered by the defense is the same standard used when examining claims of insufficiency of the evidence. ... 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“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 [trier of fact’s] verdict of guilty. . . . We are mindful as well that [t]he state has the burden of disproving the defense of justified use of force . . . beyond a reasonable doubt. . . . Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the [trier of fact], to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence. ... As long as the evidence presented at trial was sufficient to allow the [finder of fact] reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained.” (Citation omitted; internal quotation marks omitted.) State v. Wortham, 80 Conn. App. 635, 640-41, 836 A.2d 1231 (2003), cert. denied, 268 Conn. 901, 845 A.2d 406 (2004).

A defendant who acts as an initial aggressor is not entitled to the protection of the defense of self-defense. State v. Singleton, 292 Conn. 734, 762, 974 A.2d 679 (2009). The initial aggressor, however, is not necessarily the first person who uses physical force. State v. Jimenez, 228 Conn. 335, 340, 636 A.2d 782 (1994). Section 53a-19 contemplates that a person who reasonably perceives a threat of physical force may respond with physical force without becoming the initial aggressor and forfeiting the defense of self-defense. Id., 341. The initial aggressor is the person who first acts in such a manner that creates a reasonable belief in another person’s mind that physical force is about to be used upon that other person. State v. Singleton, supra, 763.

In response to the defendant’s motion for articulation, the court articulated three findings of fact. First, the court found that the defendant was the initial aggressor. The court also found that the verbal dispute escalated as a result of the defendant’s physically confronting the victim. Finally, the court found that the defendant’s testimony that the victim initially punched the defendant was not credible. The court did not, however, specify the evidentiary basis for the finding that the defendant was the initial aggressor. Viewing the evidence in the light most favorable to sustaining the court’s determination of guilt, we conclude that sufficient evidence was presented at trial to support the court’s finding that the defendant was the initial aggressor regardless of whether it viewed the fight as occurring in one phase or two phases.

We first consider the court’s finding within the framework of a single phase fight. The evidence established that until the time the defendant physically confronted the victim, the two men were engaged in a verbal dispute. This fact is supported in the video recording exhibit, which depicts the defendant moving to stand up before the victim and the victim reacting by standing up and possibly attempting to strike the defendant. Accepting this sequence of events, the court reasonably could have concluded that the defendant was the initial aggressor because, although it may have been the victim who first punched the defendant, the defendant was the party who invited the physical response from the victim. Id. In light of such a conclusion, the court reasonably could have concluded that the state disproved the defendant’s self-defense claim beyond a reasonable doubt.

Alternatively, the court could have interpreted the recording as depicting the fight occurring in two phases. The first phase occurred when the two men stood and faced each other. The second phase occurred after the victim returned to his seat, when the defendant lunged at the victim, considered stabbing the victim in the eye with a pen and proceeded to bite his ear. The defendant testified that, even after he put the pen down and had composed himself, he “didn’t want to pull out” and “didn’t want to stop it now . ...” In his statement to Bistany, the defendant said that the reason for his biting the victim’s ear was because he was “still angry [at the victim] for putting his hands on me.” Viewing the evidence in the light most favorable to sustaining the court’s decision, the court reasonably could have found that the defendant was the initial aggressor of the second phase of the fight and attacked the victim out of anger, rather than fear that the victim intended to use physical force on him. Based on this interpretation of the events, the court properly could have concluded that the state disproved the defendant’s self-defense claim beyond a reasonable doubt.

Regardless of whether the court concluded that the fight took part in one phase or two, it is clear that the court discredited the defendant’s testimony that the victim initiated the confrontation by first punching the defendant and, instead, found that the defendant was the initial aggressor. The evidence before the court was sufficient to support the court’s reasonable conclusion that the state disproved beyond a reasonable doubt the defendant’s claim of self-defense.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court found the defendant not guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (2).

       General Statutes § 53a-19 provides in relevant part: “(a) Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. . . .
      “(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when ... (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .”

       The defendant further contends that the court committed reversible error in concluding that he did not reasonably perceive the need to defend himself and that he used unreasonable physical force in defending himself. Because we conclude that the court’s finding that the defendant was the initial aggressor was not clearly erroneous, we need not discuss the defendant’s additional arguments.

       It is unclear from the court’s articulation whether its finding that it “did not credit the defendant’s claim that the victim initially punched the defendant, bloodying his nose,” was a finding that the victim did not punch the defendant prior to the defendant biting him, as the victim claims, or that the victim did not punch the defendant unprovoked by the defendant’s standing up to confront him.


author: ROBINSON, J.

text:
    JONI S. v. RICKY S.

    (AC 31279)
    Bishop, Robinson and Schaller, Js.
    Submitted on briefs May 25
    officially released September 28, 2010

      Michael F. Romano filed a brief for the appellant (defendant).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

ROBINSON, J.

The defendant, Ricky S., appeals from the judgment of the trial court granting the motion filed by the plaintiff, Joni S., to extend a restraining order against him for violating General Statutes § 46b-15. On appeal, the defendant’s sole claim is that the court improperly found that the plaintiff was “subjected to a continuous threat of present physical pain or physical injury by [him] . . . .” General Statutes § 46b-15 (a). We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. The parties were married for nineteen years and have two daughters. On February 10, 2003, their marriage was dissolved. On October 30, 2006, the plaintiff filed an application for relief from abuse. On November 9, 2006, the application was granted for six months. On April 23 and October 22, 2007, and April 14, 2008, the court granted the plaintiffs motions to extend the restraining order for six months. On October 6, 2008, in response to another motion to extend the restraining order, the parties filed an agreement with the court that the restraining order would extend for six months. On May 13 and June 24, 2009, the court again granted the plaintiffs motions to extend the restraining order. This appeal followed.

On August 18, 2009, the defendant filed a motion for articulation, seeking articulation from the trial court of its decision to grant the June 24, 2009 motion to extend the restraining order against him. The court, in its articulation, stated that it based its decision, inter alia, on the credibility of the plaintiff, her fears of the defendant and the presentation and demeanor of the parties and their daughter during the hearing on the motion to extend the restraining order.

The defendant claims that there was not sufficient evidence before the court to make a factual finding pursuant to § 46b-15 that he was a “continuous threat of present physical pain or physical injury . . . .” General Statutes § 46b-15 (a). Specifically, the defendant argues that the record does not reflect a factual basis for a finding that there is currently a threat to the plaintiff because the evidence presented is too remote in time. We disagree.

We begin our analysis by setting forth the applicable standard of review. “[T]he standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . .

“In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ... 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.) Gail R. v. Bubbico, 114 Conn. App. 43, 46-47, 968 A.2d 464 (2009).

“The plain meaning of the language in § 46b-15 requires a continuous threat of present physical pain or physical injury”; Putman v. Kennedy, 104 Conn. App. 26, 32, 932 A.2d 434 (2007), cert. denied, 285 Conn. 909, 940 A.2d 809 (2008); which, in the present case, the court found existed on the basis of the parties’ testimony as well as the testimony of the parties’ daughter. The plaintiff testified that she believed that the defendant would hurt her and then regret it. “Do I really think he wants to kill me? No. But I’m afraid in his mind that something is going to snap, and he’s going to feel really bad afterward. This is my fear.” Further, the plaintiff stated that the defendant mainly acted out when she was dating and that she had not dated recently for that reason.

The court also seemed particularly troubled by the fact that the plaintiff received flowers in February, 2009, at work and then later that night under the windshield wiper of her car. The plaintiff testified that when she and the defendant were first divorced he would “leave flowers on the hood of [her] car and put them underneath the windshield wiper and then all of a sudden they [were] there under—you know, it’s kind of like the same [modus operandi].” The plaintiff stated that she found the flowers late at night and expressed her concern that she and the defendant could have been in her driveway at the same time. Further, she testified that she was fearful because she believed that the defendant had undergone anger management therapy and lives close to her, and because she had seen him driving by her house repeatedly.

Additionally, the court noted that it found the testimony of the parties’ daughter persuasive. She testified: “But I, also, know that one thing I absolutely want to say and I just have to get this out, is that love messes with people’s heads. My father loves my mother more than anything in the world, but it clouds his judgment. And do I think he would hurt her? Absolutely not. Do I think that the way he loves her makes him get to a level that I don’t think a person should ever get to in their own mind? Absolutely.” She also testified that the defendant had stated that “if [the plaintiff] wasn’t in our lives, [the witness’ sister] would be with [them] and that would make everything easier,” and, “If I can’t be with [the plaintiff], why should anybody else be with her?”

Though the daughter’s testimony is somewhat of a mixed message comprised of her personal feelings that the defendant does not mean what he says and that he would not hurt the plaintiff, it also clearly shows that the daughter believes that the defendant is so obsessed with the plaintiff that his judgment is impaired. Furthermore, when the parties’ daughter was asked whether the defendant told her that he had killed seven people prior to meeting the plaintiff, the daughter testified that “it never [came] out and [was] said like that. It was said in a way where I was in [rehabilitation] at the time. He came to me and said we’ve all made mistakes in our past. I’ve hurt people in my past, and I’ve hurt their families and that’s what I feel bad for.” She also testified that the defendant has stalked the plaintiff, shown up when he was not supposed to, appeared in the plaintiffs driveway, and inquired and badgered her about the plaintiffs whereabouts. When asked under oath whether she recalled the last time that the defendant said that if he could not have the plaintiff, no one else could, she stated that she did not remember but that the defendant’s obsessive behavior occurred when the plaintiff was dating and that the behavior “is always provoked by a situation.” She testified that because the plaintiff was not dating at about the time of the hearing, the defendant did not feel the need to say that if he could not have the plaintiff, no one else could. She further stated that the defendant was jealous and that it “eats at him.”

Once again, this court is compelled to state, what has become a tired refrain, “we do not retry the facts or evaluate the credibility of witnesses.” (Internal quotation marks omitted.) Noonan v. Noonan, 122 Conn. App. 184, 197, 998 A.2d 231 (2010). In the present case, the trial court based its decision on its assessment of the credibility of the witnesses and found the plaintiff and the parties’ daughter to be credible in their perceptions of the defendant. The record establishes that there was evidence to support a finding that the plaintiff was subjected to a continuous threat of present physical pain or physical injury. Accordingly, the trial court did not abuse its discretion in granting the plaintiffs motion to extend the restraining order against the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-15 (a) provides in relevant part: “Any family or household member as defined in section 46b-38a who has been subjected to a continuous threat of present physical pain or physical injury by another family or household member . . . may make an application to the Superior Court for relief under this section.” A “[fjamily or household member” is defined in relevant part as: “(A) spouses, former spouses . . . General Statutes § 46b-38a.

       The parties agreed to alter the restraining order by reducing the distance that the defendant was required to stay from the plaintiff in certain situations and providing that the order could not be violated by an inadvertent meeting in a public place.

       We note that, although the restraining order appears to have expired, the present appeal is not moot. See Putman v. Kennedy, 279 Conn. 162, 164-65, 900 A.2d 1256 (2006) (“expiration of a domestic violence restraining order does not render an appeal from that order moot because it is reasonably possible that there will be significant collateral consequences for the person subject to the order”).

       The court noted during the hearing that the restraining order application states that “[the defendant] claimed to have killed seven people prior to meeting [the plaintiff] twenty plus years ago. ... He was graphic enough to state [that] he shot someone and bludgeoned the others with a baseball bat. He did say he felt bad for the families, and he told both of the children this . . . .”


text:
    STATE OF CONNECTICUT v. CLIFFORD P.

    (AC 30192)
    Harper, Robinson and Pellegrino, Js.
    Argued April 12
    officially released September 28, 2010

      Natalie C. Rezek, special public defender, with whom was Elizabeth M. Inkster, senior assistant public defender, for the appellant (defendant).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Michael L. Regan, state’s attorney, and Vincent J. Dooley, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

ROBINSON, J.

The defendant, Clifford P., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1). On appeal, the defendant claims that the court improperly (1) denied his request for an evidentiary hearing to determine the admissibility of the victim’s alleged prior sex abuse allegations, and (2) excluded records from the department of children and families (department) and prevented him from questioning department workers regarding the records. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 10, 2003, the defendant, the victim’s maternal uncle, went to the victim’s house to pick her up so that she could baby-sit his two children, the victim’s cousins. The victim went to the defendant’s house where the victim’s aunt, the defendant’s wife, also resided. The victim’s aunt then left to pick up dinner and returned shortly thereafter. The defendant was in the house, drinking beer, all evening.

Later in the evening, the victim’s cousins went to bed, and the victim remained in the living room with her aunt and the defendant. After talking with her aunt and the defendant for awhile, the victim fell asleep on a couch watching television. The victim woke up to someone touching her. When the victim opened her eyes, she saw that it was the defendant. He was touching her vaginal area and putting “[h]is hand under [the victim’s] shorts through [her] underwear” and “putting his finger in and out” of her vagina. When the victim realized what was happening, she pretended to be asleep. After he started touching her, the victim’s aunt, who had been asleep on another couch in the living room, woke up and told the defendant that they should go to bed. The defendant responded that he would go to bed in a few minutes. After the victim’s aunt went to bed, the defendant resumed touching the victim. “[H]e unbuttoned [the victim’s] pants at that point and then just started doing the same thing he was before.” The victim testified that the defendant’s touching was painful.

The victim’s aunt soon came back into the living room and said something to the defendant, causing him to stop and to turn around. The victim took the opportunity to make it clear that she was waking up. The victim told her aunt that she was going to sleep in her cousin’s room. When the victim went into her cousin’s room, she awoke her cousin. Her cousin asked, “[D]id he do it to you, too?” The victim’s aunt later came into the cousin’s room to ask the victim what was wrong, and the victim told her what had happened. Eventually, the victim’s aunt called the victim’s grandmother to come get her. The next morning, the victim’s grandmother took the victim to the house of the victim’s mother at which point the victim told her mother about the incident. The victim’s mother called the police and took the victim to a hospital where a rape kit was administered and her statement was taken by the police.

The examination revealed a 25 percent cleft in the hymen, which the hospital report indicated was an “unusual finding but does not necessarily correlate with the identified digital penetration.” It further revealed a finding of candida vulvitis. Additionally, a wet prep was performed, and the results were consistent with bacterial vaginismus. The nurse conducting the examination formed an impression that the victim had bacterial vaginosis, 6which is a condition that may be found in adolescents who are not sexually active and that could be attributed to wearing a wet bathing suit for extended periods of time.

The defendant was charged with the crimes of risk of injury to a child in violation of § 53-21 (a) (2) and sexual assault in the second degree in violation of § 53a-71 (a) (1). On April 4, 2008, the state filed a motion in limine, requesting that “the defendant be precluded from making inquiry into the sexual conduct, including, but not limited to, any allegation of the prior sexual abuse of the [victim].” On April 23, 2008, the defendant filed an objection to the motion in limine and a request for an evidentiary hearing. On April 25, 2008, the court held a hearing in which the defendant made his offer of proof to justify his request for an evidentiary hearing. The defendant wanted to admit evidence of an alleged false prior accusation of sexual assault made by the victim against another of her aunts, N, and N’s boyfriend. The defendant’s offer of proof consisted of (1) a statement from the victim’s mother that she did not believe the victim had been molested by N and N’s boyfriend; (2) a statement from a baby-sitter, dated December, 1992; (3) a risk assessment document, dated January, 1993; (4) a social work analysis; (5) a social work report; (6) a child advocacy clinic report, dated August, 2003; and (7) miscellaneous records from the department.

On April 29, 2008, the court denied the defendant’s request for an evidentiary hearing. The court found that the defendant’s offer of proof did not demonstrate the alleged falsity of the victim’s prior complaint of sexual assault and based its conclusion on (1) the lack of substantiation that the victim actually made a prior allegation; (2) the remoteness in time of the alleged prior complaint; (3) the speculative nature of the evidence; (4) the lack of falsity proof; (5) the age of the victim at the time of the alleged prior complaint; and (6) the lack of evidence that the victim, at the age of three, had the ability to distinguish right from wrong in making statements to third parties. On May 6, 2008, following a jury trial, the defendant was found guilty of risk of injury to a child and sexual assault in the second degree. The defendant was sentenced to twelve years incarceration, execution suspended after five years, nine months of which were mandatory, and ten years probation. This appeal followed. Other relevant facts will be set forth in the analysis as necessary.

I

The defendant first claims that the court improperly denied his request for an evidentiary hearing. Specifically, the defendant claims that the court (1) improperly found that his offer of proof did not establish the relevancy of the victim’s alleged prior accusation of sexual assault, (2) improperly considered whether the evidence was more prejudicial than probative and (3) violated the defendant’s right to present a defense pursuant to the sixth amendment to the United States constitution. We disagree.

We begin our analysis of the defendant’s claim by setting forth the applicable standard of review. Our analysis of the defendant’s claim is based on well established principles of law. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Martinez, 295 Conn. 758, 769-70, 991 A.2d 1086 (2010).

The defendant argues that the court improperly found that the evidence he presented in his offer of proof did not establish the relevancy of the victim’s alleged prior false accusations of sexual assault. He asserts that he met his burden by presenting prior claims of sexual assault made by the victim and establishing an inference that they were false. He contends that the statements made by the victim in 1992 were prior sexual assault allegations. Further, the defendant argues that the statements made by the victim’s mother indicated that she thought that the victim was lying. This, the defendant urges, combined with the fact that the allegation was unsubstantiated, satisfied the requisite standard for relevancy and was a sufficient offer of proof to warrant an evidentiary hearing.

“[T]he trial court [is] bound, in the exercise of its discretion, by our rape shield statute.” State v. Sullivan, 244 Conn. 640, 648, 712 A.2d 919 (1998). General Statutes § 54-86f, commonly referred to as the rape shield statute, was enacted to “bar or limit the use of prior sexual conduct of an alleged victim of sexual assault because it is such highly prejudicial material.” State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). “Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue [harassment], encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. . . . Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters.” (Citation omitted.) Id.

In the present case, the defendant wanted to circumscribe the rape shield statute by establishing the relevancy of his proffered evidence to the critical issue of the victim’s credibility. Because the evidence the defendant wanted to present to the jury was that of an alleged prior accusation of sexual assault, the defendant was required to “make a showing that, in fact, the prior complaint was: (1) made by the victim; and (2) false” before being entitled to an evidentiary hearing. State v. Sullivan, supra, 244 Conn. 649.

“In order to carry his threshold burden of establishing relevance . . . [the defendant was required to] make an offer of proof as a prerequisite to obtaining an evidentiary hearing to determine the admissibility of evidence . . . .” (Internal quotation marks omitted.) Id. The offer of proof must “enable the trial court to make an informed ruling in connection with the exercise of its discretion on the issue [of relevancy]”; (internal quotation marks omitted) id., 650; and “contain specific evidence rather than vague assertions and sheer speculation.” (Internal quotation marks omitted.) State v. Martinez, supra, 295 Conn. 771. Specifically, with respect to evidence that the victim has previously falsely alleged sexual assault, the Martinez court concluded that the defendant must show “conclusively that such claim was demonstrably false.” Id., 774.

In Martinez, the defendant sought to introduce evidence that the victim had previously falsely claimed that her brother and stepuncle had sexually assaulted her. Id., 766. As part of his offer of proof, the defendant presented a police report containing a statement by the victim’s sister that on a previous occasion she had seen her sister having sex with her brother and that just before the incident at issue, the victim expressed her desire to have her brother join her in the shower, which was where she was assaulted. Id., 767. The defendant also presented a police report with a statement by a social worker that the victim altered her story to indicate that her stepuncle, not her brother, had sexually assaulted her. Id., 768. The court found that the defendant did not meet his burden of proof because nothing in the sister’s statement negated the possibility that on the alleged occasion the victim’s brother forced her to have sex with him, even if the initial shower was consensual. Id., 773. It did not, therefore, support the inference that the victim was lying. Further, the court concluded that although the statement by the social worker indicated that the victim recanted her claim against her brother, it did not prove that such a claim was false. Id., 774.

Further, in State v. Barrett, 43 Conn. App. 667, 670, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997), the defendant’s offer of proof contained records establishing the victim’s volatile relationship with her mother and the defendant before and after the victim’s suicide attempts, the victim’s admission to doing “ ‘crazy things’ ” when angry and prior sexual assault allegations by the victim against male family members. This court agreed with the trial court’s ruling that the records regarding the victim’s relationship with her mother and the defendant were too remote in time to be relevant as a possible motive for her allegations, and this court stated that the inconsistencies in the victim’s recountings of the prior sexual assaults “may point to [a] flawed memoiy . . . [but] do not supply evidence of falsity.” Id., 675.

Conversely, in State v. Martini, 38 Conn. App. 100, 659 A.2d 196, cert. denied, 234 Conn. 920, 661 A.2d 99 (1995), this court concluded that the defendant’s offer of proof was adequate to support an inference that the victim’s prior sexual assault allegations were false. The defendant offered the victim’s medical records showing that the victim had made two prior claims of sexual assault. Id., 115. The records also indicated that the victim had experienced “delusions and hallucinations of a highly sexualized nature.” Id. The court determined that the evidence showing that the victim had made prior sexual assault claims, coupled with evidence that she had experienced sexual delusions and hallucinations, supported an inference that the prior claims were false. Id.

In the present case, the defendant’s offer of proof neither demonstrated that the victim actually made an allegation of sexual assault, nor established “conclusively that such claim was demonstrably false.” State v. Martinez, supra, 295 Conn. 774. The reports that the defendant submitted were from 1992, when the victim was three years old. We agree with the trial court’s reasoning that the victim’s age, limited language skills and capacity to understand the difference between innocuous and inappropriate touching, weakened the defendant’s assertion that the victim’s statements were allegations of sexual assault. It is ambiguous as to whether the victim had the mental capacity to allege sexual assault or whether she was referring to innocent activity that took place during caretaking activities. Similar to Barrett, even if the mother did not believe that the victim had been sexually assaulted, that statement does not necessarily negate the victim’s statements. See State v. Barrett, supra, 43 Conn. App. 670. The statements made by the victim leave open the possibility that the victim either misconstrued the touching by N and N’s boyfriend or did not realize the effect of what she was saying.

Further, the defendant’s only evidence to demonstrate that these statements, if intended as accusations, were false, was a statement by the victim’s mother that she did not believe that the victim had been sexually assaulted. In a 1992 statement, the victim’s mother noted that the victim’s behavior changed a couple of months prior to the incident and further relayed how the victim became upset when the mother went to work. She did not opine, however, that the victim’s allegations were an extension of such behavior.

This evidence is similar to the social worker’s statement in Martinez because in that case, the defendant’s argument was that the inconsistencies in the victim’s statements to the social worker could give the inference that the victim was lying. State v. Martinez, supra, 295 Conn. 774. The court rebuffed that argument by pointing out that a recantation by a victim does not equate to a he. Id.; see also State v. Morales, 45 Conn. App. 116, 125, 694 A.2d 1356 (1997) (“[a] poor or flawed memory by [the victim] in making an accusation is not sufficient to supply evidence of falsity”), appeal dismissed, 246 Conn. 249, 714 A.2d 677 (1998). In the present case, although there are department reports indicating that the victim gave inconsistent statements regarding the 1992 incident, the defendant does not offer any link between these inconsistencies and the mother’s statements, nor would such inconsistencies necessarily support a conclusion that the victim was lying. See State v. Martinez, supra, 774. Further, the defendant fails to offer any other foundation, such as eyewitness observations, on which the victim’s mother may have based her statement.

The defendant’s offer of proof was the type of “vague and speculative” offer of proof that the Martinez court warned against. State v. Martinez, supra, 295 Conn. 772; see also, e.g., State v. Morales, supra, 45 Conn. App. 125 (victim’s inability to recall accusing defendant’s son of molestation did not establish falsity of accusation); State v. Stevenson, 43 Conn. App. 680, 694-95, 686 A.2d 500 (1996) (victim’s history of general delusions not specifically sexual delusions and not admissible to establish falsity of prior accusations), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997); State v. Slater, 23 Conn. App. 221, 225-26, 579 A.2d 591 (1990) (existence of similarities between prior sexual assault allegations and present allegations not enough to establish falsity). The defendant presented an isolated statement made by a third party, without a foundation for why the witness made the statement, how the witness meant the statement or an indication of what the witness would say under oath, in an effort to establish that the victim’s prior allegations were false. This is not the type of clearly established offer of proof that warrants an evidentiary hearing. See State v. Manini, supra, 38 Conn. App. 115 (documented sexual hallucinations gave inference prior sexual assault accusation could have been based on delusion). We conclude that the defendant did not meet his burden through his offer of proof, and, therefore, the trial court did not abuse its discretion in denying the defendant’s request for an evidentiary hearing.

II

The defendant next claims that the court improperly excluded records from the department and did not allow him to question department workers regarding the records. Specifically, the defendant argues that the department documents were relevant to show that the victim was not credible because she was engaging in attention seeking behavior resulting from her tumultuous family life. Further, the defendant asserts that State v. William C., 267 Conn. 686, 841 A.2d 1144 (2004), is controlling and instructs that the department records should have been admitted as evidence under General Statutes § 52-180, the business record exception to the hearsay rule. We disagree.

We begin this analysis by setting forth the appropriate standard of review. Our analysis of the defendant’s claim is based on well established principles of law. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Ritrovato, 280 Conn. 36, 50, 905 A.2d 1079 (2006).

As a basic principle, evidence must be relevant to the defendant’s theory of the case to be admitted. See State v. Adorno, 121 Conn. App. 534, 546, 996 A.2d 746 (2010). Evidence is relevant when it has “any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence . . . .” (Internal quotation marks omitted.) State v. Ritrovato, supra, 280 Conn. 50. “The proffering party bears the burden of establishing the relevance of offered evidence.” State v. Crespo, 114 Conn. App. 346, 362, 969 A.2d 231, cert. granted on other grounds, 292 Conn. 917, 973 A.2d 1276 (2009).

On May 6, 2008, the defendant sought to enter into evidence sealed department records to support his contention that the victim was not credible and had motivation to he about the allegations against him. The records that the defendant has attached as an appendix to his appellate brief, however, are not the records that the trial court viewed in camera on May 6, 2008. This court will review only the evidentiary ruling made on the records that were marked as exhibit A for identification and that the court actually reviewed on May 6, 2008. See State v. LaMothe, 57 Conn. App. 736, 741, 751 A.2d 831 (2000) (“[b]ecause our review is limited to matters in the record, we will not address issues not decided by the trial court”). Our analysis, therefore, will be based only on those records.

The defendant asserts that the department records contain statements documenting the victim’s 1992 accusation against N and N’s boyfriend that they digitally penetrated her vagina. Further, the defendant contends that the statements by the victim’s mother that she did not believe that the victim had been sexually molested and that the victim told her that she hated her when she got ready for work, showed that the victim was unhappy with her living situation and was acting out, possibly by lying about a sexual assault, to procure attention. These statements were submitted, however, as part of the defendant’s offer of proof and are not contained in those documents reviewed during the May 6, 2008 in camera inspection.

The defendant also argues that the department’s heavy involvement with the family evinces that the victim was neglected and in an abusive atmosphere, which explains why she may have been seeking attention. The documents submitted at the May 6, 2008 in camera inspection are all records from the department progressively documenting the status of the victim’s family situation. Unlike the documents at issue in William C., which explicitly documented the victim’s problems with veracity, the department documents in the present case do not suggest that the victim was lashing out in response to her home life. Further, they do not reasonably support an inference that the victim was engaging in attention seeking behavior or provide any instance that casts doubt on the victim’s credibility. We conclude that the documents are not relevant to the defendant’s theory that the victim was fabricating the present sexual assault allegation. The court, therefore, did not abuse its discretion in refusing to admit the sealed department documents as evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The living room had two couches. The victim was lying on one and her aunt was on the other. The defendant was in between the two couches on the floor.

       Candida vulvitis is an “[¡Infection with, or disease caused by” “[¡Inflammation of the vulva.” Stedman’s Medical Dictionary (27th Ed. 2000) pp. 277, 1980.

       Vaginismus is defined as “painful spasm of the vagina preventing intercourse.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 1925. It appears that the term was misused in the place of vaginosis in the hospital report, as vaginismus is not a bacterial infection and, therefore, cannot be tested through a wet prep. See id.

       Vaginosis is defined as “infection of the human vagina that may be caused by anaerobic bacteria . . . .” Stedman’s Medical Dictionary (27th Ed. 2000) p. 1925.

       The victim was three years old when she made the alleged prior accusation.

       General Statutes § 54-86f entitled “Admissibility of evidence of sexual conduct,” provides in relevant part: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the prior sexual conduct of the victim may be admissible unless such evidence is . . . (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her prior sexual conduct ... or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part of the defense.”

       The defendant stressed that because the case was void of physical evidence establishing that the victim has been sexually assaulted, the gravamen of the case was the credibility of the victim versus his credibility.

       The defendant also argues that the court improperly considered the probative value versus the prejudicial effect of the evidence when deciding the defendant’s motion for an evidentiary hearing. Because we have concluded that the evidence was not relevant, we do not reach the issue of whether the court may consider probative value and prejudicial effect before an evidentiary hearing. See State v. Adorno, 121 Conn. App. 534, 544-45, 996 A.2d 746 (2010) (describing two part process of first determining relevancy of evidence, then determining whether its probative value outweighs prejudicial effect).
      Further, because the evidence is not relevant, we do not reach the issue of whether the defendant’s rights afforded to him by the sixth amendment to the United States constitution were implicated. “The defendant’s sixth amendment right . . . does not require the trial court to forgo completely restraints on the admissibility of evidence: . . . [T]he constitution does not require that a defendant be permitted to present every piece of evidence he wishes. ... If the proffered evidence is not relevant, the defendant’s right to confrontation is not affected, and the evidence was properly excluded.” (Citation omitted; internal quotation marks omitted.) State v. Andrews, 102 Conn. App. 819, 826-27, 927 A.2d 358, cert. denied, 284 Conn. 911, 931 A.2d 932 (2007).

       The documents contained department worker entries that “relate [d] to the victim’s problems with veracity following her placement into foster care; indicate[d] the victim herself had questioned whether the defendant actually had abused her or whether she had ‘dreamed’ up the abuse; and [stated that] the victim had conveyed her doubts as to the legitimacy of her accusations to various other individuals.” State v. William C., supra, 267 Conn. 693.

       Because we conclude that the documents are not relevant, we do not reach the issue of whether the department records fall within the business record exception to the hearsay rule pursuant to § 52-180. Similarly, because the documents are not relevant, we further conclude that the court did not abuse its discretion in not allowing the defendant to question department workers regarding the irrelevant documents.


text:
    CC CROMWELL, LIMITED PARTNERSHIP v. ANDREW ADAMES ET AL.
    (AC 31101)
    Bishop, Robinson and Hennessy, Js.
    Argued April 16
    officially released September 28, 2010

      Noah J. Schafer, for the appellants (defendants).

      Edward V. Longinotti, with whom was David A. Hill, Jr., for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendants, Andrew Adames and Christopher Quiroga, managing members of Señor Panchos of Cromwell, LLC (Señor Panchos), appeal from the order of the trial court granting the application for a prejudgment remedy filed by the plaintiff, CC Cromwell, Limited Partnership (Cromwell). On appeal, the defendants claim that the court improperly (1) found probable cause to support the issuance of a prejudgment remedy and (2) determined the value of the attached property. The defendants have provided an inadequate record to review their claims, and, accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are necessary to the resolution of the defendants’ appeal. In October, 2007, Guadalajara & Vallaría, LLC, former tenants in a restaurant space owned by Cromwell in Crossroads of Cromwell, a shopping center, executed an assignment, consent and amendment of the original lease (assignment) to Señor Panchos to operate a restaurant in the leased space formerly occupied by Guadalajara & Vallarta, LLC. The assignment both assigned the lease to Señor Panchos and extended the term of the lease from June 30, 2009, to July, 2014. The agreement also gave Cromwell a security interest in the equipment “in [the restaurant space] and [whatever equipment] would be in there to own and operate a restaurant,” as collateral to ensure that Señor Panchos paid the rent due under the lease. In September, 2008, Señor Panchos stopped paying the owed rent to Cromwell. In October, 2008, without notice to Cromwell, Señor Panchos ceased operations and took all of the equipment out of the restaurant. On October 15, 2008, Cromwell sent a letter to Señor Panchos notifying it that it was in default for nonpayment under the lease. The letter further reminded Señor Panchos that Cromwell had a security interest in all of the restaurant equipment in the premises and that it should not be removed.

Robert Rieger, president of Cromwell, testified that Señor Panchos owed $156,000 in interest on the unpaid rent and $17,000 to $18,000 in administrative fees but that he believed that Cromwell would be able to mitigate these damages to approximately $125,000. Rieger further testified that Adames told him that he “had taken the equipment out [of the restaurant space] and was selling it . . . and he didn’t make it clear in any which way that he was selling it for the benefit of the [limited liability company], that he was selling it for the benefit or using it in other restaurants that belonged to him.”

In January, 2009, Cromwell filed a revised complaint against the defendants, alleging that they were each acting in their individual capacity when they violated the assignment by removing the collateral that was the subject of Cromwell’s security interest from the leased premises. Cromwell also claimed that the removed collateral was worth $153,000. On February 4, 2009, Cromwell filed an application for a prejudgment remedy to secure the sum of $153,000. On May 14, 2009, the court, Burgdorff, J., granted the application, finding “probable cause to sustain the validity of the plaintiffs claim . . . .” This appeal followed. Additional facts will be set forth as necessary.

I

First, the defendants claim that the court improperly found probable cause to support the application for a prejudgment remedy. Specifically, the defendants argue that there was no evidence to support a finding that Quiroga was acting individually in removing the collateral from the leased premises. Similarly, the defendants contend that the evidence that Adames told Rieger that he “had taken the equipment out and was selling it,” but did not specify whether it was for his individual benefit or the benefit of Señor Panchos, was insufficient to support a finding that Adames was acting in his individual capacity.

The trial court may grant a prejudgment remedy on a finding that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . .” General Statutes § 52-278d (a) (1). “Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence.” (Internal quotation marks omitted.) Crotty v. Tuccio Development, Inc., 119 Conn. App. 775, 779, 990 A.2d 888 (2010). “The trial court has broad discretion to determine the plaintiffs probable success at a trial on the merits of its case. . . . Moreover, a prejudgment remedy hearing is not contemplated to be a full scale trial on the merits, which necessarily will mean that the evidence presented at the hearing will not be as well developed as it would be at trial, particularly when . . . the parties have not finished the discovery process.” (Citation omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 143, 943 A.2d 406 (2008).

The defendants have failed to present us with an adequate record to review the trial court’s finding of probable cause. “[T]he appellant bears the burden of providing an appellate court with an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of decision . . . [or] to clarify the legal basis of a ruling. . . .

“It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P] roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The . . . failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) J.K. Scanlan Co. v. Construction Group, Inc., 80 Conn. App. 345, 351-52, 835 A.2d 79 (2003).

In the present case, the court did not provide a memorandum of decision explaining its findings of fact or legal reasoning. This court is unable to determine from the record what testimony the trial court credited and what evidence persuaded the court that there was probable cause that judgment would be rendered in the plaintiffs favor. The defendants argue that there is no evidence that Quiroga removed the collateral from the leased premises. Further, the defendants assert that nothing indicates that either of them acted in their individual capacity because the only evidence that Adames was acting in his individual capacity when he moved the equipment, his conversation with Rieger, is vague. The plaintiff argues that, pursuant to Connecticut jurisprudence, because the defendants committed a tort, they are both personally liable and hable as members of Señor Panchos. We cannot discern from the record whether the court credited this theoiy, found the testimony regarding Rieger’s conversation with Adames persuasive or based its decision on other evidence or legal theories entirely. In the absence of a motion for articulation, we will not speculate as to the findings made and legal reasoning applied by the court, and, thus, we will not address the merits of the defendants’ claim.

II

. Second, the defendants claim that the court improperly valued Cromwell’s security interest and, consequently, the amount for which the prejudgment remedy was granted. The defendants argue that because Señor Panchos purchased all of the assets of Guadalajara & Vallarta, LLC, for $50,000, the value of the collateral is far less than $153,000, the amount of the prejudgment remedy. Further, the defendants maintain that Kenneth Katz, a personal property appraiser, who was called as an expert witness, used a flawed approach to determine the value of the collateral. Specifically, the defendants allege that Katz did not physically examine the collateral and incorrectly used the purchase price of the equipment when new, less depreciation, rather than the actual purchase price paid by the defendants, minus depreciation.

“[T]o justify issuance of a prejudgment remedy, probable cause must be established both as to the merits of the cause of action and as to the amount of the requested attachment. That dual requirement ensures that a person is not deprived of the use of property without due process of law.” (Emphasis in original; internal quotation marks omitted.) TES Franchising, LLC v. Feldman, supra, 286 Conn. 146. “We have held that in an application for a prejudgment remedy, the amount of damages need not be determined with mathematical precision. ... A fair and reasonable estimate of the likely potential damages is sufficient to support the entry of a prejudgment attachment. . . . Nevertheless, the plaintiff bears the burden of presenting evidence which affords a reasonable basis for measuring her loss.” (Citations omitted; internal quotation marks omitted.) Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693, 795 A.2d 1274 (2002).

Again, the defendants have failed to provide us with an adequate record to review the court’s findings as to the amount of the prejudgment remedy. This court cannot determine whether the trial court made a fair and reasonable estimate of the value of the collateral without knowing what evidence the court used in its calculations. We can only speculate as to what mathematical formula was utilized by the court and which of the various sums presented through expert testimony and the defendants’ testimony about the purchase price of the collateral the court may have relied on in reaching $153,000 as the final valuation of the collateral. We, therefore, decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The agreement provides in pertinent part: “As security for the Assignee’s payment of sums due under the Lease and the performance of all of the Assignee’s terms, covenants and conditions contained in the Lease, the Assignee hereby grants to the Landlord a security interest in the property of Assignee described below .... The Collateral shall consist of Goods, as hereinafter defined, Inventory as hereinafter defined and Equipment, as hereinafter defined. For the purposes of this security interest, Goods, Inventory and Equipment shall have the same meaning as those terms are defined in the Uniform Commercial Code, as adopted and amended in Connecticut.”