text:
    STATE OF CONNECTICUT v. CELAL ORHAN
    (AC 17003)
    Lavery, Hennessy and Sullivan, -Is.

      Argued September 21, 1998
    officially released March 16, 1999

      Richard T. Meehan, Jr., with whom, on the brief, were Richard T. Meehan, Sr., and Edward J. Gavin, for the appellant (defendant).

      Susann E. Gill, senior assistant state’s attorney, with - whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John C. Smriga, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Cela! Orhan, appeals from the judgment of conviction, following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On a Friday evening in July, 1995, the victim, who was then nine years old, and her older sister, S, spent the night with their younger cousin, M, at his home to celebrate his birthday. M lived in Bridgeport with his mother and the defendant in a two bedroom apartment. The children slept in M’s bedroom. S slept on a mattress, the victim slept on a box spring, and M slept in a sleeping bag on the floor.

The victim, who was wearing a T-shirt and underwear, was sleeping on her stomach when the defendant came into the room, leaned over the sleeping bag and touched the victim’s buttocks by putting his hand inside her underwear. He then moved his hand between the victim’s legs, touched her vagina and put his finger into her vagina, at which time the victim moved. When the victim moved, the defendant removed his hand and left the room.

The next morning, the victim told S what the defendant had done to her during the night. During the day, the victim and S attempted to reach their mother by telephone. When the victim was finally able to talk to her mother, she insisted that her mother come and get her and take her home despite the fact that the victim and S had originally planned to spend another night at M’s home. After she picked them up, the girls’ mother asked them why they did not want to spend another night at M’s house. At that time, the victim told her mother what the defendant had done to her. The victim’s mother contacted the Bridgeport police department later that night and took the victim to the police station on Sunday.

Three days after the defendant learned of the victim’s accusations, he fled to Florida where he remained until he was arrested on charges stemming from the incident. Following his conviction, the defendant appealed, claiming that the trial court improperly (1) denied his motion for judgment of acquittal on the count of sexual assault in the first degree because there was insufficient evidence of penetration to support a guilty verdict beyond a reasonable doubt, (2) ruled on evidentiary matters by (a) permitting constancy of accusation testimony in violation of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), (b) restricting the defendant’s cross-examination of the victim and (c) refusing to permit the defendant to testify as to the hearsay statement of his brother-in-law and (3) instructed the jury on the constancy of accusation testimony. We disagree.

I

The defendant first claims that the trial court improperly denied his motion for judgment of acquittal on the count of sexual assault in the first degree, specifically that there was insufficient evidence of penetration to support the allegation of sexual intercourse. The defendant claims that, because the victim testified on direct examination but not on cross-examination that the defendant put his finger into her vagina, there was a dispute as to whether there was penetration sufficient to constitute sexual intercourse. We are not persuaded.

“When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. State v. Hooks, 30 Conn. App. 232, 238, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993); State v. Salz, supra, 31.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 604, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998).

“ ‘[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.’ State v. Sivri, 231 Conn. 115, [132] 646 A.2d 169 (1994). ‘On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.’ Id., 134.” State v. Rogers, 50 Conn. App. 467, 473, 718 A.2d 985, cert. denied, 247 Conn. 942, 723 A.2d 319 (1998).

“A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age . . . .” General Statutes § 53-70 (a). “ ‘Sexual intercourse’ means vaginal intercourse .... Penetration, however slight, is sufficient to complete vaginal intercourse .... Penetration may be committed by an object manipulated by the actor into the genital . . . opening of the victim’s body.” General Statutes § 53a-65 (2).

The defendant concedes that digital penetration, however slight, is sufficient to constitute sexual intercourse. See State v. Hermann, 38 Conn. App. 56, 60, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995); State v. Grant, 33 Conn. App. 133, 141, 634 A.2d 1181 (1993). On direct examination, the victim testified that the defendant put his finger into her vagina. The defendant argues that because the victim did not repeat those words on cross-examination, there was insufficient evidence from which the jury could conclude that there was penetration. The defendant’s argument is not persuasive. Defense counsel controlled the scope of his cross-examination, which he limited, in part, to the defendant’s touching the victim’s buttocks and vagina and to the length of time of such touching. Although he was free to ask the victim about any part of her direct testimony, defense counsel did not question the victim about the defendant’s having inserted his finger into her vagina. The defendant cannot now complain, therefore, that because the victim did not repeat her testimony as to the full extent of his unlawful touching that there was insufficient evidence by which the jury could have found the defendant guilty beyond a reasonable doubt.

The jurors are the arbiters of fact, and it is their duty to pass upon the credibility of a witness, even when there is inconsistent testimony. See New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 99, 709 A.2d 14 (1998). Here, the testimony was not inconsistent. The victim merely did not testify more than once that the defendant placed his finger into her vagina. Our laws do not require her to do so. See State v. Dabkowski, 199 Conn. 193, 199-203, 506 A.2d 118 (1986). If the defendant wanted to discredit the victim’s testimony, he was free to question her about the specifics of her prior testimony on cross-examination. See id., 202. He made the tactical decision not to do so. The trial court, therefore, properly denied the defendant’s motion for a judgment of acquittal.

II

Next, the defendant claims that the trial court improperly ruled on evidentiary matters because it (1) permitted the victim’s mother to testify as a constancy of accusation witness and permitted S and the victim’s mother to testify as to the substance of the victim’s complaints in violation of State v. Troupe, supra, 237 Conn. 284, (2) refused to permit the defendant to testify as to certain hearsay statements made by his brother-in-law and (3) restricted the defendant’s cross-examination of the victim. We do not agree.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998). “It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998).

“Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998). “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. . . . Higgins v. Karp, 243 Conn. 495, 506, 706 A.2d 1 (1998).” (Internal quotation marks omitted.) Wright v. Hutt, supra, 50 Conn. App. 453.

A

The defendant’s first claim of evidentiary error is that the trial court improperly permitted S and the victim’s mother to provide constancy of accusation testimony in violation of State v. Troupe, supra, 237 Conn. 284. Specifically, the defendant claims that the state failed to provide an adequate foundation for the constancy of accusation testimony of the victim’s mother and that the constancy of accusation testimony of both S and the victim’s mother went beyond the bounds permitted by Troupe. We disagree.

“ ‘The constancy of accusation doctrine is well established in Connecticut and recently has been reaffirmed by [our Supreme Court]. See State v. Troupe, [supra, 237 Conn. 297-98, 303-304]; State v. Kelley, 229 Conn. 557, 565, 643 A.2d 854 (1994); State v. Dabkowski, [supra, 199 Conn. 199-203]. The doctrine originally was premised on the arguably inaccurate premise that, if a woman had been sexually assaulted, it would be “natural” for her to confide in others. See, e.g., State v. De Wolf, 8 Conn. 93, 99 (1830). Until State v. Troupe, supra, 304, we permitted witnesses to testify about the details of a victim’s accounts of the alleged sexual assault on the theory that, if the victim’s story were true, “the evidence would show constancy in the charge even to the details, and the truth would the more clearly appear.” State v. Kinney, 44 Conn. 153, 156-57 (1876); State v. De Wolf, supra, 99. In State v. Troupe, supra, 284, however, we restricted the doctrine so that a constancy of accusation witness could testify only to the fact and the timing of the victim’s complaint. Even so limited, the evidence would be admissible solely for corroboration of the victim’s testimony, and not for substantive purposes. Id., 304.’ State v. Sullivan, 244 Conn. 640, 645, 712 A.2d 919 (1998).” State v. Marshal], 246 Conn. 799, 805-806 n.9, 717 A.2d 1224 (1998).

Our Supreme Court concluded “that a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.” State v. Troupe, supra, 237 Conn. 304. “In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant.” Id., 305.

1

During trial, the defendant objected to the introduction of the constancy of accusation testimony of the victim’s mother, claiming that the victim had not testified that she told her mother what the defendant had done to her. After the state made an offer of proof, the trial court overruled the defendant’s objection, stating that in order for the victim’s mother to testify as a constancy of accusation witness, it was not necessary for the victim to have identified her as a person to whom she had told the details of the assault. The state concedes that the trial court was mistaken as to the requirements of Troupe but argues that although the victim did not explicitly testify that she told her mother what the defendant did to her, there was sufficient circumstantial evidence to lay the foundation necessary for her constancy of accusation testimony. We agree with the state.

The state, at the defendant’s request, made an offer of proof regarding the constancy of accusation testimony proffered by the victim’s mother. The victim’s mother received telephone messages from her workplace that the victim was trying to contact her. Her answering machine recorded numerous hang up calls identified as having come from the site of M’s birthday party. The victim’s mother then telephoned the victim at the party. The victim asked her mother to come and get her. The victim’s mother asked the victim to follow the original plan by staying with M until Sunday, but the victim insisted that her mother come for her at that time. The victim told her mother what had happened, and that evening the victim’s mother contacted the Bridgeport police.

“There is no distinction between direct and circumstantial evidence [so] far as probative force is concerned .... State v. Heinz, 193 Conn. 612, 625, 480 A.2d 452 (1984). In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence. . . . State v. Scales, [38 Conn. App. 225, 229, 660 A.2d 860 (1995)].” (Internal quotation marks omitted.) State v. Teti, 50 Conn. App. 34, 39, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998). “ ‘[T]riers of fact must often rely on circumstantial evidence and draw inferences from it. . . . There is no rule of law which forbids the resting of an inference on facts whose determination is the result of other inferences.’ . . . Blados v. Blados, [151 Conn. 391, 395, 198 A.2d 213 (1964)].” Paige v. St. Andrew’s Roman Catholic Church Corp., supra, 247 Conn. 32 n.9. “In criminal cases, including the most serious ones, the fact that an accused was the person who committed the criminal act may be proved by circumstantial evidence. State v. Rivera, 32 Conn. App. 193, 201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981).” (Internal quotation marks omitted.) State v. Jones, 50 Conn. App. 338, 362-63, 718 A.2d 470 (1998).

According to Troupe, the victim of a sexual assault must, among other things, identify the individuals to whom she or he reported the assault prior to that individual’s being permitted to give constancy of accusation testimony. We see no reason why circumstantial evidence cannot be used to identify the individuals to whom the victim reports an incident. In the case before us, there was evidence that the victim made numerous attempts to telephone her mother to ask to be taken home rather than spend another night in the defendant’s home. The victim’s mother went to get her daughters. Once the girls were in the car, the victim’s mother insisted that they tell her why they wanted to go home. The family sat in the car at the side of the road for some time talking. That evening, the victim’s mother telephoned the Bridgeport police department, and she took the victim to the police station the next day. The trial judge could easily infer that the victim reported the events of the previous night to her mother, thus satisfying the Troupe foundation requirement. The trial court, therefore, properly permitted the victim’s mother to testify as a constancy of accusation witness.

2

The defendant also claims with respect to the constancy of accusation testimony that the trial court improperly permitted S and the victim’s mother to provide testimony concerning details of the complaint beyond that permitted by State v. Troupe, supra, 237 Conn. 305. Specifically, the defendant takes exception to S’s testifying that the victim told her that the defendant “came in the middle of the night and he touched me where he shouldn’t have,” and to the victim’s mother testifying that the defendant “had touched her private parts while she was sleeping . . . the night before.”

In modifying the fresh complaint rule, our Supreme Court reasoned, in part, that “a defendant has an interest in not being unreasonably burdened by such accrediting or supporting evidence .... Concerns about such evidence are magnified if the victim has reported the alleged offense to a number of persons, all of whom are permitted to testify about the details of the complaint.” Id., 302-303. “Accordingly, we conclude that a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.” (Emphasis added.) Id., 304. “Moveover, we recognize that the defendant, on cross-examination of a constancy witness, may elicit details of the victim’s complaint for the purpose of demonstrating inconsistencies between the victim’s trial testimony about the sexual assault and the victim’s report of the incident. In such cases, the effect of our modification of the constancy of accusation doctrine is merely to shift the timing of the introduction into evidence of the details.” Id., 304 n.19.

The controlling language from Troupe does not limit the identifying information that may be provided. It limits only the extent of the information provided. Our Supreme Court merely gave examples of how a sexual assault might be identified; it did not hold that that was the only testimony that could be provided.

Here, the testimony of S and the victim’s mother indicated only that the defendant had touched the victim where he should not have. Their testimony did not include details critical to the state’s case, namely penetration. “[Wjhether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ” (Internal quotation marks omitted.) State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996). The defendant was not unduly burdened by accrediting or supporting evidence because the admission of the testimony was not contrary to the rationale of Troupe in limiting the testimony of constancy of accusation witnesses. The trial court, therefore, properly admitted the constancy of accusation testimony of S and the victim’s mother.

B

The defendant’s second evidentiary claim is that the trial court improperly restricted his cross-examination of the victim. Specifically, the defendant claims that the trial court improperly refused to let him question the victim as to whether she had ever lied to S or her mother and whether she was able to differentiate dreams from reality. We disagree.

“Our analysis of the defendant’s claim is guided by the familiar constitutional guidelines relevant to cross-examination by the defendant in a criminal trial. It is axiomatic that the defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. ... In order to comport with the constitutional standards embodied in the confrontation clause, the trial court must allow a defendant to expose to the jury facts from which [the] jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. . . .

“The confrontation clause does not, however, suspend the rales of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. . . . The court determines whether the evidence sought on cross-examination is relevant by determining whether that evidence renders the existence of [other facts] either certain or more probable. . . .

“The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant. . . . Relevance may be established in one of three ways.

“First, the proffering party can make an offer of proof. . . . Second, the record can itself be adequate to establish the relevance of the proffered testimony. . . . Third, the proffering party can establish a proper foundation for the testimony by stating a good faith belief that there is an adequate factual basis for his or her inquiry. A good faith basis on the part of examining counsel as to the truth of the matter contained in questions propounded to a witness on cross-examination is required. ... A cross-examiner may inquire into the motivation of a witness if he or she has a good faith belief that a factual predicate for the question exists.” (Citations omitted; internal quotation marks omitted.) State v. Beliveau, supra, 237 Conn. 584-86.

As in Beliveau, the defendant here has failed to persuade us that he had established the relevance of the proposed lines of questioning in the trial court by any of these methods. The defendant relies on differences between the testimony of the victim and that of the defendant and M’s mother as to the events that occurred on the night in question. Our review of the transcript reveals that the victim’s testimony was different from that of the defendant and M’s mother, but there is no evidence that the victim had a propensity to lie or that she was troubled by disturbing dreams. The subject line of questioning proposed by the defendant on cross-examination was nothing more than a fishing expedition that was irrelevant to the issue before the jury. The trial court, therefore, did not improperly infringe on the defendant’s constitutional right to cross-examine the victim.

C

The defendant’s final evidentiary claim is that the trial court improperly refused to let him testify as to the hearsay statement of his brother-in-law to explain why the defendant left Connecticut for Florida shortly after the victim had made her accusation against him. The state concedes that because the defendant offered the alleged statement not for its truth, but to show its effect on the defendant’s state of mind, it was not hearsay. The state argues, however, that the trial court’s improper failure to let the defendant testify as to the statement was harmless error because the defendant did testify as to the effect the statement had on him. We agree with the state.

The following facts are necessary for our analysis of this claim. On cross-examination, the state elicited from the defendant that several days after the victim made her accusation, he went to Florida, where he remained for eight months until he was arrested and returned to Connecticut to face charges associated with the accusation. On redirect examination, there was evidence that the defendant’s brother-in-law was hostile to the defendant and said something that caused the defendant to become fearful and to panic. As a result, the defendant fled Connecticut. The trial court did not permit the defendant to testify as to the statement the brother-in-law made to him. The trial court incorporated this evidence in its charge and told the jury that it could find an innocent explanation for the defendant’s flight.

“Flight, when unexplained, tends to prove a consciousness of guilt. State v. Ferrara, 176 Conn. 508, 516, 408 A.2d 265 (1979). Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). The probative value of evidence of flight depends upon all the facts and circumstances and is a question of fact for the jury. State v. Nemeth, 182 Conn. 403, 408, 438 A.2d 120 (1980). . . . State v. Wright, 198 Conn. 273, 281, 502 A.2d 911 (1986).” (Internal quotation marks omitted.) State v. Thomas, 50 Conn. App. 369, 382-83, 717 A.2d 828, cert. granted on other grounds, 247 Conn. 935, 722 A.2d 1217 (1998).

“[T]he jury . . . was not required to accept the defendant’s statement as true. [T]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. . . . It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject. State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). . . . State v. Foster, 45 Conn. App. 369, 379, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).” (Internal quotation marks omitted.) State v. Pauling, 47 Conn. App. 483, 487-88, 706 A.2d 981 (1998). “In considering the evidence, the jurors were free either to reject it or to accept it as they saw fit. They were not required to find that the defendant was guilty merely because he fled. State v. Rosa, 170 Conn. 417, 433, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976); State v. Delgado, 13 Conn. App. 139, 144, 535 A.2d 371 (1987).” State v. Thomas, supra, 50 Conn. App. 384.

“Out-of-court statements to a person are admissible to show his state of mind where his mental state is relevant. State v. Brokaw, 183 Conn. 29, 32, 438 A.2d 815 (1981); Zenik v. O’Brien, 137 Conn. 592, 598, 79 A.2d 769 (1951). A person’s ‘state of mind’ can be shown ‘from what he heard as well as from what he saw, even though what he heard would be normally classified as hearsay. . . . The evidence [concerning a third party’s statement to the witness] was admissible not to establish the truth of the facts asserted but to show what was in the defendant’s mind in testing the reasonableness of his belief . . . .’ (Citations omitted.) Zenik v. O’Brien, supra, 598.” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988).

“Whether a trial court’s erroneous restriction of a defendant’s or defense witnesses’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis. See State v. Bryant, 202 Conn. 676, 704, 523 A.2d 451 (1987).” State v. Jones, supra, 205 Conn. 731. The factual situation before us is similar to that in Jones. In both cases, the defendant was able to introduce evidence supporting his contention that his flight was the result of his fear. In Jones, our Supreme Court said, “Despite the trial court’s erroneous ruling concerning the flight testimony, the defendant was able to present his explanation that fear motivated his flight. Under the circumstances of [Jones], the trial court did not deprive the defendant of his due process right to present a defense.

“When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).” State v. Jones, supra, 205 Conn. 732.

As in Jones, the defendant here had the opportunity to explain the circumstances of his leaving Connecticut, in effect, his state of mind, which the jury was free to believe or not. Therefore, the trial court’s improper failure to permit the defendant to testify as to the statement made by his brother-in-law did not affect the trial result.

III

The defendant’s final claim is that the trial court improperly instructed the jury on the constancy of accusation testimony. The defendant contends that the trial court abused its prerogative of fair comment during its instruction on the constancy of accusation evidence by invading the fact-finding process and improperly suggesting that the victim had told S and her mother more details about the defendant’s actions than either conveyed through testimony. We are unpersuaded.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. . . . We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. . . . State v. Elijah, 42 Conn. App. 687, 691, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996).” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 774, 720 A.2d 242 (1998).

“The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict. . . . Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 603, 662 A.2d 753 (1995).” (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, supra, 50 Conn. App. 774-75.

“We therefore consider the proper standard to apply in deciding whether the error was harmless. Both our Supreme Court and this court have stated that whether an instructional error in a criminal case requires reversal of the conviction depends on whether the error is nonconstitutional or constitutional. If the instructional error is nonconstitutional, the defendant has the appellate burden of establishing that it is reasonably probable that the jury was misled. State v. Shifflett, 199 Conn. 718, 754, 508 A.2d 748 (1986); State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982); State v. Greene, 11 Conn. App. 575, 581, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). If the instructional error is constitutional, the state has the appellate burden of establishing that there is no reasonable possibility that the jury was misled. State v. Shifflett, supra [754]; State v. Mason, supra [585-86]; State v. Greene, supra [581-82]. In either situation, the inquiry focuses on the degree of likelihood that the error influenced the jury. State v. Shifflett, supra [754].” State v. Coleman, 14 Conn. App. 657, 678, 544 A.2d 194, cert. denied, 208 Conn. 815, 546 A.2d 283 (1988).

“A trial court has broad discretion to comment on the evidence adduced in a criminal trial. ... A jury trial in which the judge is deprived of the right to comment on the evidence and to express his opinion as to the facts ... is not the jury trial which we inherited. ... A trial court often has not only the right, but also the duty to comment on the evidence. . . . The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven. . . .

“The purpose of marshalling the evidence, a more elaborate manner of judicial commentary, is to provide a fair summary of the evidence, and nothing more; to attain that purpose, the [trial] judge must show strict impartiality. . . . The influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling. . (. . To avoid the danger of improper influence on the jury, a recitation of the evidence should be not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 218 Conn. 458, 461-62, 590 A.2d 112 (1991).

We have reviewed the portion of the trial court’s charge cited by the defendant as consisting of unfair comment and conclude that it fairly relates the testimony of the constancy of accusation witnesses to the law. The facts as noted by the trial court are presented as claims or beliefs of the witnesses. There is nothing repetitive or unduly burdensome about the recitation. The defendant takes particular exception to the fact that the trial court once noted that the victim testified that the defendant put his finger into her vagina. That fact was clearly in evidence and the trial court had a duty to recount it in its charge as it was pertinent to the question of penetration.

The defendant’s claim that the trial court confused the jury by recounting the Kmitation imposed by Troupe on the testimony of constancy of accusation witnesses is without merit. The jury heard both lawyers mention the name of the case immediately prior to hearing S and the victim’s mother give their constancy of accusation testimony. The jury was excused during the offers of proof. The defendant claims that the court’s instructions led the jury to believe that S and the victim’s mother had more to tell about the incident than their testimony provided and that the fresh complaint doctrine confused the jury. Here, the jury was likely to have concluded that the victim had told her mother and sister, probably her closest confidantes, exactly what had happened. The jurors might very well then have wondered why S and the victim’s mother did not provide the details. The trial court’s charge explained the legal reason, as set forth in Troupe, for not permitting a compounding of the victim’s testimony for the protection of the defendant. This the trial court had an obligation to do. The charge did not possibly mislead the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant’s counsel conducted the following cross-examination of the victim:
      “Q. Okay. And you claim that he reached down and touched you on the behind, correct?
      “A. Yes.
      “Q. And touched you just for a short time, correct?
      “A. Yes.
      “Q. And you claimed that he then reached his hand around and touched you on your vagina, correct?
      “A. Yes.
      “Q. As soon as you felt that you moved, is that correct?
      “A. Yes.
      “Q. And that caused him to move his hand, is that correct?
      “A. Yes.”

         The victim testified as follows on direct examination:
      “Q. When did you talk to your mom?
      “A. Well, we tried to call her the next day, but we couldn’t reach her.
      * ** *
      “Q. [D]o you remember when you first tried to call your mom?
      “A. I called the store where she works and my brother answered and she wasn’t there because then I remembered it was her day off.
      “Q. Okay. And did you try to get her at home then as well?
      “A. Yes.
      “Q. Was she at home?
      “A. No.
      “Q. Now, according to your original plan, were you supposed to stay there another night as well?
      “A. Yes.
      “Q. What were you calling your mother for at that time?
      “A. To tell her what happened.
      “Q. Now, do you remember if at some point your mother came and took you home?
      “A. Yes.

        ¡¡i *
      “Q. At some point did you go to the police?
      “A. Yes.
      “Q. All right. Do you remember if you went that Saturday or did you go some other time?
      “A. We went Sunday.”

       The following exchange took place during cross-examination of the victim:
      “ [Defense Counsel]: All right. Can you tell me, have you ever had a situation where [S]—with [S] where you ever told [S] something that wasn’t true?
      “[Assistant State’s Attorney]: Objection, Your Honor.
      “The Court: Sustained.
      “[Defense Counsel]: Have you ever had a situation where [S] has told you something that wasn’t true?
      “[Assistant State’s Attorney]: Objection.
      “The Court: Sustained. Disregard both questions and answers, if any.
      “[Defense Counsel]: Have you ever had an occasion to tell your mother something that was not true?
      “[Assistant State’s Attorney]: Objection as well, Your Honor.
      “The Court: Sustained.
      “[Defense Counsel]: Now, you were sleeping [at] Aunt Lucille’s house on this weekend, correct?
      “[The Witness]: Yes.
      “[Defense Counsel]: Can you tell me whether or not prior to this date had you ever had a problem with having bad dreams at night?
      “[The Witness]: No.
      “[Defense Counsel]:Never had a dream where you woke up in the middle of the night frightened about something?
      “[The Witness]: No, not there.
      “[Defense Counsel]: I’m sorry?
      “[The Witness]: Not there.
      “[Defense Counsel]: How about anywhere else?
      “[Assistant State’s Attorney]: Objection. Whether she ever had abad dream where she woke up and was frightened, I ask counsel to make some kind of offer.
      “[Defense Counsel]: I would like to explore with her if she had the opportunity to have a dream that she woke up believing the dream was true. I think it goes to the question of what actually happened that night and her ability to perceive it. I think it is common knowledge that everybody has dreams like that.
      “The Court: Oh, I don’t think so. I don’t agree on common knowledge either. She said no, so the inquiry is over on that score. Let me be more accurate. She said no, not at that house.
      “[Defense Counsel]: That is correct.
      “The Court: Did you ever have them anywhere? And it is sustained, the objection. Yes, go ahead.”

       The defense counsel conducted the following examination of the defendant:
      “Q. [The prosecutor] asked you if you learned that weekend that [the victim] was complaining that you had touched her on the vagina. Do you remember him asking you that question . . . ?
      “A. Yes.

        * 4s 4s
      “Q. Where were you when you learned this . . . ?
      “A. At my mother-in-law’s house.
      “Q. Still at the party?
      “A. Yes.
      “Q. Was [your wife] there?
      “A. Yes.
      “Q. Was her brother . . . there?
      “A. Yes.
      * ** *
      “Q. Did you have a conversation with [him] after you learned about the complaint?
      “A. Yes.
      “Q. Did [he] say something to you . . . that caused you to leave to go to Florida?
      }J{ í¡í i¡s
      “A. Yes.
      “Q. And did what he say in that conversation have an effect on you . . . ?
      4: 4< :k
      “A. He was yelling at me.
      45 45 4s
      “Q. Don’t tell us what he said. I want you to tell us after hearing what he said how it made you feel.
      “A. I got panic. I was—I got nervous and I wanted to leave.
      “Q. Is that because you had touched the little girl?
      “A. No.
      “Q. Is it because of what [he] said to you at the house that night?
      “A. Yes.
      “Q. Is [he] friendly with you now?
      “A. He was never friendly when I met him since the first day.”

       The defendant took exception to the following portion of the trial court’s instructions to the jury: “The next concept I’m going to deal with is a limiting instruction on constancy of accusation. In order for you to understand that, I believe I have to tell you that we have had testimony concerning that through [S] and [the victim’s mother]. They both testified that the [victim] told each of them [about] the . . . inappropriate conduct.
      “You heard the [victim], so you have a blatant position that the state claims occurred. She laid in bed and that she was fondled on her rear end, as she claimed it, and eventually touched in her vagina, and she said that he has inserted his finger in her vagina. She told the other two, and I limited their ability to tell you what she said, merely that he touched her in an improper place and whatever she told the mother. I leave those to your memory. I don’t want to impact on them by repeating them to you. You have heard it today.
      “That is a limitation by recent case law out of the Supreme Court, state of Connecticut, June of 1996. I’ll read you the limitations so you understand why there is not a full development, of what is said by the witness. The Supreme Court says, ‘We conclude that a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and the timing of the victim’s complaint. Any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge including, for example, the time, the place of the attack, and the identity of the alleged perpetrator.’
      “And the constancy rule remains in force, but without the—I don’t, say benefit, without having the witness’ testifying in detail as to each thing they were told by the alleged victim. As you know, statements made out of court by a witness are not admissible because the statements lack the support of the oath that a witness takes in court. There are exceptions to that general rule. We come across one of them in this case. The complaining witness who has testified here in court to the offense that she claims he committed upon her, if that was all there was to present before you, you would ask yourself did she keep silent about it before she came here to the court to testify. So for the purpose of corroborating her testimony, the state is permitted to use what she said outside of the court. She made a complaint of the injury done her, the conduct.
      “This evidence is admitted solely to corroborate her testimony in court. It is to be considered only by you in determining the weight and credibility of the complainant’s testimony. The fact that the complainant made a statement is not being offered to prove that it happened, but merely that she claimed it happened to corroborate her in-court testimony. In determining the extent of such corroboration in her statement out of court, you will carefully consider all the circumstances under which they were made. And, in particular, you should consider whether she has been constant and consistent in what she said to the two witnesses that were presented in that fashion, [S] and [the victim’s mother]. If you find that, in the reporting to you by those witnesses who received information allegedly from the victim inconsistencies or contradictions, you may utilize those as well, if you find any, to impeach the testimony of [the victim].”

       The defendant claims that the reasonably probable standard applies to his claim of unfair comment and that the reasonably possible standard applies to his claim of jury confusion concerning Troupe. The defendant has cited no law in support of either claim. Assuming without deciding, we have reviewed his claims of instructional impropriety by the reasonably possible standard.


source: Caselaw Access Project

author: FOTI, J. DUPONT, J.,

license: Public Domain

text:
    ROBERT RUSSELL v. MYSTIC SEAPORT MUSEUM, INC., ET AL.
    (AC 17747)
    Foti, Landau and Dupont, Js.

      Argued December 4, 1998
    officially released March 16, 1999

      Amy M. Stone, with whom, on the brief, was Nathan Julian Shafner, for the appellant (plaintiff).

      Joseph E. Shelly, Jr., for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiff, Robert Russell, appeals from the decision of the compensation review board (board) affirming the decision of the workers’ compensation commissioner for the second district (commissioner) (1) denying the plaintiffs motion to preclude, (2) dismissing his claim for failing to sustain his burden of proof that he suffered from a repetitive trauma injury and (3) dismissing as untimely filed his claim for workers’ compensation benefits for his May 2, 1991 injury. We affirm the decision of the board.

The following facts are relevant to this appeal. The commissioner held a hearing on July 25,1995, and found the following facts. The plaintiff was, at all relevant times, an employee of the defendant, Mystic Seaport Museum, Inc. (Mystic). On May 2, 1991, the plaintiff was working as an engineer aboard the steamboat Sabino. On that day, the plaintiff was reassembling a valve that had been taken apart. To get a better grip on the valve assembly, he changed his position and then fell approximately four and one-half feet to the deck plating. As he fell, he hit his left elbow on a pipe, shoving his left arm behind his head and dislocating his shoulder. After he landed, the plaintiff reduced the dislocation himself.

After the accident, the plaintiff submitted an employee incident report and continued working the rest of his shift. The plaintiff did not seek medical treatment or miss any time from work because of the injury. Mystic completed an employer’s first report of occupational injury or disease on May 8, 1991.

The plaintiffs typical workday included ten to twelve hour shifts during which he was responsible for the regular maintenance of the Sabino and stoking the ship’s coal burning boiler. Additionally, he spent approximately one half of his workday turning valves, including some above his head, requiring full extension of his arm.

The plaintiff had suffered between twenty to thirty partial and full dislocations of his left shoulder between the time of the accident and October, 1994, some of which happened while he was working. The plaintiff first notified his supervisor, Dick Lotz, and the director of human resources, Mark Duland, in September, 1993, that he was having trouble with his shoulder. The plaintiff informed Duland of the May, 1991 fall and Duland told him to see a physician and to submit the bills to Mystic. The plaintiff saw his personal physician, Job Sandoval, on September 24, 1993. Sandoval prescribed strengthening exercises for the plaintiff. In November, 1993, the plaintiff informed Duland that he was not improving and returned to Sandoval, who referred him to an orthopedic surgeon, J. A. Hallberg. On April 19, 1994, Hallberg suggested that the plaintiff undergo corrective shoulder surgery.

The plaintiff first informed Mystic that he wanted to file a workers’ compensation claim for the May, 1991 fall in October, 1994. The plaintiff decided to have the corrective surgery on October 24, 1994. His last day at work prior to the surgery was October 21, 1994.

The plaintiff filed a notice of claim, and the commissioner held a hearing on July 25, 1995. The commissioner denied his motion to preclude and determined that the plaintiff did not suffer a compensable injury. The plaintiff then appealed from the commissioner’s decision to the board. The board affirmed the commissioner’s decision in an opinion dated October 24, 1997. The plaintiff appeals from that decision. Additional facts will be set forth as they become necessary.

I

The plaintiff claims first that his motion to preclude the defendant from contesting his claim was improperly denied. The plaintiff claims that (1) the commissioner improperly concluded that his notice of claim failed to comply substantially with the notice requirements of General Statutes § 31-294c (a) in that the notice did not state any date of injury and (2) the defendant’s notice contesting compensability was insufficient because it (a) failed to list the correct date of injury and (b) failed to state substantially the specific grounds on which the defendant was denying compensability. We disagree with the plaintiff.

We begin by addressing the appropriate standard of review. The board “ ‘hear[s] the appeal on the record of the hearing before the commissioner’ unless it determines, under the statute, to take ‘additional evidence or testimony.’ General Statutes § 31-301 (a).” Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988). “The decision of the compensation review [board] must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Id.

A

The plaintiff filed a notice of claim for a repetitive trauma injury occurring “prior to [September 23,1994].” The notice was received by the defendant on December 2, 1994. The notice of claim states: “Notice is hereby given that the undersigned [the plaintiff], who while in the employ of Mystic Seaport Museum at Mystic prior to [September 23, 1994], sustained injuries arising out of and in the course of his/her employment as follows: ‘Repetitive trauma to left (non-master) shoulder while working as an engineer.’ ”

Section 31-294c sets forth the prerequisites for succeeding on a motion to preclude. For an injured employee to succeed on a motion to preclude, the employee must file a notice of claim within one year from the date of the injury. General Statutes § 31-294c (a). The employer also must file a notice contesting compensability within twenty-eight days after it receives the notice of claim from the employee. General Statutes § 31-294c (b).

The purpose of the preclusion statute was thoroughly discussed by our Supreme Court in Menzies v. Fisher, 165 Conn. 338, 334 A.2d 452 (1973). The Supreme Court stated: “The object which the legislature sought to accomplish is plain. Section 31-297 (b) [the predecessor to § 31-294c] was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and narrow the legal issues which were to be contested. To narrow the scope of the controversy would lighten the burden on the claimant in terms of legal expenses, a result which the legislature plainly desired to accomplish by its 1967 amendments. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4037-38 . . . .” Menzies v. Fisher, supra, 343-44.

The criteria of § 31-294c need not be perfectly met for a claimant’s notice of claim to be sufficient. Pereira v. State, 228 Conn. 535, 542-43 n.8, 637 A.2d 392 (1994). Minor defects will be overlooked as long as the employer will not be unduly prejudiced. Id.

In the present case, the plaintiff filed his notice of claim listing the date of injury as “prior to [September 23, 1994].” This date, however, is not the proper date of injury for the purposes of § 31-294c (a). The review board has consistently taken the position that, as a matter of law, the date of injury of a repetitive trauma is the last day of exposure—most commonly the last date of employment; see Sanford v. Clinton Public Schools, 03446 CRB-03-96-10 (March 5, 1998); Carvalko v. Bassick Co., 9 Conn. Workers’ Comp. Rev. Op. 258 (1991); Dorsett v. General Dynamics Corp., 8 Conn. Workers’ Comp. Rev. Op. 77, aff'd, 23 Conn. App. 827, 584 A.2d 484 (1990), cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991); our courts have endorsed this position. See Discuillo v. Stone & Webster, 242 Conn. 570, 581, 698 A.2d 873 (1997); Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993); Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994).

In the present case, the plaintiffs last day at work was October 21, 1994, the Friday before his shoulder surgery. As a matter of law, October 21, 1994, was the date of the plaintiffs injury because that was the last day of exposure. September 23,1994, has no legal significance. Although the plaintiff claims that September 23, 1994, was a proper date because it encompassed all injuries that he sustained as of that date, we disagree. The case law is clear on when the legal date of injury occurs. Additionally, § 31-294c (a) requires that the claimant file a notice of claim within one year of uthe date of the accident.” (Emphasis added.)

The plaintiff claims that listing October 21, 1994, as the date of injury would not have provided the defendants with any additional information with which to investigate the plaintiffs claim. If we were to hold that listing a date nearly one month prior to the date of injury was sufficient notice, numerous problems would result. Future employers would be faced with the situation in which an employee who was suffering from a repetitive trauma injury could file a claim with a date prior to his date of injury, then suffer additional repetitive injuries. The employer would not be able to investigate the employee’s claim fully and accordingly would be unable to state sufficiently any reasons for denying compensability for any additional injuries.

While this court held in Chase v. State, 45 Conn. App. 499, 506, 696 A.2d 1299 (1997), that a notice of claim using the language “on or before July 19, 1989,” did not invalidate that notice, we did state that “[i]f the results of the defendant’s investigation did not reveal an accidental injuiy on the precise date given in the notice, or in the several days prior thereto, the defendant reasonably could have disclaimed liability . . . .” (Emphasis added.) Clearly, one month exceeds the several days in which we held that an employer reasonably could discover an employee’s injuries.

The plaintiff cites Borent v. State, supra, 33 Conn. App. 495, for the proposition that listing the last day of exposure as the date of injury in a repetitive trauma injury does not give the employer any additional information with which to investigate the employee’s claim. His reliance on Borent is misplaced. Borent involved the issue of whether the claimant’s notice of claim was timely. In Borent, we merely affirmed the board’s decision reversing the trial commissioner’s finding of a date of injury. Id., 500. While Borent did list a date of injuiy in a repetitive trauma case different from the last day of exposure, neither this court nor the board discussed the possibility that an employer would be unable to investigate the claim properly because of an incorrect date of injury.

“ ‘We accord great deference to the construction given to [§ 31-294c] by the commissioner and the [board] because they are both charged with its enforcement. Police Department v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 119-20, 584 A.2d 1172 (1991).’ Crochiere v. Board of Education, [supra, 227 Conn. 354].” Borent v. State, supra, 33 Conn. App. 499. The board has previously construed small deviations in date of injury as de minimis errors and, therefore, in compliance with § 31-294c, or its predecessor. See Bonin v. Thames Valley Steel, 1492 CRB-2-92-8 (February 14, 1997) (stated date of injury five days after employment ended sufficient to sustain motion to preclude); Quinn v. Standard Knapp, 12 Conn. Workers’ Comp. Rev. Op. 334, 335 (1994), appeal dismissed, 40 Conn. App. 446, 671 A.2d 1333 (1996) (listing date only one day after last day worked as de minimis); Bell v. Dow Corning STI, Inc., 13 Conn. Workers’ Comp. Rev. Op. 109, 110 (1995) (five day discrepancy within range of de minimis error); but see Fleming v. New Haven Register, 14 Conn. Workers’ Comp. Rev. Op. 263, 265 (1995) (injury date two months prior to last day of trauma insufficient to support motion to preclude).

The commissioner found that the plaintiffs use of prior to September 23, 1994 was “not de minimis but is essentially no date at all.” Although we do not agree that the date chosen by the plaintiff in his notice of claim is no date at all, given the board’s prior decisions on this issue and the great deference we give to the board and the commissioner, we agree that the plaintiffs stated date of injury was statutorily insufficient to support a motion to preclude.

We recognize that the mandate in Pereira requires a liberal interpretation of § 31-294c to ensure that it accomplishes its humanitarian purpose. We do not think, however, that Pereira encompasses a situation where the claimant’s error is more than de minimis. The commissioner properly found that the date in the plaintiffs notice of claim constitutes more than a de minimis error, and the board properly affirmed the commissioner’s decision denying the plaintiffs motion to preclude. Accordingly, the plaintiffs notice of claim is insufficient to support a motion to preclude.

B

The plaintiff asks us to review the sufficiency of the defendants’ notice contesting compensability. He claims that the defendants’ notice is deficient because it (1) does not state correctly the date of injury and (2) does not state the defendants’ reasons for denying compensability with the specificity required by § 31-294c (b). Because we conclude that the plaintiffs notice of claim is insufficient to support a motion to preclude, we need not reach the issue of whether the defendants’ notice contesting compensability was insufficient.

II

The plaintiff next claims that the board improperly affirmed the commissioner’s decision holding that the plaintiff did not sustain a repetitive trauma injury. We disagree with the plaintiff.

This court adopted the board’s description of repetitive trauma injuries in Quinn v. Standard Knapp, supra, 12 Conn. Workers’ Comp. Rev. Op. 334, in Chase v. State, supra, 45 Conn. App. 506. “A repetitive trauma, by definition, necessarily occurs over a period of time.” Id. Nonetheless, “[i]t is well settled in workers’ compensation cases that the injured employee bears the burden of proof. . . . Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151, 291 A.2d 743 (1972). Further ‘[t]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ . . . Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206, 695 A.2d 1071 (1997).” Keenan v. Union Camp Corp., 49 Conn. App. 280, 282-83, 714 A.2d 60 (1998). Furthermore, whether an employee has suffered a repetitive trauma injury or an accidental injury is a question of fact to be determined by the commissioner. Prescott v. Echlin, Inc., 14 Conn. Workers’ Comp. Rev. Op. 191, 193 (1995).

The plaintiff testified that his shoulder dislocations occurred in a wide variety of situations, from carrying heavy pipes at work to turning off the alarm clock. The plaintiff presented no medical witnesses on his behalf. The only medical evidence was a report by Hallberg that stated, “I think there is little question but that the initial injury was a work related event” (emphasis added) and a letter from Hallberg to the plaintiffs attorney stating, “The fact that [Russell] lived with this condition for [three] years and suffered some [twenty to thirty] dislocations probably has produced some wear and tear on the shoulder. There is no way to quantify this at this point, but he certainly would be at risk of developing shoulder problems in the future . . . .” (Emphasis added.)

On the basis of the report and letter from Hallberg, the commissioner found that (1) the plaintiff sustained a specific injury to his left shoulder on May 2, 1991, (2) the plaintiffs shoulder injury was not a result of repetitive trauma and (3) the plaintiffs dislocations subsequent to the May 2, 1991 fall were a recurrence of the May 2, 1991 specific injury. The board determined that the commissioner reasonably could have found that the “the subsequent dislocations were merely flareups of a condition caused by the initial May 2, 1991 injury.”

“The [commissioner] must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the foregoing statutory provisions. If supported by evidence and not inconsistent with the law, the [commissioner’s] inference ... is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable." (Emphasis added; internal quotation marks omitted.) Fair v. People’s Savings Bank, supra, 207 Conn. 539-40. “Even if such an inference be considered more legal than factual in nature, the reviewing court’s function is exhausted when it becomes evident that the [commissioner’s] choice has substantial roots in the evidence and is not forbidden by the law.” Id., 540-41.

The commissioner had before her a medical report and opinion and the testimony of the plaintiff from which she could properly determine whether Russell’s subsequent dislocations were the result of repetitive trauma or a result of the initial May 2,1991 dislocation. The board could not go back and make different inferences from the facts presented to the commissioner and neither can we. We conclude that the board properly determined that the commissioner’s findings were reasonable, supported by the evidence and not contrary to law. The board properly affirmed the commissioner’s decision.

Ill

The plaintiff claims finally that the incident report that he filed with Mystic on May 2, 1991, when considered with the other circumstances surrounding his claim, satisfies the notice of claim requirements of General Statutes (Rev. to 1991) § 31-294 (repealed by Public Acts 1991, No. 91-32, § 40). We disagree.

We note again that the technical requirements of the notice statute need not be perfectly met to satisfy the intent of the statute. See Pereira v. State, supra, 228 Conn. 542-43 n.8. There must, however, be substantial compliance to satisfy the notice requirement. “The legislature designed the Workers’ Compensation Act to further a remedial purpose. Dubois v. General Dynamics Corporation, 222 Conn. 62, 67, 607 A.2d 431 (1992). The act’s provisions, therefore, should be broadly construed to accomplish its humanitarian purpose. . . . Hansen v. Gordon, 221 Conn. 29, 33, 602 A.2d 560 (1992). The purpose of § 31-294, in particular, is to alert the employer to the fact that a person has sustained an injury that may be compensable; Gesmundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947) ... and that such person is claiming or proposes to claim compensation under the Act. . . . Rehtarchik v. Hoyt-Messinger Corporation, 118 Conn. 315, 317, 172 A. 353 (1934) . . . .” (Emphasis in original; internal quotation marks omitted.) Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 302-303, 620 A.2d 176, cert. denied, 225 Conn. 916, 623 A.2d 1024 (1993).

We recently held in Funaioli v. New London, 52 Conn. App. 194, 726 A.2d 626 (1999), in which we reversed the board, that an employee’s first report of injury coupled with an attorney’s letter to the commission met the statutory requirements for a notice of claim. The plaintiff, in both his brief and at oral argument, claimed that Funaioli applied to his case. We conclude that Funaioli is distinguishable from the present case. In Funaioli, we concluded that the board properly determined that an employer’s first report of injury alone would not meet the notice requirements of § 31-294c. Funaioli rested on the factual issues in that case. We do not expand the holding in that case to state that all first reports of injury satisfy the notice of claim requirements in the statute.

In the present case, the plaintiff did nothing more than file an employee incident form stating that he had injured his shoulder on May 21,1991. He took no further action for over two years when he told his employer that he was having problems with his shoulder. Even at this point, the plaintiff did not inform Mystic that he was considering filing for workers’ compensation benefits as a result of his fall. The plaintiff did not tell Mystic that he was considering filing for benefits until nearly three and one-half years after the initial accident, well after the one year limitation period had expired.

The plaintiff further claims that “the employer clearly construed the report as a notice of claim for compensation since the employer immediately filed an employer’s first report of occupational injury or disease with the workers’ compensation commission in compliance with § 31-294 (b), which it is required to do when it receives a notice of claim. The filing of the form by the employer confirms both knowledge of the injury and an expectation that compensation would be claimed.” We find no merit in the plaintiffs argument.

General Statutes (Rev. to 1991) § 31-294 (b) provides in relevant part: “Within one week after receipt by an employer of such notice of claim for compensation, he shall report the substantial facts of such notice to the commissioner. . . .” General Statutes (Rev. to 1991) § 31-316 requires employers to forward a report of injury to the commissioner when any employee is injured and misses a day or more of work. While the plaintiff argues that Mystic’s filing of the first report of injury with the commissioner constitutes acknowledgement of the plaintiffs “notice of claim,” there is no evidence to support the contention that the employer was taking such action for that purpose. The fact that Duland told the plaintiff, over two years after the initial accident, to submit the medical bills for his visits to Sandoval does not indicate that Mystic accepted the plaintiffs incident report as a notice of claim.

The board, in affirming the commissioner’s decision, properly applied the law to the facts, and we adopt the following portion of that opinion as our own. “[A] first report of injury does not inform its recipient that a workers’ compensation claim is or will be filed, and will not be construed otherwise absent very unusual circumstances. See e.g. Hayden-Leblanc v. New London Broadcasting, 12 Conn. Workers’ Comp. Rev. Op. 3, 5 (1994) (trier found sufficient notice where insurer denied workers’ compensation coverage and employer incorrectly told claimant that she was too late to file claim). That is the purpose of a form 30C notice of claim.

“There is no indication in this case that [Mystic] had any idea that [Russell] intended to file a workers’ compensation claim from either his own incident report or the injury report filed by the employer. All those documents do is report that an injury occurred. In hindsight, it appears that the lack of intent to file a claim was borne out by [the plaintiffs] inaction for over two years after the May, 1991 shoulder injury. Now that the statute of limitations to file a claim has lapsed, we cannot go back and say that those reports of injury demonstrated anything more than compliance with a procedure designed to ensure compliance with § 31-316. . . . [T]he fact that the [plaintiff] reported his injuries to his employer is not by itself enough to constitute substantial compliance with § 31-294.” (Emphasis added.) The plaintiffs filing of the incident report and the defendants’ subsequent filing of the first report of injury do not rise to the level of a filing of a statutory notice of claim, which we concluded did exist in Funaioli v. New London, supra, 52 Conn. App. 198.

Furthermore, the plaintiff admitted that his incident report did not state that he or any other person was claiming compensation benefits. Section 31-294c (a) states that a notice of claim must contain “the name and address of the employee and of the person in whose interest compensation is claimed.” Without such a notice, we fail to see how the plaintiffs incident report rose to the level of a notice of claim.

The decision of the compensation review board is affirmed.

In this opinion LANDAU, J., concurred.

DUPONT, J.,

dissenting. I respectfully dissent. The primary issue in this appeal is whether the plaintiffs notice of claim for workers’ compensation complied with General Statutes § 31-294c (a). That notice, dated November 30, 1994, sought compensation for “repetitive trauma to left (non-master) shoulder while working as an engineer,” and stated that the date of injury was “prior to 9/23/94.” The purpose of such a notice is to allow an employer to investigate a worker’s claim for compensation promptly to avoid unnecessary delay in an adjudication of a worker’s claim. Whether a particular notice of claim is sufficient to allow such a timely investigation is a question of law. Chase v. State, 45 Conn. App. 499, 508, 696 A.2d 1299 (1997). I conclude that the notice was sufficient for that purpose and would therefore hold that the commissioner should not have denied the plaintiffs motion to preclude, and that the board should not have affirmed the commissioner’s decision.

The plaintiff, in his notice of claim, does not assert a claim for compensation for the accidental injury that occurred on May 2, 1991. He claims instead compensation for a repetitive trauma, for which no precise date is possible. See Chase v. State, supra, 45 Conn. App. 507. In this case, despite the plaintiffs claim for compensation for a repetitive trauma, the defendant has consistently treated the plaintiffs notice of claim as one for an accidental injury occurring on a specific date for both the purpose of testing the timeliness of the notice and testing its sufficiency to allow a timely investigation.

The “type of injury alleged in the notice of claim” of an employee is considered “accurate for the purpose of reviewing the timeliness” of a plaintiff s claim. Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994). Because the plaintiffs claim is one for repetitive trauma, it should have been filed within one year of the last date of exposure to the act or trauma, which is usually, but not always, the date on which the claimant last worked. Discuillo v. Stone & Webster, 242 Conn. 570, 581, 698 A.2d 873 (1997); Crochiere v. Board of Education, 227 Conn. 333, 353-54, 630 A.2d 1027 (1993). The plaintiffs claim for compensation for repetitive trauma met the statute of limitations prescribed by § 31-294c (a) because it was filed within one year of the last date of exposure to the trauma.

The next question to decide is whether the words, “prior to 9/23/94,” gave sufficient information to the employer to investigate the plaintiffs claim.

The commissioner found that “[subsequent to May 2, 1991, and until the fall of 1994 the plaintiff experienced numerous total and/or partial dislocations of his left shoulder. These dislocations occurred at work when the claimant was carrying lumber or heavy pipes on his shoulder or when he was manipulating steam valves,” and that he “suffered a partial dislocation in July, 1994, while turning a valve during a test of the steam generator at work,” and that the plaintiffs “last full dislocation at work occurred in August, 1994, while manipulating the main steam valve.” The commissioner also found that the plaintiff had filed an employee incident report immediately following his May 2, 1991 fall, and that he had made his employer’s director of human resources and his immediate supervisor aware of problems with his shoulder in September, 1993. On the basis of these facts, the commissioner, nevertheless, found that all of the left shoulder dislocations were a “recurrence of the May 2, 1991 specific injury,” rather than a result of repetitive trauma.

The words, “prior to 9/23/94,” gave the employer notice that the repetitive trauma injury occurred over time, prior to September 23,1994, and after May 2,1991. The nature of a repetitive trauma injury is such that it is often impossible to ascertain a specific date of injury. Such an injury consists of repetitive trauma that begins with an initial trauma and is ongoing until the last instance of trauma. Discuillo v. Stone & Webster, supra, 242 Conn. 581 n.11.

Here, the employer was aware of new, separate, identifiable, work-related occurrences of trauma, in addition to the initial trauma of the fall on May 2, 1991. It paid for medical treatment of the plaintiffs shoulder after September, 1993. There were separate, subsequent intervening acts or trauma, while the plaintiff was working, to the same shoulder after the plaintiffs initial injury, as found by the commissioner. This is not a case of a recurrence of the initial dislocation of the plaintiffs shoulder independent of any subsequent trauma. It was not necessary for the plaintiff to allege a specific date for his repetitive trauma injury. It was sufficient to allege, given the facts of this case, that he incurred the injury “on or before” a specific date. Chase v. State, supra, 45 Conn. App. 506. The defendant could focus its investigation on a particular period of time, and had the requisite information to do so.

In my opinion, the conclusions of the board resulted from an incorrect application of the law, and I would grant the plaintiffs motion to preclude the defendants from contesting the claim because the plaintiffs notice of claim for compensation for his repetitive trauma injury was timely and gave the defendant an opportunity to investigate the claim. Also, I would conclude that the plaintiffs injury was causally related to repetitive trauma based on the subsidiary facts found by the commissioner.

       Mystic’s compensation insurance carrier, ITT Hartford, is also a defendant in this appeal.

       General Statutes § 31-294c provides in relevant part: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease .... Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident, or the date of the first manifestation of a symptom of the occupational disease and the nature of the disease, as the case may be, and the name and address of the employee and of the person in whose interest compensation is claimed. ... As used in this section, ‘manifestation of a symptom’ means manifestation to an employee claiming compensation, or to some other person standing in such relation to him that the knowledge of the person would be imputed to him, in a manner that is or should be recognized by him as symptomatic of the occupational disease for which compensation is claimed.
      “(b) Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. The employer shall send a copy of the notice to the employee in accordance with section 31-321. If (he employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty-eighth day. . . . Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death. . .

       General Statutes § 31-294 was transferred to General Statutes §§ 31-294b and 31-294c effective July 1, 1991.

       General Statutes (Rev. to 1991) § 31-316 provides in relevant part: '“Each employer shall keep a record of such injuries sustained by his employees in the course of their employment as result in incapacity for one day or more; and each such employer shall send to the chairman of the board of compensation commissioners . . . such report of such injuries . . . .”

       In view of my conclusion that the notice of claim complied with § 3 l-294c, the issue discussed in part III of the majority opinion becomes irrelevant.

       The defendants filed three notices contesting liability for the plaintiffs recommended surgery performed on October 24,1994. Two of the disclaimer notices predated the plaintiffs notice of claim for compensation and all of the defendants’ disclaimers referenced the May 2,1991 accident, rather than the plaintiffs repetitive trauma claim relating to an injury prior to September 23, 1994.

       Because the commissioner found that the plaintiffs injury was not due to a repetitive trauma, she made no finding as to the last date of exposure to the repetitive trauma. Although October 21, 1994, was the last day the plaintiff worked, it is not known whether September 23, 1994, was the last time the plaintiff was exposed to a repetitive trauma at work. The plaintiff may not have been assigned to his usual duties between September 23 and October 21, making it possible that the last day worked was not the last day he was exposed to the trauma. The last date of exposure might also have been sometime in August, 1994, which was when the commissioner found (hat the plaintiffs “last full dislocation at work occurred.”