text:
    ELAINE OLSEN BAUGHER v. RICHARD SCOTT BAUGHER
    (AC 19436)
    (AC 20095)
    Foti, Spear and Peters, Js.
    Argued December 11, 2000
    officially released April 24, 2001

      Lori Welch-Rubin, with whom, on the brief, was Jane K. Grossman, for the appellant (plaintiff).

      Joseph T. O’Connor, for the appellee (defendant).
   Opinion

PETERS, J.

In this family law case, a parent contests the modification of her custodial and visitation rights in one appeal and the findings following a motion for contempt in a second appeal. The present proceeding arises out of a New York judicial decree, rendered on February 26, 1998, that dissolved the marriage of the parties. We conclude that the judgments of the trial court should be affirmed because none of the issues now raised warrants plenary review.

CUSTODIAL AND VISITATION RIGHTS (AC 20095)

We first address the appeal that arises out of a June 10,1999 order denying the motion of the plaintiff, Elaine Olsen Baugher, to modify visitation and granting the motion of the defendant, Richard Scott Baugher, to modify custody. In her appeal, the plaintiff claims that this order should be set aside on the ground of plain error. We disagree.

The gravamen of the plaintiffs appeal is that the court failed to take into account the consequences flowing from the New York decree dissolving her marriage. That decree awarded the plaintiff the sole legal and physical custody of the parties’ four children.

The facts relevant to this issue are that the plaintiff, shortly after the dissolution of the parties’ marriage, considered whether she and the children would relocate to California, where she would have the benefit of a better support network. The defendant learned of this possibility in March, 1998. There ensued a flurry of litigation in New York that ended when the New York court decided that, although it had continuing jurisdiction, it would decline to exercise that jurisdiction if the parties filed an appropriate action in Connecticut, where the parties were then residing or planning to reside. Accordingly, in August, 1998, in this state, the plaintiff filed a motion for modification of visitation that would enable her to move to California with the children, and the defendant filed a motion for modification of custody so that he would become the children’s sole or joint custodian.

The court conducted an evidentiary hearing on the parties’ motions. All parties, including the children, were represented by counsel. The court heard testimony given by a clinical psychologist, a family service counselor and a teacher. There is no claim that the court made any improper evidentiary rulings.

On the day of the evidentiary hearing, the court accepted a stipulation of procedure prepared by the parties. The stipulation stated that, pursuant to Ireland v. Ireland, 246 Conn. 413, 717 A.2d 676 (1998) (en banc), the plaintiff would bear the burden of proof to establish, by a preponderance of the evidence, that she had a legitimate purpose for her desire to relocate a child or the children. If that burden were satisfied, the defendant would then bear the burden of proving, by a preponderance of the evidence, that relocation would not be in the best interests of the children. Further, both parties agreed to waive their right to appeal on the issue of applicable law.

Accordingly, the court first inquired into whether the plaintiff had a legitimate purpose to relocate. The court found that she had satisfied her burden of proof on this issue. That finding is unchallenged on appeal.

The court then turned to the best interests of the children. It found that the defendant had proven that relocating the children to California would not, at the present time, be in their best interests. The plaintiff challenges the validity of that finding.

The court made the following subsidiary findings in support of its rulings. “The defendant’s opposition to the children relocating with [the plaintiff] is found to be properly motivated. The defendant enjoys a close, loving relationship with the children and is involved in their lives. He exercises regular and frequent visits with them and spends time in their extracurricular activities. He desires to be continually involved in their daily lives. He is also motivated by his wish to accommodate their wanting to remain in Connecticut.” The court further found that “it does not appear that their quality of life will improve any more than they currently enjoy.” The court noted that both the defendant and the children would suffer if they were separated.

The court further elaborated on the reason for its decision. First, “[s]ome stability has been accomplished in the last three years. The children have a support system here through school, friends and relatives. This should not be disturbed at the present time without the showing of significant advantages for their moving. This has not occurred.” Second, “[t]he current quality of life for children economically, emotionally and educationally is excellent and difficult to improve on. In this area, there is no substantial benefit to making a change.” Third, “[t]he children wish to remain in Connecticut. They mistrust [the plaintiff] and blame her for trying to uproot them and take them away from [the defendant] and friends. This hostility toward the plaintiff, hopefully, will disappear- in the future. The court concurs with [the opinion of the clinical psychologist] that it will be less difficult to resolve the hostile feelings toward the plaintiff if the children can remain in Connecticut.” Finally, the court concluded that “[t]he recommendations of [the clinical psychologist], the guardian ad litem for the minor child . . . and the family services counselor all concur that the children should remain in Connecticut. Their reasons are logical, persuasive and have merit.”

Having determined that moving the children would not be in their best interests, and characterizing the plaintiffs move to California as a substantial change in circumstances, the court concluded that a change in the children’s custodial arrangements was warranted. Accordingly, the court granted the defendant’s motion to modify custody and denied the plaintiffs motion to modify visitation. The plaintiff appeals from the decision on both of these motions. She alleges that, for several reasons, the decision of the court constituted plain error.

I

The plaintiff first claims that the trial court committed plain error by not applying New York substantive law to the modification hearing. This claim is untenable in light of the terms of the stipulation of procedure, which demonstrated the parties’ agreement that Connecticut law would govern their disputes. Further, that agreement contained an express waiver of a right to appeal “on the issue of applicable law.” The plaintiff has not challenged the validity of the stipulation, either at trial or here. Under these circumstances, the court’s reliance on Connecticut law cannot be faulted. In the absence of error, there cannot be plain error. See, e.g., State v. Lindstrom, 46 Conn. App. 810, 817, 702 A.2d 410 (discussing concept of plain error), cert. denied, 243 Conn. 947, 704 A.2d 802 (1997).

II

The plaintiffs second claim is that the court committed plain error by refusing to assign significant weight to the plaintiffs status as the sole custodian of the children. It is not clear from the record whether this precise claim was ever presented to the court.

It is useful to clarify the precise contours of the argument advanced by the plaintiff. She does not argue that the court declined to consider her custodial status or refused to entertain any evidentiary proffer relating thereto. Instead, she argues that, as a matter of law, “parents with no custody rights have a higher burden in opposing a relocation, and parents with the bulk of custody rights have a lower burden in advocating a relocation.” This is an interesting proposition, but it is not supported either by Ireland v. Ireland, supra, 246 Conn. 413, which the parties stipulated to be the governing law, or by other cases that she cites.

We are not persuaded that the court misapplied Ireland by declining to give as much weight to her custodial status as the plaintiff deemed appropriate. Ireland does not question a court’s equitable jurisdiction to assure that custody orders reflect the best interests of the children. Furthermore, the plaintiff does not question the breadth of the court’s equitable discretion in these matters. See, e.g., Yontef v. Yontef, 185 Conn. 275, 294, 440 A.2d 899 (1981). The fact is, prior custodial arrangements will inform the exercise of equitable discretion, but they have never been held to be dispositive. Although the relocation of children may well be proper in some circumstances, the court is not required to approve such relocation in all cases. See Raymond v. Raymond, 165 Conn. 735, 741, 345 A.2d 48 (1974).

Moreover, despite the plaintiffs advocacy of the relevance of New York law, the plaintiff has cited no New York case or statute that would require a court to issue such an order. On this record, we see no basis for finding an abuse of discretion by the court. See Ridgeway v. Ridgeway, 180 Conn. 533, 541, 429 A.2d 801 (1980).

Ill

The plaintiffs third claim is that the court relied excessively on the desires of the parties’ children in deciding which parent should have custody. This claim is undergirded by the assertion that the defendant improperly influenced the preferences expressed by the children. The plaintiff also asserts that the children’s expressed desires might have been influenced improperly by the stressful facts of the dissolution of their parents’ marriage and of their relocation to Connecticut.

This claim, including its subtexts, does not differ from a claim that the court abused its discretion by finding some witnesses more credible than others. “The weight given the evidence before it is within the sole province of the trial court.” Dubicki v. Dubicki, 186 Conn. 709, 713, 443 A.2d 1268 (1982). The plaintiffs allegation of error cannot be sustained in light of the holdings of countless cases that describe “the trial judge [as] the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” (Internal quotation marks omitted.) Powers v. Olsen, 252 Conn. 98, 105, 742 A.2d 799 (2000). We find neither plain error nor an abuse of discretion.

IV

The plaintiffs final argument focuses on a claim of bias by the court. She makes two claims. First, she asserts that the conduct of the court in making a settlement proposal, after the close of the evidence but before final argument, warrants a finding of an appearance of impropriety. Second, she argues that the court’s custodial orders, having been decreed only one year after she had assumed sole custodianship, demonstrates actual bias. In her view, in light of this showing of prejudice and bias, the judgment demonstrates plain error and must be set aside. We disagree.

With respect to the settlement proposal, the court, after noting the unhappy feelings of the parents and the children, suggested that the plaintiff relinquish her claims to relocate with the children for one year, at which point the court would reevaluate the situation and issue its final ruling. The court gave the parties a deadline by which to comment on its proposal. Neither party commented on, or objected to, the proposal. The proposal did not preclude further negotiations for alternate settlements.

The plaintiff contends that the settlement proposal created an appearance of impropriety because it demonstrated prejudice against the validity of the plaintiff’s relocation claim at a time when the trial had not yet been concluded. Further, she contends that atrial court always risks an appearance of impropriety if it enters into settlement negotiations during the course of a trial. The difficulty with these contentions is that the plaintiff failed to file, at trial, a motion for disqualification or for mistrial. Our Supreme Court has held that claims of judicial impropriety are waived unless asserted at trial. Knock v. Knock, 224 Conn. 776, 792, 621 A.2d 267 (1993); Gillis v. Gillis, 214 Conn. 336, 343, 572 A.2d 323 (1990); Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982); Krattenstein v. G. Fox & Co., 155 Conn. 609, 615-16, 236 A.2d 466 (1967).

It is true that, in Cameron, our Supreme Court undertook a plain error review of alleged judicial impropriety during the course of a trial. Cameron v. Cameron, supra, 187 Conn. 168. In that case, during the presentation of evidence, the court repeatedly expressed its belief that one of the parties was not telling the truth and was attempting to perpetrate a fraud on the court. Id., 170. Our Supreme Court held that those judicial statements were so inimical to the court’s role as an instrument of justice that the court should have declared a mistrial sua sponte. Id., 171. These egregious statements are at a far remove from the inferences that the plaintiff would have us draw in this case.

We decline, therefore, to review the claim of an appearance of impropriety under the plain error doctrine. It cannot fairly be said that the court’s suggestion, after it had heard all the evidence in the case, so clearly reflected a judicial statement or attitude that it denied the plaintiff a fair trial.

The plaintiff also asserts that the court’s settlement proposal was an obstacle to further settlement negotiations between the parties in advance of the court’s decision on the merits. This assertion is not supported by anything other than speculation. The defendant does not concede the existence of any such impediment. A bare assertion of prejudice does not demonstrate error. State v. Mazzetta, 21 Conn. App. 431, 438, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990).

If we were to accept the validity of the plaintiffs alternate claim that the denial of her motion, in and of itself, demonstrates bias, litigation would never come to an end. Most, if not all, disappointed litigants no doubt believe that only a biased judge could fail to recognize the merits of their claims. Unless buttressed by some showing of trial court impropriety, an appeal on this ground cannot succeed. Under the circumstances of this case, there is no plain error.

In sum, having reviewed each of the plaintiffs claims that the court improperly denied her motion to modify visitation and granted the defendant’s motion to modify custody, we conclude that the plaintiff cannot demonstrate either plain error or an abuse of discretion with respect to any of them. The judgment in appeal AC 20095 is affirmed.

TUITION APPEAL (AC 19436)

We next address the appeal that arises out of a March 11,1999 order denying the defendant’s revised postjudgment motion for contempt. The dissolution decree rendered in New York ordered and adjudged that, while the children continue to attend private school, the defendant would pay 60 percent of such tuition and the plaintiff would pay 40 percent, beginning with the 1997-1998 school year. In this appeal, the plaintiff contends that, without her consent, she should not be bound to pay any part of the fees charged at a new school in which the defendant had unilaterally enrolled the children. We disagree with this claim as well.

The New York judgment ordered and adjudged that “while the children continue to attend private school the Defendant will pay sixty (60%) percent of such tuition bills and the Plaintiff will pay forty (40%) percent of such tuition bills, beginning with the 1997-1998 school year . . . .” The plaintiff claims that the defendant improperly put an unwarranted tuition burden on her.

Concerned that the plaintiff was going to move to California with the children, the defendant secured a temporary injunction in June, 1998, precluding her from doing so. Thereafter, in a letter dated August 20, 1998, the plaintiff, as sole custodian of the children, advised the private school, Greenwich Country Day School, that “she did not plan to enroll any child in the school for the upcoming school year of 1998-1999.” On September 2, 1998, the defendant filed a motion for an ex parte injunction, for permission to enroll the children in school in Greenwich and for counsel for the minor children. On September 3, 1998, the trial court, Kaven-ewsky, J., ordered that the parties “shall have joint legal custody of [the] minor children and the [defendant] shall have physical custody and shall be permitted to enroll [the] children in Greenwich Country Day School and if no positions are available, the Greenwich Public School System. The [plaintiff] shall have such visitation as may be arranged through family services but under no event shall she remove the children from Connecticut. These orders are pendente lite and without prejudice to either party seeking modification. Motion for appointment of counsel for minor children denied without prejudice at this time.” Pursuant to these orders, the defendant enrolled the children in Greenwich Country Day School.

On January 6, 1999, the defendant filed a motion for contempt requesting that the court find the plaintiff in contempt of the court’s orders because the plaintiff failed to pay all of the 40 percent share that she was ordered to pay. The court found that because two of the children were attending private school for the 1998-1999 school year, the condition of the judgment had been met, and the plaintiff was responsible for her share of the private school tuition incurred. The plaintiff has appealed.

The plaintiff argues that the court improperly found her responsible for 40 percent of the private school tuition incurred because she did not consent to the children’s enrollment. She argues that, as sole legal and physical custodian of the children, she alone had the authority to enroll, or unenroll, them in or from school. We disagree.

This argument fails because at the time the defendant enrolled the children in Greenwich Country Day School, the court had ordered, pendente lite, that the plaintiff and defendant would have joint legal custody, with physical custody awarded to the defendant. Without sole custody, the plaintiffs claim fails on its own terms.

At oral argument, the plaintiff modified her claim to focus on impropriety in the ex parte order because, at that time, she was in Connecticut and available to appear and be heard. In her view, in the absence of her consent to the order to enroll the children at Greenwich Country Day School, she was not financially responsible for their tuition.

With respect to this appeal, because this claim was raised for the first time during oral argument and, therefore, has not been properly briefed, we decline to consider it. See In re Adelina G., 56 Conn. App. 40, 42, 740 A.2d 920 (1999); see also State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985).

The judgments are affirmed.

In this opinion the other judges concurred.

       When the New York court rendered final judgment, the ages of the four children were as follows: thirteen, eleven, nine and seven.

       Prior to 1996, the plaintiff, the defendant and the children all lived in New York. In January, 1996, however, prior to the New York Supreme Court’s final judgment, the plaintiff moved, with her children, from New York to Connecticut. At about the same time, the defendant also moved to Connecticut.

       In accordance with General Statutes § 46b-71, the New York decree was properly filed in this state.

       The minor children were also represented by a guardian ad litem.

       The court did set forth, in its words, liberal and reasonable visitation rights for the plaintiff.

       Because the plaintiff did not raise this issue at trial, she asks this court to grant review because the trial court committed plain error.

       As the defendant notes, at trial the plaintiff offered no New York law. Her pleadings cited only Connecticut law. In the absence of a proper offer of evidence regarding the law of New York, the Connecticut court was entitled to presume that the governing law in the two states was identical. Adamsen v. Adamsen, 151 Conn. 172, 178, 195 A.2d 418 (1963). Finally, the plaintiff has failed to show how the application of any specific New York law would have advanced her arguments.

       The reasons that underlay the court’s custody decision equally underlie the court’s decision of a substantial change in circumstances.

       The plaintiff cites a Pennsylvania case for the proposition that “ [i]n terms of the best interests of the child the primary physical custody [parent] must be viewed as the family central and most important to the child’s best interests.” Gruber v. Gruber, 400 Pa. Super. 174, 182, 583 A.2d 434 (1990). Our Supreme Court in Ireland declined to follow Gruber, and, furthermore, Raymond is to the contrary.

       To the extent that the plaintiffs claim focuses on the court,’s failure to state the precise weight that it assigned to her custodial status, that alleged failure is unreviewable. “It is the appellant’s burden to provide an adequate record for review. Practice Book [§ 60-5]. ... 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 a decision . . . to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) State v. Collic, 55 Conn. App. 196, 209, 738 A.2d 1133 (1999). The defendant did not file a motion for articulation. The record before us, therefore, provides no basis for us to disaffirm the trial court’s decision.

       In addressing this claim, we intend to encompass the plaintiffs sixth and seventh assertions of impropriety.

       General Statutes § 46b-56 (b) permits consideration of the desires of the children under appropriate circumstances. The plaintiff did not question the propriety of such an inquiry except with respect to the youngest child, who was only eight years old at that time.
      In Gennarini v. Gennarini, 2 Conn. App. 132, 137, 477 A.2d 674 (1984), we stated: “[WJhether the child’s preferences and feelings as to custody and visitation are a significant factor in the court’s ultimate determination of the best interest of the child will necessarily depend on all the facts of the particular case, including the child’s age and ability intelligently to form and express those preferences and feelings. . . .
      “[E]ven when [information regarding the child’s preferences] is elicited, [it] may be of questionable accuracy. A child caught up in the maelstrom of family strife may produce, to the psychologically untrained eye and ear, distorted and thus misleading images not only of the child’s parents but of the child’s own feelings . . . .” The plaintiff makes no claim that the court failed to observe the cautions stated in Gennarini.

       Again, the plaintiff had every opportunity to explore, at trial, to what extent stress was a basis for the statements made by the children, but did not.

       For example, the plaintiff asserts that the attorney for the children, the guardian ad litem, family services counselor Michael Hull and the court relied too heavily on the testimony of the child psychologist, even though that testimony allegedly lacked objectivity. The child psychologist acknowledged, however, that “the [defendant’s] ability to influence the children . . . [was] relatively strong.” The plaintiff seeks to devalue the child psychologist’s recommendation of a custody award to the defendant because the child psychologist failed to require a showing of the extent to which the defendant had not only shown an interest in the children but also had demonstrated strong parenting abilities. She claims that the child psychologist failed to assign sufficient weight to her role as sole custodian of the children.

       We need not decide, in this case, whether a court’s exercise of its equitable authority to deny a party’s motion would suffice to demonstrate bias against the moving party. In this case, the plaintiffs argument focuses on the propriety of intimating such a denial in advance of final argument.

       The plaint iff appealed not from the order but from the findings contained in the order that she was responsible for her share of the private school tuition incurred.

       It is noteworthy that subsequent to this ex parte order, the court, Kavenewsky, J., held a hearing in which it restored sole custody of the children to the plaintiff, yet affirmed its order that the children remain in Greenwich Country Day School.

       The orders were domesticated in Connecticut and enforceable pursuant to General Statutes § 46b-71.

       The court, however, did not find that the plaintiff was in contempt of the New York order because while she was sole custodian she had written a letter, dated August 20, 1998, advising the private school that she did not plan on enrolling the children for the upcoming school year. The court found that, because she did not sign the school’s contract, she had reason to await a judicial ruling as to whether she was obligated to pay, as alleged by the defendant.

       The plaintiff relies on Cleveland v. Cleveland, 161 Conn. 452, 454, 289 A.2d 909 (1971), in which a dissolution judgment made the husband’s obligation to pay contingent on the wife's consulting with him in advance of incurring relevant, expenses. In the present case, the ex parte order had no contingency. Therefore, Cleveland is of no avail to the plaintiff.

       Soon thereafter, the plaintiff was given the opportunity to be heard. At that hearing, she was given back custody of the children, yet the court ordered that she keep the children in Greenwich Country Day School.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    LAWRENCE PUCHALSKY v. THEODORE RAPPAHAHN ET AL.
    (AC 20538)
    Foti, Mihalakos and Dupont, Js.

      Argued February 16
    officially released April 24, 2001

      Robert M. Fitzgerald, for the appellant (plaintiff).

      Richard C. Mahoney, with whom, on the brief, was Shannon K. McCarthy, for the appellee (named defendant).

      Nancy S. Rosenbaum, for the appellee (defendant Barrieau Express, Inc.).
   Opinion

FOTI, J.

The plaintiff, Lawrence Puchalsky, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants. On appeal, the plaintiff claims that the court improperly (1) admitted certain evidence concerning hospital records, (2) charged the jury on the doctrine of sudden emergency and (3) failed to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 14, 1997, at approximately 5:55 a.m., the plaintiff was walking on a picket line at the premises of the defendant Barrieau Express, Inc. (Barrieau), his place of employment in Hartford. The plaintiff was among a group of ten to twenty other picketers when the other defendant in this action, Theodore Rappahahn, approached in his vehicle and stopped behind another employee’s car. When a break in the picket line occurred, the first vehicle proceeded, and Rappahahn’s vehicle followed closely behind it. The picketers were verbally abusive and someone yelled, “Charge, stop him.” Suddenly, the picketers converged in a hostile fashion around Rappahahn’s vehicle. The plaintiff pounded on the hood and windshield of the car and yelled, “Stop, stop.” Rappahahn proceeded forward in the vehicle, and the plaintiff was knocked to the ground when he collided with the passenger side of the car. The plaintiff was then taken by ambulance to Hartford Hospital for treatment.

The plaintiff instituted an action by serving a four count complaint against Rappahahn and Barrieau for personal injuries that he allegedly had sustained as a result of the incident. The first count of the complaint alleged negligence against the operator, Rappahahn, and the second count alleged deliberate or reckless conduct on the part of Rappahahn, for which the plaintiff sought exemplary damages. The third and fourth counts of the plaintiffs complaint were directed against Barrieau and claimed vicarious liability and premises liability. By way of special defenses, the defendants, in their respective answers to the plaintiffs complaint, alleged that any injury sustained by the plaintiff resulted from his own negligence and carelessness, which was a substantial factor in causing him to fall.

The parties submitted court-approved interrogatories to the jury specifically addressing whether Rappahahn was negligent and whether he was acting as an agent of Barrieau at the time of the accident. The jury answered both interrogatories in the negative and returned a verdict for the defendants.

I

The plaintiff first claims that the court improperly admitted certain portions of the plaintiffs hospital records into evidence. We disagree.

During cross-examination of the plaintiff, the defendants offered into evidence, pursuant to General Statutes §§ 4-104 and 52-180, the plaintiffs medical records from his treatment at the Hartford Hospital emergency room on the date of the incident. Counsel for Rappa-hahn claimed that the records were germane to the plaintiffs need for medical treatment and also, in part, constituted admissions against interest by the plaintiff. The plaintiff objected on the basis of inadmissible hearsay and because the defendants had failed to lay an adequate foundation concerning who had made the statements. Further, the plaintiff claimed that the records were not germane to his treatment and were more prejudicial than probative.

The court sustained the plaintiffs objections in part, but allowed into evidence the following portions of the hospital records. Because the documents are in shorthand, the following is a translation of the notations. (1) “Thirty-six year old male with history of diabetes is hard of hearing, who, while in a picket line, was hit by a car trying to make (or inch) its way through line”; (2) “triage note: patient at strike — car moving slowly through picket line . . . was struck on left side, hit arm on mirror of car, spun around onto ground”; and (3) “patient states while ‘walking the line’ ... he was brushed up against car, causing patient to spin, ‘once or twice’ — to the ground.”

The court concluded that the information was germane to the diagnosis and treatment of the plaintiffs injuries. Further, the court found that the jury reasonably could infer that the first two excerpts came from the plaintiff and constituted admissions.

“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 was an abuse of discretion and a showing by the [party raising the challenge] of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did. . . . O’Brien v. Coburn, 46 Conn. App. 620, 630-31, 700 A.2d 81, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).” (Internal quotation marks omitted.) Pacific Land Exchange v. Hunts, 52 Conn. App. 362, 363-64, 727 A.2d 1281 (1999).

“Evidence is admissible only if it is relevant. Tomlin-sons. Board of Education, 226 Conn. 704, 728, 629 A.2d 333 (1993). Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . State v. Cosby, 44 Conn. App. 26, 31, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). It is well settled that questions of relevance are committed to the sound discretion of the trial court. State v. Weidenhof 205 Conn. 262, 277, 533 A.2d 545 (1987). State v. Lyons, 43 Conn. App. 704, 707,686 A.2d 128 (1996), cert. denied, 240 Conn. 906, 688 A.2d 335 (1997).” (Internal quotation marks omitted.) First Federal Bank, FSB v. Gallup, 51 Conn. App. 39, 41-42, 719 A.2d 923 (1998).

Sections 4-104 and 52-180 allow otheiwise inadmissible hearsay to be admissible, with certain limitations. Hospital records are admissible provided they contain information bearing on diagnosis or treatment. D'Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893 (1953).

Here, considering the nature of the records themselves, the court properly admitted the first two statements because the jury reasonably could have inferred that the plaintiff had made the statements. Furthermore, the third statement is not contested by the plaintiff as lacking a foundation to establish that it was his statement.

The plaintiff, however, also argues that the court improperly applied the standard for admissibility in that none of the statements admitted was shown to be germane to medical treatment and each was more prejudicial than probative. “[S]ince the business of a hospital is treating patients, information that is not relevant to the medical treatment of the patient is inadmissible . . . [and] is subject to redaction by the trial court.” (Citations omitted.) Aspiazu v. Orgera, 205 Conn. 623, 627-28, 535 A.2d 338 (1987).

If, however, the information in the hospital record is germane to the diagnosis and treatment of the plaintiffs injuries, it is admissible. See Kelly v. Sheehan, 158 Conn. 281, 284-85, 259 A.2d 605 (1969). la Kelly, our Supreme Court addressed the issue of whether a statement in a hospital record that was otherwise inadmissible as unrelated to diagnosis or treatment was admissible as a part of an admission. The court held that the statement, which concerned the identity of the driver, was not admissible as an admission because the record did not clearly reflect that the plaintiff had made the statement. Id., 286.

Here, the origin of the plaintiffs injuries was germane to the diagnosis and assessment of those injuries. This is particularly true in this case because the plaintiff was struck by a car, and the treating medical personnel at the hospital needed to know, among other things, what part of the car had struck him and at what speed. The ruling on the admissibility of the evidence rested within the discretion of the court, and, under these facts, we cannot conclude that the court; abused its discretion.

II

The plaintiff next claims that the court improperly instructed the jury on the doctrine of sudden emergency, an instruction requested by Rappahahn. We disagree.

The plaintiff objected to the court; giving the charge on the doctrine of sudden emergency on the basis that the facts of the case were insufficient to allow such an instruction. The court instructed the jury as follows: “We have a doctrine that says if you find each of the following elements, first, that an emergency actually existed — now we’re talking about, again, a reasonably prudent person. If you’re a reasonably prudent person driving in like . . . Rappahahn and you get to the point where there is stoppage before you proceed on, would you as a reasonably prudent person consider that an emergency? But we also have to take into consideration this is . . . Rappahahn. He may not feel like you and me. He may be more susceptible to get excited about emergencies or less. We don’t know. But if he did think an actual emergency existed, and he convinces you that he so thought, then you can find it. The second thing you have to find, if you’re going to talk about emergency, is did the defendant cause the emergency, the perilous situation. Well, he didn’t cause it, I guess, by coming to work or starting in the driveway. The question is when did it get perilous as far as he was concerned, and did he cause any of that? If he did, the emergency doctrine is applicable. You also have to find that he was confronted with an emergency and chose a course of action which would or might have been taken by a person of reasonable prudence in a similar situation. If you were there, what would you have done? Would you have gotten out of the car? Called the police? Driven forward? What would you have done as a reasonably prudent person?”

The plaintiff argues that there was no evidence that the perilous situation was not caused, at least in part, by Rappahahn’s own actions. The plaintiff further argues that the defendant had the opportunity to choose between alternative courses of action.

“Whether a charge on the doctrine of sudden emergency was applicable is determined by the claims of proof advanced by the parties.” Miller v. Porter, 156 Conn. 466, 468, 242 A.2d 744 (1968). “Evidence was required which would be sufficient to support a finding (1) that an emergency actually existed, (2) that the perilous situation was not created by the defendant, and (3) that the defendant, confronted with the emergency, chose a course of action which would or might have been taken by a person of reasonable prudence in the same or a similar situation.” Id., 469.

The record contains evidence that Rappahahn encountered an emergency and that he did not create the perilous situation. Further, the record contains evidence that when he was confronted with the emergency, he chose to proceed forward rather than stop or even retreat. We therefore conclude that the evidence presented was sufficient to allow the court to instruct the jury on the doctrine of sudden emergency.

Ill

The plaintiff next claims that the court improperly denied his motion to set aside the verdict. In support of his claim, the plaintiff argues that the jury could not reasonably have concluded that Rappahahn was not acting as an agent of Barrieau at the time of the accident. We disagree.

The parties agreed on and submitted interrogatories to the jury. The jury found that Rappahahn was not negligent. At that point, it did not matter whether Rappa-hahn was an agent of Barrieau because no liability could attach to Barrieau. The jury, however, also answered the agency question in the negative.

A juiy’s finding of fact cannot be clearly erroneous if there is evidence to support that finding. The plaintiffs agreement to submit the question to the jury, by necessity, presupposes that the jury had sufficient evidence to answer that question.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs statement of issues states the third issue as: “Was the jury finding that the defendant Rappahahn was not acting as the agent, servant [or] employee of the defendant Barrieau Express, Inc., in the scope of his agency and employment clearly erroneous?” At oral argument, the plaintiff acknowledged that the issue should have been stated as whether the court improperly denied his motion to set aside the verdict.

       We note that Rappahahn’s name has been spelled differently throughout the briefs and the record as “Rappahahn” and “Rappahan.”

       The fourth count, alleging premises liability, is not a part of this appeal.

       On direct examination, the plaintiff testified (hat he had been transported to the emergency room at Hartford Hospital and had been treated there for the injuries sustained as a result of being struck by a car driven by Rappahahn. The injuries sustained and cost of treatment were elements of the damages for which he sought compensation in the present case.

       General Statutes § 4-104 provides in relevant part: “Any and all parts of any such [hospital] record or copy, if not otherwise inadmissible, shall be admitted in evidence without any preliminary testimony, if there is attached thereto the certification in affidavit form of the person in charge of the record room of the hospital or his authorized assistant indicating that such record or copy is the original record or a copy thereof, made in the regular course of the business of the hospital, and that it was the regular course of such business to make such record at the time of the transactions, occurrences or events recorded therein or within a reasonable time thereafter. ...”

       General Statutes § 52-180 (a) provides: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       “The balancing of the probative value of evidence against its prejudicial effect has been left to the sound discretion of the trial courts. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). This determination will be disturbed only where there is a clear abuse of discretion or where manifest injustice has been done. Id.; State v. Alford, 37 Conn. App. 180, 186, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995).” State v. Sinchak, 47 Conn. App. 134, 144-45, 703 A.2d 790 (1997), appeal dismissed, 247 Conn. 440, 721 A.2d 1193 (1999).

       We cannot conclude, as the plaintiff argues, that the court improperly commented on the evidence. Rappahahn’s going to work and passing through a picket line did not, per se, create an emergency or cause the perilous situation.
      “[A] trial court often has not only the right, but also the duty to comment on the evidence. . . . Fair comment does not become improper merely because it tends to point out strengths, weaknesses, or difficulties of a particular case. . . . The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter.” (Internal quotation marks omitted.) State v. Caballero, 49 Conn. App. 486, 493, 714 A.2d 1254, cert. denied, 247 Conn. 924, 719 A.2d 1170 (1998).

       We note that the plaintiff does not raise on appeal that the wording or content of the instruction itself on sudden emergency was in any way improper or inadequate. We therefore do not decide whether the court’s instruction accurately reflected the sudden emergency doctrine and cor-j'ectly informed the jury concerning the plaintiff s duty to exercise reasonable care under the emergent circumstances.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. RAYMOND APONTE
    (AC 20234)
    Landau, Zarella and Daly, Js.
    Argued September 28, 2000
    officially released April 24, 2001

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and John F. Blawie, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Raymond Aponte, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a). The defendant claims that the court improperly instructed the jury by (1) failing to charge that the crime of conspiracy to commit murder requires a specific intent to cause the death of the victim, (2) charging that one who uses a deadly weapon on the vital part of another will be deemed to have intended the probable result of that act and (3) charging that the defendant could be guilty of murder as a principal when there was insufficient evidence to support such a conviction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 3, 1996, at approximately 12:55 p.m., the victim, Aldrich Mitchell, and two eyewitnesses, Luz Rosado and Juan Vasquez, were standing in front of Rosado’s apartment in the Green Homes apartment complex on Harral Avenue in Bridgeport. As the three of them stood talking, three males approached. Two of them were wearing ski masks, sunglasses and hoods that covered their faces. Vasquez later identified the three men as Luis Delvalle, Jose Garcia and the defendant. All three men were armed.

The victim attempted to enter Rosado’s apartment and was told by one of the men not to enter the apartment but to come with them. The victim followed the three men away from Rosado’s apartment and toward the driveway of the Green Homes apartment complex. Rosado went into her apartment and watched through her window as the victim left with the three men. The victim turned and ran away from the three men. All three men then turned and fired their weapons at the victim. Rosado heard seven or eight gunshots. The three men then fled, and Vasquez ran to the victim. Vasquez observed a bullet wound to the victim’s head. Vasquez waited with the victim for an ambulance to come and then left the scene after the victim was taken to a hospital.

I

The defendant first claims that the court improperly instructed the jury concerning the specific intent necessary to convict him of conspiracy to commit murder. Specifically, the defendant claims that when the court gave its instruction on the charge of conspiracy to commit murder, it failed to instruct the jury that it needed to find that he had the specific intent necessary to commit murder. The defendant concedes that he failed to preserve this claim at trial and therefore seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because the record is adequate for review and the claim advanced implicates a fundamental constitutional right, the defendant has satisfied the first two prongs of Golding and is entitled to review of his unpreserved claim.

“[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was misled. ... In determining whether the jury was misled, it is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. White, 55 Conn. App. 412, 419, 740 A.2d 399, cert. denied, 252 Conn. 908, 743 A.2d 621 (1999).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . To prove the offense of conspiracy to commit murder, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to cause the death of another person.” (Citation omitted; internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

The state was required to prove, therefore, that (1) the defendant and either Delvalle or Garcia intentionally agreed to cause the death of another person, (2) at the time of the agreement, the defendant intended that a death be caused and (3) the defendant, Delvalle or Garcia committed an overt act in furtherance of the conspiracy. See id., 771-72.

At the conclusion of the evidence, the court charged the jury, inter alia, regarding the elements of both murder and conspiracy to commit murder. With regard to conspiracy, the court charged, inter alia, as follows: “If you find that there was an agreement to engage in conduct constituting a crime and that the agreement was followed by an act or acts directed to achieve or further the objective of the conspiracy, you must still determine whether the defendant had criminal intent. The defendant may not be found guilty unless the state has proven beyond a reasonable doubt he had specific intent to violate the law when he entered into the agreement to engage in conduct constituting a crime.” After the jury deliberated for some time, it requested that the court reinstruct it as to the definition of both murder and conspiracy to commit murder. The court did so and, in its supplemental charge, again provided the previously discussed charge with regard to the intent required for the crime of conspiracy to commit murder. Following the supplemental charge, defense counsel took exception to the court’s charge regarding the intent element of conspiracy to commit murder. The court then provided a curative instruction that clarified that the crime related to the conspiracy was murder. Specifically, the court charged as follows: “I just want to add one thing . . . and that is when we talk about the conspiracy, the crime that’s related to conspiracy is murder so, in other words, the question is whether there was a conspiracy to commit murder as I’ve defined that for you.”

Our review of the court’s instruction reveals that it provided the jury with the elements of the crime of conspiracy to commit murder, a clear understanding of those elements and ample guidance on how to determine their presence in the evidence. The jury was not misled. The instructions as a whole were, therefore, constitutionally adequate.

II

The defendant next claims that the court violated his due process rights by improperly instructing the jury that one who uses a deadly weapon on the vital part of another will be deemed to have intended the probable result of that act. We note that in his brief, the defendant concedes that his claim is unpreserved and that he is seeking review under State v. Golding, supra, 213 Conn. 233. We will review his claim because the record is adequate for review and the claim is constitutional in nature.

The Supreme Court has “stated that [o]ne who uses a deadly weapon upon a vital part of another will be deemed to have intended the probable result of that act, and from such a circumstance a proper inference may be drawn in some cases that there was an intent to kill.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 259, 681 A.2d 922 (1996). The court instructed the jury regarding the intent to cause death as follows: “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to it [and] immediately following the death. One who uses a deadly weapon on the vital part of another will be deemed to have intended the probable result of that act [and] from such a circumstance a proper inference may be drawn that there was an intent to kill.” (Emphasis added.) The court repeated that language in its supplemental instruction. The defendant claims that this charge violates the holding of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), by creating a conclusive presumption that the use of a deadly weapon on the vital part of another established an intent to cause the death of another or placed the burden on the defendant to disprove that intent. We disagree.

“In Sandstrom v. Montana, supra, [442 U.S.] 517-24, the United States Supreme Court held that a jury instruction that the law presumes that a person intends the ordinary consequences of his voluntary acts violated the defendant’s due process rights because a reasonable jury could have interpreted the instruction as a conclusive or burden-shifting presumption and thus relieved the state of its burden of proving every element of the crime. . . . We have, however, recognized that the rule of Sandstrom must not be oversimplified. . . . Sand-strom does not invalidate, for example, the use of an entirely permissive inference or presumption, which allows . . . the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant. ... A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” (Citations omitted; internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 545, 679 A.2d 902 (1996).

“We must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction.” State v. Turmon, 34 Conn. App. 191, 201, 641 A.2d 138, cert. denied, 229 Conn. 922, 642 A.2d 1216 (1994). We conclude, after reviewing the charge as a whole, that it is not reasonably possible that the jury was misled by the instruction. As an initial matter, the charge was consistent with our Supreme Court’s rationale in State v. Tomasko, supra, 238 Conn. 259, as to inferences a jury may draw from evidence. The court charged that intent may be inferred from circumstantial evidence. The court next charged that one who uses a deadly weapon on the vital part of another will be deemed to have intended the probable result of that act. The court instructed the jury that it may draw an inference from those facts that there was an intent to kill. The court did not instruct the jury that it was required to draw such an inference. No rational juror could have concluded that he was required to draw the inference that the defendant intended to cause the victim’s death simply because the defendant used a deadly weapon. Because the charge did not require the jury to entertain a conclusive presumption, the defendant has failed to demonstrate that the court’s charge constituted a clear constitutional violation. See State v. Turmon, supra, 201.

III

The defendant next argues that the court improperly instructed the jury that he could be found guilty of murder as a principal because there was not sufficient evidence that he fired the fatal shot. The defendant again concedes that this issue is unpreserved, and he is, therefore, seeking review pursuant to State v. Golding, supra, 213 Conn. 233. This claim, however, is not of constitutional magnitude and, therefore, does not meet the second prong of Golding. See State v. Tinsley, 47 Conn. App. 716, 719, 706 A.2d 1008, cert. denied, 244 Conn. 915, 713 A.2d 833 (1998).

According to the defendant, the victim was killed by a single bullet that may have been fired by any one of three individuals. Because the evidence was insufficient to prove beyond a reasonable doubt that he caused the death of the victim, the defendant argues that the court improperly charged the jury that he could be convicted of murder as a principal. The defendant claims that this charge permitted the jury to find him guilty on a theory of committing the offense that was unsupported by the evidence. In support of his claim, the defendant argues that, pursuant to State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987), and State v. Chapman, 229 Conn. 529, 540, 643 A.2d 1213 (1994) (en banc), an instruction based on a theory of liability that is unsupported by the evidence may be constitutionally infirm even though the conviction is warranted under an alternative theory of liability.

In Chapman, our Supreme Court distinguished between a conviction that is based on legally insufficient grounds and one that is unsupported by the evidence. The court stated that its earlier decision in Williams “was founded on our interpretation of federal cases holding that including an instruction on a factually unsupported theory of liability constituted a federal due process violation. . . . Since Williams was decided, however, the United States Supreme Court has held that a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation. Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). The defendant’s claim in this case is analogous to the claim in Griffin. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law— whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of a crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence ....

“It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance — remote, it seems to us — that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient. Id., 59-60.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Chapman, supra, 229 Conn. 539-40.

The court in the present case instructed the jury as to both methods of committing murder, as a principal or as an accessory. As in Chapman, the instruction at issue was based on a legally adequate theory of liability. The defendant, in fact, concedes that there was sufficient evidence to convict him of murder as an accessory and agrees that the court properly instructed the jury in that regard. While there may have been insufficient evidence to support the theory that the bullet that killed the victim had been fired by the defendant, the instruction was of a factual nature, and the jurors were “well equipped to analyze the evidence”; (internal quotation marks omitted) id., 540; and to assess whether the defendant committed the offense of murder as a principal or as an accomplice. We therefore conclude that the defendant’s claim is not of constitutional magnitude and, thus, decline to review it. See State v. Sanko, 62 Conn. App. 34, 40, 771 A.2d 149, cert. denied, 256 Conn. 905, 772 A.2d 599 (2001); State v. Tinsley, supra, 47 Conn. App. 720.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

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

       Detective Leonard Sattani of the Bridgeport police department investigated the shooting. He discovered eleven spent cartridge casings and one spent bullet at the scene. Edward McPhillips, a firearms examiner for the state of Connecticut, examined the bullet and cartridge casings. He testified that five of the cartridges came from one gun and that the remaining six could have come from one gun or several different guns.

       Malka B. Shah, an associate medical examiner for the state of Connecticut, performed an autopsy on the victim. She testified that a single bullet entered the victim’s body at the lower part of his shoulder, initially exited at the top of his shoulder, reentered at the back of his head and came to rest at the left side of his jaw. The bullet damaged the victim’s spinal cord and brain, thereby causing his death. Shah certified the cause of the victim’s death as a gunshot wound to the head and neck.

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       A defendant has a fundamental constitutional right, to have the jury properly instructed as to each element of the crime with which he has been charged. See State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993).

       We further note that the accessory statute, General Statutes § 53a-8, provides an alternative theory under which the state may prove liability for the underlying substantive crime, in this case, murder. “Under General Statutes § 53a-8 (a), there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility. . . . The terms refer to the alternate means by which one substantive crime may be committed.” (Citation omitted; internal quotation marks omitted.) State v. Smith, 212 Conn. 593, 606, 563 A.2d 671 (1989).


text:
    MARYLOU BRADLEY v. TIMOTHY P. RANDALL ET AL.
    (AC 19922)
    Landau, Zarella and Daly, Js.

      Argued December 12, 2000
    officially released April 24, 2001

      David N. Rosen, with whom was Michael J. Whalen, for the appellant (plaintiff).

      R. J. Weber III, with whom was Kevin P. Walsh, for the appellees (defendants).
   Opinion

DALY, J.

The plaintiff, Marylou Bradley, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants in this negligence action. The plaintiff claims that the court improperly (1) failed to strike the matter from the jury docket and (2) failed to grant her motion to set aside the verdict. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On June 26, 1995, at approximately 10 a.m., the plaintiff was operating her motor vehicle in an easterly direction on Tower Hill Road in Chaplin. At the same time, the defendant Timothy P. Randall was operating a motor vehicle in a northerly direction on Federal Road in Chaplin. As the defendant proceeded to make a left turn onto Tower Hill Road, he struck the plaintiffs motor vehicle head-on. The defendant admitted that there was a stop sign at the intersection, but claimed that he did not bring his vehicle to a stop because he lacked adequate notice of the sign under the circumstances then and there existing.

The following procedural history is also necessary for the disposition of this appeal. The original complaint was served in November, 1995, with a return date of November 28,1995. The defendants failed to answer the complaint, and the plaintiff filed a motion for default. On February 14, 1997, the court granted the motion for default. The plaintiff subsequently claimed the case for a court trial on damages on February 25,1997. On June 16,1997, the defendants filed their answer and a motion to open the default judgment, which was granted on June 30, 1997.

On April 7, 1998, the defendants filed a request for leave to amend and attached their amended answer. On April 15, 1998, the defendants claimed the case for a jury trial. On the first day of jury selection, September 9, 1998, the plaintiff filed a motion to amend her complaint, which the court granted. On the same date, the plaintiff also filed a motion to strike the case from the jury list, which the court denied without comment. On September 24, 1998, the jury returned a verdict for the defendants. On October 2, 1998, the plaintiff filed a motion to set aside the verdict and judgment, claiming that it was contrary to law and against the evidence. The court denied that motion on April 4, 1999, also without comment. This appeal followed.

I

The plaintiff first claims that the court improperly failed to strike the matter from the jury docket. Specifically, the plaintiff argues that the defendants’ April 15, 1998 jury trial claim was untimely and, thus, it should have been stricken from the jury docket. We disagree.

General Statutes § 52-215 sets forth the time within which an issue that is proper for a trial by jury may be claimed to the jury docket. Section 52-215 provides in relevant part: “When ... an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk . . . .” General Statutes § 52-215. “Where the original ten day period for claiming a case to the jury has expired, a new ten day period may be created by the filing of an amended pleading, provided that the amended pleading introduces a new issue of fact into the case. ... If a new issue of fact is introduced by the amended pleading, requiring the filing of a responsive pleading, then the new ten day period within which the parties may elect a jury trial begins to run from the time that the responsive pleading is filed and the parties are again at issue.” (Citation omitted.) Javit v. Marshall’s, Inc., 40 Conn. App. 261, 266, 670 A.2d 886, cert. denied, 236 Conn. 915, 673 A.2d 1142 (1996).

In the plaintiffs motion to strike the case from the jury list, she claimed that while the defendants filed their amended answer on April 7, 1998, and the jury claim was filed on April 15, 1998, the amended answer added no new issues of fact, but only restated the factual claims already alleged. The court denied the plaintiffs motion without comment, and she did not seek to have the court articulate its basis for denying the motion.

“It is the responsibility of the appellant to provide an adequate record for review as provided in Section 61-10.” Practice Book § 60-5. “The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal.” Practice Book § 61-10. “Conclusions of the trial court cannot be reviewed where the appellant fails to establish through an adequate record that the trial court incorrectly applied the law or could not reasonably have concluded as it did . . . .” (Internal quotation marks omitted.) Mastrolillo v. Danbury, 61 Conn. App. 693, 697, 767 A.2d 1232 (2001). “An appellant’s 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.) Anastasia v. Beautiful You Hair Designs, Inc., 61 Conn. App. 471, 480, 767 A.2d 118 (2001), quoting Ginsberg v. Fusaro, 225 Conn. 420, 431, 623 A.2d 1014 (1993).

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Anastasia v. Beautiful You Hair Designs, Inc., supra, 61 Conn. App. 480, quoting Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997). In this case, the record is ambiguous. Because the court denied the plaintiffs motion to strike without comment and because the plaintiff failed to complete the record by way of a motion to articulate, “[w]e . . . are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings.” (Internal quotation marks omitted.) Anastasia v. Beautiful You Hair Designs, Inc., supra, 480. In light of the inadequate record before us, we cannot ascertain the court’s reasons for denying the plaintiffs motion and, therefore, we decline to review this claim.

II

The plaintiff next claims that the court improperly failed to grant her motion to set aside the verdict. Specifically, the plaintiff claims that the verdict should have been set aside because it was contrary to law and against the evidence. We disagree.

The standard for reviewing the denial of a motion to set aside a verdict on evidentiary grounds is clear. “Our review of the trial court’s refusal to [grant a motion to set aside a verdict] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 17, 734 A.2d 85 (1999), citing Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988).

In part I of this opinion, we discussed the burden that is placed on the appellant to provide this court with an adequate record. “It remains the appellant’s responsibility to secure an adequate appellate record . . . .” (Internal quotation marks omitted.) Ginsberg v. Fusaro, supra, 225 Conn. 431-32. The court denied the plaintiffs motion to set aside the verdict without comment, and the plaintiff, again, failed to complete the record by way of a motion for articulation. Because of the inadequate record before us, we cannot ascertain the court’s reasons for denying the plaintiffs motion and, therefore, decline to review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are Timothy P. Randall and his father, Bruce Randall, the owner of the motor vehicle that Timothy P. Randall was operating.