author: Schaller, J.

text:
    Marvin Coble v. Brian P. Maloney et al.
    (11780)
    Landau, Heiman and Schaller, Js.

      Argued December 2, 1993
    decision released June 14, 1994

      John T. Scully, for the appellants-appellees (defendant Archie & Frankie’s, Inc., et al.).

      Ann R. Stravalle-Schmidt, with whom, on the brief, were Melvin A. Simon and Sara Slade, law student intern, for the appellee-appellant (plaintiff).
   Schaller, J.

The defendants Archie & Frankie’s, Inc., and Vincent Howe (The Pub Cafe) appeal from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiff, Marvin Coble, on one count of wilful, wanton and reckless misconduct, and on one count of violation of General Statutes § 30-102 (Dram Shop Act). On appeal, the defendants claim that the trial court improperly (1) denied the defendants’ motion in limine to preclude the introduction of evidence of codefendant Brian Maloney’s blood alcohol level unless accompanied by expert testimony, (2) admitted the out-of-court statements of codefendant Maloney, contained in a police officer’s report, (3) failed to grant the defendants’ motion for a directed verdict and motion for judgment pursuant to Practice Book § 321 regarding the wilful, wanton and reckless misconduct count, and (4) instructed the jury with regard to the wilful, wanton and reckless misconduct count. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. After work on April 5, 1988, Maloney arrived at his home in Southington at about 6 p.m. Maloney showered, got dressed and had one or two beers. At approximately 7:30 p.m., Maloney departed for New Haven, where he planned to go to two bars, The Pub Cafe and Partners, both of which he had visited on numerous occasions. When Maloney arrived in New Haven at about 8:30 p.m., he parked his car in a lot across the street from The Pub Cafe, which is located on York Street. He then had dinner alone at the Brass Button, a restaurant also located on York Street, several buildings from The Pub Cafe. While at the Brass Button, Maloney had two or three “White Russians.”

Maloney intended to become intoxicated that night. After dinner, between 9:30 and 9:45 p.m., Maloney walked to The Pub Cafe, where he leisurely drank two to three more White Russians. He then walked to Partners, a bar located just around the corner from The Pub Cafe. Maloney stayed briefly at Partners and consumed two more White Russians. At approximately 11:30 p.m., in an intoxicated state, Maloney, alone and unassisted, walked back to The Pub Cafe, where he was served one more White Russian. Maloney then lost memory of any further events until those occurring at the Meriden-Wallingford Hospital early in the morning on April 6, 1988.

Sometime after leaving The Pub Cafe, Maloney retrieved his car from the parking lot, and drove north toward Hartford. Subsequently reversing his direction, he entered Interstate 91, without having turned on his headlights, and traveled south in one of the northbound lanes. At approximately 1 a.m. on April 6, 1988, Maloney’s vehicle struck the plaintiff’s vehicle, which had been traveling north in one of the northbound lanes, slightly south of exit 18. Both the plaintiff and Maloney suffered injuries as a result of the collision.

State Trooper Edward Roche and an ambulance arrived on the scene at approximately the same time. Because of the injuries suffered by Maloney and the medical treatment given to him at the scene, Roche was unable to conduct many of the standard field tests for sobriety. On the bases of the nature of the accident, Maloney’s actions at the scene, the odor of alcohol on his breath, and Maloney’s statement that he had been drinking, Roche determined that Maloney was intoxicated and that probable cause existed to believe that Maloney was under the influence of intoxicating liquor at the time of the accident.

Maloney was transported to Meriden-Wallingford Hospital. Two blood alcohol tests were administered at the hospital at approximately 3:05 and 3:39 a.m. The first test revealed a blood alcohol content of 0.14 percent, while the second revealed a blood alcohol content of 0.12 percent. Additional facts will be set forth as necessary for the resolution of the individual claims.

I

Blood Alcohol Tests

The defendants first contend that the trial court improperly denied their motion in limine regarding the two blood alcohol tests. Specifically, the defendants claim that the test results should not have been introduced without expert testimony to extrapolate the data back to the time that The Pub Cafe allegedly served Maloney his last drink. The defendants make two arguments regarding this claim. First, they contend that, with regard to the dram shop count, while a blood alcohol level exceeding 0.10 percent is indicative of an individual’s being “under the influence of intoxicating liquor” while operating a motor vehicle pursuant to § 14-227a (a) (2), such a reading does not prove that an individual is intoxicated. Second, they allege that, even if the blood alcohol tests do bear some indication of Maloney’s intoxication, without some limit or explanation of the data, the admission of the blood alcohol test results severely prejudiced the defendants and constituted harmful error.

“Our standard of review of issues involving evidentiary rulings is that we will set aside on appeal rulings on evidentiary matters only upon a showing of a clear abuse of discretion. Hall v. Burns, 213 Conn. 446, 451, 569 A.2d 10 (1990); Munson v. United Technologies Corporation, 28 Conn. App. 184, 189, 609 A.2d 1066 (1992).” Gemme v. Goldberg, 31 Conn. App. 527, 539, 626 A.2d 318 (1993). “In determining whether the trial court has abused its broad discretion, we will afford every reasonable presumption in favor of the correctness of its ruling. . . . The ultimate issue to be determined in a claim involving an alleged abuse of the trial court’s discretion is whether the trial court could reasonably conclude as it did.” (Citations omitted.) Id., 538. In addition, once we determine that an abuse of discretion has occurred, “our next inquiry is whether the court’s evidentiary rulings constituted harmful error. To be reversible, evidentiary error must be both wrong and harmful. Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 142, 491 A.2d 389 (1985); DeCarufel v. Colonial Trust Co., 143 Conn. 18, 21, 118 A.2d 798 (1955). The appellant bears the burden of establishing the specific harmfulness of the error. See Braun v. Edelstein, 17 Conn. App. 658, 554 A.2d 1102, cert. denied, 211 Conn. 803, 559 A.2d 1136 (1989).” Sokolowski v. Medi Mart, Inc., 24 Conn. App. 276, 282, 587 A.2d 1056 (1991).

In order to prove that a sale of intoxicating liquor was made in a wilful, wanton and reckless manner, the plaintiff must demonstrate that the defendants acted in a manner that tended to take on the aspect of “ ‘highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’ ” Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Proof of a certain blood alcohol content is not necessary to establish that the defendant acted in a wilful, wanton and reckless manner in dispensing alcohol.

To establish a violation of General Statutes § 30-102, three elements must be proven. “In each case . . . the trier must decide as a question of fact: whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” (Emphasis added.) Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985). Proof of a particular blood alcohol level is not required to establish that Maloney was intoxicated either when served by The Pub Cafe or when the accident occurred.

The defendants contend that the results of the blood alcohol tests given over two hours after the accident had occurred and approximately three and one-half to four hours after The Pub Cafe had allegedly served Maloney for the final time should not have been admitted. First, with regard to the dram shop count, the defendants allege that the definition of “intoxication” varies from that of operation of a motor vehicle while “under the influence of intoxicating liquor,” which can be established by a blood alcohol content of 0.10 percent pursuant to General Statutes § 14-227a (a) (2). The defendants argue, in essence, that, because a blood alcohol test is used to determine whether an individual is “under the influence” pursuant to General Statutes § 14-227a(a) (2), rather than “intoxicated” pursuant to § 30-102, the blood alcohol tests were improperly admitted on this count because they do not gauge “intoxication.”

In Sanders v. Officers Club of Connecticut, Inc., supra, 196 Conn. 349-50, our Supreme Court defined intoxication as follows: “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ ”

“The defendant appears to suggest that the Supreme Court and the legislature have recognized varying states of inebriation, with the state of being ‘under the influence’ of intoxicating liquor referring to a lesser level than‘intoxication.’. . . [W]e note that where the legislature has distinguished between levels of inebriation, it has not distinguished the phrase ‘under the influence of intoxicating liquor’ from ‘intoxication.’ See General Statutes § 14-227a (distinguishing driving while under the influence [blood alcohol 0.10 percent or greater] from driving while impaired [blood alcohol less than 0.10 percent but more than 0.07 percent]); State v. Hancich, 200 Conn. 615, 619-21, 513 A.2d 638 (1986). . . . While the Supreme Court in Sanders v. Officers Club of Connecticut, Inc., supra, [196 Conn.] 349, stated that ‘[t]o be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor,’ the court gave no indication that its definition of intoxication was intended as a departure from its previous interpretations of the term ‘under the influence’ of intoxicating liquor. On the contrary, in the same paragraph, the court stated: ‘When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation . . . a person may be found to be intoxicated.’. . . Id., 349-50.” State v. McKenna, 11 Conn. App. 122, 130-32, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987) (discussing change in language of General Statutes § 53-56b from “intoxication” to “under the influence of intoxicating liquors” and propriety of jury instructions invoking language typical of “intoxication” definition).

Although § 30-102 is not a per se offense that can be proven merely by establishing a blood alcohol level of 0.10 percent or greater at the time the elements of the offense occurred, the results of the blood alcohol tests nonetheless may indicate that a person had imbibed intoxicating liquors, which is a key factor in determining whether an individual is intoxicated. Clearly, then, the results of the blood alcohol tests are relevant to a determination of intoxication for the purposes of § 30-102. Similarly, proof of common law wilful, wanton and reckless misconduct in the selling of alcohol does not require evidence of a specific blood alcohol level, but such evidence is nonetheless relevant to a determination whether the defendants acted in such a manner.

The defendants further contend, however, that the test results could not be introduced properly with regard to either count without expert evidence explaining the test results and extrapolating the results back to the time of the elements of the alleged offense. The defendants correctly assert that in a criminal prosecution for driving under the influence pursuant to General Statutes § 14-227a (a) (2), several procedural requirements must be met before a blood alcohol test can be introduced into evidence. For example, evidence establishing the relationship of the blood alcohol test to the individual’s blood alcohol content at the time of the offense must be presented. See General Statutes § 14-227a (c) (6); State v. Geisler, 22 Conn. App. 142, 160-62, 576 A.2d 1283, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990), vacated on other grounds, 498 U.S. 1019, 111 S. Ct. 663, 112 L. Ed. 2d 657, aff'd on remand, 25 Conn. App. 282, 594 A.2d 985 (1991), aff'd, 222 Conn. 672, 610 A.2d 1225 (1992).

Section 14-227a (a) (2), unlike § 30-102 and the common law claim of wilful, wanton and reckless misconduct, is a per se criminal offense, which can be established upon proof of a blood alcohol content of 0.10 percent or greater at the time of the alleged offense. The procedural requirements set forth in § 14-227a (c) for the admissibility of blood alcohol tests have not been extended to actions brought pursuant to other statutes. See State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1977), cert. denied, 440 U.S. 947, 99 S. Ct. 1425, 59 L. Ed. 2d 635 (1979) (procedural requirements for admission of blood alcohol test in criminal prosecution for driving under influence not extended to prosecution pursuant to General Statutes § 53a-57); Marshall v. DelPonte, 27 Conn. App. 346, 353, 606 A.2d 716 (1992) (in administrative license revocation proceeding pursuant to General Statutes § 14-227b, standard of reliable and probative evidence does not require extrapolation testimony to establish that blood alcohol content was 0.10 percent or greater at time of offense if other evidence establishes blood alcohol content of 0.10 percent at time of offense); State v. Geisler, supra, 22 Conn. App. 166 (in conviction for § 53a-60d, assault in second degree with motor vehicle while under influence of intoxicating liquor, extrapolation of blood alcohol tests to time of offense not required, as defendant’s behavior can corroborate accuracy of results of blood alcohol tests); Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 506-507, 548 A.2d 728 (in general, procedural requirements for admission of blood test pursuant to § 14-227a do not apply to civil actions brought under § 30-102 and common law wanton and reckless misconduct claim).

In this case, the blood alcohol tests were offered as circumstantial evidence of both Maloney’s intoxication at the time of the accident and Maloney’s intoxication at the time of service. Having established that the results of the blood alcohol tests are relevant to the determinations of whether an individual is intoxicated pursuant to § 30-102 and whether The Pub Cafe dispensed alcohol in a wilful, wanton and reckless manner, we now examine whether the results of the tests performed on Maloney were sufficiently accurate, without extrapolation testimony, regarding his condition at the time of service and at the time of the accident. We conclude that the accuracy of the blood alcohol test with regard to Maloney’s condition at the time of the accident was corroborated by a variety of other evidence presented. Maloney admitted that he intended to become intoxicated that night, related that he had approximately one to two beers and six to nine White Russians prior to his return to The Pub Cafe at approximately 11:30 p.m., stated that he was intoxicated when he returned to The Pub Cafe, and lost his memory of events after being served another White Russian upon his return to The Pub Cafe. Maloney subsequently drove his vehicle south in the northbound lane of Interstate 91 without having turned on his headlights, and collided with the plaintiff’s vehicle. We further note that Maloney did not drink any alcohol or take any drugs between the time of the accident and the time of the blood alcohol tests.

With regard to providing circumstantial evidence addressed to the issue of Maloney’s intoxication at the time of service, the test results are more problematic. Maloney’s memory failed after being served at The Pub Cafe at approximately 11:30 p.m. The seventy-five to ninety minutes between Maloney’s consumption of his drink and the accident can be reconstructed only to the extent of determining how he arrived at the accident scene. He had two open bottles of alcohol in his car at the time of the accident. The blood alcohol test results as they related to the time of service may have been affected by other activities during the intervening time.

Although we conclude, for that reason, that the admission of the blood alcohol tests should have been limited to the issue of Maloney’s condition at the time of the accident, the defendants have failed to prove that the unrestricted admission of the evidence was harmful with regard to either the dram shop count or the wilful, wanton and reckless misconduct count. The plaintiff provided ample evidence that Maloney was intoxicated at the time of service. Maloney admitted that he intended to become intoxicated, related that he had approximately one to two beers and six to nine White Russians prior to his return to The Pub Cafe, stated that he was intoxicated when he returned to The Pub Cafe, and lost his memory of events subsequent to his return to The Pub Cafe. On the basis of that evidence, the jury reasonably could have concluded, by a preponderance of the evidence, that The Pub Cafe acted in a wilful, wanton and reckless manner in dispensing alcohol to Maloney, that Maloney was intoxicated when served by The Pub Cafe on the second occasion, and that, as a result of such intoxication, Maloney caused the collision on Interstate 91.

II

Police Report

The defendants next claim that Roche’s police report, which contained Maloney’s out-of-court statement that he had been “drinking in New Haven,” should have been suppressed as inadmissible hearsay. The plaintiff contends that the statement is admissible as an exception to the hearsay rule either as an admission of a party opponent or as a declaration against penal interest, and, even if not admissible under one of these exceptions, that the admission constituted harmless error.

We first examine the plaintiff’s contention that the statement was properly admitted under a hearsay exception as an admission of a party opponent. Such an “admission can be used only against the party who made it. Palombizio v. Murphy, 146 Conn. 352, 355-56, 150 A.2d 825 (1959); C. Tait & J. LaPlante, [Connecticut Evidence (1976)] § 11.5.” (Emphasis added.) In re Jason S., 9 Conn. App. 98, 104, 516 A.2d 1352 (1986). Unless a limiting instruction is requested, however, the admission may be used against other parties as well. Pluhowsky v. New Haven, 151 Conn. 337, 343-44, 197 A.2d 645 (1964).

The statement in the report was made by the eodefendant, Maloney. The defendants requested that the use of the report be limited, but the court failed to do so. Although we conclude that the evidence was improperly admitted as an admission of a party opponent with regard to The Pub Cafe, and that this admission constituted an abuse of discretion, the defendants have not established that the introduction of the report constituted harmful error.

“It is well recognized that any error in the admission of evidence does not require reversal of the resulting judgment if the improperly admitted evidence is merely cumulative of other validly admitted testimony. Emhart Industries, Inc. v. Amalgamated Local Union 376, U. A. W., 190 Conn. 371, 391, 461 A.2d 422 (1983).” Kimbrell v. Rossitto, 6 Conn. App. 638, 653, 507 A.2d 120 (1986). Maloney had already testified to the substance of the contested statement. In fact, Maloney’s testimony was much more specific than the information contained in the report. While the statement in the report described Maloney’s drinking in “New Haven,” Maloney testified specifically regarding the establishments where he drank in New Haven. Further, Roche had also testified, without objection, that Maloney had stated that he had been drinking in New Haven. Because the substance of the contested statement in the police report, therefore, already had been admitted, the admission of that portion of the police report was harmless.

Ill

Directed Verdict

The defendants next argue that the trial court improperly failed to grant their motion for a directed verdict at the close of the plaintiffs case, as well as the renewal of that motion pursuant to Practice Book § 321 at the close of evidence, with regard to the claim of wilful, wanton and reckless conduct. We disagree.

“Our review of the trial court’s refusal to direct a verdict is limited. [W]e view the evidence in the light most favorable to the plaintiff. ... A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the defendant] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . When a jury has returned a verdict and the trial court has refused to set it aside, [t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did. (Citations omitted.)Hall v. Winfrey, 27 Conn. App. 154, 157-58, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986).” (Internal quotation marks omitted.) Sullivan v. Norwalk, 28 Conn. App. 449, 452, 612 A.2d 114 (1992).

“While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. ‘The result is that “wilful,” “wanton,” or “reckless” conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . .’ W. Prosser & W. Keeton, Torts (5th Ed.) § 34, p. 214.” Dubay v. Irish, supra, 207 Conn. 533.

Viewing the evidence presented most favorably to the plaintiff, we conclude that the jury reasonably, logically and legally could have found that the defendants had exercised wilful, wanton and reckless misconduct in selling alcohol to Maloney. “[I]t is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven .... (Citations omitted.) Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990); Sokolowski v. Medi Mart, Inc., [supra, 24 Conn. App. 285-86].” Munson v. United Technologies Corp., supra, 28 Conn. App. 191. The plaintiff’s casein-chief included Maloney’s testimony concerning his intent to become intoxicated, the number of drinks he had consumed, his opinion that he was intoxicated upon his return to The Pub Cafe, and the failure of his memory after having another White Russian at The Pub Cafe. The jury reasonably could have inferred from the evidence set forth that Maloney manifested signs of intoxication and, therefore, concluded that The Pub Cafe engaged in “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”

IV

Jury Instructions

The defendants next contend that the trial court improperly failed to instruct the jury, pursuant to their request to charge, that wilful, wanton and reckless misconduct is more that gross negligence, that wilful misconduct is intentional misconduct, and that wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct. The pertinent section of the court’s instructions to the jury with regard to the wilful, wanton and reckless misconduct charge are as follows: “Recklessness involves highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is present. Recklessness requires a conscious choice of a course of action, either with knowledge that it would involve serious injury to other, or with knowledge of facts which would disclose the danger to any reasonable man. Reckless or wanton misconduct is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequence of actions. Therefore, if you find [that The Pub Cafe] served liquor beyond the point when Mr. Maloney was drunk, and they knew or should have known that Brian Maloney was already intoxicated, you may determine whether or not they did conduct themselves in a reckless, wanton and wilful way.

“Our Supreme Court, however, has stated the following: Wilful, wanton or reckless conduct tends to take on the aspect of highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent. Furthermore, the state of mind amounting to recklessness may be inferred from conduct, but in order to infer it there must be something more that a failure to exercise a reasonable degree of watchfulness.”

“The court is under no duty at any time to charge in the exact language requested. . . . Failure to charge precisely as proposed by a defendant is not error where the point is fairly covered in the charge. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues.” (Citations omitted.) Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981); State v. Commerford, 30 Conn. App. 26, 32, 618 A.2d 574, cert. denied, 225 Conn. 903, 621 A.2d 285 (1993).

Although the defendants correctly stated the law with regard to the notion of wilful, wanton and reckless misconduct, the trial court also correctly stated the law in its instructions. On the basis of the instructions given by the trial court, we conclude that the trial court adequately apprised the jury of the nature of wilful, wanton and reckless misconduct by providing it with “a clear understanding of the issues and proper guidance in determining those issues.” Id., 190.

The judgment is affirmed; the plaintiff’s motion to withdraw the cross appeal is granted.

In this opinion the other judges concurred.

       In a consolidated trial, the jury also returned a verdict against the named defendant, Brian P. Maloney, in the amount of $178,576 on count one of the complaint, which alleged negligence, and in the amount of $100,000 on count four of the complaint, which alleged wilful, wanton and reckless conduct. Maloney has not appealed the judgment rendered against him.

       Archie & Frankie’s, Inc., is the financial backer and Vincent Howe is the permittee for The Pub Cafe. The terms defendants and The Pub Cafe hereinafter shall refer to Archie & Frankie’s, Inc., and Vincent Howe.

       General Statutes § 30-102 provides in pertinent part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars, or to persons injured in consequence of such intoxication up to an aggregate amount of fifty thousand dollars, to be recovered in an action under this section

       The plaintiff has filed a cross appeal, in which he claims that the trial court improperly (1) denied the plaintiffs motion to find The Pub Cafe and Maloney jointly and severally liable for the total amount of the jury verdicts, and (2) denied the plaintiffs motion to set aside the verdict and to increase the amount of the award with regard to the violation of General Statutes § 30-102. The plaintiff filed a motion after oral argument, pursuant to Practice Book § 4038, seeking permission for a conditional withdrawal of his cross appeal. Section 4038 provides in pertinent part that “[pjrior to oral argument, an appeal or writ of error may be withdrawn as of right; thereafter it may be withdrawn only on motion to the court in which the appeal is pending. ” (Emphasis added.) In his motion, the plaintiff states that he wants to withdraw the cross appeal if this court affirms the trial court’s judgment. Under the unique circumstances of this case and because the condition has been fulfilled, we grant the plaintiffs motion to withdraw his cross appeal. See Carlino v. Meriden, 132 Conn. 394, 396, 44 A.2d 823 (1945).

       The testimony of George Coyle, a bartender at The Pub Cafe on the evening of April 5,1988, revealed that a White Russian contains about one-third each vodka, Kahlua, and half and half.

       In order for blood test results to be admissible to establish a per se offense of driving while under the influence of intoxicating liquor pursuant to General Statutes § 14-227a (a) (2), several procedural guidelines, which are set forth in General Statutes § 14-227a (c), must be met.
      General Statutes § 14-227a (c) provides: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the department of health services and was performed by a person certified or recertified for such purpose by said department or recertified by persons certified as instructors by the commissioner of health services. If a blood test is taken, it shall be on a blood sample taken by a person licensed to practice medicine and surgery in this state, a qualified laboratory technician, an emergency medical technician II or a registered nurse; (4) the device used for such test was checked for accuracy immediately before and after such test was performed by a person certified by the department of health services; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed, provided however the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented which demonstrates that the test results and the analysis thereof accurately reflect the blood alcohol content at the time of the alleged offense.”

       At oral argument, we questioned the parties regarding whether the trial court had rendered a final judgment for purposes of appeal. The judgment on the verdicts against Maloney were not rendered until issues concerning collateral source recovery were determined, which occurred after this appeal by The Pub Cafe had been taken. We conclude, however, that pursuant to State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), the judgment rendered against The Pub Cafe is an appealable final judgment.

       We note that this court has in the past examined jury instructions concerning criminal charges other than those brought pursuant to General Statutes § 14-227a (a) (2) in which the trial court provided a misplaced emphasis on the nature of the blood alcohol test results in relation to the particular criminal offense charged. See State v. LeRoy, 16 Conn. App. 472, 478, 547 A.2d 940 (1988) (trial court, in its instructions on General Statutes [Rev. to 1983] § 53a-60d [a], assault in the second degree with a motor vehicle while intoxicated, improperly “added the weight of the statutory presumption to the jury’s determination of whether the defendant was intoxicated”); State v. Shaw, 12 Conn. App. 294, 304, 530 A.2d 653 (1987) (trial court, in its instructions on General Statutes [Rev. to 1985] § 53a-56b, manslaughter in second degree with motor vehicle while intoxicated, improperly “added the heavy weight of the statutory presumption [of ‘under the influence of intoxicating liquors’ in § 14-227a] to the jury’s determination of whether the defendant was intoxicated”). In this case, the defendants have not challenged the trial court’s jury instructions regarding the tests, but rather, assert that the evidence was not properly admitted. We also note that the trial court, in charging the jury on the counts relating to The Pub Cafe, did not mention the blood alcohol test results. The court did, however, when instructing the jury on the count of negligence against codefendant Maloney, discuss that a violation of § 14-227a would establish negligence per se. The court explained the presumption concerning a blood alcohol content of 0.10 percent with regard to that offense.

       Maloney and the defendants’ counsel engaged in the following exchange on cross-examination:
      “[Defense Counsel]: Okay. Now you had two open bottles of alcohol in your car at the time of the accident; is that correct?
      “[Witness]: That is correct.”

       The defendants also allege that the trial eourt improperly refused to instruct the jury that it had to return a verdict in favor of the defendants on the wilful, wanton and reckless misconduct count. On the basis of our conclusion that the trial court properly refused to render a directed verdict in favor of the defendants on this count, we also conclude that the trial court properly refused to instruct the jury to return a verdict in favor of the defendants.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Andrew Schick v. Windsor Airmotive Division/Barnes Group, Inc., et al.
    (12219)
    Poti, Landau and Schaller, Js.
    Argued March 21
    decision released June 14, 1994

      David C. Davis, for the appellants (defendants).

      Jonathan L. Gould, for the appellee (plaintiff).
   Foti, J.

In 1987, the plaintiff, Andrew Schick, filed a workers’ compensation claim after suffering a myocardial infarction claimed to be caused by on-the-job stress. After formal hearings, first district commissioner A. Paul Berte issued a finding and decision on June 5,1990, that the condition was not work related. Schick appealed to the compensation review board on June 15, 1990. In July, 1990, while the appeal was pending, Berte resigned.

In February, 1991, the plaintiff filed a motion to correct the commissioner’s findings, and, in March, 1991, filed a motion with the board for an order remanding the matter for a hearing de novo; he claimed that Berte was unwilling to act on his motion to correct. The defendants objected and requested the appointment of an alternate commissioner to act on the motion to correct.

On February 16, 1993, the board ordered the matter remanded to the first district so that the plaintiff could have the option of either a hearing de novo or, if the parties agreed, the submission of evidential transcripts and exhibits of the hearing together with the commissioner’s findings and the plaintiff’s motion to correct to another commissioner for completion. The defendants appealed from that order on March 5, 1993.

The defendants claim that the board improperly remanded the matter, and improperly refused to designate a substitute commissioner pursuant to General Statutes (Rev. to 1991) § 31-281.

Before addressing the merits of this claim, we briefly turn our attention to the standard of review. Whether a case should be remanded, and the scope of that remand, presents questions to be determined by the compensation review board in the exercise of its sound discretion. See Tsoukalas v. Bolton Mfg. Co., 130 Conn. 658, 663, 37 A.2d 357 (1944). “In reviewing a claim that this discretion has been abused the unquestioned rule is that great weight is due the action of the [board] and every reasonable presumption should be given in favor of its correctness. . . . [T]he ultimate issue is whether the [board] could reasonably conclude as it did. . . .” (Citations omitted; internal quotation marks omitted.) Rullo v. General Motors Corp., 208 Conn. 74, 78-79, 543 A.2d 279 (1988). The action of the board is not to be disturbed unless it has abused its broad discretion. Weldon Business Group v. Schweitzer, 22 Conn. App. 552, 554, 577 A.2d 1126 (1990).

Our review of the record discloses that the compensation review board, citing its own prior holdings, and Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378, 615 A.2d 507 (1992), and Kasarauskas v. McLaughlin, 25 Conn. Sup. 60, 196 A.2d 118 (1963), concluded that due process required the remand as ordered, as it had no authority pursuant to General Statutes § 31-278 to compel the retired commissioner to act. The defendants argue, however, that the board had another alternative and abused its discretion by ordering a remand rather than designating a substitute commissioner pursuant to § 31-281. We do not agree.

The board decided this case by ordering the remand more than one year after the repeal of § 31-281. The provisions of § 31-281 were procedural. While we may agree that the repeal of § 31-281 does not operate retrospectively, it is clear that the repeal of that section occurred prior to the board’s decision and that as of the date of the decision the board could not rely on the procedures as set forth therein. The appeal is from the board’s decision, and not from any action or inaction prior to that decision.

The defendants further argue that, because General Statutes § 51-183Í permits the designation of a substitute commissioner, the board’s remand constituted an abuse of discretion. Again, we do not agree.

Although there is no requirement that the same judge rule on all matters arising after a judgment; Holcombe v. Holcombe, 22 Conn. App. 363, 365, 576 A.2d 1317 (1990); and § 51-183Í “authorizes further proceedings before another judge where the original trial judge is unable to complete proceedings due to . . . resignation”; Stevens v. Hartford Accident & Indemnity Co., supra, 29 Conn. App. 384; the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard the matter, and a deprivation of that right may be a denial of due process. Id. Section 51-183Í permits a successor judge to act absent a stipulation by the parties to a decision by a successor judge based on a review of the evidence before the original judge. See Nahas v. Nahas, 25 Conn. App. 595, 597 n.1, 595 A.2d 926 (1991).

The plaintiff’s motion to correct findings is extensive, seeking to delete paragraphs twenty-four through twenty-seven of the findings and to substitute twenty paragraphs of findings. In response to the plaintiffs motion for order to remand for a new hearing, the defendants filed their objection and claimed, inter alia, that § 31-281 vested the board with authority to designate an alternate commissioner. The objection cites only § 31-281 and not § 51-1831 The motion to correct deals not only with the plaintiffs testimony, but also with the testimony of his attending physician, Robert Silverstein, and that of his evaluating physician, Gordon Kritzer. Additionally, the plaintiff’s motion dealt with the testimony of the defendants’ expert witness, James E. Dougherty, a physician. The board was aware that the commissioner who decided the matter had heard and saw the witnesses, and that the issue of credibility was of great importance in his decision. The board acted to fulfill the due process requirement that “ ‘[t]he one who decides must hear.’ ” Trotta v. Board of Education, 32 Conn. App. 395, 401 n.2, 628 A.2d 1343, cert. denied, 227 Conn. 922, 623 A.2d 700 (1993), quoting Morgan v. United States, 298 U.S. 468, 481, 56 S. Ct. 906, 86 L. Ed. 1288 (1936).

The defendants have not sustained their burden of demonstrating that the board abused its discretion in ordering a remand under these circumstances for a trial de novo, or “if the parties agree to submit the . . . transcripts and exhibits . . . together with [the] Finding and Award and the . . . motion to correct to . . . another commissioner . . . for completion.” The defendants also did not sustain their burden of demonstrating, absent the agreement of the parties, that the board abused its discretion in failing to designate a substitute commissioner who had not heard the evidence, to decide the plaintiffs motion to correct the findings of the commissioner who did hear the evidence.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The defendants are Windsor Airmotive Division/Barnes Group Inc. (employer), and Travelers Insurance Company (insurer).

       The plaintiff moved to dismiss the appeal for lack of a final judgment. The plaintiff’s motion was denied. Schick v. Windsor Airmotive Division/Barnes Group, 31 Conn. App. 819, 627 A.2d 478 (1993).

       Prior to January 1,1992, General Statutes § 31-281 provided: “The compensation commissioners for the several districts, acting as a board, may, in the event of the death, illness, resignation or disqualification of a commissioner of any district, designate another commissioner to act in any compensation matter in such district, and any commissioner acting under such designation shall have the same jurisdiction and powers as the commissioner for such district.” That section was repealed by Public Acts 1991, No. 91-339, § 53. Section 55 of that act provided that § 53 would take effect on January 1, 1992.

       General Statutes § 31-278 provides in pertinent part: “Any compensation commissioner, after ceasing to hold office as such compensation commissioner, may settle and dispose of all matters relating to appealed cases, including correcting findings and certifying records, as well as any other unfinished matters pertaining to causes theretofore tried by him, to the same extent as if he were still such compensation commissioner.” (Emphasis added.)

       General Statutes § 51-183Í provides: “If the term of office of any judge of the superior court expires during the pendency of any proceeding before him, or if any judge of the superior court is retired because of a disability, dies or resigns during the pendency of any proceeding before him, any other judge of that court, upon application, shall have power to proceed therewith as if the subject matter had been originally brought before him.”

      “[U]ponthe . . . resignation oí a judge of the Superior Court during the pendency of a trial or hearing to the court, a successor judge should take the following steps pursuant to the authority granted by 5 51-1831': (1) become familiar with the entire existing record, including, but not necessarily limited to, transcripts of all testimony and all documentary evidence previously admitted; (2) determine, on the basis of such record and any further proceedings as the court deems necessary, whether the matter may be completed without prejudice to the parties; (3) if the court finds that the matter may not be completed without prejudice to the parties it should declare a mistrial, but if the court finds that the matter may be completed without prejudice to the parties then; (4) upon request of any party, or upon the court’s own request, recall any witness whose testimony is material and disputed and who is available to testify without due burden; (5) take any other steps reasonably necessary to complete the proceedings; and (6) render a decision based on the successor judge’s own findings of fact and conclusions of law.” Stevens v. Hartford Accident & Indemnity Co., supra, 29 Conn. App. 386.

       In their preliminary statement of issues, the defendants claim that the board improperly (1) refused to grant their motion to designate a substitute commissioner pursuant to General Statutes § 31-281, (2) remanded the matter for a new hearing, and (3) applied its own precedents in ordering a remand. On March 26, 1991, the defendants filed a motion to designate an alternate commissioner, that was also based solely on § 31-281 and not on § 51-1831

       The defendants have not relied on General Statutes § 31-301 (c) to challenge the power of the board to order a remand. General Statutes § 31-301 (c) provides in pertinent part that “[u]pon the final determination of the appeal . . . the compensation review board shall issue its decision, affirming, modifying or reversing the decision of the commissioner. . . .” We note that while the statute expresses no provision for ordering a remand, no one has claimed that there has been a “final determination of the appeal,” and that is because of the presence of the motion to correct that has not been acted on.


text:
    Middlesex Insurance Company v. Thomas Rady, Administrator (Estate of Audrey Rady)
    (11941)
    Dupont, C. J., Lavery and Schaller, Js.
    Argued December 10, 1993
    decision released June 3, 1994

      Dan E. LaBelle, for the appellant (plaintiff).

      Frederick M. Vollono, for the appellee (defendant).
   Schaller, J.

The sole issue reserved for our advice in this case is whether public policy precludes an automobile insurer from excluding from uninsured motor ist coverage a resident family member who owns a vehicle. Following an arbitration award favoring the defendant, the plaintiff insurance company filed an application in Superior Court to vacate the award. By agreement, the parties reserved the question for the advice of this court pursuant to Practice Book § 4146 et seq. We answer the reserved question in the negative.

The parties stipulated to the relevant facts. On May 19, 1986, Audrey Rady was killed in an automobile accident while riding as a passenger in a vehicle owned by a friend. At the time of the accident, the decedent owned a car and was insured under a policy with Royal Insurance Company. She lived with her parents, Thomas and Dolores Rady, in their home. Thomas Rady owned two vehicles, both of which were insured under policies with Middlesex Insurance Company (Middle-sex). These policies provided for uninsuredunderinsured motorist coverage in the amount of $500,000 for each car. Thomas Rady, administrator of Audrey Rady’s estate, is attempting to collect damages under these policies.

I

A

The defendant contends that the language in the Middlesex policy that excludes from coverage resident relatives who own vehicles conflicts with public policy and, therefore, is invalid. General Statutes § 38a-336 (a) (1) provides in pertinent part, “[e]ach automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage . . . for the protection of persons insured thereunder . . . .” The defendant bases its argument on this language. Our Supreme Court has stated that the phrase “persons insured thereunder” refers to those persons listed in the liability section of the insurance policy. Middlesex Ins. Co. v. Quinn, 225 Conn. 257, 264, 622 A.2d 572 (1993). The court in Quinn indicated that an insurance policy would violate public policy only if that policy denied uninsured motorist coverage to a person who would “otherwise qualify as [an insured] for liability purposes.” Id., 264-65.

The Middlesex policy describes “persons insured thereunder” as the person named on the declarations page of the policy (Thomas Rady), that person’s husband or wife (Dolores Rady) if a resident of the same household, and a family member who resides in the household who does not own a car or whose spouse does not own a car. A plain reading of this policy language indicates that Audrey Rady, a resident relative who owns a car, is not a person insured under the Middle-sex policy. Therefore, the policy does not conflict with public policy because it does not deny uninsured motorist coverage to a person who is otherwise insured under the policy.

Our Supreme Court has twice rejected contentions similar to those of the defendant. Middlesex Ins. Co. v. Castellano, 225 Conn. 339, 623 A.2d 55, (1993); Middlesex Ins. Co. v. Quinn, supra, 225 Conn. 257. In Quinn, the defendant was in an automobile accident while driving his vehicle. The defendant attempted to recover damages under a Middlesex policy issued to his father that contained language identical to that of the policy in this case. The defendant contended that the insurance policy conflicted with public policy by excluding from coverage a resident relative who owned a car. The Supreme Court rejected this argument and held that the policy language did not violate public policy. Middlesex Ins. Co. v. Quinn, supra, 257. In Castellano the defendant was injured while a passenger on a motorcycle struck by a vehicle that left the scene. After exhausting his own insurance, the defendant attempted to recover under the Middlesex insurance policies of his sister and father, but was denied coverage because he owned a vehicle and, thus, was not a named insured under the policy. Our Supreme Court, citing Quinn, rejected the defendant’s contention that the Middle-sex policy contravened public policy. Middlesex v. Castellano, supra, 340.

B

The defendant argues that the present case is distinguishable from Quinn and Castellano. We do not, however, find this argument compelling. The defendant contends that the policy at issue here, as well as the claim itself, came into being after the enactment of No. 85-13 of the 1985 Public Acts (now codified as General Statutes § 38a-335 [d]). The automobile accidents from which the claims arise in both Quinn and Castellano preceded that statute. The pertinent portion of that act provides that “[w]ith respect to the insured motor vehicle, the coverage afforded under the bodily injury liability and property damage liability provisions in any such policy shall apply to the named insured and relatives residing in his household unless any such person is specifically excluded by endorsement.” The defendant contends that this statute invalidated the language in the Middlesex insurance policy.

“ ‘When language used in a statute is clear and unambiguous, its meaning is not subject to modification or construction.’ Cilley v. Lamphere, 206 Conn. 6, 9-10, 535 A.2d 1305 (1988). Absent ambiguity, the courts cannot read into statutes, by construction, provisions that are not clearly stated. Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984).” Battersby v. Battersby, 218 Conn. 467, 470, 590 A.2d 427 (1991). The language of Public Acts 1985, No. 85-13, is clear and unambiguous, and begins with the reference: “With respect to the insured motor vehicle . . . .” Thus, the provisions of that statute relate solely to the insured vehicle. The statute does not purport to declare what persons must be insured for other purposes under an insurance policy, only that, for purposes of the insured motor vehicle, resident relatives must be covered.

This act does not make Audrey Rady a person who would “otherwise qualify as [an insured] for liability purposes.” Excluding her from coverage, therefore, does not contravene public policy. Middlesex Ins. Co. v. Quinn, supra, 264-65. If the policy excluded from coverage a resident relative who was operating an insured vehicle, a public policy issue would be raised. The present case does not involve any vehicle insured under the Middlesex policy and, therefore, is not affected by No. 85-13 of the 1985 Public Acts.

II

The defendant’s final three arguments are equally unpersuasive. The first is that the clause in the Middlesex policy that excludes resident relatives who own vehicles from coverage is an “other insurance” clause, prohibited by Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 370 A.2d 1006 (1976).' In Pecker, the plaintiff was covered by two policies. Id., 445. The defendant attempted to limit the plaintiff’s coverage through an “other insurance” clause. Our Supreme Court struck down the clause on the ground that a policy may limit liability only in accordance with the state regulations. Id., 450-51. The clause in the Middlesex policy is not an “other insurance” clause because such a clause assumes that the claimant is an insured under the policy. Because Audrey Rady was not an insured under the Middlesex policy, the clause does not limit her recovery. There was no coverage to limit.

The second argument is that the exclusion in the Middlesex policy acts as an antistacking clause, which the Supreme Court has declared invalid. There is no public policy favoring stacking. See, e.g., Covenant Ins. Co. v. Coon, 220 Conn. 30, 31 n.2, 594 A.2d 977 (1991); Farm & City Ins. Co. v. Stevens, 215 Com. 157, 161-62, 574 A.2d 1300 (1990); Allstate Ins. Co. v. Lenda, 34 Conn. App. 444, 642 A.2d 22 (1994). The exclusion does not violate any so-called public policy favoring stacking.

The defendant’s final argument is that the vehicle oriented coverage limitation is inconsistent with the personal and portable nature of uninsured motorist coverage. This argument also fails to recognize that the plaintiff is not an insured under the Middlesex policy. The uninsured motorist coverage in the Middle-sex policy is, in fact, person oriented. It covers persons insured under the policy for injuries that they receive when involved in an accident with an uninsured motorist. Simply because the policy excludes a resident relative who owns a vehicle does not transform the coverage into vehicle oriented coverage.

We conclude that the present case is controlled by our Supreme Court’s decisions in Quinn and Castellano, and that the intervening Public Act does not affect that result.

To the question in the reservation, we answer no.

No costs will be taxed to either party.

In this opinion the other judges concurred.

       The policy language at issue is contained in the “definitions” section of the Middlesex policy, and reads: “You, your, yourself also means a member of the family who is a resident of the household and who doesn’t own a car or whose spouse doesn’t own a car.”

       The plaintiff further argues that the Supreme Court of Minnesota, when faced with a similar factual situation, held that the insurance policy language at issue violated Minnesota law in Anderson v. Illinois Farmers Ins. Co., 269 N.W.2d 702 (Minn. 1978). The eourt determined in that case that an insurance policy that excludes from coverage resident relatives who own vehicles contravenes Minnesota law. Id. We find this argument unpersuasive. The Minnesota statute that requires insurance policies to cover resident relatives unless specifically excluded by endorsement differs, in a crucial aspect, from General Statutes § 38a-335 (d). The Supreme Court of Minnesota relied on this language in its decision, as well as on a complicated mesh of Minnesota law that will not be discussed here.

       The other insurance clause in the Aetna policy stated in part, “ ‘[I]f the Insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance . . . ” Pecker v. Aetna Casualty & Surety Co., supra, 171 Conn. 445.


author: Per Curiam.

text:
    Robert Cioffoletti et al. v. Planning and Zoning Commission of the Town of Ridgefield et al.
    (12691)
    Dupont, C. J., Foti, Laveey, Landau and Schaller, Js.
    Considered February 3
    decision released June 3, 1994

      Thomas W. Beecher, in favor of the motion.

      Melvin J. Silverman, in opposition to the motion.
   Per Curiam.

The plaintiffs, Robert and Catherine Cioffoletti, have filed a motion for review of the trial court’s decision granting the motion filed by the defendant planning and zoning commission of the town of Ridgefield (commission) to correct the judgment file. The plaintiffs had filed an appeal from the denial of their motion for contempt that was based on the commission’s alleged failure to comply with the judgment sustaining their prior appeal. The commission filed a motion to dismiss the plaintiffs’ appeal as moot in light of the trial court’s correction of the judgment file. The central question raised by the motion for review and the motion to dismiss the appeal is whether the trial court properly corrected a clerical error in a judgment file after the expiration of the four month period to open judgments. We conclude that the trial court’s action was clerical; therefore, the motion for review is granted but any relief is denied, and the motion to dismiss the appeal as moot is granted.

This case was previously before this court. The plaintiffs brought an administrative appeal from the commission’s amendment of its zoning regulations to add a new section. That provision, § 306, would have required the plaintiffs to obtain a special permit to continue the lawful nonconforming use of their property for gravel mining operations. In 1990, the trial court, West, J., held that § 306.0.H. of the Ridgefield zoning regulations exceeded the accepted policy of preventing the extension of nonconforming uses and was an attempt to prohibit an established nonconforming use. This court affirmed that judgment. Cioffoletti v. Planning & Zoning Commission, 24 Conn. App. 5, 584 A.2d 1200 (1991). Subsequently, the defendant adopted another amendment to the same regulation.

On January 8,1993, the plaintiffs moved to have the commission found in contempt on the basis of the following statement in the original judgment file: “The Court finds the issues for the Plaintiffs.” The plaintiffs argued that the commission had adopted a regulation that again purported to require the plaintiffs to apply for a permit in order to continue a nonconforming use. The plaintiffs alleged that the adoption of such a regulation was contrary to and in contempt of the initial judgment of the trial court as evidenced by the judgment file and this court’s affirmance.

On June 11,1993, the trial court, McGrath, J., concluded that the judgment was accurately set out in the memorandum of decision and not in the judgment file prepared by the commission and signed by the clerk of the court. The court found, on the basis of the language of the memorandum of decision, that the commission was not in contempt because no court order had prohibited amendment of the regulation.

On June 14, 1993, the plaintiffs filed a petition for certification seeking to appeal from the trial court’s judgment. On July 7, 1993, this court dismissed the petition without prejudice to the plaintiffs’ filing a late appeal on or before July 28, 1993. The plaintiffs filed this appeal on July 26, 1993, challenging the trial court’s interpretation of the 1990 judgment.

On June 18, 1993, the commission filed a motion to correct the judgment file, claiming that it did not reflect the judgment as indicated in the memorandum of decision. On September 2, 1993, the commission filed a motion for rectification asking the trial court to correct the judgment to reflect that the other issues asserted by the plaintiffs were not decided in their favor and requesting resolution of the motion to correct.

On October 8,1993, the trial court, West, J., granted the commission’s motion to correct the judgment file to reflect the judgment of the court as stated in the memorandum of decision. In granting the motion to correct, the trial court relied on its initial memorandum of decision and on a memorandum issued by it in response to the commission’s request for articulation in the prior appeal. The court noted that, although the judgment file states that “ ‘[t]he Court finds the issues for the Plaintiffs,’ the Memorandum of Decision correctly represents the actual decision of the court, and that decision does not prohibit the defendant from enacting an amendment to section 306.O.H. Consequently, the defendant’s motion to correct the judgment file is granted.”

The plaintiffs timely filed this motion for review of the trial court’s decision on the motion to correct. Although the motion to correct in this matter was filed prior to the actual filing of the appeal, it was filed after the plaintiffs had filed their petition for certification, while it was pending, and before this court had dismissed the petition as unnecessary. After the appeal had been properly filed pursuant to this court’s order, the trial court issued its decision granting the motion to correct and the motion for review was filed. Limited to the unusual procedural circumstances of this case, this court will review the trial court’s decision on the motion to correct.

The plaintiffs contend that the trial court’s correction of the judgment file was improper because it occurred more than four months after the judgment entered and substantively altered a judgment affirmed by this court. They also claim that the trial court has improperly used an articulation to change the basis of the prior decision. See Koper v. Koper, 17 Conn. App. 480, 484, 553 A.2d 1162 (1989).

A trial court possesses the power to modify substantively its own judgment within four months succeeding the date on which it was rendered or passed. State v. Wilson, 199 Conn. 417, 437, 513 A.2d 620 (1986). A court may correct a clerical error at any time, even after the expiration of the four month period. Blake v. Blake, 211 Conn. 485, 495, 560 A.2d 396 (1989).

“In civil matters, the preparation of the judgment file is a clerical matter; the written judgment relates back to the filing of the memorandum.” State v. Nardini, 187 Conn. 109, 127, 445 A.2d 304 (1982). “A clerical error is a mistake or omission in a judgment which is not the result of the judicial function. Such a claimed error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court. 46 Am. Jur. 2d, Judgments § 202.” Ravizza v. Waldie, 3 Conn. App. 491, 493, 490 A.2d 90 (1985).

In this case, the judgment file did not accurately reflect the memorandum of decision of the trial court and the unchallenged articulation of that decision in the prior appeal. The original decision of the trial court dated March 16, 1990, stated that “section 306.0.H. is illegal because it attempts to prohibit an established nonconforming use. Inasmuch as this determination is dispositive of the instant appeal, a discussion of the other grounds raised by the plaintiffs is unnecessary. Consequently, the plaintiffs’ appeal is sustained.” The judgment file stated: “The Court finds the issues for the Plaintiffs.” An articulation by the trial court, filed within four months of its decision, stated that it “declined to hold that the entire section 306 of the Ridgefield zoning regulations is invalid.”

The trial court corrected the judgment file to reflect the substance of its memorandum of decision. Under these circumstances, the trial court’s correction of the judgment file was a clerical function and not a substantive judicial change. The plaintiffs’ motion for review is granted but any relief is denied.

In light of our finding that the correction of the judgment file was proper, we conclude that the defendant’s motion to dismiss the plaintiffs’ appeal based on mootness should be granted. The plaintiffs’ motion for contempt relied on the language of the original judgment file indicating that all issues were decided in their favor. The basis for the plaintiffs’ motion and their arguments in support of their appeal have been rendered moot. This court can give no practical relief in these circumstances and, accordingly, the defendant’s motion to dismiss is granted. Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 (1944).

The appeal is dismissed as moot.

       Practice Book § 326 provides in pertinent part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed.”

       The plaintiffs were not required to file a petition for certification in this matter because the appeal was taken from the denial of a motion for contempt and not from a zoning decision requiring certification pursuant to General Statutes § 8-8.

       The trial court also granted the motion for rectification. No motion for review was filed concerning the granting of the motion for rectification.

       Notice of the trial court’s decision to grant the motion to correct was issued on October 12, 1993. The motion for review was filed October 19, 1993. Pursuant to Practice Book § 4053, a motion for review of any order relating to the perfecting of the record for the appeal shall be filed within ten days from the issuance of notice of the order sought to be reviewed.

       The memorandum of decision dated July 31, 1990, stated in pertinent part that “the court has declined to hold that the entire section 306 of the Ridgefield zoning regulations is invalid. The court’s holding that section 306.O.H. is illegal has been dispositive of plaintiffs’ appeal; therefore, a discussion of the validity of other subsections of section 306 is unnecessary.”


text:
    State of Connecticut v. Zulfi Strikcani
    (12242)
    Lavery, Heiman and Schaller, Js.
    Argued March 24
    decision released June 14, 1994

      Richard M. Marano, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (l). The defendant claims that the trial court improperly failed to set aside the jury verdict because (1) the jury found the defendant guilty of assault in the second degree as a lesser offense included in the offense of assault in the first degree, while finding the defendant not guilty of the lesser included offenses of assault in the third degree and disorderly conduct, and (2) the jury disregarded the court’s “acquittal first” instruction. The defendant seeks review of both unpreserved claims under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because the defendant does not satisfy the first prong of the Golding analysis with respect to either claim, we affirm the judgment of the trial court.

The defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The jury found the defendant not guilty of the charged offense, but found the defendant guilty of the lesser included offense of assault in the second degree. Upon inquiry of the court as to the disposition of the other lesser included offenses, the jury foreperson responded that the defendant was not guilty of the lesser included offenses of assault in the third degree and disorderly conduct.

To obtain review of these claims the defendant must satisfy all four of the conditions enunciated in State v. Golding, supra, 213 Conn. 239-40. The four conditions are as follows: “(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.” Id. We conclude that the defendant’s claims fail to meet the first prong of Golding,

Our Supreme Court has stated in Golding that, “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id., 240. The record in this case does not provide an adequate basis for reviewing either of the defendant’s claims. It is insufficient to determine whether the jury disregarded the trial court’s instructions and continued deliberations after finding the defendant guilty of assault in the second degree, or if the jury foreperson was simply responding to the inquiry of the court regarding the two lesser included offenses with a verdict of not guilty because the jury did not deliberate these charges. The record is insufficient, as well, to determine whether the jury followed or disregarded the “acquittal first” instruction. To make such determinations, it would be necessary to remand the case to the trial court for further findings of fact. Because the first prong of the Golding analysis was designed to avoid just such a situation, a remand would be inappropriate. State v. Torres, 31 Conn. App. 443, 448-49, 625 A.2d 239 (1993).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”

       An “acquittal first” instruction requires the jury unanimously to find the defendant not guilty of the greater offense before it may consider a lesser included offense. See State v. Sawyer, 227 Conn. 566, 582, 630 A.2d 1064 (1993).

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument >>

       We note that when a jury is instructed regarding lesser included offenses and it returns a verdict of guilty, either to the charged offense or to any lesser included offense, the inquiry by the court is to cease regarding any other lesser included offenses. See generally 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 4.6, p. 118.

       It is therefore unnecessary to examine the remaining conditions as a claim must meet all four prongs in order to prevail. State v. Golding, supra, 213 Conn. 239-40.


text:
    State of Connecticut v. Andrew Robins
    (11321)
    Foti, Lavery and Freedman, Js.
    Argued February 23
    decision released June 14, 1994

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

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Barbara Nelson, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of larceny in the first degree in violation of General. Statutes §§ 53a-119 and 53a-122 (a) (4), and making a false statement in violation of General Statutes § 53a-157 (a). The defendant asserts that the trial court improperly (1) denied his motion for acquittal because the state did not present sufficient evidence to sustain either of the two convictions, (2) instructed the jury on the issues of reasonable doubt and larceny, and (3) instructed the jurors that they could discuss the personalities and the charges with family and friends while the case was in progress. We agree with the third claim of the defendant and remand the matter for an evidentiary hearing.

The jury reasonably could have found the following facts. On December 5,1989, the defendant applied for welfare assistance with the town of Fairfield, and was interviewed by caseworker Marcia Salko. In seeking a total financial disclosure, Salko asked the defendant about all of his assets such as bank accounts and property, along with any and all other pertinent information relative to his financial status for the past two years. The defendant was informed that he was required to declare all assets and to report any changes while on assistance. He was told that a failure to declare assets or to report any changes could result in penalties. The defendant furnished information, which Salko recorded on the application form, and both parties signed the form. Because the defendant had indicated that he had a bank account at the Connecticut National Bank, he was required to provide verification to Salko. The defendant returned four days later, without verification, and maintained that Salko had misunderstood him previously and that the bank account had been closed sometime between three and six months earlier. Upon that representation, Salko checked off the “no” column that referred to bank accounts and wrote “Bank closed it 3-6 months ago.” There being no further verification required at that time, the defendant was granted assistance.

On February 7,1990, pursuant to an inquiry, the Connecticut National Bank reported that the defendant had an active account with a current balance of $702.03, and that on December 20, 1989, he had therein a balance of $3336. On February 27, 1990, at a “redetermination” meeting with Salko, the defendant indicated that the money had come from an insurance settlement on a fire in his home. He was asked to provide verification and agreed to do so. He continued to receive assistance. The defendant would not have been eligible for assistance had he disclosed the existence of the bank account balance, but might have been eligible if he had verified that the money came from an insurance settlement and had been spent to replace losses resulting from a fire. At no time did the defendant produce any adequate verification of the source of the money.

Sometime thereafter, the defendant furnished Salko with copies of two money orders, one for $3000 and the other, intended to replace the first, for $2500, dated August 14,1989, and December 28,1989, respectively. He said the money was for the purchase of land in Jamaica. The defendant also held title to two automobiles, a 1979 Honda, registered to the defendant between December 27,1988, and December 12,1989, and, a 1977 Datsun registered to the defendant between February 21, 1990, and December 31, 1992. He reported neither. The defendant’s assistance was terminated by the town of Fairfield on April 30,1990, when he qualified for social security and state supplemental assistance.

I

Sufficiency of the Evidence

The defendant first claims that the evidence presented was insufficient to sustain either conviction. The defendant further claims that even if there was sufficient evidence of larceny, it was sufficient only to sustain a conviction for larceny in the second degree.

A

The defendant posits that there was insufficient evidence of larceny because the state did not show that he received assistance to which he was not entitled. He argues that the state had the burden of proving not only that he made false statements in order to obtain assistance and that he received the assistance sought, but that he would have been ineligible for assistance had he not made the false statements. We do not agree.

“This court’s role in evaluating the sufficiency of the evidence in a jury trial is well established. We first construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found upon the facts established and the inferences reasonably drawn therefrom, that a cumulative effect of the evidence established guilt beyond a reasonable doubt. . . .” (Citations omitted; internal quotation marks omitted.) State v. Fields, 31 Conn. App. 312, 326-27, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d. 989 (1993), quoting State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993). While a jury may not resort to speculation and conjecture, it may draw reasonable and logical inferences. State v. King, 216 Conn. 585, 601, 583 A.2d 896 (1990).

The defendant was specifically charged with “larceny of the property of the town of Fairfield . . . [that] was obtained by defrauding the said town and the value of said property exceeds two thousand dollars” in violation of General Statutes § 53a-122 (a) (4), which defines larceny by reference to § 53a-119. General Statutes (Rev. to 1989) § 53a-119 (6) (1) (now § 53a-119 [6] [A]) defines a person who commits larceny as it applies to defrauding a public community as one who “files a claim for benefits or reimbursement from a local . . . agency which he knows is false . . . .” This section does not contain the phrase, as the defendant argues, “to which he was not entitled.” Although the state must prove a wrongful taking, obtaining or withholding, we cannot conclude from this that the state must also specifically prove a lack of entitlement.

The defendant would have us impose a burden of proof on the state not required by the statute. He argues that “but for” the false statement he might have been eligible for assistance and, therefore, the state must prove beyond a reasonable doubt that he was not entitled to assistance absent the false statement. He claims that if the correct information had been provided, the state would have been able to determine the extent of his eligibility, if any. In other words, the defendant argues that the state was required to prove the dollar amount of the benefits to which he would have been entitled had he not falsified the claim.

In construing statutes, we look first to the statutory-language to ascertain the intent of the legislature. State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985). We are bound by the plain and ordinary meaning of that language, unless that language is unclear or ambiguous. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980).

As applied to this case, General Statutes (Rev. to 1989) § 53a-119 (6) (1) sets forth two elements of the offense of defrauding a public community: (1) the defendant must have filed a claim for benefits from the town of Fairfield, and (2) he must have done so knowing the claim to be false. “The specificity with which the . . . elements of defrauding a public community are set forth ‘connotes the legislative intent to exclude that which is not specifically stated.’ State v. Kish, 186 Conn. 757, 765, 433 A.2d 1274 (1982). . . .Thegravamen of the offense in such a case is the presentation of . . . a fraudulent claim. . . . If the legislature had intended that prejudice to the community was a prerequisite to conviction, it would have said so. ‘It is a general rule of statutory construction that penal statutes are not to be extended by inference or implication.’ 73 Am. Jur. 2d, Statutes § 297.” State v. Waterman, 7 Conn. App. 326, 337-38, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986) (actual loss or prejudice to town not required to be shown under § 53a-119 [6] [3], defining larceny by agent of public community). We conclude that General Statutes § 53a-119 does not require the state to establish specifically that the defendant was not entitled to receive assistance.

Evidence was presented that the defendant had unreported income and assets in the form of a bank account at times containing significant funds, two automobiles in his name, and income from his father and a friend. From this, the jury reasonably could have found or inferred facts establishing that the defendant had obtained welfare assistance by means of a false claim and that he knew that the claim was false, thus, proving the defendant’s guilt beyond a reasonable doubt. We conclude that the evidence was sufficient to sustain the conviction of larceny.

B

The defendant next argues that if sufficient evidence was presented to sustain a larceny conviction, it could sustain a conviction only for larceny in the second degree, because the state failed to prove that the amount was over $2000 as required for larceny in the first degree. The defendant argues that if Salko knew of the existence of an active bank account on February 7, 1990, any assistance from that date forward could not have been granted as a result of the defendant’s false representation that he did not have an active bank account. He argues that on February 7,1990, his “liability as to the amount fraudulently received terminated.”

During the trial, a letter written by Salko to the Fair-field police department regarding this matter was admitted into evidence without objection. The last sentence of that letter stated: “During the period of assistance, December 5, 1989, through April 30, 1990, [the defendant] was given $3985 in checks and $2098.57 was paid to medical providers on his behalf.”

The state’s case was predicated on the defendant’s false statements that he had no income or assets. When a bank account was discovered, the defendant stated, without verification, that an insurance settlement was the source of that asset. He failed to report ownership of two cars and income from an insurance payment. He did not report income from a friend that was intended to be used to buy land in Jamaica. On the basis of all of the evidence including the letter showing that the town paid over $6000, there was sufficient proof that an amount over $2000 was misappropriated by the defendant as required to establish larceny in the first degree under General Statutes § 53a-122 (a) (4).

C

The defendant next claims that the evidence was insufficient to sustain a conviction of making a false statement because the evidence of the defendant’s conduct presented by the state did not fall within the ambit of General Statutes § 53a-157. Specifically, the defendant argues that because he did not re-sign the application when he gave Salko the new information dealing with his bank account, four days after the initial interview, he did not “affirm” the misrepresentation. Therefore, he posits, he did not “make” a false written statement. We disagree.

The defendant’s claim presupposes that the only basis for conviction on this count was the allegations concerning the unreported bank account and funds. As discussed previously, there were several false statements claimed. For example, the defendant’s application stated that he had no income, had not transferred any assets during the last two years, and owned no motor vehicles. Evidence was presented that contradicted these statements. Neither the charging document, nor the court’s instruction, indicated a limitation of proof solely to the original statement that the defendant had no bank account. We conclude that the jury, viewing the entirety of the evidence, could have found that the defendant violated the provisions of § 53a-157. Sufficient evidence was presented within the ambit of the statute to sustain the conviction.

II

Instructions after Trial

The defendant next alleges that the trial court improperly instructed the jury on the issues of reasonable doubt and larceny.

A

The court charged that “[a] reasonable doubt is a doubt for which a valid reason can be assigned.” The defendant claims that this lessened the state’s burden of proof and shifted it to the defendant. The court also instructed that a reasonable doubt is not a doubt “suggested by the ingenuity of counsel or a juror, which is not warranted by the evidence.” The defendant also claims improper the court’s instruction that the court looks to the jurors, acting as “sworn officers of this court to deal fairly, honestly, and justly as strong-minded men and women with the interest placed in your hands as an arm of the court to aid in upholding the law of the land, and to render a verdict of guilty if the facts and the law require such a verdict.” Finally, he claims that it was improper for the court to instruct that the “law is made to protect society and innocent persons, and not [to] protect guilty ones.”

These claims were not raised below; the defendant seeks review under the Evans-Golding doctrine. Our Supreme Court has previously rejected challenges to the same or similar instructions. State v. Walton, 227 Conn. 32, 63-64, 630 A.2d 990 (1993); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993); State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992). Because the trial court’s instruction did not infringe on a clear constitutional right as required for the application of that doctrine, we will not review the defendant’s claim. State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1994).

B

The defendant also states that the trial court’s instructions on the larceny count were “intolerably incomplete and confusing” and improperly instructed the jury by omitting an essential element of the crime.

The defendant submitted written requests to charge, and noted his exception to the court’s failure to instruct the jury as requested. The defendant asserts that the state was required to prove that he was not entitled to assistance in order to establish that he committed larceny. As discussed in part I A, the state is not required to prove that the defendant would not have been entitled to assistance even if he had fully disclosed his financial situation. The trial court, therefore, did not improperly refuse to instruct as requested, as it was “not an essential element of the offense charged, and thus the trial court was not obligated to charge thereon.” State v. Taft, 25 Conn. App. 149, 154, 593 A.2d 973, cert. denied, 200 Conn 918, 597 A.2d 343 (1991).

C

The defendant further claims that the trial court’s instructions on larceny were not clear, accurate, complete and comprehensible. Even though this claim is unpreserved, the defendant asserts that it should be reviewed under Evans-Golding.

Our review of the charge in its entirety leads us to conclude that the defendant’s arguments on this issue are without merit. We find neither a clear violation of a fundamental constitutional right nor a deprivation of a fair trial arising out of the challenged instructions; therefore, the defendant cannot prevail on this unpreserved claim. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Ill

Instructions during Trial

Finally, the defendant claims that the trial court, when releasing the jury at the end of the first day, improperly instructed the jury that “when you go home and discuss [the case] with people that are living home with you, your husbands, your children, any other relative, what you can say is, you can discuss the personalities if you wish. You can discuss what the charges are. But you cannot discuss the evidence.” There was no objection to this instruction. The defendant seeks review under State v. Golding, supra, 213 Conn. 239-40, and also claims that it constitutes plain error. We agree that it rises to the level of plain error.

The state argues that the instruction was not improper since the “case” itself was not being discussed. See State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982) (juror’s discussion of her son’s schizophrenia similar to defendant’s did not amount to improper consideration of objective evidence extrinsic to case). The state argues that the evidence could not be discussed and, as the court later instructed, the evidence was all that the jury could consider in reaching a verdict. The state asserts that “the fact that no one heard the judge’s remark as wrong at the time of trial is a strong indication that it was not understood as allowing discussion of the case.” See State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).

Plain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Thomas, 214 Conn. 118, 120-21, 570 A.2d 1123 (1990). Our Supreme Court has stated that a trial court’s failure to follow the mandatory provisions of a statute prescribing trial procedures or to follow a procedural rule constitutes plain error. State v. Johnson, 214 Conn. 161, 171 n.10, 571 A.2d 79 (1990); State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981).

Practice Book § 850 provides in relevant part: “The judicial authority shall admonish the jurors not to read, listen to or view news reports of the case or to discuss with each other or with any person not a member of the jury the cause under consideration . . . .” The trial court specifically said that the jury might discuss the personalities and charges. The jury has the sole and absolute responsibility to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992). To allow a juror to “discuss” such topics is to invite the juror to be subject to an outside influence. A private talk is as likely as exposure to the news media to interfere with the exercise of deliberate and unbiased judgment of a juror. Because the jury is presumed to have followed the court’s instructions; State v. Glenn, 194 Conn. 483, 497, 481 A.2d 741 (1984); State v. Washington, 182 Conn. 419, 429, 438 A.2d 1144 (1980); some discussion by jurors may have occurred in this case. “Discuss” is defined as “to investigate by reasoning or argument.” Merriam-Webster’s Collegiate Dictionary (10th Ed.). It implies talking and response. The jurors may not discuss, even among themselves, the testimony and evidence prior to commencing deliberation. State v. Castonguay, 194 Conn. 416, 431-38, 481 A.2d 56 (1984). We must conclude that to allow “discussion” of “the charges” and “the personalities” violates Practice Book § 850 and is, therefore, plain error.

Our inquiry, however, does not end there. The state has the burden of demonstrating that the improper instructions were harmless beyond a reasonable doubt. Aillon v. State, 168 Conn. 541, 548, 363 A.2d 49 (1975). There is no record on which such a determination may be made. “ ‘The question is whether the misconduct [if any] is of such a nature that it probably rendered the juror unfair or partial.’ ” State v. Castonguay, supra, 194 Conn. 437. Therefore, we must remand the case to the trial court for an evidentiary hearing on harmless error. It is the state’s burden to demonstrate harmless error through an evidentiary hearing involving every juror. If the state cannot demonstrate harmlessness, a new trial is required.

The case is remanded for further proceedings consistent with this opinion. In the event that the state proves harmless error, the judgment is affirmed; in the event that the state is unable to prove harmless error, the judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to . . .
      “(6) Defrauding of public community. A person is guilty of defrauding a public community who (1) authorizes, certifies, attests or files a claim for benefits or reimbursement from a local, state or federal agency which he knows is false . . . .” General Statutes (Rev. to 1989) § 53a-119 (6) (1) through (3) are now codified at § 53a-119 (6) (A) through (C).

       General Statutes § 53a-122 (a) provides in pertinent part: “A person is guilty of larceny in the first degree when he commits larceny as defined in section 53-119 and ... (4) the property is obtained by defrauding a public community, and the value of such property exceeds two thousand dollars.”

       General Statutes § 53a-157 (a) provides: ‘ ‘A person is guilty of false statement when he intentionally makes a false written statement under oath or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable, which he does not believe to be true and which statement is intended to mislead a public servant in the performance of his official function.”

       Directly above the defendant’s signature, the application stated that, among other things, in signing the application, the defendant certified that all the statements made by him on the application were true and correct “under the penalty for false statement” and “subject to the penalties for larceny.”

       The defendant’s father did write a letter and testified at trial that the defendant had lost property in the fire, that he, the father, had given him a portion of the insurance proceeds, and that the defendant had spent the money to replace lost household items.

       The defendant testified that he received a check for $1500 from a friend so that the two might together purchase land in Jamaica. The defendant was to match the funds and issue a money order. Because of a correction in pricing, however, the defendant “contributed” only $1000. He testified that neither of the two money orders was ever negotiated and that he had reconsidered his participation in the project because of his health and financial difficulties. He testified that he intended to return his friend’s money, but that he was unable to locate him.

       On January 31,1989, the defendant had applied for and received assistance from the town of Trumbull. Although there was testimony that possible inaccuracies existed in the defendant’s Trumbull application, complete reimbursement was made to Trumbull through Social Security and the matter was not pursued.

       General Statutes § 53a-123 (a) (4).

       See General Statutes § 53a-122 (a) (4).

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

       The defendant’s request to charge on larceny in the first degree stated in pertinent part: “If you find that the defendant would have been entitled to the welfare payments in question even if the monies in the bank were disclosed as required, then you must find for the defendant and return a verdict of not guilty on the charge of larceny in the first degree. State v. Golding, 14 Conn. App. 272, 281 [541 A.2d 509, rev’d on other grounds, 213 Conn. 233, 567 A.2d 823 (1989)].”

       As part of our review of the entire instruction, we note that the trial court improperly instructed the jury that it was necessary for them to find that the defendant intended to prejudice the town when he filed the fraudulent claim. That intent is required under General Statutes (Rev. to 1989) § 53a-119 (6) (3) (now § 53a-119 [6] [e]) dealing with fraud by an officer or agent of the town. See State v. Waterman, supra, 7 Conn. App. 337. Since the improper instruction placed a higher burden on the state, the defendant benefited and may not prevail on this claim. State v. Pinnock, 220 Conn. 765, 787 n.8, 601 A.2d 521 (1992).