author: WEST, J.

text:
    STATE OF CONNECTICUT v. RAMON S. BARKSDALE
    (AC 22056)
    Pellegrino, Bishop and West, Js.

      Argued April 29
    officially released September 2, 2003

      Sean K. Crowshaw, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Ramon S. Barksdale, appeals from the judgment of conviction, rendered after a trial to the jury, of three counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), three counts of risk of injury to a child by committing an act that was likely to impair the health and morals of a child in violation of General Statutes (Rev. to 1997) § 53-21 (1), and three counts of risk of injury to a child by having contact with the intimate parts of a child younger than sixteen years of age in violation of General Statutes (Rev. to 1997) § 53-21 (2). The defendant received a total effective sentence of twenty years in prison. On appeal, the defendant claims that (1) he was denied the right to a fair trial because the court failed to instruct the jury on every element of the crime of risk of injury to a child pursuant to § 53-21 (2) and (2) twenty years incarceration for the commission of a class C felony is an illegal sentence. We conclude that the court’s jury instruction did not deprive the defendant of a fair trial, but that he was illegally sentenced.

The jury reasonably could have found the following facts. In January, 1998, the victim was thirteen years old and an eighth grade student. At that time, the victim began to attend a therapeutic program at a hosptial during the afternoons. The defendant was the operator of a large van that enabled the victim and others to travel to the hosptial. He called for the victim at her school at noon. He also conveyed the victim from the hospital to her home after 5 p.m. The defendant, who was twenty-eight years old, and the victim got to know one another. He told her about his family, showed her his tattoos, and played basketball with her and the other students.

The defendant did not always take the victim directly to the hospital from school. On the first occasion, the defendant deviated from the established route by purchasing cigarettes, driving to a beach and inquiring of the victim whether she smoked marijuana. After the two of them smoked marijuana, they called for the other students. The defendant provided the victim with marijuana on at least two more occasions.

At some time during January, 1998, the victim asked the defendant whether he would have sexual relations with her. After hesitating initially, the defendant agreed. That evening after taking the other students home, the defendant took the victim to the parking lot of a hotel and had vaginal intercourse with her. Twice more, after first taking the other students home, the defendant took the victim to a secluded location and engaged in vaginal intercourse with her.

After receiving telephone calls from the parents of two of the victim’s friends, the victim’s mother withdrew the victim from the program at the hospital. The victim had confided her relationship with the defendant to two of her friends, but at first denied the relationship to her parents, to officials at the hospital and to the police. Approximately one year later, the victim admitted that the defendant had given her marijuana and had had sexual intercourse with her on three occasions. The defendant denied having had sexual relations with the victim and having given her marijuana. Thus, the question for the jury to decide was one of credibility. Other facts will be discussed as necessary.

I

The defendant’s first claim is that the court, McKeever, J., deprived him of the right to a fair trial by failing to instruct the jury on all of the elements of § 53-21 (2). Specifically, he claims that the court failed to instruct the jury that to find the defendant guilty of risk of injury to a child under subdivision (2) of the statute, it had to find that he had had contact with the intimate parts of the victim in a sexual and indecent manner. He also claims that the court instructed the jury with respect to § 53-21 (1) rather than to § 53-21 (2). Because the defendant failed to preserve his claim at trial, he has asked us to review his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine set forth in Practice Book § 60-5. We conclude that although the court failed to instruct the jury on one of the elements of the statute, which is a clear constitutional violation; State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998); the error was harmless beyond a reasonable doubt and did not constitute plain error.

“Our Supreme Court’s standard of review regarding claims of improper jury instruction is well established. [A] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Davis, 76 Conn. App. 653, 677, 820 A.2d 1122 (2003).

“[A]n accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993). “It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . [T]he failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations omitted; internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 483-84, 668 A.2d 682 (1995).

“An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.” (Internal quotation marks omitted.) State v. Gallichio, 71 Conn. App. 179, 184, 800 A.2d 1261 (2002). “[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if ‘a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by the overwhelming evidence, such that the jury verdict would have been the same absent the error ....’” (Emphasis in original.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), quoting Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).

The following additional facts are relevant to our review of the defendant’s claim. In its amended information, the state charged the defendant in counts one, four and seven with sexual assault in the second degree, alleging in relevant part that he had engaged in sexual intercourse with the victim, who was a person thirteen years of age, but younger than sixteen years of age, and that he was more than two years older than she was, in violation of § 53a-71 (a) (1). In parallel counts three, six and nine, the defendant was charged with risk of injury to a child by having contact with the intimate parts of the victim, a child younger than sixteen years of age, in violation of § 53-21 (2). The jury had the amended information while it was deliberating.

The court instructed the jury as to the charges of sexual assault in the second degree, stating that § 53a-71a (1), “as it is pertinent to this case, provides that a person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is thirteen years of age or older, but under sixteen years of age, and the actor is more than two years older than such person.

“For you to find the defendant guilty of this charge, the state must first prove beyond a reasonable doubt that sexual intercourse has taken place. Sexual intercourse in this case means vaginal intercourse. Its meaning is limited to persons not married to each other, and penetration, however slight, is sufficient to complete vaginal intercourse and does not require the emission of semen.”

After the court instructed the jury on sexual assault in the second degree, it instructed the jury on the charges of risk of injury to a child in violation of § 53-21 (1), which pertained to the defendant’s having given the victim marijuana. Immediately thereafter, the court instructed the jury as follows relevant to the charges under § 53-21 (2): “This statute here, in pertinent part, reads, any person who does any act likely to impair the morals of a child under the age of sixteen years shall be punished. To find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: That at the time of the incident, the alleged victim was under the age of sixteen years, that the defendant did an act that was likely to impair the health or morals of the child and that the defendant had the general intent to perform such act.

“The conduct to be punished must involve a child under the age of sixteen. The statute also requires that the defendant did any act likely to impair the morals of the child. To establish that the defendant committed an act likely to impair the morals of a child, the state must prove beyond a reasonable doubt that the defendant acted in a sexual and indecent manner. The act itself must be done in a sexual and indecent manner. Innocent touching is not violative of the statute. It is not the act itself that is likely to impair the morals of the child, but the manner in which it is done. Therefore, the inquiry under this second provision is whether the defendant did any act in a sexual and indecent manner that was likely to impair the morals of the child. Again, however, the defendant need not have had the specific intent to impair the morals of the child, only the general intent to perform the sexual and indecent act.

“As used here, morals means good morals, living, acting and thinking in accordance with those principles and precepts which are commonly accepted among us as right and decent. The state must also prove beyond a reasonable doubt that the defendant had the general intent to perform such act. General intent is the intent to do that which the law prohibits. It is not necessary for the state to prove that the defendant intended the precise harm or the precise result which eventuated. In other words, general intent is at least an intention to make the bodily movement which constitutes the act which the crime requires. Therefore, where the definition of a crime requires some forbidden act by the defendant, in this case, an act likely to impair the morals of the child, the defendant’s bodily movement, to qualify the act, must be voluntary.” (Emphasis added.)

The charge failed to inform the jury that the state was required to prove that the defendant had contact with the intimate parts of the victim and failed to define intimate parts. General Statutes § 53a-65 (8) defines the term intimate parts as “the genital area, groin, anus, inner thighs, buttocks or breasts.”

For resolution of the defendant’s claim, we do not ignore the fact that the jury convicted the defendant of three counts of sexual assault in the second degree as a result of his having engaged in sexual intercourse with the thirteen year old victim. The jury, having found that the defendant had sexual intercourse with the victim, necessarily had to find, by exercise of its common sense, that he had had contact with her genital area. See State v. Davis, 255 Conn. 782, 795, 772 A.2d 559 (2001) (by virtue of finding defendant guilty of robbery in first degree and burglary in first degree, jury necessarily found defendant had committed class B felonies).

On appeal, the defendant does not contest the jury’s verdict on the primary issue in the case, which was whether he had engaged in sexual intercourse with the victim. In fact, in his brief, the defendant concedes that the jury found that he had contact with the victim’s intimate parts when it convicted him of sexual assault in the second degree. In making that concession, the defendant acknowledged that the issue of whether he had had contact with the intimate parts of the victim pursuant to the counts of the information alleging that he had violated § 53-21 (2) was uncontested and supported by the overwhelming evidence. The issue in the sexual assault count was whether the defendant had engaged in sexual intercourse with the victim, not the definition of intimate parts. See State v. Montgomery, supra, 254 Conn. 737-38.

In addition, the defendant has argued that because the court’s instruction that to find him guilty, the jury had to find that he had done an act that impaired the health or morals of the victim, it was not possible to lmow which act the jury found to be in violation of § 53-21 (2). The defendant notes that the state presented evidence that he had done a number of things of a sexual nature that did not involve contact with the victim’s intimate parts and that the jury could have found him guilty on the basis of those acts rather than on the basis of having had contact with the intimate parts of the victim. That argument is unavailing for two reasons. First, the court made reference to a touching in distinguishing an innocent touching from a touching that is sexual and indecent. The jury also had the amended information with it during deliberations. The relevant counts allege that the defendant had contact with the intimate parts of a child younger than sixteen years of age. The jury, therefore, was not possibly misled as to the sexual act to which the court was referring.

Within his claim of instructional error, the defendant also argues that even if he had had contact with the victim’s private parts, the state produced no evidence that the victim’s health or morals were impaired. The short answer to that argument is that the state did not have to prove that the victim’s health or morals were impaired. Section 53-21 provides in relevant part that “[a]ny person who ... (2) has contact with the intimate parts ... of a child ... in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.” (Emphasis added.)

The defendant has not challenged the court’s thorough instruction on the “likely to impair the health or morals” element of the statute, only the evidence to support the charge. When charging the jury on that portion of the statute, the court stated in relevant part: “To establish that the defendant committed an act likely to impair the morals of a child, the state must prove beyond a reasonable doubt that the defendant acted in a sexual and indecent manner. The act itself must be done in a sexual and indecent manner. Innocent touching is not violative of the statute. It is not the act itself that is likely to impair the morals of the child, but the manner in which it is done. Therefore, the inquiry under this second provision is whether the defendant did any act in a sexual and indecent manner that as likely to impair the morals of the child.” (Emphasis added.) The court then defined morals for the jury. It was for the jury to determine whether the defendant’s touching of the intimate parts of the victim was in accordance with the principles and precepts that are commonly accepted among us as right and decent.

We therefore conclude that the court’s improper jury instruction was harmless beyond a reasonable doubt, as the verdict was supported by overwhelming evidence. See State v. Montgomery, supra, 254 Conn. 738. It was not reasonably possible that the jury was misled by the court’s instruction on the charges alleged pursuant to § 53-21 (2). Furthermore, the improper instruction was not plain error. The instruction did not affect the fairness and integrity of or threaten to undermine the public’s confidence in our judicial system. Cf. State v. Hair, 68 Conn. App. 695, 705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).

II

The defendant’s second claim is that he was sentenced illegally under § 53a-71 (a) (1). The state concedes that the sentence was illegal. We agree.

The defendant’s claim is one of law, and our review is therefore plenary. See State v. Wall, 40 Conn. App. 643, 654, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1996). Subsequent to the verdict, the court, Rodriguez, J., sentenced the defendant. As to the defendant’s conviction of three counts of having violated § 53a-71 (a) (1), the court sentenced him to twenty years in the custody of the commissioner of correction, execution suspended after four years, with twenty years of probation on each of the three counts of sexual assault in the second degree. The sentences were to be served concurrently.. On appeal, the defendant claims that he was sentenced illegally under § 53a-71 (a) (1) because at the time he committed the assault, the violation of § 53a-71 (a) (1) was a class C felony for which the maximum period of incarceration was ten years. See General Statutes § 53a-35a (6). The defendant is correct.

The defendant has raised his claim for the first time on appeal. “Practice Book § 43-22 provides that ‘[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.’ ” State v. Constantopolous, 68 Conn. App. 879, 882, 793 A.2d 278, cert. denied, 260 Conn. 927, 798 A.2d 971 (2002).

“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictoiy. . . . The remedies available for correcting an illegal sentence include reconstructing the sentence to conform to its original intent or to the plea agreement, eliminating a sentence previously imposed for a vacated conviction or resentencing a defendant if it is determined that the original sentence was illegal.” (Citations omitted; internal quotation marks omitted.) Id. Because the defendant was sentenced illegally, we remand the case to the trial court for resentencing.

The judgment is reversed only as to the sentence on the conviction of three counts of having violated § 53a-71 (a) (1) and the case is remanded for resentencing according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interest of the victims of sexual abuse, we decline to identify the victim or others through whom her identity may be ascertained. See General Statutes § 54-86e.

       Judge McKeever, now deceased, became ill during jury deliberations and was unable to continue. Judge Ford accepted the jury’s verdict.

       General Statutes (Rev. to 1997) § 53-21 provides: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child, shall be guilty of a class C felony.”

       “[A] defendant can prevail onaclaim of constitutional errornotpreserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The remainder of the court’s instruction on sexual assault in the second degree was as follows: “If you find the required sexual intercourse has been proven beyond a reasonable doubt, you must next determine whether the following additional element exists beyond a reasonable doubt, that the victim was thirteen years of age or older, but under sixteen years of age, and the actor, meaning the defendant, was more than two years older than such person at the time this offense was committed. If you find that the state has proven the elements of this crime beyond a reasonable doubt, you will find him guilty of this count. If you do not so find, you will find him not guilty.”

       In Montgomery, the jury convicted the defendant of murder and felony murder. State v. Montgomery, supra, 254 Conn. 697. The state also had charged the defendant under General Statutes § 53-202k with using a firearm during the commission of a class A, B, or C felony. State v. Montgomery, supra, 697. The trial court determined that the defendant had violated § 53-202k by using a firearm during the commission of a murder. Id. On appeal, the defendant claimed that it was improper for the court to have failed to instruct the jury on the elements of § 53-202k. Id., 698. Although our Supreme Court agreed that the jury should have been instructed on the elements of § 53-202k in accord with State v. Velasco, 253 Conn. 210, 751 A.2d800 (2000), which was decided while the appeal in Montgomery was pending, the court concluded that the trial court’s failure to instruct was harmless beyond a reasonable doubt. State v. Montgomery, supra, 738. The information alleged that the defendant had caused the death of the victim by use of a firearm; id., 737; and the defendant did not contest that the victim had been shot in the head, only that the defendant was not the shooter. Id., 738. Our Supreme Court concluded that the jury, in convicting the defendant of murder, a class A felony, necessarily found that he had violated § 53-202k. Id., 737.

       For example, the defendant refers to evidence that he threw a used condom out the window of the van.

       At trial and on appeal, the defendant has not claimed that the evidence was insufficient to convict him other than to make the bald assertion that the state produced no evidence that the victim’s health or morals were impaired. In making his claim in this court, the defendant has provided no law or legal analysis to support his claim. We are not required to review claims that are inadequately briefed. See Middletown Commercial Associates Ltd. Partnership v. Middletown 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996).

       In making his plain error argument, the defendant relied in large measure on Hair, the facts of which are distinguishable from those involved in the claim of an improper jury charge in this case. In Hair, the defendant was charged with violation of General Statutes § 53a-217c, but the court instructed the jury on General Statutes § 53a-217. State v. Hair, supra, 68 Conn. App. 703. Here, the jury necessarily found that the defendant had touched the intimate parts of the victim when it convicted him of sexual assault in the second degree. In Hair, the jury did not make an implicit finding of fact on an element of the crime with which the defendant was charged. Id., 704. Consequently, Hair does not apply to facts here.

       Judge Rodriguez was substituted as the trial court for postverdict proceedings.

       For informational purposes only, we note that in 2002, the legislature amended subsection (b) of General Statutes § 53a-71 to change the classification of a violation of § 53a-71 (a) (1) from a class C felony to a class B felony. See Public Acts 2002, No. 02-138, § 7.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    JENNIFER T. BENEDETTO v. WILLIAM WANAT
    (AC 23349)
    Lavery, C. J., and Flynn and Peters, Js.

      Argued May 8
    officially released September 2, 2003

      Joseph M. Brophy, for the appellant (defendant).

      Alan Rosner, for the appellees (plaintiff and third party defendants).
   Opinion

LAVERY, C. J.

The defendant, William Wanat, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiff, Jennifer T. Benedetto, and the third party defendants, Stanley Benedetto and Norine Benedetto. On appeal, the defendant claims that the court improperly found (1) that a loan agreement between the parties was unrelated to the lease agreement at issue, (2) that the parties entered into a valid oral agreement to repay the loan, (3) that the defendant breached the terms of the lease and (4) awarded damages to the plaintiff. We affirm the judgment of the trial court.

The court, in a thoughtful and well reasoned memorandum of decision, set forth the relevant findings of fact and legal conclusions. Stanley Benedetto, who had previous experience owning and operating various restaurants, discussed his concept for a restaurant called “The Legends” with two restaurant brokers, Victor Klein and Richard Girouard. Stanley Benedetto visited various properties in Fairfield and approached the defendant about a certain parcel. The plaintiff, acting on behalf of Stanley Benedetto, entered into an “indenture” agreement on December 6, 1997, for the lease of the property owned by the defendant. The plaintiff, Stanley Benedetto’s daughter, signed the lease on behalf of her father because she was the titleholder of the family residence. All the parties knew that she would have no role in the management of the restaurant. Although Girouard initially worked for Stanley Benedetto, he became the project coordinator for the defendant after the lease was signed.

Prior to the signing of the lease, the defendant informed Stanley Benedetto that the building would be ready for occupancy by April 1, 1998. As a result of that representation, Stanley Benedetto sold his former business to devote his attention to the new restaurant. Various problems delayed the project and construction had not even commenced as of April 1, 1998.

Stanley Benedetto was not receiving sufficient income due to the fact that the opening of The Legends had been delayed. Girouard showed him another restaurant for sale, the “Arizona Flats.” Stanley Benedetto lacked the necessary funds for the required cash down payment. At Girouard’s suggestion, Stanley Benedetto approached the defendant about a loan. The defendant, in March, 1998, agreed to lend Stanley Benedetto $70,000. That loan was never reduced to a writing, no interest rate was discussed and no time frame for repayment was established. Thereafter, Stanley Benedetto completed his purchase of the Arizona Flats and began to operate it.

Delays continued to plague The Legends project. Stanley Benedetto, on several occasions, complained about the lack of progress. As of October 29, 1998, construction of the walls had been completed, but work on the interior could not be started. Stanley Benedetto, concerned over the delays, began to seek an alternate location. He also unsuccessfully attempted to find a replacement tenant. Although he asked both the defendant and Girouard for help in finding a replacement, he never stated that he would not proceed with the project. Furthermore, at all times, Stanley Benedetto had sufficient financial resources to complete the project. The defendant offered $15,000 to terminate the involvement of the plaintiff and the third party defendants in the project, but that offer was refused.

The defendant then informed Stanley Benedetto that if a replacement tenant was found who would accept the same terms as the plaintiff had, he would refund the $100,000 deposit to the plaintiff. The defendant also requested that Stanley Benedetto repay the outstanding loan amount of $25,000.

On December 11, 1998, Girouard called Stanley Benedetto and informed him that he had “great news” and an “early Christmas present.” Girouard had found a replacement tenant who agreed to the same terms as the plaintiff had and, therefore, the $100,000 deposit would be refunded. On the basis of that representation, Stanley Benedetto did not prevent the defendant from signing a new lease on February 10, 1999, with the replacement tenant. Without Stanley Benedetto’s knowledge, two of the lease terms were changed: The amount of monthly rent was decreased by $100 per month, and the amount of the deposit was decreased to $75,000.

In March, 1999, Stanley Benedetto asked the defendant for the return of the $100,000 deposit. The defendant claimed that due to the additional costs and the different terms of the lease, he would not refund any of the deposit. The plaintiff responded by initiating the present action by way of a five count complaint. The defendant filed an answer, special defenses and a three count counterclaim. The defendant subsequently initiated a three count cross complaint against the third party defendants that essentially mirrored the claims set forth in his counterclaim.

The first counts of the counterclaim and cross complaint both alleged that the defendant had completed his contractual duties, and that the plaintiff and the third party defendants lacked the necessary financial resources to complete the project, thereby breaching the lease. The second counts claimed that the plaintiff and the third party defendants fraudulently misrepresented their prior restaurant experience and financial resources. The third counts set forth allegations that the plaintiff and the third party defendants had converted $25,000.

The court first addressed the defendant’s counterclaim and cross complaint and rendered judgment in favor of the plaintiff and the third party defendants on all counts. With respect to the first counts, the court found that the defendant failed to prove that he had completed all of his contractual obligations. Furthermore, the court found that the plaintiff and the third party defendants proved that they had the financial resources to complete the project if they had been given the opportunity. The court determined, with respect to the second counts, that there was no evidence to support the defendant’s allegation of fraudulent misrepresentation with respect to the prior restaurant experience and financial resources of the plaintiff and the third party defendants. Finally, as to the third counts, the court found that the $70,000 loan to Stanley Benedetto, which had an outstanding balance of $25,000, was a separate and distinct transaction from the $100,000 deposit. The defendant’s pleadings alleged that the plaintiff and the third party defendants had converted the outstanding $25,000 from the $100,000 deposit. The court concluded that because the transactions were separate, the defendant had failed to make a valid claim for the outstanding $25,000.

The court then addressed the claims raised in the plaintiffs complaint. It found that the plaintiff proved that the defendant had breached the terms of the lease by re-leasing the property to the replacement tenant. The plaintiff, the defendant and the third party defendants all understood that the $100,000 deposit would be returned to the plaintiff if a new tenant was found who accepted the same terms as the plaintiff had. If a new tenant was not found, the plaintiff was prepared to fulfill her obligations, for which she had the financial resources.

The court found that Girouard had informed the plaintiff, as well as the third party defendants, that a new tenant had been found who had accepted the same terms and that the $100,000 would be returned. Furthermore, it was not until after the new lease had been signed that the plaintiff was informed that the terms, in fact, had been changed and, therefore, that her deposit would not be returned. Accordingly, the court found that the defendant had breached the terms of the lease and rendered judgment in favor the plaintiff. Because the plaintiff had assumed that the $25,000 loan balance had reduced the $100,000 deposit to $75,000, she claimed damages in that amount. The trial court awarded the plaintiff damages in the amount of $75,000.® This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly found that the loan agreement between the parties was unrelated to the lease, specifically the $100,000 deposit. The defendant sets forth two arguments in support of his claim: (1) the evidence did not support the court’s factual finding and (2) the judicial admissions, contained in the plaintiffs pleadings, indicated that the transactions were interrelated. We discuss each argument in turn.

A

The defendant first argues that the evidence did not support the court’s factual finding that the loan agreement was unrelated to the deposit. We disagree.

As a preliminary matter, we set forth the applicable standard of review. “The court’s findings of fact are binding on this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole.” (Internal quotation marks omitted.) Berty v. Gorelick, 59 Conn. App. 62, 67-68, 756 A.2d 856, cert. denied, 254 Conn. 933, 761 A.2d 751 (2000). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Tuxis-Ohr’s, Inc. v. Gherlone, 76 Conn. App. 34, 38-39, 818 A.2d 799, cert. denied, 264 Conn. 907, 826 A.2d 179 (2003). As our Supreme Court has stated: “[Appellate courts], of course, may not retry a case. . . . The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.” (Internal quotation marks omitted.) D’Ascanio v. D’Ascanio, 237 Conn. 481, 487, 678 A.2d 469 (1996); see also Practice Book § 60-5.

The defendant argues that Stanley Benedetto needed the loan to purchase the second restaurant, the Arizona Flats, to secure income that was necessary to complete the terms of the original lease. The court, however, heard testimony that Stanley Benedetto had the financial resources to complete his obligations under the lease. A number of his relatives had pledged their financial support to the project. Furthermore, we note that Stanley Benedetto testified that the funds for the original restaurant were kept separate from the loan funds, which were earmarked for use on the Arizona Flats project. On the basis of that evidence, we cannot say that the court’s finding that the loan was a separate and distinct transaction from the deposit was clearly erroneous.

B

The defendant next argues that the plaintiff had stipulated that the loan was part of the lease and not separate and distinct. Specifically, he claims that the allegation contained in the plaintiffs complaint, a judicial admission, indicated a single transaction and that it was, therefore, improper for the court to find otherwise. We do not agree.

At the outset, we set forth the applicable standard of review and legal principles relevant to that argument. “[T]he interpretation of pleadings is always a question of law for the court .... The modem trend, which is followed in Connecticut, is to constme pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties.” (Citations omitted; internal quotation marks omitted.) Travelers Ins. Co. v. Namerow, 261 Conn. 784, 795, 807 A.2d 467 (2002).

“Factual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case. . . . Admissions of a conclusory nature are not necessarily determinative, however, as a court may be justified in deviating from any such admission if unsupported by the underlying facts in evidence.” (Citation omitted; emphasis added.) Dreier v. Upjohn Co., 196 Conn. 242, 248-49, 492 A.2d 164 (1985); see also Howat v. Passaretti, 11 Conn. App. 518, 525-26, 528 A.2d 834 (1987); C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.16.3, pp. 586-87. With the foregoing in mind, we address the defendant’s argument.

Our reading of the allegations set forth in the plaintiffs complaint does not lead us to the conclusion offered by the defendant. It is not clear that the plaintiffs allegations indicated that the deposit was intertwined with the loan. The plaintiff alleged that she provided the defendant with the $100,000 deposit as required by the terms of the lease. The complaint then alleges that the “[defendant subsequently agreed to reduce the deposit to $75,000.00 and returned a net total of $25,000.00 of the deposit to [the] plaintiff for her use.” Even a broad reading of the plaintiffs complaint does not support the defendant’s claim that the complaint alleged that the loan was part of the lease and not a separate transaction from the deposit.

Even if we were to assume arguendo that the complaint alleged that the loan was interrelated with the deposit, we would conclude that the court was justified in deviating from that admission. Such an admission, conclusoiy in nature, was not supported by the evidence. That admission, therefore, cannot be said to be determinative. Accordingly, the court properly determined that the deposit and loan were separate and distinct transactions.

II

The defendant next claims that the court improperly found that the parties had entered into a valid oral agreement to repay the deposit to the plaintiff. Specifically, he ar gues that the oral agreement was invalid due to (1) a lack of consideration and (2) noncompliance with the statute of frauds, General Statutes § 52-550. We discuss each argument in turn.

A

The defendant first argues that the oral agreement was invalid due to a lack of consideration. We do not agree.

We start by setting forth the applicable legal principles and standard of review. “It almost goes without saying that consideration is [t]hat which is bargained-for by the promisor and given in exchange for the promise by the promisee .... We also note that [t]he doctrine of consideration does not require or imply an equal exchange between the contracting parties.” (Citation omitted; internal quotation marks omitted.) Parker v. Slosberg, 73 Conn. App. 254, 263 n.12, 808 A.2d 351 (2002).

“Consideration consists of a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . . . Although an exchange of promises usually will satisfy the consideration requirement ... a promise to do that which one is already bound by his contract to do is not sufficient consideration to support an additional promise by the other party to the contract. ... A modification of an agreement must be supported by valid consideration and requires a party to do, or promise to do, something further than, or different from, that which he is already bound to do.” (Citations omitted; internal quotation marks omitted.) Christian v. Gouldin, 72 Conn. App. 14, 23, 804 A.2d 865 (2002); see also 1 Restatement (Second), Contracts § 71, p. 172 (1981). Whether an agreement is supported by consideration is a factual inquiry reserved for the trier of fact and subject to review under the clearly erroneous standard. See Tuxis-Ohr’s, Inc. v. Gherlone, supra, 76 Conn. App. 45.

In the present case, the plaintiff and the defendant sought a replacement tenant. When a replacement was found, the defendant agreed to return the plaintiffs deposit in exchange for the opportunity to re-lease the property. Furthermore, the plaintiff agreed to relinquish her rights to the property in exchange for the return of the deposit. It is clear, therefore, that evidence of consideration was before the court. Accordingly, we conclude that the court properly found that the oral agreement to repay the deposit was valid and supported by consideration.

The plaintiff also claims that even if the oral agreement was not supported by consideration, the agreement was nonetheless enforceable under the application of the doctrine of promissory estoppel. We agree with the plaintiff.

Our Supreme Court “has recognized . . . the development of liability in contract for action induced by reliance upon a promise, despite the absence of common-law consideration normally required to bind a promisor; see Restatement (Second), Contracts § 90 (1973). . . . Section 90 of the Restatement Second states that under the doctrine of promissory estoppel [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” (Citations omitted; internal quotation marks omitted.) D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 213, 520 A.2d 217 (1987).

The trial court stated that the “plaintiff and third patty defendants obviously relied”; (emphasis added); on the statements of the defendant that a replacement tenant had been found and that the $100,000 deposit would be returned. Furthermore, the plaintiff and the third party defendants changed their position by allowing the re-leasing of the property to proceed. Thus, it is clear that the oral agreement was enforceable under either the doctrine of promissory estoppel or as supported by consideration.

B

The defendant next argues that the oral agreement to repay the deposit was invalid due to noncompliance with the statute of frauds, § 52-550. The court did not address that issue, nor was it raised by the defendant in his pleadings. “This court does not ordinarily consider issues not presented to or addressed by the trial court.” Connecticut Ins. Guaranty Assn. v. Union Carbide Corp., 217 Conn. 371, 385, 585 A.2d 1216 (1991); see also Practice Book § 60-5. The facts and circumstances of this case do not warrant a deviation from that general rule and we will not review that claim.

Ill

The defendant next claims that the court improperly found that he breached the terms of the lease. Specifically, the defendant argues that the plaintiff and the third party defendant were unwilling and unable to complete the project. We are not persuaded.

At the outset, we note that “[wjhether there was a breach of contract is ordinarily a question of fact.” Paulus v. LaSala, 56 Conn. App. 139, 153, 742 A.2d 379 (1999), cert. denied, 252 Conn. 928, 746 A.2d 789 (2000). Our review, therefore, is under the clearly erroneous standard. The court found that the defendant had breached the terms of the lease by re-leasing the property to the replacement tenant. There was ample evidence to support that finding. The defendant, nevertheless, contends that the plaintiff did not want to proceed and lacked the financial resources to do so.

Stanley Benedetto had informed the defendant and Girouard that he was interested in finding a replacement tenant. He testified, however, that he never had wanted to quit or to terminate the project. Stanley Benedetto further stated that he never informed the defendant and Girouard that he lacked the financial resources to proceed. He testified that he had access to various sources of funds to complete the project, including (1) approximately $25,000 in the bank account of his other daughter, Laura Benedetto, (2) three potential loans from various family members totaling approximately $60,000, (3) approximately $10,000 in the plaintiffs bank account, (4) $10,000 in bonds held by his wife and (5) equity in the family home. On the basis of the evidence, the court’s findings that the plaintiff and the third party defendants were willing to proceed with the terms of the lease and had the financial resources to complete the project was not clearly erroneous.

IV

The defendant’s final claim is that the court improperly awarded damages to the plaintiff. The defendant argues that the court awarded damages under an interference with a contract theory, which was never pleaded, rather than a breach of lease. We disagree.

“The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Internal quotation marks omitted.) Briggs v. Briggs, 75 Conn. App. 386, 399, 817 A.2d 112, cert. denied, 263 Conn. 912, 821 A.2d 767 (2003).

In the present case, we have determined that the court properly found that the defendant breached the lease. The plaintiff, therefore, “was entitled to recover those damages which would naturally flow from a total breach of the lease.” Danpar Associates v. Somersville Mills Sales Room, Inc., 182 Conn. 444, 446, 438 A.2d 708 (1980). Moreover, the complaint specifically requested damages in the amount of $75,000 for the deposit. In the absence of a motion to articulate, we will not speculate as to the reasons why the court found a damages award of $75,000 to be appropriate. We simply conclude that the damages award as found by the court was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff is the daughter of the third party defendants. All the parties agreed that the plaintiff was not the real party in interest, but was acting on behalf of her father, the third party defendant Stanley Benedetto.

       The terms of the lease provided, inter alia, that the plaintiff would pay rent once the town issued a certificate of occupancy, as well as provide the defendant with a nonrefundable deposit in the amount of $100,000. The defendant was to construct a building for use as a restaurant.

       The problems included two appeals to the local zoning board, a water table problem that required changing the location and a new design. The problems associated with the water table and subsequent change in location increased the construction costs; consequently, the parties executed an amendment to the lease. Relevant to this appeal, the amendment contained an increase in the monthly rent, and Stanley Benedetto and Norine Benedetto signed as guarantors.

       Stanley Benedetto previously had repaid $45,000 of the $70,000 loan.

       The new tenant was a group consisting of Jocko Saltas, Rebecca Greenberg and Craig Watson.

       Count one of the complaint alleged a breach of the lease. Count two claimed a violation of the covenant of good faith and fair dealing. Count three set forth a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq. Count four alleged unjust enrichment in the amount of $75,000 (the $100,000 deposit less the $25,000 unpaid balance of the oral lease). Count five claimed that the nonrefundable aspect of the $100,000 deposit was unconscionable and void.

         The court rendered judgment in favor of the defendant with respect to counts two through five, inclusive.

       The court stated that it was bound by the terms of the plaintiffs complaint, which requested a refund of only $75,000: “The court would have found that the loan was a totally separate transaction and had no effect on reducing the original deposit, and, therefore, if it concludes that the plaintiff has proven any of her claims, she would be entitled to the return of $100,000. Because it has not been pleaded that way, and the consistent claim has only been for the return of the $75,000 deposit, the court is bound by that and can award no more.”

       See part III for additional details regarding the financial resources available to the plaintiff and the third party defendants.

       General Statutes § 52-550 (a) provides: “No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged: (1) Upon any agreement to charge any executor or administrator, upon a special promise to answer damages out of his own property; (2) against any person upon any special promise to answer for the debt, default or miscarriage of another; (3) upon any agreement made upon consideration of marriage; (4) upon any agreement for the sale of real property or any interest in or concerning real property; (5) upon any agreement that is not to be performed within one year from the making thereof; or (6) upon any agreement for a loan in an amount which exceeds fifty thousand dollars.”

       George Benedetto, the brother of Stanley Benedetto, testified that he would have been willing to loan him between $20,000 and $30,000 for the project.

       As we have stated, the plaintiff assumed that the $100,000 deposit was reduced by the outstanding $25,000 balance of the loan.

       “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [PJroper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The . . . failure to seek an articulation of the trial court’s decision to clarify the aforementioned issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Citation omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 204, 819 A.2d 227 (2003); see also Practice Book §§ 61-10 and 66-5.


author: DRANGINIS, J.

text:
    STATE OF CONNECTICUT v. JAMES HILTON
    (AC 22413)
    Dranginis, Flynn and Bishop, Js.
    Argued March 31
    officially released September 2, 2003

      Frank P. Cannatelli, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).
   Opinion

DRANGINIS, J.

The defendant, James Hilton, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a) and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The sole issue on appeal is whether certain remarks made by the prosecutor during cross-examination of the defendant and in closing argument to the jury amounted to misconduct that denied the defendant a fair trial. We conclude that the defendant was not clearly deprived of a fair trial, and, therefore, affiim the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, William Rodriguez, was shot on July 14, 2000, at approximately 9 p.m. in the area of Truman Street and King Place in New Haven. Sergeant Anthony Duff arrived at the scene of the shooting and discovered the victim’s body on the sidewalk, surrounded by a crowd of people. An autopsy performed on the victim’s body revealed that he died from a single gunshot at close range to the left side of his head. Bullet fragments removed during the victim’s autopsy were tested and found to be consistent with having been fired from either a .38 special or a .357 magnum firearm. No gun was ever recovered.

The shooting was precipitated by a drug turf war. Anna Rodriguez, the victim’s longtime friend, testified that two days before the murder, she and her boyfriend had gone to visit the victim, who had just moved to an apartment on Truman Street. Rodriguez testified that upon arriving outside the victim’s apartment, her boyfriend sounded his car horn, and the victim and his girlfriend, Cora Moore, came outside to visit them. At that point, the defendant suddenly approached on the passenger’s side of the car and peered inside. When the defendant recognized Rodriquez’ boyfriend, he walked away.

The jury also heard testimony from Sherice Mills, who stated that on the afternoon of the shooting, “Shawn,” an associate of the victim, verbally confronted the defendant and one of his associates regarding Shawn’s drug dealing activities on Truman Street, which was part of the defendant’s drug territory. During that conversation, Shawn threatened the defendant and his associate. The confrontation soon ended, and Shawn and the victim drove off in the victim’s car.

Two women testified as eyewitnesses to the actual shooting. Mills testified that the victim left his porch to make a drug sale to someone in a car. She testified that moments later, while the victim was at the car, she heard the defendant state that he was “about to kill [the victim],” and observed the defendant walk across the street and shoot the victim in the head. According to Mills, the defendant fell to the ground with the victim, and the defendant “kept holding [the victim’s] head, saying he didn’t mean to do it and [telling] somebody to call the police.” Mills later identified the defendant as the shooter from an array of photographs.

A second eyewitness, Simone Williams, who was on the porch at the time of the shooting, testified about essentially the same events as did Mills. Williams’ testimony added that the defendant had approached the victim from behind and stated: “You ain’t from around here, son,” and, “You need to move from around here, son,” and that she then saw the defendant take a gun from behind his back and shoot the victim. When the shooting stopped, Williams testified, the victim fell to the ground, and the defendant yelled for someone to call an ambulance. A short time later, the defendant fled the scene. Williams went to the police station sometime later and related to the police what she had observed concerning the shooting. At that time, she positively identified the defendant in a photographic array and did so again at trial.

The state also presented testimony from Moore, the victim’s girlfriend, that while she was in Toisann Henderson’s second floor apartment on Truman Street playing with Henderson’s baby and listening to music, she heard a gunshot. Minutes after the shooting, Henderson ran from the porch into the apartment and told Moore that the defendant had shot her boyfriend. Moore ran outside where she found the victim lying motionless on the ground. She fell to the ground and started crying and hugging him. Shortly thereafter, Duff arrived. On the basis of the information that the witnesses provided, Duff dispatched the defendant’s description over the police radio.

At trial, the defendant testified that after meeting with his family, he voluntarily went to the police station, accompanied by his brother-in-law, Sergeant Nate Blackman, and provided a statement about the shooting. While he was in police custody, the defendant stated that he had been sitting on his porch when he heard a commotion and went to see what was happening. The defendant further told the police that a third man had drawn a gun, that the defendant had grappled for the gun, and “it went bashing across [the victim’s] head.” Later in the interview, the defendant was asked if he could give more detail about the shooting. It was at that point that the defendant ended the interview. At trial, he described how several seconds after he fought with the third man, a fourth man shot the victim and ran away. Immediately after the gunshot, the defendant testified, he applied pressure to the victim’s wound to stop the bleeding. He further testified that he left the victim to make sure someone had called an ambulance. When he returned and saw that the victim was receiving aid, he went to and sat on the porch. The defendant testified that he sat on the porch until people in the crowd began to tell the police that he did the shooting. He then stated that he became scared, and went directly to see his children and then to Blackman’s house.

During their investigation, the police learned that after the shooting, the defendant went to see his fiancee, Maybertha Ashley. She and her sister, Andrea Ashley, testified that the defendant had given his bloody clothes to his fiancee, who in turn gave them to Andrea Ashley to wash. When the police arrested the defendant at the police station, they took the clothing he had worn on the evening of the shooting. The blood samples and clothes collected from both the victim and the defendant were sent to the state forensic laboratory. A state’s expert testified that a drop of blood found on the defendant’s boxer shorts matched the victim’s blood type and DNA. Despite the fact that the victim had been shot at fairly close range, there was no detectable blood on the defendant’s other clothes. The defendant denied ever having his clothes washed after the shooting, and explained that his clothes were not covered in blood because he wore his shirt over his head and his pants around his knees.

On September 12, 2000, the defendant was charged with murder, and criminal possession of and carrying a pistol or revolver without a permit. Following a trial in July, 2001, the jury returned a verdict of guilty on all counts. On September 28, 2001, the court sentenced the defendant to a term of sixty years imprisonment on the charge of murder, a consecutive term of five years imprisonment on the charge of carrying a pistol without a permit and a concurrent term of five years imprisonment on the charge of criminal possession of a pistol or revolver for a total effective sentence of sixty-five years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

The defendant claims that the prosecutor’s questions and comments during cross-examination and closing argument constituted misconduct, thereby requiring a new trial. We disagree.

Because the defendant failed to raise any objection at trial, he concedes that he did not properly preserve his claim for review, but argues, nonetheless, that he is entitled to relief under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or under the plain error doctrine. Practice Book § 60-5. The claim is reviewable under Golding because the record is adequate to do so, and an allegation of prosecutorial misconduct is of constitutional magnitude. See State v. Radzvilowicz, 47 Conn. App. 1, 44, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997). The defendant, however, cannot prevail under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial.

We first set forth our standard of review for claims of prosecutorial misconduct. “To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. . . . State v. Singh, 259 Conn. 693, [699-700], 793 A.2d 226 (2002).

“Prosecutorial misconduct may occur in the course of cross-examination of witnesses; State v. Hafner, 168 Conn. 230, 249, 362 A.2d 925, cert. denied, 423 U.S. 851, 96 S. Ct. 95, 46 L. Ed. 2d 74 (1975); and may be so clearly inflammatory as to be incapable of correction by action of the court. Id., 252-53. In such instances there is a reasonable possibility that the improprieties in the cross-examination either contributed to the jury’s verdict of guilty or, negatively, foreclosed the jury from ever considering the possibility of acquittal. State v. Williams, 204 Conn. 523, 538-39, 529 A.2d 653 (1987).

“ [P]rosecutorial misconduct of constitutional proportions may [also] arise during the course of closing argument, thereby implicating the fundamental fairness of the trial .... State v. Singh, supra, 259 Conn. 700, quoting State v. Burton, 258 Conn. 153, 165, 778 A.2d 955 (2001). Such argument may be, in light of all of the facts and circumstances, so egregious that no curative instruction could reasonably be expected to remove [its] prejudicial impact. State v. Fullwood, 194 Conn. 573, 585, 484 A.2d 435 (1984). State v. Williams, supra, 204 Conn. 539.

“In determining whether a defendant’s right to a fair trial has been violated, [w]e do not focus alone . . . on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). . . . State v. Wil liams, supra, 204 Conn. 539-40. [T]he aim of due process is not punishment of society for the misdeeds of the prosecutor but avoidance of an unfair trial to the accused. . . . Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982).

“In determining whether prosecutorial misconduct was so serious as to amount to a denial of due process, [our Supreme Court], in conformity with courts in other jurisdictions, has focused on several factors. Among them are the extent to which the misconduct was invited by defense conduct or argument; State v. Fullwood, supra [194 Conn. 573]; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, [194 Conn. 530, 562-63, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985)]; see State v. Doehrer, [200 Conn. 642, 654, 513 A.2d 58 (1986)]; State v. Palmer, supra, [196 Conn.] 163; the centrality of the misconduct to the critical issues in the case; Hawthorne v. United States, 476 A.2d 164, 172 (D.C. App. 1984); the strength of the curative measures adopted; United States v. Modica, supra [1181]; Harris v. United States, 402 F.2d 656, 657 n.1 (D.C. Cir. 1968); State v. Doehrer, supra [654]; and the strength of the state’s case. See United States v. Modica, supra [1181]; State v. Couture, supra, 564; State v. Glenn, [194 Conn. 483, 492, 481 A.2d 741 (1984)]. State v. Williams, supra, 204 Conn. 540.” (Internal quotation marks omitted.) State v. Pereira, 72 Conn. App. 545, 552-54, 805 A.2d 787 (2002), cert. denied, 262 Conn. 931, 815 A.2d 135 (2003).

Relying in part on State v. Singh, supra, 259 Conn. 699, the defendant argues that the prosecutor improperly (1) asked the defendant during cross-examination to comment on the veracity of other witnesses, (2) expressed his personal opinion of the evidence and (3) appealed to the emotions, passions and prejudices of the jurors.

In addressing the defendant’s claim of prosecutorial misconduct, we apply a two part test. First, we examine each of the defendant’s claims of prosecutorial misconduct in trun to determine whether they were indeed improper. Second, if an impropriety is found, we then look to see if the misconduct was so prejudicial as to deprive the defendant of a fair trial.

The defendant first argues that the prosecutor improperly asked him to characterize the testimony of two eyewitnesses and the medical examiner as untruthful. During the prosecutor’s cross-examination of the defendant, the following colloquies took place:

“[The Prosecutor]: Yet, you’ve already told us that neither Sherice Mills nor Simone Williams has ever had any argument with you, correct?
“[The Defendant]: Correct.
“[The Prosecutor]: So, they have no reason to make up something that would make you into a murderer, correct?
“[The Defendant]: Correct.
* * *
“[The Prosecutor]: And so for your story to be true, the medical examiner’s opinion, based upon 10,000 autopsies, has to be wrong, am I right?”

The defendant then stated that he did not understand the question. At that point, the court reporter read the question. The colloquy continued as follows:

“[The Prosecutor]: You agree with me that the opinion of the medical examiner is that this is a contact gunshot wound, right?
“[The Defendant]: Yes.
“[The Prosecutor]: And therefore, for your story to be true, the medical examiner’s opinion has to be false, correct?
“[The Defendant]: No.”

We agree with the defendant that the prosecutor’s comments during cross-examination improperly compelled the defendant to comment on another witness’ veracity. Those comments are precisely what the Singh court warned against when it cautioned that such remarks invade the province of the jury and create the risk that the jury may conclude that to acquit the defendant, it must find that the other witnesses lied, because such questioning distorts the state’s burden of proof. State v. Singh, supra, 259 Conn. 706-12.

As stated previously, however, when reviewing the prosecutor’s remarks, the challenged conduct is not to be considered in a vacuum, but must be considered in the context and in the light of the trial as a whole. We reiterate that “[t]he ultimate question is [even if the conduct complained of is found to have been improper], whether the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Internal quotation marks omitted.) State v. Jenkins, 70 Conn. App. 515, 542, 800 A.2d 1200, cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002), quoting State v. Singh, supra, 259 Conn. 723. After applying the six factors previously outlined, we conclude that the prosecutor’s comments did not rise to the level of misconduct that mandates a new trial. The challenged comments, although improper, were made only twice during the entire trial. They were not sufficiently severe or numerous to form a pattern of serious misconduct throughout the trial to deny the defendant his right to a fair trial. Accordingly, we conclude that the defendant has failed to demonstrate that the prosecutor’s comments during cross-examination caused substantial prejudice.

The defendant also argues that the prosecutor’s improper interjection of his opinion of the evidence during closing argument deprived the defendant of a fair trial. We agree that some of the prosecutor’s remarks were improper, but after reviewing the evidence under the factors stated in Singh, we are not persuaded that the comments rose to the level of misconduct that would warrant reversal of the judgment.

The defendant cites to several of the prosecutor’s comments in summation to the jury that improperly suggested that to find the defendant not guilty, the jury had to choose between believing the state’s witnesses or the defendant. The defendant first argues that misconduct occurred when the prosecutor commented: “You’ll notice that even in his argument, if the defendant’s story is true, every other major witness in his case is lying or mistaken.” The prosecutor also stated in rebuttal argument: “The fact of the matter is, if [the defendant] told you the truth, then everyone else lied to you, all the experts and all the civilians, and you don’t believe that happened, and that’s how easy it is for you to decide this case. Because if they didn’t lie to you, which all the evidence purports that they did not, then he killed [the victim] and he intended to do so.”

This court has stated on numerous occasions that prosecutors must be allowed generous latitude in argument, but that such latitude, although broad, is not limitless and must be balanced against the need to ensure that the defendant’s rights are not compromised in the process. See State v. Morgan, 70 Conn. App. 255, 289, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). Our Supreme Court recently stated in State v. Singh, supra, 259 Conn. 712, that making such remarks during summation is an improper form of ar gument. The state concedes on appeal, and we agree, that the prosecutor’s remarks here clearly were improper. As stated previously, a determination that portions of the prosecutor’s closing argument were inappropriate does not, however, end our analysis; we must also determine whether the prosecutor’s comments were so serious as to cause the defendant substantial prejudice.

Our review of the record and the briefs reveals that the prosecutor’s improper closing argument was invited by defense counsel. The prosecutor, in making the challenged statements during rebuttal argument, specifically was responding to defense counsel’s comments concerning the defendant’s testimony: “[It is] contrary to some of the other witnesses, as reliable or unreliable as they may have been to you ... Is it contrary to what the state said? Sure. Is it contrary?” The prosecutor, referring to the defendant’s closing argument, stated: “You’ll notice that even in his argument, if the defendant’s story is true, every other major witness in his case is lying or mistaken.” Again, it is essential to consider the excerpted remarks in context. In State v. Rogelstad, 73 Conn. App. 17, 33, 806 A.2d 1089 (2002), we determined that the prosecutor’s statement, although improper, did not require reversal of the judgment, as it was “in direct response” to comments by defense counsel during closing argument. We reach the same conclusion here, where the prosecutor’s comment was an invited response to defense counsel’s attempt to vouch for the credibility of the defendant. Accordingly, we conclude that the prosecutor’s two improper remarks were a fair response to defense counsel’s similarly improper expression of his personal opinion about the defendant’s credibility. We therefore hold that the remarks, viewed in the overall context, did not deprive the defendant of a fair trial and do not warrant overturning the conviction.

Furthermore, we note that although the prosecutor’s improper comments were related to a critical issue in the case, namely, the credibility of the witnesses’ identification of the defendant, on balance, the misconduct was not particularly severe and was limited to two brief statements during closing and rebuttal argument. Cf. State v. Stevenson, 70 Conn. App. 29, 797 A.2d 1, cert. granted, 261 Conn. 918, 806 A.2d 1057 (2002); State v. Thompson, 69 Conn. App. 299, 797 A.2d 539, cert. granted, 260 Conn. 936, 802 A.2d 90 (2002). Additionally, the evidence against the defendant was overwhelming. His conviction was predicated on not only the testimony of the two eyewitnesses, Mills and Williams, the defendant’s fiancee and her sister, the investigating police officers, the medical examiner and forensic evidence of the victim’s blood on the defendant’s shorts, but also by the defendant’s testimony.

Finally, although the defendant did not ask the court to give the jury curative instructions, the court gave the jury a clear and direct explanation of the law before deliberations began. The court specifically instructed the jury about the presumption of the defendant’s innocence, the state’s burden to prove guilt beyond a reasonable doubt, that statements and arguments of counsel are not evidence, and that it could convict or acquit the defendant based only on the evidence. In the absence of evidence to the contrary, we presume that the jury properly followed those instructions. See State v. Kirsch, 263 Conn. 390, 416, 820 A.2d 236 (2003); State v. Parrott, 262 Conn. 276, 294, 811 A.2d 705 (2003). We therefore cannot conclude that the prosecutor crossed the boundaries of impropriety as to violate the defendant’s right to a fair trial.

The defendant next takes issue with the prosecutor’s comments during summation to the juiy that several times characterized the defendant as a liar. Where a prosecutor states in closing argument that a defendant lied while testifying, our courts have stated that prosecutors may not go so far as to express their personal opinion about a defendant’s guilt, but they are allowed to draw any inference deducible from the facts in evidence. See State v. Singh, supra, 259 Conn. 710; State v. Spyke, 68 Conn. App. 97, 113, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002). The prosecutor’s comments here certainly were improper and not in any way consistent with the expectation of professionalism of his office. They were, however, limited and did not usurp the fact-finding role of the jury in light of all the evidence against the defendant.

A review of the record indicates that throughout that portion of his closing argument, the prosecutor confined his comments to facts supported by the evidence. The defendant claimed that another man had shot the victim, but several witnesses identified the defendant as the shooter. Thus, it was reasonable for the prosecutor to argue that the defendant’s testimony was contrary to the testimony of other witnesses. Given the fact that the prosecutor coupled his substantially accurate characterization of the evidence with the suggestion that the jury closely examine the evidence for itself, we cannot say that his misconduct in the use of the word “liar” deprived the defendant of a fair trial.

Although we strongly disapprove of two remarks in the prosecutor’s final argument, we fail to see how those comments alone rose to the level of egregious misconduct that so infected the trial with unfairness that the defendant was denied his constitutional right to a fair trial. Further, this case is not one of those truly exceptional situations that warrant plain error review. See State v. Brown, 73 Conn. App. 751, 756-57, 809 A.2d 546 (2002). Accordingly, we conclude that the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon one’s person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes § 53a-217c (a) provides: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony or of a violation of subsection (c) of section 21a-279, section 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d, (2) has been convicted as delinquent for the commission of a serious juvenile offense, as defined in section 46b-120, (3) has been discharged from custody within the preceding twenty years after having been found not guilty of a crime by reason of mental disease or defect pursuant to section 53a-13, (4) has been confined in a hospital for persons with psychiatric disabilities, as defined in section 17a-495, within the preceding twelve months by order of a probate court, (5) knows that such person is subject to a restraining or protective order issued by a court, after notice and an opportunity to be heard has been provided to such person, in a case involving the use, attempted use or threatened use of physical force against another person, (6) knows that such person is subject to a firearms seizure order issued pursuant to subsection (d) of section 29-38c after notice and an opportunity to be heard has been provided to such person, or (7) is an alien illegally or unlawfully in the United States. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       Evidence at trial established that individuals sound their car horn a few times to indicate that they want to buy marijuana.

       Henderson did not testify at trial.

       Pursuant to Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances. . . . The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” (Citation omitted; internal quotation marks omitted.) State v. Jordan, 64 Conn. App. 143, 150, 781 A.2d 310 (2001).

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The defendant in his brief has failed to provide meaningful analysis of the third claim; therefore, we deem it abandoned. See State v. Hanson, 75 Conn. App. 140, 141 n.3, 815 A.2d 139 (2003).

       Although the prosecutor might have been eliciting a comment on the reliability of the medical examiner’s conclusions rather than on the medical examiner’s veracity as a witness, the prosecutor should not have pursued that line of questioning. The defendant was not competent to comment on the medical examiner’s conclusions, and it was improper to elicit a comment on the medical examiner’s veracity. The defendant’s opinion of an expert witness’ conclusions simply are not relevant. See Conn. Code Evid. § 7-1.

       The defendant claims that the following portions of the prosecutor’s closing argument were improper: “He has lied significantly about two things. . . . The defendant has the greatest motive to lie. . . . But what makes him, I think you’ll conclude, a liar, is the story, the implausibility of it.”


author: FOTI, J.

text:
    RENEE SYRAGAKIS v. JOHN SYRAGAKIS
    (AC 23021)
    Foti, Dranginis and DiPentima, Js.

      Argued June 10
    officially released September 2, 2003

      Robert J. Cary, Jr., for the appellant (defendant).

      Mary Gagne O’Donal, with whom, on the brief, was William E. McCoy, for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant, John Syragakis, appeals from the trial court’s postjudgment modification of child support in favor of the plaintiff, Renee Syragakis. The defendant claims that (1) the plaintiff failed to meet her burden of proof to warrant a postjudgment modification of child support as provided by General Statutes § 46b-86 (a) and (2) the court improperly deviated from the child support guidelines in § 46b-215a-l et seq. of the Regulations of Connecticut State Agencies in ordering a modification of the child support award. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The court dissolved the parties’ marriage on February 14, 1997, and incorporated the parties’ separation agreement into its judgment of dissolution. The separation agreement included a parenting plan in which the parties agreed that they would share custody of their minor child and that the plaintiff would have primary physical custody of the child. Regarding child support, the agreement states: “[The defendant] shall pay the sum of $260.00 per week as child support which is in accord with the guidelines of the State of Connecticut.” On March 13, 2002, the plaintiff filed a motion to open the February 14, 1997 judgment of dissolution and to modify the order of child support. The court held a hearing on the motion on April 15, 2002. The defendant appeared pro se. Both parties submitted updated financial affidavits and testified subject to cross-examination. At the close of the hearing, the court granted the plaintiffs motion to open the dissolution judgment and modified the February 14, 1997 child support upward to $650 per week. This appeal followed.

As a preliminary matter, we set forth our well settled standard of review in domestic relations cases. We will generally not disturb an order unless the court has “abused its legal discretion or its findings have no reasonable basis in the facts.” (Internal quotation marks omitted.) Ignacio v. Montana-Ignacio, 57 Conn. App. 647, 647-48, 750 A.2d 491 (2000). “In determining whether there has been an abuse of discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Citation omitted; internal quotation marks omitted.) Hathaway v. Hathaway, 60 Conn. App. 818, 819, 760 A.2d 1280 (2000). Further, we must accept the factual findings of the court unless they are clearly erroneous in light of the evidence presented in the record as a whole. See Prial v. Prial, 67 Conn. App. 7, 10, 787 A.2d 50 (2001). With that deferential standard in mind, we now turn to the specific claims raised on appeal.

I

The defendant first claims that the court’s modification of child support was improper because the plaintiff failed to meet her burden of proof in seeking a postjudgment modification. We disagree and conclude that there was sufficient evidence of a substantial change in the defendant’s financial circumstances to warrant the court’s modification.

“General Statutes § 46b-86 governs the modification of a child support order after the date of a dissolution judgment.” Hayward v. Hayward, 53 Conn. App. 1, 9, 752 A.2d 1087 (1999). “[A] child support order cannot be modified unless there is (1) a showing of a substantial change in the circumstances of either party or (2) a showing that the final order for child support substantially deviates from the child support guidelines absent the requisite findings. . . . The party seeking modification bears the burden of showing the existence of a substantial change in the circumstances. ... In these matters, as in other questions arising out of marital disputes, this court relies heavily on the exercise of sound discretion by the trial court.” (Citations omitted; internal quotation marks omitted.) Santoro v. Santoro, 70 Conn. App. 212, 218-19, 797 A.2d 592 (2002).

“Both the ‘substantial change of circumstances’ and the ‘substantial deviation from child support guidelines’ provision establish the authority of the trial court to modify existing child support orders to respond to changed economic conditions. The first allows the court to modify a support order when the financial circumstances of the individual parties have changed, regardless of their prior contemplation of such changes. The second allows the court to modify child support orders that were once deemed appropriate but no longer seem equitable in the light of changed social or economic circumstances in the society as a whole . . . .” Turner v. Turner, 219 Conn. 703, 718, 595 A.2d 297 (1991).

The defendant claims that the plaintiff failed to provide the court with sufficient evidence either that a substantial change of circumstances had occurred since the February 14,1997 order of support or that the February 14, 1997 order was a substantial deviation from the child support guidelines. We first address the evidence of substantial change of circumstances.

In his appellate brief, the defendant acknowledges that the record reflects “changes in the nature of the assets owned by the [defendant] . . . ,” He argues, however, that for the court properly to have found a substantial change of circumstances, it would have had to review those changes in light of the prior support order and that the court did not do so. The defendant’s only support for his argument is, as he argues, that “the April 15, 2002 hearing is entirely devoid of reference to the financial affidavits or financial situation of the parties at the time of the prior order regarding payment of child support.” We find that argument unavailing.

First, the financial affidavits and any other relevant documents that the parties filed at the time of the dissolution, as well as financial affidavits subsequently filed by the parties, are in the court’s case file. The court may take judicial notice of the contents of that file. See Hryniewicz v. Wilson, 51 Conn. App. 440, 444, 722 A.2d 288 (1999). Because we give every reasonable presumption in favor of the correctness of the court’s decision, we must assume, contrary to the defendant’s argument, that the court properly considered the parties’ financial circumstances as they were at the time of the prior child support order.

Second, the defendant has failed to provide evidence that the court improperly exercised its discretion in ruling as it did. Although neither the court’s order nor the transcript of the heating fully reveal the court’s analysis or rationale for its decision, the defendant never sought further articulation pursuant to Practice Book § 66-5. It is the appellant’s responsibility to provide an adequate record for review, including the seeking of an articulation of the court’s decision. In light of our deferential standard of review and because the record as a whole reveals sufficient evidence from which the court reasonably could have found a significant change in the defendant’s financial circumstances, we conclude, absent evidence to the contrary, that the court relied on that ground in granting the plaintiffs motion and ordering a modification of child support. Having so concluded, we need not consider the defendant’s additional arguments related to evidence of substantial deviation.

II

The defendant also claims that in modifying the child support upward to $650 per week, the court improperly deviated from the child support guidelines. We disagree.

It is undisputed that courts must consider the child support guidelines in all determinations of child support. General Statutes § 46b-215b (a). That includes postjudgment modifications of child support. General Statutes § 46b-215b (a) provides in relevant part: “The child support and arrearage guidelines . . . shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state. . . . [T]here shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support ... to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.”

Section 46b-215a-3 of the Regulations of Connecticut State Agencies contains the deviation criteria established by the commission for child support guidelines. Further, § 46b-215a-3 provides that in addition to making a specific finding that following the guideline would be inequitable or inappropriate, the court must state the amount that would have been required under the guidelines and the deviation criteria relied on by the court to justify deviation.

In the present case, the court made an oral finding at the conclusion of the hearing that the defendant had “substantial assets, both income producing and not income producing,” and “substantial financial resources that are not included in the definition of net income . . . .” The regulation specifically provides that those are proper criteria for deviating from the guidelines’ presumptive support amount. The court also found on the record that the guidelines provided for $288 per week and that “such an amount would be inequitable or inappropriate in this particular case

The court made all the necessary findings pursuant to General Statutes § 46b-215a and the related regulations to rebut the presumption that the amount of support provided for under the child support guidelines was correct. The evidence presented at the hearing, specifically the testimony of the defendant, supports the court’s findings and, therefore, we conclude that the findings are not clearly erroneous. We further conclude, on the basis of those findings, that the court properly exercised its discretion in deviating from the guidelines and ordering the defendant to pay support of $650 per week.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-86 (a) provides in relevant part: “Unless and to the extent that the decree precludes modification . . . any final order for the periodic payment of permanent alimony or support . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on the record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. . . . After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. . .

       “The guidelines are promulgated by the commission for child support guidelines . . . which was established by the legislature pursuant to General Statutes § 46b-215a. [Section] 46b-215b (a) provides that the guidelines are to be considered in all determinations of child support in the state, and creates a rebuttable presumption that the amount of support calculated through application of the guidelines is the amount of support to be ordered.” (Internal quotation marks omitted.) Marrocco v. Giardino, 255 Conn. 617, 618 n.1, 767 A.2d 720 (2001).

       We note that the parties’ separation agreement did not contain a nonmodification provision.

       The court’s handwritten order simply stated: “The court finds $288 inappropriate in this case, given the discrepancy in [the] parties’ respective incomes. [The] court finds deviation from [the] support guidelines appropriate and orders [the] defendant to pay $650 weekly child support effective immediately.”

       The parties submitted updated financial affidavits to the court at the time of the hearing on the motion for modification. Additionally, from the testimony elicited at that hearing, the court reasonably could have found that since the February 14, 1997 order of child support, the defendant had sold his insurance business, and acquired income producing commercial real estate and new residential real estate. The defendant also testified that he had been voluntarily paying the plaintiff $670 per week in support, in excess of the court’s order, although he claimed income of only $110,000 per year.

       See footnote 5.

       See footnote 5.