author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. MCGARRETT WALLACE
    (AC 17425)
    O’Connell, C. J., and Hennessy and Vertefeuille, Js.
    Argued October 20, 1999
    officially released February 29, 2000

      Richard A. Reeve, special public defender, with whom was Sarita Ordonez, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, McGarrett Wallace, appeals from the judgments of conviction, following a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103 (a), criminal trespass in the second degree in violation of General Statutes § 53a-108, two counts each of attempt to commit burglary in the third degree in violation of General Statutes §§ 53a-49 and 53a-103, and attempt to commit criminal trespass in the second degree in violation of §§ 53a-49 and 53a-108, and one count of attempt to commit robbery in third degree in violation of General Statutes §§ 53a-49 and 53a-136. Thereafter, the defendant pleaded guilty to being a persistent felony offender in violation of General Statutes § 53a-40 (b).

The defendant claims that (1) the trial court improperly determined that interfering with a police officer can be a predicate offense for the charge of burglary, (2) there was insufficient evidence of the crime of interfering with a police officer to sustain the burglary charges and (3) there was insufficient evidence to establish the crime of attempt to commit robbery in the third degree. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The defendant was charged with a series of offenses stemming from his activities on October 21, 1995, near the New Haven Lawn Club and Whitney, Orange, Humphrey and Bradley Streets in New Haven. Around noon that day, the assistant manager of the New Haven Lawn Club observed the defendant in the club parking lot next to two cars that had been broken into. The assistant manager and a fellow employee asked the defendant what he was doing, and the defendant ran. The New Haven police were informed, given a description of the defendant and were joined by the Yale University police department in a search of the area. The police patrolled the perimeter of the area on foot and in cars. Several police officers testified that they saw a man fitting the defendant’s description running in and out of the backyards of the neighboring properties. The officers eventually focused their attention on 502 Orange Street when they heard two men yelling that their apartment had been broken into. Officer Brian Donnelly of the New Haven police department observed that a storm window in the apartment had been forcibly removed. There were muddy footprints on the windowsill, on a bent shelving unit below the window and on the floor. Jun Xie, an occupant of the apartment, heard noises from the rear of the apartment and found the defendant sitting in the bathtub. Xie attempted to close the bathroom door, but the defendant was able to pull the door open, demanding, “Give me some money.” When Xie saw that his roommate was next to him, he refused and told the defendant to leave, which the defendant did.* Donnelly relayed this information to other officers, and soon thereafter a police radio broadcast indicated that the defendant had been seen at 223 Bradley Street.

Kelly Wardrup, a sergeant with the New Haven police, saw the defendant while driving past 223 Bradley Street. She observed the defendant come out of the right side of the house, climb onto the porch over the railing and squat down while opening the screen door and pushing on the interior door. As she approached, the defendant ran off the porch, down Bradley Street and into the backyards. Soon thereafter, another broadcast from a different officer announced that the defendant was attempting forcibly to enter a residence at 472 Orange Street.

Officer Dominic Perelli of the Yale police observed the defendant enter the enclosed porch of 472 Orange Street by opening the porch door. As the defendant began pushing on the inside door to gain entry, Perelli drew his revolver and ordered the defendant to stop and place his hands over his head. The defendant backed up, turned, kicked out the back window of the porch and dove through the opening, escaping into the backyards once again. At various points during the search, the defendant was spotted in other backyards but always managed to escape. Eventually, the defendant jumped over a fence, ran into the street, slipped in a puddle and was apprehended by both citizens and police. With respect to the burglary charges, the underlying crime alleged by the state was interfering with an officer.

I

The defendant claims first that the crime of interfering with an officer does not properly qualify as a predicate offense for burglary. He claims that interfering cannot be a “crime therein,” as provided for in § 53a-103 (a), because it is not a crime against people or property inside the building and because the crime of interfering had already been accomplished, if at all, prior to his unlawful entry. We disagree.

We must first determine the parameters of the “crime therein” requirement of § 53a-103 (a). Such a determination is a matter of statutory construction and, therefore, a matter of law over which this court’s review is plenary. See Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 226, 720 A.2d 235 (1998). “The process of statutory inteipretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).” (Internal quotation marks omitted.) State v. Salmon, 250 Conn. 147, 152, 735 A.2d 333 (1999).

We begin our analysis by examining the plain language of § 53a-103 (a), which provides in relevant part that a person is guilty of third degree burglary “when he enters or remains unlawfully in a building with intent to commit a crime therein.” Contrary to the defendant’s claim that the crime must be against people or property inside the building, the statute makes no reference to the type of crime that must be intended.

In addition, “[i].t is clear from . . . the comments by the commission to revise the criminal statutes that the basic rationale underlying the enactment of all of our present burglary statutes was protection against the type of invasion of premises likely to terrorize occupants.” State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983). Entering a residence unlawfully to evade the police is very likely to terrorize the occupants of the residence. It would, therefore, frustrate the purpose of the statute to hold that simply because the “crime therein” is not specifically against people or property inside, a burglary has not been committed. In the present case, the defendant was allegedly breaking into residences to hide from the police who were chasing him. Because interfering with the police is a crime and because the defendant entered homes unlawfully to commit this crime, we hold that interfering with the police is a valid predicate offense for the burglary charges in this case.

The defendant claims that in the present situation, an individual has completed all of the elements of interfering before attempting the unlawful entry and has no intent to commit a separate offense within the building entered. Thus, the defendant claims, a person who has committed all of the acts necessary to establish the offense prior to the unlawful entry does not, as a matter of law, enter with the intent to commit the crime therein. We are unpersuaded. The defendant has not cited any authority in support of this position, nor have we found any.

General Statutes § 53a-167a, which prohibits interfering with an officer, defines a crime, which, depending on the facts of the case, may be a continuing offense or may be an offense that is completed on the happening of one event. The actions of the defendant in this case lead to a conclusion that the evasion of the police was a continuing offense rather than numerous, separate offenses. This does not preclude, however, the continuous offense of interfering as being the predicate offense for numerous, separate burglary charges. The defendant’s entering into a residence was a continuation of the offense of interfering with an officer that began when the defendant first ran from the police. While the intent to interfere may not be separately punishable each time the defendant unlawfully entered the residences, it does not alter the fact that when the defendant entered the residence, he was doing so with the intent to commit the crime of interfering with an officer. Accordingly, in the present case, the crime of interfering with an officer is a valid predicate offense for the charge of burglary.

II

The defendant claims next that there was insufficient evidence to support the charges of burglary and attempted burglary. He claims that the evidence was insufficient to prove that he intended to commit a “crime therein,” namely, interfering with an officer. We disagree.

“In reviewing claims of insufficiency of the evidence, an appellate court must first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts impliedly found by the jury. The court must then determine, on the facts thus established and the inferences reasonably drawn therefrom, whether the jury reasonably could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Stanley, 223 Conn. 674, 677, 613 A.2d 788 (1992).” State v. Green, 55 Conn. App. 706, 714, 740 A.2d 450 (1999), cert. denied, 252 Conn. 920, 744 A.2d 438 (2000).

“Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct. . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 656, 737 A.2d 404 (1999).

On the basis of the evidence presented and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the defendant had the intent to enter residences unlawfully to interfere with officers. The defendant ran from the employees at the New Haven Lawn Club when they asked what he was doing near the cars that had been broken into. In addition, he was spotted by Sergeant Eveiit Nichols, who was responding to a call in the area. Shortly thereafter, he was seen on Orange Street, at the comer of Pearl Street and in the rear yards in the block surrounded by Orange, Pearl, Lincoln and Bradley Streets. Nichols testified that he set up all the officers in a perimeter at the four comers of the surrounding block with more officers proceeding on foot into backyards. Nichols then spotted the defendant again when a passing motorist pointed at him. The defendant saw the officer and ran back toward Bradley Street.

While numerous officers surrounded the area in cars and on foot, the defendant unlawfully entered the apartment of Xie at 502 Orange Street and was found hiding in the bathtub. Although the defendant stated that he came into the apartment to make a telephone call, the jury could reasonably infer that the use of the telephone or the bathtub were not the reasons that he forcibly removed the storm window, opened the window and climbed into the apartment.

Additional evidence presented to the jury concerning the attempted burglary at 223 Bradley Street was that a police officer observed the defendant climb onto the porch and squat down while opening the screen door and pushing on the interior door. As the officer approached, the defendant ran from the porch and disappeared into the neighboring backyards. Furthermore, the evidence placed before the jury in connection with the attempted burglary at 472 Orange Street was that a police officer observed the defendant enter the back porch, open the screen door and push on the door to gain entry. The officer ordered the defendant to stop and place his hands above his head. The defendant kicked out a window on the porch, dove through the opening and ran off through the neighboring backyards.

From each of those unlawful entries or attempted entries of residences, it was reasonable for the jury to infer that the defendant was seeking to escape from the pursuing police. The defendant was seen jumping fences, running in and out of backyards, hiding in a bathtub and attempting to enter residences unlawfully. The defendant claims, however, that he thought he was being chased by someone from the New Haven Lawn Club, not by police officers. Although the state and the defendant differ as to the reasonable inferences that can be drawn from the facts presented at trial, “[t]his court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferenees drawn therefrom.” (Internal quotation marks omitted.) State v. Martin, 56 Conn. App. 98, 105, 741 A.2d 337 (1999).

We conclude that the jury could logically infer that the defendant was attempting to avoid being discovered by the police when he ran through various backyards, hid in the bathtub of Xie’s apartment and attempted to break into homes. The unlawful entry into the apartment at 502 Orange Street and the attempted entry into the other residences, coupled with the intent to interfere with the police officers searching for him, supports the convictions of burglary and attempted burglary as found by the jury.

Ill

The defendant claims finally that the evidence was insufficient to establish the commission of an attempted robbery in the third degree at 502 Orange Street. He contends that there was no evidence presented to show that force was used or threatened during the attempted larceny.

A person is guilty of criminal attempt if, acting with the kind of mental state required for the commission of the crime, he intentionally engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be or if he intentionally commits an act that constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime. See General Statutes § 53a-49; State v. Green, 194 Conn. 258, 276, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133.

Contrary to the defendant’s claim that he did not attempt or threaten to use force on Xie, it was reasonable for the jury to have found that there was a sufficient threat of immediate use of physical force to warrant an attempted robbery conviction. The defendant claims that his “very limited” use of force here was separate and distinct from the attempted larceny because he merely intended “to flee from his pursuers” when he forced the bathroom door open. The defendant cites State v. Coston, 182 Conn. 430, 437, 438 A.2d 701 (1980), for the proposition that the state has to prove the required connection between the force or threats and the larceny. The statement of law is correct, but Coston does not support the defendant’s theory of defense.

In Coston, the defendant entered a store, stole a pair of shoes and, after being caught outside, returned to the store and threw the shoes on the floor. Id., 433. When the employees of the store told the defendant to stay and wait for the police, the defendant assaulted one employee and left the store. Id. When another employee followed the defendant out of the store, the defendant pointed his gun at him and made a threat. Id., 434. The Coston court found that the defendant’s later sequence of acts did not form part of the same continuous transaction as the earlier larceny. Id., 436. The court therefore held that the evidence was insufficient to support an attempted robbery conviction because the defendant already had completed the larceny and left the store before he assaulted the employees. Id., 437.

The defendant argues that in the present case there was no threat or show of force related to the demand for money. He claims that the force used against Xie in pulling open the bathroom door was for the purpose of continuing his efforts to avoid his pursuers, and forcefully opening the door was not within the sequence of events directly connected to the demand for money. The defendant maintains that the only conduct directly connected to the attempted robbery was the single statement requesting money, and no force was used in connection with this solitary request. We disagree with the defendant and find that the jury could draw reasonable inferences consistent with guilt on the attempted robbery count. The use or threat of force occurs “in the course of’ larceny if it occurs “during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after . . . .” State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986).

Reviewing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that when the defendant was discovered by Xie in his bathtub and forcefully pulled open the bathroom door after a struggle and demanded money, he threatened the use of force upon Xie during the course of an attempted larceny. The evidence being sufficient, the jury’s verdict must stand.

The judgments are affirmed.

In this opinion the other judges concurred.

       Although the defendant was charged with two counts of burglary in the third degree and two counts of tampering with a motor vehicle in connection with this incident, he was found not guilty on these charges.

       These activities at 502 Orange Street are the basis of the defendant’s conviction of burglary in the third degree, criminal trespass in the second degree and attempted robbery in the third degree.

       These activities at 223 Bradley Street are the basis of the defendant’s conviction of attempted burglary in the third degree and attempted criminal trespass in the second degree.

         These activities at 472 Orange Street are the basis of the defendant’s conviction of attempted burglary in the third degree and attempted criminal trespass in the second degree.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       We note, however, that the crime of trespass or any other crime related to the breaking and entering actions of burglary itself may not be considered by this court to be a “crime therein.'1 In the comments to the Model Penal Code, on which Connecticut’s code is based, the drafters noted that the crime a burglar intends to commit cannot be trespass, the very crime he necessarily commits when entering: “There is, however, one type of crime that should be excluded from the range of offenses that will satisfy the purpose requirement of burglary, namely other trespassory offenses designed solely to protect the interests that are invaded by the unprivileged entry that the burglar necessarily makes. . . . The word ‘therein’ in Subsection (1) of the Model Code provision [defining burglary] performs the same function by requiring that the intent be to commit an offense after the entry has been effected. The offense of trespass will thus have already been committed and a purpose to violate Section 221.2 [trespass] will be excluded from the range of illegal purposes that will suffice for a burglary conviction.” American Law Institute Model Penal Code and Commentaries (1980), part II, § 221.1, comment, pp. 76-77.

       Our Supreme Court noted that “while the legislative history of our burglary statutes fails to shed light on the rationale behind enactment, the comments by the commission to revise the criminal statutes clearly indicate the intended purpose of General Statutes §§ 53a-101 through 53a-103a. See Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, pp. 32-34. In both the house and senate proceedings addressing the enactment of our present penal code, the work and recommendations of the commission received numerous accolades. 13 H. R. Proc., Pt. 11, 1969 Sess., pp. 5033-63; 13 S. Proc., Pt. 7, 1969 Sess., pp. 3519-47.” State v. Belton, supra, 190 Conn. 506 n.7.


source: Caselaw Access Project

author: HEALEY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KENYA L. BEST
    (AC 18895)
    O’Connell, C. J., and Foti and Healey, Js.

      Argued December 14, 1999
    officially released February 29, 2000

      Raymond J. Rigat, for the appellant (defendant).

      Lisa Riggione, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen M. Keega,n, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Kenya L. Best, appeals from the judgment of conviction of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant had been charged with the crimes of murder in violation of General Statutes § 53a-54a (a) and one count of capital felony for the murder of a person under sixteen years of age in violation of General Statutes § 53a-54b (9). The defendant had pleaded not guilty and elected a trial by a three judge court, which found the defendant not guilty of the charges of murder and capital felony, but did find her guilty of the lesser included offense of manslaughter in the first degree. The court denied the defendant’s motions for judgment of acquittal at the close of the state’s evidence and at the time of sentencing. Thereafter, the court sentenced the defendant to twenty years incarceration. This appeal followed. We affirm the judgment of the trial court.

On appeal, the defendant claims that the trial court acted improperly in denying her motions for judgment of acquittal because there was insufficient evidence to sustain the conviction of manslaughter in the first degree. In doing so, she asserts that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that she acted either “under circumstances evincing an extreme indifference to human life” or “recklessly engage[d] in conduct which create[d] a grave risk of death to another person . . . .” General Statutes § 53a-55 (a) (3). Although she does not challenge the state’s contention that the evidence established a homicide, she claims that the evidence established only her culpability of the lesser included offense of manslaughter in the second degree in that she “recklessly” caused the death of another person. We disagree.

The trial court reasonably could have found the following facts. The victim, Mahkeva Best, was born on February 23, 1995, and was approximately twenty months old at the time of her death on October 31, 1996. At that time, she weighed twenty-two pounds and measured two feet, eight inches in height. On October 30, 1996, the defendant, who was Mahkeva’s mother, was twenty-four years of age and resided with her boyfriend, Daryl Walker, and the victim in an apartment in Waterbury. The defendant had worked as a certified nurse’s aide since 1992. She had recently lost her job as a result of the loss of her car, however, and was very frustrated over that, as she had been unable to find another job.

From October 31 to November 2,1996, the defendant gave four separate written statements to the Waterbury police. According to the relevant portions of the fourth statement on November 2, 1996, the defendant stated, “I want to say that I did hit Mahkeva with my hands on Wednesday, October 30, 1996. It was really actually my fists when I hit Mahkeva and how it happened is this: It was after 3:30 in the afternoon and as I mentioned in the last statement Mahkeva was laying on the couch on her back. As I had said earlier, Mahkeva was scratching at her [diaper] rash and whining most of the day. I went over to the couch to try to get her comfortable, and that is when she kicked me with her foot in my nose. When she did this, I said, ‘Mama, why you did that,’ and that is when I bit on her leg. (I always call Mahkeva Mama or Mommy.) After I bit her, she looked at me and I sat at the other end of the couch. A minute or two later she called out, ‘Mama,’ to me and started to come towards me, and I picked her up and laid her on my chest for a few more minutes. Then I laid her back down on the couch on her back and I was going to get up to make something to eat. As I was getting off of the couch, Mahkeva started whining again. I put the bottle next to her but she did not want the bottle. Mahkeva kept whining and I went over to her and I grabbed at my hair and I sat next to her on the couch. I stopped grabbing my hair and I clenched my hands into fists and hit Mahkeva with both my hands, saying out loud, ‘Why is this happening to me, why is this happening to me.’ I really don’t know how many times I hit Mahkeva with my fists because ‘I really lost it,’ meaning that I lost my mind for that moment. I think that while all this happened [Walker] was in the shower. Right after I stopped hitting Mahkeva she began crying, I also started crying and I laid my head on Mahkeva’s stomach. ... I am very sorry for what I did.”

Later that evening, Walker called a cab because he thought that Mahkeva did not look well and thought that she needed to go to the hospital. WTiile waiting for the cab, the defendant changed Mahkeva’s diaper and clothing, at which point Walker pointed out some bruising on Mahkeva’s stomach area and asked the defendant what had happened. The defendant responded that she did not know what had happened, but that maybe the bruising was due to the child’s diaper being too tight.

When Mahkeva was brought to the emergency room of Waterbury Hospital at about 3:15 a.m. the next morning, October 31,1996, by the defendant and Walker, she was examined by Genevieve O’Connell, an attending physician. Mahkeva’s heart had a very slow agonal beat. O’Connell observed two bruises on Mahkeva’s forehead, a relatively “fresh” bruise on the left forehead temple area and an older one on the right forehead side “about a week old”—all of which were “very visible” to the naked eye. There were four separate bruises in her abdominal area. O’Connell’s opinion was that the four injuries to the abdominal area were due to blunt trauma with the force applied “multiple times.” The blunt force was of a size “about four inches in diameter” and was “consistent with a fist punch.” A cardiac arrest team became involved, but was unsuccessful. None of the injuries about which O’Connell testified could have been caused by the medical intervention at the hospital on October 31, 1996. Mahkeva was pronounced dead at 5:15 a.m. O’Connell opined that the cause of Mahkeva’s death was blunt trauma.

Later that day, Malka Shah, the associate medical examiner at the office of the chief medical examiner, performed the autopsy in Farmington. She specializes in forensic pathology, which deals mostly with sudden death caused by trauma, why the trauma took place, what inflicted it and the extent of the trauma. Shah noted external injuries on Mahkeva’s face, abdomen, left lower arm and left upper leg. Internally, the eighth and ninth ribs were fractured. There was extensive hemorrhaging throughout her entire abdominal area. The hemorrhaging extended to the entire abdominal wall at the right and left side. The cause of the injuries on this abdominal wall, opined Shah, was due to blunt force applied to the anterior abdominal wall causing ruptures of the capillaries and vessels and hemorrhage into the posterior wall itself. At least three blows were administered, as the abdomen was injured not only in the center, but also on the right and left sides. The injuries for the abdominal area were all inflicted at the same time. The blunt trauma also injured major organs. Blunt trauma to Mahkeva’s abdomen caused a laceration in her right renal vein, hemorrhage in her pancreas, liver and lungs, extensive hemorrhages in the large intestine and ascending colon, and a macerating injury to her spleen. There was also bleeding on her posterior abdominal wall that came from the force applied to the anterior abdominal wall, which then passed through the organs to the posterior abdominal wall. The bleeding in her abdominal area was extensive. The cause of her bleeding was the blunt trauma, which, according to Shah, “led her to bleed to death.”

The injuries to Mahkeva’s forehead were older than the injuries to her abdominal area. The one on the right side of her head was older than the one on the left. Both, however, were older than the abdominal injuries. According to Shah, the blunt force trauma to the abdomen and the bite mark were “of the same duration” or were inflicted on Mahkeva at about the same time.

Ira Titunik, a forensic odontologist, became involved as a result of being contacted by Harold Wayne Carver, the state’s chief medical examiner. Upon arriving in Waterbury in the evening of October 31, 1996, he met separately with the defendant and Walker, explained to them what he proposed to do in taking dental impressions of their upper and lower teeth as well as photographing that area. Thereafter, he went to the chief state medical examiner’s office in Farmington, where he examined and photographed the tissue of the bite area excised from Mahkeva’s left thigh. At the trial, after explaining in detail how he had proceeded, Titunik gave his opinion that the bite mark had been made by the defendant.

At the time of her fourth statement, in telling Neil O’Leary, a detective lieutenant with the Waterbury police, about Mahkeva’s abdominal injuries, she demonstrated by pounding on his desk how she had struck the victim with both fists together. She could not remember how many times she had struck her daughter, but O’Leary said he counted her pounding five times on the desk. When O’Leary asked her to hit the desk as hard as she had hit Mahkeva, she looked at him and said, “What do you want me to do, break my hands?”

The defendant claims on appeal that the trial court improperly denied her motions for judgment of acquittal because tirere was insufficient, evidence to sustain the conviction of manslaughter in the first degree. We disagree.

In State v. Cansler, 54 Conn. App. 819, 836, 738 A.2d 1095 (1999), we stated that “[t]he standard of review for a sufficiency of evidence claim is well settled. Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). . . . State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).” (Internal quotation marks omitted.)

In Ingram, this court stated: “We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, supra, 227 .... State v. Braxton, [196 Conn. 685, 691, 495 A.2d 273 (1985)]. . . . State v. King, 216 Conn. 585, 602, 583 A.2d 896 (1990); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Internal quotation marks omitted.) State v. Ingram, supra, 43 Conn. App. 810.

“It bears emphasis that [i]n evaluating evidence that could yield contrary inferences, the [trier of fact] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [trier of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . State v. DeJesus, supra, 196; see also State v. Sivri, [supra, 231 Conn. 134]. . . . State v. Torres, 242 Conn. 485, 490, 698 A.2d 898 (1997).” (Internal quotation marks omitted.) State v. Cansler, supra, 54 Conn. App. 837-38.

Furthermore, as an appellate court, we must determine whether the totality of the evidence, including reasonable inferences therefrom, viewed in the light most favorable to sustaining the trial court’s verdict, supports the trial court’s verdict of guilt beyond a reasonable doubt. Moreover, where a three judge court is the judge of the facts as well as the law, as is the case here, the court, as the triers of fact, is not to be expected to lay aside matters of common knowledge or their own obseivations and experiences of the affairs of life. Rather, they may apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct in the ultimate verdict that they may render. See id., 838.

As already noted, the statute on manslaughter in the first degree, insofar as pertinent to this case, General Statutes § 53a-55 (a) provides in relevant part: “Aperson is guilty of manslaughter in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.” For the defendant to have been found guilty of this offense, the state had to prove beyond a reasonable doubt the following: (1) that the defendant engaged in conduct that created a grave risk of death; (2) that in doing so the defendant acted recklessly; (3) under circumstances evincing an extreme indifference to human life; and (4) the defendant caused the death of the victim. State v. Shine, 193 Conn. 632, 643, 479 A.2d 218 (1984); see State v. Alston, 5 Conn. App. 571, 576, 501 A.2d 764 (1985) , cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986) . Additionally, the state had to prove that the defendant had the general intent to engage in conduct that created a grave risk of death to another person under circumstances evincing extreme indifference to human life. State v. Shine, supra, 639; see State v. Alston, supra, 576.

“No definition of ‘extreme indifference to human life’ is found in the [P]enal [C]ode, title 53a of the General Statutes . . . .” State v. Pitt, 28 Conn. App. 825, 830, 612 A.2d 60, cert. denied, 224 Conn. 907, 615 A.2d 1049 (1992); State v. Bunker, 27 Conn. App. 322, 326, 606 A.2d 30 (1992). We have pointed out in Bunker, drawing on State v. Spates, 176 Conn. 227, 236-37, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), that the trial court in Spates “was upheld when it defined the term for the jury by stating that it meant more than ‘mere carelessness’ or ‘ordinary recklessness’ . . . .” State v. Bunker, supra, 326. It must be recognized that an “aggravated form of recklessness” is required to support a conviction under § 53a-55 (a) (3). State v. Pitt, supra, 830; State v. Bunker, supra, 327. In any event, the lack of a specific definition of “extreme indifference to human life” is not of significance, “especially when the defendant has not shown that the phrase was used in anything other than its ordinary meaning. State v. Spates, supra, 237.” (Internal quotation marks omitted.) State v. Pitt, supra, 831. Some guidance, as to the level of “indifference” the legislature fairly perceived is gleaned by its designating the “indifference” in § 53a-55 (a) (3) by the adjective “extreme.” That adjective has been defined to mean “existing in the highest or greatest possible degree.” Webster’s Third New International Dictionary. It is synonymous with “excessive.” Id. What evinces an extreme indifference to human life is really a question of fact. State v. Pitt, supra, 831.

It is also true that there is no specific definition of the term “grave risk of death.” The defendant has given us no analysis or argument that that term is used in anything other than its ordinary meaning. See State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977); State v. Wall, 40 Conn. App. 643, 670, 673 A.2d 530, cert. denied, 237 Conn. 924, 677 A.2d 950 (1991). We do note, however, that Webster defines the adjective “grave” as meaning “very serious; dangerous to life.” Webster’s Third New International Dictionary. “Recklessly,” as already pointed out, is defined in the Penal Code, General Statutes § 53a-3 (13), and is an important component of the context of § 53a-55 (a) (3). The defendant’s state of mind at the time she assaulted her daughter may be proven from her conduct before, during and after the attack. Such conduct yields facts and inferences that demonstrate a pattern of behavior and attitude toward the victim by the defendant that is probative of the defendant’s mental state. State v. Tucker, 181 Conn. 406, 415, 435 A.2d 986 (1980); see also State v. Greenfield, supra, 228 Conn. 77. To be guilty of violating § 53a-55 (a) (3), it must be established that the defendant must have had the general intent to engage in the proscribed conduct. State v. Shine, supra, 193 Conn. 639; see State v. Alston, supra, 5 Conn. App. 577.

David Best, the estranged husband of the defendant, returned Mahkeva to the defendant’s home on Monday, October 28, 1996, at which time she was “fine.” From that time until the early morning hours of Thursday, October 31,1996, when Mahkeva was taken to the hospital, no one except the defendant and Walker had any contact with Mahkeva. Although the defendant, in her first statement to the police, opined that Walker beat Mahkeva, it was not until several days later that she admitted that it was she, not Walker, who had beaten her child. That leaves her as the sole cause of the injuries, external and internal, to Mahkeva that resulted ultimately in the child’s death.

On October 30, 1996, the defendant maintained that Mahkeva was “fine,” although she acknowledges that on the previous day Mahkeva had fallen off the couch and hit her head on the coffee table. O’Connell, the attending physician who examined Mahkeva on October 31, 1996, said that the bruise on her left forehead was suffered within two days of October 31, 1996. On the morning of October 30, 1996, the defendant “realized” that the child was not well because she was “moaning, groaning and cranky” and she had a very bad diaper rash, which the child was scratching. There is no indication of what the defendant did to alleviate Mahkeva’s diaper rash. When the defendant gave Mahkeva Tylenol and later, Nyquil, the child was “tussling” with her. The defendant had “to be strong” with her to administer the medication and to do so she held the child down “so she couldn’t fight [her].”

On October 30, 1996, the defendant was stressed and frustrated because she could not find a job and the child was getting on her nerves as she would not keep still. That afternoon the child, who was lying on the couch, lifted up her leg and kicked the defendant in the nose. Thereupon, the defendant actually bit the child on her left thigh. Such shocking retaliatory action by a mother against her totally vulnerable child is inexplicable and adduces an especially culpable mental state. Her stress or frustration cannot legitimate this biting of her own twenty month old daughter.

It is, however, the defendant’s beating of her daughter on the afternoon of October 30,1996, shortly after biting her, together with its consequences, that starkly demonstrates her extreme indifference to human life by engaging in conduct that created a grave risk of death to the child and did, in fact, cause her death. The nature, the scope and the severity of the injuries caused by the application, with great force, of the defendant’s clenched fists to the child’s abdominal area devastated Mahkeva’s ability to live for more than one day. The number of blows that the defendant admitted to having inflicted to the abdominal area varied. The defendant, according to O’Leary, struck the desk five times when O’Leary asked her to demonstrate the number and force of the blows. O’Connell said there was a minimum of three blows. The defendant said four blows. The most stunning description of the amount of force with which the defendant struck her daughter came from the defendant when she finally admitted to O’Leary on November 2, 1996, that she had beat her daughter. At that time, O’Leary asked the defendant to hit the desk in the police interview room with that force with which she struck her daughter on October 30, 1996. She answered him by asking, “What do you want me to do, break my hands?” The force used by the defendant was so strong that it went through the anterior abdominal wall, through the area of a number of internal organs, all the way to the posterior abdominal wall. Massive blood loss caused the child to bleed to death. Further evidence of the extreme indifference displayed by the defendant’s inexplicable conduct was her failure, despite the obvious distress of the child and even her experience not only as a mother but also as a certified nurse’s aide to seek any medical aid until Walker took that initiative. That, unfortunately for Mahkeva, took place many hours after the defendant beat her child. Throughout, her conduct was not “ordinary recklessness,” but that enhanced recklessness of the nature required to convict under § 53a-55 (a) (3). See State v. Pitt, supra, 28 Conn. App. 830.

Beyond all that we have pointed out, there is the consciousness of guilt reflected in the defendant’s misstatements and changes in her statements to the police. State v. Carter, 196 Conn. 36, 48, 490 A.2d 1000 (1985); State v. DeMatteo, 186 Conn. 696, 702, 443 A.2d 915 (1982); see United States v. Durrani, 835 F.2d 410, 425 (2d Cir. 1983) (“[fjalse exculpatory statements made to law enforcement officers are circumstantial evidence and have independent probative force”). “False exculpatory statements have independent probative value [as consciousness of guilt] regardless of whether a defendant testifies on his behalf.” United States v. Strother, 49 F.3d 869, 877 (2d Cir. 1995). These principles apply to the misstatements and charges the defendant made as to her role in this sad matter and as to her early attempt to implicate Walker as the perpetrator.

From the cumulative effect of the evidence, together with reasonable inferences, the trial court could reasonably have concluded that the defendant was guilty of manslaughter in the first degree under § 53a-55 (a) (3). The evidence of the defendant’s behavior in this case was sufficient for the court to find beyond a reasonable doubt that, under circumstances evincing an extreme indifference to human life, the defendant recklessly engaged in conduct that created a grave risk of the victim’s death.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       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 § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of . . . (9) the murder of a person under sixteen years of age.” At the time of her death on October 31, 1996, the victim, Mahkeva Best, was approximately twenty months old, having been bom on February 23, 1995.

       General Statutes § 53a-56 provides: “(a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide.
      “(b) Manslaughter in the second degree is a class C felony.”

       General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .”

       The defendant had been estranged from her husband, David Best, since January, 1996. David Best was Mahkeva’s father.

       The defendant did not testify at her trial. She did, however, voluntarily give the Waterbury police four written statements from October 31 to November 2, 1996. All four statements were made at the Waterbury police department. She made the first statement on October 31, starting it at 6 am. and finishing it at 7 a.m. She made her second statement on October 31, starting it at 2:20 p.m. and finishing it at 3:55 p.m. She made her third statement on October 31, starting it at 7:50 p.m. and finishing it at 8:45 p.m. She made her fourth statement on November 2 starting at 6 p.m. and finishing it at 7:35 p.m.
      The statements of the defendant varied, with the significant points as follows. In her first statement, the defendant stated: “On Tuesday the 29th, my daughter fell off the couch while she was playing and she hit her head on the coffee table.” She continued and inculpated her boyfriend, Daryl Walker, stating, “when I undressed her and removed her diaper I saw bruises below her belly button near her stomach area and [Walker] pointed out the bruises and said to me ‘what happened, how did those marks get there.’ I told him that I did not know and I pressed her stomach and thought maybe it came from her diaper being too tight . . . The only thing that I can figure out that happened is that [Walker] beat my daughter up. [Walker] is a violent person. . . .” In addition, the defendant stated that her daughter was “fine” when her estranged husband had returned her on Monday, October 28,1996, and she had changed her “several times since then.” Moreover, since her husband had returned Mahkeva, no one, except the defendant and Walker, had been with Mahkeva.
      In her second statement, the defendant made no reference to Walker’s beating the child, but stated rather, “I am now giving the police this second statement of my own free will at 2:20 p.m. I would just like to add some things that I do now remember. On Wednesday, 10-30-96 at about 1:00 p.m. I did give my daughter Mahkeva some Tylenol medicine because I thought she had a slight fever. I laid Mahkeva on the couch to give her this medicine .... While attempting to give Mahkeva this medicine I held her hands across her body both together and was also holding her face. While holding Mahkeva down she would be tussling with me and I would have to put pressure on her to make her stop. I would lean on her with my body putting pressure on her stomach to stop her from moving around. While doing this Mahkeva was tussling with me moving her head about and I had to hold her down with pressure from my arm. After doing this Mahkeva threw up the Tylenol .... I waited until about 2:30 p.m. on Wednesday, 10-30-96 to give her . . . Nyquil. In giving Mahkeva the Nyquil I went through the same routine as I did the first time. Mahkeva was again tussling with me and moving all around and once again I would put pressure on her stomach until she would stop and take the medicine.”
      At about 7:50 p.m. on the same evening, the defendant gave her third statement of that day, again making no reference to Walker beating the child and stating: “Because I have no job, I have no money, and I have been unable to find another job. Because of this I have been under a lot of stress and I have been very frustrated. My daughter Mahkeva had a very bad diaper rash and she was also sick when we woke up on Wednesday morning. She was whining a lot and I was having trouble making her comfortable during the morning. . . . Mahkeva was getting on my nerves because she wouldn’t keep still. . . . She was irritable all day and I went over to her to try to comfort her when she lifted her leg up and kicked me in the nose. I got upset because she kicked me and I then bit her on her left leg. I was upset with her because my nose hurt as it has been broken twice. ... I was also frustrated with Mahkeva earlier that day both times I was giving her the medicine. I had to be strong with her to get the medicine in her and when she threw up the Tylenol ... I was very frustrated. I then got a phone call at approximately 2:30 p.m. from a Certified Nurses Agency telling me that a job I had hoped for was only available part-time. This call got me very upset and it was at this time I went to give Mahkeva the Nyquil medicine to try to make her go to sleep as she was still fussing. As I was giving her the Nyquil . . . she was fighting me and kept spitting out the medicine. I had to be strong with her again holding her down and trying to get the medicine in her mouth. As I tried to explain earlier, being strong with her means holding her down so she can’t fight me.”
      These three statements, as well as the fourth statement, were admitted into evidence as full exhibits without objection.

       An agonal heartbeat is usually the last few beatings of the heart before it stops.

       One centered right around the “belly button,” another on the left lower ribs, a third over the right hip pelvic area and a fourth over the left pelvic area. In addition, X rays taken of Mahkeva’s body indicated a rib fracture.

       The Waterburypolice department was contacted by the hospital because of Mahkeva’s condition. Officer David Sheehan arrived there about 3:50 a.m. While there, Sheehan spoke to the defendant. She asked him wha,t was going to happen to her and whether he would be contacting the department of children and families. She never asked him about Mahkeva’s condition, and he stated that she “seemed more concerned for her own [well-]being not for that of the child.”

       During her medical career, Shah has performed “close to four thousand autopsies.”

       A “macerating injury” is like a crushing injury, where the organ becomes “like a pulp.”

       All of Mahkeva’s bleeding was internal.

       Forensic odontology encompasses bite mark recognition. Essentially, it is the observing of a wound on tissue or food stuffs, the determination of whether it is a human or nonhuman bite mark and then using that in the determination for its importance in the particular case.

       O’Leary was in charge of this investigation and was also the supervisor in the Waterbury detective bureau assigned to major crimes.

       A specific intent to ldll or injure is not required. State v. Shine, supra, 193 Conn. 640.

       In referring to the nature of our review, the defendant cites the following proposition from State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990): “A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.” (Internal quotation marks omitted.) To suggest that Carpenter dictates our review on the sufficiency issue indicates a fundamental misconception of the relationship between the principles set out in Caipmter and the well established and traditional scope of review of trial court verdicts. See State v. Sivri, supra, 231 Conn. 132. To accept this argument of the defendant would mean, as Siwi points out, that in reviewing the sufficiency of evidence to support a guilty verdict, an appellate court would be required to give deference, not to the view of the evidence taken by the trial court that arrived at a guilty verdict, but to any reasonable hypothesis supplied by the defendant that, had it been accepted by the trial court, would have resulted in an acquittal. See id., 133; see also State v. Greenfield, supra, 228 Conn. 77.
      In Sivri, our Supreme Court put it appropriately when it stated: “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trial court’s] verdict of guilty.” State v. Sivri, supra, 231 Conn. 134.

       “When there is evidence that . . . the injuries occurred while the child was in the sole [care] of the [defendant], the [trier of fact] is permitted to infer not only that the child’s injuries were not accidental but that, in addition, they occurred at the culpable hands of [the defendant]. . . . State v. Chapman, [46 Conn. App. 24, 34, 698 A.2d 347 (1997)], quoting State v. Dumlao,
        3 Conn. App. 607, 623, 491 A.2d 404 (1985).” (Internal quotation marks omitted.) State v. Peruccio, 47 Conn. App. 188, 195-96, 702 A.2d 1200 (1997), cert. denied, 243 Conn. 964, 707 A.2d 1266 (1998).

       The degree of force the defendant used to inflict the injuries may be inferred when from the fact that the blows to the abdomen were administered when the child was lying on a couch, a surface softer than a hard surface.

       The defendant in this case did not testify at trial.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. GLENN BAILEY
    (AC 16924)
    O’Connell, C. J., and Foti and Landau, Js.
    Argued September 28, 1999
    officially released February 29, 2000

      Megan McLoughlin, special public defender, with whom was Alexander H. Schwartz, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Glenn Bailey, appeals from the judgment of conviction, rendered following a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 and four counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. The defendant claims that the trial court improperly (1) refused to give a missing witness instruction to the jury and (2) instructed the jury on the state’s burden of proof. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On approximately five occasions between December, 1994, and June, 1995, the defendant sexually assaulted the eight year old female victim. The assaults, involving oral, anal and vaginal penetration, took place while the victim visited him at an apartment located in Hartford. The victim reported the assaults to her mother, who instructed the victim not to disclose the assaults to anyone else. Thereafter, the victim’s mother continued to take the victim to the defendant’s apartment. The victim subsequently discussed the assaults with six individuals who testified at trial.

I

The defendant claims first that the trial court improperly failed to instruct the jury that it could draw a negative inference from the state’s failure to call the victim’s mother as a witness. We do not agree.

At the time of trial, the so-called Secondino rule was in effect. Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960). Subsequent to the trial court’s decision in the present case, our Supreme Court decided State v. Malave, 250 Conn. 722, 739, 737 A.2d 442 (1999), in which it abandoned the Secondino rule in criminal cases. The Malave decision applies retroactively to this case. State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000).

We do not reach the issue of whether the trial court’s determination not to give the Secondino charge was correct because, in view of the Malave decision, the defendant was not entitled to the instruction under any circumstances. For this reason, we conclude that the trial court properly refused to give the Secondino instruction.

II

In his second claim, the defendant argues that the trial court improperly instructed the jury on the concept of reasonable doubt. Specifically, he asserts that the court’s use of the following language in its jury charge was improper because it diluted the state’s burden of proof: “[A] reasonable doubt is a doubt founded upon reason or common sense.” We do not agree.

The challenged instruction is similar to jury instructions that have previously been approved by our Supreme Court. See State v. Small, 242 Conn. 93, 114-15, 700 A.2d 617 (1997). This court cannot review or reverse Supreme Court precedent. State v. Oliver, 41 Conn. App. 139, 146, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). Although the defendant is aware that we cannot review this claim, he makes it nevertheless to preserve the record in the event of Supreme Court review. Accordingly, the defendant cannot prevail on this claim in this court.

The judgment is affirmed.

In this opinion the other judges concurred.

       In Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), our Supreme Court held that the failure to produce a witness for trial who is available and whom a party would naturally be expected to call, warrants an adverse inference against that party. This is commonly referred to as the Secondino rule or missing witness rule. The jury charge explaining the rule is known as the Secondino instruction or missing witness instruction. We use these terms interchangeably in this opinion.

       In 1998, the General Assembly abolished the Secondino charge in civil cases. General Statutes § 52-216c.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. HERIBERTO CRUZ
    (AC 18323)
    Foti, Landau and Spallone, Js.
    Argued December 13, 1999
    officially released February 29, 2000

      Richard S. Cramer, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Heriberto Cruz, appeals from the judgments of conviction, rendered after a jury trial, of five counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21, from two cases consolidated for trial. On appeal, the defendant claims that the trial court improperly allowed as evidence (1) testimony of a social worker under a hearsay exception, and (2) testimony of the victim that the defendant was a member of a street gang. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. The victim, A, was born on January 10, 1983. The defendant was the boyfriend of the victim’s mother and lived in the family homes in Hartford and Manchester during the period of the criminal acts. The criminal acts occurred in A’s home in Hartford between May 1, 1991, and April 30,1993. Additional criminal acts of the defendant occurred between April 30 and December 16,1993, at A’s home in Manchester. Also living in these homes with A and the defendant were A’s mother, A’s younger brother and A’s younger sister, who was the daughter of the defendant.

After May, 1991, when A was in third grade and living with her family in Hartford, the defendant on several occasions performed cunnilingus on her and had her perform fellatio on him. The defendant told A that she should not tell her mother what occurred because her mother already knew.

After May 1, 1993, the family moved to Manchester, where, on several more occasions the defendant and A engaged in additional acts of oral and vaginal sex. The defendant also forced A to wear and remove various clothing belonging to her mother. A did not report these activities to her mother, stating that the defendant threatened her that because the defendant was a member of a gang he would hurt her if she complained.

The defendant stopped living with A’s mother in December, 1993. In the summer of 1995, A told an older school friend that the defendant had raped her. The friend urged A to tell her mother, but she refused. She did, however, tell her mother on December 14, 1995.

A’s mother then called Frederick Rau, an obstetrician-gynecologist who had been treating A, and asked for help. He arranged for A to be examined at Saint Francis Hospital and Medical Center and spoke personally to Dianne Edell, a social worker, who was the coordinator of the hospital’s diagnosis center for child abuse and who evaluated complaints of sexual abuse. Edell began an interview with A on December 14 and completed it on December 22, 1995. A thought Edell was a physician and spoke freely to her. The latter session was videotaped while Detective Robert Nelson of the Hartford police department and Detective Russell Wood of the Manchester police department observed the interview through a one-way mirror. The detectives never interviewed A, but did receive a videotape of Edell’s interview.

At trial, Edell testified in detail as to what was told to her by A regarding her sexual encounters with the defendant in Hartford, including allegations of cunnilingus and fellatio that occurred on more than ten separate occasions. Edell testified that A had informed her that in Manchester, in addition to oral sex, the defendant had performed vaginal sex with her and made her model lingerie.

Rau began treating A in March, 1993, for abdominal pelvic pain, when A was ten years old. In response to his specific question to her as to whether she had been sexually abused, A categorically denied it. During all his examinations of A, Rau never found any redness of the vagina or any signs of cuts, abrasions or lesions in the area. He detected no evidence indicating that A was sexually abused and testified that A’s hymen was intact.

On January 10, 1996, A was examined by Elaine Yordan, a pediatrician and associate director of the adolescent medicine section of Saint Francis Hospital and Medical Center’s department of pediatrics and a member of the hospital’s diagnostic program for child abuse. The examination neither proved nor disproved allegations of sexual abuse. Yordan had Rau’s medical history of A but apparently made no use of it in her diagnosis and did not see the videotape of Edell’s interview with A. At trial, A testified in detail as to the sexual activity that transpired between her and the defendant at the apartments in both Hartford and Manchester.

I

The defendant asserts that the trial court improperly admitted into evidence the testimony of Edell concerning the details of the offense and the identity of the defendant. We disagree.

“[A] trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Citation omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997).

In State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996) (en banc), our Supreme Court modified the constancy of accusation doctrine so that the person to whom a sexual assault is reported may not testify as to the details of the assault to corroborate the complaint. In Troupe, however, the court made clear that its ruling “does not affect those cases in which the details of a sexual assault complaint are otherwise admissible” under the exceptions to the rule against hearsay. Id., 304 n.19.

In Connecticut, it is well settled that out-of-court statements made by a patient to a physician for the purposes of obtaining medical treatment are admissible under the treating physician exception to the hearsay rule. State v. DePastino, 228 Conn. 552, 565, 638 A.2d 578 (1994); State v. Maldonado, 13 Conn. App. 368, 371, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988). “Out-of-court statements made by a patient to a physician may be admitted into evidence if the declarant was seeking medical diagnosis or treatment, and the statements are reasonably pertinent to achieving these ends. State v. Wood, 208 Conn. 125, 134, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). Statements concerning the cause of the injury or the identity of the person who caused the injury usually are not relevant to treatment and, therefore, are not admissible under the medical diagnosis and treatment exception to the hearsay rule. State v. Dollinger, 20 Conn. App. 530, 534, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). However, [i]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible. State v. Maldonado, [supra, 374]. If the sexual abuser is a member of the child victim’s immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries. State v. Dollinger, supra, 535.” (Internal quotation marks omitted.) State v. DePastino, supra, 565.

Our Supreme Court has extended the definition of treating physicians to include individuals involved in the treatment of psychological and emotional injuries. See State v. Wood, supra, 208 Conn. 134; State v. Martin, 38 Conn. App. 731, 739-40, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376, cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541 (1996). Under the medical treatment exception to the hearsay rule, Connecticut has allowed into evidence statements to physicians, psychologists and psychiatrists made by patients for the purposes of obtaining medical treatment provided that (1) the declarant was seeking medical diagnosis or treatment, and (2) the statement was reasonably pertinent to these ends. State v. Dollinger, supra, 20 Conn. App. 534.

The witness here, Edell, was neither a physician nor a psychologist or a psychiatrist. The trial court extended the medical exception to the hearsay rule to Edell who was described as working at the hospital and in the chain of medical command. No evidence was presented indicating that any physician, psychiatrist or psychologist ever utilized Edell’s interview of A.

The Troupe decision modified the constancy of accusation rule by allowing the witness to whom a sexual assault victim has reported to testify only with respect to the fact and timing of the victim’s complaint. The testimony regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. State v. Troupe, supra, 237 Conn. 304.

The modification advanced by our Supreme Court is precisely to make inadmissible such testimony as to the details of the crime as testified to by Edell. Unless her testimony, which is hearsay, qualifies under the treating physician’s exception to the hearsay rule, it is inadmissible under Troupe.

While the treating physician’s exception has been expanded to include psychiatrists and psychologists, it does not per se encompass social workers. State v. Barile, 54 Conn. App. 866, 870-73, 738 A.2d 709 (1999). If, however, the statements by the victim are not made directly to a physician but to one who is in the chain of medical diagnosis or treatment, and the declarant’s motive is consistent with the purpose of obtaining medical diagnosis or treatment, the evidence is admissible under the exception. See, e.g., State v. Maldonado, supra, 13 Conn. App. 374 n.3. In Maldonado, we concluded that “in cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible.” Id., 374. The fact that in that case the victim’s nonverbal communications were made to a security guard, acting as an inteipreter, and not directly to the treating physician, nor even in his presence, was of no consequence.

The admissibility of hospital records also involves an exception to the hearsay rule; see id., 374 n.3; and statements of a child abuse victim to a treating physician carry the indicia of reliability necessary to be admitted as evidence. “The reason for this exception is that an individual seeking medical treatment would be truthful, which gives such testimony the guarantees of trustworthiness. Idaho v. Wright, [497 U.S. 805, 815, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990)]; Ohio v.Roberts, [448 U.S. 56, 66, 110 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)].” (Internal quotation marks omitted.) State v. Martin, supra, 38 Conn. App. 731.

There is no question that the evidence presented determined that A thought she was talking to a physician and therefore was “seeking medical diagnosis or treatment.” It is not unreasonable to also conclude that because Rau, A’s treating physician, sent A and her mother to the hospital, specifically calling Edell whom he knew to be a social worker with advanced training in therapy and public health, and the coordinator for the hospital’s diagnostic center for child abuse, that statements by A to Edell would be reasonably pertinent to future medical diagnosis or treatment. Under these particular circumstances, Edell was in the chain of medical diagnosis and treatment, and not solely because she was a social worker.

We conclude, therefore, that the trial court properly determined that A’s complaint to Edell did not lack trustworthiness because A thought Edell was a physician, and that under the particular circumstances of this case as set forth previously, Edell was part of the chain utilized to elicit information for future medical and psychological treatment. We conclude that the fact that no evidence was actually presented indicating that either Rau or Yordan used Edell’s interviews for medical puiposes is of no legal consequence. A’s statement to Edell relating to the details of the sexual assaults and to the identity of the defendant are reasonably pertinent to the ends of medical diagnosis and treatment. Therefore the trial court properly allowed Edell’s testimony under the treating physician exception to the hearsay rule.

II

The defendant next claims that the trial court improperly allowed A to testify that she did not report these incidents of sexual abuse for over two years because she was afraid of him as she believed him to be a gang member. He alleges that the prejudicial effect of being characterized as a gang member was “incalculable” and “must have had a devastating impact on the jury.”

The defendant does not claim that the testimony was inadmissible as hearsay, recognizing that it “is not hearsay ... if it is offered to illustrate, circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). The defendant argues that the trial court abused its discretion in allowing this evidence in that its prejudicial effect far outweighed its probative value. We disagree.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue.” State v. Sauris, 227 Conn. 389, 406, 631 A.2d 238 (1993). This evidence was relevant to aid the trier to determine why A had waited two years before reporting the crimes, an issue directly involving A’s credibility. Evidence is relevant if it tends to support the conclusion for which it is offered, even if only to a slight degree. State v. Marra, 222 Conn. 506, 521, 610 A.2d 1113 (1992). A’s state of mind was evidence that was probative of that issue raised.

The defendant complains that “the prejudice suffered by the defendant was compounded by the court’s failure to give a curative instruction.” The transcript, however, indicates that counsel for the defendant specifically asked the trial court not to instruct on gang membership and failed to object to the absence of a limiting instruction. The defendant may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him. State v. Drakeford, 202 Conn. 75, 81, 519 A.2d 1194 (1987).

The judgments are affirmed.

In this opinion the other judges concurred.

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

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       In the first information, the defendant was charged with three counts of sexual assault in the first degree and one count of risk of injury to a child; in the second information, the charges against the defendant were two counts of sexual assault in the first degree and one count of risk of injury to a child.

       While we concluded in Barile that the social worker’s testimony was inadmissible as an exception to the hearsay rule for statements made to an attending medical provider, we determined that it was admissible under the constancy of accusation doctrine, because it corroborated the victim’s testimony and because there was no showing of substantial prejudice or injustice. State v. Barile, supra, 54 Conn. App. 873.

       We recognized in Maldonado that neither the state nor the defendant addressed this issue in their briefs; we also noted that the comments of the advisory committee on the Federal Rules of Evidence provides that to be admissible under this exception the statement need not have been made to a physician and that statements to hospital attendants, ambulance drivers or even members of the family ought to be included. State v. Maldonado, supra, 13 Conn. App. 374 n.3.


text:
    LEONARD JOHNSTON v. JOSE SALINAS, COMMISSIONER OF MOTOR VEHICLES
    (AC 18713)
    O’Connell, C. J., and Foti and Healey, Js.
    Submitted on briefs December 15, 1999
    officially released February 29, 2000

      Jeffrey D. Brownstein and Gregory A. Thompson filed a brief for the appellant (plaintiff).

      Richard Blumenthal, attorney general, and Priscilla J. Green, assistant attorney general, filed a brief for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

This is an administrative appeal in which the dispositive issue is whether, under the circumstances, the trial court properly remanded the case to the defendant commissioner of motor vehicles (commissioner). We affirm the judgment of the trial court.

The following facts and procedural history are necessary to a resolution of this appeal. On March 31, 1998, the plaintiff, Leonard Johnston, was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. Two blood tests indicated that his blood alcohol content was more than 0.10 percent at the time the tests were taken. At the plaintiffs request, the commissioner, through a duly appointed hearing officer, held a hearing to determine whether the plaintiffs motor vehicle operator’s license should be suspended pursuant to General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g). The commissioner found affirmatively on the only four issues before him and consequently suspended the plaintiffs license for ninety days. The plaintiff appealed to the trial court pursuant to the Uniform Administrative Procedure Act (UAPA), General Statutes § 4-166 et seq., which governs motor vehicle appeals. See General Statutes § 4-183; Labenski v. Goldberg, 33 Conn. App. 727, 732, 638 A.2d 614 (1994).

The commissioner was required by § 4-183 (g) to provide a transcript of the motor vehicle hearing to the trial court. In this case, because the hearing reporter was unable to locate the tape recording, no transcript could be produced. Therefore, the court remanded the matter to the commissioner so that he could determine whether to conduct a new hearing. The plaintiff has appealed from that decision.

The plaintiffs principal contention is that a new motor vehicle hearing could not meet certain mandatory time requirements and, therefore, the court’s remand was improper. The fallacy in this argument is that the court did not rule on whether the time requirements could be met* ** or if they were mandatory. It simply remanded the matter to the commissioner for a determination of whether he would proceed further. If the commissioner elects not to proceed, the case is over. If, however, the commissioner decides to renew the proceedings and the plaintiffs license is again suspended, the plaintiff may appeal from that suspension and at that time raise his argument concerning the bar of statutory time limits.

In a similar case under the UAPA, the transcript contained so many errors and omissions that it was incomprehensible, making it the functional equivalent of the missing transcript in the present case. See Gervasoni v. McGrath, 36 Conn. Sup. 297, 418 A.2d 952 (1980). In remanding the case to the administrative agency, the Superior Court in Gervasoni held that “where an agency record is incomplete for one reason or another, a remand to the agency to take additional evidence is the only method by which the court can assure meaningful judicial review. . . . The court must make its decision on the propriety of the agency action by a review of the record. General Statutes § 4-183 [i]. Where the record is incomprehensible, meaningful review is impossible. The power to remand in a situation analogous to the present case is well settled in Connecticut. Where the agency has provided insufficient findings, remand has been held proper.” (Citations omitted.) Id., 301-302. We agree with the Gervasoni court.

The plaintiff argues that it would be unfair to him to have to go through the administrative hearing again. When reviewing an appeal under the UAPA, however, the trial court is not sitting as a court of equity, but rather, is extremely limited in its powers. “Administrative appeals exist only under statutory authority, without which the court lacks subject matter jurisdiction over the appeal. . . . The court’s essential function in such an appeal is to review the administrative proceedings to determine whether the action appealed from was legal. . . . The scope of judicial review under the UAPA is very restricted. . . . Except in the limited situation in which there is an allegation of procedural illegalities not shown in the record; General Statutes § 4-183 [i]; that review is limited to the record and the court cannot hear evidence.” (Citations omitted.) Neri v. Powers, 3 Conn. App. 531, 537, 490 A.2d 528, cert. denied, 196 Conn. 808, 494 A.2d 905 (1985).

We conclude that a remand to the commissioner is the only method by which the trial court could have assured meaningful review.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also seeks review regarding whether he properly refused to attend a hearing before the commissioner on August 21, 1998. That hearing was scheduled after the plaintiff filed his appeal from the trial court’s judgment remanding the matter to the commissioner. Because this issue involves a matter occurring after the trial court’s decision and, thus, was not before the trial court, we decline to review it.

       A hearing under General Statutes (Rev. to 1997) § 14-227b (f), now § 14-227b (g), is limited to the following issues: “(1) Did the police officer have probable cause to arrest the person for operating a motor vehicle while under the influence of intoxicating liquor or drug or both ... (2) was such person placed under arrest; (3) did such person . . . submit to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle . . . .”

       The relevant paragraph of the motor vehicle department hearing reporter’s affidavit provided as follows: “On May 13, 1998,1 attempted to type an administrative hearing that was tape-recorded in the matter of Leonard Johnston, per se case number 98002448. The case was not on the cassettes. I checked the other hearing rooms for a separate tape and could not locate any in this matter.”

       General Statutes § 4-183 (j) specifically deems remand orders to be final judgments. Section 4-183 (j) provides in relevant part: “[T]he court . . . may render a judgment ... or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       We cannot rule on these time requirement issues because this court cannot retry the facts or substitute its opinion for that of the commissioner. See Dept. of Public Safety v. Freedom of Information Commission, 51 Conn. App. 100, 104, 720 A.2d 268 (1998).

       The order suspending the plaintiffs license has been stayed so that he has not yet, in fact, suffered any suspension of his license.