text:
    JENNIE T. SCHMALING v. SCOTT M. SCHMALING SCOTT M. SCHMALING v. JENNIE T. SCHMALING ET AL.
    (AC 14649)
    O’Connell, C. J., and Schaller and Hennessy, Js.

      Argued September 30, 1997
    officially released March 10, 1998

      Kenneth J. Bartschi, with whom was Karen L. Murdoch, for the appellant (plaintiff in the first case, named defendant in the second case).

      Ralph L. Palmesi, with whom was Christine Donahue, for the appellee (defendant in the first case, plaintiff in the second case).
   Opinion

SCHALLER, J.

This appeal involves a contractual dispute between the plaintiff, Jennie T. Schmaling, and her son, the defendant Scott M. Schmaling, concerning improvements to real property owned by the plaintiff that were made by the defendant in return for the conveyance of a one-half interest in the property with the parties holding as joint tenants. The two civil actions arising from the dispute were consolidated for trial. In the first case, the plaintiff filed suit against the defendant in a four count complaint claiming breach of contract, fraudulent misrepresentation, detrimental reliance and unjust enrichment. The defendant filed an answer and a two count counterclaim claiming breach of contract and unjust enrichment. In the second case, the defendant filed a complaint seeking a partition by sale of the property with a division of the sale proceeds according to the parties’ respective ownership interests. In her answer, the plaintiff admitted the existence of the factual predicates that would entitle the defendant to a partition of the property, but asserted the special defenses of fraud and breach of contract that would preclude the defendant from obtaining a partition. This was construed by the trial court, however, as a stipulation of the parties entitling the defendant to a partition subject to the determination of the validity of the special defenses. The consolidated cases were tried to an attorney trial referee pursuant to General Statutes § 52-434 (a) (4) and Practice Book § 430.

The dispositive issue in this appeal by the plaintiff is whether the trial court properly rejected the attorney trial referee’s finding of lack of donative intent on the part of the plaintiff when she conveyed an interest in the property to the defendant to enable the parties to obtain mortgage financing. We reverse the trial court’s judgment in part.

The attorney trial referee found the following facts. Prior to March 10,1982, the plaintiff was the sole owner of certain real property located at 5 Idlewild Manor in Greenwich. The plaintiff was a widow and had resided at the property for approximately forty-six years. She owned the property free and clear of any mortgages or material encumbrances. The defendant was planning to marry, and the plaintiff believed that he would need to secure suitable housing for himself and his wife. The plaintiff offered to allow the defendant to add a second floor to the structure of her home to enable him and his wife to live on the property; the defendant did nothing to induce his mother to make such an offer.

To finance the construction of the second floor pursuant to the plaintiffs offer, it was necessary to obtain a mortgage loan. To secure mortgage financing, the parties believed that it was necessary to have the defendant’s name on the property as a record owner. As a result, the plaintiff conveyed an undivided one-half interest in the property, via quitclaim deed, to the defendant, with the parties holding title as joint tenants with right of survivorship. The parties obtained a mortgage loan on June 4, 1982, in the amount of $32,000. That loan was subsequently refinanced on February 23,1983, in the amount of $43,000.

The parties specifically agreed to the following arrangement, although they did not reduce their agreement to writing. The plaintiff was to be responsible for the payment of the following expenses: one half of the real estate taxes, one half of the maintenance of the property, one half of the utilities for the bam (a separate structure on the premises), and the insurance and other expenses associated with the downstairs portion of the property. The defendant was to be responsible for the payment of the following expenses: all mortgage loan payments, the remaining one half of the taxes, maintenance expenses and utilities, and all expenses associated with the upstairs portion of the property. In addition, the defendant was responsible for the constmction of the upstairs living quarters, including obtaining all applicable permits and paying for all materials and labor associated with the constmction, which funds were to be derived from the proceeds of the mortgage loan.

The defendant completed constmction of the second floor living quarters, which substantially increased the overall value of the property. During the constmction of the second floor living quarters, the defendant caused $1500 worth of damage to the first floor living quarters. The defendant and his wife moved into the second floor living quarters shortly after the constmction was completed. The defendant and his family continued to reside in the second floor premises until March, 1992, when they moved out because the property was not large enough for the defendant, his wife and their four children. The second floor was subsequently rented to third parties at a rent of $1550 per month.

At the time of their original agreement, the parties contemplated that the defendant would perform additional maintenance and improvement to the first floor living quarters occupied by the plaintiff, although they never agreed on the specific nature and scope of such work. Some time after the second floor living quarters had been constructed, the defendant agreed to extend a first floor room for the plaintiff using the overhang created by the second floor addition. The defendant commenced work on the first floor addition and completed the work necessary to enclose the room. The defendant did not complete the room, however, leaving unfinished the installation of insulation and sheetrock, and electrical work. The defendant provided the funds to construct the first floor addition, and performed most of the work himself.

The defendant made all of the required mortgage payments. In 1985, the plaintiff stopped paying her agreed share of the property taxes and other shared expenses for which she was responsible under the agreement. From that time, the defendant paid both his portion and the plaintiffs share of taxes and expenses due under the agreement. As a result, the defendant paid the following extra amounts on behalf of the plaintiff: $9039.54 in property taxes, $4710.85 for property insurance and $509.14 for electricity supplied to the barn on the property.

The attorney trial referee made the following additional findings and conclusions: (1) the plaintiff failed to prove, by clear and convincing evidence, that the defendant misrepresented his intentions, either intentionally, negligently or recklessly, with respect to the period of time that he would reside at the property or what would happen to his ownership interest in the property should he move out of the second floor residence; (2) there was no evidence of a donative intent in connection with the plaintiffs transfer of the property interest to the defendant; (3) any presumption of dona-tive intent arising from the relationship of the parties was overcome by the agreement of the parties that the sole motivation for transferring the property interest to the defendant was for the purpose of obtaining financing for the second floor addition; (4) the plaintiff proved monetary damages in the amount of $1500 related to the damage to the first floor caused by the defendant during the construction of the second floor; (5) the defendant proved monetary damages in the amount of $14,259.53 representing the total amount that the defendant paid on behalf of the plaintiff; (6) it would be inequitable to order partition of the property; (7) it would be inequitable to allow the defendant to retain a fee interest in the property; and (8) it would be inequitable to order the defendant to reconvey his interest in the property back to the plaintiff unconditionally, given that the defendant is obligated on the mortgage note, has not been reimbursed for the expenses he paid on behalf of the plaintiff and has not been reimbursed for the excess of the value he put into the property over the reasonable value of his use of the property.

As a result of those findings and conclusions, the attorney trial referee made the following recommendations to the trial court: (1) judgment should enter in favor of the plaintiff on count one (breach of contract) of her complaint in the amount of $1500; (2) judgment should enter in favor of the defendant on counts two (fraudulent misrepresentation) and three (detrimental reliance) of the plaintiffs complaint; (3) judgment should enter in favor of the plaintiff on count four (unjust enrichment) of her complaint, with the court imposing a constructive trust on the defendant’s interest in the property, subject to the plaintiffs restitution of the amounts due the defendant, including releasing the defendant from liability on the mortgage loan; (4) consistent with the plaintiffs restitution, judgment should enter in favor of the defendant on count one (breach of contract) of his counterclaim in the amount of $14,259.53; and (5) judgment should enter in favor of the plaintiff in the defendant’s action against the plaintiff seeking a partition of the property, based on the plaintiffs special defense, which is essentially the ground set forth in count four (unjust enrichment) of the plaintiffs complaint.

On February 28, 1995, the trial court, after reviewing the attorney trial referee’s report, issued its memorandum of decision. In its decision, the trial court (1) rejected the attorney trial referee’s finding that there was a lack of donative intent on the plaintiffs part in conveying an undivided one-half interest in joint tenancy to the defendant because the law presumes a dona-tive intent where the grantee is a natural object of the grantor’s bounty; and (2) rejected the attorney trial referee’s conclusion that the defendant was not entitled to a partition of the property because the trial court believed that the referee did not credit the stipulation of the parties as to the defendant’s right to partition subject only to the plaintiffs special defenses. Accordingly, the trial court rendered judgment in favor of the plaintiff on count one of her complaint in the amount of $1500, but rendered judgment in favor of the defendant on all the remaining counts of the plaintiffs complaint. The trial court also rendered judgment in favor of the defendant on his counterclaims, awarding him $14,259 under the first counterclaim. In addition, the trial court rendered judgment for the defendant on his complaint and ordered a partition by sale, appointing a committee to sell the property at auction on April 22, 1995. The plaintiff filed a motion to open the judgment and a motion to reargue. There is no indication whether the trial court ruled on the motion to open. The motion to reargue was denied by the trial court. This appeal followed.

On October 23, 1996, during the pendency of this appeal, after briefs had been filed but prior to oral argument, the plaintiff died. Robert B. Schmaling, the executor of the estate of Jennie T. Schmaling, filed a motion to substitute. We granted that motion on March 21, 1997. As a result of the death of the plaintiff during the pendency of this appeal, the issue of the mootness of the appeal became relevant, based on the right of survivorship coincident with the parties holding the property as joint tenants. At our request, the parties filed supplemental briefs to address the mootness question.

The plaintiff appeals from the trial court’s judgment in favor of the defendant as to (1) counts two, three and four of the plaintiffs complaint, (2) counts one and two of the defendant’s counterclaim, and (3) the defendant’s complaint seeking a partition by sale. On appeal, the plaintiff claims that the trial court improperly (1) ruled that donative intent was a question of law to be determined by the trial court, not the attorney trial referee, (2) found the existence of donative intent contrary to the findings of the attorney trial referee, and (3) ordered a partition by sale of the property. In response, the defendant claims that because of the death of the plaintiff during the pendency of this appeal, this appeal is now moot by virtue of the right of survivor-ship inherent in the joint tenancy property interest. We reverse the judgment in part.

I

The dispositive issue in this appeal is whether the trial court properly rejected the attorney trial referee’s finding that the plaintiff did not have donative intent with respect to the conveyance to the defendant of an undivided one-half interest, with light of survivorship, in her property at 5 Idlewild Manor in Greenwich. We hold that the trial court improperly rejected the attorney trial referee’s factual finding that there was no donative intent on the part of the plaintiff.

While mootness ordinarily is a threshold issue implicating the subject matter jurisdiction of the court to hear an appeal, in this case, the mootness issue is intertwined with and dependent on the question of donative intent. Therefore, to decide that the appeal may be moot, based on the right of survivorship coincident with the joint tenancy, begs the question of whether there was donative intent to convey a property interest to the defendant in the first place. Because we conclude that the trial court improperly overruled the attorney trial referee’s finding of lack of donative intent, the mootness issue is no longer relevant. Because there was a lack of donative intent on the part of the plaintiff to convey a property interest other than for purposes of obtaining mortgage financing, the legal right of survi-vorship, on which the defendant’s claim of mootness is based, does not exist.

In proceedings involving attorney trial referees, the trial court may not disturb the factual findings made by the referee. Hassane v. Lawrence, 31 Conn. App. 723, 728, 626 A.2d 1336 (1993). The trial court may not retry the case and find facts contrary to those found by the referee “ ‘unless a material fact has been found without evidence or the [referee] has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear.’ Practice Book § 439; see Bowman v. 1477 Central Avenue Apartments, Inc., [203 Conn. 246, 256-57, 524 A.2d 610 (1987)]; Cohn v. Hartford, 130 Conn. 699, 704-705, 37 A.2d 237 (1944). Thus, our review of the substantive merits of the trial court’s judgment devolves into two questions: (1) did the court exceed its authority by finding additional facts or rejecting facts found by the referee; and (2) did the court err in applying the law to the facts found?” Dills v. Enfield, 210 Conn. 705, 714, 557 A.2d 517 (1989).

The issue of the donative intent of a grantor is an issue of fact. Whitney v. Whitney, 171 Conn. 23, 33, 368 A.2d 96 (1976); Lord v. Stavrakis, 6 Conn. App. 161, 162, 503 A.2d 629, cert. denied, 199 Conn. 804, 506 A.2d 146 (1986). “The case at bar presented the question of the plaintiffs intention. Intent is a question of fact, the determination of which is not reviewable unless the conclusion drawn by the trier is one which could not reasonably be drawn. Meriden Trust & Safe Deposit Co. v. Miller, 88 Conn. 157, 162, 90 A. 228 [1914]; D. M. Read Co. v. American Bank & Trust Co., 110 Conn. 461, 462, 148 A. 130 [1930].” Walter v. Home National Bank & Trust Co., 148 Conn. 635, 638, 173 A.2d 503 (1961). While it is true that the law presumes a donative intent when the grantee is the natural object of the grantor’s bounty, that presumption is rebuttable. Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982); Cohen v. Cohen, 182 Conn. 193, 201, 438 A.2d 55 (1980); Saradjian v. Saradjian, 25 Conn. App. 411, 414-15, 595 A.2d 890 (1991).

In this case, the attorney trial referee made specific findings regarding the lack of donative intent by the plaintiff. In addition, he emphasized the importance of this issue to the overall framework of the case by stating: “Ultimately, the undersigned believes the outcome of this case should be determined by what is perceived to be the key fact in the case: the only reason for the transfer of the property interest to the defendant was to facilitate the mortgage loan. There was no suggestion that the defendant would not have undertaken the addition without an ownership interest in the property, and no suggestion that there was any discussion, express agreement, or even implied agreement making the transfer an element of consideration being furnished by the plaintiff. . . . The defendant acquired a nominal title interest, but the intent was to provide no more than a right to use and occupy the premises. ” (Emphasis in original.)

While the trial court specifically rejected that finding of lack of donative intent, construing it as an issue of law based on the presumption of donative intent existing between mother and son, the attorney trial referee specifically found that the presumption was overcome in this case: “Any presumption of donative intent, arising from the relationship of the parties, was overcome by the agreement of the parties that the sole motivation for the transfer of the interest in the property to the defendant was in connection with financing the addition.”

In rejecting the attorney trial referee’s factual finding as to donative intent, the trial court summarily found the existence of donative intent without an extended discussion or analysis of the issue, relying solely on the existence of the presumption to justify its holding: “As to the alleged lack of donative intent on the part of the plaintiff, it is clear from the referee’s report that she voluntarily placed her property in joint tenancy in order to accomplish a goal that she herself sought, viz., that the defendant and his family live in the same house with her. The law presumes a donative intent where a grantee is the natural object of the grantor’s bounty.” Since the presumption is one of fact and not law; Sarad-jian v. Saradjian, supra, 25 Conn. App. 414-15; we hold that the trial court improperly rejected the attorney trial referee’s finding on this issue.

As further support for our holding in this case, Cohen v. Cohen, supra, 182 Conn. 193, is instructive. In that case, a mother and son held title to a condominium property as joint tenants with right of survivorship. There were two reasons for that ownership arrangement: (1) the mother had received threats on her life from her soon to be ex-husband and was afraid that he would take title to the property if she died, and (2) her son warned her that her husband’s creditors could reach property held in only her name, and it was likely that the husband would try to use such property to satisfy his debts. The parties had an agreement that the son would convey his interest back to his mother on her request. After he moved out of the property, the son refused to reconvey and later attempted to assert his ownership interest.

Our Supreme Court affirmed the trial court’s decision that a constructive trust should be imposed on the son’s interest in the property to prevent the abuse of a confidential relationship between mother and son, and to prevent the resulting unjust enrichment to the son. The court held that the conveyance to the son was based on trust and confidence, and “[wjhere that confidence and trust are abused, equity will intervene to remedy the wrong done, although the law would otherwise leave the parties where it finds them.” Id.

While the facts of Cohen are not completely analogous to those of the present case, there are many similarities that we find pertinent. In both cases, there was a dispute over property held by mother and son as joint tenants with right of survivorship. In both cases, the parties held record title, but the trier of fact concluded that that was not determinative on the basis of a balancing of the equities. In both cases, the trier of fact attempted to prevent unjust enrichment in the hands of one joint tenant through the use of a constructive trust to effectuate the parties’ true intentions. We conclude that the present case is substantially similar to the factual and legal posture of Cohen, which, therefore, provides further authority for our conclusion.

II

The plaintiff next claims that the trial court improperly ordered a partition by sale of the subject property. The plaintiff argues that the equities in this case indicate that to order a partition by sale of the property would “offend justice, equity and fairness” because she never intended to relinquish control of her property to the defendant when she executed the deed to him to obtain mortgage financing. Because of our conclusion that the trial court improperly rejected the attorney trial referee’s finding of lack of donative intent, we agree with the plaintiff. In addition, we conclude that the trial court improperly relied on the stipulation of the parties that the defendant was entitled to a partition subject to resolution of the plaintiffs special defenses. We address each of those arguments in turn.

“A partition by sale, although a creature of statute, is an equitable action. Gaer Bros., Inc. v. Mott, 147 Conn. 411, 415, 161 A.2d 782 (1960). Section 52-500 (a) permits a court, ‘upon the complaint of any person interested, [to] order the sale of any property, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners.’ See also Borzencki v. Estate of Stakum, 195 Conn. 368, 372, 489 A.2d 341 (1985). The standard for reviewing the defendant’s claim is whether the court abused its discretion in ordering a partition by sale. See LaCroix v. LaCroix, 189 Conn. 685, 689-90, 457 A.2d 1076 (1983). In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. DiPalma v. Weisen, 163 Conn. 293, 298-99, 303 A.2d 709 (1972).” Geib v. McKinney, 224 Conn. 219, 228-29, 617 A.2d 1377 (1992).

In this case, the trial court abused its discretion because its decision to order a partition by sale was based, in part, on its erroneous conclusion that there was a donative intent on the part of the plaintiff. Since the plaintiff never intended the defendant to have an actual legal property interest, but rather executed the deed merely to facilitate mortgage financing, it would be illogical to allow the defendant to force a sale of the property.

In addition, our conclusion is supported by a balancing of the equities in the case. While the defendant has legitimate claims concerning amounts due him under the agreement, and his ongoing liability under the mortgage note, it would be inequitable to allow him to be unjustly enriched at the plaintiffs expense through the mechanism of a partition by sale. It seems highly inequitable, on this record, to allow the defendant to partition the property merely because he has suffered monetary damages, particularly because the plaintiff never had the donative intent to convey an actual property interest to the defendant.

The trial court further based its decision on the stipulation of the parties that the defendant was entitled to a partition subj ect only to the plaintiffs special defenses of fraud and breach of contract, which the attorney trial referee found in favor of the defendant. A review of the record reveals that this stipulation was not a conventional stipulation. It related to the plaintiffs answer to the defendant’s complaint seeking a partition by sale and admitted only the factual predicates that the defendant alleged in the first three paragraphs of his complaint, the existence of which constituted a prima facie case entitling the defendant to the remedy of partition.

The factual allegations admitted by the plaintiff were that the parties were owners of the described real estate, holding record title derived from the deed executed by the plaintiff, and that the property was encumbered by a mortgage in the amount of $43,000. While the plaintiff admitted the existence of those facts and asserted the special defenses of fraud and breach of contract, she sought the reconveyance of her property during the entire pendency of the litigation. That was exhibited in count four of her complaint alleging unjust enrichment, for which she sought a reconveyance. In addition, the plaintiff litigated the issue of donative intent throughout the trial when questioning witnesses and during closing arguments to the court. Therefore, while the admission of facts entitling the defendant to a partition was labeled a stipulation by both the attorney trial referee and the trial court, we conclude that it was improper to credit such an admission as a basis for an order to partition the property because the parties unquestionably litigated that issue during the trial.

In addition, the attorney trial referee found specifically in favor of the plaintiff on her special defenses to the partition by sale complaint because it would unjustly enrich the defendant at the plaintiffs expense. In his recommendation to the trial court, the attorney trial referee stated that in the defendant’s action against the plaintiff seeking a partition by sale, judgment should enter for the plaintiff based on her special defenses. While the attorney trial referee found an absence of fraud by the defendant, he did credit the equitable argument contained in the plaintiff’s special defense, stating that the special defense was “essentially the grounds set forth in the fourth count of the plaintiffs own complaint unjust enrichment.” The trial court improperly ignored that recommendation, stating only that “the referee specifically rejected” the plaintiffs special defenses of fraud and breach of contract. Our review of the record indicates the contrary. The referee specifically found the equitable argument portion of the special defense was valid. Therefore, the trial court improperly concluded that the defendant was entitled to a partition by sale.

III

The defendant claims that this appeal is now moot on the basis of the right of survivorship coincident with the joint tenancy. Because the plaintiff died during the pendency of this appeal, the defendant claims that this appeal is now moot because title to the property passed completely to him by operation of law upon the plaintiffs death. Therefore, the defendant claims that we cannot provide relief to the substituted plaintiff because the plaintiff has no property interest. Because of our holding on the donative intent issue, that claim is without merit.

As a result of the lack of donative intent on the part of the plaintiff, the defendant held only nominal title, not legal title, to the property in question. Therefore, he is not a trae joint tenant with the right of survivor-ship. Since there was no right of survivorship coincident with a joint tenancy, this appeal is not moot as the defendant claims. Upon the death of the plaintiff, the property passed to her estate, subject to the trial court’s imposition of a constructive trust on the defendant’s portion, and did not pass to the defendant by operation of law. Accordingly, this appeal is not moot because the estate has an interest in the property that will be affected by the disposition of this appeal.

IV

On the basis of our holding that the trial court improperly rejected the attorney trial referee’s finding of a lack of donative intent by the plaintiff, we also agree with the attorney trial referee that a constructive trust should be imposed on the defendant’s interest in the property, subject to payments of the amounts due the defendant and the satisfactory protection of the defendant from future liability on the mortgage. Accordingly, we remand the case to the trial court to render judgment in accordance with the attorney trial referee’s report and recommendations.

“Although it is well settled that, in general, real property absolutely conveyed cannot be shown to be subject to an express trust created by parol agreement; General Statutes § 52-550; Hieble v. Hieble, 164 Conn. 56, 59, 316 A.2d 777 (1972); Worobey v. Sibieth, 136 Conn. 352, 355, 71 A.2d 80 (1949); exceptions to this rule have been recognized where an injustice, sufficient to raise an equitable trust, would otherwise result. ... In such cases, a trust does not arise so much by reason of the parol agreement of the parties but by operation of law. . . . In Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 386, 122 N.E. 378 (1919), Judge Cardozo wrote: ‘A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a [trustee ....]’ See 5 [A. Scott], Trusts [(3d Ed. 1967)] § 462, p. 3,413. The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment. . . . Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. . . . One holding title to property upon which a constructive trust is imposed is not compelled to reconvey the property because he is a constructive trustee; it is because he can be compelled to convey title to the property that he is a constructive trustee.” (Citations omitted.) Cohen v. Cohen, supra, 182 Conn. 202-203.

This case seems particularly suited to the imposition of a constructive trust, as the attorney trial referee recommended. To allow the defendant to retain a property interest in 5 Idlewild Manor in Greenwich would unjustly enrich him at the plaintiffs expense. Similarly, to order a reconveyance to the plaintiff at this time would unjustly enrich the plaintiff at the defendant’s expense for the monetary damages he has suffered and for his continuing liability on the mortgage note. Therefore, we order the case remanded to the trial court to render judgment according to the attorney trial referee’s recommendations and to execute the suggested remedial measures contained therein. Once the plaintiff has reimbursed the defendant for his damages, and the defendant has been satisfactorily protected from future liability under the mortgage note, the property may then be reconveyed absolutely to the plaintiff. Protection of the defendant from liability under the mortgage may include, but not be limited to, the payment of the outstanding balance due on the mortgage note by the plaintiff, or the execution of an indemnity agreement whereby the plaintiff agrees to hold the defendant harmless from any future liability under the mortgage. We leave it to the trial court’s discretion to fashion an order that satisfactorily protects the defendant from liability on the mortgage.

The judgment is reversed in part and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       For purposes of this opinion in the appeal from consolidated cases in which Jennie T. Schmaling (deceased) was the plaintiff in the first case and the named defendant in the second case, and Scott M. Schmaling is the defendant in the first case and the plaintiff in the second case, Jennie T. Schmaling will be referred to as the plaintiff and Scott M. Schmaling will be referred to as the defendant. This is consistent with the attorney trial referee’s references to the parties throughout the proceedings. People’s Bank was named as a defendant in the second case but did not file an appearance. See footnote 3.

       We note that the attorney trial referee issued his initial report on October 4, 1994. The defendant then filed a motion to correct on October 18, 1994. The referee issued his rulings on the motion to correct and corrected findings on October 30, 1994.

       We note that the mortgagee, People’s Bank, luis not filed an appearance in this action despite being a named defendant in the defendant’s action seeking a partition. The attorney trial referee recommended that People’s Bank be defaulted in this action.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RUBEN SANTIAGO
    (AC 14769)
    Laveiy, Landau and Spear, Js.

      Argued December 2, 1997
    officially released March 10, 1998

      Michael G. Considine, with whom, on the brief, were Stanley A. Twardy, Jr., and Keith P. Carroll, for the appellant (defendant).

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

SPEAR, J.

The defendant, Ruben Santiago, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (l), rioting at a correctional institution in violation of General Statutes § 53a-179b, and possession of a weapon in a correctional institution in violation of General Statutes § 53a-174a. The defendant claims that the trial court (1) improperly restricted cross-examination of a prosecution witness concerning motive and bias in violation of the defendant’s sixth amendment right to confront witnesses, (2) abused its discretion by admitting into evidence irrelevant and highly prejudicial hearsay testimony concerning the defendant’s gang affiliation, (3) violated the defendant’s due process rights to a fair trial by admitting into evidence various weapons found at the crime scene and by declining to charge the jury on informant testimony, and (4) improperly declined to charge the jury that specific intent was an element of the offense of rioting at a correctional institution. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 28, 1990, several inmates at the Enfield medium security correctional facility (Enfield) were observed assembling at a picnic table in the compound. The group, consisting of approximately ten inmates, raced onto the miniature golf course that was located in an open recreational area at the center of the compound. As the charging group of inmates reached the golf course, a fight erupted. A correction officer, Leonard Burke, observed a group of inmates beating the victim. Burke recognized the defendant “[a]s apart of the group that was beating on” the victim. Another inmate, Walter Gouch, saw the defendant put a weapon up his sleeve after stabbing the victim.

As another correction officer, Antonio Cancel, approached the group, the defendant fled and was pursued by Cancel throughout the compound. During the chase, Cancel observed an object resembling a shank in the defendant’s hand. Scott Loos, another correction officer who had pursued the defendant, also observed the weapon in the defendant’s hand and saw the defendant drop it on the ground. When the officers finally reached the defendant, several inmates encircled the officers and temporarily prevented them from apprehending the defendant. Correction officers and law enforcement personnel retrieved several items from the compound, among which were an 8.5 inch metallic shank with tape wrapped around its handle, a razor blade wrapped in tape, and a pointed threaded metal rod.

The defendant was found guilty of the charges of conspiracy to commit assault in the first degree, rioting at a correctional institution and possession of a weapon in a correctional institution, and was acquitted of violating General Statutes §§ 53a-8 and 53a-55 (a) (1), first degree manslaughter as an accessory. This appeal followed.

I

The defendant first claims that the trial court improperly restricted the cross-examination of prosecution witness Gouch. Specifically, the defendant contends that the trial court violated his sixth amendment right to confront his accusers by precluding the questioning of Gouch with respect to whether he had received parole in exchange for giving statements to the police concerning the riot and for future testimony. The defendant contends that Gouch’s connection to the prosecuting authorities evidenced bias that the defendant should have been permitted to explore fully on cross-examination. While we agree that the trial court improperly restricted cross-examination on this subject, we conclude that the error was harmless.

Preliminarily, we note that “[i]t is axiomatic that [a] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him.” (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 307, 705 A.2d 181 (1997). Moreover, “[i]t is true that the scope and extent of cross-examination generally rest within the sound discretion of the trial court. . . . This discretion arises, however, only after the defendant has been permitted cross-examination and impeachment of a witness sufficient to satisfy the sixth amendment. . . . [A]n important function of cross-examination is the exposure [of] a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted.” (Citations omitted; internal quotation marks omitted.) State v. Joyce, 45 Conn. App. 390, 397-98, 696 A.2d 993, cert. granted, 243 Conn. 904, 701 A.2d 336 (1997).

In resolving this claim, we are guided by the “well established guidelines for determining whether a defendant’s right of cross-examination has been unduly restricted. ‘[W]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.’ State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32 (1992), quoting State v. Roma, 199 Conn. 110, 116, 505 A.2d 717 (1986).” State v. Lee, 30 Conn. App. 470, 486, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 553 (1994). In considering the nature of the excluded inquiry in the present case concerning Gouch’s relationship to the prosecuting authorities, we are guided by our Supreme Court’s holding that “[i]t is always relevant to the issue of bias that a witness may have a relationship to the prosecuting authorities in a criminal case.” Stale v. Santiago, supra, 332. The defendant does not claim that the parole authorities are part of the prosecutorial apparatus, but he does claim that the trial court improperly restricted the cross-examination of Gouch before defense counsel could adequately establish the connection between Gouch and the prosecution.

While we find that the trial court’s restriction of the cross-examination of Gouch was improper, we also find that the error was harmless. Specifically, we note that “[ajlthough the outright denial of a defendant’s opportunity to impeach a witness for motive, bias and interest implicates the constitutional protection of the confrontation clause, such a denial is subject to harmless error analysis.” State v. Colton, 227 Conn. 231, 253, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996), citing United States v. Anderson, 881 F.2d 1128, 1139 (D.C. Cir. 1989). “The correct inquiiy for identifying harmless constitutional error is to ask whether, ‘assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.’ ” State v. Santiago, supra, 224 Conn. 333, quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986); States v. Oehman, 212 Conn. 325, 332, 562 A.2d 493 (1989); see also State v. Francis, 228 Conn. 118, 124, 635 A.2d 762 (1993). “Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Internal quotation marks omitted.) State v. Santiago, supra, 333.

In the present case, the defendant contends that Gouch was “the state’s only witness who could provide direct evidence of [the defendant’s] active participation in the assault on [the victim].” Our examination of the record reveals that, in addition to the testimony of Gouch, an inmate, there was testimony from several correction officers who directly observed and testified to the facts that the defendant was among the group of assaulting inmates and that, during a chase by correction officers throughout the yard, he had a long, pointed, sharp-edged metal object in his hand. Additionally, a correction officer testified that he observed the defendant drop the object, which appeared to be a shank, to the ground during the chase. We are persuaded that Gouch’s testimony was merely cumulative of myriad other evidence in the record that constituted a strong case against the defendant for conspiracy to commit first degree assault.

We note also that Gouch’s credibility was effectively attacked during cross-examination when Gouch admitted that he had lied in claiming that he had seen the defendant throw down a knife after the victim was stabbed. Gouch’s credibility was also impeached by evidence of his prior felony convictions. Most telling, however, was the jury’s acquittal of the defendant on the manslaughter count, where Gouch was the only witness who claimed to have actually seen the defendant repeatedly stab the victim. Accordingly, we find that the trial court’s improper restriction of the cross-examination of Gouch was harmless beyond a reasonable doubt.

II

The defendant next claims that the trial court abused its discretion by admitting into evidence prejudicial and irrelevant hearsay testimony that the defendant was affiliated with the Latin Kings. We decline to review the prejudice and relevancy claims as they were not made at trial and the hearsay claim was not preserved.

The defendant claims that evidence that he was affiliated with the Latin Kings should not have been admitted because of its highly prejudicial impact. The defendant, however, made no claim of prejudice to the trial court. His two earlier successful objections were made on the ground of hearsay, not prejudice. The record reveals that “again” was the only word spoken by defense counsel after the subject question and answer. Given this context, it is clear that the court allowed the answer to stand because it was not offered for the truth of the statement, but rather to explain the witness’ actions. The prejudice and relevancy claims that the defendant now raises on appeal were never presented to the trial court. We will not, therefore, consider them on appeal. See Practice Book § 4061; In re Michael A., 47 Conn. App. 105, 110, 703 A.2d 1146 (1997); Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).

With respect to the hearsay claim, the defendant’s counsel said, “All right, all right,” after the court stated that it was allowing the answer to stand in view of the state’s claim that the statement was not offered for its truthfulness. The state’s two earlier attempts to adduce evidence regarding the Latin Kings were not so limited. Hearsay can be admitted to explain a person’s actions. See O’Shea v. Mignone, 35 Conn. App. 828, 833, 647 A. 2d 37, cert. denied, 231 Conn. 938, 651 A.2d 263 (1994); State v. Robinson, 213 Conn. 243, 257-58, 567 A.2d 1173 (1989). The record clearly shows that the defendant acquiesced in what appears to have been a correct ruling by the court. We note also that evidence of the defendant’s affiliation with the Latin Kings was admitted in the defense case without objection. We therefore find no merit in this claim.

Ill

The defendant next claims that the trial court violated his due process right to a fair trial by admitting into evidence the shank, razor blade and metal rod. The defendant contends that these items were highly prejudicial, inflammatory, and lacked relevance because the state did not attempt to link them to either the defendant or any other inmate who used a weapon during the riot. We disagree.

We first address the defendant’s contention that this claim is of constitutional magnitude. This claim is solely of an evidentiary nature. It is well settled that “ [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997).

With respect to the defendant’s contention that the evidence was irrelevant, we have stated that “[rjelevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Emphasis in original; internal quotation marks omitted.) Id., 788-89.

The state contends that the shank, razor blade and metal rod were admitted as evidence of a disturbance involving weapons at Enfield. “In order for a defendant to be found guilty of rioting at a correctional institution, he must plan or lead the disturbance, or take part in the disturbance at the correctional facility.” State v. Rivera, 30 Conn. App. 224, 232, 619 A.2d 1146, cert. denied, 225 Conn. 913, 623 A.2d 1024 (1993). This evidence tended to prove that a disturbance did, in fact, take place. Under the circumstances of this case, we cannot say that the trial court’s admission into evidence of the shank, razor blade and metal rod was an abuse of discretion. Accordingly, this claim is without merit.

IV

The defendant next claims that the trial court improperly declined to charge the jury on informant testimony, thereby violating his due process right to a fair trial. The defendant contends that the trial court was bound to instruct the jury to scrutinize carefully Couch’s testimony for bias. Not only is there an absence of authority to support this proposition, but, in fact, “[a] criminal defendant is not entitled to an instruction singling out any witness who testifies for the state regarding that witness’ possible motivation for testifying falsely.” (Emphasis added.) State v. Sinchak, 47 Conn. App. 134, 143, 703 A.2d 790 (1997), cert. granted on other grounds, 243 Conn. 964, 707 A.2d 1266 (1998). Moreover, our Supreme Court has stated that “[t]o require the court to single out witnesses upon request for comment upon their interest in the outcome of the case as a motive to falsify their testimony would not only constitute regression in the progress achieved in permitting the jury to identify and weigh such motives for themselves, but would also, in many circumstances, frustrate the efforts of the trial judge to deliver evenly balanced instructions to the jury to consider the interest in the outcome of all the witnesses, testifying for both sides. In some circumstances, to require such an instruction would invade the province of the jury which has repeatedly been held by this court to be the sole body to determine the credibility of witnesses.” State v. Cooper, 182 Conn. 207, 217-18, 438 A.2d 418 (1980). Accordingly, we conclude that the defendant’s claim is without merit.

V

The defendant finally claims that the trial court violated his due process right to a fair trial by declining to charge the jury that specific intent is an element of the offense of rioting at a correctional institution under § 53a-179b. The defendant has offered no authority to support his proposition that specific intent is an element of the offense of rioting at a correctional institution. We reject the claim because we have previously held that “the offense of rioting at a correctional institution does not require any particular scienter; it is not a specific intent crime.” (Emphasis added.) State v. Nelson, 44 Conn. App. 264, 270, 689 A.2d 481 (1997); see also State v. Nixon, 32 Conn. App. 224, 250, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995).

The judgment is affirmed.

In this opinion the other judges concurred.

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

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

       General Statutes § 53a-179b (a) provides: “A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.”

       General Statutes § 53a-174a (a) provides: “ A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable.”

       The sixth amendment to the United States constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”

       A shank was described by one of the state’s witnesses as a homemade knife.

       The following is testimony excerpted from the defendant’s cross-examination of Gouch:
      “[Defendant’s Counsel]: And your parole is over now?
      “[Gouch]: Long time ago.
      “[Defendant’s Counsel]: Wasn’t your original sentence—was it twelve years?
      “[Assistant, State’s Attorney]: I’m going to object to this, Your Honor.
      “[Defendant’s Counsel]: Well, he got, an early parole—early termination from parole—
      “[Assistant State's Attorney]: Counsel’s not supposed to be testifying.
      “[Defendant’s Counsel]: Well, that’s, I mean if you do the math—
      “The Court: Well, wait a minute, [counsel], the only thing indicated on the sentencing is twelve years.
      “[Assistant State’s Attorney]: Well, Your Honor, that’s not something that is relevant now. It can be, the subject of this was whether he was given anything in exchange for his cooperation. “The Court: The answer by Mr. Gouch . . . was no.
      “[Defendant’s Counsel]: And the inquiry now is that he got a benefit, a different benefit than an early termination parole. Parole seems to be prematurely terminated.
      “[Assistant State’s Attorney]: Again, Your Honor, this is counsel’s testifying.
      “The Court: Strike that from the jury’s mind, the remarks of counsel.
      “[Defendant’s Counsel]: I’m just telling you my reasons for asking the question.
      “[Assistant State’s Attorney]: I don’t believe [counsel] was asked.
      “The Court: I’ll sustain the objection. Move on [counsel].”

       The following is the relevant trial testimony that was elicited during the state’s questioning of Officer Nelson Rodriguez:
      “Q. Did you transfer out of the institution any [one] besides the three Latin Locals that you already indicated?
      “A. Yes we did.
      “Q. Was the defendant among those?
      “A. I believe Mr. Santiago was transferred later.
      “Q. Why?
      “A. Because of his affiliation with the incident.
      “Q. And he was affiliated with either group?
      “A. Yes, he was.
      “Q. And with which group?
      “A. Latin Kings.
      “[Defendant’s Counsel]: Again.
      “[Assistant State’s Attorney]: At this point, I claim it to explain his actions, not for the truth of the matter.
      “The Court: It’s his mental state. He can say why he did something.
      “[Defendant’s Counsel]: All right, all right.”

       The following is the relevant trial testimony regarding the state’s attempt to adduce evidence regarding the Latin Kings:
      “Q. And with respect [to] Luis Rivera, the deceased, and the other inmate who was injured, I believe you said his name was Rodriguez also?
      “A. Yes.
      “Q. Do you know what, if they had any affiliation with any group?
      “A. My understanding [is that] they were affiliated with the Latin Locals.
      “Q. And with respect to the defendant and [two other inmates] who were taken into custody at the same time as he, were you aware of their affiliation?
      “A. At the time no, but after we [began] taking [them into] custody it was brought to my attention that they also were part of the Latin Kings.
      “[Defendant’s Counsel]: Wait a minute, I’m going to object to that answer as at least possibly a hearsay declaration. I don’t know what the source of his information was.
      “The Court: You want to claim the question?
      “[Assistant State’s Attorney]: Well, I can get at it another way.
      “The Court: All right.
      “Q. Was part of your duties to—
      “[Defendant’s Counsel]: Well, may that be stricken, then?
      “The Court: It will be stricken.
      “Q.—to investigate what might have motivated this disturbance?
      “A. I didn’t hear your first part.
      “Q. Was part of your job to determine what might have motivated this disturbance?
      “A. Yes.
      “Q. And you mentioned that some of the individuals involved were affiliated with the Latin Kings, is that correct? “A. Yes.
      “Q. And I believe you said that the fifteen who remained in the yard at the, until the very end were, Latin Kings?
      “A. Uh huh, yes.
      “Q. You’ve earlier mentioned a group that was preventing your staff from taking [the defendant] into custody?
      “A. Yes.
      “Q. Were any of those and the fifteen who remained, the holdouts, the same people?
      “A. Were they the same people as far as—as the sense in, well, when I first took the three individuals off for questioning—
      “Q. Now by the three you mean the defendant, [and two other inmates taken into custody]?
      “A. Right.
      “Q. All right?
      “A. We took them into A building. I didn’t find out until after the fact that they were Latin Kings through our security risk group coordinator.
      “ [Defendant’s Counsel]: That’s the hearsay declaration that I was objecting to at first.
      “Q. Did you have to take any action with respect to—
      “[Defendant’s Counsel]: Wait, I ask that that response be stricken as well.
      “The Court: You claim the question and the answer?
      “[Assistant State’s Attorney]: I’m not sure the answer was responsive to, or not all of the answer was responsive.
      “The Court: All right, I’ll instruct the jury to strike the answer. Do not rely on that as evidence provided.”

       In the defense’s case, Detective Charles Revoir testified during cross-examination that the defendant stated that he was a member of the Latin Kings. This statement was admitted for its truthfulness, unlike the evidence of Latin King affiliation that was introduced in the state’s case to show motivation. The defendant’s claim that an objection would have been in vain because evidence of gang affiliation had already been admitted is, therefore, without merit.

       We are further persuaded by the jury’s acquittal of the defendant of the manslaughter charge that these weapons did not so inflame the jury as to make their admission into evidence more prejudicial than probative.


author: LAVERY, J.

text:
    ROSALIE ZANONI v. PAUL A. HUDON, CONSERVATOR (ESTATE OF HELEN A. BENNY), ET AL.
    (AC 14012)
    O’Connell, C. J., and Lavery and Spear, Js.

      Argued December 11, 1997
    officially released March 10, 1998

      Michael A. DAmico, for the appellant (plaintiff).

      Karen L. Murdoch, with whom was Kevin Hawkins, certified legal intern, for the appellee (defendant).
   Opinion

LAVERY, J.

The plaintiff, Rosalie Zanoni, appeals from the trial court’s granting of the defendant conservator’s motions for directed verdict. The plaintiffs first claims on appeal are that the trial court improperly shielded the defendant from liability for breach of contract and for unjust enrichment and conversion. The court determined that because the sale of real estate between the plaintiff and defendant conservator had been approved by the Probate Court and because the deposit of $16,500, made pursuant to that contract, had previously been listed on the conservator’s final account, which was allowed and approved by the Probate Court, the defendant was acting as agent for the Probate Court and, therefore, was not liable individually.

The plaintiff raises as a final claim that the trial court improperly found that it lacked subject matter jurisdiction over the plaintiffs breach of contract, unjust enrichment and conversion claims against the defendant.

The trial court reasonably could have found the following facts. In February, 1989, the defendant was appointed conservator of the estate of Helen A. Benny by the Probate Court for the district of Newington. On June 2, 1989, the plaintiff, as buyer, and the defendant, as conservator, entered into a sales and purchase agreement for real property owned by Benny and located at 21 Brightwater Road in Old Lyme. The sale and purchase agreement for this property stated that the plaintiff was to pay $16,500, as a deposit for the purchase price of $165,000 and that the down payment would be forfeited as liquidated damages in the event that the plaintiff did not pay the balance of the purchase price at closing. The contract also stated that time was of the essence and specified a closing date of no later than July 17,1989. The sale of the property was authorized by the Probate Court. The plaintiff made the $16,500 down payment, but failed to tender the balance of the purchase price on the closing date or at any time before the death of Benny on August 7, 1989. The plaintiff claimed that the defendant could not deliver a marketable title, which the defendant disputes. Benny’s death terminated the defendant’s conservatorship.

On September 12, 1989, the defendant filed his final account as conservator with the Probate Court listing the $16,500 as an asset of the estate. On September 25, 1989, the plaintiff was appointed executrix of the estate of Helen Benny pursuant to Benny’s will. On November 1, 1989, the Probate Court approved the defendant’s final account as conservator. The plaintiff, as executrix, but not individually, appealed to the Superior Court from the Probate Court’s approval of the final account. The plaintiffs appeal was dismissed on January 28, 1991, for her failure to appear through counsel. On March 27, 1991, the plaintiff was removed as executrix and was replaced. On August 5, 1991, the defendant transferred the $16,500 to the successor administrator from his client’s funds account.

The plaintiff brought suit against the defendant as conservator and individually in six counts seeking money damages for unjust enrichment, conversion and breach of contract. A seventh count was against the administrator of the estate requesting declaratoiy relief. The defendant filed a counterclaim for abuse of process. The case was tried to a jury. On April 24, 1994, the trial court granted the defendant’s motions for directed verdict as to the complaint and the plaintiffs motion for directed verdict as to the defendant’s counterclaim. The court issued a memorandum of decision on August 25, 1994, and a supplemental memorandum of decision on September 13, 1994. On November 7, 1996, the Probate Court declared that the estate of Helen A. Benny was insolvent. This appeal followed.

I

The plaintiffs underlying claim is that the trial court improperly concluded that the defendant could not be sued individually or as conservator and, therefore, the court should not have granted the defendant’s motion for directed verdict.

“ ‘The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 701, 569 A.2d 1157 [cert. denied, 214 Conn. 809, 573 A.2d 320] (1990).’ Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990). In reviewing the trial court’s action in directing a verdict for [the defendants], we must consider the evidence in the light most favorable to the plaintiff. Petyan v. Ellis, supra [244]; Merola v. Burns, supra [636].” Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

As to the plaintiffs claim of breach of contract against the defendant individually, the trial court concluded that because the Probate Court approved the contract of sale, the defendant was acting as an agent of the Probate Court and could not be held individually hable. We agree.

“A conservator has an implied power to enter into contracts on behalf of his ward’s estate where such contracts involve the exercise of the express or implied powers which are granted to the conservator by statute. ... If such a contract has been previously authorized by the Probate Court, or is subsequently approved by that court, the ward’s estate will be bound thereto. . . . The authorization or approval by the Probate Court, however, is essential, and without it the ward’s estate is not liable.” (Citations omitted.) Elmendorf v. Poprocki, 155 Conn. 115, 118, 230 A.2d 1 (1967). “The Probate Court is under an affirmative duty to protect the assets of an incompetent’s estate. Marshall v. Kleinman, 186 Conn. 67, 69, 438 A.2d 1199 (1982). The court, and not the conservator, is primarily entrusted with the care and management of the ward’s estate, and, in many respects, the conservator is but the agent of the court.” (Emphasis in original; internal quotation marks omitted.) Marcus Appeal from Probate, 199 Conn. 524, 529, 509 A.2d 1 (1986).

“A conservator is a fiduciary and acts ‘at his peril and on his own personal responsibility’ unless and until his actions in the management of the ward’s estate are approved by the Probate Court. Elmendorf v. Poprocki, [supra, 155 Conn. 119]; Marshall v. Kleinman, [supra, 186 Conn. 69-70].” Marcus’ Appeal from Probate, supra, 199 Conn. 533.

The plaintiff argues that the defendant remains individually liable and cites to Mitchell v. Hazen, 4 Conn. 495, 514-15 (1823), as the decision closest to this case. In Milchell, it was held that where the Probate Court approved the sale of certain real estate, but not specifically with a warranty of title, the administrator of the estate was personally liable for a breach of this covenant because the warranty of title was beyond the power authorized by the Probate Court. It is the plaintiffs argument that in this case, because the Probate Court did not authorize a breach of contract, the defendant has acted beyond the power approved by the Probate Court and at his own peril by not returning the $16,500 deposit. We disagree.

In this case, the plaintiff and the defendant, as conservator, entered into a written contract for the purchase of real estate. The Probate Court approved the contract, which included language concerning the deposit and its potential forfeiture. Thus, the defendant was not individually liable for actions taken in accordance with the approved terms of the contract. He was merely acting as agent for the Probate Court. “Upon the facts found we have the case of an agent within the scope of his authority contracting with a third party for a known principal, and no fact in the finding shows that the contract was with the agent personally. Under such circumstances, the liability is upon the principal and the agent is not liable. . . . An authorized agent for a disclosed principal, in the absence of circumstances showing that personal responsibility was incurred, is not personally hable to the other contracting party.” (Citations omitted; internal quotation marks omitted.) Whitlock’s, Inc. v. Manley, 123 Conn. 434, 437, 196 A. 149 (1937).

II

The plaintiff also brought claims of unjust enrichment and conversion against the defendant as an individual and as conservator, and on appeal claims that the trial court improperly ruled in the defendant’s favor because the sale had been approved by the Probate Court and because the deposit of $16,500 had been approved as an asset of the estate.

“Conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights.” Polivy v. Air One, Inc., 46 Conn. App. 573, 577, 700 A.2d 71, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997). To establish a prima facie case of conversion, the plaintiff had to demonstrate (1) that the $16,500 deposit given to the defendant conservator belonged to the plaintiff, (2) that the defendant deprived the plaintiff of her funds for an indefinite period of time, (3) that the defendant’s conduct was unauthorized and (4) that the defendant’s conduct harmed the plaintiff. See Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993).

“ ‘Unjust enrichment is a very broad and flexible equitable doctrine . . . which has as its basis that it is contrary to equity and good conscience for the defendant to retain a benefit which has come to him at the expense of the plaintiff. ... Its three basic requirements are (1) that the [defendant was] benefited, (2) that the [defendant] unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiffs] detriment.’ ” (Citations omitted.) Eastern Metal Products, Inc. v. Deperry, 44 Conn. App. 60, 61-62, 686 A.2d 1003 (1997).

In resolving these claims, the trial court stated that because “the defendant was acting as an agent of the Probate Court in entering into this contract and in retaining the down payment after he determined the plaintiff had breached the contract, it is difficult to understand how it could be said [that] the defendant could be held for conversion or how it could be found that he personally benefited from the retention of the money. He retained the funds in a trustees’ account and turned them over to the estate where in a final accounting the Probate Court determined the moneys were an asset of the estate.”

Upon our review of the facts in this case, we agree with the trial court’s determination that the defendant did nothing wrong. As conservator, the defendant was granted approval to sell the property in question to the plaintiff with specified terms. Upon his determination that the plaintiff breached the contract, the defendant retained the $16,500 as specified in the contract. Further, there is no evidence that the defendant benefited either as an individual or as conservator from the retention of these funds in a trustee account. Upon the death of his ward and the termination of the conservatorship, the defendant properly included the money as part of the final accounting, which the Probate Court subsequently approved as an asset of the estate.

Any claim for the deposit money must be brought against the estate. See General Statutes §§ 45a-353 through 45a-365. The fact that the estate is now insolvent does not mean that the plaintiff can go after the defendant individually or as conservator. Again, the defendant was only an agent acting for the Probate Court who ceased having any power upon the death of his ward. At that time, the only action the defendant could properly take was to submit his final accounting for the approval of the Probate Court, which he did. The trial court correctly concluded that the defendant could not be held liable as an individual or as a conservator for any of the claims raised by the plaintiff and properly granted the defendant’s motions for directed verdict.

Because the trial court properly adjudicated the plaintiffs action against the defendant, the plaintiffs final claim on appeal is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant, Paul Hudon, filed motions for directed verdict individually and as conservator of the estate of Helen A. Benny.

       The plaintiffs appeal originally contained a separate issue stating: “Did the trial court err in entering judgment granting defendant’s, Karen Renzulli Lynch, Successor Administrator d.b.n.c.ta. of the Estate of Helen A. Benny, motion for directed verdict dated April 26, 1994? Specifically, did the trial court lack subject matter jurisdiction to entertain plaintiffs request for declaratory relief because the deposit of $16,500 had previously been listed on the conservator’s final account allowed and approved by the Probate Court?” On November 7, 1996, the Probate Court declared that the estate was insolvent. On March 6,1997, the motion to abate under General Statutes § 45a-382, filed by the administrator of the estate, was granted, and the claim against the administrator was dismissed.

       General Statutes § 45a-660 (a) (3) provides: “If any ward having a conservator dies, his or her property other than property which has accrued from the sale of his or her real property shall be delivered to his or her executor or administrator. The unexpended proceeds of his or her real property sold as aforesaid shall go into the hands of the executor or administrator, to be distributed as such real property would have been.”


text:
    STATE OF CONNECTICUT v. GARY OLIVER
    (AC 15854)
    O’Connell, C. J., and Lavery and Daly, Js.
    Argued December 4, 1997
    officially released March 10, 1998

      J. Brendan Sharkey, special public defender, for the appellant (defendant).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, J.

The defendant, Gary Oliver, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). On appeal, the defendant claims that the trial court improperly (1) refused to instruct the jury that it could draw an adverse inference from the state’s failure to call a witness and (2) allowed the introduction of prejudicial evidence of previous misconduct on the part of the defendant. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At the time of the incident in question, the victim, Martin Leaks, was approximately sixty years old and unemployed. Leaks suffered from a disabling condition and received supplemental security income (SSI) in the amount of $400 per month and supplemental payments from the state in the amount of $300 per month. Leaks’ SSI check arrived on the first of the month, and his supplemental check from the state arrived on the third of the month. Leaks testified that he occasionally used cocaine. He further testified that he had known the defendant for four to six months and that the defendant had sold him drugs at his apartment. As the result of their dealings, the defendant knew when Leaks received his checks.

On October 4, 1994, Leaks and his son, Rodney Boyd, were in Leaks’ apartment at 5:30 or 5:45 p.m. when there was a knock at the door. Leaks asked who it was, and someone responded, “G.” Because Leaks knew someone who went by G, Boyd opened the door. The defendant and three or four other men then entered the apartment. Leaks was sitting on a couch when the men entered. The defendant sat in a chair while the other men remained standing. The defendant then said to Leaks, “Pops, you got money?” Leaks responded, “No, I don’t have no money.” One of the other men then said to the defendant, “G, search him, see if he got money.” This same man had a gun in his hand and began looking around the apartment. Suddenly, Leaks noticed that the defendant “was back at the door.” The man with the gun walked up to Leaks, looked at him, said, “Why are you smiling?” and shot him. The shooter then reached into Leaks’ pockets and took his money and food stamps. The defendant, the shooter and the other men left the apartment through the back door. Leaks managed to get to a neighbor’s apartment and called the police.

Officer Pasquale Marino arrived on the scene within minutes and found Leaks lying on the floor in front of the couch suffering from a gunshot wound to the hip. Leaks and Boyd gave Marino a description of one of the perpetrators and said the man’s name was G. Also at the scene was Detective William Piascyk, who spoke to Boyd and requested that he accompany him to the police station. Boyd refused. Leaks was taken by ambulance to a hospital and treated for the gunshot wound.

Later that evening, Marino saw a man in the parking lot outside Leaks’ apartment who matched the description provided by Leaks and Boyd. The man was later identified as the defendant. Marino asked the defendant if he went by the name of G and the defendant responded, “Some people call me that.” Marino then asked the defendant if he knew anything about the earlier incident. The defendant replied that he had been there when Leaks was shot. The defendant was taken into custody and brought to the New Haven police station. After having been read his rights and having signed a waiver, the defendant gave an oral statement to the police. The defendant gave the police a description of one of the men who was at Leaks’ apartment, whom he referred to as Mike, and said that the shooter was “Mike’s home boy.”

I

The defendant first claims that the trial court improperly refused to deliver an adverse inference instruction in its jury charge regarding the state’s failure to call as a witness the victim’s son, Boyd. We are unpersuaded.

At trial, the defendant filed a proper request with the trial court seeking a charge to the jury as to Boyd as a missing witness pursuant to Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court did not charge as requested and the defendant duly excepted.

“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 instruction against the party who would be expected to call that witness. ... An inquiry into the appropriateness of a Secondino instruction is, accordingly, two-pronged: whether the witness is available and whether, under the facts of this case, the witness is one whom the state would naturally be expected to produce.” (Citations omitted; internal quotation marks omitted.) State v. Wood, 208 Conn. 125, 140, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). “A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.” Secondino v. New Haven Gas Co., supra, 147 Conn. 675.

“This court has consistently held that [w]hether an absent witness has superior or peculiar information and whether an adverse inference can be drawn is a question of fact for the trier. Perl v. Case, 3 Conn. App. 111, 115, 485 A.2d 1331 [cert. denied, 195 Conn. 803, 491 A.2d 1103] (1985). This court cannot reverse or modify the trial court’s determinations of fact unless they are clearly erroneous. Buddenhagen v. Luque, 10 Conn. App. 41, 44, 521 A.2d 221 (1987). State v. Williams, 20 Conn. App. 263, 266, 565 A.2d 1365 (1989).” (Internal quotation marks omitted.) State v. Jurgensen, 42 Conn. App. 751, 758, 681 A.2d 981, cert. denied, 239 Conn. 931, 683 A.2d 398 (1996).

“To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it.” (Internal quotation marks omitted.) State v. Rosa, 170 Conn. 417, 431, 365 A.2d 1135, cert. denied, 429 U.S. 845, 97 S. Ct. 126, 50 L. Ed. 2d 116 (1976). “That is, the party claiming the benefit of the ruling must show that the witness is available and that the witness is one whom the party would naturally produce.” (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 771, 443 A.2d 1274 (1982). “[T]he trial court must make a preliminary determination that there is evidence in the record to support these elements.” Hines v. St. Vincent’s Medical Center, 232 Conn. 632, 638, 657 A.2d 578 (1995).

In denying the defendant’s request, the trial court stated that “the evidence in the case of his apparent noncooperation with the police in connection with the investigation into this crime . . . causes the court to conclude that he is not a witness that naturally the state would produce.” When initially questioned, Boyd gave an oral statement to Marino. Boyd then refused to cooperate further when Piascyk requested that he come to the police station to give a formal statement and to look at some photographs.

In reviewing a trial court’s findings of fact, we are governed by the clearly erroneous standard of review. “A finding of fact is clearly erroneous when there is no evidence to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Strickland, 42 Conn. App. 768, 773, 682 A.2d 521 (1996), rev’d on other grounds, 243 Conn. 339, 703 A.2d 109 (1997).

Upon our review of the entire record, we cannot say that the trial court’s determination that Boyd was uncooperative with the police and, therefore, someone unlikely to be a good witness for the state or a witness whom the state would naturally produce is clearly erroneous. The trial court’s decision not to deliver the See-ondino instruction was, therefore, not an abuse of discretion. Because we agree with the trial court’s determination as to the second prong for determining the appropriateness of a Secondino charge, we do not address the defendant’s claim respecting availability.

II

The defendant next claims that the trial court improperly admitted evidence that he had a drug dealing relationship with Leaks. The defendant argues that the prejudicial impact of this testimony clearly outweighs its limited probative value. We disagree.

Prior to the commencement of trial, the state sought to present testimony that the defendant had sold narcotics to Leaks during the four to five month period prior to the shooting. The trial court, after hearing arguments concerning the admissibility of the proffered testimony, allowed it into evidence.

Leaks then testified that he had known the defendant for four to six months prior to the shooting and that he knew the defendant because the defendant sold drugs to him. He further testified that the defendant knew that he received his disability checks on the first and third of each month. The only evidence of the defendant’s drug dealing came in through this testimony by Leaks.

As part of its charge to the jury, the trial court gave a limiting instruction as to the jury’s consideration of this evidence. The court informed the jury that the testimony was to be used only for the purposes for which it had been admitted, that is, as some evidence that the drug dealing relationship enabled the defendant to know when Leaks would have money in his apartment, and as some evidence relevant to the defendant’s motive when he entered Leaks’ apartment on October 4, 1994. Further, the trial court reminded the jury that the defendant was not charged with any drug related offense.

“As a general rule, evidence of a defendant’s prior crimes or misconduct is not admissible. State v. Crumpton, 202 Conn. 224, 228, 520 A.2d 226 (1987); State v. Geyer, 194 Conn. 1, 5, 480 A.2d 489 (1984). We have, however, recognized exceptions to the general rule if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). [Prior misconduct] evidence may also be used to corroborate crucial prosecution testimony. United States v. Everett, 825 F.2d 658, 660 (2d Cir. 1987), cert. denied, 484 U.S. 1069, 108 S. Ct. 1035, 98 L. Ed. 2d 999 (1988) .... State v. Santiago, 224 Conn. 325, 338, 618 A.2d 32 (1992); State v. Duntz, 223 Conn. 207, 240, 613 A.2d 224 (1992). . . .

“To determine whether evidence of prior misconduct falls within an exception to the general rule prohibiting its admission, we have adopted a two-pronged analysis. State v. Brown, supra, [199 Conn.] 56. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence. State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); State v. Shindell, 195 Conn. 128, 134, 486 A.2d 637 (1985).” (Internal quotation marks omitted.) State v. Cooper, 227 Conn. 417, 424-25, 630 A.2d 1043 (1993).

The defendant argues that the drug dealing evidence does not fall into any of the recognized exceptions to the nonadmissibility rule, and that the evidence is more prejudicial than probative. The defendant concedes that proof of motive is a recognized exception, but argues that in this case the evidence was not offered to show motive for the crime because the crime charged did not involve drugs.

The trial court could reasonably have concluded that the evidence of the defendant’s drug dealing relationship with Leaks was relevant and material because it showed that the defendant knew Leaks personally, knew where he lived, had been a visitor at Leaks’ apartment in the past and knew when Leaks received his monthly checks. This evidence was relevant in establishing the defendant’s motive when he brought the other men to Leaks’ apartment on October 4, 1994. In addition, it showed that the defendant had special knowledge that would assist him in the execution of the crime, specifically, when Leaks would have the most money to steal. See State v. Jones, 215 Conn. 173, 188, 575 A.2d 216 (1990). The trial court did not abuse its discretion in concluding that the evidence of the defendant’s drug dealing relationship with Leaks was relevant to show the defendant’s motive in the performance of the crime.

The next issue to be determined is whether the trial court abused its discretion in admitting the evidence of the defendant’s drug dealing relationship with Leaks. “The standard for review is clear. The admission of evidence of prior uncharged misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Cooper, supra, 227 Conn. 426-27.

A trial court’s admission of evidence that a defendant previously engaged in drug related activity is not necessarily prejudicial. See, e.g., id., 425-27; State v. Ryan, 182 Conn. 335, 338, 438 A.2d 107 (1980); State v. Harris, 43 Conn. App. 830, 837, 687 A.2d 544 (1996); State v. Jenkins, 24 Conn. App. 330, 335-36, 588 A.2d 648, cert. denied, 219 Conn. 903, 593 A.2d 132 (1991). In this case, any prejudicial effect was minimized because the only reference to the defendant’s drug dealing relationship with Leaks was during the course of Leaks’ direct examination. The trial court’s limiting instruction as to the proper use of this evidence also mitigated any prejudicial effect. See State v. Cooper, supra, 428; State v. Ryan, supra, 338 n.5. In addition, any potential prejudice was further reduced because the defendant was not charged with a drug related offense. See State v. Cooper, supra, 427.

Accordingly, we conclude that the trial court did not abuse its discretion in admitting evidence of the defendant’s prior misconduct, as this evidence was indeed more probative than prejudicial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon . . . .”

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”

       Leaks testified that his nickname is Pops.

         The defendant’s statement, as introduced by Marino, was as follows: “He [the defendant] stated he was there, he went to Pops’ apartment, heard some arguing, somehow was let in, a couple of other subjects in there, one he knew just by first name and more argument continued and then there was a shot. . . . [H]e asked Pops if he had been shot, and Pops told him no, so he said I’ll check on you later and he leaves.”

       The trial court stated in full: “In connection with the various requests to charge, I indicated to counsel in chambers that the defense request of the Secondino request, which is number two, failure to call witness, my recollection of the evidence with respect to the availability of Rodney Boyd does not satisfy the need to establish that he is available as a witness. And, in addition, the evidence in the case of his apparent noncooperation with the police in connection with the investigation into this crime raises—causes the court to conclude that he is not a witness that naturally the state would produce. If the defense wishes to produce [him, it] could, but I don’t think that the state is under that burden for the reasons I just indicated. Therefore, there will be no reference to the absence of Rodney Boyd from this proceeding .. . .”

       On direct examination, Marino testified as follows:
      “Q. While at the scene, did you ask Martin Leaks, the gentleman who received the gunshot wound, what had happened to him?
      “A. Yes, I did.
      “Q. Okay. And did he—did you ask anybody else about what occurred?
      “A. Yeah, his son, Rodney Boyd.
      “Q. Okay. Based on your questioning—strike that. Did Martin Leaks give you a physical description of one of the persons involved in this incident?
      “A. Yes, he did.
      “Q. Okay. And did Rodney Boyd also give you a physical description of one of the persons involved in this incident?

        “A. Yes.
      “Q. Okay. Based on the—did they also give you a name or a nickname?
      “A. Yes.”
      On direct examination, Piascyk testified as follows:
      “Q. Do you recall, officer, speaking to one Rodney Boyd?
      “A. Yes, sir. I spoke to Rodney Boyd.
      “Q. Okay. Did you request 1hat Mr. Boyd accompany you to the police department?
      “A. Yes, sir, I did.
      “Q. And what was the reason for requesting that?
      “A. I wanted to get a formal statement from him, maybe have him get some photographs.
      “Q. And did he agree to do that?
      “[Defense Counsel]: Objection, Your Honor. Objection, Your Honor.
      “[Piascyk]: No, he refused.
      “[Defense Counsel]: I’ll withdraw the objection, Your Honor.
      “The Court: Go ahead.
      “Q. He never gave a formal statement?
      “A. No, sir, he did not.
      “Q. And he never looked at any photographs?
      “A. No, sir, he did not.
      “Q. And that was his decision?
      “A. Yes, sir.”

       The trial court stated: “What [the assistant state’s attorney] wants to do is offer [evidence of the drug dealing relationship] to show that they did have a business relationship, which caused this defendant, according to the state, to know, based on their prior dealings and what went on, that at the beginning of the month, this victim, alleged victim, had funds and that they infrequently engaged in this business transaction at the beginning of the month when he had plenty of funds, that then gets into the knowledge of that fact with the defendant, which leads to why he was allegedly selecting that time frame to show up to do whatever he intended to do, whatever was done. . . .” After asking counsel the location of the incident in question, the trial court further stated: "This jury is going to speculate that this was all about drugs anyway, that’s what they are going to speculate. And I think in this day and age, the jury can be suitably instructed with the fact that this defendant may have in the past been involved in drug dealings and that this victim, for that matter, was involved in drug dealings because he was engaged in just as much of an illegal activity as the defendant was. It’s not the issue of this case. The defendant is not charged with anything to do with narcotics. It’s merely offered as an explanation as to how the defendant was aware that this victim allegedly would have these funds at the beginning of the month, and based on their prior dealings, that’s the only purpose of the offer, and I think they could be suitably instructed. And I do not believe that in today’s society this jury is going to hold that evidence against any defendant in judging his guilt on an assault case. Therefore, the evidence will come in.”

       The trial court stated: “Now, during the course of the trial, Mr. Leaks testified that he knew the defendant, who he said had the nickname G, I believe, because the defendant used to come to his apartment previously to sell him drugs and that this was how the defendant knew that Mr. Leaks received certain checks at the beginning of each month and, therefore, would have money in the apartment early in the month. Now, that evidence was not offered to prove that the defendant was a drug dealer and that if he is a drug dealer that he must be a bad person and, therefore, he must be guilty of robbery and larceny as charged in this case. That’s not the purpose of that evidence. The only purpose for which that was offered was a claim by the state that it was that relationship that enabled the defendant to know when Mr. Leaks would have money in his apartment and that it tends to show what the motive was when the defendant and the people allegedly with the defendant came to the apartment on October 4, 1994. Please remember this defendant is not charged with any narcotics offense, any drug charges. And if you should find that he may have been involved previously in selling drugs to Mr. Leales, it is to be considered by you only for the limited purpose that I just indicated.”

       In State v. Jones, supra, 215 Conn. 173, the defendant was on trial for kidnapping a woman in a park. The defendant’s statement that he was a drug addict and had used drugs in the same park where the kidnapping occurred was relevant and probative because it showed “the defendant’s knowledge that the area was not patrolled by the police.” Id., 188-89.