author: GRUENDEL, J.

text:
    JOHN SULLIVAN v. THOMAS THORNDIKE ET AL.
    (AC 33002)
    Gruendel, Beach and Bear, Js.

      Argued May 21■ —
    officially released July 31, 2012

      John Sullivan, pro se, the appellant (plaintiff).

      Robert P. Hanahan, with whom, on the brief, was Jason Musante, for the appellee (named defendant).
   Opinion

GRUENDEL, J.

The self-represented plaintiff, John Sullivan, appeals from the judgment of the trial court, rendered after a bench trial, in favor of the defendant Thomas Thorndike. He claims that the court improperly (1) failed to apply the law of the case and (2) determined that no contract existed between the parties. We affirm the judgment of the trial court.

The court’s memorandum of decision contains the following facts. The plaintiff is an attorney who also holds a master’s degree in real estate and finance. In 1996, he provided consulting services to Sowamco, a Texas based organization that sought to sell certain troubled assets it previously had acquired.

In his complaint, the plaintiff alleged that he and the defendant agreed to form a limited liability company for the purpose of purchasing and reselling real estate, in which they would be equal partners and divide all profits equally. That alleged agreement was not reduced to writing. In January, 1997, the defendant formed Diko Development, LLC (Diko), which consisted of two members — the defendant and Therese Santoro, who at that time was the defendant’s wife and known as Therese Thorndike. It is undisputed that the plaintiff was not a member of Diko. Nevertheless, the plaintiff that month wrote two checks payable to the defendant totaling $82,000. Acting on behalf of Sowamco, the plaintiff in February, 1997, oversaw the bulk sale of three Connecticut properties to Diko, which Diko in turn sold to third parties for a profit in subsequent years.

In 2001, the plaintiff filed his original complaint against the defendant alleging breach of contract and embezzlement arising from the parties’ failed attempt to form a limited liability company. A court trial followed. After the plaintiff rested his case, the defendant moved to dismiss the action pursuant to Practice Book § 15-8, which the court granted. In so doing, the court ruled that the plaintiff had not made out a prima facie case of breach of contract because he failed to establish damages and had not made out a prima facie case of embezzlement because he failed to establish ownership of the property at issue.

From that judgment, the plaintiff appealed to this court. Although we concluded that the court properly dismissed the embezzlement claim, we disagreed with the dismissal of the breach of contract claim. We stated: “The record supports the court’s finding that the plaintiff produced sufficient evidence to establish both the purchase price and sales price of each property. Viewed in the light most favorable to the plaintiff, we conclude that the evidence was sufficient at this early stage of the proceedings to show that a profit was made on the sale of the three properties. . . . Whether the plaintiff can sustain his burden past this stage of the proceedings is an entirely different matter and not a question that this court needs to answer to resolve this claim. The plaintiff has presented sufficient evidence of damages as an element of his breach of contract claim to survive the defendant’s motion for a judgment of dismissal.” (Citations omitted.) Sullivan v. Thorndike, 104 Conn. App. 297, 305, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908, 942 A.2d 415, 416 (2008). We therefore reversed that portion of the judgment of the court and remanded the matter “for a new trial as to breach of contract.” Id., 313.

A new trial was held over the course of three days in June, 2010. In its memorandum of decision, the court concluded that the plaintiff failed to establish the existence of a contract with the defendant. The court therefore rendered judgment in favor of the defendant, and this appeal followed.

I

The plaintiff first claims that the court improperly departed from the law of the case. More specifically, he maintains that the court erred because (1) the original trial court, in dismissing his breach of contract claim for failure to make a prima facie case of damages, also determined that sufficient evidence of an oral contract existed for purposes of surviving the defendant’s motion to dismiss and (2) in reversing the dismissal of the breach of contract claim, this court “confirmed that the trial court specifically found that a contract had been formed and that the defendant breached the contract.” The plaintiffs claim fundamentally misunderstands the law of the case doctrine.

The law of the case doctrine “expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . . Where a matter has previously been ruled upon interloc-utorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case . . . .” (Citation omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 80 Conn. App. 436, 448-49, 835 A.2d 491 (2003), cert. denied, 268 Conn. 920, 846 A.2d 881 (2004). As this court recently explained, “the law of the case doctrine does not preclude a judge from deciding an issue in a way contrary to how it was decided by a predecessor judge in the same case. . . . [It] provides that judges may treat a prior ruling as the law of the case if they agree with the determination. He or she may, however, decide the issue differently if he or she is convinced that the prior decision is wrong.” Vidiaki, LLC v. Just Breakfast & Things!!! LLC, 133 Conn. App. 1, 8-9, 33 A.3d 848 (2012).

In the original proceeding, the trial court did not determine that a contract existed between the parties. Rather, in deciding a motion to dismiss pursuant to Practice Book § 15-8, in which the court must accept as true the evidence submitted by the plaintiff and interpret it in a light most favorable thereto; see Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000); the court merely determined that the plaintiff under that minimal standard had submitted evidence of the existence of a contract sufficient to permit the case to proceed to a presentation of the defendant’s case and avert dismissal on that distinct basis. Likewise, in reversing the judgment of dismissal as to the breach of contract claim, we concluded that the evidence, viewed in the light most favorable to the plaintiff “at this early stage of the proceedings,” was sufficient “to survive the defendant’s motion for a judgment of dismissal.” Sullivan v. Thorndike, supra, 104 Conn. App. 305. At the same time, we emphasized that “[w]hether the plaintiff can sustain his burden past this stage of the proceedings is an entirely different matter and not a question that this court needs to answer to resolve this claim.” Id. Neither the original trial judge nor this appellate body definitively determined that a contract in fact existed between the parties. Accordingly, the law of the case doctrine is inapplicable to the present proceeding.

n

The plaintiff also challenges as clearly erroneous the court’s finding that he failed to establish the existence of a contract with the defendant to form a limited liability company. We disagree.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ... In order for an enforceable contract to exist, the court must find that the parties’ minds had truly met. ... If there has been a misunderstanding between the parties, or a misapprehension by one or both so that their minds have never met, no contract has been entered into by them and the court will not make for them a contract which they themselves did not make.” (Citation omitted; internal quotation marks omitted.) St. Germain v. St. Germain, 135 Conn. App. 329, 333, 41 A.3d 1126 (2012).

At trial, the parties presented contrasting explanations for the plaintiffs payment of $82,000 to the defendant in 1997. The court credited the defendant’s testimony that the plaintiffs $82,000 payment to him in January, 1997, constituted a loan to Diko. The defendant testified that he and the plaintiff were childhood friends and former business associates. The defendant further testified that, in early 1997, Sowamco was “in a rush” to sell the three properties at issue, and because he “didn’t have all the money to buy them [the plaintiff] offered to lend [him] the money .... We put a promissory note together and he gave me the money, $82,000.” Santoro similarly testified that Diko had secured a loan from the plaintiff in order to purchase the three properties in 1997. That testimony was corroborated by a promissory note dated January 15,1997, that the plaintiff introduced into evidence, which specified Diko as “borrower” and the plaintiff as “lender” for a principal amount of $82,000. The court did not credit the plaintiffs testimony that the $82,000 was not a loan, but an investment of capital in return for membership in Diko, emphasizing that the plaintiff on cross-examination conceded that said payment was a loan to Diko and that he could be considered a creditor thereof. Such credibility determinations are the exclusive province of the trial court as fact finder, which we refuse to disturb. See Hogan v. Lagosz, 124 Conn. App. 602, 612, 6 A.3d 112 (2010), cert. denied, 299 Conn. 923, 11 A.3d 151 (2011).

In addition, the court credited evidence that, despite his legal training and master’s degree in real estate and finance, the plaintiff never examined Diko’s records to verify that they reflected his membership interest. The court found, on the undisputed evidence before it, that the plaintiff was not a signatory on Diko’s bank accounts and did not sign any agreements or documents on its behalf. The court likewise found that the defendant “was responsible for the day-to-day management of the three properties and that he engaged independent contractors and paid expenses which were incurred.” The evidence at trial also indicated that despite receiving various payments from Diko in the years following its purchase of the Connecticut properties, which he characterized as profits in his amended complaint and trial testimony, the plaintiff never declared any profits from Diko on his income tax returns.

In light of the foregoing, the court determined that “no agreement between [the parties] was consummated” and that the plaintiffs payment of $82,000 was simply a “loan to a childhood friend” made in order to facilitate the purchase of the three properties from Sowamco. The record before us contains evidence substantiating those findings. Accordingly, we cannot say that the court’s finding that the plaintiff failed to prove the existence of a contract with the defendant to form a limited liability company was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although not licensed to practice law in this state, the court specifically found that the plaintiff is an attorney in light of his testimony that he obtained a law degree from the University of San Francisco School of Law and thereafter passed the Connecticut bar examination. In his appellate brief, the plaintiff does not contest that finding. We note also that the plaintiff was represented by counsel throughout this action prior to commencing the present appeal.

       The plaintiff also named Therese Thorndike as a defendant in his original complaint. The action against her was withdrawn, and she is not a party to this appeal. We therefore refer in this opinion to Thomas Thorndike as the defendant.

       Although the plaintiff asserts in his appellate brief that the record does not substantiate the finding that he worked as a consultant to Sowamco, he testified at trial that, in 1996, he “was doing some consulting work with a group out of Texas. These people typically would attack an area. They had a bunch of rich Texans who put money into a pot and their objective was to buy pools of nonperforming loans and credits. I was hired as an asset manager for them and saw many, many properties along the way and evaluated them in that particular endeavor.” Later in his testimony, the plaintiff stated that he “was a consultant” to the seller of the three properties at issue that were purchased by Diko Development, LLC.

       In its oral decision on the defendant’s motion to dismiss pursuant to Practice Book § 15-8, the court found that “[t]here was sufficient evidence to find that there existed at the last quarter of 1996 an oral contract and that the plaintiff and the defendant agreed that they would purchase and sell real estate together and share the profits.” (Internal quotation marks omitted.) Sullivan v. Thorndike, supra, 104 Conn. App. 304.

       The court further found, and the plaintiff does not dispute, that the defendant made $84,788.28 in monetary payments to the plaintiff between May, 1997, and August, 2000, and $15,000 in-kind payments to the plaintiff in the form of free rental of a property in Woodbury owned by Diko from August, 1999, to May, 2000.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    ELIZABETH RICHTER v. ALEXANDER G. RICHTER
    (AC 33189)
    Gruendel, Beach and Schaller, Js.

      Argued May 23 —
    officially released July 31, 2012

      Elizabeth A. Richter, pro se, the appellant (plaintiff).

      Edith F. McClure, for the appellee (defendant).
   Opinion

SCHALLER, J.

In this marriage dissolution action, the plaintiff, Elizabeth Richter, appeals from a judgment of the trial court awarding attorney’s fees to the defendant, Alexander G. Richter. Specifically, the plaintiff claims that the court abused its discretion by (1) concluding that she had engaged in litigation misconduct and (2) awarding attorney’s fees without affording her the opportunity at a hearing to question the attorney’s fee affidavit submitted by the defendant. We affirm the judgment of the trial court.

On July 27,2006, the plaintiff commenced the present action in the Superior Court seeking dissolution of her marriage to the defendant. On April 2, 2008, the trial corut, Epstein, J., entered a judgment of dissolution pursuant to an agreement between the parties. On April 17, 2009, the plaintiff filed a motion to open the judgment, claiming that the financial matters in the judgment were the product of fraud, coercion and mutual mistake. On June 30, 2010, the plaintiff filed a second motion to open, claiming that her right to due process was denied when the court permitted two successive attorneys to withdraw from representing her in 2007. On July 6, 2010, the defendant filed a motion for attorney’s fees arguing that the plaintiffs conduct in connection with the present litigation constituted litigation misconduct.

On September 16, 2010, the trial court, Hon. Herbert Barall, judge trial referee, issued a memorandum of decision denying the plaintiffs motions to open. The court also granted the defendant’s motion for attorney’s fees in its decision, finding that after the plaintiff filed her original motion to open, “the file has erupted from one and a half volumes to four volumes” and that “even while the court heard the case, the file was being peppered with motions and uninvited memoranda.” In addition, the court found that the plaintiff had caused “substantive legal costs to the defendant by filing false claims” and that she had filed the present case in order to “get even with a person she believed was her enemy. ” The court reserved determination of the precise amount of attorney’s fees to be paid by the plaintiff until after a hearing at which the plaintiff would be afforded the “opportunity to question the defendant’s attorney’s affidavit.”

The court scheduled a hearing on the amount of attorney’s fees for October 28, 2010. This hearing was postponed because the plaintiff was ill. A second hearing was scheduled for November 30, 2010. Although the plaintiff attended this hearing, she again informed the court that she was ill and could not participate. A telephonic hearing was subsequently scheduled by the court on December 22, 2010. The court issued an order requiring that the plaintiff participate in this hearing unless she provided medical documentation indicating that she would be unable to participate telephonicaily due to her medical condition. The record contains no indication that the plaintiff filed such a document with the court. Despite the issuance of the corut’s order, the plaintiff could not be reached at her home on December 22, 2010. The following day, the court issued a memorandum of decision denying the plaintiffs request to further postpone the hearing on attorney’s fees. In this memorandum, the court invited the plaintiff to question any item in the attorney’s fees affidavit in writing by January 5, 2011. The plaintiff did not respond to the court’s invitation.

On February 8, 2011, nearly five months after the defendant’s motion for attorney’s fees was granted, the court issued a memorandum of decision ordering the plaintiff to pay $56,210.18 to the defendant for attorney’s fees. In its decision, the court found that “there were 150 entries or filings between the filing of the [the plaintiffs initial] motion [to open] and the court’s decision [dated September 30, 2010].” The court also found that “[t]he plaintiff created ninety-three of [these] filings” and that “[t]his number of filings between the filing of a motion and the decision is highly unusual . . . .” The plaintiff filed the present appeal on February 25, 2011, challenging the court’s award of attorney’s fees.

“It is well established that we review the trial court’s decision to award attorney’s fees for abuse of discretion. . . . This standard applies to the amount of fees awarded . . . and also to the trial court’s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 304 Conn. 754, 815, 43 A.3d 567 (2012).

“[T]his state follows the general rule that, except as provided by statute or in certain defined exceptional circumstances, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. . . . That rule does not apply, however, where the opposing party has acted in bad faith. ... It is generally accepted that the court has the inherent authority to assess attorney’s fees when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. . . . This bad faith exception applies, not only to the filing of an action, but also in the conduct of the litigation. ... It applies both to the party and his counsel. . . . Moreover, the trial court must make a specific finding as to whether counsel’s [or a party’s] conduct . . . constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers to impose attorney’s fees for engaging in bad faith litigation practices.” (Internal quotation marks omitted.) Id., 817.

The plaintiffs first claim is that the court abused its discretion by concluding that she had engaged in litigation misconduct. Specifically, the plaintiff argues that the court’s finding of litigation misconduct was based solely on the fact that she had filed ninety-three documents and that, had the court engaged in a meaningful review of these filings, it would have discovered that they were necessary for the pursuit of her case. We disagree. Although the court did note the number of filings initiated by the plaintiff in its memorandum of decision dated February 8,2011, the record indicates that the award of attorney’s fees to the defendant was based on the merits of the plaintiffs motion to open and, more generally, the plaintiffs conduct during the course of litigation. Indeed, as noted previously, the court explicitly found that the plaintiff had “caused substantive legal costs to the defendant by filing false claims” and that the plaintiff had initiated the case in order to “get even” with the defendant.

The plaintiffs second claim is that the court abused its discretion by awarding attorney’s fees without affording her the opportunity to question the affidavit submitted by the defendant’s attorney at a hearing. Although we agree with the plaintiffs assertion that the party opposed to an award of attorney’s fees is entitled to question the amount of fees requested at a hearing; see Commission on Human Rights & Opportunities v. Sullivan, 285 Conn. 208, 239, 939 A.2d 541 (2008); the plaintiffs claim that she was deprived of a hearing on this issue is belied by the court’s repeated attempts to schedule a hearing. As noted previously, a hearing was scheduled for October 28, 2010, but was delayed because the plaintiff was ill. The hearing was then rescheduled for November 30,2010, but again continued at the request of the plaintiff. A telephonic hearing was then set for December 22, 2010. The plaintiff did not participate in this hearing despite the court’s ordering her to do so. Finally, the court invited the plaintiff to question any item in the attorney’s fees affidavit in writing by January 5, 2011. The plaintiff declined this invitation.

For the reasons given previously, we conclude that the court did not abuse its discretion in awarding attorney’s fees to the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       On September 21, 2010, and September 30, 2010, the trial court issued corrected memoranda of decision making certain clerical corrections to the opinion not relevant to the present appeal.

       This amount corresponds to the total of the fees and costs enumerated in the amended attorney’s fees affidavit submitted by the defendant on December 1, 2010.

       Although the plaintiff has also raised several claims of error pertaining to the court’s denial of her motions to open, this court granted the defendant’s motion to dismiss the plaintiffs appeal from these judgments as untimely on April 27, 2011. Consequently, our review is limited to the issue of attorney’s fees.


text:
    STATE OF CONNECTICUT v. CHRISTOPHER R. GONSALVES
    (AC 32375)
    Robinson, Alvord and SchaUer, Js.

      Argued February 1 —
    officially released July 31, 2012

      Gwendolyn S. Bishop, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Charles W. Johnson, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Christopher R. Gon-salves, appeals from the judgment of conviction, rendered after a trial by jury, of misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a) and reckless driving in violation of General Statutes § 14-222 (a). On appeal, the defendant claims that (1) the evidence was insufficient to support a conviction on the charge of misconduct with a motor vehicle and (2) the trial court improperly admitted evidence of the defendant’s driving prior to the accident, specifically that he did a “donut” in a school parking lot shortly before turning onto the road where the accident occurred. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s claims. On December 2, 2007, Zachary Choquette, William Siter and Peter Chase visited the defendant at his home on Route 316 in the town of Hebron. The weather that day was inclement, with precipitation in the form of snow and freezing rain. At about 5:30 p.m., the four decided to travel to the town of Andover in the defendant’s Ford F-350 pickup truck to purchase food. The defendant was operating the vehicle, Siter was seated in the front passenger seat and Choquette and Chase were seated in the rear passenger seats. After visiting a restaurant, the four went to the unplowed parking lot of a local school, and did a “donut” around a light pole.

Shortly thereafter, the defendant began driving southbound on Route 316 in order to return home. The segment of road on which the defendant was traveling had one lane of travel in each direction, a posted speed limit of forty-five miles per hour and did not permit passing. Directly in front of the defendant in the southbound lane was a vehicle traveling at a speed between thirty-five and forty miles per hour. After following behind this vehicle for a short period of time, the defendant accelerated, crossed a double yellow line into the northbound lane and attempted to pass the slower vehicle. Before the defendant could cross back into the southbound lane, he lost control of his vehicle and veered off the left hand side of the road. The defendant’s vehicle struck a rock and traveled fifty-four and one-half feet through the air before rolling over and coming to rest in the middle of the road. During the accident, Choquette and Chase were ejected from the vehicle. Choquette, who was found unconscious several feet off of the road, sustained injuries to his head and died the following day. Chase sustained nonfatal injuries to his head, resulting in periodic spells of dizziness. Siter sustained compression fractures of two thoracic vertebrae. The defendant sustained cervical strain and an abrasion on his leg.

The defendant was arrested and charged with one count of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l), two counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (2) and one count of reckless driving in violation of § 14-222 (a). As an alternative to manslaughter in the second degree, the court charged the jury with the lesser included offenses of misconduct with a motor vehicle in violation of § 53a-57 (a) and negligent homicide with a motor vehicle in violation of General Statutes § 14-222a.

On January 19, 2010, the jury found the defendant not guilty of manslaughter in the second degree and not guilty on both counts of assault in the third degree, but guilty of misconduct with a motor vehicle and reckless driving. On March 18, 2010, the trial court imposed a total effective sentence of five years incarceration, execution suspended after sixteen months, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the state failed to produce evidence that he exceeded the speed limit and that, as a result, there was insufficient evidence to establish the mental state of criminal negligence required for conviction of misconduct with a motor vehicle. We disagree.

The following evidence was presented at trial regarding the speed of the defendant’s vehicle. Richard Long, Jr., an occupant in the vehicle that the defendant passed, testified that his vehicle was traveling between thirty-five and forty miles per hour. Long also testified that he “could tell [that the defendant’s truck] was accelerating [because he] could hear the engine” and that the defendant’s vehicle passed “quickly.” The state’s expert witness, John Guari, testified that his review of the physical evidence left at the scene of the accident indicated that the defendant’s vehicle must have been traveling at least twenty-six to thirty-three miles per hour at the moment it began to leave “furrow marks.” Guari testified that this conclusion was a “minimum speed estimate” and that, in fact, the defendant’s vehicle could have been traveling faster. Moreover, Guari noted that this estimate pertained only to the speed of the defendant’s vehicle during the creation of the “furrow marks” and he did not, therefore, estimate the speed of the defendant’s vehicle while passing the other vehicle. Finally, in his statement to police after the accident, the defendant estimated that he was traveling at a speed between forty and forty-five miles per hour.

We begin our analysis by setting forth the applicable standard of review. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a [trier’s] factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 76-77, 993 A.2d 970 (2010).

Section 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.” Thus, “[cjonviction of misconduct with a motor vehicle requires proof of the mental state involved in criminal negligence . . . .” (Internal quotation marks omitted.) State v. Ortiz, 29 Conn. App. 825, 833, 618 A.2d 547 (1993). General Statutes § 53a-3 (14) provides that “[a] person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .”

Our decision in State v. Carter, 64 Conn. App. 631, 781 A.2d 376, cert. denied, 258 Conn. 914, 782 A.2d 1247 (2001), demonstrates that a defendant need not be speeding in order to violate § 53a-57 (a). In Carter, the defendant was convicted of misconduct with a motor vehicle for veering out of his lane onto the shoulder of a highway and killing a motorist who was standing next to a disabled vehicle. Id., 632-34. In that case, the defendant’s erratic driving occurred when he lost visual contact with the road. Id., 635. In concluding that the evidence presented at trial was sufficient to support a conviction of misconduct with a motor vehicle, this court explicitly noted that “[t]he defendant was traveling at a normal rate of speed.” Id., 634.

In the present case, the record contains ample evidence that the defendant acted in a criminally negligent manner. The defendant crossed a double yellow line on a narrow road while driving, by his own estimation, at a speed of at least forty miles per hour. The defendant took this action despite the fact that driving conditions that night were exceedingly poor. Given the cumulative impact of these undisputed facts, a jury reasonably could have concluded that the defendant failed to perceive a substantial and unjustifiable risk of causing the death of another person and that this failure represented a gross deviation from the standard of care that a reasonable person would have observed in the situation. As in Carter, the absence of evidence of speeding is not dispositive. Consequently, we conclude that the evidence contained within the record is sufficient to support the defendant’s conviction of misconduct with a motor vehicle.

n

The defendant’s second claim is that the trial court improperly admitted evidence of the defendant’s driving prior to the accident, specifically, that the defendant did a “donut” in a school parking lot shortly before turning onto the road where the accident occurred. We disagree.

The following additional facts are relevant to our resolution of this claim. On January 11, 2010, the defendant filed a motion in limine seeking the exclusion of “any evidence or statement pertaining to the driving of the . . . defendant prior to December 2, 2007 at approximately 6:30 p.m.” Specifically, the defendant argued that such evidence would “not fall within any recognized exception to the admission of uncharged misconduct, and would be unduly prejudicial to the defendant.” On January 12,2010, the parties agreed that the court could reserve its ruling on the motion until the state sought the admission of such evidence at trial.

On January 13, 2010, the state called Chase as a witness. Outside the presence of the jury, the defendant’s attorney argued: “I’d like to be heard very briefly about what we were discussing the other day with respect to my motion in limine ... in looking at this young man’s, Peter Chase, written statement, I assume that he is going to testify that prior to the accident . . . [the defendant], Peter Chase . . . and the two other young men, went to a school parking lot and were doing donuts . . . .” The defense continued: “[M]y objection is as to relevance and his state of mind, whether it be reckless, negligent or neither, at the time of the accident is totally separate from what he may have or may not have been doing in this lot ... . And certainly . . . the potential prejudice far outweighs any probative value that it might have. The prejudice is, clearly, is that a jury might conclude that, well, because he drove and he was doing donuts or whatever kids are doing in terms of skidding around in the snow, is reflective of what his conduct was sometime later. For that reason I object.”

To this objection, the state responded: “I expect that the witness will testify that approximately ten minutes before the accident they did pull into an elementary school parking lot for the purpose of doing donut[s], did a donut, and that I’m offering that through the witness. It is relevant. The reason being that the mental state of recklessness requires that the defendant be aware of and consciously disregard a substantial and unjustifiable risk; the fact that he did a donut in that school parking lot shows that he is aware that the driving conditions are compromised and that that is part of his mental state. Also this occurred just minutes before the accident; it’s entirely probative of his mental state in the seconds just before the accident and during the accident. So, for that reason I’m offering it.”

The court then denied the defendant’s motion in limine, stating: “My ruling might be different if he had done something like this six months earlier, but I agree with [the state] . . . what happened a matter of minutes before the actual incident is part and parcel of the incident itself. It does reflect the consciousness of what the driving conditions were, it reflects an appreciation of the driving conditions as well, the road surfaces, that they were slippery under the circumstances and I think that all of that goes into the determination of whether he disregarded the risks associated with those conditions. So, I am going to allow it and to that extent of your motion in limine, the motion is denied.” Shortly after this ruling, Chase testified in the presence of the jury that, on the way back from Andover the defendant drove into the parking lot of a local school and “did a donut” around a light pole. Chase’s testimony indicates that this conduct occurred approximately ten to fifteen minutes before the accident.

We begin our analysis of the defendant’s evidentiary claim by setting forth the relevant standard of review. “We review the trial court’s decision to admit evidence, if premised on a correct view of the law ... for an abuse of 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.” (Internal quotation marks omitted.) State v. Coccomo, 302 Conn. 664, 707, 31 A.3d 1012 (2011). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court . . . reasonably [could have] conclude[d] as it did.” (Internal quotation marks omitted.) State v. Davis, 298 Conn. 1, 11, 1 A.3d 76 (2010).

The defendant’s principal argument in support of this claim is that Chase’s testimony regarding the incident in the parking lot constituted evidence of prior uncharged misconduct and should not have been admitted for the purpose of showing that he was operating his car in a reckless manner in the moments before the accident. We are not persuaded. In its ruling on the defendant’s motion in limine, the trial court clearly stated that it was admitting Chase’s testimony as relevant evidence rather than as evidence of uncharged misconduct. Specifically, the court noted that this event was “part and parcel” of the incident that gave rise to the accident. The facts set forth above demonstrate that the events that occurred in the school parking lot took place not only during the same storm, but during the same outing with the same vehicle and the same occupants. Moreover, the event took place only fifteen minutes before the accident itself. In light of these facts and our duty to make every reasonable presumption in favor of upholding the trial court’s ruling, we conclude that the trial court’s determination that Chase’s testimony did not relate to an instance of prior uncharged misconduct does not constitute an abuse of discretion.

The defendant also argues that Chase’s testimony on this point was not relevant to the issues in the case. We are not persuaded. The term “relevant evidence” means “evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.” Conn. Code Evid. § 4-2. As the trial court noted, the evidence proffered by the state, including Chase’s testimony, indicates that the defendant was aware of the slippery road conditions that decreased his vehicle’s traction on the road. Because proof of such awareness is necessary to demonstrate recklessness; see General Statutes § 53a-3 (13); the trial court did not abuse its discretion in concluding that Chase’s testimony on this point was relevant.

Finally, the defendant argues that the evidence as to the defendant’s driving prior to the accident should not have been admitted because its probative value was outweighed by the danger of undue prejudice. We are not persuaded. Section 4-3 of the Connecticut Code of Evidence provides in relevant part: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” The defendant’s sole argument on the question of unfair prejudice is that the jury improperly could have inferred that he was operating his vehicle with the same mental state on Route 316 as he was in the school parking lot. Although such an inference would likely be damaging to the defendant, prejudice alone is insufficient to warrant exclusion of the evidence proffered by the state. See State v. Bell, 303 Conn. 246, 273, 33 A.3d 167 (2011) (“[o]f course, [a] 11 adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted” [internal quotation marks omitted]). We conclude that the trial court did not abuse its discretion in ruling that the probative value of the challenged evidence was not outweighed by the danger of undue prejudice.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”

       General Statutes § 14-222 (a) provides in relevant part: “No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic . . . and the weather conditions. The operation of a motor vehicle upon any such highway ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle . . . shall constitute a violation of the provisions of this section. . . .”

       On that date, the defendant and Siter were seventeen years old and Choquette and Chase were eighteen years old.

       On direct examination, Chase described a “donut” as follows: “If there’s like snow on the ground, you pull in, you turn one way, and then you just gas it a little bit and the tires spin which causes the truck to spin and it just like kicks out, I guess, the rear end slides out.”

       John Guaxi, an accident investigator for the Connecticut state police, testified at trial that the passengers in the backseat of the defendant’s vehicle probably were not wearing seat belts at the time of the accident.

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when ... (2) he recklessly causes serious physical injury to another person . . . .”

       General Statutes § 14-222a (a) provides in relevant part: “[A]ny person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”

       Guari noted during his testimony that “furrow marks” is a term used to refer to markings on the ground “caused by any portion of the vehicle . . . which is solid, not moving, not rotating, so it’s like pushing through and causing for lack of a better term, a furrow like a . . . like a farmer would make with his plow.” Guari testified that such marks can be caused by “a locked or nonrotating tire.”

       In Carter, the evidence presented at trial indicated that the defendant’s erratic driving occurred because he was “working on something under the dash or had fallen asleep.” State v. Carter, supra, 64 Conn. App. 640. This court noted, however, that the distinction between these two causes was “of little consequence to [the] analysis.” Id.

       The defendant was charged with three crimes requiring a mental state of recklessness: reckless driving, manslaughter in the second degree and assault in the third degree. See General Statutes §§ 14-222, 53a-56 (a) (1) and 53a-61 (a) (2). As noted previously, the jury found that the defendant was not guilty of the charges of manslaughter in the second degree and assault in the third degree.

       We note that, although the trial court appeared to admit Chase’s testimony for the limited purpose of demonstrating the defendant’s knowledge of road conditions that day, the defendant did not seek an instruction limiting the jury’s consideration of Chase’s testimony to that issue. Even if this court was to assume that Chase’s testimony should have been inadmissible as circumstantial evidence of the defendant’s mental state at the time of the accident, any prejudicial effect would have been mitigated by such an instruction.


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. MARK S. WILLIAMS
    (AC 33642)
    Lavine, Espinosa and Peters, Js.
    Argued May 29 —
    officially released July 31, 2012

      Daniel J. Krisch, with whom, on the brief, were Wesley W. Horton and Dana M. Hrelic, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Adam Scott, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The purpose of General Statutes § 14-224 (a) “is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself. The essence of the offense of evading responsibility is the failure of the driver to stop and render aid. . . . [Wjhether a defendant has knowledge that an accident caused injury ... is irrelevant to the crime of evading responsibility . . . .” (Citation omitted; internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 259, 856 A.2d 917 (2004). In this appeal, the defendant challenges the admission into evidence of a gruesome photograph of an accident victim and the sufficiency of the evidence to establish his violation of § 14-224 (a). We affirm the judgment of the trial court.

In a substitute information dated March 28, 2009, the state charged the defendant, Mark S. Williams, with evasion of responsibility in violation of § 14-224 (a). The defendant denied his liability. A jury found him guilty as charged. The trial court, after accepting the jury’s verdict and denying the defendant’s motions for a judgment of acquittal and for a new trial, sentenced the defendant to a term of forty-four months of incarceration.

The jury reasonably could have found the following facts. At approximately 11:30 p.m. on June 3, 2008, the defendant was involved in a motor vehicle accident at the intersection of Hillside and Roberts Streets in East Hartford. The tractor-trailer truck driven by the defendant collided with a motorcycle driven by the victim, Brian Bertocki. The victim was killed instantly and a female passenger on his motorcycle was injured.

Ellio Dos Santos, a witness to the accident, called to the defendant to stop, but the defendant failed to do so. According to Dos Santos, prior to the accident, the defendant’s truck had two functioning headlights.

Shortly thereafter, Efrain Tirado, a truck driver, saw a red tractor-trailer truck parked on Roberts Street near the intersection where the accident had occurred. Observing that the truck’s left headlight was out, Tirado slowed down to see whether the truck’s driver might need assistance. Tirado saw the driver get out of the cab of the truck, walk around to its front, and then get back into the cab and drive away. Tirado noticed that the truck had a single axle tractor and a “day cab,” which does not have a sleeper berth. Tirado continued driving on Roberts Street until he reached the scene of the accident. Upon learning from a witness at the scene that the victim had been hit by a tractor-trailer truck, Tirado searched the neighborhood and the highway but did not find the truck that he had seen earlier or any other tractor-trailer truck.

Both Dos Santos and Tirado described the tractor-trailer truck that they had observed on the night of the accident as having several distinctive features. Dos Santos testified that, on the side of the truck, there was something resembling a painting of a black highway. Tirado noticed that the truck had a distinctive double lettering white logo on its front, another white logo on its back and something that appeared to be a picture of people on its side. Exhibits at trial confirmed that the defendant’s truck exhibited these uncommon characteristics.

The defendant gave a sworn statement to Donald Olson, an East Hartford police sergeant, in which he described his actions on the evening of June 3, 2008. After picking up his tractor-trailer truck from G & K Services in East Hartford at approximately 11:30 p.m., he was en route to Waterbury, and then to North Attle-boro, Massachusetts. The defendant acknowledged having driven through the intersection where the accident occurred and admitted that he heard a “bang.” He stated that he assumed something had become “hung up between the truck and the trailer” and therefore stopped only briefly before leaving the scene of the accident. The defendant stated that he was aware of the fact that the truck had a headlight out before he left G & K Services’ facility in East Hartford and that, after stopping in Waterbury and on his way to North Attleboro, he made an unscheduled stop at his home in Andover to substitute another headlight for the one that was out. The defendant noted this stop in his personal journal, but not in his driver’s logbook.

Without contesting the accuracy of this factual record, the defendant urges us, on two grounds, to overturn the judgment against him. The defendant claims that (1) the state failed to present sufficient evidence to prove that he knowingly had been involved in the accident that caused the victim’s death and (2) the court improperly admitted into evidence a gruesome photograph of the victim’s body. We affirm the judgment of the court.

I

SUFFICIENCY OF THE EVIDENCE

The defendant claims that the state failed to present sufficient evidence to prove that he knowingly was involved in the motor vehicle accident that caused the victim’s death. Although the defendant admitted at trial that he was driving his tractor-trailer truck through the intersection of Hillside and Roberts Streets in East Hartford at the approximate time the accident occurred, he denied (1) that he was the driver of the truck that struck and killed the victim and (2) that he knew that he had been involved in an accident. The defendant challenged the sufficiency of the evidence in his motions for a judgment of acquittal and for a new trial, which the trial court denied. We agree with the court that the jury’s verdict must be sustained.

The standard of review for a claim of insufficient evidence to support a criminal conviction is well established. “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 646-47, 11 A.3d 663 (2011).

To establish that the defendant violated § 14-224 (a), the state was required to prove that “(1) the defendant was operating a motor vehicle, (2) the defendant was knowingly involved in an accident ... (3) that accident caused the death or serious physical injury of any other person . . . [and] (4) that the defendant failed to stop at once and render such assistance as may have been needed . . . .” State v. Rosario, 81 Conn. App. 621, 634, 841 A.2d 254, cert. denied, 268 Conn. 923, 848 A.2d 473 (2004). “[W]hether a defendant has knowledge that an accident caused injury ... is irrelevant to the crime of evading responsibility . . . .” State v. Perkins, supra, 271 Conn. 259.

The defendant claims that the evidence is insufficient to satisfy the first two elements. As the court observed at the sentencing hearing, however, this was a case about credibility. We are persuaded that the jury, in finding that the state had proved each required element of § 14-224 (a), reasonably might have found that the state’s witnesses were more credible than the defendant’s witnesses.

The defendant contests the credibility of Dos Santos’ testimony that the defendant’s tractor-trailer truck was involved in the accident he witnessed at the intersection of Hillside and Roberts Streets. The jury reasonably could have concluded, however, that Dos Santos’ testimony was supported by the defendant’s own testimony that, as he was passing through the intersection, he heard a “bang.”

The jury’s finding that the defendant’s track was involved in the accident is further supported by the fact that, according to Dos Santos, immediately prior to the accident, both of the track’s headlights were on and in working order, while, according to Tirado, shortly after the accident, the track’s left headlight was out. Although the defendant claimed that the headlight had been defective from the start of his delivery assignment, the jury reasonably could have found it not credible that a track driver would have set out on an interstate delivery route with a known defect in his equipment, would have deferred remedying that defect until he was able to make an unscheduled stop at his home to repair it, and would have failed to note the repair in his official log.

The defendant emphasizes the fact that Dos Santos described the tractor-trailer track that struck the victim as being orange, while the defendant’s track was red, and described the track involved in the accident as having a different number of rear drive wheels than the defendant’s track. The jury reasonably could have discounted the significance of these discrepancies in light of the horror of the accident that Dos Santos witnessed, the lateness of the hour at which it occurred and Dos Santos’ accurate description of the black design on the side of the defendant’s track. Furthermore, the jury reasonably might have credited Tirado’s more detailed description of the tractor-trailer track that he saw stopped at the side of the road on Roberts Street, near the site of the accident, which matched precisely the salient characteristics of the defendant’s track.

In light of the record as a whole, we are persuaded that the jury reasonably could have found that the cumulative force of the evidence established beyond a reasonable doubt that the defendant, while driving his tractor-trailer truck, knowingly was involved in an accident, that the accident caused the victim’s death, and that the defendant failed to stop at the scene and render any necessary assistance. We conclude, therefore, that the state presented sufficient evidence to support the defendant’s conviction.

II

THE PHOTOGRAPH

The defendant’s other contention on appeal is that a gruesome photograph of the victim’s body was improperly admitted into evidence at trial. Specifically, the defendant claims that (1) the court committed reversible error when it misstated and misapplied the test for admissibility set forth in § 4-3 of the Connecticut Code of Evidence and (2) the court abused its discretion in admitting the photograph into evidence because its probative value was outweighed by the danger of unfair prejudice. We are not persuaded by either of these claims of error.

The following additional facts are relevant to our disposition of the defendant’s claims. At trial, the state offered into evidence a single color photograph of the victim’s body that showed the victim lying on the roadway, with his head split open and blood and brain matter protruding from his cranium. The photograph was introduced through the testimony of Dan Caruso, an East Hartford police officer and accident reconstruction expert, who had mapped the scene of the accident. Caruso testified that the photograph was a fair and accurate representation of the victim’s condition after the accident.

Defense counsel objected to the photograph being admitted into evidence on the ground that it was prejudicial. In response, the state argued that the photograph was relevant to explain why, traumatized by seeing the victim’s bloody body, Dos Santos had misidentified the color of the truck that struck and killed the victim as orange, while Tirado correctly had described the truck he had seen as red.

The court overruled the defendant’s objection and ordered that the photograph be admitted into evidence. It stated: “[T]he issue is not whether [the photograph is] prejudicial. It’s whether the probative value is far outweighed by the danger of unfair prejudice.” After examining the photograph, the court stated: “[T]he witness has testified that he observed the body on the late night, early morning of the incident. So, the court is going to overrule the objection. However, what the court is going to do is ask, not that it be published on or through projection, but that it be handed to the jury so they can review it.”

Our standard of review for evidentiary rulings is well established. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 637, 935 A.2d 975 (2007). “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Beavers, 290 Conn. 386, 396, 963 A.2d 956 (2009). To satisfy that burden, the defendant must establish that “the jury’s verdict was substantially swayed by the error.” State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418, 454-55 n.23, 953 A.2d 45 (2008).

In this case, the defendant maintains that, for two reasons, the court’s admission of the photograph into evidence was reversible error. First, the court misstated the applicable provision of the Connecticut Code of Evidence. Second, the court improperly underestimated the prejudicial quality of the photograph. We are not persuaded.

A

Section 4-3 of the Connecticut Code of Evidence provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” The court misstated this test, stating that the defendant was required to establish that the photograph’s probative value was far outweighed by its potential for prejudice. The defendant maintains that this misstatement was reversible error. We disagree.

We note, at the outset, that the defendant did not object, at trial, to the court’s misstatement of the eviden-tiary standard. As a rule, we require an appellant to demonstrate that he has distinctly raised a claim of evidentiary error at trial in order to give the trial court the opportunity to correct any error that may have occurred. See Practice Book § 60-5; State v. Collins, 111 Conn. App. 730, 738, 961 A.2d 986 (2008), rev’d on other grounds, 299 Conn. 567, 10 A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011). Moss v. Foster, 96 Conn. App. 369, 376-77, 900 A.2d 548 (2006), which the defendant cites as a relevant contrary ruling, is inapposite because it does not concern an evidentiary ruling.

The record demonstrates that the court’s misstatement was harmless in light of the circumstances of this case. The photograph in question did not relate to any issue that, at trial, was seriously in dispute. The central issue was the identity of the driver of the truck that struck and killed the victim, not the traumatic injuries that the victim sustained. Significantly, the defendant did not object to the graphic description of the victim’s injuries given at trial by Harold Wayne Carver II, the chief medical examiner, who conducted the autopsy on the victim. Furthermore, the testimony that the jury asked to rehear, in the course of its deliberations, was wholly unrelated to the photograph or the extent of the victim’s injuries.

Under these circumstances, we are not persuaded that the court’s misstatement of the test for admission of the photograph into evidence had a substantially adverse impact on the jury’s deliberations in this case. Accordingly, we conclude that the court’s misstatement was harmless error. State v. Sawyer, supra, 279 Conn. 357.

B

Alternatively, the defendant claims that the court abused its discretion when it admitted the photograph of the victim’s body into evidence because the probative value of the photograph was outweighed by the danger of unfair prejudice. We disagree.

“A potentially inflammatory photograph may be admitted if the court, in its discretion, determines that the probative value of the photograph outweighs the prejudicial effect it might have on the jury. . . . The determination of the trial court will not be disturbed unless the trial court has abused its discretion.” (Citations omitted.) State v. Williams, 227 Conn. 101, 111, 629 A.2d 402 (1993). “In determining whether the prejudicial effect of otherwise relevant evidence outweighs its probative value, we consider whether: (1) . . . the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) . . . the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) . . . the evidence offered and the counterproof will consume an undue amount of time, and (4) . . . the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” (Internal quotation marks omitted.) State v. Collins, 299 Conn. 567, 586-87, 10 A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181 L. Ed. 2d 193 (2011).

The same reasons that persuaded us that the defendant was not prejudiced by the court’s misstatement of § 4-3 of the Connecticut Code of Evidence also persuade us that this single photograph, although extremely graphic, was not more prejudicial than it was probative. This was only a single image. The court did not allow the photograph to be published on or through projection, but permitted it only to be handed to the jury to view.

“Even photographs depicting gruesome scenes that may prejudice the jury are admissible, so long as, in the court’s discretion, they are more probative than prejudicial. . . . There is no requirement in this state that a potentially inflammatory photograph be essential to the state’s case in order for it to be admissible; rather, the test for determining the admissibility of the challenged evidence is relevancy and not necessity.” (Citations omitted; internal quotation marks omitted.) State v. Sanchez, 69 Conn. App. 576, 593, 795 A.2d 597 (2002); see also State v. Ferraiuolo, 80 Conn. App. 521, 530-31, 835 A.2d 1041 (2003), cert. denied, 267 Conn. 916, 841 A.2d 220 (2004). We conclude, therefore, that the court did not abuse its discretion when it admitted the photograph into evidence.

Ill

CONCLUSION

The central issue in this case was the identity of the driver of the truck who, having struck and killed the victim, failed to comply with the mandate of § 14-224 (a) to “promptly stop, render any necessary assistance and identify himself . . . .” (Internal quotation marks omitted.) State v. Perkins, supra, 271 Conn. 259. We .conclude that the evidence adduced at trial was sufficient to sustain the defendant’s conviction. We conclude, furthermore, that the record as a whole establishes that the court’s misstatement of the test for admission into evidence of a photograph of the victim’s body was harmless error and that the court did not abuse its discretion in admitting the photograph into evidence.

The defendant’s failure to comply with § 14-224 (a) may well be attributable to an understandable human reaction to deny participation in an unanticipated and unpleasant encounter, especially late at night. Until this accident, the defendant apparently had been a good citizen. Nonetheless, whatever his role in causing the accident and even if he was persuaded that he was not at fault, the defendant was obligated, under the unequivocal command of the statute, to stop at the scene of the accident to render assistance to those who had suffered injury. He failed to do so.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-224 (a) provides in relevant part: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person . . .

       Although the defendant earlier was charged with negligent homicide with a motor vehicle in violation of General Statutes § 14-222a and reckless driving in violation of General Statutes § 14-222, he was not tried on those charges.

       We note that the defendant has not challenged the propriety of any evidentiary ruling of the court other than the court’s admission of the photograph of the victim. Furthermore, the defendant has not challenged the propriety of the court’s instructions to the jury.

       The defendant does not contest that the accident caused the victim’s death. As he did at trial, the defendant denies that he knowingly was involved in the accident and maintains, for this reason, that he was not obligated to stop and render assistance to those who had accidentally been iivjured.

       The defendant acknowledges that, at trial, the court charged the jury that the fact that the defendant changed a headlight after the accident was evidence of consciousness of guilt. In his appeal to this court, the defendant has not challenged the propriety of that charge.

       Section 4-3 of the Connecticut Code of Evidence provides: “Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.”

       The defendant had objected the previous day to the state’s offer of the same photograph during Dos Santos’ testimony. At that time, the defendant argued: “The picture is inflammatorily prejudicial, Your Honor. It is intended ... to raise the sympathies and the emotions of the jury in this matter, and it should be excluded on those grounds.” The court sustained that objection, stating: “The photograph is relevant; however, at this stage in the proceedings, the probative value of the photograph is far outweighed by the danger of unfair prejudice. And the reason is that the witness [Dos Santos] did not testify as to the physical condition other than the victim was dead.” We assume that, in ruling on whether to admit the photograph during Caruso’s testimony, the court considered the entire record.

       Carver testified: “[The victim] suffered a very severe, blunt traumatic injuries as opposed to cutting or bullets. . . . [T]he injuries were distributed on the upper half of his body, so, from about halfway between your ribs and the nipple on up, tremendous damage; from there down, nothing, except one small skin tear. There [were] multiple fractures of each of the ribs . . . from the tenth rib up. . . . There was a fracture of the neck at the bottom part of the neck. . . . [T]he heart and right lung had been tom completely off their attachments and lying loose in the chest cavity. The left lung also was very badly damaged. And the head, basically, suffered extreme failure. The bones were broken into multiple small fragments. The skin of the scalp had tom completely off the top of the head and the brain had been pushed out. We got it [the brain] separately, or most of it.” Carver further testified that the victim’s face “from the cheekbones on up . . . essentially exploded,” and that the force from the track’s tire rolling over the victim caused brain matter to “burst” out of the victim’s head.

       The jury asked for a replay of (1) testimony by Olson concerning the location the defendant was alleged to have stopped his track after the accident and any change in the defendant’s statement about where he stopped the track, and (2) testimony by Dos Santos concerning his attempts to communicate with the driver of the track immediately following the accident.