author: Heiman, J.

text:
    State of Connecticut v. McKinley Ray
    (10892)
    Daly, Lavery and Heiman, Js.
    Argued December 3, 1992 —
    decision released January 19, 1993

      Christopher Kriesen, certified legal intern, with whom were Timothy H. Everett and Laurie A. Hall, certified legal intern, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom were Cecilia B. Wiederhold, assistant state’s attorney, and, on the brief, MichaelDearington, state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a), as a lesser included offense of manslaughter in the first degree, and assault in the second degree in violation of General Statutes § 53a-60 (a) (2), as a lesser included offense of assault in the first degree. The jury acquitted the defendant of the charges of tampering with a witness in violation of General Statutes § 53a-151, and threatening in violation of General Statutes § 53a-62 (a) (1). On appeal, the defendant asserts that the trial court improperly (1) refused the defendant’s request to charge the jury on the lesser included offense of criminally negligent homicide, (2) instructed the jurors that they have the sworn duty to keep in mind that the presumption of innocence and the state’s burden of proof beyond a reasonable doubt are rules of law made to protect the innocent and not the guilty, and (3) instructed the jury as to the defendant’s duty to retreat, thereby relieving the state of its burden of proving that the defendant knew he could retreat with complete safety. We disagree and affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On September 20, 1990, the defendant, McKinley Ray, and Arthur Aldrich were sitting on the front porch of their residence at 131 Portsea Street in New Haven. Sherie Walton and Jonathan Morris stood nearby. The defendant lived in the basement apartment at that address and Aldrich lived on the first floor. Walton accused Aldrich of stealing and wearing a pair of her pants. During the parties’ argument, Walton’s father arrived home inebriated. The defendant and Aldrich laughed as Walton’s father stumbled, which angered Walton and Morris.

Walton’s brother Amar (A. J.) approached the group as they argued. Morris stepped away from the argument, but subsequently returned with a brick, rock, or piece of concrete. He struck the defendant under his right eye. Aldrich and the defendant entered the front door and went into the hallway of Aldrich’s apartment. A. J. and Morris followed them into the hallway. Fighting broke out among the four men. The defendant pulled out a pocket knife with a five inch blade and stabbed Morris and A. J. Morris and A. J. ran from the house and collapsed outside. Morris’ body had six stab wounds, the fatal one being to his chest. That wound was three and one-half inches deep and penetrated his heart. A. J. survived at least six stab wounds, including one to the chest that injured a lung and another that lacerated his liver.

State Trooper Wilfredo Mercado arrived at the scene. After a bystander identified the defendant, the officer ordered the defendant to remain. Despite this order, the defendant entered the side door to the residence and Mercado pursued him. Upon being apprehended, the defendant blurted out that he had used the knife because he had been hit in the face with a rock.

The defendant testified at trial and admitted to stabbing both victims. He claimed, however, that he acted in self-defense.

Prior to the conclusion of the evidence, the defendant filed requests to charge asking that the trial court charge the jury with respect to criminally negligent homicide as a lesser included offense. His request, however, did not set forth the factual predicate on which the claim to such a charge was based. The trial court refused to give this instruction and the defendant excepted. The court stated that the defendant did “futilely file a request to charge on [criminally negligent homicide]. However, in review of the evidence involved in this matter and then in looking at the appropriate sections of the Practice Book I find I am not going to give that charge. I refer you to § 853 of the Practice Book and the evidence adduced at trial.”

After a jury trial, the defendant was convicted of manslaughter in the second degree in violation of General Statutes § 53a-56 (a), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The trial court sentenced the defendant to a total effective sentence of nine years imprisonment. This appeal followed.

I

The defendant asserts that the trial court improperly refused the defendant’s request to charge the jury on the lesser included offense of criminally negligent homicide. He argues that he was entitled to that instruction pursuant to our Supreme Court’s decision in State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). We disagree.

A defendant is entitled to an instruction on a lesser included offense if he can demonstrate compliance with each of four conditions: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id., 588.

The state concedes that the defendant has satisfied the first and second prongs of Whistnant. The state did not challenge the defendant’s “plainly deficient” request to charge.* *** We note, however, that this court is not bound by this concession. See State v. Liebowitz, 7 Conn. App. 403, 405, 509 A.2d 43 (1986). The defendant failed to meet the first Whistnant requirement; his request to charge was not an appropriate instruction. He requested an instruction on criminally negligent homicide, yet failed to recite the evidence that would support such a charge. His request to charge thus lacked the necessary factual predicate. See Practice Book § 854. The record does not indicate that the defendant filed supplemental requests to charge that included the necessary factual underpinnings to support the charge of criminally negligent homicide, nor does it indicate that the trial court refused to accept additional requests to charge. The defendant has thus failed to comply with the first Whistnant requirement and we need not further examine this claim.

In light, however, of the state’s concession to this patent deficiency and the well established principle that we decide cases on the theories on which they were tried and decided in the trial court, and briefed and argued in this court; Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 747, 592 A.2d 397, cert. dismissed, 220 Conn. 920, 593 A.2d 968 (1991); we will examine the defendant’s other claims relating to this issue.

The state disputes that the defendant has satisfied the remaining two Whistnant conditions: (1) that the state or the defendant introduced some evidence justifying conviction of the lesser offense; and (2) that proof of the element or elements differentiating the lesser offense from the greater offense is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense, but guilty of the lesser included offense.

Manslaughter in the second degree under § 53a-56 (a) requires proof that the defendant “recklessly causes the death of another person.” A person acts recklessly when he is “aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” General Statutes § 53a-3 (13). To be guilty of criminally negligent homicide, the defendant must with criminal negligence cause the death of another person. General Statutes § 53a-58. A person acts in a criminally negligent manner “when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.” General Statutes § 53a-3 (14). The difference between second degree manslaughter and criminally negligent homicide is the actor’s state of mind. State v. Burge, 195 Conn. 232, 244, 487 A.2d 532 (1985); State v. Rodriguez, 180 Conn. 382, 403, 429 A.2d 919 (1980). Thus, in order for the defendant to have been entitled to an instruction on the lesser included offense of criminally negligent homicide, he must demonstrate that the evidence bearing on his state of mind was such that the jury reasonably could have found that he acted with criminal negligence, rather than with recklessness, with respect to Morris’ death. See State v. Montanez, 219 Conn. 16, 22, 592 A.2d 149 (1991).

In conducting our examination as to whether the defendant has satisfied the conditions set forth in Whistnant, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. Id., 22-23; State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). The evidence is “sufficiently in dispute where it is of such factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence ... from which inferences can be fairly drawn. . . . They should not [however] be encouraged to engage in speculation.” (Citations omitted; internal quotation marks omitted.) State v. Montanez, supra, 23.

The defendant relies on the following evidence to support his assertion that the jury reasonably could have concluded that he acted in a criminally negligent, rather than reckless, manner with respect to Morris’ death. The defendant testified that the hallway was dark when he flailed at Morris to keep him away. He also testified that while he knew that he struck Morris with the knife, he did not know if he injured Morris. He also asserts that the jury reasonably could have found that he was in a highly charged state of fear, that he acted out of terror, and that he thus failed to perceive the substantial and unjustifiable risk of death caused by his actions.

Taking all of the evidence in a light most favorable to the defendant, we conclude that the jury could not reasonably have concluded that the defendant acted with criminal negligence, rather than recklessness, with respect to Morris’ death. The testimony at trial demonstrated that while the hallway was dark, visibility was not impaired. The defendant stated that he could not see what Morris and A.J. were doing. Yet, he was able to distinguish the victims from Aldrich. He was also able to locate vulnerable areas of the victims’ bodies. The forensic testimony dispels the defendant’s claim that he blindly flailed at Morris. Morris had six stab wounds, one of which was the result of a plunge that penetrated the chest and pierced through the heart. Another wound went through Morris’ arm and punctured his chest. Rational jurors using common sense could not reasonably have found that the defendant did not perceive a substantial risk of death when he stabbed Morris with sufficient force to penetrate his chest and heart. The evidence was thus not sufficiently in dispute to support a finding of criminally negligent conduct, but would have supported only a conclusion of reckless conduct.

Because of the defendant’s failure to satisfy the first Whistnant requirement and the lack of evidence to justify a conviction of criminally negligent homicide in violation of General Statutes § 53a-58, the trial court correctly refused to include in its charge criminally negligent homicide as a lesser included offense of manslaughter in the first degree.

II

The defendant also asserts that the trial court improperly instructed the jurors that it was their “sworn duty” to “keep in mind” that the presumption of innocence and the state’s burden of proof beyond a reasonable doubt are rules “made to protect the innocent and not the guilty.” We do not agree.

The trial court twice discussed the principles of the presumption of innocence and the state’s burden of proof beyond a reasonable doubt. This occurred early in the charge before instructing the jury on the offenses and again at the end of the charge when the jurors were about to retire to deliberate. The defendant concedes that the court accurately instructed the jury in the earlier portion of the charge. He challenges, however, the later portion of the charge. The court stated: “It is the sworn duty of the courts and jurors to safeguard the rights of persons charged with a crime by respecting the presumption of innocence by making the state meet its burden of proving the defendant guilty beyond a reasonable doubt, but you must keep in mind that these rules of law are made to protect the innocent and not the guilty. If and when the presumption of innocence has been overcome by the evidence and you find, if you do so find, as to the applicable charges that the defense of justification or self-defense is not applicable, if you do so find, then it is your duty to find the defendant guilty of the appropriate charges.” (Emphasis added.) The defendant also concedes that this claim was not preserved before the trial court, but seeks this court’s review under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

To prevail on appeal on a claim of constitutional error, that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992).

The defendant cannot satisfy the third prong of Golding, that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The court’s instructions concerning the presumption of innocence, reasonable doubt and the concept that the law was made to protect society and innocent persons and not to protect the guilty are the same or similar to jury instructions that have been consistently approved by this court and our Supreme Court. See, e.g., State v. Stanley, 223 Conn. 674, 695-96, 613 A.2d 788 (1992); State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990); State v. Andrews, supra, 537-38. The instructions that the law was designed to “protect the innocent and not the guilty” did not, when viewed in the context of the entire charge, dilute the defendant’s presumption of innocence or lessen the state’s burden to prove the defendant guilty beyond a reasonable doubt. State v. Thomas, supra, 119; State v. Andrews, supra, 538. Because the defendant was not deprived of a fundamental constitutional right, we decline to review the defendant’s claims concerning the allegedly improper language used by the court in its instructions to the jury. See State v. Thomas, supra, 120; State v. Andrews, supra, 539.

Ill

The defendant further posits that the jury instructions on the duty to retreat relieved the state of its burden of proving that the defendant knew that he could retreat with complete safety. At trial, the defendant failed to object to the trial court’s instruction concerning self-defense.* The defendant concedes that this claim was not preserved before the trial court, but seeks this court’s review under the doctrine of State v. Golding, supra. The defendant asserts that a constitutional violation clearly exists and clearly deprived him of a fair trial. He also asserts that the state cannot prove the harmlessness of the constitutional violation beyond a reasonable doubt. We are unpersuaded that a Golding review is warranted.

When examining a trial court’s instructions to a jury, we “do not engage in a microscopic examination of the charge, dissecting it line by line, nor do we consider the challenged portions of the charge in isolation.” State v. Andrews, supra, 540; State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992). We consider the instructions as a whole to determine whether there is a reasonable possibility that the jury was misled by the charge. State v. Castonguay, 218 Conn. 486, 498, 590 A.2d 901 (1991); State v. Andrews, supra. “Jury instructions need not be exhaustive, perfect or technically accurate. . . . They must be correct in law, adapted to the issues presented in the case and sufficient to guide the jury in reaching a verdict.” (Citations omitted; internal quotation marks omitted.) State v. Wolff, supra.

Reviewing the charge as a whole, we conclude that the trial court’s instructions to the jury were accurate and sufficient to guide them in reaching their verdict. In its charge, the court discussed at length the law regarding self-defense. It informed the jury that the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. The court read verbatim the elements and justifications for the use of self-defense and deadly force. See General Statutes §§ 53a-19, 53a-100. After correctly stating the law concerning the duty to retreat, the court added that “[t]he defendant is not required to retreat if he is in his home or dwelling.” Because the defendant cannot show that the trial court’s charge on self-defense clearly deprived him of a fair trial, we will not review his claims. State v. Golding, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (2) with intent to cause 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

       At sentencing, the defendant’s counsel stated: “The court in this case asked both sides to submit their written instructions on requests to charge as early as we possibly could, and my recollection was that we did do that prior to the end of testimony in this case. I did. I believe that the state did also. The only reason I bring that to the court’s attention right now is I just want the record to reflect that the reasons that my written request to charge did not state on the lesser included of assault third and criminally negligent homicide . . . the fact was that at that time the case had not come to conclusion yet and [the defendant] had not testified.”

       Practice Book § 853 provides: “Written requests to charge the jury must be filed in triplicate with the clerk before the beginning of the arguments or at such earlier time during the trial as the court directs, and the clerk shall file them and forthwith hand one copy to the judicial authority and one to opposing counsel.”
      The state made a motion for articulation asking the court if it mistakenly referred to Practice Book § 853 instead of § 854, or, if the citation is accurate, did the court invoke Practice Book § 853 because the defendant’s request was untimely. The trial court denied the request without explanation. No application for review was filed.

       General Statutes § 53a-58 provides in pertinent part: “(a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person . . . .”

       The state asserts that the first condition is met because the defendant requested the trial court to instruct the jury regarding criminally negligent homicide. The second condition is satisfied under State v. Rodriguez, 180 Conn. 382, 407, 429 A.2d 919 (1980), in which our Supreme Court held that criminally negligent homicide is a lesser included offense of murder and manslaughter.

       The state asserts that “[although the defendant’s request to charge is plainly deficient under the first Whistnant condition because it contains no reference to any facts . . . the state will not challenge this deficiency given trial counsel’s representation at sentencing and the fact that neither the trial court nor the prosecutor took issue with the representation.”

       Practice Book § 854 provides in pertinent part that each request to charge shall contain “a single proposition of law clearly and concisely stated with citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .”

       The trial court instructed the jury that: “[The defendant] is presumed to be innocent until the time he is proven guilty beyond a reasonable doubt. And this means that at the time the accused was presented for trial before you he stood before you free from any bias or prejudice or any burden arising from his position as the accused. So far as you are concerned, he then was innocent until such time as the evidence and the matters produced here in the orderly conduct of the case satisfy you beyond a reasonable doubt that he is guilty. In short, so far as you’re concerned, this accused is innocent of the crimes here charged unless and until the evidence produced before you in this court satisfies you of his guilt beyond a reasonable doubt. . . . [I]f a piece of evidence that has been presented here when considered in light of all of the evidence is capable of two reasonable constructions, one of which is consistent with guilt and the other with innocence, it is to be given that construction of innocence.
      “Now the accused does not have to prove to you that he did not commit the offenses with which he is charged. But the state must prove that he did, and to prove that it must prove every essential element going into the making up of each offense as charged beyond a reasonable doubt. . . .The state can sustain the burden of proof resting upon it only if the evidence before you has established the existence of every element constituting the offense beyond a reasonable doubt.”
      The court then instructed the jury about the concept of reasonable doubt stating: “You probably are wondering what [reasonable doubt] means under the law. Now a reasonable doubt is a doubt that is based upon a reason and grows out of the evidence or the lack of evidence in the case. A reasonable doubt is not such a doubt as may be raised by one questioning merely for the sake of raising a doubt. It is not a surmise, a guess, a conjecture. It is not a hesitation springing from any feeling of sympathy or pity for the accused or for any other person or persons who might in any way be affected by your decision. It is a doubt that is reasonable in the light of the evidence that is honestly entertained by a juror after a fair comparison and careful examination of the entire evidence in the case. It is a doubt for which you in your own minds consciously find a reason. . . . The state of Connecticut does not desire the conviction of an innocent person nor any person who is presented on evidence where there is a reasonable doubt. The state does not wish to have an innocent person punished or have a guilty person acquitted. . . .”

       In charging the jury on the issue of self-defense, the trial court instructed the jury that the defendant “may justifiably use deadly force if he reasonably believes that the other person is using or about to use deadly physical force, or secondly, the other person or persons was about to inflict great bodily harm upon him. The law does not encourage the use of deadly force and in most circumstances a person must retreat from the perceived harm about to be inflicted upon him. However, here we have the testimony, and it is up to you to believe or not, as to how the defendant, with the other witness, went into the kitchen. That is up to you to decide.” (Emphasis added.)

       The state argues that the defendant not only failed to object to the instruction concerning self-defense, but, in fact, endorsed the instruction by stating, “I will tell the court I think the court gave a very fair charge on justification . . . .”

       See footnote 10, supra.


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    State of Connecticut v. Jeffrey L. Harrison
    (10591)
    Lavery, Landau and Schaller, Js.

      Argued November 2, 1992 —
    decision released January 19, 1993

      Barry N. Silver, with whom, on the brief, was David A. Leff for the appellant (defendant).

      Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Susan M. Naide, assistant state’s attorney, and Joseph, Corradino, deputy assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the jury, of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both in violation of General Statutes § 14-227a (a) (l). The defendant claims that the trial court improperly (1) failed to grant the defendant’s pretrial motion to dismiss, (2) failed to grant the defendant’s motion for judgment of acquittal because there was insufficient evidence that the defendant had operated his vehicle on a public highway as required by General Statutes § 14-227a, and because the court improperly bound itself by a pretrial ruling, (3) permitted the arresting officer to refer to the defendant’s refusal to take a breathalyzer test, (4) permitted the state’s attorney to comment unfairly on the evidence in his closing argument, and (5) failed to grant the defendant’s motion alleging insufficiency of the evidence to support the guilty verdict. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. While Officer Kevin Potter of the Branford police department was on patrol on Route 1 in the town of Branford at about 11 p.m. on June 6,1990, he observed an unoccupied vehicle in front of the Lakeside Cafe. The vehicle’s right signal light was on. After looking into the vehicle, he checked its registration through the police computer, found no record of the vehicle and left the area. Shortly thereafter, Potter saw the same vehicle traveling westbound on Route 1, swaying from side to side within the lane. Potter wanted to stop the vehicle to investigate because he believed that the operator might be intoxicated. The vehicle was on a curve on the road at the time, however, and recognizing that a stop at that point would be unsafe, Potter waited to halt the defendant’s vehicle until it reached a driveway. The stop occurred just over the town line of East Haven.

Potter observed beer cans in the defendant’s car and noticed that the defendant’s eyes were red and glassy. The defendant admitted that he had been drinking. Potter found the defendant’s speech to be “somewhat slurred,” and decided to have the defendant perform several sobriety tests. Potter observed that the defendant could not perform the nine step walk or recite the alphabet. The defendant told Potter that he was going home to Guilford but Potter noted that the defendant was traveling in a direction away from Guilford. Finally, Potter performed a horizontal gaze nystagmus test, which the defendant failed. Because the defendant failed these tests, Potter placed him under arrest. At the police station, Potter requested the defendant to take a breathalyzer test. The defendant indicated that he would be over the legal limit and did not want to take the test.

I

The Arrest

The defendant challenges his arrest on two grounds: (1) that the police officer lacked reasonable and articulable suspicion to stop his vehicle; and (2) that the arrest in East Haven violated General Statutes § 54-If. We disagree.

A

“[T]he principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). In determining the constitutional validity of an investigatory stop, both the United States Supreme Court and our Supreme Court require a balancing of the nature of the intrusion upon personal security against the importance of the government interest inducing that intrusion. United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); State v. Mitchell, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Our Supreme Court has also recognized the pervasive societal interest in the apprehension and punishment of drunken drivers and has found that “balancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor, we are pursuaded that [brief detention] does not violate due process.” State v. Lamme, supra.

In justifying the intrusion, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21;State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Whitfield, 26 Conn. App. 103, 110, 599 A.2d 21 (1991). In evaluating the validity of such a stop, courts consider whether, in light of “the totality of the circumstances — the whole picture,” the police officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Mitchell, supra, 195. Review of a trial court’s determination of whether a reasonable and articulable suspicion exists “involves a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). “The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” State v. Cofield, supra.

In this case, the police officer observed the car the defendant was driving in the parking lot of a bar with a signal light turned on. Several minutes later, the officer observed that same car weaving in its lane. Putting these facts together, under the totality of the circumstances, the officer had an objective basis to suspect that the defendant may have been operating a motor vehicle under the influence of liquor or drugs or both. The facts of this case support the trial court’s determination that a reasonable and articulable suspicion existed. Therefore, the trial court’s determination is not clearly erroneous. “The facts detailed above justified the defendant’s detention for the limited intrusion of field sobriety testing to confirm or dispel the officer’s suspicion.” State v. Gruver, 27 Conn. App. 370, 376, 606 A.2d 39 (1992). This was a valid Terry stop.

The defendant also emphasizes that Potter did not observe him commit a violation before the investigative stop. This fact is irrelevant, however, because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. Our jurisprudence has long recognized that “furtive” movements are not necessary to justify a limited intrusion. See, e.g., State v. Corbuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 925 S. Ct. 677, 30 L. Ed. 2d 664 (1972) (stop legally justified after a police officer noted the circuitous route the vehicle was taking in a commercial area which was ordinarily deserted in the early morning). Indeed, in Terry v. Ohio, supra, 30, the Supreme Court held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for . . . other’s safety,” he is entitled to a limited intrusion to confirm or dispel his suspicion. (Emphasis added.)

B

The defendant next claims that his arrest was illegal because Potter violated General Statutes § 54-lf when he arrested the defendant outside Potter’s jurisdiction. We disagree.

Section 54-lf (a) provides the authority by which a peace officer “shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . .” The defendant relies on the words in their jurisdiction to support his argument that any arrest, for a misdemeanor, effected outside the jurisdiction of the officer would violate § 54-lf (a). The defendant’s reliance is misplaced. The words “in their jurisdiction” modify the phrase “for any offense,” not the word “arrest.” Therefore, the offense occurs when facts lead to a reasonable and articulable suspicion that a crime is being committed, in that jurisdiction, which is later confirmed, albeit outside the jurisdictional boundary. In this case, the facts that led to a reasonable and articulable suspicion occurred in the officer’s jurisdiction. Thus, although the arrest did not occur in that jurisdiction, the offense occurred in that jurisdiction. If we were to interpret the statute as the defendant suggests, a peace officer could not arrest a person who committed a misdemeanor in his jurisdiction if that person was fortunate enough to get beyond the jurisdictional line. “When a statute’s meaning is ambiguous, compelling principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 28 Conn. App. 708, 613 A.2d 1344, cert. granted, 224 Conn. 911, 617 A.2d 168 (1992).

The defendant’s interpretation also ignores the plain language of § 54-lf (c), which provides that “[mjembers of any local police department . . . who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed.” General Statutes § 54-lf (c). “We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991). Subsection (a), according to the defendant’s interpretation, would not allow an officer who witnesses the commission of a misdemeanor in his jurisdiction to give chase beyond the borders of his jurisdiction because that officer would be unable to arrest the defendant in the officer’s jurisdiction. Therefore, the defendant’s construction of subsection (a) would render meaningless subsection (c), as applied to subsection (a). The language of the statute indicates no such limitation, nor will we accord such an interpretation to § 54-lf. Thus, the defendant’s arrest is not illegal under § 54-lf.

We have previously determined that the arresting officer had a reasonable and articulable suspicion to make an investigatory stop of the defendant for the defendant’s actions while in the officer’s jurisdiction. The mere fact that the actual stop and arrest occurred just over the line in the town of East Haven will not undercut the validity of the arrest. The language of § 54-lf (c) is clear. The requirement of subsection (a), therefore, is that the offense, or the actions that lead to a reasonable and articulable suspicion that an offense has or is about to be committed, occur in the officer’s jurisdiction.

This case is also distinguishable from State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986). In Kuskowski, an officer of the Brookfield police department was on patrol several hundred yards from the Bridgewater town line when she noticed a car with its interior lights on parked near a lake in Bridgewater. The officer crossed into Bridgewater to investigate. When she came upon the car she found that the defendant had passed out after “freebasing” cocaine.

Our Supreme Court held that because this was a felony arrest effected under § 54-If (b), it did not matter where the arrest took place. The court held that § 54-lf (b) does not “limit the authority to make warrantless felony arrests to any particular political subdivision within the state. Subsection (b) stands in sharp contrast to subsection (a), which concerns the authority to make warrantless misdemeanor arrests. . . . Subsection (a) provides that members of a local police department ‘shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others.’ ” (Citations omitted; emphasis in original.) Id., 85-86. At no time in Kuskowski did the arresting officer observe the defendant in her jurisdiction. In the case before us, however, the arresting officer conducted the investigatory stop that led to the defendant’s arrest, on the basis of the defendant’s actions in that officer’s jurisdiction. This is not a situation in which a peace officer witnesses a misdemeanor committed in another jurisdiction, and crosses into that jurisdiction to effect an arrest. Therefore, the officer was well within the ambit of the statute when he stopped and then arrested the defendant in East Haven on the basis of a reasonable and articulable suspicion developed from the defendant’s actions while in the officer’s jurisdiction.

II

Public Highway

In his second claim, the defendant asserts that the state failed to prove beyond a reasonable doubt that Route 1 is a public highway. We disagree.

Each essential element of the crimes charged must be proven beyond a reasonable doubt. State v. Brown, 199 Conn. 14, 21, 505 A.2d 690 (1986). “Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot ‘constitutionally stand/ as it is violative of due process under the fourteenth amendment.” Id. We presume that the jury uses common sense in its deliberations; State v. Mazzetta, 21 Conn. App. 431, 436, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990); and is not limited to consideration of the direct evidence but is free to draw reasonable, logical inferences from the facts proved. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). A conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) while under the influence of intoxicating liquor or drugs or both. General Statutes § 14-227a; State v. Lonergan, 213 Conn. 74, 80, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). The defendant does not dispute the first element of this crime, and we will deal with the third element later in this opinion.

“Public highway” is not a term of art. See General Statutes § 14-1 (34). The plain meaning of the word “highway” is “a main road or thoroughfare; hence, a road or way open to the use of the public. [T]he essential feature of a highway is that every traveler has an equal right in it with every other traveler.” New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 523 (1975); Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488, 37 A. 379 (1897). Thus, it is a way over which the public at large has a right to pass. Id. The question of whether a roadway is a public highway is a question of fact. Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984).

On the basis of Potter’s testimony, the jury could have reasonably found that Route 1, at the area in question, was a four lane divided highway used by the defendant to travel from a cafe to his house. Further, it was reasonable to conclude, on the basis of the evidence adduced at trial, that this roadway was lined with business establishments, had traffic control signs, stop signals and a posted speed limit, was regularly patrolled by town police and was maintained, at least on some occasions, by the state department of transportation. All of these facts justify an inference that Route 1 was not a private way, over which only a limited number of persons have a right to pass, but rather was open to public use. See Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680, 228 A.2d 513 (1967). The trial court appropriately allowed the jury to determine the issue concerning a public highway, and the jury’s determination is reasonable and supported by the facts proved.

Ill

Judgment of Acquittal

The defendant challenges the procedure by which the trial court reached its decision on the motion for judgment of acquittal. He claims that the court did not independently consider the evidence presented at trial on this motion and made improper factual determinations regarding the defendant’s conduct before the stop. He asserts that the pretrial court, Thompson, J., predicated its finding of reasonable and articulable suspicion on a belief that Potter had observed a motor vehicle “violation” and that Potter’s trial testimony revealed that no violation had occurred when the officer decided to conduct the investigative stop. The record does not support this claim.

The trial court considered Potter’s testimony of the events at the pretrial and trial stages and did not find the differences to be so extreme as to require a different conclusion on the issue of reasonable and articulable suspicion. Furthermore, the trial court’s determination that there was sufficient evidence to support a finding that the defendant was weaving within the lane was not, as the defendant claims, clearly erroneous, as the standard demands. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). There was sufficient evidence to support a finding that the defendant was weaving in his lane.

IV

The Defendant’s Statement

Before trial, the defendant filed a motion in limine, seeking to prohibit the state from introducing any evidence of his refusal to consent to a chemical alcohol test. The defendant claimed that a department of motor vehicles hearing officer previously determined that there was insufficient evidence of refusal by the defendant and thus the results were inadmissible and further that the results of the tests were irrelevant to the crime charged. The trial court granted the defendant’s pretrial motion, ruling that the state should not be able to reap a benefit in the form of a jury instruction from the refusal when the hearing examiner had found that there was insufficient evidence of such a refusal.

During the state’s case-in-chief, the trial court reconsidered the issue and indicated that although the court would not allow a jury instruction regarding inferences that could be drawn from the refusal, the court would permit Potter to refer to the refusal in his testimony. The defendant claims that the effect of the trial court’s changing its ruling and allowing the jury to hear the testimony compromised “the defendant’s right to a fair trial and due process of law as guaranteed by the State and Federal Constitutions.”

Although the defendant asserts that his rights under both the state and federal constitutions were transgressed, he does not provide an analysis of his claim. Both this court and our Supreme Court have declined to review constitutional claims, deeming them to have been abandoned, when the defendant has not briefed and analyzed the claim. State v. Tweedy, 219 Conn. 489, 510 n.17, 594 A.2d 906 (1991); State v. Johnson, supra. That declination does not mean we are not able to review such a claim if we choose to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). We choose not to review this claim.

V

The State’s Summation

The defendant next claims that the state, during its closing statement, made two comments referring to facts not in evidence. Following each comment, the defendant’s objection was sustained, the remarks were ordered stricken, and a curative instruction was given by the court charging the jury not to consider anything not in evidence nor draw any inference from any facts not in evidence. The defendant made no further objections. He claims that these statements deprived him of his rights under the state and federal constitutions to a fair trial and due process of law. Again, the defendant furnishes this court with no analysis in his brief other than his bare assertion. We decline to review his claim.

VI

Sufficiency of the Evidence

The defendant argues that the evidence adduced at trial was insufficient to sustain a conviction for operating a vehicle under the influence of liquor. We disagree.

“Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict . . . . We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Citations omitted; internal quotation marks omitted.) State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).

Construing the evidence in the light most favorable to sustaining the trial court’s judgment, we conclude that the jury reasonably found that the defendant was guilty beyond a reasonable doubt. The evidence reasonably supported a finding that the defendant operated a motor vehicle on a public highway while under the influence of intoxicating liquor or drugs or both. See General Statutes § 14-227a (a) (1).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a provides in pertinent part: “(a) operation while under THE INFLUENCE. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       See footnote 8, infra.

       See footnote 5, infra.

       Other jurisdictions have held, as we do here, that the weaving of a vehicle in its own lane provides reasonable and articulable suspicion to justify an investigative stop to determine if the driver is, in fact, intoxicated or impaired, thereby violating General Statutes § 14-227a. See, e.g., State v. Beerbohm, 427 N.W.2d 75 (Neb. 1988); State v. Jones, 386 S.E.2d 217 (N.C.App. 1989).

       General Statutes § 54-lf provides: “(a) For purposes of this section, the respective precinct or jurisdiction of a deputy sheriff or a special deputy sheriff shall be wherever he is required to perform his duties. Peace officers, as defined in subdivision (9) of section 53a-3, in their respective precincts, shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others, provided that no constable elected pursuant to the provisions of section 9-200 shall be considered a peace officer for the purposes of this subsection, unless the town in which such constable holds office provides, by ordinance, that constables shall be considered peace officers for the purposes of this subsection.
      “(b) Members of the division of state police within the department of public safety or of any local police department or any chief inspector or inspector in the division of criminal justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.
      “(c) Members of any local police department or the office of state capítol security, sheriffs, deputy sheriffs, special deputy sheriffs and constables who are certified under the provisions of sections 7-294a to 7-294e, inclusive, and who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed.
      “(d) Any person arrested pursuant to this section shall be presented with reasonable promptness before proper authority.”

       The defendant claims that the state relied on the testimony of a defense witness to establish that Route 1 is a public highway and, therefore, the state failed to prove this element as part of its case-in-chief. This claim is without merit. The testimony of Potter clearly presented enough evidence to allow the jury to reach the conclusion that Route 1 is indeed a public highway.

       At the pretrial motion before Judge Thompson, the following colloquy took place:
      “Q. Okay. At some point you observed a violation, isn’t that correct?
      “A. Correct.
      “Q. Okay. At some point while following the vehicle you observed a violation, correct?
      “A. Correct.
      “Mr. Scarpelino: I’m going to object to the use of the word, violation. This officer never said that this person violated anything. He said he swayed. So if counsel would not misstate the evidence.
      “The Court: The objection is overruled. He did characterize it as a motor vehicle violation, did you not, officer.
      “The Witness: Yes.
      “The Court: Go ahead.”
      At trial, the following testimony was adduced:
      “Q. Now you stated that when you pulled over the defendant’s vehicle, you pulled it over, it hadn’t committed any violations isn’t that correct? “A. That’s correct.”
      The trial court, when considering, inter alia, the defendant’s motion for judgment of acquittal, stated:
      “The Court: Judge Thompson ruled on that first issue and he denied the defendant’s motion at that time.

        “Mr. Silver: Yes.
      “The Court: The argument is that there was different evidence presented to the trial court.
      “Mr. Silver: He-I-
      “The Court: Let me just make—
      “Mr. Silver: Oh, I’m sorry, I thought you were asking—
      “The Court: I’m just making a statement for the record. There was testimony [as to] weaving within the lane. Whether that is so extremely different from the testimony before Judge Thompson, the court doesn’t feel that that is so as far as the factual — the weight of the evidence. The court has to give consideration to the jury’s verdict. Your motions are denied.”

       The defendant was granted an administrative hearing pursuant to General Statutes § 14-227b. At that hearing, the hearing officer determined that there was insufficient evidence to conclude that the defendant had refused to submit to the chemical test. On the basis of that determination, the trial court stated, in the motion in limine, that “[f]or the court now to let the state put on evidence of a refusal, when it’s already been found there wasn’t a refusal, seems to be contradictory and illogical.” The trial court granted the defendant’s motion to prohibit the state from introducing any evidence of a refusal by the defendant to submit to the chemical test.
      During trial, the state attempted to introduce the testimony of Potter regarding the defendant’s statements at the police station. The defendant objected on the basis of the previous motion in limine. The trial court stated that it “feels that what we’re dealing with here is that the refusal, the motion [in limine] the court granted had to do with the statutory refusal which triggers suspension, which triggers a special instruction that benefits the state as far as the jury being able to take an inference from that refusal. That still stands. What we are dealing with is, the court feels it’s the state’s right to have some testimony regarding what happened at the station and let the jury just evaluate that in the context of everything else that the officer’s going to testify to.”
      The defendant again objected and the trial court stated that it was “drawing a distinction between the statutory refusal and the question which merely addresses what occurred.” This ruling is consistent with our recent decision in State v. Barlow, 30 Conn. App. 36, 618 A.2d 579 (1992).

       The following exchange took place during the state’s closing argument:
      “Mr. Corradino: And who is on trial here? Kevin Potter is not on trial here. Jeffrey Harrison is on trial. He’s the defendant. Not Officer Potter. And all the dead, lifeless scraps of paper that are going to go into the jury room with you. Smoke. And you do have the officers report. You don’t have all of it. That’s what you have. Take a look at that.
      “Mr. Silver: I would object to that. He’s asking the jury to draw an inference from facts not admitted to evidence.
      “The Court: Sustained.
      “Mr. Corradino: Exception please.
      “Mr. Silver: I would ask Your Honor to instruct the jury that drawing such an inference is improper.
      “The Court: The jury is so instructed. It’s not in evidence. And you are to consider what is in evidence. Not what is not in evidence.
      * ** *
      “Mr. Corradino: We also heard that it’s inconsistent that the officer would write that I saw the vehicle exiting the Lake Side Cafe. Well he testified right from that stand that the car when he saw it from his vantage point at the end of Houseley Road was accelerating. Just west of the Lake Side Cafe. How long continuing his exiting. Isn’t it logical inference that a police officer would make when writing up his report after the fact. It’s not a fatal flaw or inconsistency. The officer didn’t write on that particular piece of paper that the alphabet test was administered. He testified that the alphabet test was administered. And he testified that it’s in another report.
      “Mr. Silver: I’m going to object to that, Your Honor. Again, he’s making references to things that are not in front of the jury.

        “Mr. Corradino: That is in evidence, Your Honor, because — because that it is.
      “The Court: Sorry, that comment is stricken.
      “Mr. Silver: And would Your Honor please once again instruct the jury that they are to draw nothing, no inference whatsoever from any comments from things not in evidence.
      “The Court: Again, an item that is not in evidence you’re not to draw any inferences. Deal with what you recall being testified to.”

       In addition, the defendant did not object to the adequacy of the curative instructions and did not raise the issue again at trial. On appeal, he does not claim review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Even if appropriately claimed, we would not review this issue. State v. Montgomery, 22 Conn. App. 340, 346, 578 A.2d 130 (1990).


text:
    Elisabeth F. S. Solomon v. David Levett
    (10482)
    O’Connell, Poti and Heiman, Js.
    Argued November 30, 1992 —
    decision released January 26, 1993

      John R. Williams, for the appellant (plaintiff).

      William J. Doyle, with whom was Dorit S. Heimer, for the appellee (defendant).
   Heiman, J.

The plaintiff in this legal malpractice action appeals from a judgment rendered in favor of the defendant after the trial court granted the defendant’ s motion for a directed verdict. The defendant asserted, and the trial court agreed, that the plaintiff had failed to make out a prima facie case and that the defendant was entitled to judgment as a matter of law. On appeal, the plaintiff claims that the trial court improperly found that she had failed to make out a prima facie case and, therefore, the trial court should have denied the defendant’s motion for a directed verdict. We affirm the judgment of the trial court.

In granting the motion for a directed verdict, the trial court found that the plaintiff had presented sufficient evidence to permit the jury to find that an attorney-client relationship existed between the defendant and the plaintiff. While recognizing that a breach of the Rules of Professional Conduct did not, of itself, give rise to a right of recovery for claimed attorney malpractice, the trial court found that sufficient evidence existed to allow the jury to find that the breach of those rules constituted conduct that fell below the requisite standard of care of an attorney. The trial court determined that the plaintiff failed to produce expert testimony to prove that the defendant’s breach caused her to suffer damages. The trial court held as a matter of law that such evidence was necessary to permit recovery by the plaintiff, and, on that ground, directed a verdict for the defendant. The plaintiff failed to file a motion to set aside the verdict. This appeal followed.

Because of the limited nature of the issue before us, we will assume, without deciding, that the factual determination as to the state of the evidence was correct. Since the issue to be resolved does not involve a factual dispute and both parties agree that the defendant offered no expert evidence as to the issue of causation, a further exposition of the facts is not necessary to a proper resolution of this appeal.

The plaintiff asserts that the trial court improperly directed a verdict for the defendant in this legal malpractice action. We disagree. Because the plaintiff failed to file a motion to set aside the verdict, however, we shall not afford full review to this claim. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 249-50, 520 A.2d 1008 (1987); Pagani v. BT II, Limited Partnership, 24 Conn. App. 739, 749-50, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991).

Practice Book § 320 requires that a motion to set aside the verdict be filed within five days after the verdict is accepted. General Statutes § 52-228b proyides in part that “[n]o verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court.” Filing a motion to set aside the verdict is necessary to apprise the trial court of any claim that may become the subject of appeal. Pagani v. BT II, Limited Partnership, supra, 749. Both the statute and the rule of practice apply with equal force to a directed verdict. Id. We are limited in our consideration of the attack on the directed verdict to the plain error doctrine because the plaintiff failed to comply with both Practice Book § 320 and General Statutes § 52-228b. Dunham v. Dunham, 204 Conn. 303, 310-12, 528 A.2d 1123 (1987); Pagani v. BT II, Limited Partnership, supra, 750; see Practice Book § 4185. Section 4185, which delineates our authority to afford plain error review to a particular case, provides in pertinent part that “[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court.” We reserve plain error review for “ ‘truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 363, 603 A.2d 1160 (1992), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). In conducting a plain error review we are not inclined to reconsider our own precedent. Saporoso v. Aetna Life & Casualty Co., supra, 368.

In this case, the trial court adhered to existing precedent in directing a verdict in favor of the defendant when the plaintiff failed to produce expert testimony to demonstrate that the defendant’s breach proximately caused her injuries. “In a legal malpractice action, the plaintiff must produce expert testimony (l)that a breach of the professional standard of care has occurred, and (2) that the breach was the proximate cause of the injuries suffered by the plaintiff.” Somma v. Gracey, 15 Conn. App. 371, 374-75, 544 A.2d 668 (1988). We will not revisit existing precedent in a review limited to plain error. Saporoso v. Aetna Life & Casualty Co., supra; Atlantic Richfield Co. v. Canaan Oil Co., supra, 252. We conclude that the plaintiff’s claim that the trial court’s direction of the verdict was improper fails to meet the test necessary to warrant review under the plain error doctrine. See Mozzer v. Bush, 11 Conn. App. 434, 438, 527 A.2d 727 (1987). The plaintiff’s claim that the trial court improperly directed a verdict in favor of the defendant is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant contests the trial court’s factual determinations that an attorney-client relationship existed between the plaintiff and the defendant and that the evidence was sufficient to permit the jury to find a breach of the Rules of Professional Conduct.


text:
    Elisabeth F. S. Solomon v. Hall-Brooke Foundation, Inc.
    (11151)
    O’Connell, Foti and Heiman, Js.
    Argued November 30, 1992 —
    decision released January 26, 1993

      John R. Williams, for the appellant (plaintiff).

      William J. Doyle, with whom was Dorit S. Heimer, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the trial court’s judgment rendered in favor of the defendant on an action for the rescission of a trust instrument and for breach of contract. On appeal, the plaintiff asserts that (1) as a matter of both law and sound public policy, the court failed to accord proper consideration to her intent as creator conditioning her gift to the charity and (2) even if she did not condition her charitable donation upon her continued employment, the trial court incorrectly disregarded her employment contract with the defendant. We disagree and affirm the judgment of the trial court.

The trial court found the following facts. In 1964, the plaintiff purchased the Hall-Brooke Hospital in West-port. Upon acquiring the hospital, the plaintiff established two corporations. One corporation owned the land on which the private hospital was situated and the other owned the hospital and its assets. In 1966, the plaintiff with the advice of various professionals in the areas of health care and nonprofit institutions set up Hall-Brooke as a nonprofit corporation. She made a gift of assets to the defendant, the Hall-Brooke Foundation, Inc. (foundation), but retained control of the real estate on which the hospital was situated. She understood that once she established this foundation, it would exist in perpetuity, and would not be dependent on any one person’s life or ownership, but would be governed by a self-perpetuating board of trustees. As a not-for-profit foundation, its board would have the power to run the organization. The plaintiff knew that she no longer would control its operations and that the board was obligated to act in the foundation’s best interests without concern for what might be beneficial to her.

The plaintiff, as a trustee, actively participated in the affairs of the foundation. She also signed an employment contract with the newly created foundation that provided for her to serve as executive director until the age of sixty-five or retirement, whichever occurred sooner, to render services to the foundation at an annual salary of $35,000 to be “increased proportionately with any increases in salary given to the highest medical staff members of Hall-Brooke Hospital.” The contract also provided that the “[foundation may terminate this agreement if Solomon has been adjudicated in a criminal court of competent jurisdiction as guilty of theft, fraud, or embezzlement regarding the assets of the foundation or regarding her employment.”

In 1980, the defendant removed the plaintiff from all of her positions at the foundation. The plaintiff subsequently brought an action to rescind her gift to create the foundation because she felt that her intent was frustrated by the board of trustees, and specifically to enforce her employment contract with the defendant. She also included a prayer for “such other relief as the court deems necessary and just.”

After a trial on the merits, the trial court found that the plaintiffs gift to create the foundation was absolute. It also found that the plaintiffs employment contract with the defendant violated public policy and that she was thus an at will employee of the foundation whose employment could be terminated with or without cause. This appeal followed.

I

The plaintiff asserts that the trial court failed to accord proper consideration to her intent as the creator of the defendant. She argues that the trial court made several errors with respect both to finding and to enforcing her true intention at the time she created the foundation. She posits that the court’s findings “not only lack authority but [are] emblematic of much of the confusion which has corrupted the operation of charities in the current era.” While we acknowledge the plaintiff’s invitation to take “an unusual opportunity to clarify the law of charitable corporations at a moment when it very much needs clarification and, in the process, to remind those charged with the responsibility of managing such corporations that fidelity to the intentions of their founders is among the first of their obligations,” we decline to do so since we conclude that the trial court’s findings were not clearly erroneous.

We review factual findings of the trial court under a clearly erroneous standard. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). We examine whether “ ‘the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.’ ” Zarembski v. Warren, 28 Conn. App. 1, 4, 609 A.2d 1039, cert. denied, 223 Conn. 918, 614 A.2d 831 (1992), quoting Pandolphe’s Auto Parts, Inc v. Manchester, supra. Our role is to determine if the trial court reasonably could have decided as it did. Harvey v. Daddona, 29 Conn. App. 369, 374, 615 A.2d 177 (1992). We will not retry the facts since the trial court in its role as fact finder has the “unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . .” (Internal quotation marks omitted.) Zarembski v. Warren, supra, 4-5.

Here, the trial court conducted extensive factfinding. It found an absence of written documentation conditioning the creation of the foundation on either the plaintiffs employment contract with the foundation or her lifetime trustee status at the foundation. In fact, the trial court found that several of the founding documents contradicted the plaintiffs claim that the creation of the foundation was so conditioned. The court extensively considered the evidence that the plaintiff hoped would reveal that the creation of the foundation was conditioned on her employment contract and lifetime trusteeship. In particular, the court reviewed the plaintiffs correspondence with a trustee who was also her personal attorney. In examining this correspondence, the court found that there was no evidence that her gift was conditional. It also found no evidence that the plaintiff shared with anyone other than her attorney her feeling that her employment was an important factor in the creation of the foundation. The trial court thus found that the creation of the foundation was an absolute rather than a conditional grant. The trial court’s findings were not clearly erroneous.

II

The plaintiff also argues that even if the court properly found that the creation of the charitable foundation was not conditioned on her continued employment, the court cannot disregard her employment contract. She concedes that in this action, she primarily seeks the specific enforcement of the contract. In the alternative, she asserts that her claim for “such other relief as the court deems necessary and just” encompasses money damages for the breach of her employment contract. We disagree.

When prosecuting a civil matter, “the general rule is that a prayer for relief must articulate with specificity the form of relief that is sought. ... A party who fails to comply with this rule runs the risk of being denied recovery.” (Citations omitted.) Stern v. Medical Examining Board, 208 Conn. 492, 501, 545 A.2d 1080 (1988); see also Francis T. Zappone Co. v. Mark, 197 Conn. 264, 270, 497 A.2d 32 (1985). We review cases on the theories on which they are tried and decided. Swerdloff v. AEG Design/Build, Inc., 209 Conn. 185, 189, 550 A.2d 306 (1988); Archambault v. Wadlow, 25 Conn. App. 375, 378-79, 594 A.2d 1015 (1991). The plaintiff here failed to specify that she sought money damages. Her prayer for “such other relief as the court deems necessary and just” is too amorphous to be a claim for money damages. The plaintiff failed to comply with Practice Book § 285A, which provides in pertinent part: “If a party intends to raise any claim of law which may be the subject of an appeal, he must either state the same distinctly to the court before his argument is closed or state it in a written trial brief. If this is not done, it will not be the duty of either the trial court or the appellate court to decide the claim.” “A claim is distinctly raised if it is so stated as to bring to the attention of the court the precise matter on which its decision is being asked. . . . A claim briefly suggested is not distinctly raised.” (Citations omitted; internal quotation marks omitted.) Swerdloff v. AEG Design/Build, Inc., supra, 188. The purpose of this rule is to “enable the trial court to give meaningful consideration to the legal issues in the case.” Id., 189. The trial court was deprived of the opportunity to review the plaintiffs claim for money damages for the alleged breach of the employment contract. The trial court did not abuse its discretion in failing to award the plaintiff money damages since the plaintiff failed to include a prayer for money damages specifically in her complaint. We thus consider only her equitable claim.

The plaintiff asserts that her contract with the defendant was valid and enforceable. She argues that the defendant ignored the plain language of the contract, which permitted the defendant to fire her only if she were adjudicated in a criminal court of competent jurisdiction to be guilty of theft, fraud or embezzlement regarding the defendant’s assets. The court, however, found that her employment contract with the defendant was unenforceable as a matter of public policy. See Osborne v. Locke Steel Chain Co., 153 Conn. 527, 537, 218 A.2d 526 (1966). Her employment with the foundation was thus at will. The defendant could terminate her employment with or without just cause pursuant to General Statutes §§ 33-451 (b) and 33-453 (b). The plaintiff has failed to demonstrate that the trial court’s finding was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal is one of five before this court arising out of a consolidated trial.

       She asserts that the court (1) failed to consider the plaintiff’s contemporaneous exchange of correspondence with the trustee who served as her personal attorney in the transaction when determining the true intent in creating the trust, (2) blatantly ignored both the testimony and the documentary evidence introduced at the trial that the plaintiff feels conclusively demonstrate that her intent was to condition her charitable gift on her ability to retain control of it, and (3) improperly held that if the plaintiffs gift was conditioned on her maintaining control, nonetheless, those intentions can be ignored by the court if someone else can manage the charity more profitably.

       The plaintiffs own conduct belies her assertion that her prayer included money damages. In a memorandum of law accompanying a motion to strike, the plaintiff asserted that she sought “only equitable relief.” In the motion to strike, she stated that the court lacks the jurisdiction to have this matter tried to a jury because “the relief requested is entirely equitable in nature.”

       Moreover, the plaintiff failed to comply with Practice Book § 131, which provides in pertinent part that “[w]hen money damages are sought in the demand for relief, the demand shall include the information required by Gen. Stat. § 52-91.” General Statutes § 52-91 provides in relevant part: “When money damages are sought in the demand for relief, the demand for relief shall set forth: (1) That the amount, legal interest or property in demand is fifteen thousand dollars or more, exclusive of interest and costs; or (2) that the amount, legal interest or property in demand is two thousand five hundred dollars or more but is less than fifteen thousand dollars, exclusive of interest and costs; or (3) that the amount, legal interest or property in demand is less than two thousand five hundred dollars, exclusive of interest and costs.”

       Our Supreme Court stated that “[t]here is some authority for the proposition that directors have no power to hire an employee on a lifetime basis .... Such cases are generally based on the theory that a board of directors, in selecting the management personnel of the corporation, should not be allowed to hamstring future boards in the overall supervision of the enterprise and the implementation of changing corporate policy.” (Citation omitted.) Osborne v. Locke Steel Chain Co., 153 Conn. 527, 537, 218 A.2d 526 (1966).

       General Statutes § 33-451 (b) provides in pertinent part: “A director shall cease to be in office upon ... (3) [her] removal from office in accordanee with bylaws adopted by members or, if there are no such bylaws, at a meeting of the members or directors entitled to fill such directorship called expressly for the purpose of considering such removal, with or without cause, by such vote as would suffice for [her] election as a director . . . .”
      General Statutes § 33-453 (b) provides: “Officers may be removed, with or without cause, but without prejudice to their contract rights, if any. The appointment or election of an officer for a given term, or a general provision in the bylaws or certificate of incorporation with respect to the term of the office, shall not of itself create contract rights.”


text:
    Elisabeth F. S. Solomon v. Hall-Brooke Foundation, Inc.
    (11152)
    (11153)
    O’Connell, Foti and Heiman, Js.

      Argued November 30, 1992 —
    decision released January 26, 1993

      John R. Williams, for the appellant-appellee (plaintiff).

      Dorit S. Heimer, with whom was William J. Doyle, for the appellee-appellant (defendant).
   Heiman, J.

The plaintiff appeals and the defendant cross appeals from the trial court’s judgment rendered in favor of the plaintiff for back rent owed to her by the defendant. The trial court held that the plaintiff was entitled to back rent, but limited that amount to $40,700 per year beginning February 17,1982, and continuing without increase, except periodic interest, to the present. On appeal, the plaintiff asserts that the trial court improperly failed to order the defendant to pay (1) back rent for the years prior to 1982, (2) periodic increases in the extra rent owed, pursuant to an escalator clause, § 2.01 of its lease with the plaintiff, and (3) the plaintiff’s attorney’s fees and expenses in this litigation pursuant to the requirements of § 14.01 of its lease with the plaintiff. The defendant cross appeals asserting that the trial court (1) improperly held that the plaintiff was entitled to any additional rent, and (2) abused its discretion in awarding prejudgment interest. We affirm the judgment in part and reverse it in part.

The trial court found the following facts. In 1964, the plaintiff, Elisabeth F. S. Solomon, purchased the Hall-Brooke Hospital in Westport and the twenty-four acres of land on which it was located. The plaintiff held the land and buildings in a corporation known as Delmon, Inc. The hospital was held through a corporation known as IHC Corporation which was owned by the plaintiff. Delmon, Inc., leased the land and buildings to IHC Corporation. In 1966, the plaintiff created the defendant, Hall-Brooke Foundation, Inc., a charitable corporation. The defendant accepted assignment of the tenant’s rights and obligations under the 1964 lease between Delmon, Inc., and IHC Corporation.

In 1969, the plaintiff and the defendant entered into a new fifty year lease. Section 27.01 of this lease provides that the “Landlord hereby grants Tenant permission to construct the Children’s Residential Treatment Center Complex [children’s complex] on the premises, the plans and exact location of which shall be first approved by the Landlord. The amount of land anticipated for said Complex is approximately five (5) acres and has a present anticipated cost of $3,500,000 to $5,000,000. Any or all of said Complex may be commenced at any time after the date hereof.” Section 28.02 of this lease provides: “In the event enlargement or substantial alteration of the present facilities becomes necessary all plans and projections must first be submitted to Landlord for approval and consent, which approval and consent will not be unreasonably withheld providing that the general character and use of the premises does not change, and further provided that the rental payments shall be adjusted to reflect the fair value of the land and other use of the facilities brought about by said enlargement or substantial alteration of the facilities.” The lease also contains an escalator clause. Section 2.01 provides in part that after January 1,1974, the total “rent shall be increased by ten (10%) percent for the next five year period; and thereafter the rent shall be increased at the end of each succeeding five (5) year period by ten (10%) percent of the rent of the previous five (5) year period as escalated.”

In 1975, the defendant constructed a 10,000 square foot school that was part of the children’s complex. The school occupied 5000 square feet on one floor. The remaining 5000 square feet were used for storage and maintenance for the entire institution. Prior to this time, a portable school building capable of housing approximately twenty-five students was located on the Hall-Brooke grounds.

On May 22,1980, the defendant removed the plaintiff from all of her positions at Hall-Brooke. Nearly two years later on February 17,1982, the plaintiff laid siege on the Hall-Brooke premises, seized physical control of the premises with the aid of uniformed guards and a guard dog, ensconced herself in the executive offices, purported to terminate and bar entry to Hall-Brooke staff and others, gave press releases announcing her reascendance as executive director, and refused to abdicate her throne until ordered to do so by a restraining order.

After her removal from her positions at Hall-Brooke, the plaintiff remained the landlord and received rent from the institution. She felt, however, that the rent paid was not the amount specified in the lease. She believed that she was entitled to additional rent for the school. Prior to her removal from her positions at Hall-Brooke, the plaintiff had not demanded increased rent for the school. At trial, she testified that she had offered the board of trustees a deferral of the rent until the school became profitable.

After a trial on the merits, the court found that the plaintiff was entitled to back rent. This amount, however, was limited to the sum of $40,700 per year beginning February 17, 1982, through February, 1992, for a total of $407,000. The court also awarded the plaintiff prejudgment interest at 10 percent per year pursuant to General Statutes § 37-3a for a total amount of $223,850. Both parties appealed. Additional facts will be set forth where they are relevant to each issue.

I

The plaintiff asserts that the trial court improperly failed to order the defendant to pay back rent for the years prior to 1982. While agreeing that the court could find that the plaintiff had agreed to wait for payment of rent during the period that she was executive director and the school had not yet become profitable, the plaintiff argues that there was no factual basis for the court’s finding that she had waived the rent for the years 1975 through 1980. She also argues that the court improperly concluded that her unsuccessful attempt to regain control of the institution on February 17, 1982, was the date on which her waiver of the rent terminated. We disagree.

When the factual basis of a trial court’s decision is challenged, it is our function to “determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Zarembski v. Warren, 28 Conn. App. 1, 4, 609 A.2d 1039 (1992). The factual finding of a trial court on any issue is reversible only if it is clearly erroneous. Practice Book § 4061.* *** “The factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . . .” (Internal quotation marks omitted.) Sportsmen’s Boating Corporation v. Hensley, 192 Conn. 747, 750, 474 A.2d 780 (1984). We do not dissect the record to see if the trier of fact could have reached a contrary conclusion. Rodriguez v. New Haven, 183 Conn. 473, 477, 439 A.2d 421 (1981); Zarembski v. Warren, supra, 4-5. Under this standard, our role is to determine if the trial court could reasonably have decided the way it did. Harvey v. Daddona, 29 Conn. App. 369, 374, 615 A.2d 177 (1992). Our role is not to retry the facts. Zarembski v. Warren, supra, 4. “In short, we are not permitted to reject a factual finding on appeal merely because we, as a reviewing court, might disagree with the conclusion or would have reached a different result had we been sitting as the factfinders. Lupien v. Lupien, 192 Conn. 443, 446, 472 A.2d 18 (1984).” Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).

Our review of the record indicates that the factual findings challenged by the plaintiff are supported by the evidence. Here, the trial court reasonably could have found that the plaintiff’s testimony that she had agreed to forgo the rent until the school became profitable and could afford to pay her was tantamount to a waiver of the rent. It also reasonably could have found that this offer to forgo the rent expired when she attempted to regain control at Hall-Brooke during her failed coup. The trial court’s finding that the plaintiff agreed to forgo the payment of the rent for the school from May, 1975, through February, 1982, was thus not clearly erroneous.

II

The plaintiff next claims that the court improperly failed to calculate periodic increases in the unpaid rent applicable to the school building. She argues that the escalator clause, § 2.01 of the lease, entitles her to an increase in the rent for the school. She also argues that the prejudgment interest calculations must be reconsidered to take the changes in rent into account. We agree.

Section 2.01 of the lease provides in pertinent part that after January 1,1974, the defendant agrees to pay the plaintiff “rent [that] shall be increased by ten (10%) percent for the next five year period; and thereafter the rent shall be increased at the end of each succeeding five (5) year period by ten (10%) percent of the rent of the previous five (5) year period as escalated. Such net annual rent . . . shall be in addition to, and over and above all other payments to be made by the Tenant as hereinafter provided, and such net rent shall be paid in equal monthly installments in advance of the first day of each calendar month during the term of this lease.” On its face, this escalator clause applies to the rent paid by the defendant as lessee. After finding that the defendant owed back rent to the plaintiff as lessor for the school, the trial court failed to apply the escalator clause to that rent. The case must therefore be remanded to the trial court to recalculate damages applying the escalator clause to the increased back rent owed by the defendant to the plaintiff.

Ill

The plaintiff further posits that the court improperly failed to order the defendant to pay the plaintiffs attorney’s fees incurred in prosecuting this action. She argues that § 14.01 of the lease provides the landlord with the right to obtain attorney’s fees. We disagree.

The plaintiff made no claim for attorney’s fees in her complaint and introduced no evidence at trial of her attorney’s fees. By failing to request attorney’s fees prior to or during the trial, the plaintiff’s assertion that the trial court acted improperly is without merit. Francis T. Zappone Co. v. Mark, 197 Conn. 264, 270, 497 A.2d 32 (1985); Pero Building Co. v. Smith, 16 Conn. App. 71, 74-75, 547 A.2d 59 (1988). “In the absence of any claim for attorney’s fees in the prayer for relief, and without any offer of evidence during the trial, the trial court did not err in not making such an award.” Francis T. Zappone Co. v. Mark, supra.

IV

The defendant asserts that the trial court improperly held that the plaintiff was entitled to additional rent. It argues that the trial court ignored indications in the lease that § 28.02 did not apply to the school and that, in doing so, the trial court failed to apply appropriate rules of lease construction. The defendant further argues that although the court might have been permitted to look at extrinsic evidence of the parties’ intentions, the court’s findings are clearly erroneous because none of the evidence revealed that the parties ever intended that construction of the school would require additional rent. It suggests that any ambiguity in the lease should be construed against the plaintiff, who drafted the lease. We disagree.

Our Supreme Court has held that leases should be interpreted as contracts. Hatcho Corporation v. Della Pietra, 195 Conn. 18, 20, 485 A.2d 1285 (1985); Amwax Corporation v. Chadwick, 28 Conn. App. 739, 741, 617 A.2d 127 (1992). When construing the lease, “three elementary principles must be kept constantly in mind: (1) the intention of the parties is controlling and must be gathered from the language of the lease in the light of the circumstances surrounding the parties at the execution of the instrument; (2) the language must be given its ordinary meaning unless a technical or special meaning is clearly intended; (3) the lease must be construed as a whole and in such a manner as to give effect to every provision, if reasonably possible.” Hatcho Corporation v. Della Pietra, supra.

The trial court reached the correct result in finding that the defendant owed rent to the plaintiff for the school building, although we disagree with the method by which it reached that result. The trial court found that §§ 27.01 and 28.02 were ambiguous and admitted extrinsic evidence to determine if the parties intended to require additional rent to be paid for the school building. The lease, however, is clear on its face. Sections 27.01 and 28.02 are two separate clauses dealing with different issues. Section 27.01 provides that “Landlord hereby grants Tenant permission to construct the Children’s Residential Treatment Center Complex on the premises, the plans and exact location of which shall be first approved by the Landlord. The amount of land anticipated for said Complex is approximately five (5) acres and has a present anticipated cost of $3,500,000 to $5,000,000. Any or all of said Complex may be commenced at any time after the date hereof.” This section essentially provides for the plaintiff’s preapproval of the defendant’s plan to build a new facility. It is not concerned with the issue of rent for this facility. Section 28.02, however, addresses the rent requirements for enlargements to the facility that existed at the time the lease was executed. That section provides: “In the event enlargement or substantial alteration of the present facilities becomes necessary all plans and projections must first be submitted to Landlord for approval and consent, which approval and consent will not be unreasonably withheld providing that the general character and use of the premises does not change, and further provided that the rental payments shall be adjusted to reflect the fair value of the land and other use of the facilities brought about by said enlargement or substantial alteration of the facilities.” This section specifically provides that in the event of the enlargement of the facilities additional rent shall be due. The construction of the school in 1975 amounted to an enlargement of the facilities and hence additional rent became due. We are not required to reverse a ruling of the trial court that reached the correct result for the wrong reason. State v. Lamme, 19 Conn. App. 594, 604, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); Vinchiarello v. Kathuria, 18 Conn. App. 377, 381, 558 A.2d 262 (1989). The trial court thus correctly found that the defendant owed rent to the plaintiff for the school building.

V

The defendant also asserts that the trial court abused its discretion in awarding prejudgment interest without any evidence that Hall-Brooke’s retention of the school rent was wrongful. We do not agree.

In its discretion in civil actions for the detention of money after it becomes payable, the trial court may award prejudgment interest. General Statutes § 37-3a. This allowance turns on “whether the detention of the money is or is not wrongful under the circumstances. ...” (Citation omitted; internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 748-49, 557 A.2d 525 (1989); Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985). “The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court. . . .” (Citation omitted; internal quotation marks omitted.) Newington v. General Sanitation Service Co., supra; Alderman v. RPM of New Haven, Inc., 20 Conn. App. 566, 569-70, 568 A.2d 1068 (1990).

Our courts “have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was ‘wrongful.’ ” Newington v. General Sanitation Service Co., supra; Alderman v. RPM of New Haven, Inc., supra, 570. This court “must make every reasonable presumption in favor of [the trial court’s] action” when reviewing a claim of abuse of discretion. Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985); Connecticut Bank & Trust Co. v. Winters, 26 Conn. App. 317, 320, 600 A.2d 1046 (1991). The fact that this dispute is “hotly contested” does not impact on the trial court’s determination that the defendant wrongfully detained the defendant’s money. See Harris Calorific Sales Co. v. Manifold Systems, Inc., 18 Conn. App. 559, 566, 559 A.2d 241 (1989). “Interest may be awarded at the statutory rate from the time the money becomes due. . . . The court’s decision to award interest is subject to reversal only upon a showing of an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Id. Here, the trial court did not abuse its discretion in awarding prejudgment interest.

We conclude that the trial court did not properly consider the escalator clause in its determination of back rent owed (and its potential effect on the award of prejudgment interest.

On the plaintiffs appeal, the judgment is reversed as to the award of back rent only and the case is remanded to recompute the back rent owed to the plaintiff and to consider whether the plaintiff is entitled to additional prejudgment interest based on the increase of the back rent owed. On the defendant’s appeal, the judgment is affirmed.

In this opinion the other judges concurred.

       This opinion addresses two of five appeals before this court arising from a single trial of eight consolidated actions between the plaintiff, Elisabeth F. S. Solomon, and the defendants, Hall-Brooke Foundation, Inc., and individuals involved with the foundation.

       The four simultaneously filed appeals were consolidated for argument by this court. A fifth appeal is not yet ready for argument.

       The plaintiff essentially conceded at trial that her attempted “coup” was not the behavior of a rational person motivated by the best interests of Hall-Brooke and its patients.

       The court found that the plaintiff had agreed to forgo the rent until the school became profitable and thereby the plaintiff waived the rent during her tenure at Hall-Brooke from 1975 through her removal and until her failed coup. When she was removed from the premises and unable to retake control of Hall-Brooke, the court found that her offer to forgo the rent was withdrawn. It stated, “[t]his thwarted coup attempt was certainly an unequivocal act by Solomon showing an exercise of all rights she claimed.”

       The court based this figure on an appraisal conducted in 1975 at the request of the board of trustees.

       Hall-Brooke moved for reargument and vacation or modification of the court’s judgment. The court denied the motion except that it permitted the recalculation of the interest at 8 percent per year rather than at 10 percent per year for the portion of the rental period in which General Statutes § 37-3a provided that the rate of interest was 8 percent. The court subsequently granted the defendant’s motion to open the judgment to recalculate prejudgment interest. The court adopted the calculations of the defendant. The amount of interest was subsequently reduced without objection from the plaintiff to $194,118.74.

       Practice Book § 4061 provides in pertinent part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record . . . .”

       Section 14.01 of the lease provides in pertinent part: “Tenant will indemnify and save harmless Landlord against and from all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including reasonable architects’ and attorneys’ fees, which may be imposed upon or incurred by or asserted against Landlord by reason of any of the following occurring during the term of this lease: . . . e. Any failure on the part of Tenant to perform or comply with any of the covenants, agreements, terms or conditions contained in this lease on its part to be performed or complied with.”

       General Statutes § 37-3a provides in pertinent part that “interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions . . . as damages for the detention of money after it becomes payable . . . .” An earlier version of this statute provided for interest at 8 percent per year. See footnote 6, supra.