text:
    State of Connecticut v. John P. Steinmann
    (7665)
    Spallone, Norcott and Lavery, Js.

      Argued November 16, 1989
    decision released January 30, 1990

      Timothy C. Moynahan, with whom, on the brief, was Theresa M. Dalton, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and Andrew M. Wittstein, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals his convictions, after a trial to the court, of simple trespass in violation of General Statutes § 53a-110a. He claims the trial court erred (1) in finding that there was sufficient evidence for conviction, (2) in failing to find the simple trespass statute to be unconstitutional, and (3) in failing to find that the state’s decision not to prosecute for criminal trespass deprived the defendant of his equal protection rights.

The court could reasonably have found the following facts. A conflict arose in the spring of 1987 between the defendant, John Steinmann, and the First Congregational Church in the town of Washington. Because the defendant allegedly was bothering women parishoners and using the church for personal meetings, the church pastor, the Reverend Richard Sears, sent a letter to the defendant in April, 1987, asking that he stop attending church services. In November, 1987, Sears again told the defendant that he was not welcome on church property. Sears conveyed this decision, approved by the church board of deacons, to the defendant in the presence of three church officials and Trooper Robert Tomlinson of the state police. The defendant informed Sears that he understood the proscription. Tomlinson was satisfied that the defendant understood the church’s order barring him from entry.

On Saturday, December 12, 1987, the defendant called Tomlinson and, after a lengthy conversation, asserted that he planned to attend church services and, despite Tomlinson’s admonitions, attended the morning service the next day. He was issued a misdemeanor summons for criminal trespass as he left the service. On Saturday, March 12, 1988, the defendant visited Tomlinson’s office to say that he was unhappy with the church’s decision and that he would continue to attend church services. Again, Tomlinson informed the defendant that he was not welcome on church property. The defendant nevertheless entered the church property and attended services on March 13, 1988. Upon issue of a second misdemeanor summons for criminal trespass later that day, the defendant remarked, “I thought I got away with it this time.” The final incident occurred on March 20, 1988, when the defendant attended Sunday services. At this time, he was taken into custody, issued another summons for criminal trespass and released on his promise to appear.

The defendant was originally charged with three counts of criminal trespass in the first degree. The state subsequently filed substitute informations charging the defendant with three counts of simple trespass in violation of General Statutes § SSa-llOa. After a trial to the court, the defendant was found guilty and fined on each count. This appeal followed.

The defendant first contests the court’s denial of his pretrial motion to dismiss pursuant to Practice Book § 815 (5), and his motions for judgment of acquittal made at the close of the state’s case and at the close of all the evidence. He claims that the evidence was insufficient to prove beyond a reasonable doubt that he had the requisite knowledge that he was not licensed or privileged to enter church property or to be present at public worship services. This claim is without merit.

The appropriate standard of review with respect to a sufficiency claim “is whether the [court] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). The evidence produced at trial must be given a construction most favorable to sustaining the verdict. State v. Ruth, 16 Conn. App. 148, 154-55, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).

Here, there was ample evidence before the court that the defendant entered church property, on the three occasions charged, as a knowing trespasser. The record reveals that the defendant had been unequivocally informed and understood that his privilege to attend church services had been revoked. We cannot say that a rational trier of fact could not have found evidence for each essential element of the crime of simple trespass, and the verdict must stand. See State v. Kelly, 208 Conn. 365, 386, 545 A.2d 1048 (1988).

The defendant also argues that State v. Mention, 12 Conn. App. 258, 530 A.2d 645, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987), the only case construing § 53a-110a, stands for the proposition that the statute does not apply to premises open to the public. In reversing the conviction for simple trespass of a disruptive shopping mall patron, the court in Mention found that “§ 53a-110a does not provide for revocation of the status of business invitee.” Id., 261. The defendant analogizes himself as a “public invitee” to a public religious service.

The defendant misreads Mention. The court in that case held that a business invitee cannot be charged with simple trespass in areas open to the public without evidence that he entered with knowledge that he was not privileged to do so. “The language of General Statutes § 53a-110a does not create a strict liability crime. The statute requires knowledge on the part of the accused that he is entering without license or privilege.” Id., 260. Unlike the record in Mention, the record here is replete with evidence that this defendant knew that he was trespassing upon church property and was unwelcome at services.

Moreover, the critical issue in Mention was the defendant’s state of mind, rather than the nature of the premises. Id. Property does not lose its private character merely because the public is generally invited to use it for designated purposes. Lloyd Corporation v. Tanner, 407 U.S. 551, 569, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972); Cologne v. Westfarms Associates, 192 Conn. 48, 66, 469 A.2d 1201 (1984). The owner or one in lawful possession has the right to determine whom to invite, the scope of the invitation and the circumstances under which the invitation may be revoked. Lloyd Corporation v. Tanner, supra, 567.

The defendant next argues that the court erred in denying his motion to dismiss pursuant to Practice Book § 815 (8), claiming that § 53a-110a is unconstitutionally vague and overbroad. By failing to raise such a defense by a timely motion, a defendant waives the claim unless relief is granted for good cause shown. Practice Book §§ 808, 810; State v. Vincent, 194 Conn. 198, 201-202, 479 A.2d 237 (1984). Practice Book § 811 specifies that the motion must be filed “not later than ten days after the entry of a plea.” The defendant filed his motion on the day of trial, twenty-eight days after he entered his plea of not guilty to the charges. Upon objection by the state, the court denied the defendant’s motion as being untimely filed.

The defendant offered no explanation for the lateness of his motion at trial and he offers none on appeal. Indeed, the defendant makes no mention of the procedural default and briefs the issue as if the trial court considered the merits of the motion, which it did not. Despite the procedural defects, however, we review this claim of unconstitutional infirmity because it implicates fundamental due process rights. See State v. Marra, 195 Conn. 421, 428, 489 A.2d 350 (1985).

The defendant bears the heavy burden of demonstrating that the statute is unconstitutional beyond a reasonable doubt. State v. Hernandez, 204 Conn. 377, 385, 528 A.2d 794 (1987). In reviewing such claim, this court approaches the question with great caution, examining it with infinite care and makes every presumption in favor of validity. State v. Rado, 14 Conn. App. 322, 326, 541 A.2d 124 (1987), cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, 488 U.S. 927, 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988).

To survive a constitutional attack of vagueness, a penal statute must give fair warning that the conduct is proscribed and establish reasonable guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement. State v. Eason, 192 Conn. 37, 45, 470 A.2d 688 (1984). Moreover, the court must consider how the statute was applied to the particular facts at issue. State v. Proto, 203 Conn. 682, 696, 526 A.2d 1297 (1987).

General Statutes § 53a-110a provides fair notice to the defendant of the prohibited conduct. The terms “knowing,” “license” and “privilege” are not ambiguous and are clearly defined in law. See State v. Grant, 6 Conn. App. 24, 29, 502 A.2d 945 (1986). The facts of this case clearly indicate that the defendant’s conduct was violative of the statute’s proscriptions. Accordingly, the defendant has failed to meet his burden of showing the statute to be unconstitutionally vague.

The defendant also argues that General Statutes § 53a-110a is overbroad in that it infringes upon a constitutionally protected right to “freedom of movement” or “freedom of worship.” Admittedly, an otherwise clear and precise statute may be overbroad if it prohibits constitutionally protected conduct or creates a chilling effect on the lawful exercise of first amendment liberties. Grayned v. Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); State v. Proto, supra, 697. There is, however, no constitutional right to “freedom of movement” or “freedom to worship” on private property where there is no license or privilege to be there. See Cologne v. Westfarms Associates, supra.

The defendant’s final claim is that his prosecution for simple trespass violated his right to equal protection of the law. The defendant argues that the various trespass statutes create two different classes of trespasser, criminal trespassers and simple trespassers, but only the latter group is denied affirmative defenses and the right to a jury trial. Compare. General Statutes §§ 53a-107 through 53a-110, (criminal trespass and affirmative defenses) with General Statutes § 53a-110a (simple trespass). We do not agree that separate classes of trespassers are statutorily created.

In enacting §§ 53a-107 through 53a-110a, the legislature has defined four degrees of trespass with distinguishably different essential elements. For example, simple trespass is not a lesser included offense of any of the three degrees of criminal trespass. State v. Mention, supra. The statutes therefore define separate violations rather than separate classes of trespasser. See, e.g., State v. Whistnant, 179 Conn. 576, 580, 427 A.2d 414 (1980); State v. Kristy, 11 Conn. App. 473, 482-83, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987).

Even if we were to accept, arguendo, that different classes of trespassers are defined by the various trespass statutes, reasonable classifications do not violate the right to equal protection under the law. State v. Grullon, 212 Conn. 195, 214, 562 A.2d 481 (1989). “ ‘ “[Wjhere there is some natural and substantial difference germane to the subject and purposes of the legislation, there is no illegal discrimination between those within an established class and others not so included.” ’ ” Id.

The legislature has seen fit to distinguish by degree of seriousness the' unauthorized entry into various areas. Trespass violations range from the misdemeanors of criminal trespass to the infraction of simple trespass. The consequences flowing from a conviction of criminal trespass are greater than those flowing from a conviction of simple trespass. The legislature could reasonably decide, as a matter of policy, that the greater culpability of criminal trespass be afforded the affirmative defenses of § 53a-110 while the less culpable act of simple trespass, an infraction subject to only a fine, receive no such benefit. Such a reasonable policy defeats the defendant’s claims of an unreasonable classification of trespassers.

The defendant has no constitutional right to choose which statute shall be the basis of his prosecution. State v. Vaughn, 20 Conn. App. 386, 392, 567 A.2d 392 (1989). The choice is within the state’s discretionary power, limited by what may reasonably be expected to be proved at trial. Id. The defendant here complains that he was not charged with criminal trespass but has failed to show that the prosecutor abused his discretion in choosing to proceed under a statute that imposed a lesser punishment.

The defendant’s conviction of simple trespass is clearly supported by the evidence. Further, General Statutes § 53a-110a is not unconstitutionally vague or overbroad as it applies to this case, application of the statute to the defendant does not violate his right to equal protection of the law, and the state did not abuse its discretion in prosecuting the defendant for simple trespass.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-110a provides: “(a) A person is guilty of simple trespass when knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property, (b) Simple trespass shall be an infraction.”

       Practice Book § 815 provides in part:
      “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information:
      “(5) Insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial . . . .”

       Practice Book § 815 provides in part:
      “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information:
      “(8) Claim that the law defining the offense charged is unconstitutional or otherwise invalid . . . .”

       General Statutes § 53a-107 provides: “(a) A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person; or (2) such person enters or remains in a building or any other premises in violation of a restraining order issued by the superior court, (b) Criminal trespass in the first degree is a class A misdemeanor.”
      General Statutes § 53a-108 provides: “(a) A person is guilty of criminal trespass in the second degree when, knowing that he is not licensed or privileged to do so, he enters or remains in a building, (b) Criminal trespass in the second degree is a class B misdemeanor.”
      General Statutes § 53a-109 provides: “(a) A person is guilty of criminal trespass in the third degree when (1) knowing that he is not licensed or privileged to do so, he enters or remains in premises which are posted in a manner prescribed by law or reasonably likely to come to the attention of intruders, or fenced or otherwise enclosed in a manner designed to exclude intruders, or which belong to the state and are appurtenant to any state institution; or (2) knowing that he is not licensed or privileged to do so, he enters or remains in any premises for the purpose of hunting, trapping or fishing, (b) Criminal trespass in the third degree is a class C misdemeanor.”
      General Statutes § 53a-110 provides: “It shall be an affirmative defense to prosecution for criminal trespass that: (1) The building involved in the offense was abandoned; or (2) the premises, at the time of the entry or remaining, were open to the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or (3) the actor reasonably believed that the owner of the premises, or a person empowered to license access thereto, would have licensed him to enter or remain, or that he was licensed to do so.”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Colin Brash v. Elizabeth Ann Brash
    (7318)
    O’Connell, Norcott and Foti, Js.
    Argued October 11, 1989
    decision released January 30, 1990

      Diane Atkins Sikorsky, with whom, on the brief, was Claudia J. Triggs, for the appellant (defendant).

      Howard M. Gould, with whom was Patricia Gillin, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the judgment rendered in an action for the dissolution of her marriage, claiming the trial court erred (1) in entering its alimony award, (2) in limiting cross-examination concerning the plaintiffs financial affidavit, (3) in excluding a deposition as evidence, (4) in distributing the property between the parties as it did, and (5) in failing to make its order in compliance with General Statutes § 46b-84 (c). We find error as to the final issue only.

The parties were married in Massachusetts on May 20,1979. They are the parents of two minor children, a son, born March 12,1980, and a daughter, born May 14, 1982. The plaintiff is college educated and is now the sole proprietor of an architectural drafting business that had been in existence for five years at the time of the dissolution. The defendant attended college for less than one year. Her only employment was at unskilled, low paying jobs some nine years before the dissolution, and her primary responsibility during the course of the marriage was the care of the parties’ two children.

The major asset of the parties was a jointly held parcel of undeveloped land in Lyme, originally purchased for $15,500, and valued at between $250,000 and $265,000 at the time of the dissolution. The parties had a liability of $55,000 against the land and $31,000 in other debts.

The court ordered joint custody of the parties’ two minor children who are to make their primary residence with the defendant. The plaintiff was ordered to pay $100 per week per child in child support and $100 per week in time limited alimony limited to a period of three years and nonmodifiable in amount or duration. The court also ordered that the Lyme property be sold, and that the parties debts, excluding a $25,000 business debt that was assessed to the plaintiff, be paid out of the proceeds of the sale. The court awarded 75 percent of the net equity to the defendant and 25 percent to the plaintiff. The plaintiff and the defendant were each ordered to pay one-half of any federal tax liability resulting from this sale.

The plaintiff was also ordered to maintain health insurance for both the defendant and the children, to pay all unreimbursed health and dental expenses, and to pay $2000 to assist the defendant in obtaining a new place to live.

The defendant’s first claim is that the trial court erred in its award of alimony. She bases that claim on the court’s failure to consider all of the statutory criteria under General Statutes § 46b-82, its failure to consider evidence regarding the plaintiff’s income and its award of limited and nonmodifiable alimony. The defendant claims that the court erred when it found no fault and failed to consider either the age, health, occupation, vocational skills or the estate and need of the parties. She asserts that the court applied only one of the specified criteria, namely her employability, in arriving at its conclusion.

“The well settled standard of review in domestic relations cases is that the reviewing court will not disturb a trial court order unless there has been an abuse of discretion or unless the finding of the trial court has no reasonable basis in the facts.” Rose v. Rose, 10 Conn. App. 391, 393, 523 A.2d 914 (1987).

“On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria in awarding [alimony].” Mihalyak v. Mihalyak, 11 Conn. App. 610, 620, 529 A.2d 213 (1987). A judge is presumed to have performed his duty properly unless the contrary appears. See Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985).

A trial court must consider a number of factors in making an alimony award. Further, it may excercise broad discretion in considering the statutory criteria enumerated in § 46b-82. O’Neill v. O’Neill, 13 Conn. App. 300, 312-13, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988).There is no requirement, however, that the trial court recite each of the statutory factors in its decision; Mihalyak v. Mihalyak, supra, 619; Benson v. Benson, 5 Conn. App. 95, 100, 497 A.2d 64 (1985); or give equal weight to each of the statutory criteria. DeVellis v. DeVellis, 15 Conn. App. 318, 322, 544 A. 2d 639 (1988). “A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony . . . as long as it considers all relevant statutory criteria. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986).” Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987).

The defendant in this case has failed to demonstrate to this court that the trial court did not consider the relative financial situations of the parties and other criteria enumerated in § 46b-82 before awarding alimony. In addition, our review of the record discloses no such failure by the trial court.

The defendant further claims that the trial court erred in failing to follow the appropriate standard in finding that the plaintiffs net income was $671.33 per week. She argues that the court misapplied the term “sources of income” found in General Statutes § 46b-82 by failing to find that it means all income available to the plaintiff. She claims that the court’s exclusive reliance on the plaintiff’s financial affidavits and its exclusion of his accounts receivable and his ability to collect payments from these accounts was error. We do not agree.

The record discloses that the court determined that the accounts receivable were not available, and that the plaintiff could neither accelerate nor defer his receipt of income from these accounts.

“The weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court, which had the unique opportunity to view the evidence presented in a totality of circumstances.” Broderick v. Broderick, 20 Conn. App. 145, 147-48, 565 A.2d 3 (1989). “In a determination as to whether the trial court could reasonably conclude as it did on the basis of the evidence before it, every reasonable presumption should be given in favor of the correctness of its action. Gallo v. Gallo, 184 Conn. 36, 44-45, 440 A.2d 782 (1981); Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 855 (1975). The trial court’s decision may be disturbed on appeal only when there has been an abuse of discretion. Seymour v. Seymour, 180 Conn. 705, 709, 433 A.2d 1005 (1980).” Weinstein v. Weinstein, 18 Conn. App. 622, 625, 561 A.2d 443 (1989). We find no such abuse of discretion in this case.

The defendant further claims that the court erred in determining the duration of the alimony awarded. When the court awarded the defendant alimony, it correctly considered all of its orders as a cohesive unit. From a weekly net income of $671.73, the plaintiff was ordered to pay child support in the amount of $200 per week, as well as medical expenses for the defendant and the parties’ two children. The court was also aware that the plaintiff had weekly payments on family debts in the amount of $310. By making these orders and awarding $100 per week alimony, the court accounted for $610 of the plaintiff’s $671.33 weekly income. The court also determined the distribution of the proceeds from the sale of the property by considering the equitable position of each party. The defendant had requested alimony of $150 per week for a period of at least five years. The court did not abuse its discretion by awarding nonmodifiable alimony of $100 per week for three years; the award is not logically inconsistent with the facts presented; Vanderlip v. Vanderlip, 1 Conn. App. 158, 160, 468 A.2d 1253 (1984); and therefore the award should be upheld.

The defendant’s second and third claims on appeal were not properly preserved at trial. First she claims that the court erred in refusing to allow her to examine the plaintiff’s financial affidavit or to read the list of debts it contained into the record during cross-examination of the plaintiff, to demonstrate that he had not substantially reduced his debt during the period between the pendente lite hearing and the trial. When the court commented, “Let’s go on to another matter,” the defendant did not note an exception but proceeded with her cross-examination. Four days later, the defendant took an exception to the court’s earlier action. The court ruled that that exception was made too late.

The defendant’s second unpreserved claim is that the court erred in its refusal to allow her to read a deposition of a witness, who was not shown to be unavailable, into the record during cross-examination of the plaintiff. The plaintiff objected claiming that she had not received proper notice of the deposition and that it was hearsay. The court sustained his objection. Once again, the defendant failed to take an exception, although lengthy argument was made as to the purpose of the offer. When the court inquired, “Why don’t you call the [witness] in?” the defendant’s reply was: “I may have to do that.” Nothing further transpired and the witness was not called.

Unless a claim is distinctly raised at trial or is plain error, this court is not bound to consider it. Practice Book § 4185. We, therefore, decline to review these unpreserved claims.

The defendant next claims that the court erred in finding that the plaintiff’s business had no fair market value. Evidence was presented at trial showing that the plaintiff’s company had one primary client that supplied over 90 percent of his business, and that that account was neither transferrable nor assignable. The evidence demonstrated that the business could not be sold and if the plaintiff moved or changed occupations, he would be forced to close his business. The court found that because it could not be sold, the business had no fair market value. Although the defendant presented an expert witness who testified as to the value of the business from an income approach as opposed to its lack of a fair market value, the court, as the trier of fact, was free to give that evidence whatever weight it saw fit. See Broderick v. Broderick, supra. Such a determination raises a question of fact. “Weighing the evidence and judging the credibility of the witnesses is the function of the trier of fact and this court will not usurp that role.” Gallo v. Gallo, supra, 38. From the evidence presented, we conclude that the trial court could reasonably have found as it did.

The defendant next claims that the court erred when it decided the distribution of the proceeds from the Lyme land. The court ordered that 75 percent of the proceeds from the sale of the land would be awarded to the defendant, and that each of the parties must pay 50 percent of the taxes associated with the sale. The court further ordered that $25,000, determined by the court to be the plaintiffs debt, should not be paid from the proceeds of the land sale. While the amount of equity remaining on the land may be questionable, it is clear that the defendant received a fair share of the proceeds from the sale of the land. We recognize that “[t]he power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage.” Pasquariello v. Pasquariello, supra, 585. There is no inequity, however, in an order that does not award the defendant 100 percent of the land. We conclude that the court acted equitably and did not abuse its discretion in ordering the division of this asset.

The defendant’s final claim is that the court erred because its order with respect to the children’s health insurance did not comply with General Statutes § 46b-84 (c). We agree.

The court awarded joint custody of the children and ordered that their primary residence be with the defendant. The plaintiff was ordered to maintain health insurance for the defendant and the children, and to pay all unreimbursed health and dental costs for the children. No order was made, however, that the signature of the custodial parent shall constitute a valid authority for the payment of these insurance benefits as is required by § 46b-84 (c). Without such an authorization, the court’s award of insurance benefits is of no benefit to either the children or the defendant. We find, therefore, that the trial court erred in its failure to order that the defendant’s signature be sufficient to authorize medical insurance coverage for the health care of her children.

Although the defendant failed either to object or to raise this issue at trial, and failed to move to open or correct this portion of the court’s order, we will review this claim under Practice Book § 4185 which provides in pertinent part that an appellate court “may in the interest of justice notice plain error not brought to the attention of the trial court.” This rule of practice has been applied where this court’s action is in the interest of public welfare or of justice between individuals. Persico v. Maher, 191 Conn. 384, 403-404, 465 A.2d 308 (1983). In the present case, it is essential that the defendant’s signature must be recognized as an authorization to initiate insurance benefits for herself and her children. Without this order she is left with the option of going without health care or assuming the burden of payment for these services herself. This negates the court’s insurance order. We therefore remand to the trial court with instructions to add the mandates of General Statutes § 46b-84 (c) to the order of insurance payments.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that the provisions of General Statutes § 46b-84 (c) shall be made part of that judgment.

In this opinion the other judges concurred.

       General Statutes § 46b-82 provides: “At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       This case is easily distinguished from our recent decision in Roach v. Roach, 20 Conn. App. 500, 507, 568 A.2d 1037 (1990), and Watson v. Watson, 20 Conn. App. 551, 556, 568 A.2d 1044 (1990), in that here the trial court’s decision was logically consistent with its findings of fact.

       General Statutes § 46b-84 (c) provides in pertinent part: “At any time at which orders are entered in a proceeding for dissolution of marriage, annulment, legal separation, custody, or support, whether before, at the time of, or after entry of a decree or judgment, if health insurance coverage for a minor child is ordered by the court to be maintained, the court shall provide in the order that (1) the signature of the custodial parent of the insured dependent shall constitute a valid authorization to the insurer for purposes of processing an insurance reimbursement payment to the provider of the medical services or to the custodial parent . . .

       We recognize that our Supreme Court has stated that when one financial order is remanded for further action all of the court’s financial orders must be reviewed collectively on remand because the rendering of financial orders in a dissolution case “is a carefully crafted mosaic, each element of which may be dependent on the other.” Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). It is not necessary in this case to remand all financial orders with our finding of error, however, because further action by the trial court does not change the financial responsibility of the parties, but merely allows for the practical application of an order that has already been rendered by the court.


author: Dupont, C. J.

text:
    Claudette Rivera, Administratrix (Estate of Rafael C. Rivera), et al. v. David Fox et al.
    (7754)
    Dupont, C. J., Daly and Norcott, Js.
    Argued October 13, 1989
    decision released February 6, 1990

      Steven W. Varney, with whom, on the brief, was Ronald T. Scott, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom, on the brief, were Paul T. Nowosadko and Lorinda S. Coon, for the appellee (defendant department of transportation).
   Dupont, C. J.

The subject of this appeal is a wrongful death action arising out of a collision between a motor vehicle operated by the plaintiffs decedent and a stationary, unoccupied truck owned by the defendant department of transportation (DOT). The sole issue on appeal is whether the trial court erred in granting a summary judgment in favor of the DOT.

The relevant facts are undisputed. At about 7 p.m., on the evening of June 1,1984, the named defendant, a state employee, drove a DOT truck to a point in the westbound lane of an interstate highway in order to assist in the cleanup of a fatal accident. He positioned the truck partly in the left travel lane of the highway and partly on the left shoulder and walked at least 500 feet to the site of that accident. He left the vehicle with its engine running and its strobe lights and four way flashers on and set up flares on the road behind the vehicle. His purpose was to alert oncoming drivers to debris from the accident that was obstructing the highway. Almost two hours later, while the employee was still working at the accident site, the decedent’s vehicle collided with the truck and the decedent was killed.

The plaintiff brought suit against the defendants, alleging a statutory cause of action pursuant to General Statutes § 52-556. Section 52-556 provides: “Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.” The trial court determined that the DOT truck was not being “operated” within the meaning of the statute and granted the DOT’s motion for summary judgment.

The plaintiff first argues that whether the truck was being operated within the meaning of the statute was a question of fact that should have been determined by a jury and not by the court on a motion for summary judgment.

“The question of whether a particular statute or regulation applies to a given state of facts is a question of statutory interpretation . . . .” Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 225, 497 A.2d 1005 (1985). Statutory interpretation presents a question of law for the court. Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 6, 434 A.2d 293 (1980); Pascale v. Board of Zoning Appeals, 150 Conn. 113, 116, 186 A.2d 377 (1962). In the present case, the trial court determined, on the basis of undisputed facts, that the plaintiff did not have a cause of action against the DOT under § 52-556 because the DOT truck was not being operated within the meaning of the statute. This determination was an exercise of pure statutory construction by the court and did not involve the resolution of factual issues. Because no material fact was in dispute, summary judgment was proper if the court was correct in its interpretation and application of the statute to the facts.

The plaintiff next argues that the court erred in its conclusion that she had not stated a cause of action under § 52-556 and in its conclusion that the DOT was entitled to judgment as a matter of law. It is well settled in Connecticut that, under the doctrine of sovereign immunity, the state cannot be sued unless, by legislative enactment, it consents. Fidelity Bank v. State, 166 Conn. 251, 253, 348 A.2d 633 (1974). General Statutes § 52-556 creates a cause of action against the state and represents a statutory exception to the common law rule of sovereign immunity. See Seaberg v. State, 4 Conn. Cir. Ct. 116,119, 226 A.2d 401 (1966). As such, it must be narrowly construed. Struckman v. Burns, 205 Conn. 542, 558, 534 A.2d 888 (1987). “In the absence of clear legislative intent, this court will not interpret a statute as waiving the state’s sovereign immunity.” Id., 559. No legislative history exists to shed light on whether the legislature intended § 52-556 to cover cases where the motor vehicle is stopped, unoccupied, and being used to warn motorists of impending danger. We conclude, however, that the language of § 52-556 does not indicate a clear legislative intent to allow the state to be sued in such cases.

The trial court, without the benefit of a prior relevant judicial construction of § 52-556, impliedly concluded that the state cannot be liable under the statute unless the negligent operation of the state’s motor vehicle is contemporaneous with the injury sustained. The . defendant contends that the operation need not be contemporaneous with the injury but may occur at any time prior to the injury. The statute requires, before there can be a right of action against the state for the recovery of damages for injury to person or property, that there be “negligence of any state official or employee when operating a motor vehicle” owned by the state. The use of the phrase “when operating a motor vehicle” implies a simultaneousness of negligent operation and injury, because “when” denotes the time or exact moment at which something is done. Here, there was no coalescence in time of the operation and the injury. Without temporal congruence, the state cannot be liable even if the negligent operation of a state owned motor vehicle by a state employee proximately caused the injury.

Although the very words of the statute provide a sufficient basis on which to determine when the operation must occur in order for state liability to attach, our view that summary judgment should have been granted is reinforced by existing cases that have defined “operation” of a motor vehicle within the context of other statutes.

In Jackson v. Johnson, 9 Conn. App. 290, 518 A.2d 666 (1986), cert. denied, 202 Conn. 804, 519 A.2d 1208 (1987), this court determined that the defendant was not “operating” a motor vehicle within the terms of General Statutes § 52-572e, a statutory exception to the doctrine of parental immunity. In that case, the defendant’s minor son injured himself when he roller-skated into the defendant’s parked, disabled car. We concluded that the vehicle was not in operation because the car was not stopped incident to travel or movement. Id., 292.

Cases interpreting General Statutes § 31-293a have employed reasoning similar to that in Jackson. See, e.g., Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983); Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943 (1980); Kegel v. McNeely, 2 Conn. App. 174, 476 A.2d 641 (1984). That statute allows suits against a fellow employee in cases otherwise arising under the workers’ compensation act only if the injury is caused by the fellow employee’s negligent operation of a motor vehicle. In Dias, the plaintiff’s decedent was killed when struck by the shovel of a backhoe operated by the defendant, a fellow employee. The court, focusing on the use of the vehicle, determined that the plaintiff’s suit did not fall within the statutory exception carved out in § 31-293a because, at the time of the accident, the backhoe was performing a function unrelated to the movement of the vehicle itself. Dias v. Adams, supra, 359. In Davey v. Pepperidge Farms, Inc., supra, while the court’s conclusion that a hydraulic hoist was not a motor vehicle was dispositive of the appeal, the court noted that operation “relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle.” Id., 472 n.l.

The general rule established by these cases and others in the context of various statutes is that operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is movement of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement of the vehicle from one place to another. State v. Swift, 125 Conn. 399, 6 A.2d 359 (1939); Stroud v. Water Commissioners, 90 Conn. 412, 97 A. 336 (1916); see also Conti v. Rose Hill Poultry Co., 3 Conn. App. 246, 486 A.2d 1145 (1985).

In the present case, both parties agree that at the time of the collision the DOT truck was being used as a warning signal. The truck was not parked incident to travel. It was placed on the highway, not because that was a convenient or an ordinarily appropriate place to park, but because its placement would alert drivers to the danger ahead. The trial court’s conclusion that the DOT truck was not in operation within the meaning of § 52-556 is legally correct. The DOT, therefore, was entitled to judgment as a matter of law.

There is no error.

In this opinion the other judges concurred.

       The original defendants were the DOT; David Fox, an employee of the DOT; J. William Burns, the commissioner of the DOT; the division of state police, department of safety; and the state of Connecticut. The plaintiff subsequently withdrew her claims against the defendant David Fox.

       The record is unclear as to whether the motor was running, or whether the lights or the flares were visible at the time of the accident.

       The plaintiff is the wife of the decedent and originally sued both in her personal capacity and as administratrix of the decedent’s estate. She subsequently withdrew her personal claim.


author: Norcott, J.

text:
    All American Pools, Inc. v. Frank Lato et al.
    (6783)
    Daly, Norcott and Foti, Js.
    Argued December 12, 1989
    decision released February 6, 1990

      James J. Farrell, for the appellants (named defendant et al.).

      Simon Sumberg, for the appellee (plaintiff).
   Norcott, J.

This appeal arises out of the plaintiff’s action to foreclose ¿ mechanic’s lien filed against certain property owned by the defendant Rosalie Lato to secure payment allegedly due under a contract for the repair of a pool located on that property. The defendants Frank and Rosalie Lato (hereinafter defendants) appeal from the trial court’s judgment accepting the report of the attorney trial referee and ruling in favor of the plaintiff, All American Pools, Inc. They claim that the attorney trial referee erred (1) in finding that the Home Solicitation Sales Act did not apply to the parties’ agreement, (2) in finding that the defendants failed to prove that the plaintiff did not hold the necessary licenses and permits required by the Home Improvement Act, (3) in finding that the plaintiff did not use a fictitious name in violation of General Statutes § 35-1 or § 42-110b, (4) in finding that the agreement between the parties was not void as a matter of public policy and not awarding sums already paid to the plaintiff and attorney’s fees to the defendant, and (5) in allowing the plaintiff to amend its pleadings after trial in order to conform to the requirements of new case law. We find no error.

Most of the relevant facts in this case are not in dispute. The plaintiff and the named defendant, the husband of the defendant Rosalie Lato, entered into a written service contract dated June 10,1984, for repair work to be performed on the defendants’ pool. The services described in that agreement were performed, and Frank Lato made the full cash payment. Subsequently, the plaintiff performed additional services on the defendants’ pool. That additional work is the subject of this appeal.

The plaintiff claims that these additional services were performed pursuant to an agreement between the plaintiff and Frank Lato, who acted with his wife’s knowledge. The defendants do not deny this contention, but rather they assert that the agreement is unenforceable because the services fall under the Home Solicitation Sales Act.

The defendants challenge several factual findings made by the attorney trial referee. In addressing a challenge to the facts found by the attorney referee, this court’s function is to determine whether those findings are clearly erroneous. Practice Book § 4061; Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988). Only if they are clearly erroneous can we reverse the findings. “The resolution of conflicting factual claims falls within the province of the trial court.” Id. This court cannot retry those facts or pass on the credibility of the witnesses. Id.

The defendants claim that the attorney referee erred in finding that the Home Solicitation Sales Act was inapplicable to this case because the initial contact between the parties occurred at the plaintiff’s place of business. They further claim that the referee erred in finding that the plaintiff held the necessary licenses and permits required by General Statutes § 20-418 et seq. to perform home improvement work and that the plaintiff did not use an unregistered and fictitious name in violation of General Statutes § 35-1 or General Statutes § 42-110b.

The plaintiffs president, John Romano, testified that the initial contact between the parties took place at its place of business. The defendants testified that no contact took place at the plaintiffs office, but rather, that the contract was entered into at their home and that, therefore, the agreement fell under the Home Solicitation Sales Act. Romano also testified before the referee that he was a licensed contractor and that a plumbing permit, which the defendants claim was necessary, was not specifically required for the work that his company performs. The defendants, although alleging a violation by the plaintiff of the Unfair Trade Practices Act for using an unregistered or fictitious name, produced no evidence to support this claim.

The attorney referee found the following facts. Rosalie Lato initially contacted the plaintiff at its place of business to engage its services to repair the defendants’ pool. Frank Lato then entered into a written agreement with the plaintiff. After performance of the work outlined in the written contract was completed, the plaintiff advised the defendants that additional work was required, and Frank Lato agreed. He agreed to pay the amount due, $2561, within one week after completion. Upon completion of the work, the plaintiff sent bills to the defendants, but they did not pay.

Upon review of the entire record, we can find no reason to disturb the attorney referee’s findings of fact. The finder of fact is in the best position to pass on the credibility of witnesses; Nor’easter Group, Inc. v. Colossale Concrete, Inc., supra; and she was free, therefore, to believe the plaintiffs witness. Because the referee’s findings are adequately supported by the record, we conclude that there is no error.

Having concluded that the attorney referee did not err in finding that the initial contact between the parties occurred in the plaintiff’s office, it follows that she correctly held the Home Solicitation Sales Act inapplicable to this case. Further, because we have concluded that the referee was reasonable in finding no statutory violation by the plaintiff, the defendants’ claim that the contract was void as against public policy, based upon these alleged violations, also must fail.

Finally, the trial court did not err in allowing the plaintiff to amend its pleadings after trial in order to conform with the proof presented at trial and with new case law that was decided during the trial. See Wilson v. R.F.K. Corporation, 19 Conn. App. 548, 550, 563 A.2d 738 (1989). “ ‘The trial court may allow, in its discretion, an amendment to pleadings. . . . Such a ruling can be reversed only upon a clear showing of an abuse of discretion. . . . Factors to be considered in determining whether there has been an abuse of discretion include unreasonable delay, fairness to opposing parties and the negligence of the party offering the amendment. . . .’” (Citations omitted.) Colonial Bank & Trust v. Matoff, 18 Conn. App. 20, 26, 556 A.2d 619 (1989); see also Wilson v. R.F.K. Corporation, supra.

Midway through trial, our Supreme Court decided the case of Caulkins v. Petrillo, 200 Conn. 713, 513 A.2d 43 (1986). That case held that General Statutes § 20-429, a section of the Home Improvement Act, bars enforcement of oral home improvement agreements that have been fully performed by the contractor and partially performed by the homeowner. In light of Caulkins, and of the fact that the defendants attempted to prove that the agreement for additional work was not outlined in any written documents, the plaintiff moved to amend his complaint to conform with that law and evidence. The court granted that motion, characterizing the amendment as technical, and gave the defendants the opportunity to present additional evidence to the attorney referee. The defendants presented no further evidence, and judgment was then entered upon the referee’s report.

The trial, court did not abuse its discretion in allowing this amendment. The defendants suffered no prejudice because the court offered them an opportunity to respond. Moreover, the plaintiff had no way of knowing that Caulkins would be decided midway through trial and that the defendants would be able to rely on its ruling in presenting their evidence, and, therefore, it was not negligence that necessitated the amendment. A party is permitted to amend the pleadings to conform with the proof offered. Practice Book § 178; Wilson v. R.F.K. Corporation, supra.

There is no error.

In this opinion the other judges concurred.

       The Home Solicitation Sales Act is contained in General Statutes § 42-134a et seq. General Statutes § 42-134a (a) defines a home solicitation sale as: “A sale ... of consumer goods or services ... in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller. ” (Emphasis added.) The federal Commercial Practices Act, 16 C.F.R. § 429.1, note 1 (a) (1988), defines a door to door sale in language identical to that of our state act.

       General Statutes § 20-418 et seq. constitute the Home Improvement Act. Under § 20-420, “No person shall hold himself out to be a contractor or salesman without first obtaining a certificate of registration from the commissioner . . . .”

       General Statutes § 35-1 provides in pertinent part: “No person . . . shall conduct or transact business in this state, under any assumed name . . . other than the real name or names of the person or persons conducting or transacting such business . . . .”

       General Statutes § 42-110b of the Unfair Trade Practices Act prohibits persons from engaging in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”


author: Spallone, J.

text:
    State of Connecticut v. Constantine Morant
    (7711)
    Borden, Spallone and Lavery, Js.

      Argued November 15, 1989
    decision released February 6, 1990

      Brian M. O’Connell, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, was John Bailey, state’s attorney, and James Thomas, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the denial by the trial court, after remand, of his postsentencing motion to withdraw his plea of guilty to the charge of risk of injury to or impairing the morals of a child in violation of General Statutes § 53-21.

The facts of this case are detailed in State v. Morant, 13 Conn. App. 378, 536 A.2d 605 (1988). During the course of a trial on charges of risk of injury to a child and sexual assault in the second degree, the court, after canvassing the defendant, accepted his plea of guilty to the crime of risk of injury. Id., 379-80. Before the conclusion of the sentencing proceeding, but immediately after the imposition of sentence, the court refused to hear the defendant’s protests that his change of plea was not voluntary. Id., 381-83. On appeal, this court found that the defendant’s statements were a timely assertion of a motion to withdraw the plea. Id., 384. The case was therefore remanded to the trial court for “an evidentiary hearing to determine whether the defendant should be allowed to withdraw his plea of guilty.” Id., 385.

Accordingly, the trial court upon remand conducted an evidentiary hearing and determined that the defendant failed to demonstrate that he should be allowed to withdraw his plea. On appeal, the defendant claims that the court (1) misapplied the standard of review by imposing the burden of proof upon the defendant, (2) erroneously denied the defendant’s application to withdraw his guilty plea, and (3) failed to canvass the defendant properly before accepting his plea. We find no error.

The defendant first claims that he was erroneously required to bear the burden of demonstrating that his plea was invalid. This claim is manifestly without merit. The defendant at all times bears the burden of showing a plausible reason for the withdrawal. State v. Crenshaw, 210 Conn. 304, 309, 554 A.2d 1074 (1989); State v. Slater, 169 Conn. 38, 46, 362 A.2d 499 (1975). “To warrant consideration, the defendant must allege and provide facts which would justify permitting him to withdraw his plea . . . .” State v. Dehoben, 187 Conn. 469, 474, 446 A.2d 828 (1982).

Contrary to the defendant’s claim that he was forced to assume a burden not constitutionally his, our remand actually relieved the defendant of a substantial portion of his burden. By directing the trial court to hold an evidentiary hearing on remand without requiring that the defendant first allege a plausible reason for withdrawing his plea, and without reviewing the record, we afforded the defendant more of an opportunity to argue his claim than he might have received had strict procedure been followed. See State v. Torres, 182 Conn. 176, 185-86, 438 A.2d 46 (1980) (evidentiary hearings necessary only if record does not conclusively determine validity of plea).

The defendant next claims that the court erred in denying his motion to withdraw his plea, pursuant to Practice Book § 721 (2), on the ground that his plea was involuntarily made. There is no merit to this claim. A guilty plea, once accepted, may be withdrawn only with the permission of the court. State v. Rish, 17 Conn. App. 447, 451, 553 A.2d 1145, cert. denied, 211 Conn. 802, 559 A.2d 1137, cert. denied, U.S. , 110 S. Ct. 72, 107 L. Ed. 2d 38 (1989). The court is required to permit the withdrawal of a guilty plea upon proof of any ground set forth in Practice Book § 721. State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988); State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983). Whether such proof is made is a question for the court in its sound discretion, and a denial of permission to withdraw is reversible only if that discretion has been abused. State v. Crenshaw, supra, 308-309; Szarwak v. Warden, 167 Conn. 10, 23, 355 A.2d 49 (1974).

The defendant claims that his plea was involuntary because, at the time of the plea canvass, he was suffering the intoxicating effects of prescribed medications and under pressure from his attorney to plead guilty. The court made specific factual findings on remand, supported by the record, rejecting those factual claims. The court examined all the relevant circumstances of the canvass. See State v. Wright, 207 Conn. 276, 289, 542 A.2d 299 (1988). On the basis of the defendant’s demeanor and speech, and on the timing of the medication dosages, the court concluded that the defendant failed to prove that his plea was in any way affected by his medication. The court also weighed the credibility of the defendant and his attorney in determining whether the defendant was pressured into making his plea. See State v. Williams, 16 Conn. App. 75, 78, 546 A.2d 943 (1988). The court held that the defendant’s unsupported allegations of coercion were not worthy of belief and were less credible than his attorney’s denials. The record, therefore, adequately supports the conclusion that the defendant’s plea was entered with his full agreement and understanding. Accordingly, in its denial of the defendant’s motion to withdraw his plea, the court acted properly and in accordance with applicable law.

Finally, the defendant claims that the court failed to canvass the defendant in the specific language of Practice Book § 712. This claim is raised for the first time on appeal and was not presented to or decided by the court on remand. We, therefore, decline to review this unpreserved claim as the record does not indicate that fundamental injustice was done, even if this was an error of constitutional proportions. State v. Luca, 19 Conn. App. 668, 671, 563 A.2d 752 (1989).

There is no error.

In this opinion the other judges concurred.

       The defendant was sentenced to ten years imprisonment suspended after seven years with five years probation. State v. Morant, 13 Conn. App. 378, 381-82, 536 A.2d 605 (1988).


text:
    Ernest Robertson v. Nationwide Mutual Insurance Company et al.
    (7444)
    Spallone, Norcott and Lavery, Js.
    Argued November 16, 1989
    decision released February 6, 1990

      Lawrence H. Dickson, for the appellant (plaintiff).

      Barbara B. Sacks, with whom, on the brief, was Patricia Shea Lovell, for the appellees (defendants).
   Spallone, J.

The plaintiff appeals from a judgment rendered in his favor, after a trial to a state trial referee, claiming that the referee erred in failing to construe ambiguous insurance contract language in favor of the insured. We find no error.

The plaintiff, Ernest Robertson, owned a 1957 Gull Wing Mercedes that he had purchased for $36,000 from Herman Quint. Robertson, Quint and other joint venturers had formed an antique car restoration business and agreed that the vehicle would be restored and shown for promotional purposes. The disassembled car was kept in the garage of the plaintiff’s residence from which Quint allegedly removed it to California after the business failed.

The plaintiff claimed the vehicle as a loss under his homeowner’s insurance policy which was issued by the defendant Nationwide Mutual Insurance Company. The policy contains provisions for loss of personal property and for loss of business property up to a limit of $500. The policy also explicitly excludes motor vehicles, except those in “dead storage.” The plaintiff claimed that the vehicle was personal property or, in the alternative, a vehicle in dead storage. The defendant disclaimed all liability for the loss of a motor vehicle. Unable to resolve his claim, the plaintiff brought suit to enforce the provisions of the policy and the matter was heard by a state trial referee.

At trial, the parties stipulated the issues as follows: “(1) Whether the property, which is the subject of this matter, is in fact personal property covered by the insurance policy, specifically whether or not it is excluded as a motor vehicle, and (2) whether or not this property is business property used in the conduct of a business which would limit recovery under the policy to five hundred dollars.” In his memorandum of decision, the state trial referee answered both questions in the affirmative, that is, (1) yes, the property in question was a motor vehicle and thus excluded from coverage, and (2) yes, although a motor vehicle and excluded as such under the policy, the car was nevertheless business property used in a business and subject to a maximum recovery of $500. The trial court thereupon rendered judgment for the plaintiff to collect damages of $500. This appeal followed.

The plaintiff claims on appeal that the trial referee erred in falling to find various contract terms to be ambiguous and unclear and in failing to resolve the alleged ambiguities against the insurance company as required by law. See Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987); Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 309-10, 524 A.2d 641 (1987); Carley v. Lumbermens Mutual Casualty Co., 10 Conn. App. 135, 143, 521 A.2d 1053 (1987). The plaintiff, in essence, asks us to retry the issues in this case and reverse the findings below. This we cannot do.

On appeal, the function of this court is limited solely to the determination of whether the decision of the trial court is clearly erroneous. Practice Book § 4061; Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Ram Roofing & Sheet Metal Co. v. A.B.C. Plumbing & Heating, Inc., 2 Conn. App. 54, 56, 475 A.2d 341 (1984). This court cannot find fact or draw conclusions from primary facts found, but can only review such findings to determine whether they could have legally, logically and reasonably been found by the trier. Appliances, Inc. v. Yost, 186 Conn. 673, 676-77, 443 A.2d 486 (1982).

Nothing in the trier’s memorandum of decision indicates that he found the specific terms of the insurance policy to be vague or ambiguous, and we will not “ ‘torture words to import ambiguity.’ ” Carley v. Lumbermens Mutual Casualty Co., supra, 142. The policy excludes coverage for “motorized land vehicles . . . designed for travel on public roads as subject to motor vehicle registration.” The trier found that the plaintiff’s car, even disassembled, met this definition of a motor vehicle. The trier found that the vehicle was designed for highway travel, would be subject to vehicle registration when that use was made, and that the vehicle did not meet the definition of personal property. The trier further noted that the plaintiff did not notify the defendant, as required, that he was holding a particular item of personal property of considerable value.

Moreover, if the trier had found a term to be ambiguous, there is no indication in the record that he failed to construe the term against the defendant. For example, the trier found that the car met the definition of business property, notwithstanding that the plaintiffs business had failed some time before the loss.

We conclude that the factual findings of the trier are not clearly erroneous in view of the evidence and the pleadings in the whole record, and that the decision is not otherwise erroneous in law.

There is no error.

In this opinion the other judges concurred.


author: Daly, J.

text:
    Danbury Savings and Loan Association, Inc. v. Jorman M. Hovi et al.
    (7787)
    Borden, Daly and Norcott, Js.
    Argued November 7, 1989
    decision released February 6, 1990

      Jorman M. Hovi, pro se, the appellant (named defendant).

      Scott D. Rosen, for the appellee (defendant Federal Deposit Insurance Corporation).

      Robert N. Talarico filed a brief for the appellee (plaintiff).
   Daly, J.

This is an appeal by the named defendant, Jorman M. Hovi, from the judgment of the trial court approving a foreclosure by sale of property owned by the defendant. The defendant claims that the court erred in approving the sale because the sale price of $98,000 was substantially below the appraised value of $225,000, and because such approval deprived him of his property without due process of law. We find no error.

The plaintiff, Danbury Savings and Loan Association, Inc., instituted this foreclosure action against the defendant, seeking to foreclose its mortgage on the defendant’s property in Danbury. The trial court found that the debt secured by the mortgage was $13,997.80, and ordered a foreclosure by sale. The court appointed a committee to conduct the sale of the property, and appointed three appraisers pursuant to General Statutes § 49-25. The appraisers arrived at a value of $225,000 for the entire property. That value was based on the assumption that the building was a legal nonconforming use as a four-family structure.

The committee’s “notice to bidders” pointed out that there was a question concerning whether the premises could legally be used as a four-family, as opposed to a two-family, dwelling. It further stated that the defendant had filed what purported to be a declaration of condominium and by-laws for the premises.

On the sale date, six registered bidders and fourteen additional persons attended the auction. The plaintiff made the opening bid and bidding then proceeded through sixteen mesne bids to a high bid of $98,000, and the bidding was declared closed. The sale was made subject to prior tax liens.

A hearing was held on the committee’s motion to approve the sale. The plaintiff and the defendant Federal Deposit Insurance Corporation (FDIC), which held a subordinate mortgage on the property, presented evidence that the legal use of the building was limited to two families, and that any previous nonconforming use of the building as a four-family dwelling had been abandoned. One of the court-appointed appraisers testified that he had assumed that the building was a legal four-family dwelling. He also testified that if the building was only a two-family dwelling, the value of the property would be $165,000. The defendant presented evidence that the four-family use of the premises had not been abandoned. In addition, he had the opportunity to cross-examine the opposing witnesses. The trial court approved the sale.

I

The defendant first claims that the court abused its discretion when it approved the sale because the highest bid of $98,000 was inadequate compared to the original appraised value of $225,000. We do not agree.

First, the defendant cites to an outdated version of General Statutes § 49-14 and argues that the original appraisal of $225,000 was conclusive as to the value of the property. The version of General Statutes § 49-14 on which the defendant relies was revised in 1979. See Public Acts 1979, No. 79-110. The revised version of § 49-14 does not apply to the present proceeding because it concerns appraisals made following the filing of a motion for a deficiency judgment.

The court properly applied General Statutes § 49-25, the applicable provision for foreclosure by sale proceedings, in appointing the three appraisers. Our Supreme Court has determined that an appraisal made pursuant to a foreclosure by sale is not conclusive as to the value of the property. See Bryson v. Newton Real Estate & Development Corporation, 153 Conn. 267, 274, 216 A.2d 176 (1965); Cronin v. Gager-Crawford Co., 128 Conn. 688, 694-95, 25 A.2d 652 (1942). Thus, the trial court was not bound to accept the original appraised value of $225,000 in determining whether to approve the sale.

The defendant next asserts that the original appraised value should have been the “medium of comparison for the trial court to use to determine the fairness of the bids brought in by the auction.” The purpose of the appraisal is, as argued by the defendant, to give the court a basis from which to determine the fairness of the highest bid. Bryson v. Newton Real Estate & Development Corporation, supra, 274. The court properly considered the original appraised value when it accepted the highest bid. The court, nonetheless, determined that there was active participation in the bidding process, and that the auction was proper.

The defendant also asserts that the bid of $98,000 was not adequate. “Because the trial court has control of the foreclosure proceedings, it can, in the exercise of its discretion, accept or reject a proposed sale.” Fidelity Trust Co. v. Irick, 206 Conn. 484, 490, 538 A.2d 1027 (1988). “ ‘[A] court of equity in a foreclosure suit would have full authority to fix the terms and time of the foreclosure sale and to refuse to confirm sales upon equitable grounds where they were found to be unfair or the price bid was inadequate. . . .’ ” Id., quoting Honeyman v. Jacobs, 306 U.S. 539, 543, 59 S. Ct. 702, 83 L. Ed. 972 (1938).

There was evidence that the legal status of the property at the time of the auction was questionable, and that the value of the property could be worth as little as $165,000. In addition, the court specifically found that there was no unfairness in the bidding process, that there was no likelihood that a second auction would produce a higher sales price, and that such a second auction would instead increase costs and delay the satisfaction of debts to other creditors. Under the circumstances of this case, the court did not abuse its broad discretion.

The defendant also claims that the court erred in finding that the committee did not misrepresent the property when it included information in the notice to bidders regarding the legal status of the use of the building. The court specifically found that the legal use of this building was questionable, and that the committee acted properly when it included information in the notice to bidders that the nonconforming use had probably been abandoned for a period exceeding six months. On the basis of our review of the record, we conclude that the evidence sufficiently supports the trial court’s finding and, as such, is not clearly erroneous. Practice Book § 4061; Feigenbaum v. Waterbury, 20 Conn. App. 148, 151, 565 A.2d 5 (1989).

II

The defendant also claims that the approval of the sale violated his right against deprivation of property without due process of law. We do not agree.

“Due process does not mandate a particular procedure but rather requires that certain safeguards exist in whatever procedural form is afforded. . . . Moreover, there is no violation of due process when a party in interest is given a meaningful time for a court hearing to litigate the question . . . .” (Citation omitted.) Hartford Federal Savings & Loan Assn. v. Tucker, 196 Conn. 172, 176-77, 491 A.2d 1084, cert. denied, 474 U.S. 920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985). The defendant had the full opportunity to persuade the court that it should not approve the sale. The defendant was not deprived of due process of law.

There is no error.

In this opinion the other judges concurred.

       This foreclosure action was instituted against Jorman M. Hovi, as trustee, because Jorman M. Hovi and Joan L. Hovi, as mortgagors, conveyed the mortgaged property to Jorman M. Hovi, trustee, in violation of the terms of the mortgage. The named defendant on the appeal, however, was Jorman M. Hovi, individually. The plaintiff has not objected to this technical defect. Our reference to the defendant is intended to include Jorman M. Hovi, both as trustee and individually.
      The plaintiff also instituted this action against several creditors. These defendants did not, however, appeal.


text:
    State of Connecticut v. Gary Aleksiewicz
    (7291)
    Dupont, C. J., Borden and Lavery, Js.

      Argued October 19, 1989
    decision released February 6, 1990

      Kenneth W. Williams, special public defender, with whom, on the brief, was Duncan Ross MacKay, special public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction rendered after a jury found him guilty of robbery in the first degree, in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the evidence was insufficient to support a conviction because, during the commission of the crime, he had not threatened the use of what he represented, by his words or conduct, to be a firearm. We agree.

On the basis of the evidence produced, the jury could reasonably have found certain relevant facts. On July 16, 1986, at approximately 9 p.m., Thomas Norton and his brother Donald Norton drove to the Connecticut National Bank on Main Street in New Britain. Thomas withdrew $400 from the bank’s automatic teller machine. The defendant approached the window on the driver’s side of the car and said, “Give me that money or you’re dead.” The defendant then grabbed some of the cash from Thomas’ hands, and Thomas, frightened, handed the remaining cash in his lap to the defendant. The defendant then ran toward the front of the bank building. Donald initially pursued him on foot, but when the defendant jumped into a car and fled, the brothers pursued him in their car for twenty to thirty minutes, until they lost him in traffic.

In reporting the details of the robbery at the police station shortly thereafter, Thomas stated that the defendant was holding his hand inside a “t-shirt” when he demanded the money. At trial, Thomas testified that the defendant had held his hand flat against his abdomen in a “coat like or jacket.” The defendant was ultimately arrested and charged with robbery in the first degree, in violation of General Statutes § 53a-134 (a).

An essential element of robbery in the first degree is that, in the course of the commission of the robbery, the perpetrator “displays or threatens the use of what he represents by his words or conduct to be ... a firearm.” The defendant claims that the evidence presented at trial was insufficient for the court to submit the question to the jury or to permit a jury reasonably to have found against the defendant on this element, and that his conviction was, therefore, in error. In support of his claim, he cites the fact that the trial court refused to allow testimony as to whether the victims believed a gun was in the assailant’s possession because it found the evidence insufficient even to render such a belief reasonable.

It is axiomatic that in a criminal trial, the state must prove each element of the crime, as well as every essential fact necessary to establish that crime, beyond a reasonable doubt. State v. Mullings, 202 Conn. 1, 11, 519 A.2d 58 (1987); State v. Rodriquez, 200 Conn. 685, 688, 513 A.2d 71 (1986). In reviewing the sufficiency of the evidence, an appellate court, first, must examine the evidence presented at trial in the light most favorable to sustaining the verdict; State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); and, second, must determine whether, when considered in that light, the evidence could have led a jury to conclude beyond a reasonable doubt that the defendant was guilty. Id.; State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

A jury is permitted to draw reasonable inferences from the evidence before it, and it is free to draw inferences consistent with guilt as well as those consistent with innocence. State v. Dumlao, 3 Conn. App. 607, 616, 491 A.2d 404 (1985). In drawing inferences, however, the jury may not resort to “speculation and conjecture.” State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979); State v. Rodriquez, supra, 687; State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); see also State v. Stevenson, 198 Conn. 560, 569, 504 A.2d 1029 (1986). “While proof of guilt must exclude every reasonable supposition of innocence, it need not exclude every possible supposition of innocence.” (Emphasis added.) State v. Little, supra, 672.

The only evidence in the present case that the defendant threatened the use of what he represented by word or conduct to be a firearm was the testimony of one of the victims that the assailant held one hand flat against his body, inside his shirt, vest or jacket, and that he said, “Give me that money or you’re dead.” This testimony does not definitely establish the firearm element of this crime because no gun was shown and no specific indication was given, by either the defendant’s words or actions, that he had in his possession or would use specifically a gun to accomplish his threat. The question is whether the jury could have found, logically and beyond a reasonable doubt, from the facts presented and inferences drawn from those facts, that the defendant represented by his conduct and words that he had or would use a gun.

The defendant argues that, based upon the evidence presented at trial, the jury’s verdict could have been reached only through speculation and conjecture and that the jury could not have drawn a reasonable and logical inference from the evidence that the defendant represented that he had a firearm. He argues that the state failed to prove that the defendant, during the commission of the crime, threatened the use of what he represented to be a firearm to the exclusion of any other type of weapon or no weapon at all. See State v. Rodriquez, supra, 688; State v. Gaines, 196 Conn. 395, 399, 493 A.2d 209 (1985). If these assertions are true, the defendant could not have been found guilty of first degree robbery.

In support of its argument that the evidence on this point was sufficient, the state cites several cases in which a jury was found to have properly inferred that the defendant had represented, by a hand held under his clothing, that he had a firearm. In each of those cases, however, there was additional evidence beyond that offered in the present case to indicate that the use of a firearm, rather than another type of weapon, was threatened.

In James v. State, 405 So. 2d 71, 72 (Ala. Crim. App. 1981), the victim firmly and repeatedly stated that she knew the assailant had a gun. Furthermore, the Alabama statute involved required only using an item so as to lead a reasonable person to believe that a perpetrator had a gun, in contrast to the Connecticut statute’s objective requirement that the perpetrator represented that he had or would use a gun. In the present case, there was no testimony that the victim knew or believed that the defendant had or would use a firearm.

In People v. Kimble, 311 N.W.2d 446, 449 (1981), the court cited Guilty Plea Cases, 395 Mich. 96, 130, 235 N.W.2d 132 (1975), in which a defendant admitted that he had “made like I had a gun in a paper bag.” The defendant in the case before us has given no such testimony.

In People v. Knowles, 79 App. Div. 2d 116, 117, 436 N.Y.S.2d 25 (1981), the defendant admitted holding his hand in his pocket in a manner “which was meant to,” and presumably did, “convey to [the victim] the impression that [the assailant] had a gun,” thus satisfying the statute in question, which applies to a person who, in the course of a robbery, “[displays what appears to be” a firearm. New York Penal Code § 160.10, subd. 2 (b) (McKinney 1988). Once again, no such testimony was given in the case before us.

In People v. Lopez, 135 App. Div. 2d 443, 444, 522 N.Y.S.2d 145 (1987), there was testimony that the defendant had placed his hand inside his vest “as if he had a gun.” Again, no such testimony was offered in the present case.

In fact, at trial, the court in this case refused to allow any testimony regarding whether Thomas Norton believed the assailant had a firearm. The court stated: “I don’t think this witness [Thomas Norton] can give an opinion as to what the particular kind of weapon was that he felt threatened by. I don’t think there’s sufficient foundation here to allow him reasonably to form an opinion that what the person had inside his shirt or vest was a gun, as opposed to some other kind of weapon. And I think that that’s just a question that the jury [could decide] . . . if the jury wishes to make that inference, that’s another question. But . . . the question . . . is . . . whether or not this witness can say, based upon what ... he has told us here today, that the defendant was armed with a firearm . . . [W]hat’s reasonable about the inference that . . . the man has a handgun under his shirt.... [H]e can testify that he was in fear because he thought that the . . . defendant was armed .... But to say that he’s armed with a gun is an entirely different matter, because that requires such specification, for which there’s absolutely no foundation. . . . [I]f the only scintilla of evidence is an opinion of a witness for which there is no foundation , . . . I don’t know how . . . I’m going to charge on an element of a crime if there is scant evidence of it. . . .” (Emphasis added.)

The court seriously questioned whether any evidence had been introduced to support the conclusion that the assailant had threatened the use, specifically, of a gun. “[I]f an element making up the crime, as laid down by a statute, is wholly unsupported by the evidence, it is error to submit it to the jury as if the evidence justified the determination of the presence of that element.” State v. Rogers, 177 Conn. 379, 382, 418 A.2d 50 (1979).

The court’s assessment of the evidence was that even the victim could not have concluded reasonably that the assailant had á gun in his possession. It is difficult to see how the jury, on the same evidence, could have concluded beyond a reasonable doubt that the assailant either displayed or threatened the use of a gun. We conclude, on the basis of our review of the evidence, in the light most favorable to upholding the conviction, that insufficient evidence was presented on a necessary element of the crime of robbery in the first degree. It was, therefore, error for the court to submit that issue to the jury, and we set aside the conviction of robbery in the first degree.

Although the defendant was charged with robbery in the first degree, a jury instruction on the lesser included offense of robbery in the third degree, General Statutes § 53a-136, was also requested and given. Representation of the use of a firearm is not an element of robbery in the third degree, but all other elements of the two crimes are the same. To find the defendant guilty of robbery in the first degree, the jury must, therefore, have found him guilty beyond a reasonable doubt on all elements of robbery in the third degree, as well as on the firearm element. Although we reverse the conviction of robbery in the first degree because the evidence was insufficient on the element of “representation of the use of a firearm,” we conclude that the jury would necessarily have found the defendant guilty of the lesser charge, had they considered it. State v. McGann, 199 Conn. 163, 178-79, 506 A.2d 109 (1986); State v. Horne, 19 Conn. App. 111, 142-46, 562 A.2d 43 (1989).

We must now consider the defendant’s remaining claims of error to determine their effect on the correctness of directing a conviction on remand for the lesser included offense. Two of these claims are moot. Our finding of insufficient evidence on the representation of the use of a firearm renders moot the defendant’s objections to the instructions given with respect to that issue as well as his objection to the court’s failure to instruct the jury on the statutory affirmative defense that the firearm was inoperable.

The defendant also objects on several grounds to the court’s consciousness of guilt instruction regarding statements by the defendant, after his arrest and prior to trial, to one of the victims. Because the defendant failed to object to this instruction at trial, he raises his objections here under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). Where an objection is not raised at trial, we will review it under Evans only where the claim is of constitutional magnitude, alleging the violation of a fundamental right, and where, in addition, the record is adequate for review. State v. Golding, 213 Conn. 233, 238-40, 567 A.2d 823 (1989). We must consider separately each claim raised by the defendant regarding the contested instruction to determine whether it is, indeed, reviewable under Evans as refined by Golding, and, if so, whether the claim is meritorious.

The defendant claims, relying on State v. Banks, 194 Conn. 617, 621, 484 A.2d 444 (1984), that no consciousness of guilt instruction should have been given at all because there was no material misstatement by the defendant in the conversation at issue, and that the instruction deprived the defendant of due process of law because it shifted the burden of proof to him. We conclude that this claim is reviewable because it is of constitutional magnitude, concerning a violation of a fundamental right, and the record is adequate. The defendant’s reliance on Banks is misplaced, however, because Banks does not limit the giving of a consciousness of guilt instruction to a situation where the defendant has made a material misstatement but, rather, it holds that a material misstatement is one type of statement that will render such an instruction permissible.

In seeking to introduce evidence of a defendant’s consciousness of guilt, “[i]t is relevant to show the conduct of an accused, as well as any statement made by him subsequent to an alleged criminal act, which may be inferred to have been influenced by the criminal act.” (Emphasis added.) State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986), citing State v. Reid, 193 Conn. 646, 655, 480 A.2d 463 (1984). Once the evidence is admitted, if it is sufficient for a jury to infer from it that the defendant had a consciousness of guilt, it is proper for the court to instruct the jury as to how it can use that evidence. It is then for the jury to consider any ambiguity in the evidence. State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986).

In the present case, the defendant’s statements were relevant because they were made subsequent to an alleged criminal act and they may be inferred to have been influenced by that alleged act. Those statements were, therefore, properly admitted. The defendant’s statements here also unquestionably were sufficient to allow the jury to infer that the statements were influenced by the alleged criminal act. Thus, the trial court was correct both in admitting them and, subsequently, in giving a consciousness of guilt instruction to the jury regarding them. It was then for the jury to consider possible alternative explanations for the statements.

The defendant’s next two objections relate to the wording of the instruction, which was phrased: “Based on that testimony of Thomas Norton, if you believe that the defendant’s statements were attempts to conceal the truth of his identity, or were attempts to bribe Thomas Norton, or to intimidate him, then those statements could be considered by you to be evidence of the defendant’s guilt. If you believe, on the other hand, that the defendant was simply trying to persuade Norton to correct a mistake, then the defendant’s statements would not necessarily constitute evidence of his guilt.”

The defendant claims that the wording of that instruction favored the state and reflected adversely on the defendant. The defense, however, introduced no evidence as to what the defendant actually meant by his statements. The only evidence presented on that question at trial was the testimony of the victim. Because no evidence was presented by the defense as to a possible innocent explanation for the defendant’s statements, the record presented is inadequate for review of the claim that the court’s instruction failed to give equal attention to a possible innocent explanation. We, therefore, decline to review that claim. State v. Golding, supra.

The defendant’s final claim as to the consciousness of guilt instruction is that the wording of the instruction unconstitutionally shifted the state’s burden of proof, because the court, by its use of the word “necessarily,” implied that even if the jury believed the defendant’s statements constituted an attempt to correct a mistake, it could nevertheless consider those statements as evidence of his guilt. The instruction must be read in conjunction with the other instructions given. State v. Anderson, 212 Conn. 31, 560 A.2d 980 (1989). In its charge, the court properly instructed the jury as to the presumption of innocence, the state’s burden of proof on each element of the crime charged, and the reasonable doubt standard. In the context of the jury instructions as a whole, it is unlikely that the jury was misled by the use of the word “necessarily.” We find no error.

The defendant also argues that the trial court erred in failing to suppress the out-of-court identification of him by the victims. The defendant did not raise this issue at trial, but he raises it on appeal under State v. Evans, supra. We conclude that State v. Golding, supra, requires that the application of Evans in this case precludes a review of the claimed error. We so conclude because the facts in this record do not show a sufficient, clear and unambiguous violation of the defendant’s due process rights. See id., 240.

The defendant claims that the presentation to the witnesses of an array of photographs, including one of the defendant, was impermissibly suggestive because of some dissimilarities among the individuals in the photographs and because of the possibility that the witnesses may have seen the brief physical descriptions on the back of the photographs. An “ ‘array composed of different individuals must necessarily contain certain differences.’ ” State v. Boscarino, 204 Conn. 714, 726, 529 A.2d 1260 (1987). Although the individuals depicted in this array varied somewhat in height and build, they were not depicted as full figures, so that a witness could not have determined relative height and body build merely from viewing the photos. In addition, no evidence was presented that the witnesses viewed the information on the back of the photos. Indeed, the defendant concedes that it is not clear from the testimony whether the witnesses were even aware of the presence of the information. Furthermore, there is no evidence that the police in any way emphasized the photograph of the defendant over those of the other subjects in the array. See State v. Anderson, 20 Conn. App. 271, 274, 566 A.2d 436 (1989); State v. Arroyo, 13 Conn. App. 687, 690, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988).

The determination of whether there has been a constitutional violation of a defendant’s due process rights when photographs identified out-of-court by a victim are the subject of a motion to suppress is fact-bound. State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). The admissibility of that evidence depends on preliminary questions of fact to be made by the trial court, and unless that court’s assessment of the reliability or suggestiveness of the identification is clearly erroneous, that decision should not be disturbed. Id.

In this case, the facts in the record are not clear and unambiguous, and we cannot supply or reconstruct the facts to give the defendant a factual record that he has not supplied. State v. Golding, supra. We may not, therefore, review the claimed error under the Evans principle, as further defined by Golding.

Finally, the defendant argues that the trial court erred in admitting into evidence prejudicial hearsay statements of alleged witnesses to a hit-and-run accident that occurred after the crime, which involved a green Ford Maverick with a license plate number similar to that memorized by the Nortons at the scene of the robbery. We find no error in the admission of this testimony because cross-examination had opened an inquiry into the source of an automobile license plate number involved, thereby entitling the state to redirect examination on that topic.

None of the defendant’s claims of error that relate to a judgment of conviction on the lesser included offense of robbery in the third degree requires a judgment of acquittal. The trial court should have set aside the conviction of robbery in the first degree, and should have substituted a verdict of guilty on the lesser included offense of robbery in the third degree. We, therefore, must remand the case for the trial court to modify the judgment to reflect a conviction of robbery in the third degree and to resentence the defendant accordingly. State v. McGann supra; State v. Horne, supra.

There is error in part, the judgment of conviction of robbery in the first degree is set aside and the case is remanded to the trial court with direction to render a judgment of conviction of robbery in the third degree and to resentence the defendant accordingly.

In this opinion the other judges concurred.

       We review this issue, although it was not raised at trial, on the basis of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). When the record substantiates the fact that the state has not proved every element of the crime with which a defendant has been charged, Evans review is warranted. See State v. Golding, 213 Conn. 233, 567 A.2d 823 (1990); State v. Delafose, 185 Conn. 517, 520-21, 441 A.2d 158 (1981); see State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

       According to the victim’s testimony, he received two telephone calls from the defendant. In one of the calls, the victim testified, the defendant said that all the victim wanted was to get his money back. The victim testified that he said he agreed with that statement and that he then asked the defendant if he wanted to make restitution. According to the victim, the defendant replied, “All’s you have to do is tell the police that you made a wrong ID, that I’m not the guy that robbed you.”