author: Dupont, C. J.

text:
    State of Connecticut v. Samuel L. Green
    (13518)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued June 2
    decision released August 22, 1995

      Kenneth W. Simon, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Stephen Preleski, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment following his conviction of robbery in the first degree in violation of General Statutes § 53a-134, conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-134 and 53a-48, and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). On appeal, the defendant claims the trial court (1) improperly denied the defendant’s motion for a speedy trial, (2) instructed the jury incorrectly on an element of assault in the second degree, and (3) should have granted the defendant’s motion for judgment of acquittal because the evidence was insufficient to prove assault in the second degree beyond a reasonable doubt. We affirm the judgment of conviction.

The jury could have reasonably found the following facts. On February 5, 1993, a pizza deliveryman was accosted at gunpoint by three men. After demanding money, one of the men struck the victim on the left side of his head with a gun. The victim fell to the ground, and the victim’s assailant and the two other men fled with an undetermined amount of money and food. The next day the defendant was arrested by the police after he was positively identified by the victim, and he was arraigned on February 8, 1993.

After several pretrial motions made by the defendant, including a motion for disclosure and motions for bond reductions, voir dire began on September 1,1993. When it was discovered that the victim, an essential witness, was temporarily leaving the country for Pakistan, the state filed a motion for a continuance on September 7, 1993.

Even though the state had been in periodic contact with the witness from the beginning of voir dire, he had not indicated his intent to leave for Pakistan until September 7, 1993. That same day, the state served a subpoena on the witness and confirmed that he had a scheduled flight leaving for Pakistan. After attempting alternative means for obtaining the witness’ testimony, including beginning trial earlier or deposing the witness prior to his departure, the state successfully moved for a continuance until November 15,1993, the day of the witness’ scheduled return. The defendant had no objection to this motion or to the court’s finding of good cause for the continuance.

In October, the state contacted the defendant to inform him that the witness had extended his stay in Pakistan for another month. In response, the defendant moved for a speedy trial pursuant to Practice Book § 956D on October 28,1993. On November 3,1993, the court denied the defendant’s motion without prejudice and continued the trial until December 15, 1993, the witness’ amended scheduled return. On November 5, 1993, the trial court granted the defendant’s motion to dismiss the original jury due to the additional delay, and selection of a new jury commenced on December 15,1993. On January 19,1994, the defendant was found guilty of all three charges, and, on March 9, 1994, he was sentenced to a total of thirteen years imprisonment.

I

The defendant argues that the trial court improperly denied his statutory right to a speedy trial. The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. State v. Flowers, 198 Conn. 542, 503 A.2d 1172 (1986). “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980) .... The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts. State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985).” (Citation omitted; internal quotation marks omitted.) State v. Flowers, supra, 544.

The sixth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution guarantee the right to a speedy trial. State v. Almgren, 12 Conn. App. 364, 368, 530 A.2d 1089 (1987). In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the United States Supreme Court set forth the guidelines to be applied in determining whether an individual’s constitutional right to a speedy trial has been violated. Connecticut, however, has afforded individuals greater rights than those outlined in Barker by promulgating specific deadlines for commencing a criminal trial. Practice Book §§ 956B through 956E.

The trial court based its denial of the motion for a speedy trial on the witness’ unavailability. The court noted that the witness’ unavailability from September 7 until December 15 resulted in excludable time under Practice Book § 956C. The trial court found that the state had exercised due diligence in attempting to obtain the witness’ testimony, and therefore, the court excluded this time from the running of the speedy trial deadline and denied the motion. The trial court, however, did not need to address this question because by statute and under the rules of practice, the motion was not timely.

General Statutes § 54-82m authorizes the judges of the Supreme Court to promulgate rules to provide a procedure to assure a speedy trial. Practice Book § 956D requires that “[i]f the defendant is not brought to trial within the applicable time limit . . . and a trial is not commenced within thirty days of the filing of a motion for speedy trial by the defendant at any time after such time limit has passed, the information shall be dismissed with prejudice . . . .” Therefore, before the defendant may move for dismissal, he must file a motion for a speedy trial. Furthermore, § 956D provides: “Failure of the defendant to file a motion to dismiss prior to the commencement of trial shall constitute a waiver of the right to dismissal under these rules.” Because a motion to dismiss is waived unless filed before the commencement of trial and a motion for a speedy trial must precede a motion for dismissal, logically a motion for a speedy trial must also be filed before the commencement of trial in order to be afforded a remedy under the rules.

For the purpose of the speedy trial rules, commencement of trial “means the commencement of the voir dire examination in jury cases and the swearing-in of the first witness in nonjury cases.” Practice Book § 956E; see also State v. Reddick, 224 Conn. 445, 460, 619 A.2d 453 (1993). In this matter, a jury case, the trial was deemed to commence on the day voir dire began, September 1. The defendant filed his motion for a speedy trial on October 28, and, although the jury was subsequently dismissed, under Practice Book § 956E, the trial had commenced on September 1. We conclude, therefore, as a matter of law, that the motion was inappropriate at the time of filing and could not be granted.

The defendant argues that such a conclusion “allows the state to pick one juror and put a case on hold indefinitely until necessary witnesses appear.” This argument ignores, however, the fact that a continuance to delay trial will be granted only if good cause is shown. See State v. Haye, 214 Conn. 476, 483, 572 A.2d 974 (1990); State v. Gordon, 197 Conn. 413, 424B, 504 A.2d 1020 (1985). This rule places an affirmative duty on the state to make its witnesses available. Its failure to begin trial must be explained before a continuance will be granted. See, e.g., State v. Cleary, 3 Conn. App. 349, 350-51, 488 A.2d 831 (1985) (denying state’s motion for continuance and dismissing charges because state failed to prepare diligently for trial).

Although the defendant is correct in stating that the statutory right to a speedy trial is intended to prevent “purposeful or oppressive” delay; Pollard v. United States, 352 U.S. 354, 361, 77 S. Ct. 481, 1 L. Ed. 2d 393 (1957); the statute and rules do not extend the time to file motions for a speedy trial beyond the commencement of trial. General Statutes § 54-82m. Furthermore, the defendant does not argue, nor do the facts support, a “purposeful or oppressive” delay by the state. Regardless, such findings are appropriately addressed in an objection to a motion for a continuance, not in a motion for a speedy trial, once trial commences.

Even if the defendant had moved for a speedy trial after the jury had been dismissed, rather than after the trial had begun and before he requested the jury’s dismissal, he would still be incorrect in asserting the right since enough excludable time existed in order to bring the trial within the statutory requirements. In order for a motion for a speedy trial to be proper, it must be filed after the running of the requisite time period for commencing a trial. State v. Charlton, 30 Conn. App. 359, 363, 620 A.2d 1297 (1993); State v. Ortiz, 14 Conn. App. 493, 499, 542 A.2d 734 (1988).

Under Practice Book § 956B, the appropriate time frame for bringing an individual to trial after his arrest or arraignment is eight months, excluding any time as allowed under § 956C. Under § 956C (b) excludable time includes “[a]ny period of delay resulting from the absence or unavailability of. . . any essential witness for the prosecution or defense. . . . For purposes of this paragraph, a defendant or any essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.” See also State v. Mooney, 218 Conn. 85, 116-17, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). The trial court properly found from the facts that the state exercised due diligence in trying to obtain the presence of the witness for trial. The state had informed the witness of the scheduled trial date and noted his work schedule. When he informed the state of his intention to leave for Pakistan, the state issued a subpoena, confirmed the scheduled flight, and considered alternative means for the introduction of the witness’ testimony in his absence. In addition, the state made several telephone calls to Pakistan to secure the witness’ return, and they kept the defendant apprised of the situation. In finding that the state had exercised due diligence, the trial court properly excluded the time during which the witness was unavailable, September 7 until December 15, a total of ninety-eight days. If the issue of excludable time had properly been before the trial court, we would conclude its decision to deny the motion for a speedy trial was factually supported and not clearly erroneous. Although that issue was not properly before the court, we nevertheless affirm its denial of the motion because, as a matter of law, that denial was mandated. “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978); see State v. Geyer, 194 Conn. 1, 17, 480 A.2d 489 (1984) (Shea, J., concurring).

II

The defendant next argues that the trial court improperly instructed the jury on an element of assault in the second degree. Specifically, he argues that the trial court improperly speculated as to evidence relating to the crime while instructing the jury. Because the defendant failed to request an instruction on this issue or take exception to the court’s instructions, he can prevail only by satisfying all of the following conditions established in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989): “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.”

The record is adequate to review the claim, and, the claim is of constitutional magnitude because claims of improper instruction on the essential elements of the crime charged implicate a defendant’s due process right to a fair trial. See State v. Lemoine, 233 Conn. 502, 509, 659 A.2d 1194 (1995); State v. Cobb, 199 Conn. 322, 326, 507 A.2d 457 (1986).

Review in this case, however, does not support the defendant’s position. He has failed to show that a constitutional violation clearly exists and clearly deprived the defendant of a fair trial. The defendant argues that the jury instructions relating to the charge of assault in the second degree “presumes so many facts not in evidence that the jury is required to find the element of dangerous instrument proven beyond a reasonable doubt.” Specifically, he argues that the trial court, when instructing the jury, improperly presumed that the gun allegedly used in the crime was metal, made an improper reference to a gun’s ability to fire a bullet, and invited the jury to speculate on the gun’s weight and size.

“Our standard of review in cases when the defendant claims that the instructions [were deficient] is whether ... it was reasonably possible that the jury was misled.” State v. Wolff, 29 Conn. App. 524, 530, 616 A.2d 1143 (1992). “A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Lemoine, supra, 233 Conn. 509.

The defendant does not argue, nor do the facts support, that the jury instructions were deficient or unclear. Rather, he argues that the instructions encouraged the jury to engage in speculation of an essential element of the crime because the trial court improperly permitted the jury to infer that the gun used was metal “despite the utter lack of evidence that the item, if in fact a gun, was made of metal” and because the trial court improperly engaged the jury to determine the weight and size of the gun. where no evidence tended to show this fact.

A jury charge should be read as a whole and should not be read in artificial isolation from the overall charge. The test is whether the charge as a whole tended to mislead the jury. State v. Miller, 36 Conn. App. 506, 511, 651 A.2d 1318, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995). The judge repeatedly and specifically informed the jury that his reference to any evidence was simply for the purpose of illustration and clarification, and that the jury had the ultimate duty to find the facts and to draw any reasonable inferences therefrom.

Furthermore, a trial judge may call attention to the bearing and weight of the evidence. “It is not necessarily error to omit all comment upon the bearing and weight of evidence; and generally the extent to which the court should discuss the evidence in submitting a case to the jury is, so long as in criminal cases the jury [is] not directed how to find [its] verdict, within the dis cretion of the trial judge.” (Emphasis added; internal quotation marks omitted.) State v. Lemoine, supra, 233 Conn. 511, quoting State v. Long, 72 Conn. 39, 43, 43 A. 493 (1899). At no time did the trial judge direct the jury to find certain facts. On the contrary, the trial court clearly and repeatedly instructed the jury that it was ultimately responsible for determining the facts from the evidence.

The defendant also argues that the trial court’s reference to the gun’s ability to fire a bullet was an assertion not supported by the record. In making this reference, the court was not referring to the gun’s oper-ability, but rather, was illustrating that, even if the gun used was operable, this fact would still be insufficient proof of a dangerous instrument. The trial court clearly made no reference to the operability of the gun used in the crime.

The defendant has failed to prove that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial.

Ill

The defendant also asserts that the court improperly failed to grant his motion for judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt assault in the second degree. “ ‘When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ [State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986)].” State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988).

“In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). “Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 127 (1991).” State v. Gray, 221 Conn. 713, 720, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). Furthermore, a fact finder may adopt those inferences reasonably and logically established by the evidence. State v. Liscio, 9 Conn. App. 121, 127, 516 A.2d 1366 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1208 (1987).

The defendant takes issue specifically with the jury’s finding of “dangerous instrument,” namely that he “used or attempted or threatened to be used [an instrument in a manner] capable of causing death or serious physical injury.” General Statutes § 53a-3 (7). The defendant argues that the jury could not have inferred that the object used to strike the victim was dangerous because the victim admitted that he did not know if the gun was real, suffered only pain from the blow, failed to seek medical attention, and had no visible marks.

Under § 53a-3 (7), in order for an instrument to be considered dangerous, it need only be used in a manner capable of causing serious injury under the circumstances. Hence, the analysis focuses on the actual circumstances in which the instrument is used in order to consider the instrument’s potential to cause harm. State v. Jones, 173 Conn. 91, 97, 376 A.2d 1077 (1977). The statute neither restricts the inquiry to the exact manner in which the object was actually used, nor requires any resulting serious physical injury. Id. The facts and circumstances need show only that the general way in which the object was used could potentially have resulted in serious physical injury.

Under the circumstances of this case, the jury could have reasonably found that the gun used in the crime was a “dangerous instrument.” The victim testified that he was struck on the head with a gun and fell, at least in part, as a result of the blow. These facts could lead a jury reasonably to believe that the instrument used in the course of the robbery and in the manner described had the potential to cause death or serious bodily injury. See, e.g., State v. Jones, supra, 173 Conn. 96 (affirming jury’s finding of dangerous instrument where victim struck with hockey stick); State v. Mercer, 29 Conn. App. 679, 682, 617 A.2d 916 (1992), cert. denied, 225 Conn. 902, 621 A.2d 285 (1993) (tapping victim’s face progressively harder with what appeared to be gun sufficient although gun was never recovered).

A jury could also reasonably conclude from the facts that the defendant intended to cause physical injury to the victim and that such injury resulted. The victim testified that the defendant demanded his money and struck him on the head with a gun and that he experienced pain as a result. Construing the evidence in the light most favorable to sustaining the jury’s verdict, we find that the jury could reasonably have concluded that the evidence established guilt beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       Under Practice Book § 956B, the state must commence trial within a requisite time period, calculating out any excludable time. Under Practice Book § 956C (b) excludable time includes: “Any period of delay resulting from the absence or unavailability of . . . any essential witness for the prosecution or defense. . . . For purposes of this paragraph, a defendant or any essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.”

       General Statutes § 54-82m provides: “rules re speedy trial to be ADOPTED BY JUDGES OF SUPERIOR COURT EFFECTIVE JULY 1, 1985. In accordance with the provision of section 51-14, the judges of the superior court shall make such rules as they deem necessary to provide a procedure to assure a speedy trial for any person charged with a criminal offense on or after July 1,1985. Such rules shall provide that (1) in any case in which a plea of not guilty is entered, the trial of a defendant charged in any information or indictment with the commission of a criminal offense shall commence within twelve months from the filing date of the information or indictment or from the date of the arrest, whichever is later, except that when such defendant is incarcerated in a correctional institution of this state pending such trial and is not subject to the provisions of section 54-82e, the trial of such defendant shall commence within eight months from the filing date of the information or indictment or from the date of arrest, whichever is later; and (2) if a defendant is not brought to trial within the time limit set forth in subdivision (1) and a trial is not commenced within thirty days of a motion for a speedy trial made by the defendant at any time after such time limit has passed, the information or indictment shall be dismissed. Such rules shall include provisions to identify periods of delay caused by the action of the defendant, or the defendant’s inability to stand trial, to be excluded in computing the time limits set forth in subdivision (1).”

       Practice Book § 956B (b) provides in relevant part: “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of Gen. Stat., § 54-82c.”

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       Under General Statutes § 53a-3 (7), a “dangerous instrument” is defined as “any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury . . .

       The trial court instructed the jury as follows: “The third element is that the defendant caused the injury by means of a dangerous instrument. And our law defines dangerous instrument as any instrument or article which, under the circumstances in which it is used, or is capable — I’m sorry. Under the circumstances in which it is used is capable of causing death or serious physical injury. And serious physical injury is physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health, or serious loss, or the impairment of the function of any bodily organ. Now, I’ve given you two different definitions. One of physical injury and one of serious physical injury. And there’s a potential for confusion, so don’t . . . don’t despair. I’m going to repeat this at the end and summarize it for you. The physical injury is what actually has to happen. The serious physical injury comes in the definition of what a dangerous instrument is. So, to recapitulate, the state has to have proven beyond a reasonable doubt that [the defendant] had the intent to cause physical injury to [the victim]. That [the defendant] did cause that physical injury, that is, impairment of physical condition, or pain without any particular degree being required. And that [the defendant] did so by using a dangerous weapon. That is, you’ll recall the testimony, of hitting [the victim’s] being hit by [the defendant] with a gun that was in his hand. You have to decide— you have to determine beyond a reasonable doubt that the use of a piece of, presumably, metal — if you wish to make that inference, but — but a gun, used, as the testimony indicates that it was used, was capable of causing death or serious physical injury. The fact that a gun might fire a bullet is not enough to qualify it. It’s just any other object, that size and weight, whatever you determine that size and weight was, being applied to where the evidence convinces you, if the evidence does, that it was applied to [the vietimj’s body. ” (Emphasis added.)

       The trial court instructed the jury as follows: “My duty is to state to you the rules of law involved in the decision of this case. Your duty is to find the facts. You alone are responsible for determining the facts. . . . Also, your verdict must be based absolutely and solely upon the evidence given to you in the trial of the case. . . . If I do refer to any of the evidence in this charge, it’s simply for the purpose of illustration and clarification. And you will please not understand that I intend to emphasize any evidence that I mention, or limit your consideration to that evidence alone."


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Planning and Zoning Commission of the Town of Lebanon v. Leigh Rider et al.
    (12915)
    O’Connell, Heiman and Spear, Js.
    Argued April 25
    decision released May 23, 1995

      Thomas A. Manning, for the appellants (defendants).

      Mary E. Driscoll, with whom, on the brief, was Edward B. O’Connell, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut Light and Power Company v. Pioneer Fruit and Commission Company et al.
    (13267)
    Dupont, C. J., and Landau and Schaller, Js.
    Arged April 26
    decision released May 23, 1995

      Duane Totten, for the appellant (defendant Nicholas A. Lenge).

      Brian L. Smith, with whom on the brief, was Giovanna Tiberii Weller, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Maurice Hansen et al. v. City of New Haven et al.
    (13380)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued April 20
    decision released May 23, 1995

      Frank P. Cannatelli, for the appellants-appellees (plaintiffs).

      Steven L. Sanalot, assistant corporation counsel, with whom, on the brief was Aileen M. Bell, former deputy corporation counsel, for the appellees-appellants (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Town of Thomaston v. Edward F. Gebelein, Jr.
    (13106)
    O’Connell, Laveey and Schaller, Js.
    Argued April 28
    decision released May 23, 1995

      Edward F. Gebelein, Jr., pro se, the appellant (defendant).

      Michael D. Rybak, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded to the trial court for further proceedings.


text:
    James F. McLaughlin v. Julien Lessard et al.
    (13459)
    Dupont, C. J., and O’Connell and Foti, Js.
    Submitted on briefs April 21
    decision released May 23, 1995

      James F. McLaughlin, pro se, the appellant (plaintiff), filed a brief.
   Per Curiam.

The judgment is affirmed.


text:
    Essex Savings Bank v. John F. Coyne Essex Savings Bank v. Jeffrey W. Navin et al.
    (13748)
    (14169)
    O’Connell, La very and Heiman, Js.
    Argued April 28
    decision released May 23, 1995

      Kenneth R. Davis, for the appellants (defendants).

      John S. Bennet, with whom, on the brief, was Lori A. Massa, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Cristina G. Behling v. Paul Behling
    (12773)
    O’Connell, Lavery and Landau, Js.
    Argued April 27
    decision released May 23, 1995

      Joseph Chiarelli filed a brief for the appellant (plaintiff).

      Mark R. Soboslai, for the appellee (defendant).
   Per Curiam.

We conclude that this appeal is moot because there is no relief that this court can grant.

The appeal is dismissed.


text:
    Uptown Federal Savings and Loan Association v. Esther A. Define et al.
    (13782)
    Foti, Landau and Hennessy, Js.
    Argued April 28
    decision released May 23, 1995

      Esther A. Define, pro se, the appellant (named defendant).

      Heidi Clark, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    New Milford Savings Bank v. Jessica A. Melief et al.
    (13613)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued April 25
    decision released May 23, 1995

      DavidF. Bennett, for the appellants (named defendant et al.).

      Joseph P. Seeola, with whom, on the brief, was Vincent P. McCarthy, for the appellee (named plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Peter DiScala et al. v. Datahr Rehabilitation Institute
    (13850)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs April 21
    decision released May 23, 1995

      Peter N. Buzaid filed a brief for the appellants (plaintiffs).

      Christopher G. Winans filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Linda A. Tomasiello v. Francis P. Tomasiello
    (13243)
    Dupont, C. J., and Heiman and Schaller, Js.
    Argued May 2
    decision released May 30, 1995

      Alan Solomon, with whom, on the brief, was James M. S. Ullman, for the appellant (defendant).

      Shirley V. Hoogstra, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    New Haven Savings Bank v. Leonard Velardi et al.
    (13906)
    O’Connell, Lavery and Schaller, Js.
    Argued April 28
    decision released May 30, 1995

      John W. Colter an, for the appellant (named defendant).

      Robert N. Sensale, with whom was Joseph J. Sensale, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Aaron Sloan
    (11906)
    O’Connell, Schaller and Freedman, Js.
    Argued May 1
    decision released May 30, 1995

      Barry A. Butler, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda Howe, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    In re Kenneth M.

    (14122)
    O’Connell, Spear and Hennessy, Js.
    Argued May 24
    decision released June 27, 1995

      Glen G. Baron, for the appellant (petitioner).

      Denise Bevza, for the appellant (respondent).

      Barbara Claire, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Ronald Cabral
    (13728)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued May 22
    decision released June 27, 1995

      William T. Koch, Jr., for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Geoffrey E. Marion, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Maria E. Sanborn v. Bradford L. Sanborn
    (13689)
    Landau, Schaller and Spear, Js.
    Argued May 23
    decision released June 27, 1995

      Louis Kiefer, with whom was William O’Shea, for the appellant (defendant).

      Stephen F. Cashman, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Marybeth Montesi
    (13361)
    Dupont, C. J., and Foti and Lavery, Js.
    Argued May 24
    decision released June 27, 1995

      Elizabeth A. Gallagher, with whom, on the brief, were William F. Gallagher and Anthony Polvino, for the appellant (defendant).

      Kevin T. Kane, state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Maura M. Firstenberg v. Eric J. Firstenberg
    (12976)
    Foti, Heiman and Schaller, Js.
    Argued May 25
    decision released June 27, 1995

      Richard G. Kent, for the appellant-appellee (defendant).

      Gaetano Ferro, with whom, on the brief, was Gina A. Pasquini, for the appellee-appellant (plaintiff).

      Elizabeth T. Sharpe, for the minor child.
   Per Curiam.

The judgment is affirmed.


text:
    John Byron et al. v. Chibli Khalil
    (14234)
    O’Connell, Foti and Heiman, Js.
    Submitted on briefs May 26
    decision released June 27, 1995

      Edward J. Gallagher filed a brief for the appellant (defendant).

      Roy H. Ervin, Jr., filed a brief for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Francisco J. Cruz
    (13737)
    O’Connell, Schallee and Speae, Js.
    Argued May 31
    decision released June 27, 1995

      Timothy C. Moynahan, with whom, on the brief, was Ronald J. Barba, for the appellant (defendant).

      Harry Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and ElpedioN. Vitale, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    City of Stamford v. Elaine Kakaletris et al.
    (14015)
    Dupont, C. J., and Foti and Spear, Js.
    Argued May 30
    decision released June 27, 1995

      Andrew P. Nemiroff, with whom, on the brief, was Carolyn Alexander Collins, for the appellant (defendant Giannoula Vasilakos).

      James V. Minor, assistant corporation counsel, with whom, on the brief, was Stephen McLaughlin, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Milton Kirton
    (13988)
    Dupont, C. J., and Schaller and Spear, Js.
    Argued May 31
    decision released June 27, 1995

      Earle Giovanniello, with whom, on the brief, was Beverly G. Carswell, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Joseph Harry, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Scott Desmond
    (13487)
    Schaller, Spear and Hennessy, Js.
    Argued June 5
    decision released July 4, 1995

      Frederick W. Odell, for the appellant (defendant).

      Ronald G. Weller, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Russell Zentner, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Charles B. Montano v. Catherine Montano
    (12919)
    O’Connell, Landau and Heiman, Js.
    Argued May 23
    decision released July 4, 1995

      Elizabeth A. Gallagher, for the appellant (defendant).

      Lisa A. Faccadio, with whom, on the brief, was Christine S. Dorsey, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Ramon Rivera
    (13769)
    Foti, Schallek and Hennessy, Js.
    Argued June 6
    decision released July 4, 1995

      Leonard M. Crone, with whom, on the brief, was William J. Neary, certified legal intern, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, CarlE. Taylor, assistant state’s attorney, and Kimberly A. Graham, former assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    James C. Murphy et al. v. Invest Financial Corporation et al.
    (14055)
    Dupont, C. J., and Foti and Lavery, Js.
    Submitted on briefs June 2
    decision released July 4, 1995

      James S. Brewer filed a brief for the appellant (plaintiff).

      Marylou Fabbo and Felix J. Springer filed a brief for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    William T. Beazley Company v. Business Park Associates, Inc.
    (14137)
    Dupont, C. J., and Foti and Lavery, Js.
    Submitted on briefs June 2
    decision released July 4, 1995

      John S. Bennet filed a brief for the appellant (defendant).

      Narcy Z. Dubicki filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Thomas G. Trotta
    (14034)
    O’Connell, Landau and Hennessy, Js.
    Argued May 31
    decision released July 4, 1995

      Julian Schlesinger, for the appellant (defendant).

      Jo Anne Sulik, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Christopher Parakilas, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    FCB Properties, Inc. v. Morris Seigel Realty, Inc., et al.
    (14080)
    Dupont, C. J., and Foti and Spear, Js.
    Argued May 30
    decision released July 4, 1995

      Leonard A. Fasano, with whom, on the brief, was Beverly K. Streit, for the appellant (named defendant).

      Richard B. Cramer, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    First Union National Bank v. Stephen G. Lask, Jr.
    (13847)
    O’Connell, Landau and Heiman, Js.
    Argued May 23
    decision released July 4, 1995

      Christopher G. Winans, for the appellant (defendant).

      Michael P. Sweeney, with whom, on the brief, was Stephen J. Conover, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Shawmut Bank v. Lise-Lotte Knudsen
    (13848)
    Laveky, Schallee and Hennessy, Js.
    Argued June 1
    decision released July 4, 1995

      William F. Gallagher, for the appellant (defendant), with whom was Lise-Lotte Knudsen, pro se.

      Thomas V. Battaglia, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Joni L. Mark v. Harry Mark
    (12827)
    Lavery, Schaller and Hennessy, Js.
    Argued June 1
    decision released July 4, 1995

      Arnold H. Klau, with whom, on the brief, was Donald J. Cantor, for the appellant (defendant).

      Robert J. Engelman, with whom, on the brief, was Lori Welch-Rubin, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Joseph Watley v. Allstate Insurance Company
    (13586)
    Lavery, Schaller and Hennessy, Js.
    Argued June 1
    decision released July 4, 1995

      Peter H. Lyga, with whom was Patricia M. Lyga, for the appellant (plaintiff).

      Constance L. Epstein, with whom, on the brief, was Jack G. Steigelfest, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


author: LANDAU, J. SPEAR, J.,

text:
    STATE OF CONNECTICUT v. ROGER GODFREY
    (13749)
    O’Connell, Landau and Spear, Js.
    Argued January 10
    decision released August 29, 1995

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Kimberly A. Graham, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   LANDAU, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted burglary in the third degree in violation of General Statutes §§ SSa-lOS and 53a-49 (a) (2) and attempted tampering with a motor vehicle in violation of General Statutes §§ 53a-119b (c) and 53a-49 (a) (2). The disposi-tive issue is whether the trial court properly denied the defendant’s motion for judgment of acquittal. We conclude that the evidence adduced at trial was insufficient as a matter of law to support the guilty verdict.

The jury could reasonably have found the following facts. On October 26, 1993, Officer Daniel Zack of the Hartford police department saw the defendant leaning against and peering into the passenger window and the front windshield of a station wagon that was parked on the street in the area of Allyn and Ann Streets in Hartford. The defendant appeared to attempt to open the passenger side front door of the vehicle, shaking the car door with such force that the car rocked. He then attempted to open the rear door of the station wagon, while looking around to see if anyone was watching him. As Zack approached from behind, the defendant picked up a metal object near the front of the car and then walked to the rear of the station wagon. Believing that the defendant was about to break the window of the vehicle, Zack sprinted toward the defendant and yelled to him. The defendant dropped the metal object and began to run, but had gone only a few steps when Zack caught up with him and arrested him.

After the defendant was transported to the police station for booking, Zack waited for the owner of the station wagon to arrive. Visible inside the car were a number of possessions, including a cellular phone and a pocketbook. The owner did not appear and Zack left a note on the car stating that an arrest had been made and that the owner or operator should call the police if there was any damage to the vehicle. The owner never contacted the police and did not testify at the trial.

During direct examination of Zack, the state asked him if he had determined to whom the car was registered. The trial court sustained the defendant’s objection to this question. Outside the presence of the jury, the state then declared an intention to ask Zack whether the car was owned by the defendant. The defendant objected, claiming that the question called for information outside the personal knowledge of the officer and for a response based on hearsay. The trial court overruled the objection. In the presence of the jury, Zack then testified that the defendant was not the owner of the vehicle.

On appeal, the state claims that the jury could reasonably have found that the defendant unlawfully attempted to enter and unlawfully attempted to tamper with the station wagon. The evidence established that he was not the owner of the car and did not possess the key to operate the car. Although the owner was not identified and did not testify regarding consent, the state asserts that common sense would dictate that, if the defendant had consent to enter the car, he would have had the key to operate it. Even if he had lost the key, the state continues, a person with consent would have contacted a locksmith or requested Zack’s assistance in order to gain entry into the car rather than trying to force the door handle or break the window with a metal object. The defendant asserts that, in the absence of testimony from the owner of the car that the defendant was not licensed or privileged to enter or tamper with it, the jury had to resort to conjecture and speculation to find him guilty of both charges.

“When called upon to review a challenge to the sufficiency of the evidence, we are required to apply a two-pronged analysis. We must first review the evidence presented at trial, construing it in a light most favorable to sustaining the jury’s verdict. We then determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Turner, 24 Conn. App. 264, 267, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).” State v. Arbelo, 37 Conn. App. 156, 159, 655 A.2d 263 (1995).

The state first charged the defendant with attempted burglary in the third degree. Section 53a-103 requires proof that the defendant entered or remained unlawfully in a building with the intent to commit a crime therein. “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” General Statutes § 53a-100 (b). Under the circumstauces in this case, the only possible license or privilege of the defendant was that he had consent to enter the station wagon. Thus, in order to establish that the defendant’s attempted entry was unlawful, the state had the burden of proving that no such consent had been given. See State v. Grant, 6 Conn. App. 24, 31, 502 A.2d 945 (1986).

With regard to the second charged offense of attempted tampering with a motor vehicle, § 53a-119b (c) required the state to prove that the defendant, with intent and without right to do so, damaged the station wagon or damaged or removed any of its parts or components. Because the defendant was charged with an attempt in both instances, the state had the burden of showing that the defendant, acting with the kind of mental state required for commission of the crime, intentionally did anything which, under the circumstances as he believed them to be, was an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. See General Statutes § 53a-49.

“A jury first draws inferences and makes findings of fact. In doing so, it may draw inferences from the facts it found proved, and it is not required to draw only inferences that are consistent with innocence. State v. Tatum, 194 Conn. 594, 598, 483 A.2d 1087 (1984). In drawing these inferences and finding these facts, however, it may not resort to speculation and conjecture. State v. Mierez, [24 Conn. App. 543, 554, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991)].

“Once the jury has finished drawing inferences and making findings of fact, it must then determine its ultimate conclusion: whether those facts and inferences prove the defendant guilty beyond a reasonable doubt. ‘Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence.’ State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).” State v. Arbelo, supra, 37 Conn. App. 160. “But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . [while a] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) State v. Ford, supra, 693.

Because the state presented no direct evidence that the defendant did not have consent to enter or tamper with the car, it relied on circumstantial evidence for that proposition. The state asserts that Zack observed the defendant vigorously shake the car door handle in an apparent attempt to open the passenger side front door. The defendant, who appeared to be looking around, then attempted to open the rear door. He picked up a metal object near the front of the car and walked toward the rear of the car. At that moment, Zack began to run toward the defendant and yell. Zack testified that when this occurred, he “was pretty much right on top of [the defendant].” The defendant dropped the object and began to run, but “immediately gave up.” Zack testified that he believed that the defendant was going to break the car window with the metal object, but he did not see the defendant making any substantial step toward that end.

The state theorizes that one who had permission from the owner to enter the car would not have performed the acts observed by the arresting officer. We cannot conclude, however, that those acts are sufficient to support the conclusion that the defendant, beyond a reasonable doubt, lacked consent to enter or tamper with the car. The evidence here does not exclude the reasonable hypothesis that the defendant did have consent to enter the car and initially ran from Zack because he had been startled. It is reasonable to suppose that the defendant lost the keys to the vehicle and was unable or unwilling to call a locksmith. In this case, without direct evidence that the defendant lacked consent, the state’s case, at best, raises a suspicion of illegal activity on the part of the defendant. “This is far from satisfying the state’s burden of proving its case beyond a reasonable doubt.” State v. Arbelo, supra, 37 Conn. App. 161-62.

Applying the two-pronged standard of review, first construing the evidence presented at trial in a light most favorable to sustaining the jury’s verdict, and then reviewing the facts established and the inferences reasonably drawn therefrom, we conclude that the jury could not have reasonably concluded that the cumulative effect of the evidence as to the element of lack of consent established the defendant’s guilt beyond a reasonable doubt.

The judgment is reversed and the case is remanded with direction to render a judgment of not guilty on both charges.

In this opinion O’CONNELL, J., concurred.

SPEAR, J.,

dissenting. I respectfully dissent from the majority’s conclusion that no rational trier of fact could have found that the circumstantial evidence here was sufficient to prove that the defendant lacked consent to enter or damage the parked station wagon. The jury reasonably could have found certain other important facts in addition to those set out in the majority opinion. Officer Daniel Zack and Officer Michael Manzi of the Hartford police department were traveling in a marked police car when they first saw the defendant near the station wagon. Manzi made eye contact with the defendant as he drove by. After the officers passed the defendant, Manzi observed through a rear view mirror that the defendant started walking away from the station wagon. When the officers reached the next intersection, Manzi noticed that the defendant started walking back toward the station wagon. After making a left turn at that intersection the officers parked the police car and got out to further investigate the defendant’s actions. Both officers were in plainclothes and attempted to approach the defendant unnoticed. The metal object that the defendant picked up as the officers approached was heavy enough to break a window and its size was between that of a baseball and a softball. Approximately one hour after the defendant’s arrest and while the defendant was in custody, police officers saw the station wagon being driven away.

The majority correctly points out that challenges to the sufficiency of the evidence are subject to a two-pronged analysis. First, the evidence presented at trial is reviewed and construed in a light most favorable to sustaining the jury’s verdict, and we then determine whether the jury reasonably could have concluded that the evidence and the reasonable inferences drawn therefrom established guilt beyond a reasonable doubt. See State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994); State v. Turner, 24 Conn. App. 264, 267, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991). “It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury. We do not sit as a seventh juror empowered to cast an overriding vote over the jury of six that actually heard the case.” State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports a jury’s verdict of guilty.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994). Our Supreme Court has stated that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

Certain other important principles come into play when we review a jury’s verdict. “[I]n reviewing the jury verdict, it is well to remember that [jJurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Ford, supra, 230 Conn. 693. Under our law, “[w]e presume that the jury uses common sense in its deliberations . . . and is not limited to consideration of the direct evidence but is free to draw reasonable, logical inferences from the facts proved.” (Citation omitted.) State v. Harrison, 30 Conn. App. 108, 118, 618 A.2d 138 (1993). “[JJurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn.” (Internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 61, 644 A.2d 923 (1994).

When I review and analyze all of the evidence with the aid of these principles, I cannot conclude that the evidence was insufficient on the element of lack of consent. Particularly telling are the facts that the defendant stopped shaking the door handle when he saw the marked police car and that, as the police car passed the defendant, he started walking away from the station wagon. When the police car got to the intersection, where it turned left, the defendant proceeded back to the station wagon. When the plainclothes officers approached the defendant on foot, he was shaking the rear door handle while constantly looking around. It was certainly reasonable for the jury to have inferred that the defendant wanted to hide his actions from the police officers and was watching out for them. Such an inference is consistent with a lack of consent. The evidence that the car was driven away approximately one hour after the defendant’s arrest while the defendant was still in custody would also have allowed the jury reasonably to infer that someone other than the defendant was the authorized operator of the vehicle that day. This inference is also buttressed by the evidence of the note that the police officers left on the car and the lack of any contact whatsoever from the owner.

The majority correctly cites State v. Ford, supra, 230 Conn. 693, for the proposition that “[p]roof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence. . . . But the requirement of proof beyond a reasonable doubt does not mean that the proof must be beyond a possible doubt, and a possible hypothesis or supposition of innocence is far different from a reasonable supposition. . . . Emphasis needs to be placed on the distinction between the word reasonable and the word possible. . . . Proof of guilt must exclude every reasonable supposition of innocence . . . [while a] mere possible hypothesis of innocence will not suffice.” (Citations omitted; internal quotation marks omitted.) The majority posits only possible hypotheses of innocence, such as the defendant could have lost the keys to the vehicle and was unable or unwilling to call a locksmith, and that he initially ran from Zack because he had been startled. The majority view appears to be that of the “seventh juror,” an approach that is prohibited by State v. Brunori, supra, 22 Conn. App. 435.

State v. Sivri, supra, 231 Conn. 132-36, is instructive in noting that a jury should not render a guilty verdict unless the evidence precludes every reasonable hypothesis except that which is consistent with the defendant’s guilt. On appellate review, however, we do not resurrect hypotheses of innocence that the jury obviously rejected, but instead review the evidence pursuant to the familiar two-pronged analysis stated previously. I conclude that the evidence and the reasonable, common sense inferences properly drawn therefrom established the element of lack of consent beyond a reasonable doubt.

Accordingly, I respectfully dissent.

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

       General Statutes § 53a-49 (a) provides in pertinent part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-119b (c)provides: “Aperson is guilty of interfering or tampering with a motor vehicle when: (1) He puts into motion the engine of any motor vehicle while it is standing without the permission of the owner except that a property owner or his agent may remove any motor vehicle left without authorization on such owner’s property in accordance with section 14-145; or (2) with intent and without right to do so, he damages any motor vehicle or damages or removes any of its parts or components.”

       General Statutes § 53a-100 (a) (1) defines “building” to include any vehicle.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. ALEXANDER ARISCO
    (13354)
    O’Connell, Landau and Heiman, Js.
    Argued June 1
    decision released August 29, 1995

      Robert J. McKay, with whom, on the brief, was Michael J. Melly, for the appellant (defendant).

      Leon F. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Brian Preleski, deputy assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion to dismiss the charge against him because he was stopped by the police in violation of article first, §§ 7 and 9, of the constitution of Connecticut, and (2) denied his application for participation in a pretrial alcohol education program. We are unpersuaded by the defendant’s claims and affirm the judgment of the trial court.

The following facts are necessary for the resolution of this appeal. At approximately 2 a.m. on October 22, 1992, the defendant and a friend were walking on Vance Drive in Bristol. Officer John McNellis of the Bristol police department was patrolling the area, which was known for frequent sales of narcotics. When McNellis saw the defendant, he asked the defendant his name and why he was in the area. The parties presented conflicting evidence to the trial court as to whether McNellis called the defendant over to answer his questions or if he merely approached the defendant as the defendant was walking down the street.

The defendant told McNellis his name and informed McNellis that he was in the area with a friend and that his truck was located in the Stop and Shop parking lot nearby. McNellis noticed that the defendant had a strong odor of alcohol on his breath, that his speech was slurred and that he was having difficulty walking. McNellis asked the defendant if he planned to drive and the defendant replied that he did not. McNellis then wished the defendant a “nice night” and returned to his patrol car.

A few minutes after this encounter, McNellis was continuing his patrol of the area when he saw the defendant driving a truck on Farmington Avenue. McNellis immediately turned on the overhead lights on his cruiser and pulled over the defendant. McNellis observed that the defendant still smelled of alcohol, that he had difficulty standing and walking and that his speech was slurred. Three field sobriety tests were administered to the defendant, who failed each of them. On the basis of the defendant’s failure of those tests, McNellis believed he had probable cause to arrest the defendant for driving while intoxicated. Once at the police station, the defendant was again administered field sobriety tests, which he failed to perform adequately.

I

The defendant first asserts that the trial court improperly denied his motion to dismiss because he was stopped both on foot and in his vehicle in violation of article first, §§ 7 and 9, of the constitution of Connecticut. We decline to review this claim.

The following additional facts are necessary to an understanding of our resolution of this claim. Prior to the commencement of trial, the defendant filed a motion to dismiss the charge against him. Upon presentation to the court, the defendant stipulated that the motion could be decided at the close of the evidence so that the witnesses would not have to testify twice. After all of the evidence was heard, the defendant argued that the case against him should be dismissed. In support of this claim, the defendant argued that he was stopped on the street in violation of his right to be free of unreasonable searches and seizures under the Connecticut constitution, citing specifically to State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992). The defendant alleged that the actions of McNellis constituted a show of force and that the defendant did not feel he was free to leave. In addition, he claimed that all evidence flowing from that initial illegal stop was inadmissible as “fruit of the poisonous tree” and that, therefore, the second stop, while the defendant was in his vehicle, was also in violation of the Connecticut constitution.

In response, the state argued that in this case, there was no stop within the meaning of Oquendo. The state asserted that the evidence established that the defendant was never told to halt and that McNellis never gave any sort of directive to the defendant that would have made him feel he was not free to leave. In addition, the state asserted that the atmosphere surrounding the stop was not one that was police dominated because the stop took place on the street and a single officer faced two people. The state also pointed out that the defendant was not handcuffed or put in the police cruiser at the time of this initial stop. In conclusion, the state posited that even if the actions of the police officer did constitute a stop, there existed a reasonable articulable suspicion to support it.

The trial court denied the defendant’s motion to dismiss in open court. It concluded that there was no custodial search of the defendant and that there was no interference with the defendant’s right to leave or to conclude the questioning. The trial court did not, however, articulate any of the predicate facts on which it based its legal conclusions. The defendant did not file a motion for articulation requesting the trial court to enunciate the predicate facts found.

It is the appellant’s burden to furnish this court with an adequate record for us to review his claims. Practice Book § 4061; State v. Youdin, 38 Conn. App. 85, 95, 659 A.2d 728 (1995). Here, the transcript of the trial court’s ruling on the motion to dismiss contains legal conclusions, but is devoid of predicate facts as required by Practice Book § 4059. Therefore, we have no way of knowing from the trial court’s ruling whether it credited the officer’s testimony that he merely approached the defendant on the street and made simple inquiries or whether it credited the defendant’s testimony that the officer called him over in a show of force that prohibited him from being free to leave or to stop answering questions. “Without any specific findings of fact ... we cannot determine the basis of the court’s ruling . . . .” (Internal quotation marks omitted.) State v. Fontanez, 37 Conn. App. 205, 207, 655 A.2d 797 (1995), quoting State v. Rosedom, 34 Conn. App. 141, 144, 640 A.2d 634 (1994). This court “will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” (Internal quotation marks omitted.) State v. Youdin, supra, 95. “Moreover, to the extent that the trial court’s [oral ruling] may be viewed as ambiguous ... we read an ambiguous record, in the absence of a motion for articulation, to support rather than to undermine the judgment.” (Internal quotation marks omitted.) State v. Marquis, 36 Conn. App. 803, 804, 653 A.2d 833, cert. granted, 233 Conn. 902, 657 A.2d 641 (1995). Because the defendant failed to seek articulation, we must assume that the trial court acted properly. Id.

II

The defendant next claims that the trial court improperly denied his application to participate in a pretrial alcohol education program. We disagree.

The following additional facts are necessary for the resolution of this claim. After the trial court denied the defendant’s motion to dismiss, the defendant requested that his application for participation in a pretrial alcohol education program be granted. The state objected, claiming that the defendant’s application was untimely in light of the facts that the trial on the merits had been completed and that the parties were awaiting a finding of the trial court. The state argued that the language of the statute restricted the program’s applicability to pretrial situations. The trial court allowed the defendant to take the stand and to testify as to his eligibility for the program. The trial court then found that the defendant did meet the eligibility requirements for the program, but exercised its discretion to deny his application for participation in the program.

General Statutes § 54-56g establishes a pretrial alcohol education program for persons charged with a violation of § 14-227a. Applications for participation in this program may be granted or denied at the discretion of the trial court. General Statutes § 54-56g (b). Our scope of review of such a decision is, therefore, limited to whether the trial court abused its discretion. We conclude that it did not.

The defendant did not apply for participation in the pretrial alcohol education program until after the trial on the merits had been completed. By its terms, the alcohol education program established by § 54-56g applies to a defendant whose case has not yet come to trial. Successful completion of the program results in a dismissal of the charges against a defendant without the necessity of a trial. General Statutes § 54-56g (b). The very purpose of the statute could not, therefore, be fulfilled here where the trial had already commenced. The trial court did not, therefore, abuse its discretion in denying the defendant’s application for participation in the pretrial alcohol education program outlined in § 54-56g.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       Article first, § 7, of the constitution of Connecticut provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”
      Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       Practice Book § 4059 (a) (3) provides in pertinent part: “[I]n decisions upon motions to dismiss under Sec. 814 . . . the court shall, either orally or in writing, state its decision on the issues in the matter. The court shall include in its decision its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. . . .” (Emphasis added.)

       General Statutes § 54-56g provides in pertinent part: “(a) There shall be a pretrial alcohol education system for persons charged with a violation of section 14-227a. Upon application by any such person for participation in such system and payment to the court of an application fee of fifty dollars, tlio court shall, but only as to the public, order such information or complaint to be filed as a sealed information or complaint, provided such person states under oath, in open court or before any person designated by the clerk and duly authorized to administer oaths, under penalties of perjury that he has never had such system invoked in his behalf and that he has not been convicted of a violation of section 53a-56b or 53a-60d, a violation of subsection (a) of section 14-227a before or after October 1, 1981, or a violation of subdivision (1) or (2) of subsection (a) of section 14-227a on or after October 1, 1985, and that he has not been convicted in any other state at any time of an offense the essential elements of which are substantially the same as section 53a-56b or 53a-60d or subdivision (1) or (2) of subsection (a) of section 14-227a. Unless good cause is shown, a person shall be ineligible for participation in such pretrial alcohol education system if his alleged violation of section 14-227a caused the serious physical injury, as defined in section 53a-3, of another person. The fee imposed by this subsection shall be credited to the Criminal Injuries Compensation Fund established by section 54-215.
      "(b) The court, after consideration of the recommendation of the state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in charge of the case, may, in its discretion, grant such application. ... If such defendant satisfactorily completes the assigned program he may apply for dismissal of the charges against, him and the court, on reviewing the record of his participation in such program submitted by the Bail Commission and on finding such satisfactory completion, shall dismiss the charges. . .


author: LAVERY, J. FOTI, J.,

text:
    STATE OF CONNECTICUT v. GREGORY WILLIAMS
    (12769)
    Foti, Lavery and Landau, Js.
    Argued April 20
    decision released August 29, 1995

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      SusannE. Gill, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Linda N. Howe, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from a judgment of conviction, after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The jury found the defendant not guilty of one count of assault in the first degree under § 53a-59 (a) (3). The defendant claims that the trial court improperly (1) charged the jury that the law recognizes that a person can simultaneously possess both the intent to cause serious physical injury to a person and the intent to cause that person’s death, (2) admitted evidence of the defendant’s prior misconduct, (3) allowed the state on rebuttal to present evidence establishing the defendant’s intent, and (4) submitted to the jury an alternative means of committing attempted murder for which there was no support in the evidence. Additionally, the defendant claims that the evidence was insufficient to support the convictions for attempted murder and assault in the first degree. We agree with the defendant that the trial court improperly charged the jury that a person can simultaneously intend to cause serious physical injury to a person and intend to cause that person’s death. Therefore, we reverse the convictions for attempted murder and assault in the first degree.

The jury could reasonably have found the following facts. In April, 1991, the defendant and the victim had been living together on and off for about five years, and had a two year old son. On April 12, 1991, the victim traveled to California with her parents and her son. After spending time in California, the victim’s son returned to Connecticut with the victim’s parents. The victim traveled to North Carolina to attend a training course offered by her employer. At that time, the victim decided not to resume living with the defendant upon her return. Accordingly, when she returned to Connecticut on April 19, she and her son moved in with her parents in Stratford.

On April 20, 1991, the defendant came to the parents’ home in Stratford looking for the victim. When the victim’s father told the defendant that he was not welcome on the property and asked him to leave, the defendant began yelling at the victim’s father that he would be sorry, that it may take one or two weeks but he would live to regret this day. The defendant also attempted to challenge the victim’s father out into the street to fight him.

The following morning, the victim received a call from a coworker informing her that the defendant had just called from a mental hospital. The victim’s former next-door neighbor also called to let her know that there was a pile of women’s and children’s clothing stacked behind the fence in the back of the victim’s former residence. Believing that the defendant would not be at the house, the victim, her son and her sister went to the victim’s former residence to retrieve their belongings.

The victim’s sister, who had driven, parked behind the house near a pile of clothing. The women hurried from the car and began putting clothes into garbage bags. While the women were collecting the clothes, the defendant appeared. The victim ran, yelling to her sister to call the police. The defendant caught her and fell to his knees begging her not to leave him. The victim attempted to keep the situation under control by pretending to go along with him, but winked at her sister signaling her to go for help.

The victim’s sister screamed at the victim to get into the car. The defendant then ran to the car, removed his son from the car seat and ran into the house. While holding his son, the defendant pushed the victim through the door of the house. The defendant then punched the victim in the face and hit her in the head with a baseball bat from the neighbor’s yard. The defendant delivered eight blows to the victim’s head until the baseball bat finally broke. The victim suffered serious head injuries and was close to death.

The dispositive issue in this appeal is whether the trial court incorrectly charged the jury that the law recognizes that a person can simultaneously intend to cause serious physical injury to a person and intend to cause that person’s death. Specifically, the defendant claims that the trial court’s charge allowed the jury to render inconsistent guilty verdicts on the charges of attempted murder and assault in the first degree. We agree with the defendant that a person cannot simultaneously possess both the intent to cause serious physical injury and the intent to cause death with respect to the same victim. Therefore, the jury verdict convicting the defendant of assault in the first degree and attempted murder are legally inconsistent.

This court addressed a similar issue in State v. Fernandez, 27 Conn. App. 73, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). The Fernandez court found that guilty verdicts of attempted murder and assault in the first degree were not inconsistent because “the jury could reasonably have concluded that although the defendant commenced his attack on [the victim] with an intent to cause her serious physical injury, this intent was transformed, in midattack, into an intent to cause [the victim’s] death.” Id., 94. The jury in Fernandez was not required to find that the defendant possessed the relevant mental states simultaneously. The court concluded that “[b]ecause the jury was not required to find that the defendant possessed the relevant mental states simultaneously, its verdict was not logically inconsistent.” Id.

We do not agree with the trial court’s reliance on State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985). In Sharpe, the defendant challenged his convictions of attempted murder and assault in the first degree on the ground that the charges arose out of the same transaction and violated his right to be free from double jeopardy. The Supreme Court never held that the mental states necessary for convictions of attempted murder and assault in the first degree could be possessed simultaneously.

In this case, because the trial court instructed the jury that the two intents could be possessed simultaneously, we must inquire as to whether this instruction allowed the jury to render legally inconsistent verdicts. To determine whether jury verdicts are legally inconsistent, “we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements of another offense of which the defendant also stands convicted.” State v. Hinlon, 227 Conn. 301, 313, 630 A.2d 593 (1993). If the mental state necessary for a conviction of attempted murder negates the mental state necessary for a conviction of assault in the first degree when occurring simultaneously, the trial court’s charge authorized the jury to render inconsistent verdicts.

To be guilty of attempted murder, a jury must find that the defendant acted with the conscious objective to cause the death of another person. General Statutes §§ 53a-49, 53a-54a and 53a-3 (11). To be guilty of assault in the first degree under § 53a-59 (a) (1), a jury must find that the defendant acted with the conscious objective to cause serious physical injury to another person. General Statutes §§ 53a-59 (a) (1) and53a-3 (11). “ ‘Seriousphysical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4).

We find that a conscious objective to kill the victim negates a simultaneous intention to cause that victim only serious physical injury. The trial court’s instruction authorizing the jury to find that the defendant could simultaneously intend to cause the victim serious physical injury and intend to cause the victim’s death was incorrect. That instruction authorized the jury to render inconsistent jury verdicts for attempted murder and assault in the first degree.

In light of our resolution of this issue, we will address only the defendant’s sufficiency of evidence claim. We must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge on which he claims insufficient evidence if he prevails on his claim. State v. Wolff, 37 Conn. App. 500, 507, 657 A.2d 650 (1995); State v. Dunn, 26 Conn. App. 114, 123, 598 A.2d 658 (1991).

In reviewing the sufficiency of the evidence, we apply the two part test used in State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) Id.

We construe the evidence set forth in the statement of facts as the evidence most favorable to sustaining the verdict. We give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawn therefrom that support the jury’s determination of guilt. State v. Sivri, 231 Conn. 115, 136-37, 646 A.2d 169 (1994).

The brutal attack perpetrated by the defendant on the victim with the baseball bat, the history of their relationship, the conduct of the defendant on the day of the attack, both before and after the attack, and the nature of the injuries provided sufficient evidence for the jury to have found beyond a reasonable doubt that the defendant had the intent to cause serious physical injury to the victim by means of a dangerous weapon. General Statutes § 53-59 (a) (1). Using the same criteria and the evidence viewed most favorably to upholding the conviction, there was more than sufficient evidence to convict the defendant of attempted murder. General Statutes §§ 53-49 (a) and 53a-54a (a). The weapon used, the brutal nature of the defendant’s attack, his prior threats, the deception used to get the victim to come to the house, his breaking the baseball bat on the victim, and the serious nature of the injuries, which came close to causing her death provide sufficient evidence to have allowed the jury to have found the defendant guilty of attempted murder beyond a reasonable doubt. The defendant’s claim based on the sufficiency of the evidence is without merit.

The judgment is reversed and the case is remanded for a new trial.

In this opinion LANDAU, J., concurred.

FOTI, J.,

dissenting. I must respectfully disagree with the majority that the trial court’s instruction allowed the jury to render legally inconsistent verdicts. The trial court’s instruction was not an inaccurate statement of the law, but even if considered so, when read in its entirety, did not mislead the jury.

The court correctly instructed that “ [a] person cannot be said to have simultaneously acted intentionally and recklessly with regard to the same act and the same result, that is the injury to the victim.” In explaining this point, the court continued as follows: “The same is trae as to the charge of attempted murder as it relates to any charge of assault by recklessness. Now, while the law does recognize that a person who is acting intentionally—was found to be acting intentionally can simultaneously intend to cause some injury—to cause the victim some injury and at the same time, intend to cause that person’s death, it would nevertheless be inconsistent to find that he intended to cause the victim’s death and simultaneously acted recklessly to cause her injury. In other words, the legal definitions of intentional that I’ve already given to you, and the legal definition of reckless which I will give you shortly, are mutually exclusive and inconsistent.” (Emphasis added.) The emphasized words are those which the defendant claims allowed legally inconsistent verdicts.

The question is whether an essential element of attempted murder is negated by an essential element of assault in the first degree. Because both crimes require the same mental state, the mental states of each cannot be mutually exclusive. Since both require an intentional act, the actor can simultaneously intend the requisite results. He can intend both to cause the victim a serious physical injury and to kill the victim. No temporal separation is required for the intent, but obviously one is required for the result. A possible factual scenario would have a defendant intending to kill a person but first causing serious physical injury or disfigurement, so as to make the victim suffer before dying. The intent is simultaneous, as the conscious objective to cause the requisite results is simultaneous, while the results themselves are separated by time. For this reason, I find the court’s charge to be correct as a matter of law. Therefore, there is no basis, on this issue, for ordering a new trial.

Even if we assume, arguendo, that the word “simultaneous,” as used by the trial court, was inappropriate as a matter of law, the record does not reflect any reasonable possibility that that portion of the instruction misled the jury. State v. Townsend, 206 Conn. 621, 627, 539 A.2d 114 (1988). Our function is to view the challenged language in the context of the entire instruction “to determine whether it is possible that the instruction misled the jury.” State v. Ortiz, 217 Conn. 648, 667, 588 A.2d 127 (1991). We will not sever one part of the instruction and analyze it separately from the whole. State v. Johnson, 185 Conn. 163, 168, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983). My analysis of the entire charge leads me to conclude that the jury was not misled. The court’s instructions to the jury included a thorough review of the intent element for each offense, and provided a correct statement of all the essential elements of the crimes charged. The court also correctly and thoroughly instructed as to the legal definition of intent. Further, the court reinstructed on the essential elements of attempted murder. A trial court’s main and supplemental instructions to the jury must be viewed as a whole. States v. Cannon, 185 Conn. 260, 269, 440 A.2d 927 (1981).

The reference to “simultaneous” and “at the same time,” with regard to intent, was brief and isolated. The reference was used more in the context of an example to distinguish “intentional” from “reckless.” The remaining language regarding intent provided a sufficient and accurate instruction.

Reviewing the instruction as a whole, I conclude that the jury could not have interpreted the charge in an impermissible manner. I would, therefore, affirm the judgment of the trial court.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”

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

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”
      The trial court properly instructed the jury that the defendant could not simultaneously act recklessly and intentionally with regard to the same act. See State v. King, 216 Conn. 585, 593-95, 583 A.2d 895 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

       The trial court instructed the jury that “while the law does recognize that a person who is acting intentionally—was found to be acting intentionally can simultaneously intend to cause some injury—to cause the victim some injury and at the same time, intend to cause that person’s death, it would nevertheless be inconsistent to find that he intended to cause the victim’s death and simultaneously acted recklessly to cause her injury.” (Emphasis added.)

       The facts in Sharpe are analogous to the facts in Fernandez. In Sharpe, the defendant fired one shot at the victim, approached the victim’s vehicle, and, looking directly at the victim, fired five or six more shots. State v. Sharpe, supra, 195 Conn. 653. In this scenario, the jury could have found that the defendant changed his intent in midattack from an intent to cause serious physical injury to an intent to kill.

         The court’s instruction was given on March 15,1993. On August 24,1993, our Supreme Court decided State v. Hinton, 227 Conn. 301, 630 A.2d 593 (1993). The Hinton court, held that it is legally inconsistent for a jury to find that a defendant simultaneously possessed both an intent to kill the victim and recklessness toward the victim. Id., 320. Hinton involved mutually exclusive states of mind.

       The jury found the defendant not guilty of assault in the first degree under General Statutes § 53a-59 (a) (3). A reckless act is required for conviction under this statutory subdivision.

      I agree that the instruction using the terms “simultaneous” and “at the same time” does not allow the jury to find that although the assault may have begun with an intent to injure, that intent was transformed during the attack into an intent to cause the victim’s death. See State v. Fernandez, 27 Conn. App. 73, 93, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992).

       After beginning its deliberations, the jury requested by note: “Please list five elements of attempted murder as simply as possible.”


author: HENNESSY, J.

text:
    ROBIN A. ZADRAVECZ v. JOSEPH S. ZADRAVECZ
    (13259)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued March 14
    decision released August 29, 1995

      Dana P. Lonergan, for the appellant (defendant).

      William B. Bilcheck, Jr., for the appellee (plaintiff).
   HENNESSY, J.

The defendant appeals from the judgment of the trial court, Thim, J., determining that, pursuant to a stipulated judgment, all periodic payments of workers’ compensation benefits to the defendant, including specific award payments, are income for the purpose of determining child support. We affirm the judgment of the trial court.

The marriage between the parties was dissolved by judgment of the Superior Court dated May 6, 1987. Included in the dissolution decree were orders that the defendant pay to the plaintiff the sum of $100 per week as support for each of the parties’ two minor children and that the defendant pay an additional $20 per week on a child support arrearage. In May, 1992, the defendant sustained a work related injury and became temporarily disabled from his job. The defendant fell behind in child support payments and, in July, 1992, filed a motion for modification of the child support orders, claiming that there had been a substantial change in circumstances.

On August 27,1992, the parties entered into a written agreement that was approved by and made an order of the court, Karazin, J. The order provided: “Child support payments will be held in abeyance as of May 26, 1992, date of defendant’s back injury, but once workers’ compensation benefits become available defendant will retroactively pay the plaintiff child support, based upon child support guidelines and workers’ compensation rate received, from the date of the injury, May 26, 1992. . . . Arrearages, which are to be determined and agreed upon, will be paid out of claimant’s workers compensation permanency/specific award.”

On October 1, 1993, the defendant filed a “Motion for Advice” requesting the guidance of the trial court concerning the stipulated judgment. The parties’ disagreement concerned whether the defendant was required to include workers’ compensation specific indemnity payments, awarded pursuant to General Statutes § 31-308 (b), as income for purposes of determining his child support payments. The trial court, in a written memorandum of decision, concluded that “[s]pecific award benefits received by the defendant under the Worker’s Compensation Act are includable as income for purposes of determining the defendant’s child support obligation.” This appeal followed.

As a preliminary matter, we address the propriety of a “Motion for Advice” as a method of obtaining the ruling challenged in this appeal. Motions for advice are not recognized by the statutes or rules of corut in this state. Our Supreme Court, well over one century ago, voiced its strong objection to the practice of requesting advisory opinions. See Reply of the Judges of the Supreme Court to the General Assembly, 33 Conn. 586 (1867). In more recent times, our Supreme Court has held that an action at law does not lie where the purpose is merely to secure advice on the law; Connecticut Savings Bank v. First National Bank & Trust Co., 133 Conn. 403, 411, 51 A.2d 907 (1947); and that if jurisdiction is thereby lacking, neither the Supreme Court nor the trial court should deliver an advisory opinion. Statewide Grievance Committee v. Rozbicki, 211 Conn. 232, 246, 558 A.2d 986 (1989).

In this instance, however, even though the defendant’s motion was labeled a “Motion for Advice,” the defendant was seeking clarification of a prior order of the court. In such situations “we look to the substance of the claim rather than the form.” Whalen v. Ives, 37 Conn. App. 7, 16, 654 A.2d 798 (1995). “Motions for interpretation or clarification, although not specifically described in the rules of practice, are commonly considered by trial courts and are procedurally proper.” Holcombe v. Hol-combe, 22 Conn. App. 363, 366, 576 A.2d 1317 (1990). “There is no time restriction imposed on the filing of a motion for clarification.” Id. Nor is there a requirement that the same court that rendered the original judgment act on the motion for clarification. Id. We conclude that the trial court had jurisdiction to consider the defendant’s motion.

We now turn to the substance of the clarification issued by the trial court. The clarification was of a judgment rendered pursuant to a stipulation between the parties. A stipulated judgment is in the nature of a contract between the parties and will be interpreted as a contract. Griffin v. Planning & Zoning Commission, 30 Conn. App. 643, 650, 621 A.2d 1359 (1993); Lavigne v. Lavigne, 3 Conn. App. 423, 427, 488 A.2d 1290 (1985). In construing a contract the controlling factor is normally the intent expressed in the contract, “not the intent which the parties may have had or which the court believes they ought to have had.” (Internal quotation marks omitted.) Robinson v. Weitz, 171 Conn. 545, 551, 370 A.2d 1066 (1976). Thus, “[w]here] . . . there is clear and definitive contract language, the scope and meaning of that language is not a question of fact but a question of law. ... In such a situation our scope of review is plenary, and is not limited by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) DeLeonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 357, 646 A.2d 230, cert. denied, 231 Conn. 925, 648 A.2d 162 (1994).

In this case, the “Motion for Advice” asked the trial court to determine whether the workers’ compensation benefits out of which child support payments would be withheld included only temporary total disability payments or any benefits under the Workers’ Compensation Act. “The court will not torture words to impart ambiguity where ordinary meaning leaves no room for ambiguity. Downs v. National Casualty Co., 146 Conn. 490, 494, 152 A.2d 316 [1959].” Sturman v. Stocha, 191 Conn. 1, 11-12, 463 A.2d 527 (1983). The clause subject to interpretation is that “[the] defendant will retroactively pay the plaintiff child support, based upon child support guidelines and workers’ compensation rate received . . . .” “Workers’ compensation rate” is not an ambiguous phrase and the trial court did not consider evidence outside the document itself. Thus, the trial court was required to determine, as a matter of law, what that phrase meant in the context of the stipulated judgment.

The trial court determined that “[s]pecific award benefits received by the defendant under the Worker’s Compensation Act are includable as income for purposes of determining the defendant’s child support obligation.” Because the trial court did not provide the legal basis for this conclusion, the defendant should have sought an articulation. Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992). In the absence of an articulation, we presume that the trial court acted properly. Id., 165. Thus, we conclude that, pursuant to the stipulation of the parties, which did not refer to the different kinds of payments pursuant to the Workers’ Compensation Act, “workers’ compensation rate” includes all payments pursuant to that act.

The judgment is affirmed.

In this opinion the other judges concurred.

       This issue was raised by the court, sua sponte, and the parties were ordered, prior to oral argument, to brief and to be prepared to argue the issue of whether the trial court had jurisdiction to entertain the defendant’s motion for advice.