author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. BOISE KIMBER
    (AC 15800)
    O’Connell, C. J., and Hennessy and Cretella, Js.

      Argued December 15, 1997
    officially released March 24, 1998

      John R. Williams, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      Michael E. O’Hare, deputy assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Boise Kimber, appeals from the judgment of conviction, rendered after a jury trial, of larceny in the third degree in violation of General Statutes § 53a-124 and perjury in violation of General Statutes § 53a-156 (a). On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal of the larceny and perjury charges, (2) deprived him of his right to due process by failing to require the state to provide notice of the allegedly false statements used as the basis of the perjury charge and (3) violated his right to confront a witness against him, as guaranteed by the sixth amendment to the United States constitution. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. James Perkins owned and operated the Perkins Funeral Home in New Haven. In 1989, Perkins was convicted of a crime unrelated to this appeal and was sentenced to a term of imprisonment. Perkins’ attorney, Julie Block, approached Armond McCoy, the accountant for the funeral home, and asked him to take a more active role in managing the financial affairs of the funeral home during Perkins’ incarceration. McCoy agreed and began a review of the funeral home accounts and records. He discovered that the funeral home did not have a checking account and established one with Bank of Boston on February 27, 1989.

On May 10, 1989, Sidney Gimple, as conservator for Esther West, sent a check for $3600 to the Perkins Funeral Home in order to establish an “irrevocable funeral trust” to pay for West’s funeral expenses upon her death. Earlier that year, the funeral home had also received checks from several other persons who wanted to prepay funeral expenses. McCoy decided that these funds should be deposited in a separate account to ensure that the assets would be available when needed. On May 18, 1989, McCoy deposited a total of $9057.16, which included the $3600 check sent by Gim-ple and the other funds received as prepayment of funeral costs, into an account with Bank of Boston.

Subsequently, Gimple learned that McCoy had commingled the funds intended to pay for West’s funeral with moneys received to pay for the funerals of other persons. On May 25, 1989, Gimple sent a letter to the funeral home requesting that the funds he had provided to establish an “irrevocable funeral trust” on behalf of West be deposited in a separate trust account. As requested, McCoy withdrew the $3600 and set up a certificate of deposit (CD). The CD named the funeral home as the trustee of an “irrevocable funeral trust F/ B/O Esther W. West.” McCoy sent a copy of the CD to Gimple to confirm that he had complied with Gim-ple’s request.

On November 17, 1989, McCoy withdrew the remaining funds and closed the account. With these funds, he obtained a second CD from Bank of Boston. The certificate issued for this account, however, did not provide that it was a trust account nor did it provide the names of any trustees or beneficiaries. It merely labeled the funeral home as the owner of the account.

On March 19,1990, McCoy submitted a letter of resignation to Block, indicating that he would no longer provide his professional services to the funeral home. On or about that date, Perkins asked the defendant to become involved with the management of the funeral home. On April 20, 1990, McCoy and his attorney, John H. Peck, Jr., met with the defendant at Block’s office. Peck turned over a box of funeral home business records that had been in the possession of McCoy. Included in these records were a list of documents and the two CDs opened by McCoy. Block signed a statement acknowledging receipt of the records. The defendant also signed a handwritten statement that indicated an accounting discrepancy. Block turned these documents over to the defendant.

On June 29, 1990, the defendant went to the Hamden branch of Bank of Boston and spoke with a customer service representative, Richard Brown. Brown was aware that the defendant was associated with the funeral home. At the request of the defendant, Brown cashed the second CD, which was worth $8397.99. The defendant deposited $1397.99 into the funeral home checking account and took the remaining $7000 in cash. On August 21,1990, the defendant again met with Brown and cashed the first CD that had been established as an “irrevocable funeral trust F/B/O Esther W. West,” then worth $3963.30. The entire amount was again taken in cash.

In November, 1991, the defendant terminated his association with the funeral home. In May, 1993, Gimple spoke with a representative of Bank of Boston regarding the status of West’s funeral trust account. He was informed that the account had been closed by the defendant in August, 1990, and was given copies of the bank’s records to confirm the closing. Gimple sent a letter to the funeral home, a copy of which was sent to the defendant’s residence, demanding that the assets of the trust be transferred to another funeral home located in New Haven. When he received no response to his letter, Gimple filed a complaint with the department of consumer protection.

Neale Belgrade, an administrative hearing officer for the department, was assigned to investigate the complaint. Belgrade requested that the defendant submit to an interview, to which the defendant consented. On November 24, 1993, at the department’s office in Hartford, the defendant was interviewed. The interview was conducted under oath, and was tape recorded and later transcribed. The defendant subsequently was charged with larceny in the second degree, larceny in the third degree and perjuiy. The defendant was tried before a jury beginning on January 2, 1996. A motion for judgment of acquittal as to the charge of larceny in the second degree was granted on January 9, 1996. The jury returned verdicts of guilty of larceny in the third degree and perjury on January 18, 1996. This appeal followed.

I

The defendant’s first two claims assert that the evidence presented was insufficient to sustain his conviction of larceny in the third degree and perjury.

“[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). 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. Id. That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992). . . . State v. DePastino, 228 Conn. 552, 570, 638 A.2d 578 (1994).” (Internal quotation marks omitted.) State v. Pulley, 46 Conn. App. 414, 418-19, 699 A.2d 1042 (1997).

A

We turn first to the defendant’s argument regarding his conviction of larceny in the third degree in violation of § 53a-124 (a) (2). The defendant argues that the state presented insufficient evidence on the essential element of intent. We disagree.

“The elements of larceny . . . are: (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of it permanently; and (3) the lack of consent of the owner.” (Internal quotation marks omitted.) State v. Huot, 170 Conn. 463, 467, 365 A.2d 1144 (1976). To prove the element of intent within the context of larceny, the state must show that the defendant intended to deprive another person of property permanently. See State v. Harrison, 178 Conn. 689, 694, 425 A.2d 111 (1979). Intent may be inferred by the fact finder from the conduct of the defendant. State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 (1972).

Construing the evidence in the light most favorable to sustaining the verdict and with all inferences reasonably drawn therefrom, the jury reasonably could have found the following facts. The defendant withdrew $3963.30 from the account held by the Perkins Funeral Home for the benefit of West using a certificate marked “irrevocable funeral trust F/B/O Esther W. West.” When a demand was made on the defendant by a letter sent via certified mail, return receipt requested, and signed for by the defendant’s daughter, for a transfer of the moneys held in trust to another funeral home, the defendant failed to return the moneys and ignored the request. From these facts alone, sufficient evidence was presented from which the jury reasonably could have inferred that the defendant intended to take funds from the account of West without her permission and that he refused to return them.

The defendant argues that his testimony to the jury that he did not know the meaning of an “irrevocable funeral trust” negated any evidence of intent presented by the state. Therefore, he claims, the state failed to prove intent. The defendant misconstrues our standard of review. It is not our function to decide the weight of evidence presented or the credibility of witnesses. We must determine whether there was sufficient evidence from which a jury reasonably could conclude that the defendant was guilty beyond a reasonable doubt of larceny in the third degree. See State v. Salz, supra, 226 Conn. 31. That the defendant presented contrary evidence is of no moment.

We conclude that sufficient evidence was presented from which a jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.

B

The defendant next claims that insufficient evidence was presented to sustain his conviction of perjury in violation of § 53a-156 (a). The defendant claims that the allegedly false statements concerned withdrawals made from the second CD and, therefore, there is no evidence that he made a false statement regarding a withdrawal from the first CD. We disagree.

Contrary to the defendant’s assertion, the state did not charge the defendant with perjury for denying that he withdrew money from the irrevocable funeral trust of West. The specific language of the information charged that the defendant “intentionally, under oath, did testify falsely to a material statement which he does not believe to be true, to wit: denied withdrawing money from accounts established to deposit prepaid funeral arrangement money . . . .” These statements were alleged to have been made at the formal investigatory hearing at the department of consumer protection.

In the present case, the state presented extensive documentary evidence to support the allegation that the defendant testified falsely. “In appropriate circumstances, belief of falsity may be inferred by proof of the falsity itself. La Placa v. United States, 354 F.2d 56, 59 (1st Cir. 1965), cert. denied, 383 U.S. 927, 86 S. Ct. 932, 15 L. Ed. 2d 846 (1966).” State v. Fantasia, 5 Conn. App. 552, 555, 500 A.2d 968 (1985), cert. denied, 199 Conn. 806, 508 A.2d 33 (1986). It is clear that the defendant knew that the second CD was a trust account used to hold payments for prepaid funeral arrangements and that the defendant denied withdrawing any money from this account. It is equally clear and overwhelmingly supported by the record that the defendant withdrew money from this account as well as from the first CD, as evidenced by the defendant’s signature on the redemption receipts. Construing the evidence in the light most favorable to sustaining the verdict and with all inferences reasonably drawn therefrom, overwhelmingly sufficient evidence existed from which the jury could have found beyond a reasonable doubt that the defendant was guilty of perjury.

II

The defendant also claims that the trial court improperly denied his motion for a further bill of particulars regarding the perjury count. The defendant’s specific claim on appeal is that the trial court improperly failed to grant the motion for a bill of particulars as to in “exactly what respect the said statement is alleged to have been false.” The defendant argues that this error deprived him of his constitutional right to be informed of the charges against him and to prepare a defense. We are unpersuaded.

Additional facts are necessary to our resolution of this claim. On October 27, 1995, the state filed an amended information in response to the defendant’s motion for a bill of particulars in which the state charged that “on or about November 24, 1993, [the defendant] intentionally, under oath, did testify falsely to a material statement which he does not believe to be true in violation of § 53a-156 (a) . . . .” On December 21, 1995, the defendant filed a second motion for a bill of particulars requesting that the state (1) identify the statement alleged to be false and (2) declare in what respect it is false.

A hearing on the further bill of particulars was held before the trial corut, which granted the request as to question one and denied it as to question two. On January 11,1996, the state filed an amended long form information, which added the following language to the perjury charge, “to wit: denied withdrawing money from accounts established to deposit prepaid funeral arrangement money, in violation of § 53a-156 (a).”

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. State v. Cates, 202 Conn. 615, 625-26, 522 A.2d 788 (1987); State v. Franko, 199 Conn. 481, 490, 508 A.2d 22 (1986); State v. Stepney, 191 Conn. 233, 240, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). [That] the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial . . . are principles of constitutional law [that] are inveterate and sacrosanct. State v. Sumner, 178 Conn. 163, 166, 422 A.2d 299 (1979); State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987); State v. Franko, supra [490]; State v. Stepney, supra [240]. . . . The defendant has the burden of showing why the particulars are necessary to the adequate preparation of his defense. State v. Stepney, supra [240-41]. The denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. State v. Frazier, 194 Conn. 233, 237, 478 A.2d 1013 (1984); State v. Stepney, supra [240-41].” (Internal quotation marks omitted.). State v. Laracuente, 205 Conn. 515, 518-19, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988).

A bill of particulars must allege facts with sufficient precision to enable the defendant to meet them at trial; exact precision is not required. The amended information charged that the defendant committed perjury, “to wit: denied withdrawing money from accounts established to deposit prepaid funeral arrangement money, in violation of § 53a-156 (a).” We fail to see how the defendant could have been uninformed regarding the nature of the charges against him and why “exactly what respect the said statement is alleged to have been false” was necessary to his defense. The defendant’s claim to the contrary is without merit.

Ill

The defendant next claims that the trial court unconstitutionally restricted his cross-examination of Block, the attorney for the funeral home. The defendant argues that the questions he wanted to pose were relevant to show Block’s motive and bias, and to show prior misconduct. On appeal, the defendant asserts that Block’s motive for testifying was to curry favor with the state in order to avoid prosecution for her own misdeeds and that he should have been allowed to present this theory to the jury. We disagree.

The state called Block as a witness for the purpose of establishing that she had received a box of documents during a meeting with Peck, McCoy and the defendant. Block testified that she regularly dealt with the defendant and that she had turned the contents of the box over to him. This evidence was pertinent because the first CD was one of the documents in that box.

During the cross-examination, a total of four objections were made by the state, one of which was overruled. The purported “restriction” on cross-examination put into issue on appeal by the defendant was part of the following colloquy.

“Q. You represented Perkins Funeral Home during the time that Mr. Perkins was in jail, is that right?
“A. Yes—well, part of the time.
“Q. And during that period of time did Mr. McCoy tell you that there were activities going on that were illegal?
“The State: Object. I don’t see the relevance.
“The Court: Sustained.
“The State: Thank you.
“Q. Showing you defendant’s exhibit ten. Do you remember receiving this letter?
“A. No, I don’t remember receiving it.
“Q. Now, when you say you don’t remember receiving it, does that mean that you did not or that you don’t remember whether or not you received it?
“A. The second, I don’t remember whether or not.
“Q. Do you remember it being brought to your attention by Mr. McCoy that the employees at Perkins Funeral Home were being paid under the table?
“The State: Object. Beyond the scope of direct and relevance, Your Honor.
“The Court: Sustained.
“Q. Do you remember [it] being brought to your attention that Perkins’ money was being laundered—
“The State: Object.
“Q.—through the account of one, Norman Bell—
“The Court: Sustained.”

Several more questions were asked of the witness before the defendant stated that he had no further questions. The witness was excused and out of the presence of the jury, the defendant stated that the questions objected to by the state and sustained by the trial court were relevant to show bias and motive. Specifically, the defendant argued for the record that (1) he was attempting to show that Block was exposed to the possibility of criminal liability and therefore had a motive to curry favor with the state, and (2) the questions were relevant to impeachment as evidence of prior misconduct relating to the issue of credibility.

“The right to confrontation is fundamental to a fair trial under both the federal and state constitutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Jarzbek, 204 Conn. 683, 707, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v. Reardon, 172 Conn. 593, 599-600, 376 A.2d 65 (1977). It is expressly protected by the sixth and fourteenth amendments to the United States constitution; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra [403]; and by article first, § 8, of the Connecticut constitution. State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925).” (Internal quotation marks omitted.) State v. Cassidy, 236 Conn. 112, 122, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).

“The primary interest secured by the confrontation clause of the sixth amendment is the right to cross-examination. Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965); State v. Randolph, 190 Conn. 576, 591, 462 A.2d 1011 (1983); State v. Wilson, 188 Conn. 715, 720, 453 A.2d 765 (1982).” State v. Milum, 197 Conn. 602, 608, 500 A.2d 555 (1985). “ ‘The confrontation right, however, is not absolute and is subject to reasonable limitation. State v. Vitale, 197 Conn. 396, 401, 497 A.2d 956 (1985).’ ” State v. Lewis, 220 Conn. 602, 621, 600 A.2d 1330 (1991). “[T]riai judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination ... or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

“The defendant relies upon the holding of Davis v. Alaska, [supra, 415 U.S. 308] that undue restriction upon cross-examination of prosecution witnesses for bias or interest, particularly with respect to bargains made concerning the disposition of criminal charges against those witnesses, violates the constitutional right of confrontation. See State v. Annunziato, 174 Conn. 376, 379, 387 A.2d 566 (1978). That principle is wholly inapplicable to the questions which are the subject of the rulings challenged here. Not only do these inquiries make no reference to pending criminal charges against the [witness], whether formally presented or at some preliminary stage, but no claim of such a purpose was made at trial. Facially the questions appeared to be designed to attack the character of the [witness] by proof of prior specific acts of misconduct other than felony convictions in violation of the general prohibition against such evidence. State v. Zdanis, 173 Conn. 189, 191, 377 A.2d 275 (1977); State v. Martin, 170 Conn. 161, 167, 365 A.2d 104 (1976); Richmond v. Norwich, 96 Conn. 582, 597, 115 A. 11 (1921); Verdi v. Donahue, 91 Conn. 448, 454, 99 A. 1041 (1917). The exception, which allows, in the discretion of the trial court, proof of particular acts having a special significance upon the issue of veracity, cannot be said to require the admission of evidence that a witness has engaged in an unrelated [and uncharged misconduct] at some time in the past. Vogel v. Sylvester, 148 Conn. 666, 675, 174 A.2d 122 (1961); Shailer v. Bullock, 78 Conn. 65, 69, 61 A. 65 (1905). . . . The defendant was not inhibited by these rulings from exploring the motivations of the witnesses for testifying in relation to the disposition of any pending criminal charges . . . .” State v. Orsini, 187 Conn. 264, 268-69, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-124 (a) provides in relevant part: “A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-l 19 and . . . (2) the value of the property or service exceeds one thousand dollars . . . .”
      General Statutes § 53a-l 19 provides in relevant part: “A person commits larceny when, with intent to deprive smother of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”

       General Statutes § 53a-156 (a) provides: “A person is guilty of perjury if, in any official proceeding, he intentionally, under oath, makes a false statement, swears, affirms or testifies falsely, to a material statement which he does not believe to be true.”

       The letters were sent via certified mail, return receipt requested. The letter sent to the funeral home was returned to Gimple as it was unclaimed by the addressee. The funeral home had gone out of business prior to the mailing of the letter. The letter sent to the defendant was signed by Pamela Kimber, his daughter, indicating that it had been received.

         See footnote 1.

       At the hearing, the defendant was questioned by Belgrade, by assistant attorney general Lori Adeymi and by William Venezia, the assistant director of the fraud division of the department of consumer protection. The transcript of the November 24, 1993 hearing contained the following colloquy:
      “Ms. Belgrade: Now as I said we were particularly interested in the prepaid funeral service area. Maybe you can tell us a little bit about the mechanics of how that worked at the funeral home?
      “The Witness: The individuals would come in and make prearrangements for funerals and—
      “Ms. Belgrade:—And that was either for themselves—
      “The Witness:—For themselves or for a loved one. And usually that money was turned over to Mr. McCoy. It was put into a trust fund at the Bank of Boston.
      “Ms. Adeymi: Do you have knowledge that it was put into a trust fund?
      “The Witness: Yeah, I have knowledge of that.
      “Ms. Adeymi: Did you ever go to the bank yourself?
      “The Witness: I never went to the bank myself but I have knowledge of—
      “Ms. Adeymi: What kind of knowledge do you have that it was put into a trust fund?
      “The Witness: From Mr. McCoy. . . .
      “Ms. Adeymi: With the prearrangements, when people come in to make prearrangements, all those are placed into a separate trust fund account so anyone that came in, all of those funds would be placed into a separate trust fund account?
      “The Witness: Separate trust fund.
      “Ms. Adeymi: Which was maintained at the Bank of Boston?
      “The Witness: Bank of Boston, yeah.
      “Ms. Belgrade: And that was just one account?
      “The Witness: One account.
      “Ms. Adeymi: But several—I understand there is one account but several people would—anybody, say for instance you had ten people in three months who made prearrangements, all of those people’s funds would be put into that same one account?
      “The Witness: In the trust account.
      “Ms. Adeymi: Right, okay.
      “Ms. Belgrade: And it was a regular savings account then?
      “The Witness: The only thing I know is that it was a trust account, that’s what I know. It was a trust account and I think on the document it had a trust account.
      “Ms. Adeymi: So you have seen some documentation that there was a trust account?
      “The Witness: Yeah.

        “Ms. Belgrade: And the people that had access to it were Mr. Perkins and Mr. McCoy?
      “The Witness: That’s whose name was on that account.
      “Ms. Belgrade: Okay, did you ever withdraw money from that account?
      “The Witness: No, I haven’t.
      “Ms. Belgrade: Did you ever witness either Mr. Perkins or Mr. McCoy withdraw money from that account?
      “The Witness: No.
      “Ms. Belgrade: So as far as you know money went into that account and was not withdrawn or did you ever know of withdrawal from that account?
      “The Witness: I actually didn’t know personally but heard of withdrawals from the account.”

       At trial, the defendant claimed that the trial court improperly restricted his cross-examination of Block in violation of the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. In his brief, however, the defendant raises only the alleged violation of the sixth amendment right to confrontation.
      “[W]e interpret the confrontation clause of the Connecticut constitution in the same manner as its federal counterpart” and therefore look to both federal and state case law to resolve this issue. State v. Malone, 40 Conn. App. 470, 476-77, 671 A.2d 1321, cert. denied, 237 Conn. 904, 674 A.2d 1332 (1996). We rest this holding, however, not only on the requirements of the federal constitution, but also on independent and adequate state constitutional grounds. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); State v. Jarzbek, 204 Conn. 683, 707-708, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CHARLES BENLOCK v. NEW HAVEN TERMINAL/CILCO TERMINAL ET AL.
    (AC 17178)
    Landau, Schaller and Freedman, Js.
    Argued February 26
    officially released March 24, 1998

      Scott Wilson Williams, for the appellants (defendants).

      Carolyn P. Kelly, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendants appeal from the decision of the workers’ compensation review board affirming the decision of the workers’ compensation commissioner, who found that the plaintiffs myocardial infarction was a compensable injury. The defendants’ counsel on appeal was also trial counsel, and this appeal can best be categorized as a valiant but futile effort to retry the case in this court. No novel principles of law or appellate procedure are involved and to discuss the defendants’ claims would serve no useful purpose. See Byrne v. Trice, 170 Conn. 442, 442-43, 365 A.2d 1063 (1976); Lord v. Lord, 44 Conn. App. 370, 376, 689 A.2d 509, cert. denied, 241 Conn. 913, 696 A.2d 985 (1997).

The decision of the compensation review board is affirmed.


text:
    DALTON ENTERPRISES, INC. v. BOSTON AND MAINE CORPORATION
    (AC 16977)
    Lavery, Sullivan and Dupont, Js.
    Argued January 22
    officially released March 31, 1998

      James M. Miele, for the appellant (plaintiff).

      Robert N. Reynolds, Jr., for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Dalton Enterprises, Inc., appeals from the summary judgment rendered in favor of the defendant, Boston & Maine Corporation. The plaintiff sought a declaratory judgment giving it an easement by prescription over certain land belonging to the defendant. On appeal, the plaintiff claims that the trial court improperly determined that General Statutes § 47-27 barred the plaintiff from acquiring a prescriptive easement over the defendant’s property. We affirm the judgment of the trial court.

The plaintiff owns land in Cheshire adjacent to land owned by the defendant, a railroad corporation. Until November, 1994, the defendant’s affiliate, the Springfield Terminal Company, operated a railroad on the land owned by the defendant. Since November, 1994, the railway on this land has remained inactive.

The trial court held that § 47-27 applied to bar the plaintiff from adversely possessing the disputed parcel during the period from 1965 to 1994 when the defendant railway company used the property for its corporate purpose. Given this statutory bar, the trial court determined that the plaintiffs adverse possession of the disputed parcel did not commence until November, 1994, when the defendant ceased to use the property for its corporate purpose and that accordingly, the action was premature.

A necessary element of a claim of easement by prescription is the continuous use of the land for a period of fifteen years. General Statutes § 47-37; Reynolds v. Soffer, 190 Conn. 184, 187, 459 A.2d 1027 (1983); Gioielli v. Mallard Cove Condominium Assn., Inc., 37 Conn. App. 822, 829, 658 A.2d 134 (1995). The plain language of § 47-27 prevents the creation of any interest in the disputed parcel during the period of corporate use of the land. This statute accordingly serves as a toll on the time period necessary for the creation and perfection of prescriptive rights on the disputed parcel while the land is being used for the defendant’s corporate purposes.

We conclude that the trial court correctly interpreted § 47-27 as applied to this case. This statute serves as a toll on the time period necessary for creating a prescriptive easement. In a thoughtful, comprehensive and well-reasoned memorandum of law, the trial court addressed the arguments of the parties. We could not state and resolve the issue any better and, therefore, adopt the trial court’s decision. See Dalton Enterprises, Inc. v. Boston & Maine Corp., 45 Conn. Sup. 251, 709 A.2d 611 (1997).

The judgment is affirmed.

       General Statutes § 47-27 provides: “Title by adverse possession by or against railroad and railway companies. No length of possession, user or occupancy of land belonging to a railroad or street railway corporation and used for its corporate purposes shall create or continue any right in or to such land. No length of possession, user or occupancy by a railroad or street railway corporation of land belonging to another shall create or continue any right in or to such land.”

       The plaintiff does not dispute the fact that prior to the discontinuance of operation of the railway on the disputed parcel in 1994, the property was being used for the defendant’s corporate purpose. Further, the defendant does not dispute the fact that since the discontinuance of operation of the railway in 1994, the disputed parcel has not been used for its corporate purpose.

       General Statutes § 47-37 provides: “No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”


author: LANDAU, J.

text:
    MICHAEL A. KALLAS v. CHARLES HARNEN
    (AC 16720)
    Lavery, Landau and Spallone, Js.
    Argued January 16
    officially released March 31, 1998

      Donald A. Mitchell, for the appellant (defendant).

      Mark W. Korotash, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant, Charles Hamen, appeals from the judgment of the trial court in favor of the plaintiff, Michael A. Kallas, in accordance with the report of an attorney trial referee. On appeal to this court, the defendant claims that the trial court improperly accepted the referee’s report, which concluded that the defendant is liable to the plaintiff for returning the plaintiffs earnest money deposit on a condominium unit. We affirm the judgment of the trial court.

There is little dispute as to the basic facts. In March, 1986, the defendant entered into a contract to sell certain real property to the plaintiff through the plaintiffs trastee, Cordalie Benoit. The real property in question was a condominium unit to be constructed in Danbury. The defendant’s attorney, Roderick MacKenzie, drafted the contract, which provided, inter alia, that a deposit of $7450 was to “be held in escrow by the [defendant’s] attorney” and that, if the closing did not take place within one year of the scheduled date, i.e., June 15, 1987, “all moneys paid shall be returned to [plaintiff].” The contract assumed completion of the condominium unit, the acquisition of title to the premises by the defendant, and subsequent conveyance of title to the plaintiff. The defendant signed the contract as did the plaiutiffs trustee. Because the defendant never obtained title to the condominium unit, the conveyance of title to the plaintiff did not take place.

On August 29, 1990, the plaintiff demanded that the defendant return his deposit in accordance with the terms of the contract. The defendant failed to do so. Therefore, the plaintiff commenced a one count breach of contract action against the defendant for failing to return his deposit. The matter was heard by the referee, who concluded that the plaintiff proved tender of the deposit to MacKenzie in accordance with the contract, that he was entitled to the return of his $7450 deposit with interest and that the defendant is liable to the plaintiff. The trial court approved the report and rendered judgment. This appeal followed.

The defendant does not dispute that the plaintiff is entitled to the return of his deposit. In the trial court and at oral argument, however, the defendant claimed that he personally never received the deposit paid by the plaintiff because it was held in escrow by MacKenzie and, therefore, he is not liable to the plaintiff for breach of contract for failing to return the deposit. We disagree.

As a preliminary matter, we must examine the procedures that govern matters heard by an attorney trial referee. See Practice Book § 428, now Practice Book (1998 Rev.) § 19-1, et seq. An attorney trial referee “is obliged to report to the court ‘the facts found and the conclusions drawn therefrom,’ but the report may be supplemented with a ‘memorandum of decision including such matters as [the attorney referee] may deem helpful in the decision of the case. . . .’ Practice Book § 434.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 503, 508 A.2d 415 (1986). The parties may seek additions and corrections to the facts contained in this report by filing a motion to correct with the attorney trial referee pursuant to Practice Book § 438, now Practice Book (1998 Rev.) § 19-12. After the attorney trial referee responds to any motions to correct, the parties may file with the trial court exceptions to findings of fact pursuant to Practice Book § 439, now Practice Book (1998 Rev.) § 19-13, or objections to factual conclusions or rulings pursuant to Practice Book §440, now Practice Book (1998 Rev.) § 19-14. See Tarka v. Filipovic, 45 Conn. App. 46, 51, 694 A.2d 824, cert. denied 242 Conn. 903, 697 A.2d 363 (1997).

“Our standard of review on a challenge to the trial court’s factual findings requires the [defendant] to establish that the factual findings were clearly erroneous. Practice Book § 4061; Cashman v. Calvo, 196 Conn. 509, 516, 493 A.2d 891 (1985). A finding is ‘clearly erroneous,’ when, even though the finding is supported by some evidence, the reviewing court, on the basis of all the evidence, is left with the definite and firm conviction that a mistake has been committed by the fact finder. Beizer v. Goepfert, 28 Conn. App. 693, 704, 613 A.2d 1336, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992), cert. denied, 507 U.S. 973, 113 S. Ct. 1416, 122 L. Ed. 2d 786 (1993).” Mastronardi v. Infante, 34 Conn. App. 584, 590-91, 642 A.2d 84, cert. denied, 231 Conn. 907, 648 A.2d 154 (1994).

“While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found.” (Internal quotation marks omitted.) Seal Audio, Inc. v. Bozak, Inc., supra, 199 Conn. 508.

“Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee. See Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 256, 524 A.2d 610 (1987).” Bernard v. Gershman, 18 Conn. App. 652, 656, 559 A.2d 1171 (1989). “Where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” Thompson & Peck, Inc. v. Harbor Marine Contracting Corp., 203 Conn. 123, 131, 523 A.2d 1266 (1987).

The defendant argues on appeal that his attorney acted as the escrow agent of both parties and suggests that we apply the general rule that a loss occasioned by the wrong of an escrow holder must, as between the parties to the escrow transaction, be borne by the one who owned the property or money at the time of the loss; i.e., if the escrow agent embezzles money before the time when the vendor is entitled to it, the loss falls on the vendee; if the escrow agent embezzles the money after the vendor is entitled to it, the loss falls on the vendor. See 28 Am. Jur. 2d, Escrow § 20 (1966); 30A C.J.S., Escrows § 9 (1965). This rule has no application to the facts of the case now before us.

The following additional facts are necessary for our analysis. The defendant admitted and the attorney trial referee found that MacKenzie was acting as the defendant’s attorney and agent with respect to the sale of the condominium unit. The attorney trial referee also found that MacKenzie had drafted the subject contract of sale for real property and concluded that “[t]he deposit funds were held by the defendant’s attorney acting as an escrow agent for the benefit of both the plaintiff and the defendant. See paragraphs 4.a, 5 and 11 of the contract for sale.” The pertinent language of the referenced paragraphs of the contract states:

“4.a. The sum of Seven Thousand Four Hundred Fifty Dollars ($7,450.00) paid toward the purchase price shall be held in escrow by the [defendant’s] attorney [u]ntil [the defendant] obtains title to said premises.
“5. The conveyance of the premises and payment of the purchase price shall take place at the offices of the [defendant’s] attorney ... if closing does not occur prior to June 15, 1987, all monies shall be returned to [the plaintiff].
“11. Default by [the plaintiff]. If the [plaintiff] defaults or fails to comply . . . .”

While we agree that the defendant is hable to the plaintiff for the return of the plaintiffs deposit, we do not agree that MacKenzie was acting as an escrow agent for the benefit of both the plaintiff and the defendant. As a matter of law, because MacKenzie was the defendant’s attorney and agent, no escrow was established.

In Connecticut, where, pursuant to an agreement, money is left in the hands of the attorney or agent of one of the parties, the money is not delivered in escrow. See Shelinsky v. Foster, 87 Conn. 90, 94, 87 A. 35 (1913); Grilley v. Atkins, 78 Conn. 380, 387, 62 A. 337 (1905). We look to one of our sister states for a more modem application of this long held principle of law. See Paul v. Kennedy, 376 Pa. 312, 102 A.2d 158 (1954).

In Paul, the defendant seller employed an agent to obtain a buyer for his business. In response to an advertisement placed by the agent, the plaintiff buyer delivered a down payment to the agent who thereafter prepared a written agreement, which was signed by the seller. The agreement required the plaintiff to pay the balance of the purchase price to the agent when he executed the agreement. The agent was to hold the money in escrow until the defendant obtained permission from the state to sell his business. The defendant failed to obtain the necessary approval prior to the agent’s embezzling the money paid by the plaintiff. The Pennsylvania Supreme Court affirmed the trial court’s decree for the plaintiff saying that “ ‘where one of two innocent persons must suffer from the wrongful act of a third, the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetrate the wrong.’. . .Franklin Fire Ins. Co. v. Bradford, 201 Pa. 32, 38, 50 A. 286 [1901].” Paul v. Kennedy, supra, 376 Pa. 317.

In support of her conclusion that the defendant was individually liable to the plaintiff for the deposit, the attorney trial referee properly cited the general rule “that the acts of an attorney are imputed to a client when they are performed in the furtherance of the business for which the attorney has been retained.” Allen v. Nissley, 184 Conn. 539, 542-43, 440 A.2d 231 (1981). Although there was no evidence before the referee that MacKenzie embezzled the plaintiffs deposit, MacKen-zie was the defendant’s agent and drafted the contract of sale designating himself as the person to receive the deposit. The defendant ratified the acts of his attorney by signing the contract. Therefore, the trial court properly affirmed the referee’s report.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 52-434 provides in pertinent part: “State referees, (a) Appointment of retired judges and members of the bar. Cases referred. . . . The superior court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case. . . . The referee shall hear any such case so referred and report the facts to the court by which the case was referred. ... (4) In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified, members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary. ...” (Emphasis added.)

       Although the referee sent a corrected report to the trial court, we refer to the document only as the report in this opinion.

       The defendant was a straw party in the transfer of title.

       At oral argument, the parties agreed that neither of them has asked MacKenzie to return the plaintiffs deposit.

       The defendant argues that the contract contained no promise that he, individually, would return the deposit because the contract merely states that “all monies shall be returned to Buyer.” The defendant further claims that because he never received the funds from his agent, MacKenzie, he is not individually liable. The defendant misconstrues the law of agency. The acts of an agent are imputed to his principal, and a principal may not use his agent as a shield when the agent acts within the bounds of his authority. See Son v. Hartford Ice Cream Co., 102 Conn. 696, 700-701, 129 A. 778 (1925); Mullen v. Horton, 46 Conn. App. 759, 764, 700 A.2d 1377 (1997).

       “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).


author: FREEDMAN, J.

text:
    STATE OF CONNECTICUT v. CHARLES W. COLEMAN
    (AC 13103)
    O’Connell, C. J., and Spear and Freedman, Js.

      Argued December 5, 1997
    officially released March 31, 1998

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John Waddock, assistant state’s attorney, for the appellee (state).
   Opinion

FREEDMAN, J.

This matter is currently before us on remand from the Supreme Court. State v. Coleman, 241 Conn. 784, 699 A.2d 91 (1997). The defendant originally appealed to this court from a judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), burglary in the second degree in violation of General Statutes § 53a-102 (a), sexual assault in the first degree in violation of General Statutes (Rev. to 1985) § 53a-70 (a), and unlawful restraint in the first degree in violation of General Statutes (Rev. to 1985) § 53a-95.

In his original appeal to this court, the defendant asserted that (1) the evidence was insufficient to establish his guilt of the crimes charged, (2) the trial court improperly admitted into evidence certain items that were never connected to the commission of the crimes charged, (3) his rights were violated by (a) his conviction of burglary in the second degree and (b) his conviction of unlawful restraint in the first degree, (4) the trial court improperly charged the jury regarding burglary in the first degree and the definition of reasonable doubt, and (5) his rights were violated by the destruction of physical evidence. We resolved the first and second issues, ordered a new trial, and, therefore, declined to afford him review on the other issues. State v. Coleman, 42 Conn. App. 78, 679 A.2d 950 (1996), rev’d, 241 Conn. 784, 699 A.2d 91 (1997).

Our Supreme Court granted certification limited to the following issues: (1) “Did the Appellate Court properly conclude that the trial court improperly admitted certain knives into evidence?” and (2) “If the answer to question 1. is yes, was the error harmful?” State v. Coleman, 239 Conn. 913, 682 A.2d 1007 (1996). The Supreme Court concluded that this court improperly determined that the trial court should not have admitted the evidence concerning the four knives. State v. Coleman, supra, 241 Conn. 789. The Supreme Court, therefore, reversed the judgment of this court and remanded the case to us with direction to consider the defendant’s remaining claims on appeal. Id., 792.

The facts that the jury reasonably could have found are stated in both State v. Coleman, supra, 241 Conn. 784, and State v. Coleman, supra, 42 Conn. App. 78. Additional facts relevant to this appeal will be set forth as each of the defendant’s remaining claims are addressed by this court.

I

The defendant first argues that his rights were violated by (1) his conviction of burglary in the second degree and (2) his conviction of unlawful restraint in the first degree. We address each of these claims separately.

A

The following facts are necessary for a resolution of the defendant’s claim that his rights were violated by his conviction of burglary in the second degree. On July 25, 1986, the state filed a substitute information charging the defendant with burglary in the first degree, sexual assault in the first degree, unlawful restraint in the first degree and robbery in the third degree. Regarding the burglary count, the information charged that the defendant was guilty of burglary in the first degree in violation of § 53a-101 (a) (2). On May 27, 1987, the defendant, pursuant to a plea agreement, pleaded guilty to burglary in the first degree, sexual assault in the first degree and robbery in the third degree. The defendant was sentenced on those three charges and the unlawful restraint charge was nolled. The trial court subsequently denied the defendant’s motion to withdraw his guilty plea. The defendant’s conviction was affirmed on appeal. State v. Coleman, 17 Conn. App. 307, 552 A.2d 442 (1989).

The defendant then filed a petition for a writ of habeas corpus with the United States District Court for the District of Connecticut, which ordered the state to permit the defendant to withdraw his guilty plea. The defendant subsequently changed his plea of guilty to not guilty on all counts of the substitute information and elected a trial by jury. After the defendant was permitted to withdraw his guilty plea, the state filed a substitute information adding a second count of burglary in the first degree. The additional count specified that the defendant was guilty of burglary in the first degree in violation of § 53a-101 (a) (l). On October 5, 1993, after the jury had been selected and before the commencement of evidence, the state again filed an amended information, which deleted the newly added charge of burglary in the first degree pursuant to § 53a-101 (a) (1), and replaced it with a charge of burglary in the second degree pursuant to § 53a-102.

The defendant moved to strike the charge of burglary in the second degree on the grounds that it violated the constitutional prohibition of double jeopardy and was filed for reasons of prosecutorial vindictiveness. The state argued in response that the charge of burglary in the second degree was “not a new charge” but rather was “merely an alternative means of committing [the burglary in question].” The state also argued that the defendant had notice of that charge. Finally, the state argued that the defendant could not be prejudiced by the charge of burglary in the second degree because the court could not impose consecutive sentences if the jury convicted the defendant of burglary in the first degree and burglary in the second degree. The trial court denied the motion to strike, and the defendant was convicted and sentenced on both burglary counts.

In his brief to this court, the defendant presents two arguments in support of his claim that his conviction of burglary in the second degree was unlawful. He first argues, citing Practice Book § 624, now Practice Book (1998 Rev.) § 36-18, that the charge was not timely filed. Next, he argues that the multiple convictions violated the restriction on double jeopardy. We need not address these particular claims because we conclude that under the unique circumstances of this case, the defendant’s conviction of second degree burglary should be vacated.

It is clear from the record before us that the state never intended to have the defendant sentenced for more than one count of burglary. The defendant nevertheless was convicted and sentenced on both the first degree burglary and second degree burglary charges. At oral argument before this court, both originally and on remand, the state conceded that there should be only one conviction for burglary. We therefore vacate the defendant’s conviction and sentence on the charge of burglary in the second degree.

B

The following additional facts are necessary for a resolution of the defendant’s claim that his rights were violated by his conviction of unlawful restraint in the first degree.

As previously noted, pursuant to a plea agreement, the defendant pleaded guilty to and was sentenced on charges of burglary in the first degree, sexual assault in the first degree and robbery in the third degree. The count charging the defendant with unlawful restraint was nolled. After the defendant was permitted to withdraw his guilty pleas, the defendant changed his plea of guilty to not guilty on all counts, including the count charging him with unlawful restraint, and elected a trial by jury. The defendant was eventually convicted of burglary in the first degree, burglary in the second degree, sexual assault in the first degree and unlawful restraint in the first degree.

The defendant argues that his conviction for unlawful restraint in the first degree was improper because the nolled charge was never properly reinstated and was barred by the statute of limitations. We disagree.

With regard to the defendant’s claim that the unlawful restraint charge was never properly reinstated, the defendant argues, citing Practice Book § 727, now Practice Book (1998 Rev.) § 39-31, that in order to proceed on a previously nolled charge, a new prosecution must be initiated, i.e., there must be a new information, a new case and anew arrest. The defendant argues, therefore, that simply adding the nolled charge to the third and subsequent informations was a jurisdictionally defective method of reinstating that charge.

We initially note that although the defendant did move to strike the unlawful restraint count, he did not make the argument that he presents on appeal. The defendant, therefore, seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error rule. We conclude that this claim does not warrant either Golding or plain error review.

Pursuant to Golding, a defendant can prevail on his unpreserved claim only if he meets all of the following requirements: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “In harmony with the objective of Golding, the defendant’s claim may be disposed of by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Rose, 41 Conn. App. 701, 706-707, 679 A.2d 19, cert. denied, 239 Conn. 906, 682 A.2d 1011 (1996).

We conclude that pursuant to Golding, the defendant has failed to establish that this claim is of constitutional magnitude. This is so because “[i]f [a] plea is withdrawn . . . that means that the defendant will plead anew to the original charges. Santobello v. New York, [404 U.S. 257, 263 n.2, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971)].” State v. Nelson, 23 Conn. App. 215, 220, 579 A.2d 1104, cert. denied, 216 Conn. 826, 582 A.2d 205 (1990), cert. denied, 499 U.S. 922, 111 S. Ct. 1315, 113 L. Ed. 2d 248 (1991). In the present case, therefore, after the defendant was permitted to withdraw his guilty plea, he faced prosecution on that information to which he had earlier entered his guilty pleas. This information included the count charging unlawful restraint. Because the defendant did “plead anew to the original charges,” we conclude that the defendant has failed to establish that this claim is of constitutional magnitude. For the same reason, we conclude that the defendant’s claim does not warrant plain error review.*

The defendant further claims that the nolled charge of unlawful restraint was barred by the statute of limitations, General Statutes § 54-193. According to the defendant, because the entry of a nolle has no effect on the running of the statute of limitations, the limitations period expired on July 8, 1991. We disagree.

The statute of limitations is not a jurisdictional bar to prosecution. State v. Coleman, 202 Conn. 86, 91, 519 A.2d 1201 (1987). It is an affirmative defense and hence waivable. State v. Littlejohn, 199 Conn. 631, 640, 508 A.2d 1376 (1986). The defendant did not raise a statute of limitations defense at trial. He has, therefore, waived this defense and is barred from raising it on appeal.

II

The defendant next argues that the trial court improperly charged the jury on burglary in the first degree and the definition of reasonable doubt. We will consider these issues separately.

A

The trial court instructed the jury, inter alia, that to find the defendant guilty of burglary in the first degree pursuant to § 53a-101 (a) (2), it must find that the defendant “intentionally, knowingly or recklessly inflict[ed] or attempt[ed] to inflict bodily injury on anyone.” The trial court subsequently charged that the defendant must have “intentionally or knowingly inflicted or attempted to inflict bodily harm.” The trial court did not define “bodily injury” or “bodily harm. ” In its charge to the jury on the elements of sexual assault in the first degree, the court charged the jury that “physical injury means impairment of physical condition or pain.” At the conclusion of the charge, the state excepted to the failure of the trial court to define “bodily injury” in its charge on burglary in the first degree. The trial court subsequently recalled the jury and instructed that bodily injury and physical injury are synonymous.

The defendant argues that the trial court improperly ascribed the same definition to two different statutory terms. According to the defendant, because “bodily injury” is distinct from “pain,” the definition of “bodily injury” must exclude any reference to “pain,” either mental or physical. The defendant contends that because the trial court improperly instructed the jury on the elements of burglary in the first degree, he is entitled to a new trial. We disagree.

We initially note that the defendant failed to take an exception to the charge at trial and now seeks review of this claim pursuant to State v. Golding, supra, 213 Conn. 239-40. “[Bjecause the failure to instruct the jury adequately with regard to an essential element of the crime may result in a due process violation impheating the fairness of the trial ... we conclude that the issue is one of constitutional magnitude implicating a fundamental right.” (Citations omitted.) State v. Jackson, 34 Conn. App. 599, 605-606, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994) (appeal withdrawn October 18, 1994). The defendant therefore, is entitled to Golding review.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Cartagena, 47 Conn. App. 317, 320, 708 A.2d 964 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

In State v. Phillips, 17 Conn. App. 391, 552 A.2d 837 (1989), we upheld a jury charge that “bodily injury” means “impairment of physical condition or pain.” The defendant had argued in Phillips that bodily injury relates solely to physical pain and injuries, and that the trial court’s instruction improperly permitted the jury to rely on evidence of the victim’s mental pain. Id., 393. We rejected the defendant’s claim, concluding that “[w]e will not find error in the jury instruction by construing one word, namely pain, in a hypertechnical manner. The charge, read as a whole, was adequate to guide the jury to a correct verdict.” Id., 395.

As in Phillips, we conclude that the charge in this case provided the jury with a clear understanding of the elements of the crime charged. We reach this conclusion despite the defendant’s reliance on State v. Milum, 197 Conn. 602, 500 A. 2d 555 (1985), in support of his position that the concept of “pain” is separate and distinct from the concept of bodily “injury.” In Milum, the defendant was charged with assault in the first degree with a dangerous weapon in violation of General Statutes § 53a-59 (a) (1), which provides in pertinent part: “(a) 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 . . . .” (Emphasis added.) The defendant in Milum argued that the trial court improperly refused to strike the victim’s testimony that she had experienced emotional trauma as a result of the incident. State v. Milum, supra, 618. Our Supreme Court held in Milum that in the context of the relevant statutes, i.e., §§ 53a-59 (a) (1) and 53a-3 (3) and (4), the disjunctive “pain” as an alternative type of “physical injury” under § 53a-3 (4) did not fall within the meaning of “serious physical injury.” Id., 618-19.

We do not read State v. Milum, supra, 197 Conn. 602, to support the defendant’s claim that bodily injury cannot include pain. As we stated in State v. Phillips, supra, 17 Conn. App. 394, the court in Milum “was applying [the definition of pain] to ‘serious physical injury’ as an element of assault in the first degree (§ 53a-59 [a]), a situation clearly distinguishable from the present case.”

For the foregoing reasons, we conclude that the jury charge as given by the trial court was constitutionally adequate.

B

The defendant argues that the trial court improperly charged the jury regarding the concept of reasonable doubt. The defendant concedes that our Supreme Court and this court have upheld jury instructions similar or identical to the charge given. See State v. Ellis, 232 Conn. 691, 705, 657 A.2d 1099 (1995); State v. Colon, 37 Conn. App. 635, 642, 657 A.2d 247, cert. denied, 234 Conn. 911, 660 A.2d 354 (1995); State v. Boyd, 36 Conn. App. 516, 522-23, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356, cert. denied, 516 U.S. 828, 116 S. Ct. 98, 133 L. Ed. 2d 53 (1995); State v. Harvey, 27 Conn. App. 171, 193-94, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). The defendant nevertheless asserts that the charge violated his state and federal right to due process of law, as well as his right to a fan-jury trial. The defendant offers no analysis, however, that would differentiate his claim from the cases in which the charge was upheld. We therefore conclude that this claim is without merit.

Ill

The defendant’s final claim is that his rights were violated by the destruction of physical evidence. The following facts are necessary to the resolution of this claim.

On July 7, 1986, the police seized the victim’s nightgown, underwear and bedding, and took swabs from a wet area on the sheet and mattress. The parties stipulated at trial that those items were placed in the New Haven police property room on July 7, 1986, and were subsequently delivered to the state police forensic laboratory in Meriden. Some time thereafter, the items were returned to the New Haven police department and were subsequently destroyed.

The stipulation regarding those items was read to the jury. The jury was then excused and the defendant proffered a motion to dismiss based on the destruction of physical evidence. Counsel for the state then outlined what had occurred with respect to the items of physical evidence referred to in the stipulation. According to counsel, after learning on November 3, 1988, that the case had been disposed of, the laboratory in Meriden returned the items to the New Haven police department on November 4, 1988, without testing them. On June 6, 1990, the court ordered the destruction of all of the property seized in connection with all of the cases against the defendant, including the present case. According to counsel for the state, the destruction of the items occurred on June 11, 1990.

The parties then presented argument on the merits of the motion to dismiss, focusing on whether the destroyed evidence was potentially exculpatory. After the argument was concluded, the court indicated that it would make a ruling at 2 p.m. The trial court’s ruling is not on the record. It is apparent, however, that the trial court denied the motion because defense counsel, on the record, took an exception to the ruling. The record, therefore, does not reflect the basis for the trial court’s decision on the motion.

The defendant filed a motion for articulation, requesting that the trial court articulate its decision on the motion to dismiss and the factual basis therefor. The state objected to the motion on the ground that the defendant had not ascertained whether the existing transcript was complete. The trial court denied the motion for articulation. The defendant did not seek review of the trial court’s denial of the motion for articulation. Accordingly, there is no basis for our reviewing that decision. Because the defendant failed to provide us with an adequate record, we decline to afford review of his claim. See Kirei v. Hadley, 47 Conn. App. 451, 458, 705 A.2d 205 (1998); State v. Pieger, 42 Conn. App. 460, 467, 680 A.2d 1001 (1996), aff'd, 240 Conn. 639, 692 A.2d 1273 (1997).

The judgment is reversed only as to the conviction of burglary in the second degree and the case is remanded with direction to render judgment of not guilty on that count. In all other respects, the judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first, degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict, bodily injury on anyone.”

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument . . . .”

       Another information was filed on October 8, 1993. That information is not relevant to the issue presently before the court.

       General Statutes § 53a-102 (a) provides: “A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein.”

       The state argued in relevant pari,: “What we are talking about is merely a[n] alternative means of committing the same offense, that being the burglary. ... I would submit that the jury could veiy well find the defendant guilty of both of those counts, but should that happen, the court would not be entitled to impose an accumulative sentence greater than the burglary in the first degree. It could, in other words, it could not run consecutive sentences on that burglary first. Therefore, he is not in a different position with regard to the burglary count. He is not prejudiced in any fashion by the additional burglary in the second degree. He had notice previously . . . as to what the state is claiming and so, therefore, it, is not adding the charge by any stretch, therefore, exposing him to a greater penalty . . . and there is not, vindictiveness because 1 here is no greater exposure that the defendant could suffer from the addition of that. . . . This is not a new charge. It is, in fact, merely an additional alternative means of committing the same offense.”

       The defendant was sentenced to fifteen years on the count of burglary in the first degree and five years on the count of burglary in the second degree to run concurrent with the sentence on burglary in the first degree.

       At that time, counsel for the defendant specifically stated that he was not waiving his right to raise the jurisdictional issue regarding the previously nolled charge of unlawful restraint in the first degree.

       The defendant was found not guilty of robbery in the third degree.

       Practice Book § 727, now Practice Book (1998 Rev.) § 39-31, provides: “The entry of a nolle prosequi terminates the prosecution and the defendant shall be released from custody. If subsequently the prosecuting authority decides to proceed against the defendant, a new prosecution must be initiated.”

       In reaching this conclusion, we further note that the withdrawal of the guilty pleas that were entered as part of a plea bargain “necessarily unravels the entire plea bargain.” State v. Alicea, 41 Conn. App. 47, 60 n.14, 674 A.2d 468 (1996).

         Practice Book § 4061, now Practice Book (1998 Rev.) § 60-5, provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ...”

       The trial court charged as follows: “On a couple of occasions during the course of the charge, the court referred to bodily injury and physical impairment, for the purpose of bodily iryury is the same as physical iryury; bodily iryury as contained in burglary in the first degree, and physical injury as contained in sexual assault, at least for the purpose of being synonymous, and they mean that physical impairment of bodily function or pain. So that, as far as you are concerned, bodily injury and pain are synonymous, and that means impairment of bodily function or pain, for your purposes as to each of those statutes that I referred to.”

       The Supreme Court specifically stated, “ ‘Serious physical injury’ is defined by General Statutes § 53a-3 (4) as ‘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 . . . (Emphasis added.) ‘Physical injury,’ in turn, is defined by General Statutes § 53a-3 (3) as ‘impairment of physical condition or pain . . . .’ (Emphasis added.) Pain is ‘[mjental suffering or distress’ ... as opposed to ‘physical’ injury which ‘relates to the body, as distinguished from the mind.’ ... In the context of these statutes, i.e., §§ 53a-59 (a) (1), 53a-3 (3) and (4), the disjunctive ‘pain’ as an alternative type of ‘physical ipjury’ under § 53a-3 (4) does not, therefore, fall within the meaning of ‘serious physical injury.’ ” State v. Milum, supra, 197 Conn. 618-19.

       The defendant specifically takes issue with the instructions that a “reasonable doubt” was “one, [for] which you can in your own minds, consciously give a reason”; “a square honest doubt”; “a doubt for which a valid reason can be assigned”; “[not] a doubt suggested by the ingenuity of the counsel or jurors, which is not warranted by the evidence”; and “a real doubt, an honest doubt.”

       There is a discrepancy, however, as to the date that the items were actually destroyed. In another case against this defendant, State v. Coleman, 38 Conn. App. 531, 533, 662 A.2d 150, cert. denied, 235 Conn. 906, 665 A.2d 903 (1995), we noted that the items were destroyed on February 19, 1992, after the federal District Court, granted habeas relief.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. RUDOLPH FAULKNER
    (AC 15331)
    O’Connell, C. J., and Schaller and Spear, Js.
    Argued January 27
    officially released March 31, 1998

      Arnold V. Amore II, special public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O’Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal and (2) violated his constitutional right of confrontation. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. On August 19,1988, a violent melee erupted among the victim, the victim’s friend, the defendant and two of the defendant’s friends. This fight followed a dispute over a cocaine deal. During the fight, the victim was stabbed twice, once in his left side and once in his chest. The victim subsequently died as a result of the chest wound, and the defendant was charged in a one count information with murder in violation of General Statutes § 53a-54a.

The trial court instructed the jury on murder and on the lesser included charges of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. More specifically, the court instructed the jury in part as follows: “If you unanimously find that the state has proven beyond a reasonable doubt that the defendant committed the crime of manslaughter in the first degree . . . either directly as a principal or as an accessory, you can find the defendant guilty of this lesser included offense.” The jury found the defendant guilty of manslaughter in the first degree.

I

The thrust of the defendant’s first claim is that the trial court improperly denied his motion for judgment of acquittal because there was insufficient evidence to prove beyond a reasonable doubt that he was guilty as a principal of manslaughter in the first degree. The fallacy in this contention is that it assumes, without justification, that the jury’s verdict was based solely on culpability as a principal. The record discloses that the prosecutor proceeded under alternate theories of culpability as either a principal or an accessory, and the trial court instructed the jury as to both principal and accessorial culpability.

The jury returned a guilty verdict on the lesser included offense of manslaughter in the first degree by means of reckless conduct under circumstances evincing an extreme indifference to human life. General Statutes § 53a-55 (a) (3). This was a general verdict, and the defendant did not request that the court poll the jurors concerning the unanimity of their finding as to the alternate theories of culpability, i.e., guilt as principal or as accessory.

The defendant’s claim is limited solely to the sufficiency of the evidence to support his conviction as a principal. This claim implies that the guilty verdict must be construed as a finding that the defendant committed the offense exclusively as a principal. He does not contest the sufficiency of the evidence to support his conviction as an accessory. “The fact that a defendant is not formally charged as an accessory pursuant to General Statutes § 53a-8 does not preclude a conviction as such.” State v. Correa, 241 Conn. 322, 340, 696 A.2d 944 (1997).

In Connecticut, there is no practical significance to being labeled as a principal or as an accessory. Id., 340. “The accessory statute merely provides alternate means by which a substantive crime may be committed.” (Internal quotation marks omitted.) Id., 341. Because the defendant does not challenge his conviction as an accessory and because there is no difference between being convicted as a principal or as an accessory, his claim must fail.

In addition, “a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation.” State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994); State v. Tinsley, 47 Conn. App. 716, 719, 706 A.2d 1008, cert. denied, 244 Conn. 915, 713 A.2d 833 (1998). The jurors in the present case were instructed on both theories of culpability, principal and accessory, and any guilty verdict they returned had to be unanimous on one theory or the other. Chapman compels us to conclude that it is irrelevant that there may be insufficient evidence to support the defendant’s conviction as a principal, as long as sufficient evidence exists to support his conviction as an accessory.

II

The defendant’s claim of violation of his constitutional right to confrontation is predicated on the failure of a state’s witness, Samuel Covington, to return to court after a noon recess. Immediately prior to the recess, Covington had been on the witness stand undergoing redirect examination by the state’s attorney.

The following facts are relevant to the disposition of this claim. During the defendant’s trial, eyewitnesses to the fight could not identify with certainty who stabbed the victim. Covington, one of the eyewitnesses, testified on direct examination that he had no knowledge of who stabbed the victim. On cross-examination, Covington’s prior written statements were introduced as being inconsistent with his trial testimony. On redirect, Covington again testified that he did not know who stabbed the victim. The court then recessed for lunch. When Covington could not be found after lunch, the state was unable to conclude its redirect and the defense was unable to conduct any recross-examination. The defendant claims that his inability to conduct a recross-examination of Covington violated his constitutional right to confront adverse witnesses.

The confrontation clauses of both the federal and state constitutions afford defendants the right to confront all witnesses who testify against them. State v. Crosby, 34 Conn. App. 261, 272, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994). The principal purpose of confrontation is to secure for the defendant the opportunity for cross-examination. State v. Milner, 206 Conn. 512, 524-25, 539 A.2d 80 (1988). The right to cross-examine adverse witnesses is not absolute, however, and in the exercise of its discretion, the trial court may impose limitations on the scope of cross-examination, as long as the defendant has been permitted sufficient cross-examination to meet constitutional requirements. Id. In the present case, the defendant does not complain that his right of cross-examination was violated, but rather that his right of recross-examination was violated.

It is significant that when the trial resumed the day after Covington partially testified on redirect, the defendant moved that the court strike Covington’s redirect testimony. The trial court granted this request by instructing the jury to disregard such testimony completely during its deliberations. Because the redirect testimony was stricken at the defendant’s request, any prior right to recross that he may have had was waived and, thus, no constitutional violation could have occurred.

Furthermore, it is axiomatic that redirect examination is a condition precedent to recross-examination, and that recross is limited in scope to the information elicited on redirect. In the present case, because the state’s redirect was short, cumulative of other witnesses’ testimony and repetitious, the defendant was not harmed by the redirect or by the lack of an opportunity to conduct any recross.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”


text:
    THOMAS G. AHNEMAN v. SUSAN A. AHNEMAN
    (AC 16093)
    O’Connell, C. J., and Schaller and Spear, Js.
    Submitted on briefs November 13, 1997
    officially released March 31, 1998

      Brenden P. Leydon filed a brief for the appellant (defendant).

      Catherine P. Whelan filed a brief for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

On June 21, 1996, the defendant appealed to this court from the trial court’s judgment modifying awards of alimony and child support. On September 30,1996, the defendant amended her appeal to include the trial court’s award of counsel fees. While the amended appeal was pending, the defendant filed motions in the trial court concerning numerous other financial matters. The trial court declined to rule on those motions on the ground that the case was on appeal.

On October 21, 1996, the defendant amended her appeal a second time so as to include a claim challenging the trial court’s refusal to consider these later motions. This court dismissed the second amended appeal on the ground that there was no final judgment. The Supreme Court granted certification on our dismissal and, on January 20, 1998, reversed our decision and remanded the second amended appeal, through us, to the trial court “for prompt resolution of the defendant’s motions regarding financial issues.” Ahneman v. Ahneman, 243 Conn. 471, 485, 706 A.2d 960 (1998).

The result of these actions is that the trial court now has before it the defendant’s motions regarding financial issues, while we still have before us the financial issues comprising the first amended appeal. This bifurcation of financial issues violates the spirit and the letter of Sunbury v. Sunbury, 210 Conn. 170, 174-75, 553 A.2d 612 (1989). “The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).” Sunbury v. Sunbury, supra, 175.

It is not reasonable to expect the trial court to craft this mosaic carefully if it does not have all of the relevant pieces with which to work. Accordingly, we decline to decide the financial matters before us and remand them to the Superior Court so that it may properly perform the duties imposed on it by the Supreme Court.

The case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. ATTILA EGED
    (AC 15435)
    Foti, Sullivan and Dupont, Js.
    Argued January 15
    officially released March 31, 1998

      Eugene J. Riccio, with whom, on the brief, were Susan Filan and Lori A. McCarthy, law student intern, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Bruce Hudock, senior assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Attila Eged, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (2). On appeal, the defendant claims that the trial court improperly admitted constancy of accusation evidence, and that claim is the sole question of his appeal.

The jury reasonably could have found the following facts. The defendant lived with his wife, son and mother-in-law in an apartment located in the same building as the apartment of the victim’s family. The defendant and the victim’s father were painters who began working together in 1988. They subsequently became close friends.

In September or October, 1990, when the victim was four years old, she stayed with the defendant in his apartment while her mother, who was then pregnant, went to a physician accompanied by the defendant’s wife. The only other person in the apartment at that time was the defendant’s mother-in-law, who was then approximately eighty-three years old, in ill health and suffering from bad eyesight. After the victim’s mother and the defendant’s wife departed, the defendant told the victim to sit down and take her pants off. The victim complied with that request. The defendant then committed an act of cunnilingus on her. This occurred in the living room.

Following that act, the defendant played a videotape that showed a man and a woman committing various sexual acts. The defendant forced the victim to watch the tape. While the videotape was playing, the defendant pulled down his pants and forced the victim to commit an act of fellatio on him. As the victim complied with the order, the defendant’s mother-in-law walked past the living room several times on the way to and from the kitchen and her bedroom.

After the victim completed the act of fellatio, the defendant brought the victim into a bedroom and closed the door. The defendant then ordered the victim to lie on the bed and he attempted to have sexual intercourse with her. The defendant ejaculated twice, once in the bedroom and once in the living room. Subsequently, the victim’s mother and the defendant’s wife returned to the apartment.

In September, 1991, the victim and her family moved to Florida. Thereafter, they returned to Connecticut to visit the defendant and his family in April, 1992, and again in May or June, 1993. During one of those visits, the victim was a passenger in the backseat of a motor vehicle operated by the defendant. The defendant’s wife was a passenger in the front seat. On that occasion, the defendant reached back and placed his hand in the middle of the victim’s legs and touched her crotch. The victim attempted to prevent this attack.

In July, 1993, the victim told her parents about the defendant’s assaults on her. After the victim’s disclosure, she and her family leturned to Connecticut in August, 1993, and filed a complaint with the Stamford police department.

The victim, who was nine years old at the time, testified at the trial. In addition, the victim’s mother testified. She stated that for several weeks prior to revealing the defendant’s assaults, the victim inquired about sexual relations between adults and children. According to the victim’s mother, the victim was concerned with whether, in such situations, a child could go to jail. The mother testified that the victim was not exposed to materials from which she could have gained sexual knowledge. She testified further that although the family owned a videocassette recorder in the fall of 1990, the family did not keep pornographic videotapes in the home at any time.

The state also introduced at trial the testimony of Eleanor Shafer, a social worker for the Child Guidance Center in Stamford, with whom the victim met on August 16, 1993. Shafer testified that she questioned the victim at length about the defendant’s actions toward her. The victim’s statements to Shafer were not consistent in all respects with her previous statements or with her subsequent trial testimony. The victim on one occasion stated that she committed two acts of fellatio on the defendant, while on another occasion she spoke of only one such act and said one attempt was unsuccessful. She also described the defendant’s ejaculation in different terms on separate occasions. Shafer testified that the victim discussed with her why it took so long to tell her mother about the assaults. According to Shafer, the victim told her that she feared being criticized by her mother and making her angry. Shafer also testified that the victim told her that she felt that the sexual assaults were probably her fault.

Dorothy Strudwick, a therapist at Children’s Victim Services in Fort Lauderdale, Florida, testified that she met with the victim twenty times. She testified that she counsels children who are suspected of having been sexually abused but that she does not inquire into the specifics of the abuse unless the child first shares his or her thoughts about the abuse. Strudwick testified that on one occasion the victim had a flashback of the defendant exposing himself to her. On another occasion, the victim related to Strudwick the incident that took place in the car. During their meetings, the victim used a workbook to draw pictures of the assaults by the defendant. During Strudwick’s testimony, the state introduced three pages of drawings from that workbook depicting some of the events that occurred in the defendant’s apartment in the fall of 1990.

The defendant claims that the trial court improperly admitted the constancy of accusation evidence given by the victim’s mother, Shafer and Strudwick, and that such admissions violated the defendant’s right to confront his accuser under the sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8.

The defendant seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because no objection was taken at the time the evidence was admitted. Golding holds that a defendant can prevail on a claim of constitutional error not preserved at trial only if all the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. “The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.” State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986).

The constancy of accusation exception to the hearsay rule has existed in Connecticut since 1830. See State v. Martin, 38 Conn. App. 731, 736, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 (1996). The genesis of the rale is: “ ‘If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it, and that testimony should be received to confirm her story.’ ” Id., quoting State v. De Wolf, 8 Conn. 93, 100 (1830). Since De Wolf, our Supreme Court has consistently approved the admission of such evidence. State v. Martin, supra, 736. The admissibility of constancy of accusation testimony is evidentiary. State v. Kelley, 229 Conn. 557, 566, 643 A.2d 854 (1994). In this case, the evidence was admitted pursuant to a firmly rooted exception to the hearsay rule and did not violate the defendant’s right of confrontation. Because the defendant’s right of confrontation is not involved, there is no constitutional issue to be resolved, and the claim is not reviewable.

In Connecticut, the doctrine of constancy of accusation does not violate an accused’s state and federal constitutional rights to confront witnesses. State v. Troupe, 237 Conn. 284, 293, 677 A.2d 917 (1996) (en banc). The defendant alleges that the constancy of accusation rule should be modified in cases involving young children to include additional requirements and safeguards. We do not agree. The defendant would have the court allow such constancy of accusation evidence only if (1) the defendant asserts that the victim was not sexually assaulted, (2) the complaint is made within a reasonable time after the alleged assault, or, if the complaint is not made within a reasonable time, an explanation for the delay is given, (3) the victim’s complaint is voluntarily made, (4) the testimony is restricted to the facts of the complaint, and (5) the trial judge determines that the probative value of the evidence outweighs the potential prejudices to the defendant. See State v. Troupe, supra, 320 (Berdon, J., concurring). In Troupe, our Supreme Court narrowed the limits of the constancy of accusation rule after a thorough and comprehensive review of that doctrine.

The law now is that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. In all other respects, our current rules remain in effect. Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported. In determining whether to permit such testimony, the trial court must balance the probative value of the evidence against any prejudice to the defendant. In addition, the defendant is entitled to an instruction that any delay by the victim in reporting the incident is a matter for the jury to consider in evaluating the weight of the victim’s testimony.” Id., 304-305.

The Troupe court further stated that the principle of law set out in that case would apply only to those cases in which constancy of accusation testimony had not yet been admitted into evidence on the date of the publication of that opinion. Id., 305. In this case, the jury returned its verdict and judgment was rendered prior to the decision in Troupe. Thus, this case is governed by the law set forth in the line of cases commencing with State v. Kinney, 44 Conn. 153 (1876). Those cases allow the state “to introduce the tact of the complaint and the details of the complaint once the victim has testified regarding the alleged sexual assault and the identity of the person or persons to whom a complaint had been made. Subject to a determination by the trial court that the proffered evidence is more probative than prejudicial, the state may introduce the constancy of accusation testimony of each of the persons to whom the complainant had reported the sexual assault.” State v. Troupe, supra, 237 Conn. 297-98.

The judgment is affirmed.

In this opinion the other judges concurred.

       "The right to confront ation is fundamental to a fair trial under both the federal and state constitutions. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); State v. Jarzbek, 204 Conn. 683, 707, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988); State v. Reardon, 172 Conn. 593, 599-600, 376 A.2d 65 (1977). It is expressly protected by the sixth and fourteenth amendments to the United States constitution; Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Pointer v. Texas, supra, [403]; and by article first, § 8, of the Connecticut constitution. State v. Torello, 103 Conn. 511, 513, 131 A. 429 (1925). . . . State v. Cassidy, 236 Conn. 112, 122, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996).’’ (Internal quotation marks omitted.) State v. McKnight, 47 Conn. App. 664, 665 n.1, 706 A.2d 1003 (1998).