author: PELLEGRINO, J.

text:
    JAMES J. CAMPBELL v. TERRY CAMPBELL
    (AC 30944)
    Haiper, Robinson and Pellegrino, Js.
    Argued January 7
    officially released May 4, 2010

      Sarah C. Saunders, for the appellant (defendant).

      Stephen E. Reck, for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Terry Campbell, appeals from the judgment of the trial court granting a postjudgment contempt citation against the plaintiff, James J. Campbell. The defendant claims that the court improperly (1) denied her request for a continuance, (2) found that the plaintiff had paid alimony to her as ordered and (3) failed to issue an adequate remedy with its finding of contempt. We affirm the judgment of the trial court.

The record discloses the following facts. The parties’ marriage was dissolved on October 12, 2007, with a decree that incorporated by reference a written agreement dated May 17,2007. The agreement provided that “the [plaintiff] shall pay to the [defendant] the sum of $500.00 per month as alimony for a period of one (1) year, commencing as of the date of the dissolution of the marriage of the parties. . . . The [plaintiff] shall execute all documents to effectuate a transfer to the [defendant] of the Dodge Durango vehicle [Durango], free and clear of any loans or encumbrances. The [plaintiff] agrees to pay in full the outstanding loan on the vehicle in the approximate amount of $14,000.00 . . . .” On February 4, 2009, the defendant filed a contempt citation, claiming that the plaintiff had failed to pay her the alimony as agreed and that he had failed to pay the loan on the Durango. The citation also requested attorney’s fees and court costs. The matter was assigned a hearing date of March 9, 2009, and the defendant marked her motion ready to proceed.

On March 6, 2009, the plaintiff, through his counsel, filed an objection to the defendant’s contempt citation. The plaintiff asserted that the defendant had agreed to waive any further claim to alimony or payment on the Durango if he were to provide her with a lump sum of $8000 cash. He represented that the Durango had a balance due of approximately $8000 as of March 12, 2008, along with an additional $622.11 in taxes. The plaintiff stated that, pursuant to that agreement, he tendered $8000 in cash to the defendant, as well as $622.11 for the taxes.

On March 9, 2009, after having marked the case as ready, the defendant’s counsel requested that the matter be continued for a minimum of one week because the plaintiff intended to offer a defense to the contempt citation. The plaintiff objected to the defendant’s request. The plaintiffs counsel stated that the defendant’s contempt citation forced his client to cancel a trip to Florida to visit his son in the hospital and that the plaintiff was ready to proceed and have his evidence heard. The court, Fuger, J., denied the defendant’s request for a continuance, stating that the defendant had marked the matter as ready and should be ready to proceed, notwithstanding the plaintiff’s March 6, 2009 objection.

At the March 9, 2009 hearing, the defendant testified that the plaintiff had not made any alimony payments since the date of the divorce decree and that the plaintiff had not paid off the loan on the Durango. She stated that because the plaintiff did not pay off the original car loan, she had to take out an additional loan and refinance the balance. She maintained that she had not received any payments from the plaintiff and that he had told her that he would give her the money after he had sold his house.

At the same hearing, the plaintiff testified that he had paid alimony to the defendant in cash. According to the plaintiff, the defendant requested such an arrangement to avoid paying tax on the alimony payments. The plaintiff also offered the testimony of his business partner, Daniel Thomas, who stated that he had witnessed the plaintiff giving cash to the defendant. The plaintiff also testified as to dates and amounts of alimony he paid to the defendant, and offered bank statements and checks to corroborate withdrawals of cash on those dates. As to the automobile loan, the plaintiff testified that he gave the defendant money to make the payments and that the parties had an oral agreement that a lump sum payment would satisfy his obligation to pay the balance on the loan. According to the plaintiff, the defendant agreed to this arrangement and took out an additional loan for $8000.

After considering the foregoing evidence, the court found that the plaintiff was not in contempt as to the alimony payments because “[t]here [was] corroboration of the payments in cash.” As to the payments on the Durango, the court found that the contempt had been proven. The court found that the plaintiff had failed to comply with the car loan provision of the judgment and ordered that he pay the defendant $8000, the amount of her car loan, within thirty days. No interest was awarded. The court explained that “[t]here [was] no independent evidence of any sort of agreement.” This appeal followed.

I

The defendant first claims that the court improperly denied her request for a continuance. We disagree.

“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . [I]f the reasons given for the continuance do not support any interference with [a] specific constitutional right, the [reviewing] court’s analysis will revolve around whether the trial court abused its discretion. . . . Decisions to grant or to deny continuances are very often matters involving judicial economy, docket management or courtroom proceedings and, therefore, are particularly within the province of a trial court. . . . Whether to grant or to deny such motions clearly involves discretion, and a reviewing court should not disturb those decisions, unless there has been an abuse of that discretion, absent a showing that a specific constitutional right would be infringed. . . .

“Our Supreme Court has articulated a number of factors that appropriately may enter into an appellate court’s review of a trial court’s exercise of its discretion in denying a motion for a continuance. Although resistant to precise cataloguing, such factors revolve around the circumstances before the trial court at the time it rendered its decision, including: the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request . . . .” (Citations omitted; internal quotation marks omitted.) Watrous v. Watrous, 108 Conn. App. 813, 827-28, 949 A.2d 557 (2008).

In the present case, the defendant marked her motion ready, indicating to the court and to the plaintiff that her intention was to go forward with the matter. It was only on the scheduled hearing date that the defendant asked for a continuance, claiming that the plaintiffs objection to her motion had rendered the case “complex.” As the court aptly noted, “[y]ou marked it ready . . . [a]nd now you’re complaining that the other side said, okay, we’re ready. . . . That shouldn’t come as a great surprise to you that things get more complex when the other side weighs in.” The plaintiff appeared at the hearing ready to present evidence and brought with him witnesses ready to testify and to defend against the defendant’s contempt citation. Also, through counsel, the plaintiff represented that he had cancelled a trip to Florida to visit his sick son in the hospital so that he could attend the hearing. On the basis of the foregoing facts, this court does not find that the trial court abused its discretion in denying the defendant’s motion for a continuance.

II

Addressing the second and third claims, the defendant argues that the plaintiff failed to prove that he paid the alimony as ordered and, although the court found that he was in contempt for his failure to pay off the automobile loan, the court failed to issue an adequate remedy. We disagree.

We begin by setting forth our standard of review. “The standard of review in family matters is well settled. An appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. . . . In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action. . . . Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cifaldi v. Cifaldi, 118 Conn. App. 325, 330-31, 983 A.2d 293 (2009).

“An appellant who seeks to reverse the trial court’s exercise of judicial discretion assumes a heavy burden. . . . Decision making in family cases requires flexible, individualized adjudication of the particular facts of each case. . . . Trial courts have a distinct advantage over an appellate court in dealing with domestic relations, where all of the surrounding circumstances and the appearance and attitude of the parties are so significant. . . . This court may not substitute its own opinion for the factual findings of the trial court. . . . The ultimate question on appellate review is whether the trial court could have concluded as it did. . . . [W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . Thus, [a] mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference.” (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn. App. 318, 330, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

Civil contempt involves the wilful violation of an applicable court order. Marcil v. Marcil, 4 Conn. App. 403, 405, 494 A.2d 620 (1985). To establish her contempt claim, the aggrieved party must prove by a fair preponderance of the evidence both that the alleged contemnor violated the order and that such violation was wilful. See, e.g., Tomlinson v. Tomlinson, 119 Conn. App. 194, 216, 986 A.2d 1119 (2010); Statewide Grievance Committee v. Zadora, 62 Conn. App. 828, 832, 772 A.2d 681 (2001). “[A] finding of contempt depends upon the facts and circumstances surrounding it.” Tufano v. Tufano, 18 Conn. App. 119, 124, 556 A.2d 1036 (1989). Whether ambiguity in an order will preclude a finding of contempt is within the discretion of a trial court. Sablosky v. Sablosky, 258 Conn. 713, 718, 784 A.2d 890 (2001). Guided by these principles, we turn to the defendant’s claims.

As to the second claim, the defendant argues that the court improperly determined that the plaintiff had paid alimony to her as ordered. At the hearing, the plaintiff asserted that he paid alimony to the defendant in cash. He presented the testimony of a witness to corroborate his claim, bank statements listing cash withdrawals from his checking account and copies of checks. Based on the plaintiffs evidence, the court determined that “[t]here [was] corroboration of the payments in cash.” Although the defendant asserts that the plaintiffs claims are not credible, it is not the role of this court to substitute our opinion for the factual findings of the trial court. Because there is sufficient evidence to support the court’s finding that the plaintiff met his alimony obligation with cash payments, we cannot conclude that the court’s factual findings were clearly erroneous.

As to the third claim, the defendant argues that the court’s contempt finding against the plaintiff ordering that he pay $8000 within thirty days for the reimbursement of the car loan was inadequate. According to the defendant, the judgment failed to account for interest and other fees that she was obligated to pay. Nonetheless, she failed to present any specific evidence to the court regarding the loan’s interest rate or its terms. Further, the defendant failed to file a motion for articulation requesting a factual basis for the court’s decision to award her $8000. “In the absence of a motion for articulation, we read an ambiguous trial record to support, rather than to undermine, the judgment.” (Internal quotation marks omitted.) Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 534-35, 967 A.2d 550, cert. denied, 292 Conn. 907, 973 A.2d 103 (2009). Therefore, on the basis of the record before us, we must conclude that the court was within its discretion to determine that $8000 was a reasonable amount to award the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       During the March 9, 2009 hearing, the defendant’s counsel confirmed that the matter had been marked ready by her office.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIAM TOCCO
    (AC 30287)
    Bishop, Harper and West, Js.

      Argued October 23, 2009
    officially released May 4, 2010

      Kevin Murray Smith, with whom, on the brief, was Norman A. Pattis, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Stephen J. Sedensky III, state’s attorney, and Warren C. Murray, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

HARPER, J.

The defendant, William Tocco, appeals from the judgment of conviction, rendered following a court trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l). The defendant claims that the court improperly (1) accepted his waiver of his right to a jury trial, (2) admitted certain constancy of accusation testimony and (3) admitted certain evidence of uncharged misconduct by the defendant. We affirm the judgment of the trial court.

The state presented evidence that, in 1998, the male victim, then aged eleven, joined a Connecticut fife and drum coips. At times relevant, the corps of which the victim was a member consisted of approximately fifteen to twenty members of various ages, from children to adults. During fall, winter and spring, members of the corps attended regularly scheduled practice sessions, typically held at a firehouse, to refine their music and marching skills. During the summer, the corps participated in gatherings of various fife and drum corps, known as musters. At musters, participating corps exhibited their music and marching skills for other corps. Musters typically began on Fridays and ended on Sundays, and it was common for corps members to camp in tents at these outdoor events.

The state presented evidence that, upon joining the corps, the victim met the defendant, an experienced corps member, who was approximately twenty-one years of age. The victim testified that the defendant befriended him, customarily provided him with transportation to and from corps events and, with the permission of the victim’s mother, acted as his chaperone at several musters. The victim testified that he told the defendant that he loved him in late 1998. After this revelation, the victim testified, his relationship with the defendant became sexual in nature. According to the victim, between, approximately, 1999 and 2001, he and the defendant routinely engaged in sexual activities in the defendant’s automobile, which was parked behind the firehouse, following corps practice sessions. Also, the victim testified that he and the defendant engaged in sexual activities in the defendant’s tent at musters. The victim testified that he and the defendant kissed and that he touched the defendant’s private parts. The victim testified, further, that he performed fellatio on the defendant routinely and that, less routinely, the defendant performed fellatio on him. The victim estimated that, during their sexual relationship between 1999 and 2001, he and the defendant engaged in oral sex between 250 to 300 times and that he and the defendant engaged in anal sex seventy-five times.

Following a trial to the court, the court rendered an oral decision setting forth its findings of fact. The court found that the victim had testified credibly and that the state had satisfied its burden of proof as to counts two through seven of its information. In counts two and three, the state alleged that the defendant committed sexual assault in the first degree in that, between September, 1999, and December, 1999, he had the victim, who was under thirteen years of age, perform fellatio on him at the firehouse. In counts four and five, the state alleged that the defendant committed sexual assault in the first degree in that, between January, 2000, and September, 2000, he had the victim, who was under thirteen years of age, perform fellatio on him at the firehouse. In counts six and seven, the state alleged that the defendant committed sexual assault in the second degree in that, between October, 2000, and March, 2001, he had the victim, who was older than thirteen years of age but less than sixteen years of age, perform fellatio on him at the firehouse. The court found that the defendant, who testified at trial that he had not engaged in any sexual activity with the victim, had an ample opportunity to have committed the offenses as alleged and that he had not testified credibly. Additional facts will be set forth as necessary in the context of the claims raised on appeal.

I

First, the defendant claims that the court improperly accepted his waiver of his right to a jury trial. The defendant argues that the court failed to conduct an inquiry adequate to determine whether his waiver was knowing, intelligent and voluntary. The defendant also argues that the court misstated relevant legal principles in addressing him concerning his waiver. We disagree.

The following additional facts underlie the defendant’s claim. At the time of the defendant’s arraignment on March 22, 2007, the defendant elected to exercise his right to a trial by jury. On May 15,2008, the defendant appeared in court with counsel, at which time the following colloquy occurred:

“[Defense Counsel]: After conferencing with my client and discussing the matter with his family, at this time my client’s authorized me to make an application to this court to elect to go forward with a judge trial only and waive the jury trial.

“The Court: All right. And I’m going to canvass your client with regard to that waiver—

[Defense Counsel]: I’ve informed him of that.

“The Court:—which is a permanent waiver. All right. . . .

“[The Defendant]: Yes, sir.

“The Court: How are you, sir?

“[The Defendant]: Good, sir.

“The Court: You’ve had some ongoing discussions, apparently, with [defense counsel] about your case. Correct?

“[The Defendant]: Yes, sir.

“The Court: And one of those discussions has been that you originally elected a jury trial. And you have now had these discussions with, I think, [defense counsel], other counsel, and such, and the conclusion that you’ve all come to together is that you wish to withdraw your case from a jury trial and elect to have your case heard only in front of the court. In other words, a court trial.

“[The Defendant]: Yes, sir.

“The Court: All right. It’ll be in front of myself. Now, that’s what you want to do?

“[The Defendant]: Yes, sir.

“The Court: Are you sure?

“[The Defendant]: Yes.

“The Court: And I’ll tell you why I ask that question. Because once you elect a court trial you can never change your mind again and say, you know what, I’ve rethought my position, I want to go back and have a jury trial. Once you tell the court, I want a court trial, the court asks you the relevant questions that I’m asking you right now, I accept your election to have a court trial rather than a jury trial, there’s no turning back at that point. In other words, [defense counsel] can’t call me up tomorrow and say, [the defendant] called me up, he rethought the position, we want to go forward with that jury trial. It’s over at that point. It’s a court trial and a court trial only. This is something that you cannot change your mind once it has been made. Do you understand that?

“[The Defendant]: Yes, sir.

“The Court: I know you heard that from your lawyers before you heard it from me, but now that you’ve heard it from me, have you had enough time to discuss that issue with your lawyers?

“[The Defendant]: Yes.

“The Court: Are you satisfied with the advice that they’ve given you with regard to this waiver of a jury trial and a court trial?

“[The Defendant]: Yes, sir.

“The Court: And are you under the influence of any alcohol, drugs or medications at all today that might impair your judgment to make that decision?

“[The Defendant]: No, sir.

“The Court: All right. And you’re sure this is what you want to do?

“[The Defendant]: Yes, sir.

“The Court: And I’ve indicated to both sides that if I accept your election to a court trial, that we will begin hearing evidence on this case at 10 o’clock on May 29. Is that the agreed upon time, gentlemen?”

Defense counsel represented that he was prepared for the court to commence the trial on May 29, 2008, or sooner. After discussing the trial schedule with defense counsel, the court stated, “Let’s finish the canvass, and then we’ll get to the dates.” The following colloquy then occurred:

“The Court: All right. So . . .

“[The Defendant]: Yes, sir.

“The Court: Do you want me to accept your election to the court?

“[The Defendant]: Yes I do, sir.

“The Court: And you have no additional questions about it? You are positive?

“[The Defendant]: Yes.

“The Court: Okay. Excellent. Your election to waive a jury trial and accept a court trial is granted.”

The presentation of evidence in the defendant’s trial commenced on May 29, 2008. Prior to the presentation of evidence, the court stated to defense counsel: “And obviously [the defendant] has elected a court trial, and that election continues.” Defense counsel replied, “That is correct, Your Honor.” At no time following the defendant’s canvass did the defendant, either personally or through his attorney, attempt to revisit the waiver of his right to a trial by jury or request that the defendant proceed to trial before a jury.

The defendant raises the present claim for the first time on appeal and has affirmatively requested review under the doctrine set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d823 (1989). The defendant’s claim is reviewable insofar as the record sets forth the court’s canvass, the defendant’s responses to the court’s canvass and the court’s acceptance of the defendant’s waiver of his right to a trial by jury. Additionally, the claim is constitutional in nature because the defendant asserts that the court, by accepting his waiver, violated his fundamental right to a jury trial, afforded him by the state and federal constitutions. See State v. Ouellette, 271 Conn. 740, 748 n.14, 859 A.2d 907 (2004) (affording Golding review to unpreserved claim that trial court improperly failed to ascertain waiver of right to jury trial knowing, intelligent and voluntary); State v. Mauro, 111 Conn. App. 368, 372, 958 A.2d 1262 (2008) (same). Our focus, therefore, turns to the third prong of Golding, under which the defendant bears the burden of demonstrating that “the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 240.

First, we set forth some relevant legal principles and our standard of review. “The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. . . . Relying on the standard articulated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), we have adopted the definition of a valid waiver of a constitutional right as the intentional relinquishment or abandonment of a known right. . . . This strict standard precludes a court from presuming a waiver of the right to a trial by jury from a silent record. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case. . . . When such a claim is first raised on appeal, our focus is on compliance with these constitutional requirements rather than on observance of analogous procedural rules prescribed by statute or by the Practice Book. . . . Our task, therefore, is to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial. . . . Our inquiry is dependent upon the particular facts and circumstances surrounding [each] case, including the background, experience, and conduct of the accused. ... In examining the record, moreover, we will indulge every reasonable presumption against waiver of fundamental constitutional rights and . . . [will] not presume acquiescence in the loss of fundamental rights. ... In addition, a waiver of a fundamental constitutional right is not to be presumed from a silent record.” (Citations omitted; internal quotation marks omitted.) State v. Gore, 288 Conn. 770, 775-77, 955 A.2d 1 (2008).

In Gore, our Supreme Court addressed the requirements for a knowing, intelligent and voluntary waiver of the right to a trial by jury. The court held that in determining whether a court has properly accepted a waiver of the right, “there must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial because the defendant’s silence is too ambiguous to permit the inference that he or she has waived such a fundamental right. ... A defendant’s personal assertion of a waiver of the right to a jury trial is not conclusive evidence that the waiver was made knowingly, intelligently and voluntarily, but its absence is a fatal blow to the validity of a waiver.” (Citations omitted.) Id., 781-82.

In the present case, it is undisputed that such condition precedent, in terms of a constitutionally valid waiver, was satisfied in that the defendant addressed the court personally and stated on the record that he wanted to proceed to trial before the court, not a jury. This being the case, we must examine the totality of the circumstances, which include the statements made by the defendant to the court, to determine if the defendant’s waiver was knowingly, intelligently and voluntarily made and, thus, was properly accepted by the court.

“In addition to determining that a defendant who seeks to [waive a constitutional right] is competent, a trial court must satisfy itself that the waiver ... is knowing and voluntary. . . . [I]n this sense, there is a heightened standard for [the waiver of a constitutional right], but it is not a heightened standard of competence. . . . Moreover, it is the same standard that is applicable to all criminal defendants who have been found competent to stand trial. Under this standard, [t]he determination of whether there has been an intelligent waiver of [a constitutional right] must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Citations omitted; internal quotation marks omitted.) State v. Ouellette, supra, 271 Conn. 753-54.

Our review of the totality of the circumstances as they appear in the record reveals that the issue of the defendant’s competency was not raised in any manner. Likewise, it is not raised as an issue in this appeal. The record reflects that the defendant was represented by counsel, Pat Bonanno, during the entirety of his trial. The record of the trial does not portray that the defendant did not communicate effectively with his attorney during the trial. To the contrary, during the court’s canvass, the defendant represented to the court that he had discussed his decision to waive his right to a jury trial with his attorney and that he was satisfied with the advice afforded him with regard to that issue. The fact that the defendant was represented by counsel and that he conferred with counsel concerning the right to waive his right to a jury trial supports a conclusion that his waiver was constitutionally sound. See, e.g., State v. Smith, 100 Conn. App. 313, 324, 917 A.2d 1017, cert. denied, 282 Conn. 920, 925 A.2d 1102 (2007).

In considering the background, conduct and experience of the defendant, we look to the record of the trial and, in particular, the court’s canvass of the defendant concerning his waiver. The record reflects that the defendant responded to the court’s inquiries in an intelligent and courteous manner. During the court’s colloquy with the defendant, the defendant represented that he was not under the influence of alcohol, drugs or medications, that he carefully had considered the issue and that he was certain of his decision. During his trial testimony, the defendant testified as to his background and life experience. The defendant testified that he had attended college and a police academy. The defendant testified, as well, that he had been gainfully employed as a teacher’s assistant and a New York City police officer. The defendant’s level of education, and particularly his experience in law enforcement, strongly supports a determination that the defendant would have had a basic understanding of the criminal justice system, including the fact that he had a right to proceed to trial before a jury.

Finally, we look to the court’s statements to the defendant during the canvass. The court unambiguously stated to the defendant that the purpose of his attorney’s motion was to remove the defendant’s case from the jury trial list so that it may be heard by the court. The court stated to the defendant that his decision to waive his right to a jury trial was a permanent one, and questioned the defendant as to whether he had consulted with his attorney with regard to the decision and whether he was “positive” that he wanted to proceed without a jury present. The court’s statements to the defendant left no doubt as to the subject of the waiver and the implications of the waiver. The defendant’s immediate and unequivocal replies to the court’s inquiries reflected his strong desire to proceed to trial before the court, not a juiy.

On the basis of the totality of the circumstances, we conclude that the record establishes that the defendant knowingly, intelligently and voluntarily waived his right to a jury trial. As noted previously; see footnote 4 of this opinion; the procedural rule announced in Gore did not apply to the defendant’s trial; the trial court was under no affirmative obligation to canvass the defendant concerning his waiver. The court, however, did conduct a canvass of the defendant that afforded it a basis on which to determine whether the defendant understood his right to proceed to trial before a jury, understood that he had the option of waiving that right and voluntarily had chosen to forgo that right in favor of a court trial. Thereafter, the court granted the defendant’s request. We reject the defendant’s argument that the court did not conduct an appropriate inquiry prior to accepting the defendant’s waiver.

Apart from arguing that the court’s canvass was not sufficiently probative, the defendant also argues that the court improperly accepted his waiver after having misstated important legal principles related to the right to a juiy trial. Specifically, the defendant observes that the court repeatedly emphasized that, once the court accepted his waiver, he could not thereafter change his mind and elect to proceed to a trial before a jury. The defendant argues that the statements of this nature were legally improper in that they contradict General Statutes § 54-82b (b) and Practice Book § 42-1.

The defendant does not demonstrate how this aspect of his claim is related to the validity of his waiver because he has not meaningfully demonstrated that the court’s statements misled him as to his right to a jury trial, his authority to waive his right to a jury trial and his decision to forgo that right. Any such issues would be relevant to a constitutional analysis of the waiver that was made and accepted by the court. Instead, the defendant argues that the court’s statements misled him as to his right to challenge the validity of his waiver at some later time. Yet, the record does not reflect that the defendant, in fact, attempted to challenge the validity of his waiver at any time prior to filing this appeal. The defendant asserts that the court’s statements concerning the finality of his waiver “likely led to further, unintentional waivers.” The defendant explains: “For example, in reliance upon the court’s insistence that the waiver was absolutely final, the defendant logically would have refrained from any further investigation into the right and the statutory vehicles available to him to remedy the waiver.” We reject the defendant’s assertions that the court’s statements affected the validity of his waiver.

We agree with the defendant that § 54-82b (b) afforded him a statutory right to challenge the validity of his waiver on the ground that he was “not fully cognizant of his rights” or that “the proper administration of justice require [d]” that the judgment obtained be set aside and the case be set for a jury trial. General Statutes § 54-82b (b). We disagree, however, with the defendant’s interpretation of the court’s statements. In discussing the finality of the defendant’s decision to waive his right to a jury trial, the court repeatedly emphasized that the defendant could not change his mind simply because he had rethought his position. A reasonable interpretation of the court’s statements is that the court conveyed to the defendant that the election to proceed before the court, insofar as it was a tactical decision that the defendant had carefully considered, was final; the court made clear that it would not permit the defendant to change his election due to a change in defense strategy once the court had accepted the waiver. The court did not state that the matter could not be revisited at a later time if the defendant did not understand his right to a jury trial, did not understand that he possessed the authority to waive his right or had waived his right involuntarily. For these reasons, the defendant has not demonstrated that the court’s statements contradicted § 54-82b (b) or were legally inaccurate. Apart from concluding that the statements were not legally inaccurate, we also are not persuaded that the court’s statements call into doubt the nature of and, thus, the constitutionality of, the defendant’s waiver.

To the extent that the defendant argues that the court’s comments concerning the finality of his decision contradicted Practice Book § 42-1, the defendant stands on even weaker footing. The record reflects that, at the time the defendant was put to plea, he elected a trial by a jury. This is not a case, therefore, in which a defendant attempted to elect a jury trial after having elected a trial by the court. Thus, we disagree that the court’s comments to the defendant violated the letter or spirit of Practice Book § 42-1 or, more importantly, that they cast doubt on whether the defendant understood that he had a right to a trial by jury, whether the defendant understood that it was his option to waive his right to a trial by jury or whether the defendant’s election to forgo that right was voluntary.

For the foregoing reasons, we reject the arguments raised by the defendant in connection with this claim. The defendant has not demonstrated that a constitutional violation clearly exists and clearly deprived him of a fair trial; the claim fails under Golding's third prong.

II

Next, the defendant claims that the court improperly admitted certain constancy of accusation testimony. We decline to review this unpreserved evidentiary claim.

In his principal brief, the defendant states that the court improperly “admitted constancy of accusation testimony of the details of the victim’s numerous, post-official complaint disclosures, from five different witnesses, resulting in harmful error that substantially affected the verdict.” The defendant raises several arguments in support of his challenge to the admission of this testimony. As a preliminary matter, the defendant invites this court to “reexamine” the constancy of accusation doctrine and to either curtail or abandon it. Next, the defendant argues that the court failed to undertake an analysis on the record as to whether the prejudicial nature of this testimony outweighed its probative value. Additionally, the defendant argues that the court improperly admitted the testimony under the constancy of accusation doctrine because the alleged victim in this case was a male, the testimony went beyond the types of corroborative facts permitted under the constancy of accusation doctrine and the testimony related to complaints made by the victim after he had reported the sexual abuse to an employee of the department of children and families while he was undergoing impatient psychiatric treatment in 2005.

The defendant acknowledges that he did not raise any aspect of this claim before the trial court and, thus, did not preserve the claim for appellate review. He affirmatively requests review of his claim under the Golding doctrine or, in the alternative, asks us to review the claim for plain error. See Practice Book § 60-5.

The defendant has not adequately briefed his claim. Our rules of practice require an appellant to set forth the specific facts of the case that bear on any issue raised in the appeal. See generally Practice Book § 67-4 (c) and (d). Neither the fact section of the defendant’s principal brief nor the portion of his brief related to this claim identifies with any degree of specificity the evidence that is at issue. The defendant refers generally to the testimony of “five different witnesses,” but does not identify these witnesses or, more importantly, the specific portions of their testimony that he challenges for the first time on appeal. The defendant’s analysis of this claim is not tethered to any specific facts or evidence, rather, it consists of criticisms of the constancy of accusation doctrine and reasons why it should not have had any application in this case. It is not apparent from our review of the record that the state called any witness as a constancy of accusation witness or that the court expressly admitted any evidence in reliance on the constancy of accusation doctrine. Furthermore, this court is not an advocate for any party; it would be beyond the proper role of this court in resolving the issues raised on appeal to sift through the voluminous record before us and speculate as to the specific evidence at issue in the present claim. See, e.g., Roberto v. Honeywell, Inc., 43 Conn. App. 161, 163, 681 A.2d 1011, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996), and cases cited therein.

Ill

Finally, the defendant claims that the court improperly permitted the state to present testimony from a witness, M, under the common scheme exception to the general prohibition of prior misconduct evidence. We disagree.

The following procedural facts underlie the defendant’s claim. Prior to the start of the trial, which occurred before the court, Iannotti, J., the court, Reynolds, J., conducted a hearing related to the admissibility of certain uncharged misconduct evidence that the state intended to elicit from M at trial. Essentially, the defendant sought notice of the evidence at issue and asked the court to preclude the evidence. With the consent of the parties, the court treated the matter as a motion to preclude the evidence and conducted a hearing related to the motion during which it heard testimony from the victim and M.

During the hearing, M testified that he is Caucasian and of both Italian and Irish ancestry, and that he met the defendant in 1997, when he was twelve years old and the defendant was twenty-two years old. M testified that, like the defendant, he was a musician in the fife and drum corps and that he got to know the defendant through corps activities. M testified that his relationship with the defendant began when the defendant permitted him to sleep in his tent at a muster in 1997 and that he awoke the next morning to find that he was in the defendant’s arms. After this point, in 1997, for approximately one year, until sometime in 1999, M and the defendant developed a close relationship. The defendant paid attention to M, and frequently provided M with transportation to and from corps activities. The defendant also spent time with M and his family at M’s home and frequently stayed at M’s home over weekends. M testified that the relationship soon became sexual in nature in that, on many occasions, he and the defendant engaged in sexual activities in the defendant’s tent at musters and at M’s home during weekend visits by the defendant, when his parents were asleep. At musters, the defendant acted in a guardian role. M testified that the sexual acts consisted of him performing fellatio on the defendant and the defendant performing fellatio on him. Also, M testified that he and the defendant had engaged in anal sex.

M testified that, during the relationship, the defendant gave him gifts, including a video game, alcoholic beverages and cigarettes. M testified that, during the relationship, the defendant cautioned him not to tell anyone about their sexual activities because doing so could cause trouble for the defendant.

At the hearing, the state presented the victim’s testimony concerning his relationship with the defendant. The victim testified that he is Caucasian and of Irish descent and that he met the defendant in 1998, when he was eleven years old and the defendant was twenty-two years old. The victim testified that, like the defendant, he was a musician in the fife and drum corps and got to know the defendant through their corps activities. The victim testified that he and the defendant were in a relationship between 1999 and sometime in 2001. During this relationship, the defendant befriended the victim and frequently provided the victim with transportation to and from corps activities, including musters. During this relationship, the victim often slept in the defendant’s tent at musters, where the defendant acted as a guardian for the victim. The victim testified that his relationship with the defendant became sexual, escalating from touching and kissing to many instances of oral and anal sex. The victim testified that sexual activities occurred in the defendant’s tent at musters, that he performed fellatio on the defendant and that the defendant performed fellatio on him.

The victim testified that, during the relationship, the defendant gave him gifts including alcoholic beverages, marijuana, clothing, compact discs and food. The victim testified that, during the relationship, the defendant instructed him not to tell anyone about the sexual activities taking place and that, if they were to “go somewhere,” the victim was to tell others that he was sixteen years of age.

Following the evidentiary phase of the hearing, the prosecutor argued that M’s testimony was admissible under the common scheme exception to the prohibition on the admission of uncharged misconduct evidence. The defendant’s attorney objected to the admission of the evidence on the ground that it did not meet the test for admissibility under the common scheme exception and on the ground that the evidence was more prejudicial than probative.

Following the hearing, by way of an oral ruling, the court, Reynolds, J., denied the defendant’s motion to preclude the evidence. The court reviewed the testimony elicited at the hearing and, after discussing the relevant legal principles, determined that the testimony of M, related to prior sexual offenses, was admissible under the common scheme exception. The court stated that the events described by M were “not remote in time at all” from those described by the victim, that the offenses described by the witnesses were “exactly similar” in nature and that the two witnesses were “almost identically situated” in that they were both Caucasian, of a similar age, musicians in the fife and drum corps with the defendant and participants in weekend musters with the defendant. After determining that the proffered evidence met the test for admissibility under the common scheme exception, the court considered whether the evidence was more prejudicial than probative. In this regard, the court stated: “[M’s] testimony is highly probative of a common plan or scheme of sexual misconduct. It couldn’t be any more on point. As to its prejudicial effect, what greatly influenced my decision [to admit the evidence] is the fact that this is to be a court trial, not a trial by jury. . . . [I]n this case, there is no concern about confusion [as to the proper use of this evidence] on the part of the jurors because there are no jurors. Judge Iannotti is a very experienced criminal judge. He’s more than capable of . . . considering said evidence for its proper purpose.” At trial, before Judge Iannotti, the state introduced M’s testimony over the defendant’s objection.

“Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 219, 881 A.2d 160 (2005).

“[P]rior misconduct evidence may be admissible to prove intent, identity, motive, malice or a common plan or scheme. Conn. Code Evid. § 4-5 (b). Thus, the fact [t]hat evidence tends to prove the commission of other crimes by the accused does not render it inadmissible if it is otherwise relevant and material ....

“In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions [set forth in Conn. Code Evid. § 4-5 (b)]. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect ....

“The first prong of the test requires the trial court to determine if an exception applies to the evidence sought to be admitted. . . . When evidence of prior [uncharged] misconduct is offered to show a common plan or [scheme], the marks which the . . . [charged and uncharged misconduct] have in common must be such that it may be logically inferred that if the defendant is guilty of one he must be guilty of the other. . . . [T]he inference need not depend [on] one or more unique features common [to both the charged and uncharged misconduct], for features of substantial but lesser distinctiveness, although insufficient to raise the inference if considered separately, may yield a distinctive combination if considered together. . . .

“To guide this analysis, we have held that [e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan [when] the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness. . . . Our inquiry should focus on each of the three factors because no single factor is likely to be determinative. . . . Furthermore, [w]e are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in [trials of] sex related crimes than [in trials of] other crimes.” (Citations omitted; internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 630-31, 930 A.2d 628 (2007).

The defendant argues that the uncharged prior offenses described by M did not meet the criteria for admissibility for several reasons. The defendant argues that the prior offenses were too remote in time because they occurred “more than a decade before” M testified at trial. The defendant’s argument, however, is based on a misinterpretation of the law. As our decisional law amply reflects, the remoteness in time factor concerns the length of time, if any, between the charged and uncharged misconduct, not the length of time between the uncharged misconduct and the date of the trial. See, e.g., State v. Jacobson, supra, 283 Conn. 632-33 (analyzing length of time between charged and uncharged misconduct); State v. Ellis, 270 Conn. 337, 358-59, 852 A.2d 676 (2004) (same); State v. Aggen, 79 Conn. App. 263, 272, 829 A.2d 919 (2003) (same). Here, we readily conclude that the charged and uncharged offenses occurred within the same time period, thereby raising the probative value of the uncharged offenses. With regard to the second factor, the defendant argues that the prior offenses were dissimilar to the charged offenses because, in contrast to the victim’s allegations, M testified that the defendant sexually abused him at M’s home while his family members were asleep and that sexual contacts took place during approximately one year. That there were some differences in the charged offenses is not dispositive. Here, M and the victim testified to strikingly similar accounts of sexual abuse at the hands of the defendant. Both witnesses testified that the defendant befriended them when they were members of the fife and drum corps, provided them with transportation to corps activities, provided them with various gifts, permitted them to sleep in his tent at musters, engaged in both oral and anal sex with them, engaged in sexual activities with them in his tent at musters and instructed them to conceal their sexual activities with him. We conclude that the many material similarities between the charged and uncharged offenses greatly outweigh the ways in which the offenses are dissimilar. For the foregoing reasons, we conclude that the court properly considered the relevant criteria and determined that the uncharged offenses were relevant as common scheme evidence.

Next, the defendant argues that the court improperly failed to conclude that the evidence was more prejudicial than probative. First, the defendant argues that the evidence did not have any probative value because of “the remoteness of the uncharged misconduct evidence” and “the lack of similarity between the uncharged misconduct and the crimes charged. ” For the reasons set forth earlier in our analysis of this evidence, these arguments are not persuasive. Second, the defendant argues that the evidence should have been precluded because the state did not present any physical evidence or “independent witnesses to the alleged crimes” and the state’s witnesses were inconsistent in several respects. Assuming that these are valid assertions, we fail to see how they affect the admissibility of the uncharged misconduct evidence. Such arguments properly are directed to the weight, if any, that the trier of fact should afford the evidence, not to the admissibility of the evidence. Finally, the defendant asserts that the evidence was inherently prejudicial. “Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the [trier of fact].” (Internal quotation marks omitted.) State v. Smith, supra, 275 Conn. 218. We recognize that the uncharged misconduct evidence concerned the defendant’s sexual abuse of a preteen boy and that evidence of this nature has a tendency to arouse the emotions of the trier of fact. We, however, reject the defendant’s argument that the evidence was unduly prejudicial for two reasons. First, for the reasons set forth previously, we conclude that the evidence had a very high probative value; it strongly suggested a common scheme of criminal activity by the defendant. Second, this case was tried before a judge, not a jury. This distinction “decreased the likelihood that the trier of fact would afford it undue weight.” State v. Boykin, 83 Conn. App. 832, 837, 851 A.2d 384, cert. denied, 271 Conn. 911, 859 A.2d 570 (2004). For the foregoing reasons, we conclude that the court’s admission of the evidence of uncharged misconduct did not reflect an abuse of its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court imposed a total effective term of incarceration of twenty years, suspended after twelve years, followed by twenty years of probation. With regard to one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), the court granted the defendant’s motion for a judgment of acquittal.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       Apart from asserting that the court violated the defendant’s state and federal constitutional rights, the defendant has not provided this court with a separate analysis of his rights under the Connecticut constitution or asserted that the Connecticut constitution affords him greater protections, for purposes of his claim, than its federal counterpart. Accordingly, “for purposes of this appeal we treat the jury trial rights arising from the state and federal constitutions as coextensive.” State v. Gore, 288 Conn. 770, 776 n.7, 955 A.2d 1 (2008).

       The specific issue resolved in Gore was “whether defense counsel validly waived a jury trial on behalf of the defendant . . . when there [was] no evidence that the defendant also personally waived the right on the record.” State v. Gore, supra, 288 Conn. 772. The Supreme Court in Gore, determining what a constitutionally valid waiver of the right to a jury trial must entail, held that the constitution, at a minimum, required that the defendant personally indicate that he wanted to waive his right to a trial by jury and that such affirmative indication appear on the record. Id., 777-78. Exercising its supervisory authority, the court required, in all future cases, that “in the absence of a written waiver, the trial court must canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily.” Id., 786-87.
      The court explained: “Accordingly, in the future, when a defendant, personally or through counsel, indicates that he wishes to waive a jury trial in favor of a court trial in the absence of a signed written waiver by the defendant, the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily. This canvass need not be overly detailed or extensive, but it should be sufficient to allow the trial court to obtain assurance that the defendant: (1) understands that he or she personally has the right to a jury trial; (2) understands that he or she possesses the authority to give up or waive the right to a jury trial; and (3) voluntarily has chosen to waive the right to a jury trial and to elect a court trial.” Id., 787-89. The court ruled that its holding applied prospectively. Id., 786-87. Although the procedural safeguards afforded by the court in Gore, which was officially released on September 23, 2008, did not apply to the present case, in which the court imposed sentence on August 15, 2008, that decision nonetheless is instructive as we analyze the issue before us.

       Prior to accepting the defendant’s waiver, the court did not explicitly state for the record any factual findings it had made with regard to whether the defendant’s waiver was intelligent, knowing or voluntary. The defendant suggests that such omission supports his contention that the court’s acceptance of his request was in error. As a preliminary matter, the defendant does not cite to any authority supporting his assertion that the court was required to explain its ruling by means of particular words or phrases. Rather, the law requires that the court ascertain the nature of the waiver prior to accepting or rejecting it.
      This court does not presume error on the part of the trial court; error must be demonstrated by an appellant on the basis of an adequate record. It is the defendant’s burden to demonstrate that the court erroneously accepted the waiver and to provide this court with a record supporting his claim. The defendant did not request an articulation related to the court’s ruling, and we decline his invitation to infer that the court’s failure to explain its ruling supports his claim that the ruling in any way was improper.

       General Statutes § 54-82b (b) provides: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.”

       Practice Book § 42-1 provides: “The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been waived.”

       In the fact section of his brief, the defendant refers in general terms to testimony presented on June 3,2008. The defendant states that “the majority of [this testimony] was presumably allowed in under the guise of constancy of accusation evidence.” The record reflects that the state presented testimony from four witnesses on that date, and the transcript of the court proceeding on that date, which primarily consists of the examination of these witnesses, is 104 pages in length. Even a cursory examination of the testimony of these witnesses casts doubt on the defendant’s unsupported assertion that these were constancy of accusation witnesses in that their testimony was not presented in accordance with the carefully drawn parameters set forth in State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc). By way of example, two of the witnesses who testified on that date did not testify that they had spoken directly with the victim.
      In the portion of his brief related to this claim, the defendant refers to Rachel Halas and Ralph DeLuca, detectives with the Danbury and Bethel police departments, respectively, who testified on June 3, 2008, that they had investigated the victim’s complaints of sexual abuse. Although these witnesses testified that they had spoken with the victim concerning his complaints and that the victim had related information to them concerning his complaints, it is not at all clear from the record that the court admitted the testimony of these witnesses under the constancy of accusation doctrine or that the testimony of these police detectives who had investigated the victim’s complaint constituted constancy of accusation evidence.
      “A constancy of accusation witness is someone to whom the complaining witness in a sexual assault case has confided in about her assault. . . . For evidence of a prior accusation to be admissible pursuant to the constancy of accusation doctrine, the accusation must have been made before the victim reported the incident to the police. Once the victim has reported the crime to the police, statements to witnesses by the victim no longer serve the purpose for which constancy of accusation testimony is permitted. . . . Further, the constancy of accusation doctrine is limited to testimony only as to the fact and timing of the victim’s complaint and as to details of the assault necessary to associate the complaint with the pending charge.” (Citations omitted; internal quotation marks omitted.) State v. Antonio W., 109 Conn. App. 43, 51, 950 A.2d 580, cert. denied, 289 Conn. 923, 958 A.2d 153 (2008).

       Although the inadequacies of the defendant’s brief preclude review of his claim, we note that, even if, as the defendant suggests, the court improperly permitted the state to present constancy of accusation testimony, we readily would reject the defendant’s request to review this claim under the Golding doctrine. Our Supreme Court has held that claims related solely to the admission of evidence under the constancy of accusation doctrine are not constitutional in nature. See State v. Samuels, 273 Conn. 541, 558, 871 A.2d 1005 (2005); State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996) (en banc).

       Although the court in the present case admitted the evidence of prior uncharged sexual misconduct under the common scheme exception, we note that, in State v. Dejesus, 288 Conn. 418, 470, 953 A.2d 45 (2008), a decision officially released after the court rendered its judgment in the present case, our Supreme Court recognized “a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior.” (Emphasis in original.)

       Apparently, the defendant does not dispute that the state satisfied the third factor concerning the similarities shared by the alleged victims of the charged and uncharged offenses. Our independent review of this criteria reflects that M and the victim were Caucasian males with some degree of Irish ancestry, relatively close in age, members of the fife and drum corps and spent a significant amount of time under the defendant’s watch at the time of the events in question. In light of this evidence, we conclude that the court properly determined that M and the victim were similar victims.


author: PETERS, J.

text:
    IN RE JAIDEN S.

    (AC 30703)
    Bishop, DiPentima and Peters, Js.

    Argued March 10
    officially released May 4, 2010

      Rosemarie T. Weber, for the appellant (respondent father).

      Amor C. Rosario, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Patricia M. Lyga, for the minor child.

         In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PETERS, J.

General Statutes § 17a-112 (j) prescribes the evidentiary burden that the department of children and families must shoulder to terminate the parental rights of a parent whose child has been committed to the custody of the department. In this case, a father challenges the sufficiency of the evidence to establish the statutory requirements relating to past departmental efforts for his reunification with his child and to future prospects for timely reunification with the child. We affirm the judgment of the court finding that the department presented clear and convincing evidence on both issues.

On August 1,2007, the commissioner (commissioner) of the department of children and families (department) filed a petition pursuant to General Statutes §§ 17a-112 (j) (1) and 17a-l 12 (j) (3) to terminate the parental rights of Jaiden S.’s mother and father. After an evidentiary hearing, the trial court, Olear, J., held that the commissioner had made the requisite showing for both parents. Only the father has appealed.

The uncontested history of this case begins on October 29, 2006, when the commissioner took temporary custody of Jaiden S., when he was one month old, because of concerns about his physical well-being. Immediately thereafter, on November 2, 2006, in accordance with § 17a-112 (j) (3) (B) (ii), each parent was “provided specific steps to take to facilitate the return of the child to the parent pursuant to [General Statutes] § 46b-129 . . . .” On November 17, 2006, after a contested hearing, the court, Bear, J., sustained the order for temporary custody. On April 11,2007, after a further contested hearing, the court, Goldstein, J., adjudicated the child to have been neglected and committed him to the commissioner’s care and custody. To date, the child remains committed to foster care.

In the present proceedings, in addressing the adjudicatory phase of the petition for termination of the father’s parental rights, the court found that the commissioner had presented clear and convincing evidence that (1) the department had made reasonable efforts to reunify the father with his child within the meaning of § 17a-112 (j) (1), and (2) the father had failed to achieve a sufficient degree of personal rehabilitation within the meaning of § 17a-112 (j) (3) (B). The father’s appeal challenges the sufficiency of the evidence to support these findings. To prevail on these claims, the father must establish that the findings were clearly erroneous. In re Melody L., 290 Conn. 131, 145, 962 A.2d 81 (2009). We are not persuaded by the father’s claims.

I

HISTORICAL FACTS

Before addressing the specific grounds on which the commissioner based her petition for the termination of the father’s parental rights, the trial court made extensive findings of fact about the father’s personal history. These facts are undisputed.

The father, who is now forty-three years old, was one of several siblings who lived in a home in which the parents engaged in acts of assault, breach of the peace and domestic violence that led to their incarceration. He also reported being molested when he was approximately seven years old.

Although the father did not graduate from high school, he subsequently obtained a general equivalency diploma (GED). He was honorably discharged after six years of service in the Marine Corps. Since 2001, except for periods of incarceration, he has worked as a truck driver.

Between 2001 and 2005, the father was incarcerated for the crimes of enticing a minor in violation of General Statutes § 53a-90a and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). These convictions arose out of his having engaged in sexually inappropriate internet chats with an eleven or twelve year old girl whom he continued to contact even after he had discovered her age. He was ordered to register as a sex offender for a term of ten years pursuant to the provisions of General Statutes § 54-251. During his incarceration, the father completed the tier I and tier II substance abuse series and the basic and advanced alternative to violence project workshops.

The father’s criminal history also includes arrests for unlawful restraint in the first degree, assault in the third degree, reckless endangerment in the first degree, disorderly conduct, assault in the second degree, risk of injury to a child, sexual assault in the second degree, larceny in the fourth degree, possession of burglar’s tools and violations of probation. He has served time in prison as a result of these charges.

When the commissioner took custody of the child, the father, who was living out of state, requested a paternity test. The test, which was administered on January 3, 2007, approximately three months after the commissioner had taken custody of the child, confirmed that he was the child’s father.

During the pendency of these termination proceedings, the father was arrested, at the mother’s request, for criminal violation of a protective order and for harassment in the second degree for an incident that occurred on May 30, 2007. He also was arrested on June 24, 2007, for disorderly conduct and for use of the mother’s motor vehicle without her permission. Finally, on September 22,2008, the father was arrested pursuant to § 54-251 for failure to register as a sex offender, a class D felony.

II

REUNIFICATION

Addressing the sufficiency of the department’s efforts to reunify the father with his child pursuant to § 17a-112 (j) (1), the court found that the department had made numerous referrals and offered a variety of services to the father. These reunification efforts included referrals for case management services, substance abuse evaluation, parenting education, referral to a DOVE program for domestic violence issues, which the father did not complete until September 11, 2008, and a referral for individual counseling that the father did not reengage until September, 2008.

The court acknowledged that some of the father’s delay in accessing these services related to his uncertainty about his paternity of the child. The court, however, rejected his claim that the department had failed to make reasonable efforts to contact him about the termination proceedings against him. Moreover, it held that the father significantly had impaired his access to relevant services by failing to disclose to the department, to the court evaluator and even to his own evaluator, that he was a registered sex offender.

In addition to finding that this record established that the department had made reasonable efforts to reunify the father with his child, the court found by clear and convincing evidence that the commissioner had established that the father is “unable or unwilling to benefit from reunification services.” The court relied on the holding of this court in In re Shaiesha O., 93 Conn. App. 42, 47, 887 A.2d 415 (2006), that “[a] court need not make [a reasonable efforts] finding ... if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts . . . .” Our Supreme Court recently cited this holding in In re Jorden R., 293 Conn. 539, 553, 979 A.2d 469 (2009).

The father’s disagreement with the court’s findings focuses on the alleged inadequacy of remedial services during the period of October 29, 2006, through March, 2007, when he was living in another state and contesting his paternity of the child. Moreover, in light of the department’s delay in providing remedial services once his paternity had been established, he maintains that the commissioner acted prematurely in initiating a termination petition on August 1, 2007, before he had had the opportunity to access and to complete many of the programs that had been recommended to him.

This argument cannot succeed because it fails to address the significance that the court attached to the father’s failure to be forthright in his reporting of relevant facts of his personal history to the department. That failure was a sufficient basis for the court’s finding that he is unable or unwilling to benefit from further remedial services. That finding in turn was a sufficient basis for termination of his parental rights pursuant to In re Shaiesha O., supra, 93 Conn. App. 47.

Ill

PERSONAL REHABILITATION

In addition to its findings on reunification, the court also found that the commissioner had established, by clear and convincing evidence, that, after the child had been committed to the custody of the commissioner, the father had failed to achieve a sufficient degree of personal rehabilitation within the meaning of § 17a-112 (j) (3) (B) (ii). The court acknowledged that the father had completed several remedial programs and had complied with many of the specific steps for rehabilitation that had been prescribed for him but noted that these findings did not definitively establish the father’s rehabilitation. See In re Luis C., 210 Conn. 157, 167-68, 554 A.2d 722 (1989). The court found that the evidence at trial had established that there was no basis to believe that, within a reasonable period of time, the father would achieve a degree of rehabilitation sufficient to believe that he could resume his role as parent in the life of the child. See In re Stanley D., 61 Conn. App. 224, 230, 763 A.2d 83 (2000).

The crucial evidence on the issue of rehabilitation came from competing expert appraisals of the father’s ability to take responsibility for his inappropriate past behavior. Rejecting the contrary view of the father’s psychological evaluator, David M. Mantell, the court found persuasive the expert opinion of psychologist Stephen M. Humphrey, the departmental evaluator, that the father’s rehabilitation was problematic because the father had not yet fully acknowledged his history of interpersonal aggression and inappropriate sexual conduct toward children. The court found the father’s arrest for failure to register as a sex offender on September 22, 2008, to be collaborative evidence of the father’s continuing failure to address these issues.

The court also considered the time frame within which the father might foreseeably achieve a sufficient degree of rehabilitation to take responsibility for the care of the child. The court cited Humphrey’s cautionary observation that one to one and one-half years of rehabilitation would be necessary before the process of reunification with the child could begin. The court found that, in view of Humphrey’s testimony, “taking into consideration the findings made . . . together with the age of the child, the time he has spent in the care of the department and his need to be raised in a stable and secure home, and considering, also . . . the progress and lack of progress made by the father and his unwillingness or inability to address his own needs . . . the father has failed to rehabilitate to a degree so as to allow any belief that he could, in any reasonable time, resume, or assume, his role as a parent for [the child].” Accordingly, it held that the commissioner had established the statutory ground of failure to achieve a sufficient degree of personal rehabilitation to support termination of the father’s parental rights.

The father’s disagreement with this finding does not take issue with any of the specific facts on which the court relied. He maintains, instead, that the court did not assign sufficient significance to the fact that, once his paternity had been established, he made significant progress toward becoming a better parent. Further, he relies on the more optimistic assessment of his own independent evaluator, Mantell.

As an appellate court, we cannot, however, set aside the findings of fact of the trial court unless they are clearly erroneous. In re Melody L., supra, 290 Conn. 145. The father has not met that heavy burden in this case. The court did not disagree with the father’s representation that he has taken the birth of his son to heart and has made significant progress toward addressing his personal problems. The court found, however, as the record demonstrates, that the father’s record of progress has not been flawless and that his child needs permanence now. We are bound by these findings.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that pursuant to Practice Book § 67-13, the attorney for the minor child filed a statement adopting the brief of the commissioner.

       General Statutes § 17a-112 (j) (3) (B) provides for the termination of parental rights when the child “(i) has been found by the Superior Court or Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       General Statutes § 46b-129 (j) provides in relevant part: “Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent . . . [t]he court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent. ...”

       The father did not participate in this hearing.

       The father failed to appear to contest the neglect petition.

       The court denied the father’s posttrial motion for rectification of the record to take note of the fact that, subsequent to the trial, “the registry issue [raised by the father’s failure to register] was disposed of with a nolle.” The court explained that the nolle was irrelevant to the court’s decision because the arrest was itself evidence of involvement with the criminal justice system. The father has appealed from this ruling without presenting a reasoned argument with supporting authority to establish why the court’s action was improper. We are persuaded that the court’s decision was not an abuse of its discretion.

       The father was referred to the DOVE program in June and July, 2007, and did not engage with the program for approximately four months. After missing some sessions, he was discharged from the program, but he reengaged in February, 2008, and followed through to completion in September, 2008.

       The commissioner disputes the implied representation that the department discontinued providing services to the father after the filing of the petition for termination of his parental rights. Notably, the trial court’s memorandum of decision describes a parenting program that the father completed in December, 2007, a program for domestic violence that, after an initial failure, he completed in September, 2008, and a counseling program in which he engaged, first in May, 2008, and then in September, 2008.


author: FLYNN, C. J.

text:
    ROHAN O. GREEN v. YANKEE GAS CORPORATION
    (AC 31129)
    Flynn, C. J., and Beach and Robinson, Js.

    Argued March 23
    officially released May 4, 2010

      Rohan O. Green, pro se, the appellant (plaintiff).

      Sheila A. Huddleston, with whom was Mark K. Ostrowski, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The general verdict rule provides that if a jury returns a general verdict for one party, absent juiy interrogatories, an appellate court will presume that the juiy found every issue in favor of the prevailing party. Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993). The logic underlying the rule is that “[wjhere there was an error free path available to the juiy to reach its verdict, and no special interrogatories were submitted showing which road the jury went down, any judgment rendered on such a verdict must be affirmed. ” Jackson v. H.N.S. Management Co., 109 Conn. App. 371, 373, 951 A.2d 701 (2008). Our Supreme Court has extended the logic of the general verdict rule to nonjury court trials where the trial judge’s actual factual findings provide independent and alternative grounds, distinct from those on which a party appeals, on which the judgment can be supported and affirmed. See In re Jorden R., 293 Conn. 539, 979 A.2d 469 (2009). In In re Jorden R., our Supreme Court decided that where alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant. Id., 556-57.

In this case, the plaintiff, Rohan O. Green, fell into a hole excavated by the defendant, Yankee Gas Corporation. A police officer had shouted out a warning to the plaintiff to avoid the hole; the plaintiff did not heed the warning. On appeal, the plaintiff claims that the court erred in not permitting him to introduce certain regulations of the federal Occupational Safety and Health Administration into evidence concerning the requirements of fencing off such a hole. The plaintiff had offered this evidence to prove the defendant’s negligence, but, when the court refused to admit it, the plaintiff did not take steps to mark it for identification, thereby failing to preserve it for appellate review.

After a court trial, the court independently found that the plaintiffs negligence was responsible for causing his fall, thus barring recovery under our comparative negligence law. It also found that the plaintiff had not proved the nexus between his claims of negligence and the fall sufficient to establish proximate cause, and that he had not proved any resulting damages. These independent findings concerning necessary elements of the plaintiffs cause of action, which the plaintiff has not challenged, must stand. In re Jorden R. counsels that it is not the province of an appellate court to decide moot issues disconnected from the granting of actual relief.

The appeal is dismissed.

In this opinion the other judges concurred.

       Although the proper name of the defendant is Yankee Gas Services Company, because the plaintiffs complaint identified the defendant as Yankee Gas Corporation and the parties proceeded that way at trial, we will do likewise for convenience.