author: HARPER, J.

text:
    JOHN VIOLA ET AL. v. FREDERICK O’DELL
    (AC 28612)
    DiPentima, Harper and Berdon, Js.

      Argued March 18
    officially released July 1, 2008

      Paul A. Catalano, for the appellants (plaintiffs).

      Deborah Etlinger, with whom, on the brief, was Susan E. Evans, for the appellee (defendant).
   Opinion

HARPER, J.

In this legal malpractice action, the plaintiffs, John Viola and Viola Realty, LLC, appeal from the summary judgment rendered by the trial court in favor of the defendant, Frederick O’Dell. The plaintiffs claim that the court improperly (1) concluded that they had failed to demonstrate that they could have succeeded on the merits of their underlying zoning appeal had the defendant filed an appellate brief in a timely manner and (2) failed to consider certain allegedly dispositive evidence. We affirm the judgment of the trial court.

The following undisputed facts gave rise to the plaintiffs’ appeal. On October 23, 2001, a Cromwell zoning enforcement officer ordered the plaintiffs to “[c]ease and [d]esist the landscaping business from 310 Main Street. The landscaping business [is] not permitted in the downtown business zone.” The plaintiffs retained the defendant to represent them with respect to their challenge of the order. The plaintiffs appealed from the order to the zoning board of appeals of the town of Cromwell (board). The board held a public hearing on the matter on March 5, 2002.

At that hearing Viola, the owner and operator of Viola Realty, LLC, testified as to the nature of the plaintiffs’ business. He testified that the business conducts both retail and landscaping activities. The retail portion involves the sale of mulch, stone, wood ties, sand, ice, ice melt, gravel and bushes. No retail sales occur on-site, however. Customers thus do not walk in to browse products or place orders; rather, they place orders over the telephone. Generally, ordered items are then picked up by the plaintiffs from a third party wholesaler and delivered directly to the customer. Inventory items, however, are “sometimes” stored on trucks on-site. The landscaping portion of the business involves services conducted entirely off-site. The landscaping equipment, including trucks, mowers and other similar machinery, is stored on-site.

After the hearing, the board notified the plaintiffs, via letter, that “at its regular meeting of April 2, 2002, [it] voted to deny [their] appeal of the [z]oning [enforcement [officer’s [c]ease and [d]esist [o]rder . . . .” The board’s notice did not delineate any reasons for the board’s decision to deny the appeal. The plaintiffs filed in the Superior Court an appeal from the board’s decision. The defendant, however, failed to file a timely appellate brief with the Superior Court, and the plaintiffs’ appeal was dismissed on this ground.

The plaintiffs thereafter filed this legal malpractice action against the defendant. The parties filed cross motions for summary judgment. After hearing oral argument, the court granted the defendant’s motion and denied the plaintiffs’ motion, reasoning that there was no genuine issue that the defendant’s negligence had not caused any harm to the plaintiffs. This appeal followed.

I

The plaintiffs first claim that the court improperly concluded that no genuine issue existed as to whether the defendant’s negligence had caused the plaintiffs any harm. In furtherance of this claim, they argue that the court improperly determined that they could not have prevailed in their underlying zoning appeal had the defendant filed a timely appellate brief. We disagree.

Before we address the merits of the plaintiffs’ claim, we must first discuss the standard of review and legal principles that will guide our analysis.

“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant the [defendant’s] motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Bagoly v. Riccio, 102 Conn. App. 792, 796-97, 927 A.2d 950, cert. denied, 284 Conn. 931, 934 A.2d 245, 246 (2007). In turn, “the plaintiff in an attorney malpractice action must establish: (1) the existence of an attorney-client relationship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages.” Mayer v. Biafore, Florek & O’Neill, 245 Conn. 88, 92, 713 A.2d 1267 (1998).

The only element at issue on appeal is that of causation. “An issue of causation [in a legal malpractice action] is whether the [claim] could have been pursued. ... If the underlying [claim] was never tried, the client essentially has a double burden of proof. First, the client must show that the attorney was negligent. Second, the client must establish that the underlying claim was recoverable and collectible.” (Citation omitted; internal quotation marks omitted.) Alexandru v. Strong, 81 Conn. App. 68, 76, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). Therefore, for the plaintiffs to demonstrate that the court improperly concluded that no genuine issue existed as to the element of causation, they must persuade us that the court improperly determined that they could not have prevailed in their underlying appeal from the board’s decision that their business was engaged in a nonpermitted use.

To have prevailed in that appeal, the plaintiffs would have needed to demonstrate that there was not “substantial evidence in the record to support the [board’s] determination. . . . The substantial evidence rule is similar to the sufficiency of the evidence standard applied injudicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” (Citation omitted; internal quotation marks omitted.) Clifford v. Planning & Zoning Commission, 280 Conn. 434, 452, 908 A.2d 1049 (2006).

We begin our analysis by looking to the zoning regulations in effect at the time of the board’s determination. Section 2.1 of the Cromwell zoning regulations divides the town into several use districts. The plaintiffs’ business falls within the “downtown business” district. Section 4.2 contains a use regulation table (table), which lists 133 uses and indicates in which use district each listed use is permitted. “Landscaping,” the use that the cease and desist order had sought to prevent, is not among the 133 uses listed in the table. Section 4.1, however, provides in relevant part that “[t]he uses enumerated [in the table] are not exhaustive nor are they meant to cover all possible uses, thus acting as a restrictive table to prevent the development of the non-listed activities. They are to establish a pattern of development for the various use districts thus providing for a homogenous composition of the district.” Thus, the regulations clearly indicate that the uses listed in the table are not exhaustive.

Cognizant of these regulation sections, the court concluded that substantial evidence existed for the commission to have determined that the plaintiffs’ business was most similar to two listed uses, greenhouses and nurseries, and because each of those uses was prohibited in the downtown business area, that landscaping would most likely be prohibited as well. Specifically, the court reasoned that the board may have considered evidence that “the plaintiffs’ business [like greenhouses and nurseries] may have landscaping merchandise, such as plants or mulch, loaded in trucks found on the premises.” We agree with the court.

Furthermore, § 5.6 explains that the purpose of the downtown business district is to “encourage high density, pedestrian-oriented commercial development of a type consistent with the historic character of the area.” Viola testified that “no one walks in” to the plaintiffs’ business and that sales are made exclusively via telephone. Clearly, substantial evidence thus existed to support the conclusion that the plaintiffs’ business is inconsistent with the purpose of the downtown business district.

For these two reasons, it is clear to us that as a matter of law, substantial evidence appears in the record to support the board’s determination that the plaintiffs’ business was engaged in a nonpermitted use. Therefore, we cannot say that the court improperly determined that the plaintiffs could not have succeeded in their underlying zoning appeal, and, a fortiori, we cannot say that the court improperly concluded that no genuine issue existed as to the element of causation. See Mayer v. Biafore, Florek & O’Neill, supra, 245 Conn. 92; Alexandru v. Strong, supra, 81 Conn. App. 76.

The plaintiffs nevertheless argue that their business operated so much like a corporate office, which is a permitted use in the downtown business district, that it was improper for the board to conclude that their business was engaged in a nonpermitted use. The plaintiffs support this argument by indicating that “[w]here more than one interpretation of language is permissible, restrictions upon the use of lands are not to be extended by implication . . . [and] doubtful language will be construed against rather than in favor of a [restriction] . . . .” (Internal quotation marks omitted.) Farrior v. Zoning Board of Appeals, 70 Conn. App. 86, 90, 796 A.2d 1262 (2002); Daughters of St. Paul, Inc. v. Zoning Board of Appeals, 17 Conn. App. 53, 66, 549 A.2d 1076 (1988).

Although this may be so, the objective in reviewing a decision of a zoning board of appeals is not to reassess the matter ab initio. See Clifford v. Planning & Zoning Commission, supra, 280 Conn. 452 (“reviewing court may not substitute its own judgment for that of the [board]”). A reviewing court rather must determine “whether the record before the [commission] supports the decision reached.” (Internal quotation marks omitted.) Id.; see also Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 612, 893 A.2d 431 (2006) (“possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence” [internal quotation marks omitted]). As we have already stated, substantial evidence existed, as a matter of law, to support the board’s decision. Accordingly, the plaintiffs have failed to demonstrate that a genuine issue exists as to whether the negligence of the defendant caused them any harm.

II

The plaintiffs also claim that the court improperly failed to consider certain allegedly dispositive evidence. The plaintiffs argue that subsequent to the filing of their legal malpractice claim, they reached a settlement with the town of Cromwell under which they would be allowed to continue operating their business in the exact same manner, provided they raze and reconstruct the building within which the business operates. They contend that the court inexplicably and improperly failed to consider this fact in rendering summary judgment. Although we have doubts as to the merits of the plaintiffs’ claim, we dispose of the claim on the ground that the only confirmation of this settlement presented to the trial court was an unsigned and unsworn affidavit. As such, an affidavit is of no evidentiary value-. See, e.g., Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984). There was simply no evidence before the court to substantiate the plaintiffs’ claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs also raised an equal protection claim at oral argument. This argument was not briefed, however, and we therefore decline to afford it review. See Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn. App. 63, 78 n.12, 918 A.2d 889 (2007), aff'd, 286 Conn. 548, 944 A.2d 329 (2008).

       The parties have not contested the court’s findings that the plaintiffs and the defendant entered into an attorney-client relationship and that the defendant’s failure to file a timely brief in the underlying matter amounted to negligent conduct.

       For example, the table indicates that the first listed use, “Agency; Real Estate, Insurance” is permitted in the planned office, industrial park, business, industrial, downtown business and waterfront mixed districts but not permitted in the residential and planned residential development districts.

       The question of whether substantial evidence exists is a purely legal inquiry. See Shelton v. Statewide Grievance Committee, 277 Conn. 99, 106-107, 890 A.2d 104 (2006); River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 70, 848 A.2d 395 (2004).

       At oral argument before this court the plaintiffs further argued that their business operated like a bus depot, which also is a permitted use. The plaintiffs have failed to brief this argument, however, and we therefore decline to afford it review. See Bernhard-Thomas Building Systems, LLC v. Dunican, 100 Conn. App. 63, 78 n.12, 918 A.2d 889 (2007), aff'd, 286 Conn. 548, 944 A.2d 329, (2008).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    RONNIE HOLLEY v. COMMISSIONER OF CORRECTION
    (AC 28522)
    Bishop, Gruendel and Beach, Js.
    Argued May 1
    officially released July 1, 2008

      Gennaro Bizzarro, special public defender, for the appellant (petitioner).

      Timothy F. Costello, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Ronnie Holley, appeals following the denial of certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying certification to appeal and improperly rejected his claim that his trial counsel provided ineffective assistance. He also claims that the habeas court made an improper evidentiary ruling that prevented him from proving his claim. We dismiss the petitioner’s appeal.

The petitioner claimed, in his habeas trial, that his trial counsel rendered ineffective assistance because he failed (1) to conduct an adequate investigation into the victim’s prior course of conduct, (2) to impeach the victim’s testimony and (3) to inform the petitioner of the kidnapping charge against him. The court concluded that the petitioner failed to satisfy his burden under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in that he did not establish by a preponderance of the evidence that counsel’s performance was deficient and that the deficient performance prejudiced the defense for any of these claims.

“The standard of review for a habeas court’s denial of a petition for certification to appeal requires the petitioner to prove that the denial of the petition for certification was an abuse of discretion and also that the decision of the habeas court should be reversed on the merits.” Key v. Commissioner of Correction, 106 Conn. App. 211, 212, 942 A.2d 417, cert. denied, 287 Conn. 904, 947 A.2d 342 (2008). To prove an abuse of discretion, the petitioner must demonstrate that the resolution of the underlying claim involves “issues [that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The following facts and procedural history are relevant to our review of the petitioner’s appeal. Following a five day trial, the jury found the petitioner guilty of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The jury found the petitioner not guilty of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). The trial court imposed a total effective sentence of fifteen years imprisonment, suspended after ten years, and ten years probation. The petitioner’s amended petition for a writ of habeas corpus was filed on April 15, 2005, alleging that his trial counsel was ineffective for not having adequately investigated the victim’s prior course of conduct, for not having adequately impeached the victim’s testimony and for not informing the petitioner of the kidnapping charge against him. The habeas court found that the petitioner’s trial counsel sufficiently investigated the victim’s prior course of conduct and that the petitioner failed to provide evidence in support of his claim that counsel did not adequately impeach the victim. Additionally, the court credited testimony that the petitioner was informed of the kidnapping charge against him despite his contrary testimony. The court denied the subsequent petition for certification to appeal, and this appeal followed.

After a careful review of the record and briefs, we agree with the court that the petitioner failed to satisfy his burden of proving that counsel’s performance was deficient. The court’s determination that the petitioner’s trial counsel was not ineffective was a purely factual determination. “[T]he habeas court, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Internal quotation marks omitted.) Vazquez v. Commissioner of Correction, 107 Conn. App. 181, 187, 944 A.2d 429 (2008). Therefore, we defer to the court’s findings.

The petitioner also claims on appeal that the habeas court should have admitted records from Catholic Relief Services because those records would have revealed that the victim received or believed that she received rental assistance contingent on her filing domestic abuse complaints. We are unpersuaded. As asserted at trial, this claim was no more than a theory without any evidentiary basis. Additionally, the regional coordinator for Catholic Relief Services’ “Welfare-to-Work” program testified that although the victim did receive rental assistance from her organization, the assistance was not initiated because of, and was never contingent on, the victim’s filing a domestic violence complaint. As there was no other testimony indicating a link between rental assistance and domestic violence claims, the court did not abuse its discretion by refusing to admit the records. Furthermore, even if the exclusion of the records was improper, any error was harmless because the regional coordinator testified that the records made no mention of domestic violence complaints, and she was available for cross-examination. Because there are no issues that are debatable among reasonable jurists, that a court could resolve differently or that deserve further proceedings, we conclude that the court did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       To the extent that the habeas court failed to address the petitioner’s claim that his trial counsel was ineffective in impeaching the victim’s testimony, the failure of the petitioner to request an articulation renders the record inadequate for review. When “the court’s memorandum of decision is devoid of any findings or analysis on the issue, and . . . the petitioner [does] not seek an articulation, the record is inadequate and we cannot review [the petitioner’s] claim.” Bowden v. Commissioner of Correction, 93 Conn. App. 333, 342, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006).

       At the time of the assaults, the victim was the petitioner’s girlfriend, and the assaults took place in the residence that they shared. State v. Holley, 90 Conn. App. 350, 352, 877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005). Therefore, the petitioner’s claim that the victim believed, or that the rental assistance actually was, contingent on the victim’s filing domestic violence complaints appears to be directed at undermining the credibility of the victim’s testimony.


author: LAVINE, J. FLYNN, C. J,

text:
    STATE OF CONNECTICUT v. CHARLES W. OUTLAW, JR.
    (AC 28390)
    Flynn, C. X, and Gruendel and Lavine, Js.

      Argued January 10
    officially released July 1, 2008

      Christopher Y. Duby, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Louis J. Luba, Jr., senior assistant state’s attorney, for the appellee (state).
   Opinion

LAVINE, J.

The defendant, Charles W. Outlaw, Jr., appeals from the judgment of conviction, rendered after a jury trial, of failure to appear in the first degree in violation of General Statutes § 53a-172. On appeal, the defendant claims that the court improperly (1) denied his motion for a judgment of acquittal, as there was insufficient evidence from which the jury reasonably could have found that he wilfully failed to appear for sentencing, and (2) permitted the state to introduce evidence that he pleaded guilty to two felonies, including the names of the felonies. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In April, 2001, the defendant was charged with attempt to commit assault in the first degree and assault of a police officer (2001 charges). On February 3, 2003, the defendant pleaded guilty to the 2001 charges under the Alford doctrine. In exchange for his plea, the defendant agreed to be sentenced to ten years incarceration, execution suspended after four years, and three years of probation. During the plea canvass, the court, Handy, J., advised the defendant that sentencing would take place on March 28, 2003, and that if he did not appear at sentencing, he faced potential penalties. Judge Handy also informed the defendant that a member of the office of adult probation would interview him prior to sentencing to prepare a presentence investigation report and that if he failed to cooperate with the office of adult probation, the court would sentence him nonetheless. The defendant was represented by counsel at the plea proceeding.

On March 28, 2003, at 10:07 a.m., when Judge Handy called the defendant’s case for sentencing, she heard no response from either the defendant or his counsel. Judge Handy, therefore, ordered the defendant’s $250,000 surety bond forfeited and that he be rearrested. The defendant was arrested pursuant to the court’s order on June 10, 2003, and charged with failure to appear in the first degree. He was sentenced on the 2001 charges in accordance with the February 3, 2003 plea agreement on September 10, 2003.

The defendant was tried to the jury on the charge of failure to appear in May, 2004. During its case-in-chief, the state placed in evidence the information and substitute information on the 2001 charges, the information on the charge of failure to appear, and the March 28, 2003 arrest warrant. The state also placed in evidence the appearance bond that the defendant had signed with regard to the 2001 charges.

The defendant testified that he was in the courthouse, outside Judge Handy’s courtroom at 9:30 a.m. on March 28, 2003, waiting for his attorney, William Palmieri. According to the defendant, he waited for two hours before telephoning Palmieri, who was in another courthouse. The defendant further testified that Palmieri told him that he, Palmieri, would call the court, obtain a continuance of the sentencing and inform the defendant of the new sentencing date. The defendant also testified that Palmieri told him that he could leave the courthouse. The defendant testified that he left the courthouse, expecting that Palmieri would call and tell him when next to appear in court. The defendant explained that he did not cooperate with the pretrial sentencing investigation because he intended to file a motion to withdraw his guilty plea. On cross-examination, the defendant, having been convicted of felonies on three prior occasions, acknowledged that he knew that he was supposed to be in court on March 28, 2003. The defendant testified that prior to leaving the courthouse on March 28,2003, he did not speak to any court personnel. At the close of evidence, the defendant moved for a judgment of acquittal. The court, Espinosa, J., denied the motion. The jury found the defendant guilty of failure to appear in the first degree, and he was sentenced to two years in prison consecutive to the sentence he was then serving.

I

The defendant’s first claim is that the court improperly denied his motion for a judgment of acquittal, claiming that there was insufficient evidence by which the jury could have found that he wilfully failed to appear for sentencing on March 28, 2003. We disagree.

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jmy is permitted to consider the fact proved and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Rice, 105 Conn. App. 103, 107, 936 A.2d 694 (2007), cert. denied, 285 Conn. 921, 943 A.2d 1101.

General Statutes § 53a-172 (a) provides in relevant part: “A person is guilty of failure to appear in the first degree when (1) while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear . . . .” (Emphasis added.) “[T]he word wilful means doing a forbidden act purposefully in violation of the law. It means that the defendant acted intentionally in the sense that his conduct was voluntary and not inadvertent .... Thus, wilful misconduct is intentional misconduct, which is conduct done purposefully . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Khadijah, 98 Conn. App. 409, 415, 909 A.2d 65 (2006), appeal dismissed, 284 Conn. 429, 934 A.2d 241 (2007).

“In order to prove the ‘wilful’ element of General Statutes § 53a-172, the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice.” (Internal quotation marks omitted.) State v. Laws, 39 Conn. App. 816, 819, 668 A.2d 392 (1995), cert. denied, 236 Conn. 914, 673 A.2d 1143 (1996).

“Because direct evidence of the accused’s state of mind is rarely available . . . intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Rice, supra, 105 Conn. App. 108. “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) Id., 107.

During its case-in-chief, the state placed in evidence transcripts of the defendant’s plea proceeding before Judge Handy, during which she admonished the defendant to appear for sentencing or risk penalty. The appearance bond on the 2001 charges, which the state placed in evidence, was signed by the defendant and stated in relevant part: “IF I FAIL TO APPEAR ... I will be committing the crime of FAILURE TO APPEAR and be subject to the following penalties . . . ONE YEAR IN PRISON OR $2,000 FINE OR BOTH, if I am charged with a Misdemeanor(s). FIVE YEARS IN PRISON or $5,000 FINE or BOTH, if I am charged with a Felony . . . .” The defendant was fully familiar with the criminal justice system, having been convicted of felonies on several occasions prior to the 2001 charges, and he admitted that he knew he was required to appear for sentencing on March 28, 2003.

In arguing to Judge Espinosa that the motion for a judgment of acquittal should be granted, defense counsel stated that the defendant was in the courthouse on the date in question but left because his counsel, who was not present, told him that he would obtain a continuance and notify him of the rescheduled date for sentencing. The state argued in response that the defendant’s testimony as to why he did not appear in Judge Handy’s courtroom or speak with court personnel was a matter of credibility for the jury to decide. In denying the defendant’s motion for a judgment of acquittal, Judge Espinosa cited evidence that Judge Handy specifically told the defendant to appear on March 28, 2003, and that the defendant had experience with the criminal justice system and was aware of the consequences of failing to appear.

On the basis of our review of the record, we conclude that there was sufficient evidence by which the jury could have found that the defendant wilfully failed to appear for sentencing. The state presented evidence that the defendant received notice to appear, and the defendant testified that his counsel told him that he could leave. It is not within the purview of appellate courts to analyze the process by which a jury reaches its verdict. Under the standard of review applicable to the facts of this case, the jury reasonably could have found, on the basis of the evidence presented and the reasonable inferences to be drawn therefrom, that the defendant’s actions were intentional and that he therefore wilfully failed to appear for sentencing on March 28, 2003. Moreover, the jury was entitled to disbelieve the defendant’s uncorroborated testimony that he was in the courthouse on that date. This court “must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 564, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007). For these reasons, we conclude that the court did not improperly deny the defendant’s motion for a judgment of acquittal.

II

The defendant’s second claim is that the court improperly permitted the state to introduce the defendant’s guilty plea to the charges of assault of a police officer and attempt to commit assault in the first degree, as the evidence was irrelevant and its prejudicial effect greatly outweighed its probative value. We reject this claim.

The following facts are relevant to our review of the defendant’s claim that Judge Espinosa improperly permitted into evidence the names of the felonies to which the defendant pleaded guilty. Prior to the start of evidence on May 7, 2004, the prosecutor informed the court that he intended to offer into evidence two transcripts of the court proceedings on the 2001 charges and asked whether he could read the transcripts into the record. Defense counsel inquired whether the state intended to put the defendant’s entire February 3, 2003 guilty plea into evidence. The prosecutor responded that he did. Defense counsel argued that the entire plea was not probative of whether the defendant had violated § 53a-172 (a). The defendant was willing to stipulate that he was accused of a felony as required by the statute. Defense counsel further argued that the facts underlying the 2001 charges were not relevant. The court reviewed the transcript of the defendant’s plea and ordered that the facts underlying the 2001 charges be redacted. The court also ordered the state to redact the penalties for the 2001 charges discussed in the defendant’s plea canvass. The court refused to order the state to redact the names of the felonies with which the defendant was charged, stating, “That’s part of the—the crime that he was on bail on was a felony.”

The state’s first witness was Gaynell Barrow, the acting deputy clerk in the geographical area number fifteen courthouse. Through Barrow, the prosecutor offered into evidence, as a business record, the “court information sheet on which information is recorded by the clerk of the procedures that happened in court.” Defense counsel objected to certain information contained on the information sheet, arguing that it was prejudicial to the defendant. The prosecutor argued that all of the information on the sheet was relevant because it demonstrated that the defendant was familiar with court procedures. The defendant had been in court seventeen times on the 2001 charges, and he had failed to appear in the case once before. The information sheet documented that the first rearrest order had been vacated subsequently. In the prosecutor’s words, the information sheet demonstrated that the defendant was familiar with the procedures to be followed if he failed to appear in court. The court permitted the state to put the entire information sheet into evidence. It was relevant to the defendant’s familiarity with the court proceedings, the length of time the case had been pending, and the defendant’s wilfulness and knowledge of his obligation to appear. The court further found that its probative value outweighed any prejudice to the defendant.

The prosecutor indicated that he intended to place in evidence the defendant’s appearance bond, the substitute information that reflected the defendant’s Alford plea and the transcript of the March 28, 2003 proceeding. Defense counsel argued that the documents were prejudicial to the defendant and cumulative. The prosecutor argued that the documents were admissible in full to demonstrate that a substitute information was filed, that the charges against the defendant were still felonies and that the defendant was present in court on February 3, 2003, to enter a plea but was not present on March 28, 2003. The court overruled the objection, concluding that the evidence was relevant and that “the prejudice does not outweigh the probative value.”

The prosecutor also indicated that he intended to enter into evidence the information sheet for the defendant’s arraignment on June 11, 2003, for the purpose of showing that subsequent to Judge Handy’s issuing a rearrest warrant, the defendant did not move to vacate the rearrest and that the 2001 charges were bifurcated from the charge of failure to appear. Defense counsel again argued that those documents were cumulative and being put into evidence to prejudice the defendant. The court overruled the objection, stating that the documents were relevant to the issue of wilfulness, as the defendant had an opportunity to appear in court and correct any misunderstanding about his failure to appear. The court ordered, however, that the sentence the defendant received was to be redacted.

The state also intended to put in evidence the defendant’s rearrest warrant issued by Judge Handy. Defense counsel objected to the document because all of the crimes charged in connection with the 2001 charges appeared on the warrant and in duplicate. Judge Espinosa ordered the state to redact all of the 2001 charges referred to in the warrant, including the statute designations and offense classifications.

The abuse of discretion standard applies to our review of the defendant’s claim. “[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] 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, and only upset it for a manifest abuse of discretion. . . .

“Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . The proffering party bears the burden of establishing the relevance of the offered [evidence].” (Citation omitted; internal quotation marks omitted.) State v. Lemay, 105 Conn. App. 486, 491-92, 938 A.2d 611, cert. denied, 286 Conn. 915, 945 A.2d 978 (2008).

“[E]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... 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 jury.” (Internal quotation marks omitted.) State v. Bennett-Gibson, 84 Conn. App. 48, 66, 851 A.2d 1214, cert. denied, 271 Conn. 916, 859 A.2d 570 (2004).

On the basis of our review of the record, including the transcript and the exhibits, we conclude that the court did not abuse its discretion in admitting the content of the documents at issue. The defendant argues that the names of the felonies are irrelevant and that all that was necessary for the state to prove the failure to appear charge was the fact that he had been charged with a felony or felonies. The defendant claims that naming the felonies was particularly harmful because one of the felonies was assault of a police officer. He supports his position with the fact that the court instructed the jury that the charges to which the defendant pleaded guilty were felonies, without naming them. He also claims prejudice because the evidence was cumulative.

In response, the state argues that the names of the 2001 charges were relevant, as the names of the crimes establish that they are felonies and that the defendant had a motive for not appearing, i.e., to avoid incarceration and other serious penalties, and for that reason his failure to appear was wilful. We agree with the state.

The state had the burden to demonstrate the relevance of the proffered evidence, namely, that the defendant’s failure to appear was wilful. Ordinarily, “evidence concerning other crimes of which the defendant has been charged or convicted, due to its prejudicial nature, is inadmissible. . . . Such evidence is admissible, however, if it is probative of motive, intent, identity, a system of criminal activity, or the credibility of the defendant’s testimony.” (Citation omitted.) State v. Candito, 4 Conn. App. 154, 161, 493 A.2d 250 (1985) (claim that court improperly admitted specific crimes of which defendant found guilty). In Candito, this court concluded: “The state had to prove beyond a reasonable doubt that the defendant while charged with the commission of a felony, wilfully failed to appear. The five felony charges to which the defendant pleaded guilty were serious crimes involving guns, drugs, and burglary for which he faced sentencing and probable incarceration when he failed to appear. Evidence of these underlying offenses was both relevant and material to two elements of the crime of failure to appear and was properly admitted by the trial court.” (Internal quotation marks omitted.) Id.

As we noted in part I, generally, there is no direct evidence of a defendant’s state of mind, and intent must be proved by circumstantial evidence. See, e.g., State v. Salaman, 97 Conn. App. 670, 677, 905 A.2d 739, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006). The documents at issue, as the court noted, contained circumstantial evidence of the defendant’s familiarity with court proceedings that was relevant to the element of wilfulness. We are unable to conclude that the disputed information in the documents was more prejudicial than probative. The court was careful to redact any information in the documents that was not relevant to the charge of failure to appear, thus lessening the prejudicial effect. See State v. Wild, 43 Conn. App. 458, 464, 684 A.2d 720 (measures devised by court to reduce prejudicial effect of evidence militates against finding of abuse of discretion), cert. denied, 239 Conn. 954, 688 A.2d 326 (1996).

Moreover, even if the court improperly admitted the names of the 2001 charges, which we conclude was not the case, the error was harmless. “When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... As [our Supreme Court has] recently noted, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 641, 930 A.2d 628 (2007). Our determination of harmlessness is guided by various factors that have been articulated as relevant to the question of evidentiary harmlessness, “such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Internal quotation marks omitted.) Id., 641-42.

Section 53a-172 required the state to prove that the defendant was charged with a felony and that he wilfully failed to appear. We note first that the defendant was willing to stipulate that at the time he failed to appear, he had been charged with felonies. The court instructed the jury that the defendant was charged with felonies at the time he failed to appear. Admission of the names of the felonies, therefore, was to some extent cumulative. The jury also heard evidence that the defendant had three prior felony convictions and that he knew that he would be punished if he failed to appear. The defendant has not persuaded us, given the state’s strong case against him, that the claimed error substantially affected the verdict.

The judgment is affirmed.

In this opinion GRUENDEL, J., concurred.

FLYNN, C. J,

concurring. I agree with the majority’s conclusion that the judgment of the trial court must be affirmed and with much of its reasoning. I write separately, however, to explain a factor that was critical to my agreement with part I of the majority decision.

“[T]o secure a conviction for failure to appear. . . the state must prove beyond a reasonable doubt that the defendant was legally ordered to appear . . . that he failed to appear and that such failure was wilful. To prove the wilful element of failure to appear the state must prove beyond a reasonable doubt . . . that the defendant received and deliberately ignored a notice to appear . . . .” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 568, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007).

In this appeal, the defendant, Charles W. Outlaw, Jr., claims that the court improperly denied his motion for a judgment of acquittal on the basis of insufficient evidence. I agree with the majority’s conclusion that the evidence was sufficient to support a conviction under General Statutes § 53a-172 (a) (1) because the juiy was free to make an independent assessment of the defendant’s testimony. It did not have to believe that the defendant was present in the courthouse and that he left the courthouse on instruction from his attorney.

My concern lies not in what the majority opinion says, but in what it does not say. On a daily basis, defendants are instructed by their attorneys, by court personnel and by prosecutors that their cases will not be going forward on that particular day or that a dismissal or nolle will be recommended and, therefore, that they need not be present and are free to leave. This avoids wasting the time of both the court and Connecticut citizens who are called to court when, for one good reason or another, cases cannot be heard or disposed of on that day or can be disposed of quickly without the presence of the defendant. Early every morning, lines form in the courthouses of our Superior Courts, filled with defendants waiting to meet with prosecutors on motor vehicle infractions. Many of these defendants are told that the case will be nolled for various reasons and that they should leave the courthouse. Unless the presiding judge has forbade such common practices a defendant should be able to rely on such statements without facing criminal charges.

In the present case, the defendant submitted to the court a request to charge the jury on the element of wilfullness, which provided in relevant part: “Wilfully, as in General Statutes § 53a-172, implies doing a forbidden act purposely in violation of the law. ... In order to prove that the defendant wilfully failed to appear before the [c]ourt, the [s]tate must prove beyond a reasonable doubt that the defendant purposely ignored his obligation to appear in court. If you believe the defendant physically went to the courthouse on March 28, 2003, to meet his lawyer in order to attend court and thereafter, when his lawyer failed to appear in the courthouse, the defendant contacted his lawyer and was advised that his lawyer was in another court and would obtain a new court date for the defendant, then you must find that the defendant did not deliberately ignore his obligation to appear in court as scheduled.” The court, however, did not include this request in its charge to the jury. In this appeal, the defendant does not claim that the court improperly failed to give this requested instruction. It is for this reason that I agree with the majority’s decision.

       See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Pursuant to the Alford doctrine, a defendant is not required to admit guilt but consents to being punished in order to avoid the risks of a trial.

       Judge Handy stated to the defendant: “I just want you to be aware of the fact that you better be here on the day I sentence you. Do we understand each other?” The defendant responded, “Yes.”

       Judge Handy stated that the defendant “did not show up for his presentence investigation.”

       By order of the Superior Court, Silbert, J., Palmieri was suspended from the practice of law for one year effective April 1, 2003, three days after the defendant was to be sentenced. The parties, however, stipulated that Palmieri’s suspension was not related to his representation of the defendant in this case. Nonetheless, in his appellate brief, the defendant makes much of Palmieri’s suspension. The defendant, however, failed to call Palmieri to testify at trial.

       On cross-examination, the jury heard the following:
      “[The Prosecutor]: So, again ... as reflected ... in the transcript, and you were there for the court hearing, right, on February 3, 2003?
      “[The Defendant]: Yes.
      “[The Prosecutor]: It says, page ten ... . ‘The Court. And you understand [that] once I impose and accept this . . . sir, you’re not going to have an opportunity to change your mind; do you understand that?’ And you answered, ‘yes,’ correct?
      “[The Defendant]: (unintelligible answer)
      “[The Prosecutor]: And then it says [that] the court states [that] ‘the exception is the rule, that is, if ... on the date that I sentence you, for any reason I cannot go along with this agreement, I will allow you to withdraw your plea and continue to go to trial. Do you understand that?’ Your answer was ‘yes.’ That’s in the transcript. You were there for that, right?
      “[The Defendant]: Yes.
      “[The Prosecutor]: Okay. So, but . . . it’s your claim that you went to court on March 28, 2008, with the intent of vacating your pleas, correct?
      “[The Defendant]: Yes.
      “[The Prosecutor]: Because [the] bottom line is [that] you just weren’t happy—you weren’t happy with the disposition that . . . had been arranged?
      “[The Defendant]: No.
      “[The Prosecutor]: You just didn’t want to . . . follow through with that agreement, correct?
      “[The Defendant]: That agreement, no.”

       Because we decide this appeal on the basis of the credibility determinations the jury was entitled to make, this case does not require us to consider whether reliance on the advice of counsel is a defense to a charge of failure to appear.

       The defendant’s statement of this claim is unclear. The state contends that at trial, the defendant did not object to the fact that he pleaded guilty to two felonies from being placed in evidence and, therefore, that portion of his claim is not reviewable. Our review of the transcript reveals that the defendant objected only to the names of the 2001 charges to which he had pleaded guilty from being admitted in evidence. In his brief to this court, the defendant’s argument is limited to the names of the felonies to which he pleaded guilty. Our review is confined to the court’s permitting to be put into evidence the names of the felonies to which the defendant pleaded guilty, not the fact that he pleaded guilty.

       There was no evidence before the jury that the attorney ever appeared in the New Britain courthouse on March 28, 2003, the day that the defendant was to be sentenced. Consequently, without his attorney present, the defendant could not have been sentenced on that day. See State v. Williams, 199 Conn. 30, 45, 505 A.2d 699 (1986) (under both federal and state constitutions, defendant has due process right to assistance of counsel during sentencing); James L. v. Commissioner of Correction, 245 Conn. 132, 144, 712 A.2d 947 (1998) (sentencing process is critical stage of criminal proceeding).


author: ROBINSON, J.

text:
    STATE OF CONNECTICUT v. CLAUDE L. PERRY, JR.
    (AC 27289)
    Gruendel, Robinson and Foti, Js.

      Argued March 27
    officially released July 1, 2008

      Lauren Weisfeld, senior assistant public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Kevin S. Russo, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

ROBINSON, J.

The defendant, Claude L. Perry, Jr., appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), and attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1). On appeal, the defendant claims that the trial court improperly (1) referred to the complainant as “the victim” in its jury charge and (2) instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found that the defendant stabbed the victim, Annie Boddie, in the face, neck and chest, causing her right lung to collapse partially. On April 6, 2005, the defendant was charged by substitute long form information with (1) assault in the first degree with a dangerous instrument in violation of General Statutes § 53a-59 (a) (1), (2) robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), (3) robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), (4) kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), (5) attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), and (6) attempt to commit robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (1). Following a jury trial, the defendant was convicted of assault in the first degree and attempt to commit assault in the first degree. He was sentenced to twenty-three years incarceration, ten of which are mandatory, followed by ten years of special parole with special conditions. This appeal followed. Additional facts and procedural history will be set forth as necessary.

The defendant claims on appeal that the court improperly instructed the jury in referring to Boddie as “the victim” and in defining reasonable doubt, thereby depriving him of his constitutional rights to due process of law. He did not preserve these issues for appeal and therefore seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

We conclude that the defendant’s claims are reviewable under Golding because the record is adequate for review and the claims are of constitutional magnitude. “[A]s to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if ... it is reasonably possible that the jury was misled . . . .” (Internal quotation marks omitted.) State v. Aviles, 107 Conn. App. 209, 230, 944 A.2d 994, cert. denied, 287 Conn. 922, 951 A.2d 570 (2008). We also conclude that his claims fail to satisfy Golding’s third prong.

We now set forth the relevant legal principles that govern our resolution of the defendant’s claims. The standard of review for claims of instructional impropriety is well established. “The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [it] might find to be established .... When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party .... In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial.” (Internal quotation marks omitted.) State v. Blango, 102 Conn. App. 532, 543, 925 A.2d. 1186, cert. denied, 284 Conn. 913, 931 A.2d 932 (2007).

I

The defendant first claims that the court’s reference to Boddie as “the victim” in its final jury instructions violated his due process rights. He argues that the court used the term “the victim” to refer to Boddie at least eighteen times, thereby depriving him of his rights to be presumed innocent and to be tried fairly. We disagree.

The court gave the following instructions on the counts of robbery in the first degree: “Physical force is a common, readily understandable expression, which has its ordinary meaning in the everyday . . . use of language. It means the application of external physical power to the person. It can be effected by the hand or other part of the actor’s body applied to the victim’s body. It can be effected by the use of a weapon. In other words, the expression is general and unlimited in regard to the means by which it can be applied or inflicted. Physical force against a person may take many forms, but must be for the purpose of committing a larceny.” (Emphasis added; internal quotation marks omitted.)

The court gave the following instructions on the count of kidnapping in the first degree, in which it used the word “victim” eighteen times: “The defendant is charged in the fourth count with the crime of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) of our Penal Code, insofar as it is relevant here, which provides as follows: A person is guilty of kidnapping in the first degree when he abducts another person and he restrains the person abducted with intent to inflict physical injury upon her.

“For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: (1) that the defendant abducted Annie Boddie; (2) that the defendant unlawfully restrained the person he abducted; and (3) that he did so with the intent to inflict physical injury upon her.

“I shall now define for you the various terms used in this statute. The term abduct means to restrain a person with intent to prevent her liberation by either (A) secreting or holding her in a place where she is not likely to be found or (B) using or threatening to use physical force or intimidation. If the abduction is established by proof of hiding or secreting, there need be no specific proof of the use of force but merely proof that the defendant effectively secreted the victim or left that person in a place where she was not likely to be found. Abduction need not be proved by establishing the use of force if the proof establishes that the defendant threatened its use in such manner that the victim reasonably believed force would be applied to her if she sought to escape or to thwart the abductor’s intention.

“The term restrain means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with her liberty by moving her from one place to another or by confining her either in the place where the restriction commences or in a place to which she has been moved without consent. As used herein, without consent means, but it is not limited to, deception.

“Physical injury means impairment of physical condition or pain.

“As you can see, the abduction and restraining must be intentional. There must be an intent to interfere intentionally with the victim’s liberty and an intent to prevent the victim’s liberation, either by secreting or hiding her in a place where she is not likely to be found or by using or threatening to use physical force or intimidation.

“Please recall that a person acts intentionally with respect to a result, defining an offense, when his conscious objective is to cause such result, as well as my other instructions on intent, which are applicable here.

“Thus, either the victim must have been moved from one place to another or the victim must have been confined in the place where the restriction first began or in the place to which she has been moved without her consent.

“There is no special requirement that the restraint be for any particular length of time or the victim may be moved over any—or that the victim be moved over any particular distance. Any time period of restraint and any distance of moving of the victim is sufficient to constitute these elements of kidnapping. You may, however, consider the length of time and distance together with all other circumstances in determining the question of intention.

“The law, which makes kidnapping criminal, punishes interference with personal liberty in restricting the victim’s freedom of movement. So, you cannot find kidnapping until you first find it established that there was such restriction of movement and that it has been done intentionally; that is, has been done without right or authority of law and that it has had the effect of interfering substantially with the victim’s liberty.

“Abduction may be established by satisfactory proof that the victim has been unlawfully restrained and that, with the intent to prevent her liberation, the defendant restrained her by using or threatening to use physical force or intimidation.

“Abduction need not be proved by establishing the use [of] force or intimidation if the proof establishes that the defendant threatened its use in such manner that the victim reasonably believed that force would be applied to her if she sought to escape or to thwart the abductor’s intention.

“The essential nature of kidnapping requires that before you convict, you must find that the restraint and the abduction were done without the consent of the alleged victim. Thus, if the victim consented, this element of the offense would be negated, and a verdict of not guilty would be required.

“The consent required to negate this element, however, must be actual and real, and not just mere surface acquiescence induced by deception, force, fear or shock. In other words, it must be a truly voluntary and willing act of consent with no compulsion or deception. Consent may be expressed or it may be implied from all the circumstances.

“Whether or not the victim consented is a question of fact for you to determine from all the circumstances that have been proven to you. The defendant, however, does not have to prove consent. The state has the burden to establish lack of consent beyond a reasonable doubt.

“The term physical force has its everyday meaning. It includes any violence or superior physical strength against the victim. It is for you to decide whether the evidence proves that physical force was used by the defendant, and whether it actually produced and resulted in the accomplishment of the restraint which is charged.

“But even the use of physical force need not be proved if the evidence in your estimation proves that the restraint was accomplished by intimidation. This requires that the defendant’s words or acts placed the victim in a state of fear. Such intimidation may be found in a threat or threats to inflict injury made by one with the apparent power to carry out these threats. In any event, to constitute intimidation and thus remove the need to prove actual lack of consent, the proof must convince you that the defendant’s words or acts, under the circumstances as they appeared at the time and place in question, enabled the defendant to carry out and effect the restraint or removal by placing the victim in terror.

“The next term to be defined is unlawfully. Unlawfully means simply without right, without the right to do so.

“The final element of this crime is that the defendant acted with the intent to inflict physical injury upon Annie Boddie, as I have defined physical injury.

“If you find that the state has proven all these elements beyond a reasonable doubt, your verdict would be guilty. If, however, you do not find all these elements proven beyond a reasonable doubt, your verdict would be not guilty.” (Emphasis added; internal quotation marks omitted.)

In the present case, the court began and ended its instructions by referring to Boddie by name and did not refer specifically to her as “the victim.” With respect to its definition of physical force, the court used the term “victim” to describe the relationship of a defendant’s body to the victim’s body. With respect to the instructions for kidnapping, the court used the term “victim” in the context of a definition in which there would be a perpetrator and a victim. Finally, the jury’s verdict suggests that the court’s use of the term “victim” did not prejudice the defendant. The jury found the defendant not guilty of the robbery and kidnapping counts for which the court used the term “victim” in its final charge. Therefore, we conclude that it was not reasonably possible that the court’s use of the term “victim” misled the jury.

II

The defendant next claims that the court improperly instructed the jury on reasonable doubt, thereby violating his constitutional rights to be presumed innocent, to have the state prove his guilt beyond a reasonable doubt, to due process of law and to a fair trial. We disagree.

The defendant challenges the following language: “[Reasonable doubt] is such a doubt as in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance. ... It is, in other words, a real doubt, an honest doubt . . . that has its foundation in the evidence or lack of evidence.”

We conclude that the defendant’s claim is without merit. Our Supreme Court has held that a trial court properly may use the language challenged by the defendant to explain reasonable doubt. See, e.g., State v. Colon, 272 Conn. 106, 232-34 & 232 n.83, 864 A.2d 666 (2004) (rejecting constitutional challenge to instruction that reasonable doubt is “areal doubt, an honest doubt,” and a kind of doubt “that in the serious affairs that concern you, you would heed” [internal quotation marks omitted]), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Ferguson, 260 Conn. 339, 371, 796 A.2d 1118 (2002) (“[w]e consistently have held that the definition of reasonable doubt as a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence . . . and as a doubt which in the serious affairs which concern you in every day life you would pay heed and attention to does not dilute the state’s burden of proof when such definitions are viewed in the context of an entire charge” [internal quotation marks omitted]); State v. Griffin, 253 Conn. 195, 207, 749 A.2d 1192 (2000) (noting that United States Supreme Court has upheld explanation that reasonable doubt is doubt “that would cause a reasonably prudent person to ‘hesitate’ to act in matters of importance”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also referred to as Claude L. Perry II and Claude Perry in the proceedings at trial and on appeal. We rely on the long form substitute information in which the defendant was referred to as Claude L. Perry, Jr.

       Under Golding, a “defendant can prevail on a claim of constitutional error not preserved at trial only if all of 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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239—40.

       The defendant also seeks plain error review of his claims. “The plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Internal quotation marks omitted.) State v. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005); see also Practice Book § 60-5. We conclude that plain error review is not warranted under the circumstances presented. See State v. Arroyo, 284 Conn. 597, 615-16 n.13, 935 A.2d 975 (2007).

       The defendant further claims that the court’s instructions violated his rights under article first, §§ 8 and 19, of the constitution of Connecticut. The defendant, however, has failed to provide an analysis of that claim independent of his claim under the analogous provisions of the United States constitution. “[W]e will not entertain a state constitutional claim unless the defendant has provided an independent analysis under the particular provisions of the state constitution at issue. . . . Without a separately briefed and analyzed state constitutional claim, we deem abandoned the defendant’s claim (Internal quotation marks omitted.) State v. Fauntleroy, 101 Conn. App. 144, 159 n.5, 921 A.2d 622 (2007). Accordingly, we confine our analysis to the defendant’s federal constitutional claim.


text:
    BECKY SUTCLIFFE v. FLEETBOSTON FINANCIAL CORPORATION ET AL.
    (AC 27644)
    Bishop, Lavine and Robinson, Js.
    Argued March 14
    officially released July 1, 2008

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      Thomas J. Sansone, with whom, on the brief, was SherwinM. Yoder, for the appellee (named defendant).
   Opinion

ROBINSON, J.

The plaintiff, Becky Sutcliffe, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant FleetBoston Financial Corporation. On appeal, the plaintiff claims that the court improperly (1) admitted into evidence certain testimony and documents, (2) instructed the jury and (3) denied her motion for a directed verdict. We disagree and, accordingly, affirm the judgment of the trial court.

The following procedural history and facts reasonably found by the jury are necessary for our discussion. Attorney Edmund Hare represented the plaintiff in connection with a workers’ compensation claim. Hare obtained a “full and final” settlement on behalf of the plaintiff in the amount of $30,000. The plaintiff was to receive $20,000 and Hare was to receive $5000 as the fee for his legal services. The remaining $5000 was to be paid to the plaintiffs treating physician, Mark Jay.

Hare received the $30,000 check, made payable only to the plaintiff, shortly after February 2,1999. The plaintiffs signature on the check was forged, and Hare appropriated all of the proceeds from that check for his use. The plaintiff had not granted Hare any permission or authorization to sign the check or to deposit the money for his use. The plaintiff contacted Hare’s office on several occasions to inquire as to when she would receive her settlement funds but had a difficult time speaking directly with Hare.

In response to the plaintiffs repeated inquiries, Hare eventually made four payments to the plaintiff, totaling $15,500, from March 25 through June 18,1999. On March 3, 2000, the plaintiff executed an affidavit, as a part of her criminal complaint against Hare, indicating that Hare had failed to remit to her the outstanding balance of $4500 and to pay the $5000 owed to Jay. By way of a check dated March 6, 2000, Hare paid the plaintiff $4500 and on the “description” line of the check he wrote “W. Comp.” This notation was his shorthand for “workers’ compensation.” During the time period from March 25,1999, to March 6, 2000, Hare paid the plaintiff a total of $20,000, the amount of her interest in the settlement check.

The plaintiff commenced an action against Hare after receiving the $20,000. In her amended complaint, dated April 5, 2000, she alleged theft, intentional infliction of emotional distress, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and forgery. Hare informed the plaintiff that he was judgment proof and that he would declare bankruptcy. Hare then agreed to pay the plaintiff $5000 in exchange for a release by the plaintiff of all her claims against him.

On February 13, 2001, the plaintiff commenced the present action against the defendant. In her amended complaint, dated September 14, 2001, the plaintiff alleged that the defendant negligently paid the settlement check on a forged signature and alleged conversion of the check pursuant to General Statutes § 42a-3-420. The defendant answered the complaint and pleaded the special defense that the “plaintiff has received payment, in whole or in part, of the sums to which she was entitled under the instrument in question.”

The case was tried before the jury. The court, Trombley, J., declared a mistrial on the basis of juror misconduct. Prior to the start of evidence in the second trial, the plaintiff renewed her prior motion in limine to preclude evidence of Hare’s payments to her. The court, Bozzuto, J., denied the motion and permitted the defendant to present evidence of Hare’s payments. The jury returned a verdict in favor of the defendant. The court rendered judgment accordingly and denied the plaintiffs postverdict motion to set aside the verdict and for a new trial. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly admitted into evidence certain testimony and documents. Specifically, she argues that the evidence of Hare’s payments to her was presented to the jury improperly. We are not persuaded.

The following additional factual and procedural history is relevant to our discussion. During the first trial, the plaintiff filed a motion in limine to preclude any evidence regarding the payments made by Hare to the plaintiff. The court, Trombley, J., granted the motion, stating, “I have instructed counsel, and I so instruct them now, and instruct all of the witnesses who might be in the courtroom, not to mention any issue of payment by attorney Hare, any recovery from any other source that [the] plaintiff might have received. . . . Again, I instruct everybody to stay away from the issue of payment.”

A few days later, the court reconsidered its ruling. “So, payment is clearly central to this case, and, as a result, the court is going to allow testimony that it heard outside of the jury’s presence to be given both by the plaintiff and attorney Hare. And anybody else counsel wants to call before the jury.” The plaintiff objected to this ruling.

Following the mistrial, and prior to the start of the second trial, the plaintiff renewed her motion in limine, which the parties argued before the court, Bozzuto, J., on February 23, 2006. The court denied this motion. It first concluded that the defendant’s argument pertaining to the law of the case doctrine was persuasive. The court then identified a second basis for denying the motion. “But even putting that aside, the law of the case aside, I think payment is absolutely relevant with respect to the issue of—fundamental issue in this case, if the plaintiff is to prevail, that is, with respect to damages, and I also find the Hartford-Connecticut Trust Co. v. Riverside Trust Co., 123 Conn. 616, 197 A. 766 (1938), case very persuasive and on point, and I am going to deny the motion in limine and I am going to allow that evidence before the jury in this case.” The court noted the plaintiffs objection on the record.

As a. preliminary matter, we set forth the applicable standard of review with respect to evidentiary claims. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence . . . [and its] 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, and only upset it for a manifest abuse of discretion. . . . 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.) Desrosiers v. Henne, 283 Conn. 361, 365-66, 926 A.2d 1024 (2007); Porter v. Thrane, 98 Conn. App. 336, 339-40, 908 A.2d 1137 (2006).

Both parties agree that a determination of the applicability of our Supreme Court’s decision in Hartford-Connecticut Trust Co. v. Riverside Trust Co., supra, 123 Conn. 616, controls the outcome of the issues in the present case. Our analysis begins, therefore, with a discussion of that case. In October, 1929, the plaintiff, at the instruction of the Hartford Accident and Indemnity Company, made a draft in the amount of $2952, payable to the Chicago Live Stock Exchange. Id., 619. An individual, John Schmidt, Jr., forged the endorsement of the payee and deposited the draft to his credit with the defendant. Id. The plaintiff paid the draft to the defendant and commenced an action to recover the amount. Id. The defendant alleged that Schmidt, prior to the commencement of the action, had made restitution for any loss sustained by reason of his theft or embezzlement. Id., 621.

As part of its analysis, our Supreme Court considered the defendant’s defense that “Schmidt paid and conveyed to the Hartford Accident and Indemnity Company moneys and property sufficient in amount and value to make full restitution for any loss sustained by reason of the alleged embezzlement or theft by him of the proceeds of the check or draft.” Id., 627. The plaintiff had demurred to his defense on two grounds: first, that there was no privity between the Hartford Accident and Indemnity Company and the defendant; second, the Hartford Accident and Indemnity Company had not received full restitution. Id. The trial court sustained the plaintiffs demurrer on the first ground. Id. Our Supreme Court concluded that the trial court acted improperly and that if the Hartford Accident and Indemnity Company had received restitution from Schmidt, the forger, then the defense of restitution would be available to the defendant. Id. “Such restitution would be satisfaction of the underlying obligation by the party primarily responsible and ultimately liable for the loss. The principle is the same that has been applied in an action by a drawer-depositor against a depositarydrawee bank for the amount paid by the latter upon a check upon which endorsement had been forged—that the depositor, having been reimbursed, though indirectly, had suffered no damage.” (Emphasis added.) Id., 627-28. As a result of this conclusion, our Supreme Court determined that the “demurrer to [this defense] was not sustainable because of lack of privity or other discernible ground, and the ruling sustaining it deprived the defendant of an opportunity to show, if it could, that restitution was made and at a time which would render it available as a defense in this action. In this there was error [by the trial court].” Id., 628.

In the present case, the defendant sought to introduce evidence that the plaintiff received restitution from the forger, Hare. Specifically, the defendant intended to establish, through testimony and documentary evidence, that Hare had made payments totaling $20,000 to the plaintiff. These payments equaled the amount of her interest in the settlement check. This evidence would support the defendant’s claim that she did not sustain damages as a result of payment of the forged settlement check. Accordingly, this evidence was relevant under the Hartford-Connecticut Trust Co. precedent because the receipt of the total amount of the plaintiffs interest in the settlement check constituted a defense available to the defendant.

Our conclusion is buttressed by decisions from other jurisdictions. For example, the Michigan Court of Appeals, in Pamar Enterprises, Inc. v. Huntington Banks of Michigan, 228 Mich. App. 727, 580 N.W.2d 11 (1998), stated that “[t]he mitigation of damages defense provides that the liability of a drawee or depository bank in a conversion action brought by an intended payee is reduced to the extent that the intended payee receives the proceeds of the check applied to the specific obligation the check was intended to discharge." (Emphasis added.) Id., 736-37. That court further explained that the mitigation of damages defense was intended to prevent unjust enrichment of the intended payee and to comport with the general intent of the Uniform Commercial Code remedies that an aggrieved party should be put in as a good a position, as if the other party had performed fully, but not in a better position. Id., 737. Courts from other jurisdictions have applied this defense. See, e.g., Commercial Credit Corp. v. Empire Trust Co., 260 F.2d 132, 134 (8th Cir. 1958) (bank may be relieved of liability by reason of money reaching intended person); Ambassador Financial Services, Inc. v. Indiana National Bank, 605 N.E.2d 746, 752 (Ind. 1992) (“The mitigation of damages defense reduces the bank’s liability to the extent the proceeds of the check were received by the payee and applied to the specific debt to which the payee intended they apply. . . . The mitigation of damages defense is aimed at preventing unjust enrichment, and it exists to prevent a payee from recovering on a forged endorsement to the extent the payee did not suffer damages in the transaction.” [Citation omitted.]); Comerica Bank v. Michigan National Bank, 211 Mich. App. 534, 538, 536 N.W.2d 298 (1995) (noting that bank may avoid liability for honoring check with improper endorsement when bank can prove intended payee received proceeds of check); Bankers Trust of South Carolina v. South Carolina National Bank of Charleston, 284 S.C. 238, 244, 325 S.E.2d 81 (S.C. App. 1985) (courts have developed equitable rule that when proceeds of forged check reach intended payee, generally there can be no cause of action because there are no damages).

On the basis of the foregoing, the court properly admitted the evidence of Hare’s payments to the plaintiff in the amount of her interest in the settlement check. We conclude that the court did not abuse its discretion by admitting into evidence the testimony and documents regarding Hare’s payments to the plaintiff.

II

The plaintiff next claims that the court improperly instructed the jury on the defendant’s special defense that she had received her interest in the settlement check as a result of Hare’s payments. We are not persuaded.

We begin by establishing the applicable standard of review. “When we review a challenged juiy instruction, [t]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Instructions are adequate if they give the jury a clear understanding of the issues and proper guidance in determining those issues. . . . The court should submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence. . . . [See also] 1 D. Wright & W. Ankerman, Connecticut Jury Instructions (Civil) (4th Ed. 1993) § 2, p. 3.” (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 591, 945 A.2d 388 (2008); Ravenwood Construction, LLC v. F. L. Merritt, Inc., 105 Conn. App. 7, 11-12, 936 A.2d 679 (2007).

The court charged the jury with respect to the plaintiffs causes of action, as well as the defendant’s special defense. In view of the evidence adduced at trial, which we set forth in greater detail in part III, and in light of our Supreme Court’s decision in Hartford-Connecticut Trust Co. v. Riverside Trust Co., supra, 123 Conn. 616, we conclude that the court’s instructions, with respect to the defendant’s special defense, read as a whole, were adapted properly to the law and provided the jury with sufficient guidance and that no injustice was done. See Pickering v. Rankin-Carle, 103 Conn. App. 11, 16, 926 A.2d 1065 (2007). The plaintiff has failed to establish that the court’s instructions were improper. After carefully reviewing the entire record, we determine that the instructions were adequate because they provided the jury with a clear understanding of the issues and proper guidance in determining those issues. See Al-Janet, LLC v. B & B Home Improvements, LLC, 101 Conn. App. 836, 840, 925 A.2d 327, cert. denied, 284 Conn. 904, 931 A.2d 261 (2007).

Ill

The plaintiffs final claim is that the court improperly denied her motion for a directed verdict. Specifically, she argues that “[t]here was no genuine issue as to any material fact, and the plaintiff was entitled to judgment as a matter of law for the amount of the draft, $30,000.” We disagree.

“Our standard of review of the court’s refusal to grant [motions for directed verdicts and to set aside verdicts] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion. . . . While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. . . . Our standard of review, where the trial court’s action on a motion to set aside a verdict is challenged, is whether the trial court clearly abused its discretion. . . . The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and it will not be disturbed unless there has been a clear abuse of that discretion.” (Internal quotation marks omitted.) Mokonnen v. Pro Park, Inc., 96 Conn. App. 625, 631-32, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006); see also Coniglio v. White, 72 Conn. App. 236, 240, 804 A.2d 990 (2002).

As we noted previously, the defendant’s claim that the plaintiff had received the full amount of her interest in the settlement check constituted a viable defense to the plaintiffs causes of action. After reviewing the evidence, in a light most favorable to the prevailing party, i.e., the defendant, we conclude that there was ample evidence to support the jury’s verdict. Accordingly, we conclude that the court’s denial of the plaintiffs motion for a directed verdict did not constitute an abuse of discretion.

In her written admissions, her affidavit and her testimony in court, the plaintiff acknowledged that she was to pay $5000 to Hare and $5000 to Jay from her $30,000 settlement check, leaving a remainder of $20,000. From March 25 to June 18, 1999, Hare made four payments to the plaintiff totaling $15,500. By way of a check dated March 6, 2000, the plaintiff received $4500, for a total of $20,000 from Hare. This was the exact amount owed to the plaintiff for the workers’ compensation settlement. Notably, the final check indicated that it was for the plaintiffs workers’ compensation proceeds. At the time of the final payment to the plaintiff, Hare also made the $5000 payment to Jay, the plaintiffs treating physician, for her workers’ compensation injuries. Finally, the plaintiffs affidavit indicated that as of March 3, 2000, she had not received the balance of her $20,000 settlement for her workers’ compensation claim. This indicated that the prior payments were, in effect, repayment for Hare’s improper use of the plaintiffs settlement funds.

On the basis of this evidence, viewed in a light most favorable to the defendant, we conclude that the court did not abuse its discretion in denying the plaintiffs motion for a directed verdict. It was well within the province of the jury to find that Hare’s payments were intended to pay the plaintiff her interest in the forged check. As a result, the plaintiff received the full amount of her interest in the settlement check and, under the facts and circumstances of the present case, was not damaged by the actions of the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Bank of America is the successor of the defendant FleetBoston Financial Coiporation, which, in turn, is the successor institution to BankBoston, N.A., formerly known as Bank of Boston Connecticut, the bank where the check at issue was deposited. In this opinion, we will refer to BankBoston, N.A., and its successors simply as the defendant.
      We also note that the plaintiff filed this action against Sovereign Bank of New England (Sovereign Bank). On February 28, 2006, the court granted the defendants’ motion for a directed verdict in favor of Sovereign Bank. Specifically, the court stated that “there was not any evidence as to Sovereign Bank, and I am directing a verdict in their favor.” The plaintiff does not challenge this ruling on appeal.

       As alternate grounds for affirming the judgment of the trial court, the defendant claims that the court improperly denied (1) its motion for a directed verdict and (2) its motion for summary judgment. As a result of our resolution of the issues raised by the plaintiff, we need not reach these claims. See Connecticut Education Assn., Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 448 n.2, 938 A.2d 1249 (2008).

       From this $5000 settlement, the plaintiff received $2746.44 after paying her legal fees.

       “Underlying the law of the case doctrine is the view that [a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.....The doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. . . . Nevertheless, [a] judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.” (Citation omitted; internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn. App. 315, 327 n.12, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). '

       General Statutes § 42a-3-420 (b) provides: “In an action under subsection (a), the measure of liability is presumed to be the amount payable on the instrument, but recovery may not exceed the amount of the plaintiffs interest in the instrument." (Emphasis added.)

       The plaintiff also claims that the payments from Hare could have been future credits against her potential damages from her theft, intentional infliction of emotional harm, CUTPA and forgery claims against Hare. We note that as a result of both the amount of Hare’s payments, totaling the exact amount of the plaintiffs interest in the settlement check, and the fact that Hare’s payments preceded the commencement of the plaintiffs lawsuit against Hare, the jury, as the finder of fact, was free to determine that the payments were to compensate the forgery of the settlement check.

       The plaintiff also claims that the defendant failed to plead its special defense. We conclude that this claim is without merit. As part of its answer, dated September 28, 2001, the defendant presented the following special defense as to both counts of the plaintiffs complaint: “The plaintiff has received payment, in whole or in part, of the sums to which she was entitled under the instrument in question.”

       The court charged the jury in relevant part: “Furthermore, the [defendant] asserts the plaintiff has been paid—has been paid fully by Mr. Hare the sum of $20,000, which was the amount the plaintiff was to receive from the proceeds of the $30,000, which the [defendant] claims was the plaintiffs interest in that particular check. . . . The [defendant] claims that its responsibility, in the event that you find that the bank was negligent or committed conversion relative to the check to the plaintiff, was $20,000, which represents her interest in the $30,000, and that the plaintiff received the $20,000 from its depositor or customer, Mr. Hare. Therefore, the [defendant] asserts that the plaintiff received the sums to which she was entitled . . . and that the bank has no further monetary obligation to the plaintiff.
      “The plaintiff generally responds to that defense, the [defendant’s] assertion that she received the $20,000 to which she was entitled to the check— from the check proceeds by claiming that the several payments that she received from Mr. Hare were not for the workers’ compensation case but were in partial payment for the emotional distress and other damages that she suffered as a result of Mr. Hare’s unethical and tortious conduct. She, therefore, asserts that the bank remains liable to her for the full value of the check, that is the $30,000, as a result of the [defendant’s] lack of ordinary care in conversion of the check. . . .

        “The defendant in this case, in addition to denying the claims made by the plaintiff, has affirmatively asserted a special defense to the plaintiffs claim. The defendant had the burden of proof as to the allegation of its special defense upon which it relies. The plaintiff does not have the burden to disprove the allegations of the defendant’s special defenses, rather each party has the burden of proving that party’s own claims and no burden to disprove the claims of that party’s adversary. So, the plaintiff has the obligation to prove negligence and statutory conversion. The defendant had the obligation to prove the special defense of payment. . . .
      “The defendant asserts one special defense, and it reads as follows: The plaintiff has received payment in whole or in part of the sums to which she was entitled under the instrument in question, that being the check in question. If a plaintiff seeks recovery of the amount of a forged check or draft from the defendant bank and the plaintiff has received money from the actual forger, the defense of payment is available to the defendant bank.”

       We also disagree with the plaintiff’s claim that the court should have instructed the jury as to the statutory definition of payment set forth in General Statutes § 42a-3-602. As we have noted, the instructions, as given, were correct in law, adapted to the issues and sufficient for the guidance of the jury.