author: MOTTOLESE, J.

text:
    STATE OF CONNECTICUT v. DAVID BLOCKER
    (AC 15316)
    O’Connell, C. J., and Hennessy and Mottolese, Js.
    Argued March 21
    officially released September 23, 1997

      Mark Rademacher, special assistant public defender, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Edward Ricciardi, assistant state’s attorney, for the appellee (state).
   Opinion

MOTTOLESE, J.

After a trial to the court on the charges of criminal attempt to murder in violation of General Statutes §§ 53a-49 and 53a-54a and assault in the first degree in violation of General Statutes § 53a-59 (a) (l) and (3), the defendant, David Blocker, was found not guilty by reason of lack of capacity due to mental disease pursuant to General Statutes § 53a-13 (a). The court committed him to the Whiting Forensic Institute on each count to a maximum period of confinement of twenty years to be served consecutively. The defendant appeals on the grounds that the trial court (1) made inconsistent factual findings when it found that the defendant possessed the intent to cause both death and serious physical injury, (2) violated his double jeopardy right not to be punished twice for the same offense, and (3) improperly found that there was sufficient evidence of intent to cause serious physical injury.

The trial court reasonably could have found the following facts. On the afternoon of May 31, 1994, the defendant entered a doughnut shop and, after being served, went to his car, removed a knife and approached the victim, an employee who was outside the store smoking a cigarette. Without provocation, he stabbed her in the chest saying, “I am going to kill you.” The victim suffered a wound that resulted in the removal of her left lung.

I

The defendant first contends that the trial court made inconsistent, and therefore improper, factual findings when it concluded that the defendant possessed both the intent to cause death as required for a conviction of attempted murder and the intent to cause serious physical injury as required for a conviction of assault in the first degree. That contention is premised on the claim that a person cannot simultaneously intend both results when only a single knife stab is inflicted on the victim.

The state, relying on State v. Williams, 237 Conn. 748, 755, 679 A.2d 920 (1996), argues that it is legally possible for a defendant to possess both the intent to cause serious physical injury and the intent to cause the death of the victim. The defendant contends that the issue is whether, under these particular facts, he can be committed for two offenses resulting from a single stab where the intent to commit attempted murder and the intent to commit assault in the first degree are mutually exclusive.

The defendant distinguishes between a single act of stabbing and multiple acts of trauma. The defendant proposes that separate, discrete physical contacts with the victim are necessary to support each separate intent. Indeed, in Williams, our Supreme Court addressed this very issue with reference to its earlier decision in State v. Hinton, 227 Conn. 301, 305, 630 A.2d 593 (1993), in which the defendant fired a single shotgun blast scattering eight separate pellets into a group of men, killing three and injuring another. Of Hinton, the court in Williams stated that, “[bjecause the counts of attempted murder and intentional assault had been premised on a single act of violence, our approval of verdicts of guilty for both offenses with respect to the same victim and the same act necessarily acknowledged that a defendant may simultaneously possess the intent to cause death and the intent to cause serious physical injury.” State v. Williams, supra, 237 Conn. 753. Thus, the court implicitly rejected the notion that separate, discrete physical contacts with a victim are necessary to support each separate intent. Id.; see also State v. Sharpe, 195 Conn. 651, 656, 491 A.2d 345 (1985). We believe that it is unrealistic to argue that the shooter had an intent with respect to the pellets that killed that was separate and distinct from the intent he had with respect to those that only injured.

The defendant also argues that he expressed his singular intent clearly and unequivocally when he exclaimed, “I am going to kill you!” and that he attempted to carry out that intent in dehvering a single blow. Implicit in the trial court’s finding is that this statement did not prevent the inference that the defendant also intended to injure the victim seriously. It is entirely reasonable for the trial court to have found that the defendant intended to inflict serious injury with a single blow while also intending that that stabbing cause the victim’s death. “No temporal separation is required for the intent . . . .” (Internal quotation marks omitted.) State v. Williams, supra, 237 Conn. 755. It is possible, therefore, to form each intent simultaneously while performing a single act that makes but a single contact.

II

The defendant next contends that his consecutive commitments for attempted murder and assault in the first degree violate the double jeopardy clause of the fifth amendment to the United States constitution and article first, § 9, of the Connecticut constitution. He claims specifically that these commitments constitute multiple punishments for the same offense.

“This argument has two prongs, each a necessary condition to its success: (1) the charges must arise out of the same transaction, and (2) the charged crimes must be the same offense. Double jeopardy prohibits, inter alia, not only multiple trials, but also multiple punishments for the same offense in a single trial. . . .

“[T]he test for determining whether there are two offenses or only one [is articulated] in State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985). . . . [T]he classic test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). . . . [T]his test . . . [refers] to the charging documents.” (Citations omitted; internal quotation marks omitted.) State v. Sharpe, supra, 195 Conn. 654.

As to the first prong, the information provides, and the state admits, that both charges arise from the same act, the stabbing of the victim. With regard to the second prong, the defendant argues that the counts of attempted murder and assault in the first degree, as charged in the information, are the same offense and neither requires proof of any fact that the other does not. We disagree.

Our Supreme Court addressed this exact claim in State v. Sharpe, supra, 195 Conn. 655-56. “A conviction for attempted murder requires proof of intentional conduct constituting a substantial step toward intentionally causing the death of another person. ... No showing of actual injury is required. Conversely, a conviction for assault in the first degree requires proof that the defendant actually caused serious physical injury to another person. No showing of intent to cause death is necessary. Therefore, each offense requires proof of a fact which the other does not. Consequently, the statutoiy violations charged, attempted murder and assault in the first degree, are not the same offense for double jeopardy purposes.” (Citation omitted.) Id. The defendant’s consecutive commitments for attempted murder and assault in the first degree do not violate the defendant’s right against double jeopardy.

Ill

Finally, the defendant asserts that the evidence before the trial court was insufficient to support a finding of assault in the first degree. The defendant seeks Evans-Golding review of this claim. “Our Supreme Court has stated that sufficiency of the evidence claims ‘necessarily meet the four prongs of Golding.’ State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993) (Citation omitted.) State v. Adorno, 45 Conn. App. 187, 194, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

The only evidence the defendant relies on to support his insufficiency argument is the defendant’s clear statement of his intention to kill the victim followed by the single thrust of the knife. From this he argues that there was “only an intent to kill” and not an intent to injure.

We believe that the conclusion drawn by the trial court as the fact finder was not unreasonable and is amply supported by the direct and circumstantial evidence presented at trial and from the reasonable inferences that flowed therefrom. The defendant inflicted a single stab wound to the victim’s chest that might not of itself have been immediately fatal but did create “a substantial risk of death” from blood loss and organ damage. The single wound caused the loss of the victim’s lung, extensive scarring and a permanent limp, which constitute serious physical injury.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-54a provides in relevant part: “Murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person. ...”

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

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . .

       General Statutes § 53a-13 provides in relevant part: “Lack of capacity due to mental disease or defect as affirmative defense, (a) In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. ...”

       The double jeopardy clause of the fifth amendment to the United States constitution provides in relevant part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” It is applicable to the states under the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 793-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

       Because the defendant provided no separate analysis under the Connecticut constitution, we are not bound to consider this claim. State v. Webb, 238 Conn. 389, 423 n.32, 680 A.2d 147 (1996). Nevertheless, we have consistently held that the Connecticut constitution affords no greater protection than the United States constitution’s double jeopardy clause. See State v. Adams, 38 Conn. App. 643, 655-56, 662 A.2d 1327, cert. denied, 235 Conn. 908, 665 A.2d 902 (1995).

       Our determination that the crimes of attempted murder and assault in the first degree are separate offenses makes it unnecessary for us to reach the claim, raised by the state, that commitment to the commissioner of mental health does not constitute punishment for purposes of double jeopardy.

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 576 A.2d 823 (1989). Under the standard delineated in Golding, a defendant can prevail on an appeal of an unpreserved claim of constitutional error “only if all of the foEowing conditions are met: (1) the record is adequate to review the aEeged claim of error; (2) the claim is of constitutional magnitude aEeging the violation of a fundamental right; (3) the aEeged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has faded to demonstrate harmlessness of the aEeged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. If any one of these conditions is not satisfied, the defendant’s claim wiE fafl. Id., 240. “The first two conditions are determinations of whether a defendant’s claim wiE be reviewed, and the third condition involves a review of the claim itself.” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994).


source: Caselaw Access Project

author: SHEA, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDWARD G. WEARING
    (AC 15214)
    O’Connell, C. J., and Hennessy and Shea, Js.

      Argued March 4
    officially released September 23, 1997

      Lawrence R. Pellett, special public defender, for the appellant (defendant).

      Lisa Herskowitz, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, assistant state’s attorney, for the appellee (state).
   Opinion

SHEA, J.

The defendant, Edward G. Wearing, has appealed from the judgments rendered on a jury verdict finding him guilty of kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a, sexual assault in the third degree in violation of General Statutes § 53a-72a, assault in the second degree in violation of General Statutes § 53a-60, and tampering with awitness in violation of General Statutes § 53a-151.

On appeal, the defendant claims (1) that his constitutional right to a fair trial by an impartial jury was violated by the failure of the trial court to conduct a proper investigation and to declare a mistrial when a juror placed a cartoon, which the defendant maintains was racially offensive, on a table in the jury room where some other jurors saw it, (2) that the admission into evidence of a tape-recorded statement of the victim violated the hearsay rule and was prejudicial, and (3) that the exclusion of the testimony of a witness offered by the defendant to prove that the victim had made statements inconsistent with her testimony at trial was contrary to the rule of evidence allowing such testimony for the purpose of impeachment. We reject the first two claims, but agree with the defendant that the exclusion of the evidence of prior inconsistent statements was improper. We affirm the judgments, nevertheless, because the ruling on evidence had no significant impact on any of the findings of guilt.

From the evidence supporting the verdict, the jury could reasonably have found that on the morning of February 21,1994, the victim telephoned the defendant and accused him of molesting their four year old son. The defendant became very upset. That evening, about 7:30 p.m., the defendant drove to the victim’s home and confronted her. During the argument that ensued, the defendant struck the victim on the head with a beer bottle. When she fell to the ground, he grabbed her hair and pulled her until she stood up. Holding her by the hair, he led her to his truck and pushed her inside. The victim called for help as the defendant walked toward the truck. The defendant threatened to shoot some people who approached to offer help.

The defendant drove with the victim to his mother’s house in Hamden, where he was living. Despite the victim’s objections, he made her get out of the truck and enter the house, from which his mother and stepfather were then absent. He forced her downstairs to the basement, in which he had a bedroom. He told the victim to remove her clothes. While protesting, she did so because of his threat to kill her. She testified that the defendant forced her onto his bed, where he had sexual intercourse with her.

By the time the defendant’s mother and stepfather arrived at the house, approximately 9 p.m., both the defendant and the victim were upstairs in the kitchen. His mother got into an argument with the defendant, and he left the house. The victim told the defendant’s mother that the defendant had struck her, forced her to come to the house and raped her. She said she did not feel well and wanted to go home. The defendant’s mother and stepfather took the victim to her home in their car.

The police were waiting at the victim’s home with a neighbor who had called them after she had observed the victim being forced into the defendant’s truck. The victim told the police what had happened to her and requested that she be taken to a hospital. The police first took her to the New Haven police station, where she gave a tape-recorded statement to a detective. The police then drove her to a hospital, where she was examined and given medication.

The witness tampering charge alleges that on March 5,1994, the defendant telephoned the victim at approximately 3 a.m. and attempted to induce her to testify falsely, to withhold testimony, to elude legal process summoning her to testify or to absent herself from any official proceeding. The victim testified that the defendant had made a telephone call to her home at that time and threatened to kill her if she did not drop the charges. She called her brother-in-law, who took her and her children to his home. She also reported the incident to the police and gave them a tape-recorded statement.

I

JUROR MISCONDUCT

During the luncheon recess that followed completion of the state’s initial closing argument, trial counsel for the defendant entered the jury room after the departure of the jurors to use the bathroom facilities. He discovered a cartoon attached to the bulletin board in the room that showed two black jurors sitting at opposite ends of an otherwise empty jury box, one of whom is pointing at the other and saying to Judge Ito, the presiding judge at the O. J. Simpson criminal trial, “Your Honor, he’s looking at me!”

When the court reconvened, the defendant moved for a mistrial on the ground that the jurors had been exposed to a cartoon that was racially offensive and prejudicial. The state argued that the cartoon was merely a humorous comment on the exodus of jurors from the Simpson trial and that any prejudice could be cured by an appropriate instruction of the court. The court denied the motion for a mistrial and, when the jurors returned to the courtroom, they were told to strike the cartoon from their minds. After completion of the remaining arguments and the charge to the jury, the jurors deliberated and reached their verdict on the various charges the next day.

Five days after the verdict, the court, sua sponte, conducted a hearing in regard to the cartoon. The court indicated that, out of “an abundance of caution,” it had concluded that such a hearing was required by State v. Brown, 232 Conn. 431, 656 A.2d 997 (1995) (Brown I), which had been published on March 28, 1995, approximately three months before the hearing. The court informed counsel that it would question each of the six jurors who had participated in rendering the verdict about the cartoon, but would not permit questioning by the attorneys. Defense counsel objected to being precluded from questioning the jurors.

At the hearing, the foreman of the jury testified that he had seen the cartoon in a newspaper he was reading in the jury room. He tore it out and placed it on the table in the jury room. A couple of people looked at it and laughed. He said there was no discussion of the cartoon and that it had no bearing on the jury deliberations. Another juror said that she had not seen the cartoon and that it was not discussed during deliberations. Others said that they had seen the cartoon but had not read it or paid much attention to it. All the jurors testified that the cartoon was not discussed during deliberations and had not entered into their deliberations. The court, after questioning the jurors, declared that it was satisfied that the cartoon had “played no part prejudicial to the defendant in connection with the jury’s deliberations in the case.”

In Brown I, our Supreme Court concluded that the due process clause of article first, § 8, of our state constitution requires that, “[w]hen a judge is alerted to the possibility that a juror may have been exposed, outside of the adversarial arena, to information that may tend to affect his or her deliberations, the judge has an independent obligation to investigate by conducting an evi-dentiary hearing into the allegations. Only in this manner may the court determine whether a juror has been exposed to prejudicial extrinsic evidence and, as a result, whether the defendant’s fundamental right to an impartial jury under our state constitution has been protected. . . . The nature and scope of this hearing, of course, will depend on the nature of the allegations of juror misconduct. . . . The only limitation upon the court is that, in taking whatever investigatory actions it deems appropriate, it does so with counsel for both parties present and with an opportunity to participate in the proceedings.” (Citations omitted; emphasis added; internal quotation marks omitted.) Brown I, supra, 232 Conn. 451-52. In this appeal, the defendant claims that the trial court’s pronouncement at the start of the hearing, that questioning of the jurors by counsel would not be permitted, was contrary to Brown I and that his motions for a mistrial and for a new trial should have been granted.

Following the decision in Brown I, the state filed a motion for reargument and reconsideration of the case en banc, which was granted. State v. Brown, 235 Conn. 502, 506, 668 A.2d 1288 (1995) (Brown II). The opinion of the en banc court in Brown II invoked the supervisory powers of the court rather than our state constitution, on which Brown I had relied, in concluding that the case should be remanded “to the trial court for further proceedings regarding the issue of jury misconduct consistent with this opinion.” Id., 532. “Exercising our inherent supervisory power over the administration of justice, we now hold that henceforth a trial court must conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case, regardless of whether an inquiry is requested by counsel. Although the form and scope of such an inquiry he within a trial court’s discretion, the court must conduct some type of inquiry in response to allegations of jury misconduct. That form and scope may vary from a preliminary inquiry of counsel, at one end of the spectrum, to a full evidentiary hearing at the other end of the spectrum, and, of course, all points in between. Whether a preliminary inquiry of counsel, or some other limited form of proceeding, will lead to further, more extensive, proceedings will depend on what is disclosed during the initial limited proceedings and on the exercise of the trial court’s sound discretion with respect thereto.” Id., 526

The defendant claims that, because his trial was completed before Brown II was decided, the applicable precedent is the statement in Brown I requiring that “[w]hen a judge is alerted to the possibility that a juror may have been exposed, outside the adversarial arena, to information that may tend to affect his or her deliberations, the judge has an independent obligation to investigate by conducting an evidentiary hearing”; Brown I, supra, 232 Conn. 451; in the presence of counsel for both parties “and with an opportunity to participate in the proceedings.” Id., 452.

We conclude, however, that Brown II is the controlling precedent, although that opinion was not released until after the trial of the present case. When the state’s motion for reargument was filed, it necessarily postponed the efficacy of Brown I until the motion was acted on and, once it was granted, until the release of the opinion in Brown II. “[A]ll proceedings to enforce or carry out the decision of the court having appellate jurisdiction shall be stayed until the time for filing a motion for reargument has expired, and, if a motion is filed, until its disposition, and, if it is granted, until the appeal is finally determined.” Practice Book § 4123. In Brown II, the majority opinion chides the dissenters for relying on language from Brown I: “[W]e reject the proposition that the earlier opinion has continuing validity. Our decision today supersedes our earlier opinion in its entirety.” Brown II, supra, 235 Conn. 506 n.5. In the federal courts, “reconsideration in banc vacates the panel opinion, and the previous panel opinion no longer has any standing except to the extent that the in banc court adopts it. . . . [T]he court sitting in banc is technically reviewing the judgment of the lower court, and not the panel decision, which has, in effect, been vacated . ...” 5 Am. Jur. 2d, Appellate Review § 908 (1995). Vacation of the judgment “generally deprives such judgment ... of any effect, including preceden-tial effect.” Id., § 846.

The defendant also claims that the trial court failed to satisfy even the less rigid criteria of Brown II for investigating possible jury misconduct of which the court becomes aware. Those criteria, however, were not intended to apply retroactively to cases like this one that had been tried to a conclusion prior to release of that opinion. The requirement that a trial court “conduct a preliminary inquiry, on the record, whenever it is presented with any allegations of jury misconduct in a criminal case” is preceded by the phrase, “we now hold that henceforth.” Brown II, supra, 235 Conn. 526.

Before the advent of Brown I and Brown II, our Supreme Court had “recognized that the trial court has broad discretion to determine the form and scope of the proper response to allegations of jury misconduct.” Brown II, supra, 235 Conn. 523-24. The Supreme Court had “limited [its] role, on appeal, to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion.” Id., 524. In this case, it was the defendant’s counsel who discovered the cartoon that is the sole basis for the claim of jury misconduct and called it to the attention of the court by moving for a mistrial. He argued that the cartoon was offensive because it singled out two of the black jurors in the Simpson case. He never explained to the trial court why the cartoon would likely have prejudiced the jurors in this case, two of whom were black, as were the defendant and the victim. The defendant’s counsel on appeal also has failed to enlighten this court on that subject. Although the motion for a mistrial was denied, the court did give a curative instruction to the jurors, as the defendant suggested, advising them that the cartoon had no bearing on the issues they were to decide.

The inquiry conducted by the trial court, as a result of reading the Brown I decision, five days after the verdict might well have satisfied the requirement of Brown II for a preliminary inquiry into allegations of jury misconduct if it had taken place when the court first learned of the allegations. “Our requirement that any allegations of jury misconduct necessitate some type of a preliminary inquiry still leaves the form and scope of such an inquiry to be determined by the trial court within the exercise of its discretion.” Id., 529. The prohibition against questioning of the jurors by counsel would not exceed the discretion of the trial court in conducting such a preliminary proceeding and might serve to reduce the risk of antagonism toward counsel on the part of jurors subjected to a vigorous examination by counsel. Despite that restriction, counsel were not precluded from suggesting areas of inquiry for the court to pursue concerning the cartoon incident. Counsel for the defendant never attempted to do so and made no response to the court’s statement that it was satisfied that the cartoon had “played no part prejudicial to the defendant in connection with the jury’s deliberations in the case.” We conclude that there was no abuse of discretion on the part of the trial court.

II

ADMISSIBILITY OF VICTIM’S RECORDED STATEMENT

The first witness for the state was the victim, who testified that she had dated the defendant from 1988 until early 1994 and that he was the father of the youngest of her three children. When the prosecutor asked about what had happened on the morning of February 21,1994, the date of the crimes charged in the information, she said she did not want to testily against the defendant. She testified that she had given a statement about what had happened on that date to a detective and repeated that she did not want to testify.

Outside the presence of the jury, in response to further questioning by the prosecutor, the victim testified that she recognized her statement and it was accurate. She did not want to testify about the incident, however, which had occurred more than one year before. She recalled giving a detective a tape-recorded statement on the date of the incident and had signed a transcription of it. She insisted, nevertheless, that she had forgotten about it. She identified her signature on the transcribed statement. Over the objection of the defendant, the court concluded that there was an inconsistency by omission between the victim’s testimony and her prior statement, because she declined to say anything in court about what had happened on the date of the incident. The court admitted both the tape recording and the transcribed statement. The jurors were given copies of the statement, and the recording was played in court. After the admission of those exhibits, the victim testified without referring to her statement about the events of February 21,1994, and also about the circumstances of the witness tampering charge. The defendant cross-examined her about her testimony in court and also about the facts contained in her statement.

Prior to State v. Whelan, 200 Conn. 743, 748-49, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), the courts of this state had followed “the traditional view that a prior inconsistent statement of a nonparty witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein, and, therefore, is admissible only for impeachment purposes.” In Whelan, our Supreme Court created an exception to the hearsay rule “allowing the substantive use of prior written inconsistent statements, signed by the declarant, who has personal knowledge of the facts stated, when the declarant testifies at trial and is subject to cross-examination.” Id., 753. In a footnote, the court observed that “prior tape recorded statements possess similar indicia of reliability and trustworthiness to allow their substantive admissibility as well.” Id., 754 n.9.

The defendant claims that Whelan is inapplicable in this case because the victim never refused to answer the questions asked of her and because her testimony in court is consistent with her prior statement. Our Supreme Court rejected a similar claim in Whelan with respect to a prosecution witness who had given a statement to the police but who, at trial, could not recall specific details of the crime contained in his statement. Id., 748-49 n.4. “A statement’s inconsistency may be determined from the circumstances and is not limited to cases in which diametrically opposed assertions have been made. Thus, inconsistencies may be found in changes in position and they may also be found in denial of recollection.” Id.

“Whether there are inconsistencies between the two statements is properly a matter for the trial court. . . . Inconsistencies may be shown not only by contradictory statements but also by omissions. In determining whether an inconsistency exists, the testimony of a witness as a whole, or the whole impression or effect of what has been said, must be examined.” (Citations omitted.) Id. We conclude that there is no merit to the defendant’s challenge of the ruling admitting the victim’s statement to the police for substantive purposes.

Ill

EXCLUSION OF INCONSISTENT STATEMENTS OF VICTIM

The defendant’s final claim is that the trial court improperly excluded the testimony of his mother and stepfather to the effect that the victim told them soon after the incident that she had not been raped by the defendant. During the presentation of the state’s case, the victim testified that she had been raped by the defendant and had told police officers, hospital personnel and the defendant’s mother and stepfather soon after the incident that the defendant had raped her. Her testimony of a timely complaint was supported by a police officer and a physician from the hospital to which the police had taken her after interviewing her at her home. The defendant’s mother, whom the state also called as a witness, testified, however, that when she and her husband arrived home and found the defendant and the victim there, she asked her son whether he had tried to rape the victim. Before he could answer, the victim volunteered that the defendant had not tried to rape her. The mother also testified that her husband asked the victim, as they were driving to her home, whether she had been raped and that she responded that she had not been raped. The state raised no objection to the mother’s testimony.

When the defendant’s stepfather testified, defense counsel attempted several times to elicit his testimony concerning the victim’s response to his inquiry whether she had been raped. Each time, the trial court sustained the state’s objection on hearsay grounds. On one occasion, when the witness answered counsel’s question prior to the state’s objection, he testified that the victim had answered “No” to that inquiry. The court ordered the answer stricken and told the jury to disregard it.

The court excused the jury at defense counsel’s request so that he could make an offer of proof. The defendant’s stepfather was then permitted to testify that, when his wife asked her son whether he had raped the victim, she spoke before he could answer and said that the defendant had not raped her. The stepfather also testified that he had asked the victim whether she had been raped when he was driving her to her home and that she had responded “No.” The witness testified further that he relied on that response, as well as a negative response to a similar question he asked of the defendant, in deciding to allow the defendant to continue to reside in the house after the incident.

Although defense counsel claimed initially that the proffered testimony was admissible on other grounds, at the conclusion of his offer of proof he also argued that such evidence could be used to impeach the victim’s testimony. The court, nevertheless, sustained the state’s objection to the evidence offered.

On appeal, the state concedes that the ruling was incorrect and that the excluded testimony of the stepfather “generally would have been admissible pursuant to the prior inconsistent statement exception to the hearsay rule.” “The inconsistent statement must be relevant and of such a kind as would affect the witness’ credibility, and, generally, a foundation for introducing the statement should be laid at the time of cross-examination of the witness.” State v. Butler, 207 Conn. 619, 626, 543 A.2d 270 (1988). Defense counsel, in cross-examining the victim, had asked whether she had responded negatively to the inquiries of the defendant’s mother and his stepfather as to whether the defendant had raped her. The victim testified that she had told them that the defendant had “made” her have sex with him. “Where the witness denies having made the statement or is unable to recall having done so, extrinsic evidence may be admitted to show it was made.” Id. There was a sufficient foundation for admission of the testimony of the defendant’s stepfather concerning the victim’s statements soon after the incident contradicting her testimony at trial.

Despite its concession that the excluded testimony was properly admissible, the state maintains that a reversal of the judgments is not warranted because (1) the defendant did not adequately state the ground that supports its admissibility and (2) the error was harmless. There is little substance to the first claim. Prior to his offer of proof, defense counsel stated several different grounds for admitting the testimony concerning the victim’s responses to the inquiry whether she had been raped. At the conclusion of that offer, however, he raised an additional claim that the testimony could properly be used to impeach the victim’s testimony that she had been raped. The state’s argument that his failure to use the phrase “prior inconsistent statements” rendered his articulation of the ground he relied upon unclear or inadequate is of insufficient merit to warrant further discussion.

There is merit, however, in the state’s claim of harmless error. Before the defendant’s stepfather testified, the jury heard the testimony of the defendant’s mother concerning the victim’s negative responses to the inquiries of both the mother and the stepfather as to whether the victim had been raped. The state had raised no objection to that testimony. The excluded testimony of the defendant’s stepfather was largely repetitious of his mother’s testimony. One factor to be considered in determining whether an improper ruling on evidence is a harmless error is “whether the testimony was cumulative . . . .” State v. Milner, 206 Conn. 512, 529, 539 A.2d 80 (1988).

Neither in brief nor oral argument has counsel for the defendant even attempted to explain how the claimed falsity of the victim’s statement that she had been raped could have had an impact on the findings of guilt on any of the crimes of which the defendant was convicted. In finding the defendant guilty of kidnapping in the second degree with a firearm, which requires only the abduction of another person and a representation by words or conduct that the actor possesses a firearm, and not guilty of kidnapping in the first degree, which contains as one aggravating element an intent to abuse the other person sexually, the jury may well have had a reasonable doubt that a rape occurred. The abduction and firearm possession elements of that crime were supported not only by the victim’s testimony but also by that of a neighbor who observed the defendant pulling the victim, who was screaming, toward his truck and heard him threatening to shoot some people who had approached him.

Similarly, doubt about the victim’s claim of rape may explain the jury’s finding of not guilty of sexual assault in the first degree, which required proof of sexual intercourse under the circumstances of this case, and guilty of sexual assault in the third degree, which required only sexual contact. Although the victim’s testimony concerning the rape was the sole basis for the conviction of third degree sexual assault, the possibility that the excluded testimony of the stepfather would have resulted in a not guilty verdict on that offense is too remote to justify a reversal of that conviction. Only an extreme application of the ancient doctrine of falsus in uno, falsus in omnibus could produce such a result. 3A J. Wigmore, Evidence (Chadboume Rev. 1970) §§ 1008 through 1015.

The defendant’s conviction for assault in the second degree is based on his act of striking the victim on the side of her head with a large beer bottle after he entered her home and their argument began. On cross-examination of the defendant, he admitted striking the victim with a beer bottle but denied that he had intended to injure her seriously, as required for a conviction of assault in the second degree in the circumstances of this case. Whether the victim was truthful in claiming that the defendant raped her after transporting her to his residence is only remotely related to this assault conviction.

The conviction for tampering with a witness is based on the testimony of the victim that, approximately one month after the other offenses, the defendant telephoned the victim and threatened to kill her if she did not drop the charges for which he had been arrested. The excluded testimony about earlier inconsistent statements of the victim has little bearing on whether he was guilty of witness tampering.

We conclude that the exclusion of the testimony of the defendant’s stepfather concerning the victim’s responses to his inquiries as to whether she had been raped by the defendant was a harmless error.

The judgments are affirmed.

In this opinion the other judges concurred.

       The rescript in Brown I ordered that the case be remanded to the trial court for an investigatory hearing on allegations contained in an anonymous letter to the presiding judge that some jurors may have overheard conversations among the deputy sheriffs attending the trial that were possibly prejudicial. Brown I, supra, 232 Conn. 455.

       In his brief, the defendant claims that the testimony of his mother, as well as that of his stepfather, concerning inconsistent statements made by the victim, was excluded by the trial court. Our review of the transcript indicates that the defendant’s mother was allowed to testify to the inconsistent statements of the victim during her cross-examination by counsel for the defendant on June 6,1995, and also when she testified on direct, examina.tion as a witness for the defendant on June 9, 1995. Only once did the trial court sustain an objection to the mother’s testimony on that subject and, when the same question was asked again by the defendant, shortly thereafter, no objection was raised, and she responded fully to the inquiry.

       General Statutes § 53a-94a provides: “Kidnapping in the second degree with a firearm: Class B felony: Three years not suspendable. (a) A person is guilty of kidnapping in the second degree with a firearm when he commits kidnapping in the second degree, as provided in section 53a-94, and in the commission of such offense he uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. No person shall be convicted of kidnapping in the second degree and kidnapping in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.
      “(b) Kidnapping in the second degree with a firearm is a class B felony for which three years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-92 provides: “Kidnapping in the first degree: Class A felony, (a) A person is guilty of kidnapping in the first degree when he abducts another person and: (1) His intent is to compel a third person (A) to pay or deliver money or property as ransom or (B) to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.
      “(b) Kidnapping in the first degree is a class A felony.”

       The charges of kidnapping in the first degree and kidnapping in the second degree with a firearm were contained in separate counts and the jury rendered separate verdicts on each count. Because kidnapping in the second degree with a firearm contains the requirement that the kidnapping be connected in some manner with a firearm, it is not an offense included within kidnapping in the first degree, which does not contain that element.

       General Statutes § 53a-70 provides: “Sexual assault in the first degree: Class B felony: Nonsuspendable sentences, (a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person, or (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person, or (3) commits sexual assault in the second degree as provided in section 53a-71 and in the commission of such offense is aided by two or more other persons actually present.
      “(b) Sexual assault in the first degree is a class B felony for which one year of the sentence imposed may not be suspended or reduced by the court or, if the victim of the offense is under ten years of age, for which ten years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-72a provides: “Sexual assault in the third degree: Class D felony, (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person, or (2) engages in sexual intercourse with another person whom the actor knows to be related to him or her within any of the degrees of kindred specified in section 46b-21.
      “(b) Sexual assault in the third degree is a class D felony.”

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-151 provides: “Tampering with a witness: Class D felony, (a) A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.
      “(b) Tampering with a witness is a class D felony.”


author: HEIMAN, J. SCHALLER, J.,

text:
    ANNE MULLEN v. JOSEPH A. HORTON ET AL.
    (AC 15380)
    O’Coimell, C. J., and Heiman and Schaller, Js.

      Argued January 28
    officially released September 23, 1997

      Susan K. Smith, for the appellant (plaintiff).

      Joseph T. Sweeney, with whom were James F. Shea and, on the brief, James M. Sconzo, for the appellees (defendant Missionary Oblates of Mary Immaculate, Inc., of New Hampshire et al.).
   Opinion

HEIMAN, J.

The plaintiff appeals from the trial court’s rendering of summary judgment in favor of the defendants. On appeal, the plaintiff claims that the trial court improperly determined that no genuine issue of material fact exists as to whether the defendants, Missionary Oblates of Mary Immaculate, Inc., of New Hampshire and Franco-American Oblate Fathers, Inc., (Oblate institutional defendants) are vicariously liable for the defendant priest’s actions under (1) the doctrine of respondeat superior or (2) the doctrine of apparent authority. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. The defendant, Joseph A. Horton, was a practicing Roman Catholic priest, ordained by and an agent of the Oblate institutional defendants. Horton was also a practicing psychologist. He maintained an office at the defendant Center for Individual and Group Therapy, P.C., in Vernon (therapy center). Given Horton’s vow of poverty, he gave all of the profits he derived from his psychology practice to the Oblate institutional defendants.

In 1988, Horton was assigned weekly priestly duties at Saint Matthew’s Church in Tolland, where the plaintiff was a parishioner. In August, 1988, the plaintiff sought the professional care and treatment of Horton for psychological, emotional and marital problems. Specifically, she sought counseling from Horton because of his joint status as a psychologist and a Roman Catholic priest associated with her parish.

Horton provided the plaintiff with a combination of pastoral, spiritual and psychological counseling, including psychological discussions, spiritual advice and prayer. The plaintiff received counseling from Horton both at his office at the therapy center, and at his office at the Immaculata Retreat House in Willimantic, a house owned and operated by the Oblate institutional defendants. Beginning in February, 1989, Horton and the plaintiff began a sexual relationship, with sexual contact taking place during the counseling sessions. Horton continued to bill the plaintiff and her insurance company for these counseling sessions in which sexual contact occurred. Sexual contact between Horton and the plaintiff also occurred at church retreats, sponsored and run by the Oblate institutional defendants, where Horton was serving as retreat faculty. Horton and the plaintiffs sexual relations continued for approximately two and one-half years, terminating in February, 1992.

About December 16, 1993, the plaintiff filed a seven count complaint against the defendants. On October 31, 1994, the Oblate institutional defendants filed a motion for summary judgment, arguing that there was no genuine issue of material fact as to whether the Oblate institutional defendants were vicariously liable for Horton’s alleged misconduct under either the doctrine of respondeat superior or the doctrine of apparent authority. Attached to their motion for summary judgment were three sworn affidavits of Oblate priests, and a portion of the plaintiffs deposition. In opposition to the motion for summary judgment, the plaintiff filed her sworn affidavit, a portion of her deposition, and an affidavit of Anne C. Pratt, a licensed Connecticut psychologist. On October 18, 1995, the trial court granted the Oblate institutional defendants’ motion for summary judgment. This appeal followed.

I

The plaintiff first argues that the trial court improperly determined that no genuine issue of material fact exists as to whether the Oblate institutional defendants are vicariously liable for Horton’s actions under the doctrine of respondeat superior. In response, the Oblate institutional defendants argue that because the laws of the Roman Catholic Church and the rules of the Oblate Order expressly prohibit priests from engaging in sexual activity, Horton’s alleged sexual exploitation of the plaintiff could not be within Horton’s scope of employment, nor could it be viewed as a furtherance of the Oblate institutional defendants’ business. We agree with the plaintiff.

“We initially note the standard of review of a trial court decision granting a motion for summary judgment. Practice Book § 384 mandates 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. A material fact is a fact that will make a difference in the result of the case. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to ajudgmentasamatteroflaw . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Budris v. Allstate Ins. Co., 44 Conn. App. 53, 56-57, 686 A.2d 533 (1996). “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” (Internal quotation marks omitted.) Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995).

Thus, in order to prevail on her challenge to the summary judgment, the plaintiff must provide an evi-dentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether the Oblate institutional defendants are vicariously liable for Horton’s actions, under the doctrine of respondeat superior. “Under the doctrine of respondeat superior, [a] master is liable for the wilful torts of his servant committed within the scope of the servant’s employment and in furtherance of his master’s business. ... A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment. . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business .... Unless [the employee] was actuated at least in part by a purpose to serve aprincipal, the principal is not liable.” (Citation omitted; internal quotation marks omitted.) Glucksman v. Walters, 38 Conn. App. 140, 144, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995).

“When the servant is doing or attempting to do the very thing which he was directed to do, the master is hable, though the servant’s method of doing it be wholly unauthorized or forbidden. If the servant’s disobedience of instructions will exonerate the master, the proof, easily made, virtually does away with the maxim of respondeat superior. . . . That the servant disobeyed the orders of the master is never a sufficient defense. It must be shown further that he ceased to act for the master and in the course of his employment.” (Citation omitted; internal quotation marks omitted.) Son v. Hartford Ice Cream Co., 102 Conn. 696, 700-701, 129 A. 778 (1925).

“Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further the master’s business. . . . But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law.” (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).

Viewing the evidence before it in the light most favorable to the plaintiff, the trial court could have reasonably found the following. The Oblate institutional defendants employed Horton to give pastoral counseling to paiishioners, in conjunction with his other priestly duties. The Oblate institutional defendants also employed Horton as a staff psychologist for the annulment tribunal and at a number of religious retreats sponsored by the Oblate institutional defendants. The Oblate institutional defendants enabled Horton to counsel both church personnel and the public at large, by giving him an office in their retreat house. The Oblate institutional defendants benefited from Horton’s pastoral and psychological counseling of their parishioners and clerical personnel. They also benefited monetarily from his clinical psychology practice, because all profits derived from his practice were given to the Oblate institutional defendants pursuant to his vow of poverty. Thus, a trier of fact could reasonably find that Horton’s pastoral and psychological counseling of the plaintiff was well within the scope of his employment for the Oblate institutional defendants and was in furtherance of the Oblate institutional defendants’ business.

Horton’s alleged sexual exploitation of the plaintiff occurred during his church sanctioned pastoral-psychological counseling sessions and while he staffed church retreats. Thus, a trier of fact could reasonably determine that Horton’s sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business.

Furthermore, a trier of fact could reasonably find that the sexual relations between Horton and the plaintiff directly grew out of, and were the immediate and proximate results of, the church sanctioned counseling sessions. According to the affidavit of the clinical psychologist, Anne Pratt, sexual relations often mistakenly arise out of an emotional therapeutic relationship. This is known as the transference-countertransference phenomenon. Pratt further opined in her affidavit that a transference-countertransference phenomenon arose between the plaintiff and Horton, with the emotional nature of the therapeutic relationship causing the parties to displace feelings and confuse the therapeutic relationship with an intimate sexual relationship.

The present case is similar to Glucksman v. Walters, supra, 38 Conn. App. 140, and Pelletier v. Bilbiles, 154 Conn. 544, 227 A.2d 251 (1967). In Glucksman v. Walters, supra, 142-43, a part-time Young Men’s Christian Association (YMCA) employee responded to a foul in a YMCA basketball game by severely assaulting the man who had fouled him. We concluded that a jury could have reasonably characterized this assault as “a misguided effort” at maintaining order on the YMCA basketball court and, accordingly, we reversed a directed verdict holding the YMCA not vicariously liable for the assault on the basis of respondeat superior. Id., 145-48.

In Pelletier v. Bilbiles, supra, 154 Conn. 544, an employee of a confectionery store, charged with keeping order in the store, assaulted a customer who had thrown a wrapper on the floor. Our Supreme Court held that “[t]he beating of an unruly customer ... is an extremely forceful, although misguided, method of discouraging patrons of the [store] . . . from causing disturbances on the premises in the future. The fact that the specific method a servant employs to accomplish his master’s orders is not authorized does not relieve the master from liability. . . . Also, the fact that the battery . . . may have been motivated by personal animosity . . . does not exonerate the defendant. ... A master does not escape liability merely because his servant loses his temper while he is conducting the master’s business.” (Citations omitted.) Id., 548.

Here, as in Glucksman and Pelletier, the trier of fact could reasonably have found that Horton’s sexual relations with the plaintiff during their pastoral-psychological counseling sessions, were a “misguided effort” at psychologically and spiritually counseling the plaintiff, rather than an abandonment of the counseling. Just as the YMCA employee’s assault on the basketball court in Glucksman, and the employee’s assault on the customer who had littered in Pelletier represented extreme and clearly unauthorized methods of maintaining order and thereby furthering their employers’ business, Horton’s engaging in sexual contact with the plaintiff during counseling sessions also could represent an extreme and clearly unauthorized method of spiritually and emotionally counseling the plaintiff and thereby furthering the church’s business. “The fact that the specific method a servant employs to accomplish his master’s orders is not authorized does not relieve the master from liability.” Id., 548.

The Oblate institutional defendants argue that this case is governed by Gutierrez v. Thorne, 13 Conn. App. 493, 537 A.2d 527 (1988), Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991), A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 200, and Nutt v. Norwich Roman Catholic Diocese, 921 F. Sup. 66 (D. Conn. 1995). We are unpersuaded, however, and conclude that the present case is distinguishable from these cases.

In Gutierrez v. Thorne, supra, 13 Conn. App. 496-97, an employee of the commissioner of mental retardation was hired to help retarded persons living in the supervised apartment program with keeping up their apartments, grocery shopping, expense budgeting and performing other aspects of daily living. The employee entered the retarded plaintiffs apartment and repeatedly sexually assaulted her. Id. We affirmed a summary judgment in favor of the employer, the commissioner of mental retardation, holding that “it is clear that [the employee] . . . was engaging in criminal conduct which had no connection to the defendant’s business of providing supervision and training to mentally retarded persons regarding daily living skills. Since there were no facts before the court from which it could conclude that [the employee] was furthering the defendant’s interests, the defendant’s nonliability under a respondeat superior theory was properly determined as a matter of law.” Id., 499.

In Gutierrez, unlike here, a trier of fact could not reasonably have determined that the employee’s brutal rape of the retarded plaintiff in her shower was merely a negligent or misguided attempt at supervising her shopping, cleaning, budgeting and daily living. A trier of fact could not reasonably have determined that the employee’s rape of the retarded plaintiff constituted merely an extreme, unauthorized and disobedient method of supervising her daily living. Rather, the employee’s brutal sexual assault of the plaintiff was clearly an abandonment of his supervising duties.

In Brown v. Housing Authority, supra, 23 Conn. App. 624, a mechanic was driving his employer’s van from one maintenance j ob to another when the plaintiff asked the employee to move his van, which was blocking traffic. The employee refused to move the van, and the plaintiff drove away. The employee then left his job route and followed the plaintiffs car. The employee found the plaintiff and rear-ended his car several times. The plaintiff got out of his vehicle, and the employee grabbed a hammer and struck the plaintiff in the chest. Id.

A trier of fact could not reasonably find that the Brown employee’s abandonment of his maintenance mechanic job responsibilities to pursue and assault the plaintiff was a negligent or misguided effort at maintaining machines, or even an extreme method of traveling from one maintenance mechanic job to another, because “the employee necessarily abandoned his employer’s business to pursue and attack the plaintiff.” Glucksman v. Walters, supra, 38 Conn. App. 148. The employee’s “intentional, criminal acts were in no way connected to the defendant’s business.” Brown v. Housing Authority, supra, 23 Conn. App. 628.

The defendants and the dissent rely on A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 200. In that case Pepperidge Farm entered into a consignment agreement with Anthony Spinelli, granting him an exclusive franchise to distribute Pepperidge Farm bakery products within a specified geographical area. Id., 204. Spinelli began defrauding certain independent grocery stores by charging the stores for goods he did not deliver. Id. Pepperidge Farm was unaware of Spinelli’s scheme and never received any money as a result of it. Id., 205. Spinelli argued that Pepperidge Farm benefited from his fraud because the fraud caused a larger portion of shelf space to be devoted to Pepperidge Farm bakery products, thereby stimulating demand and increasing the likelihood of sales. See id., 207-208. The Supreme Court concluded, however, that “any possible indirect benefit Pepperidge Farm might have received by the increased shelf space was so de minimis that, as a matter of law, it [did] not support a conclusion that Spinelli acted within the scope of his employment and in furtherance of Pepperidge Farm’s business.” Id., 209.

A-G Foods, Inc., is distinguishable from the present case. First, Peppeiidge Farm did not benefit monetarily or otherwise from Spinelli’s fraudulent scheme. Here, however, the Oblate institutional defendants did benefit monetarily from Horton’s misguided counseling of the plaintiff. Second, Spinelli’s intricate, complicated and well thought out fraud scheme could not reasonably be characterized as a misguided or negligent attempt at furthering the distribution of Pepperidge Farm products.

The dissent relies heavily on Nutt v. Norwich Roman Catholic Diocese, supra, 921 F. Sup. 66. First, while a federal District Court opinion is persuasive authority, it is not binding on this court. More importantly, however, Nutt is factually distinguishable from the present case. In Nutt, a parish priest showed pornographic movies to two twelve year old altar boys. Id., 69-70. Then, during various out-of-town trips, the priest repeatedly sexually molested the two minor boys, for a period of over six years. Id. The federal District Court granted the Roman Catholic institutional defendants’ motion for summary judgment, holding that they could not be held liable for the defendant priest’s actions under a doctrine of respondeat superior. Id., 70-71.

While a trier of fact could reasonably find that consensual sexual relations between two adults arising out of emotional, spiritual church sponsored counseling sessions represented a negligent and misguided effort at pastoral counseling, a trier of fact could not reasonably find that a priest’s showing pornographic films to young boys and then criminally sexually molesting them in out-of-town motel rooms merely represented a negligent and misguided effort at pastoral counseling. The facts of Nutt clearly represent a situation in which the priest wholly abandoned his pastoral duties. Thus, Nutt represents one of those exceptional cases in which the servant’s digression from duty is so clear cut that the disposition of the case is a matter of law. See A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207.

Therefore, on close examination of the specific facts of this case in light of the relevant case law, we conclude that whether Horton’s actions constituted a negligent, disobedient and unfaithful conducting of church business or a complete abandonment of church business represents an issue about which reasonable minds could differ, and thus constitutes a genuine issue of material fact. Thus, we conclude that the trial court improperly granted the Oblate institutional defendants’ motion for summary judgment.

II

The plaintiff next argues that the trial court improperly found that no genuine issue of material fact exists as to whether the Oblate institutional defendants are vicariously liable for Horton’s actions under the doctrine of apparent authority. Specifically, the plaintiff argues that the Oblate institutional defendants held Horton out to the public as a trustworthy, ethical, respectable priest-clinical psychologist, and the plaintiff relied on this representation in choosing to go to Horton for counseling and in trusting and confiding in Horton during the counseling process. Thus, under the doctrine of apparent authority, the Oblate institutional defendants should be vicariously liable for Horton’s negligent, misguided and unethical behavior during his counseling sessions with the plaintiff.

In other states, the doctrine of apparent authority has been used to hold a principal, who represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent, vicariously liable for harm caused to the third person by the lack of care or skill of his servant or agent. See 1 Restatement (Second), Agency § 267, pp. 578-79 (1958); see also Mehlman v. Powell, 281 Md. 269, 272-75, 378 A.2d 1121 (1977); Sanders v. Rowan, 61 Md. App. 40, 50-58, 484 A.2d 1023 (1984); McClellan v. Health Maintenance, 413 Pa. Super. 128, 135-39, 604 A.2d 1053 (1992). In Connecticut, however, the doctrine of apparent authority has never been used in such a manner. Thus, because we are bound by Connecticut precedent; see Conway v. Wilton, 238 Conn. 653, 658-59, 680 A.2d 242 (1996); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996); we conclude that the doctrine of apparent authority is inapplicable to this case.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment and for further proceedings in accordance with this opinion.

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

SCHALLER, J.,

dissenting. Although I agree with part II of the majority opinion, I disagree with the conclusion in part 1.1 would affirm the trial court’s determination that, as a matter of law, the Oblate institutional defendants are not liable under the doctrine of respondeat superior. When the facts presented by the parties’ affidavits are viewed in their proper context, it is clear that the defendant Joseph A. Horton’s “digression from duty is so clear-cut that the disposition of the case becomes a matter of law.” (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).

The facts that the majority recites from the record present a partial image of the situation. There are, however, other facts and allegations by the plaintiff that are necessary to present a complete factual picture. Those allegations and facts were before the trial court for summary judgment purposes. In this regard, it is important to note that the plaintiff acknowledged the complete incompatibility and inconsistency of Horton’s relationship with her vis-a-vis his role as a priest, by alleging in her complaint: “On several occasions . . . Horton told the plaintiff he was going to leave the priesthood in order to continue and further their intimate relationship.”

In addition, the plaintiff testified at her deposition that starting about March, 1989, and continuing until early 1992, Horton and the plaintiff had discussions about their getting married and his having to make a decision to leave the priesthood in order to marry her. In his deposition, Horton confirmed that the plaintiff had suggested that they get married and never tell anybody about their being married while he remained a priest, but he said that he could not do it that way. On a number of occasions, the plaintiff acknowledged that she and Horton engaged in sexual intercourse on occasions when she invited him into her home. She acknowledged further her active role in their romantic relationship in testifying that she purchased and provided certain materials for him to use most of the time when they engaged in sexual intercourse.

The plaintiff further admitted that during all of her relationship with Horton, she understood that it was clearly outside the scope of any Catholic priest’s employment to engage in sexual relations with anyone. The plaintiff admitted that Horton’s engaging in sexual relations with her was certainly not for the purpose of promoting any of the work of the Catholic Church. She further recognized that Horton, like every other Catholic priest, was under a vow to abstain from sexual activity and she had no reason to believe that he had ever been excused or relieved of that obligation to abstain from sexual activity.

Additional relevant, undisputed facts were presented by the Oblate institutional defendants pertaining to Horton’s activities: (1) At all times, the laws and standards of the Roman Catholic Church and the Rules of the Oblate Order, as well as each priest’s personal commitment to celibacy, have expressly prohibited each priest member of the Oblate Order from engaging in any sexual activity of any kind and from seeking or maintaining any personally intimate relationship or marital relationship with any woman; (2) At all times, any and all attempted or actual sexual activity or personally intimate relationship or marital relationship, which any priest member of the Oblate Order may have sought or maintained with any woman during that time frame, would have been clearly outside the scope of any employment which that person might possibly have held as a Catholic priest or as a member of the Oblate Order; (3) During the course of the plaintiffs relationship with Horton, Horton held nonecclesiastical employment as a clinical psychologist that was not related to any program sponsored or operated by the Oblate Order, and, during that time frame, he was also free personally to contract to render priestly services for and at local parish chinches, which priestly services were also not related to any program sponsored or operated by the Oblate Order.

These additional facts and admissions by the plaintiff, when considered with the facts recited in the majority opinion, present a more complete factual picture of the situation and cast doubt on the majority’s characterization of the parties’ long-standing intimate relationship as merely “an extreme and clearly unauthorized method of spiritually and emotionally counselling the plaintiff and thereby furthering the church’s business.”

Horton’s participation in this consensual relationship, which was even carried on in the plaintiffs home, and which involved proposals of marriage, with Horton • either concealing it and remaining in the church, or leaving the church entirely, could not reasonably be construed as simply an errant and misguided method of carrying out his counseling mission. The full factual context represents a vivid picture of an unrelated, independent, intimate, romantic relationship that both parties recognized was far beyond the permissible scope of Horton’s priestly role. The fact that the parties may have met, and the relationship may have commenced, in the course of counseling is not sufficient to activate the doctrine of respondeat superior with respect to the Oblate institutions from which Horton concealed his impermissible relationship. Under these facts, Horton’s action in conducting this relationship with the plaintiff represented a complete departure from his responsibilities to the Oblate institutional defendants. His longstanding, independent relationship with the plaintiff in no way furthered the interests of his employers. Like the trial court, we should be extremely hard pressed under these facts to find that the business of the Oblate institutional defendants was furthered by the activities attributed to Horton.

As the majority acknowledges, “[ojrdinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business. . . . But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law.” (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207. This case is controlled by our Supreme Court’s decision in A-G Foods, Inc. Specifically, in that case the Supreme Court upheld the trial court’s determination that “any possible indirect benefit Pepperidge Farm might have received by the increased shelf space [allocated to Pepperidge Farm because of Spinelli’s overstated sales] was so de minimis that, as a matter of law, it does not support a conclusion that Spinelli acted within the scope of his employment and in furtherance of Pepperidge Farm’s business.” Id., 209. Peppeiidge Farm benefited basically from Spinelli’s actual sales to A-G Foods, Inc. Similarly, even though the Oblate institutional defendants may have received some monetary benefit from Horton’s authorized counseling work, there is no factual showing that it benefited specifically from the activities associated with the intimate relationship that Horton carried on with the plaintiff during the same time period as the counseling activity was occurring. Furthermore, the Supreme Court in A-G Foods, Inc., determined that, even though the fraudulent transactions took place at the stores and during the hours when Spinelli was engaged in selling Pepperidge Farm merchandise, that is not sufficient to support the conclusion that he was acting within the scope of his employment. “Unless Spinelli was actuated at least in part by a purpose to serve a principal, the principal is not liable.” (Internal quotation marks omitted.) Id., 210. Similarly, the facts in the present case indicate simply that Horton was motivated to serve his own interest, not that of the Oblate institutional defendants, whose most fundamental rules he violated by his conduct, and with full knowledge and acquiescence on the part of the plaintiff. The situation in A-G Foods, Inc., is directly analogous to the present situation. The speculation contained in the affidavit of one witness in this case that some sort of transference-countertransference may have occurred is no more significant a factor than the factor of the enhanced shelf space that may have resulted from Spi-nelli’s activities.

The majority relies on Glucksman v. Walters, 38 Conn. App. 140, 144, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995), and Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967), to support its inteipretation of Horton’s activities as merely misguided and unauthorized methods of counseling. Those cases are distinguishable. In both cases, the actions complained of represented an inappropriate and enlarged version of what would have been appropriate activity to maintain order and prevent disturbances. Neither case is persuasive. Gutierrez v. Thorne, 13 Conn. App. 493, 498-99, 537 A.2d 527 (1988), and Brown v. Housing Authority, 23 Conn. App. 624, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991), on the other hand, support the trial court’s decision in this case. In both cases, the improper activity represented a departure from an appropriate course of conduct.

In the present case, Horton’s activity was as much a departure from appropriate counseling activity as Spinelli’s fraudulent sales activity was a departure in A-G Foods, Inc. Moreover, the decision in Nutt v. Norwich Roman Catholic Diocese, 921 F. Sup. 66 (D. Conn. 1995) is highly persuasive. Horton’s alleged actions in engaging in improper sexual activity no more furthered the interests of the Oblate institutional defendants than did that of the parish priest in Nutt. See also Tichenor v. Roman Catholic Church of Archdiocese of New Orleans, 32 F.3d 953, 960 (5th Cir. 1994) (“[i]t would be hard to imagine a more difficult argument than that [Horton’s] illicit sexual pursuits were somehow related to his duties as a priest or that they in any way furthered the interests of . . . his employer”).

I would affirm the decision of the trial court granting summary judgment in this case.

For the foregoing reasons, I respectfully dissent.

       The plaintiff also argues that the trial court improperly rendered summary judgment on her Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; and professional negligence claims. Both the CUTPA and professional negligence claims, however, are fundamentally based on the Oblate institutional defendants’ being held vicariously liable for the defendant priest’s actions. Thus, our resolution of the vicarious liability claim is dispositive of the CUTPA and professional negligence claims.