author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. GILBERT NAZARIAN
    (AC 30290)
    Gruendel, Robinson and Hennessy, Js.

      Argued October 22
    officially released December 14, 2010

      Alexander H. Schwartz, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and David R. Applegate, assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Gilbert Nazarian, appeals from the judgment of conviction, rendered after a jury trial, of negligent homicide with a motor vehicle in violation of General Statutes (Rev. to 2005) § 14-222a (2), evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a) and making a false statement in the second degree in violation of General Statutes § 53a-157b (a). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to sustain his conviction of evasion of responsibility in the operation of a motor vehicle and (2) the court improperly instructed the jury on the elements of that crime. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 3:45 a.m. on August 21,2006, the defendant, his girlfriend, Elizabeth Green, and Manuel “Tony” Martinez exited the Tropic nightclub in Port Chester, New York. At that time, they engaged in a verbal altercation with another group of patrons that included the victim, Mike Castillo. The patrons thereafter retreated to their respective vehicles. The defendant departed the premises with Green in the front passenger seat and Martinez in a rear seat of his Acura RSX motor vehicle; the victim, Oscar Velez, Carlos Londono and Andrez Panqueba left in a Toyota Corolla. Both vehicles then traveled on Interstate 95, at times racing, and exited in Stamford. Eventually, the defendant stopped his vehicle at a red traffic signal on East Main Street, and the Toyota Corolla approached. The victim then exited the vehicle, ran over to the defendant and began punching him through the open driver’s side window. When the traffic signal turned green, the defendant sped off with the victim’s arm still inside the vehicle, reaching a speed in excess of thirty-seven miles per hour. As a result, the victim was dragged down the road, causing smoke to emanate from his shoes. Because the victim was clinging to the vehicle, the defendant applied the brakes in an effort to remove him. When that effort proved unsuccessful, the defendant “hit the gas and [the victim then] came off the [vehicle].” When Velez, Londono and others found the victim lying in the street moments later, blood was coming from his mouth and the back of his head. They immediately called 911 for assistance. The victim was transported to a nearby hospital, where he was pronounced dead. Ira Kanfer, a state medical examiner, testified that the cause of death was the severing of the victim’s spinal cord from his brain due to the impact of his head hitting the street.

When the victim fell from the defendant’s vehicle, the defendant did not stop the vehicle or attempt to render assistance in any manner. Instead, he continued to his residence at 44 Strawberry Hill Avenue, which is approximately one and one-half miles from the scene of the incident. Within minutes of the incident, Martinez called a nonemergency telephone number to contact the Stamford police. He stated that he had just been involved in an altercation on East Main Street. Martinez did not report that there had been an accident or that the victim had been dragged by the vehicle and had fallen from it at that time. Notably, Martinez indicated that he had been the operator of the Acura that evening.

When officers arrived at the defendant’s residence, the defendant and Green perpetuated Martinez’ lie, stating that Martinez had been the operator of the motor vehicle. Martinez spun a tale of the evening’s events, explaining that he had sped away when the victim attacked him in the driver’s seat on East Main Street, that he stopped the vehicle to remove the victim therefrom and that he then drove away because he was scared. Martinez, Green and the defendant later were taken to police headquarters to provide formal statements. While there, the defendant recognized Kathleen Haley, a sergeant with the Stamford police department, whom he knew as a resource officer at his school. He informed her that he had been in a motor vehicle accident and asked if she knew “if the kid that was injured was okay . . . .” The defendant then provided a sworn statement in which he attested that Martinez had been driving the Acura that evening and that he was in the backseat at the time of the accident.

Martinez and Green subsequently admitted that they had lied to the police and confirmed that the defendant had been driving the Acura at the time of the accident. On August 29, 2006, the defendant provided a second sworn statement to the police in which he admitted that he was the operator of the Acura at that time. He further admitted that when he applied the brakes in an effort to “get [the victim] off’ of his moving vehicle, the victim “just lurched forward but did not fall off the car. I then hit the gas and he came off the car.” The defendant also admitted that he did not stop his vehicle at that time and that he did not thereafter call the police to report the accident.

The defendant’s criminal trial followed, at the conclusion of which the jury found him guilty of negligent homicide with a motor vehicle, evasion of responsibility in the operation of a motor vehicle and making a false statement in the second degree. The defendant subsequently filed motions for a judgment of acquittal and for a new trial, which were denied. The court rendered judgment in accordance with the jury’s verdict and sentenced the defendant to a total effective term of seven years incarceration, execution suspended after eighteen months, with five years of probation. From that judgment, the defendant appeals.

I

The defendant first claims that the evidence adduced at trial was insufficient to sustain his conviction of evasion of responsibility in the operation of a motor vehicle. We disagree.

It is bedrock law that “the [d]ue [p]rocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The standard of review for a sufficiency of the evidence claim employs 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517, 782 A.2d 658 (2001).

It is axiomatic 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 jury is permitted to consider the fact proven 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. . . . Moreover, it does not dimmish 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. ... In evaluating evidence, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [jury] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-03, 902 A.2d 1044 (2006). With that standard in mind, we turn to the defendant’s claim.

Section 14-224 (a) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may have been needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.”

In State v. Rosario, 81 Conn. App. 621, 841 A.2d 254, cert. denied, 268 Conn. 923, 848 A.2d 473 (2004), this court articulated the essential elements of that statute. We stated: “To establish a violation of § 14-224 (a), the state first had to prove that (1) the defendant was operating a motor vehicle, (2) the defendant was knowingly involved in an accident and (3) that accident caused the death or serious physical injury of any other person. Once those predicate elements were established, the state could prove a violation of § 14-224 (a) if it proved that the defendant failed to fulfill any one or more of the following duties required of him by the statute: (4) that the defendant failed to stop at once and render such assistance as may be needed; or (5) unless there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to give his name, address, operator’s license number and registration number to the person injured, any officer or a witness to the accident; or (6) if there was evidence that the defendant was unable, for any reason or cause, to provide the statutorily required information at the scene, that the defendant failed to report immediately the death or serious physical injury to a police officer, a constable, a state police officer oían inspector of motor vehicles, or at the nearest police precinct or station, and to give the same information as to his name, address, operator’s license number and registration number to the police officer, constable, state police officer or inspector of motor vehicles together with additional information that would not have been required had the report been made at the scene of the accident, namely, the location and circumstances of the accident.” (Emphasis added.) Id., 634.

The defendant does not dispute that the state presented sufficient evidence regarding the predicate elements of § 14-224 (a). Instead, he claims that he was “legally justified” in fleeing the scene of the accident and that he subsequently complied with the requirements of that statute.

In Rosario, the court emphasized that “[although the reporting requirements [contained in § 14-224 (a)] are phrased in the alternative, the statute’s directive to stop at once does not provide a similar alternative. Section 14-224 does not leave an operator an excuse for failing to stop for any reason . . . .” State v. Rosario, supra, 81 Conn. App. 629. Accordingly, when a jury finds the predicate elements of the statute to be met, it “[has] to find only that the defendant did not stop to convict him of evasion of responsibility in the operation of a motor vehicle.” Id., 635; see also State v. Lawson, 99 Conn. App. 233, 246, 913 A.2d 494, cert. denied, 282 Conn. 901,918 A.2d 888 (2007). Because it is undisputed that the defendant did not stop his vehicle and render assistance to the victim, the jury on that basis reasonably could have concluded that he violated § 14-224 (a).

Assuming arguendo, as the defendant maintains, that the jury reasonably concluded that he was unable to stop his vehicle due to a “danger of bodily harm if he remained at the scene of the accident,” the evidence nonetheless was sufficient for it to find the defendant guilty of evasion of responsibility in the operation of a motor vehicle. First, it is undisputed that the defendant never reported the accident to law enforcement as required by § 14-224 (a); that call was made by Martinez. Although the defendant on appeal suggests that an operator of a motor vehicle in such instances can delegate his duty to report, the statute does not so provide. In addition, this court has neither been presented with nor found any authority so indicating. Second, the evidence before the jury indicates that Martinez in that call failed to inform the police of the circumstances of the accident and the fact that the victim had been injured, as required by the statute. Third, in Martinez’ telephone call to the police, he did not identify the defendant as the operator of the vehicle. Similarly, in neither the defendant’s statement to the police at his residence nor his signed statement at the police station did the defendant acknowledge that he was the operator of the Acura. Rather, he lied each time.

Section 14-224 (a) is titled “[ejvasion of responsibility in operation of motor vehicles . . . .” Its plain language imposes certain obligations on a “person operating a motor vehicle,” including reporting requirements concerning one’s name, address and operator’s license number. See State v. Rosario, supra, 81 Conn. App. 628. We fail to see how a person such as the defendant can comply with those obligations when he has failed to identify himself as the operator of the motor vehicle in question. Such an unreasonable and bizarre result could not have been intended by our legislature in enacting § 14-224 (a). As our Supreme Court has observed, “[t]he purpose of the statute on evading responsibility is to ensure that when the driver of a motor vehicle is involved in an accident, he or she will promptly stop, render any necessary assistance and identify himself or herself ” (Emphasis added.) State v. Johnson, 227 Conn. 534, 544, 630 A.2d 1059 (1993). That purpose would be thwarted were we to adopt the defendant’s strained reading of § 14-224 (a).

In the present case, it is undisputed that the defendant, while operating a motor vehicle, knowingly was involved in an accident that caused serious physical injury, and ultimately death, to another person. The record before us contains ample evidence that the defendant did not (1) stop at once and render such assistance as may have been needed, (2) immediately report the circumstances of the accident and the fact that the victim had been injured to law enforcement, and (3) identify himself as the operator of the vehicle. Accordingly, the jury reasonably concluded that the defendant violated § 14-224 (a).

II

The defendant next contends that the court improperly instructed the jury on the elements of § 14-224 (a) in violation of his right to due process under the federal and state constitutions. The defendant did not preserve this claim at trial and now seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). “[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.” (Emphasis in original.) Id., 239-40. We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Peeler, 271 Conn. 338, 369 n.29, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845,126 S. Ct. 94,163 L. Ed. 2d 110 (2005). On its merits, the claim fails to satisfy Golding's third prong.

In reviewing claims of instructional impropriety, we are mindful that “[t]he principal function of a jury charge is to assist the jury in applying the law correctly to the facts which [the juiy] 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. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions . . . 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. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007).

In instructing the jury on § 14-224 (a), the court stated: “[T]he defendant is charged in count two, with evading responsibility in the operation of a motor vehicle. The statute defining this offense reads in pertinent part as follows. Each person operating a motor vehicle who is knowingly involved in an accident which results in the death of any other person shall, at once, stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to any officer or witness to the accident.

“So, for you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. The first element is that the defendant operated a motor vehicle. A motor vehicle means all vehicles used on public highways and includes an automobile. So, a person operates a motor vehicle— I’ve instructed you on this before but I’ll give you the short form again. A person operates a motor vehicle within the meaning of the statute when, while in the vehicle, such person intentionally does any act or makes use of any mechanical or electrical agency that alone, or in sequence, will set in motion the motive power of the vehicle. And a person acts intentionally with respect to conduct that is operation; when his conscious objective is to engage in such conduct.

“Now, the second element that the state has to prove after operation of a motor vehicle. The second element is [whether] the defendant was knowingly involved in an accident. It is only necessary that the state prove that there had been an accident and the defendant knew of this accident. It is not necessary that the state prove that the defendant had knowledge of any resulting injury to a person. A person acts knowingly with respect to conduct or to a circumstance described by a statute, defining an offense, when he is aware that his conduct is of such nature or that such circumstances exist. An act is done knowingly if done voluntarily and purposely and not because of mistake, inadvertence or accident. Now, ordinarily, knowledge can be established only through an inference from other proven facts or circumstances. If you recall, I instructed you on circumstantial and direct evidence drawn on inferences. The inference may be drawn if the circumstances are such that a reasonable person of honest intention in the situation of the defendant would have concluded that he had been involved in an accident. The determinative question is whether the circumstances in the particular case form a basis for a sound inference as to the knowledge of the defendant in the events under inquiry.

“The third element is that the accident caused death to a person. This means that the death was a result of the accident. What I had said before about proximate cause applies here. And again, the state must prove that the accident caused death to a person, not that the defendant knew that he had caused someone’s death.

“The fourth element is that the defendant did not stop at once and render assistance as needed, and did not give his name, address, operator’s license number and registration number to [a witness to] the accident or to an officer. If for any reason or cause, the defendant was unable to provide the required information at the scene of the accident, the law requires him to immediately report the accident to a law enforcement officer or at the nearest police station. But this does not relieve a person of the duty to stop at once and render assistance.

“In summary, the state must prove beyond a reasonable doubt that, one, the defendant operated a motor vehicle; two, he knew that he had been involved in an accident; three, the accident caused death to a person; and four, the defendant did not stop at once and render assistance as needed, and did not give his name, address, operator’s license number and registration number to a witness to the accident or an officer. So, if you unanimously find that the state has proven beyond a reasonable doubt each of the elements of evading responsibility, then you should find the defendant guilty. On the other hand, if you unanimously find the state has failed to prove, beyond a reasonable doubt, any of the elements, you shall then find the defendant not guilty.”

During its deliberations, the jury sent the court a note regarding the aforementioned charge, inquiring, “how can a person be justified in leaving yet be required to stop and render assistance?” The court thereafter provided the jury a supplemental instruction in which it stated: “The defendant is charged in count two with evading responsibility in the operation of a motor vehicle. The statute defining this offense reads in pertinent part as follows. Each person operating a motor vehicle, who is knowingly involved in an accident which results in the death of any other person, shall at once stop and render such assistance as may be needed, and shall give his name, address and operator’s license number and registration number to any officer or witness to the accident. The fourth element is that the defendant did not stop at once and render assistance as needed, and did not give his name, address, operator’s license number and registration number to a witness to the accident or [to] an officer. If for any reason or cause, the defendant was unable to provide the required information at the scene of the accident, the law requires him to immediately report the accident to a law enforcement officer or at the nearest police station. This does not relieve a person of the duty to stop at once and render assistance. Yet, I would go on to say this. If you find, based on the totality of the evidence, that the defendant had an honest and reasonable belief that he was in danger of bodily harm if he remained at the scene, then, that may justify his failing to stop at once and render assistance as needed. This would still require the defendant to immediately and truly report the accident to a law enforcement officer or at the nearest police station. . . .

“The state claims that the defendant did not fulfill this requirement because it was a Mend who claimed he was the operator. The defendant did not identify himself and truly give the information required by law. The defendant claims that he did not identify himself as such because his license was under suspension. You will decide from the evidence whether the defendant complied with his obligations in accordance with these instructions.”

On appeal, the defendant challenges the propriety of a single sentence in the supplemental instruction. He argues that the court improperly instructed the jury that if it found that he was justified in not immediately stopping his vehicle and rendering assistance, it could still find him guilty under § 14-224 (a) if he did not “truly give the information required by law.” A review of the instruction plainly indicates that the court did not so instruct the jury on the applicable law but, rather, made that statement at the conclusion of its supplemental instruction in the context of providing a summary of the respective positions of the state and the defendant. The defendant further assails the court’s instruction as imprecise, arguing that it failed to “specifically identify the information” that § 14-224 (a) required him to provide. That claim is without merit, as the court, in both its original instruction and its supplemental instruction, properly advised the jury that the statute required the defendant to provide his name, address, operator’s license number and registration number.

We conclude that the court’s instructions, viewed in their entirety, adequately informed the jury of the elements of the evading responsibility in the operation of a motor vehicle offense. In particular, we note that the court, consistent with the decision of this court in State v. Rosario, supra, 81 Conn. App. 634, apprised the jury that if it found that the defendant “was unable to provide the required information at the scene of the accident, the law requires him to immediately report the accident to a law enforcement officer or at the nearest police station. This does not relieve a person of the duty to stop at once and render assistance. Yet, I would go on to say this. If you find, based on the totality of the evidence, that the defendant had an honest and reasonable belief that he was in danger of bodily harm if he remained at the scene, then, that may justify his failing to stop at once and render assistance as needed. This would still require the defendant to immediately and truly report the accident to a law enforcement officer or at the nearest police station. ’’Upon our review of the court’s instructions as a whole, we conclude that it was not reasonably possible that the jury was misled. Accordingly, the defendant’s claim fails to satisfy Golding’s third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The audio recording of Martinez’ call to the Stamford police was admitted into evidence. The transcript of the conversation contained therein is as follows:
      “[Stamford Police Department]: Stamford Police Department.
      “Martinez: Yes how are you doing officer?
      “[Stamford Police Department]: Pretty good.
      “Martinez: Listen, I was at a club in Port Chester, New York and there was a little bit of a misunderstanding with my friend and his girlfriend. AH right, the guys — there was like five or six guys following us, they followed us all the way to exit nine. At the exit nine McDonald’s they got out, they started punching me in the face and whatnot.
      “[Stamford Police Department]: All right, what is your name?
      “Martinez: My name is Manuel Martinez. As we were driving off whatnot, the guy grabbed on to the car, so like I was going a little bit and he grabbed on and he started choking me.
      “[Stamford Police Department]: Okay. . . .
      “[Stamford Police Department]: And where are you now?
      “Martinez: Hello?
      “[Stamford Police Department]: Where are you now sir?
      “Martinez: I’m over here at 44 Strawberry Hill.
      “[Stamford Police Department]: 44 Strawberry, are you going to wait there?
      “Martinez: Yes sir, I’m here parked in the parking lot.
      “[Stamford Police Department]: What kind of car do you got, Manuel?
      “Martinez: It is a black RSX type S.
      “[Stamford Police Department]: That’s a Mazda?
      “Martinez: No it’s an Acura RSX.
      “[Stamford Police Department,]: Acura?
      “Martinez: Yes sir.
      “[Stamford Police Department]: Okay, you’re in the parking lot there?
      “Martinez: We’re in the back of the parking lot.
      “[Stamford Police Department]: Yeah, behind the building there’s like upstairs and downstairs.
      “Martinez: Yeah, we parked back here because there’s like six guys after us.
      “[Stamford Police Department]: Yeah, okay you stay right there.
      “Martinez: All right. Bye.”

       The state’s long form information charged the defendant with manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1). The jury found the defendant not guilty on that count but found him guilty of negligent homicide with a motor vehicle in violation of General Statutes (Rev. to 2005) § 14-222a, a lesser included offense.

       Because the defendant provides no independent state constitutional analysis, we confine our review to his claim under the federal constitution. See State v. Wright, 246 Conn. 132, 138, 716 A.2d 870 (1998).

       Although the state, relying on State v. Hankerson, 118 Conn. App. 380, 389, 983 A.2d 898 (2009), submits that the defendant waived his objection to the court’s supplemental instruction, we do not consider that issue in light of our conclusion that the claim fails on its merits.


source: Caselaw Access Project

license: Public Domain

text:
    JONATHAN STUART ET AL. v. PETER G. SNYDER
    (AC 31486)
    Gruendel, Harper and Mihalakos, Js.

      Argued October 19
    officially released December 14, 2010

      Sandra J. Akoury, for the appellants (plaintiffs).

      Gerard N. Saggese III, with whom, on the brief, was James A. Fulton, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiffs, Jonathan A. Stuart and William Stuart, appeal from the summary judgment rendered by the trial court in favor of the defendant, Peter G. Snyder, on the ground that their action is barred by General Statutes § 52-577. On appeal, the plaintiffs claim that summary judgment was improper because there are genuine issues of material fact as to whether the statute of limitations was tolled by both the continuing course of conduct doctrine and the defendant’s allegedly fraudulent concealment of the plaintiffs’ cause of action under General Statutes § 52-595. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiffs and their brother, Kenneth J. Stuart, Jr. (Stuart, Jr.), are the only children and heirs of Kenneth J. Stuart (Stuart, Sr.). In 1991, Stuart, Sr., established an estate plan, including the creation of a trust and the execution of a will that, upon his death, would have distributed his assets equally among the plaintiffs and Stuart, Jr. Stuart, Jr., was named as trustee of the trust and executor of the will, and from 1992 until 2002, the defendant worked as an attorney representing Stuart, Jr., personally, and the estate and trust of Stuart, Sr.

In 1993, the plaintiffs brought an action against Stuart, Jr., individually and as trustee of the trust and executor of the estate, claiming that he had misappropriated various properties from the Stuart estate to his own benefit without their consent in contravention of Stuart, Sr.’s will and estate plan. Thereafter, on April 12, 2006, the plaintiffs filed this tort action against the defendant, claiming that he provided legal assistance to Stuart, Jr., in unlawfully converting estate assets. On March 9, 2009, the defendant filed a motion for summary judgment, asserting that the plaintiffs’ action was barred by the applicable three year statute of limitations set forth in § 52-577. In support of his motion, the defendant filed affidavits and other documents, including billing records, demonstrating that the last time he provided any legal services to Stuart, Jr., or the Stuart estate was February 5, 2003. Thus, as argued by the defendant, February 5, 2003, represents the latest possible date that any of the alleged wrongful conduct could have occurred, and because service of process was not made on the defendant until March 24, 2006, the plaintiffs’ claims were barred by § 52-577. The plaintiffs did not offer any evidence to contradict the defendant’s assertion that none of the alleged tortious actions occurred after February 5, 2003. Rather, they argued that the statute of limitations was tolled by the continuing course of conduct doctrine, as well as the defendant’s fraudulent concealment of their cause of action. On August 25, 2009, in a memorandum of decision, the court concluded that the defendant had sustained his burden of proof as to the lack of a material question of fact regarding the expiration of the three year statute of limitations. Additionally, the court concluded that neither of the tolling doctrine exceptions asserted by the plaintiffs were applicable. This appeal followed.

Before addressing the plaintiffs’ specific claims, we note the well settled legal principles governing a motion for summary judgment. “[T]he nonmoving party [in a summary judgment motion] has no obligation to submit documents establishing the existence of [a genuine issue of material fact in the first instance]. . . . Once the moving party has met its burden [of showing that there is no genuine issue of material fact], however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Boone v. WiUiam W. Backus Hospital, 272 Conn. 551, 558, 864 A.2d 1 (2005).

In the present case, the plaintiffs claim that the court improperly granted the defendant’s motion for summary judgment because there are genuine issues of material fact both as to the applicability of the continuing course of conduct doctrine and the defendant’s fraudulent concealment of the plaintiffs’ cause of action under § 52-595. We address each of these claims in turn.

I

The plaintiffs first claim that a genuine issue of material fact exists as to whether the statute of limitations was tolled in this case by the continuing course of conduct doctrine. We disagree.

“The question of whether a party’s claim is barred by the statute of limitations is a question of law, which this court reviews de novo. . . . The issue, however, of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact. . . . We defer to the trial court’s findings of fact unless they are clearly erroneous. . . .

“General Statutes § 52-577 is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held hable and in some cases will serve to bar an action before it accrues. . . . Nonetheless, [w]hen the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed. . . . [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Citation omitted; emphasis added; internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn. App. 125, 139-40, 907 A.2d 1220 (2006). “Thus, there must be a determination that a duty existed and then a subsequent determination of whether that duty is continuing.” Watts v. Chittenden, 115 Conn. App. 404, 412, 972 A.2d 770, cert. granted on other grounds, 293 Conn. 932, 981 A.2d 1077 (2009).

Here, the plaintiffs maintain that the defendant, because of his service as attorney for the estate and trust of Stuart, Sr., owed them a duty as beneficiaries and that this duty continued beyond February 5, 2003, given the defendant’s “special relationship” with the plaintiffs. Even if we assume arguendo, however, that the defendant did owe the plaintiffs a duty when he served as the attorney for the estate of Stuart, Sr., “[m]any of the alleged wrongdoings by the defendant [in the present case] occurred during the pendency of the [initial] civil trial against Stuart, Jr. [in 1994].” As the court explained in its memorandum of decision, “[c]learly the relationship between the plaintiffs and the defendant was adversarial” at the time of the initial trial against Stuart, Jr., and “any suggestion that the defendant . . . owed a duty to the plaintiffs [at this time] runs counter to the duty which he owed to the estate of Stuart, Sr., and to Stuart, Jr., his actual clients and [the] defendants [in the initial trial].” As such, “[a]ny duty the defendant might conceivably have owed to the plaintiffs at some previous time certainly terminated as his duty of representation towards the Stuart estate and Stuart, Jr., caused conflicting obligations.” Furthermore, the plaintiffs have offered no evidence whatsoever to refute the defendant’s claim that no possible wrongdoing occurred after February 5,2003. Even if the defendant were deemed to owe a duty to the plaintiffs as beneficiaries of the will, any such duty did not continue past the time period set forth in § 52-577. Therefore, the plaintiffs have failed to rebut the defendant’s showing that no genuine issue of material fact exists as to whether the statute of limitations was tolled by the continuing course of conduct doctrine. See Boone v. William W. Backus Hospital, supra, 272 Conn. 559 (“It is not enough ... for the opposing party merely to assert the existence of ... a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].” [Internal quotation marks omitted.]); 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994) (“[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence” [emphasis added]). Accordingly, the plaintiffs’ claim fails.

II

The plaintiffs next claim that a genuine issue of material fact exists as to whether the defendant fraudulently concealed the plaintiffs’ cause of action such that the statute of hmitations was tolled by application of § 52-595. We are not persuaded.

“Our Supreme Court has stated that [t]o establish that the [defendant] had fraudulently concealed the existence of [the plaintiff’s] cause of action and so had tolled the statute of limitations, the [plaintiff] had the burden of proving that the [defendant was] aware of the facts necessary to establish [the] cause of action . . . and that [the defendant] had intentionally concealed those facts from the [plaintiff]. . . . [Additionally], the [defendant’s] actions must have been directed to the very point of obtaining the delay [in filing the action] of which [the defendant] afterward [seeks] to take advantage by pleading the statute. ... To meet this burden, it [is] not sufficient for the [plaintiff] to prove merely that it was more likely than not that the [defendant] had concealed the cause of action. Instead, the [plaintiff must] prove fraudulent concealment by the more exacting standard of clear, precise and unequivocal evidence . . . .” (Emphasis added; internal quotation marks omitted.) Byrne v. Burke, 112 Conn. App. 262, 272, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).

Here, the defendant submitted affidavits and other evidence documenting his relationship with the plaintiffs in support of his motion for summary judgment. In response, the plaintiffs merely assert that issues of fact exist but have failed to present any evidence that a question of material fact exists as to whether the defendant fraudulently concealed the present cause of action. See Boone v. William W. Backus Hospital, supra, 272 Conn. 559 (“[m]ere assertions of fact . . . are insufficient to establish the existence of a material fact” [internal quotation marks omitted]). As the plaintiffs have failed to overcome the defendant’s showing that no genuine issue of material fact exists as to whether the defendant fraudulently concealed the plaintiffs’ cause of action, we cannot say that summary judgment was improper in this case. Accordingly the plaintiffs’ claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       Stuart, Sr., died on February 27, 1993.

       For a detailed account of the factual circumstances underlying the plaintiffs’ action against Stuart, Jr., see Stuart v. Stuart, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08-CV-02-0193031-S (June 28, 2004) (37 Conn. L. Rptr. 367).

       The plaintiffs do not dispute that this case is governed by § 52-577.

       The plaintiffs’ counsel conceded during oral argument in this case that service of process was made on the defendant outside of the three year statute of limitations period and that the principal issue on appeal was the applicability of the tolling doctrines.

       We decline to elaborate further on the nature of the duty that the defendant, as attorney for the estate of Stuart, Sr., owed the plaintiffs as beneficiaries under the estate plan. For purposes of this appeal, it is sufficient to accept as true the plaintiffs’ contention that the defendant did indeed owe the plaintiffs a duty, as this duty did not continue so as to toll the statute of limitations.


author: PER CURIAM.

text:
    MIGUEL RUA v. GENE R. KIRBY ET AL.
    (AC 31535)
    Beach, Robinson and Pellegrino, Js.
    Argued October 15
    officially released December 14, 2010

      James O. Gaston, for the appellant (plaintiff).

      John C. Mayano, for the appellees (defendants).
   Opinion

PER CURIAM.

In this personal injury action, the plaintiff, Miguel Rua, appeals following the trial court’s denial of his motion to set aside the verdict in his favor. On appeal, he claims that the court improperly failed to charge the jury that the defendants, Gene R. Kirby and Mary Aviles, “take the plaintiff as they find him,” and, therefore, the court abused its discretion when it denied his motion to set aside the verdict. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 22, 1996, at approximately 3:30 p.m., the plaintiff was traveling northbound in his vehicle on Park Avenue in Bridgeport. The plaintiff was driving in front of a vehicle that was driven by Kirby and owned by Aviles. As the plaintiffs vehicle stopped for a red traffic signal at the intersection of Park Avenue and Rail Road Avenue, the defendants’ vehicle collided with the rear of the plaintiffs vehicle.

The plaintiff filed a complaint alleging that, as a result of the collision, he suffered physical injuries and that the collision was a result of the defendants’ negligence. Particularly, the plaintiff alleged extensive injuries to his back. On October 1, 2001, the court granted the plaintiffs request to amend his complaint. The plaintiff amended his complaint to include additional injuries suffered as a result of the accident, including, inter alia, aggravation of an asymptomatic disc condition. The defendants denied that any negligence on their part caused the plaintiffs injuries. A trial was held between December 16 and 19, 2003. No interrogatories were submitted to the jury. After hearing the evidence, the jury returned a verdict in favor of the plaintiff in the amount of $22,941.03. On December 26,2003, the plaintiff filed a motion to set aside the verdict, claiming that the court improperly had failed to provide the jury with a “take the plaintiff as he is” instruction. The court denied the motion and rendered judgment in accordance with the jury’s verdict. From that judgment, the plaintiff appeals.

On appeal, the plaintiff claims that the court improperly failed to charge the jury that the defendants “take the plaintiff as they find him.” We disagree.

At trial, the plaintiff offered evidence that he had suffered various injuries to his back as a result of the accident. He also offered evidence that he had a preexisting condition, namely, degenerative disc disease. In light of the evidence offered relating to this preexisting condition, the plaintiff requested that the court charge the jury that the defendants must “take the plaintiff as they find him” and that the defendants are responsible for all of the injuries proximately caused by their negligence, even if the plaintiff had a preexisting condition that would cause the injuries to be more severe. The court refused to provide the jury with the requested charge, and the plaintiff took exception to the court’s refusal.

The trial court has wide discretion in charging the jury. “Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them.” (Internal quotation marks omitted.) Mojica v. Benjamin, 64 Conn. App. 359, 368, 780 A.2d 201 (2001). “Claims of error addressed to the [jury] charge are tested by the pleadings and by the evidence .... The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. . . . The court should, however, submit to the jury all issues as outlined by the pleadings and as reasonably supported by the evidence.” (Citation omitted; internal quotation marks omitted.) Olkowski v. Dew, 48 Conn. App. 864, 868, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998).

The plaintiff argues that he was entitled to the requested charge because (1) the charge related to an allegation in his complaint that the accident aggravated his preexisting condition and (2) he presented sufficient evidence at trial to suggest that the accident aggravated that preexisting condition. The court, in its decision not to set aside the verdict, stated: “The complaint does allege that the plaintiff sustained an aggravation of an asymptomatic disc condition. There was evidence that the plaintiff did in fact have a preexisting [condition]. However, there was no evidence that the condition was aggravated by the motor vehicle accident.” (Internal quotation marks omitted.) The defendants argue, consistent with the court’s decision, that the plaintiff failed to provide any evidence that the accident aggravated the plaintiffs preexisting condition or that the preexisting condition had any effect on the claimed injuries resulting from the accident. We agree with the defendants.

In Olkowski v. Dew, supra, 48 Conn. App. 864, we upheld the decision of the trial court declining to give a “take the plaintiff as you find him” charge to the jury. We determined that the evidence of preexisting injury presented at trial concerned only the existence of the preexisting injury “and related primarily to [the plaintiffs] credibility . . . .” Id., 869. Further, we found that the trial court did not abuse its discretion “in determining that there was no evidence offered that reasonably would support a finding that a preexisting condition was in fact aggravated by the automobile accident . . . .” Id., 869-70.

The same is true here. Although the trial transcript reveals that the plaintiff introduced evidence of the existence of the preexisting condition, it does not reveal that the plaintiff presented any evidence that his preexisting condition was aggravated by the accident or that it had any effect on the claimed injuries that resulted from the accident. See id., 869; see also Rubano v. Koenen, 152 Conn. 134, 136-37, 204 A.2d 407 (1964) (preexisting injury charge appropriate when claim of aggravation of preexisting injury not raised by plaintiff but trial court heard expert testimony that plaintiff had sustained back injury in accident “with probable aggravation of a preexisting disc pathology at the lumbosacral level”). The plaintiff’s theory at trial was that the accident had caused him to suffer two herniated discs and that the herniated discs resulted in radiculopathy. The plaintiff did not present any evidence or pursue a line of questioning that would reasonably support a finding that the preexisting condition was aggravated by the accident. In fact, the plaintiffs questioning with respect to the preexisting condition was intended to show that it was the accident that had caused the plaintiffs radiculopathy and not the preexisting condition. We therefore reject the plaintiffs claim that the court improperly refused to charge the jury that the defendants must “take the plaintiff as they find him” and conclude that the court acted well within its discretion when it refused to set aside the verdict.

The judgment is affirmed.

       The plaintiff alleged that Aviles negligently entrusted her automobile to Kirby and, alternatively, that she was vicariously liable on a theory of agency.

       This also is referred to as an “eggshell plaintiff’ charge. “The eggshell plaintiff doctrine states that [w]here a tort is committed, and injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health. . . . The eggshell plaintiff doctrine is not a mechanism to shift the burden of proof to the defendant; rather, it makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury. Under this doctrine, the eggshell plaintiff still has to prove the nature and probable duration of the injuries sustained.” (Internal quotation marks omitted.) Iazzetta v. Nevas, 105 Conn. App. 591, 593 n.4, 939 A.2d 617 (2008); see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 43, p. 292.

       To this end, during closing argument, the plaintiffs counsel argued: “The degeneration is not causing the disc — his radiculopathy. The [herniated] disc is causing it. And it’s apples and oranges. And I submit — please, don’t be confused. The degeneration is — is not the problem here. ... He has a degenerative condition, but he has two discs from the car accident. ... I suggest to you that the proximate cause or the substantial factor that caused this herniated disc is . . . clear that it’s the motor vehicle collision.”


author: FLYNN, J.

text:
    RICHARD POMMER v. COMMISSIONER OF CORRECTION
    (AC 31250)
    Bishop, Beach and Flynn, Js.

      Argued October 21
    officially released December 14, 2010

      Joseph Visone, special public defender, for the appellant (petitioner).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Linda N. Howe, former senior assistant state’s attorney, for the appellee (respondent).
   Opinion

FLYNN, J.

The petitioner, Richard Pommer, appeals following the denial of certification to appeal from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly (1) concluded that he had not been deprived of his right to effective counsel, and (2) allowed a witness, Charles (Chaz) Poole, to invoke the fifth amendment to four separate questions while still answering others. We conclude that the habeas court did not abuse its discretion in denying certification to appeal and dismiss the appeal.

The petitioner was convicted after a jury trial of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), one count of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) and one count of tampering with a witness in violation of General Statutes § 53a-151 (a). He appealed his judgment of conviction of tampering with a witness, and this court affirmed that judgment. State v. Pommer, 110 Conn. App. 608, 955 A.2d 637, cert. denied, 289 Conn. 951, 961 A.2d 418 (2008). In his direct appeal we summarized the facts as follows. “On October 19,2003, two individuals were robbed in New Haven by the [petitioner], Chaz Poole and James Draughn. Melissa Fragola, the girlfriend of Poole, drove the getaway car. New Haven police were able to obtain Fragola’s photograph from a videotape showing her using one of the victim’s stolen credit cards at a gasoline station and disseminated copies to local television news bureaus. When Fragola saw her photograph on a news broadcast, she informed Poole and indicated that she would turn herself in to the police. When Fragola went to the Hamden police station with Poole, she was sent back home. The following day, New Haven police officers came to her residence and brought her to their station where she provided a taped statement. On her second and third visit to the police station, Fragola selected the [petitioner’s] and Draughn’s photographs, identifying them as participants in the robbery. After Fragola’s photograph had been broadcast, the [petitioner] telephoned Poole and informed him of the broadcasting and that Fragola had turned herself in to the police and implicated the participants in the robbery. The [petitioner] inquired of Poole as to whether he also would go to the police. When Poole replied in the affirmative, the [petitioner] was not happy and indicated to Poole that he loved him like a brother, but if Poole went to the police, it would be ‘[Poole’s] ass.’ ” Id., 611. Additional facts will be supplied as necessary.

Where a habeas court has denied certification to appeal, our Supreme Court has conditioned review on a demonstration by the appellant on a abuse of discretion standard. Taylor v. Commissioner of Correction, 284 Conn. 433, 448-49, 936 A. 2d 611 (2007). However, the Supreme Court has determined that appellate review is necessary if the appellant can show that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner, or the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, 229 Conn. 178,189-90 n.16, 640 A.2d 601 (1994). “When reviewing the decision of a habeas court, the facts found by the habeas court may not be disturbed unless the findings were clearly erroneous. . . . The issue, however, of [w]hether the representation [that] a defendant received at trial was constitutionally inadequate is a mixed question of law and fact. Strickland v. Washington, [466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53,62,951 A.2d 520 (2008). Under the Strickland standard, when a petitioner alleges ineffective assistance of counsel, he must establish that “(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.” (Internal quotation marks omitted.) Id., 63.

The petitioner first claims that his trial counsel was ineffective in not calling Darryl Walker as a witness. He argued to the habeas court that had Walker been called as a witness, in the words of the habeas court, “the testimony of Chaz Poole would have been exposed as a he and not worthy of belief.” The petitioner was represented at trial by Donald Dakers, an attorney who previously had tried numerous cases to jury verdict. At the outset, it is important to note that the petitioner first denied any involvement in the robbery to Dakers, and, accordingly, Dakers prepared for trial on that theory of defense. The petitioner also gave Dakers the names of alibi witnesses to buttress this story, but neither Dakers, nor his investigator could reach any of them. As a part of his trial preparation, Dakers learned from the state’s attorney’s office that it had a recording of a telephone conversation that the petitioner made to his mother from the jail in which he admitted being at the scene of the robbery. Shortly before the trial was to begin, the petitioner informed Dakers that he was at the robbery scene but had not been a participant. Dakers, having been preparing for trial on the theory that the petitioner was not at the crime scene, was required by the petitioner’s change of story to shift strategy and to prepare another theory of defense, namely, that the testimony of Poole, Fragola and other witnesses, which inculpated the petitioner, should not be believed. The petitioner did not testify at his criminal trial but gave Dakers the names of two defense witnesses, Samantha Gravline and his sister. He did not give Dakers the name of Walker until after the trial. Walker was a convicted felon, related to and friendly with the petitioner. At the habeas trial, Walker testified that he was incarcerated at the time of the robbery and after his release claimed to have discussed with Poole the petitioner’s involvement in the crime. He also claimed to have called Dakers’ law office once before the petitioner’s trial, left a message, but that the call was not returned. The habeas court, however, did not find as a fact that such a call was made. The evidentiary record of the petitioner’s criminal trial was entered into evidence at the habeas trial. The evidentiary record of the petitioner’s criminal trial contained the following pertinent evidence.

The male victim saw three people walking in the opposite direction from him and his companion. Shortly after seeing the three, he was tackled from behind and landed on his back. One of the three who was closest to him and his companion wore a hooded jacket and held a black gun. That person hit him with the butt of the gun when he tried to get up and then demanded his wallet. After the male victim turned over his wallet to the person with the gun and the female victim turned over her pocketbook, the three people ran away. The male victim described the gunman as about five feet, eleven inches in height and heavily built, and said that the other two persons who ran away were smaller. The following day, the two victims walked in the nearby area and found a gun that the male victim thought was the one with which he had been threatened. At his trial, both Fragola and Poole implicated the petitioner in the robbery. Fragola testified that she brought Poole, Draughn and the petitioner to the scene and that she knew that they intended to commit a robbery of the couple who were walking down the street. Poole testified that it was the petitioner who was armed with a BB gun designed to look like a pistol and robbed the two victims.

The habeas court found that Dakers’ representation was not ineffective. However, the habeas court principally used Strickland’s second prong, namely, that the petitioner had failed to convince the habeas court that he had suffered any prejudice because even if Poole’s testimony was rejected in its entirety, there was “more than sufficient surviving testimony to lead a jury to conclude that the defendant was guilty.” We agree. The victims were certain that three men attacked them and that the biggest of them had the gun. The male victim testified that the gunman wore a hood. The male victim also testified that the two men without the gun were both smaller compared to the individual who wielded the gun. The male victim also said that he was five feet, nine inches tall and that the gunman was “a couple of inches taller than me.” The female victim testified that she was five feet, seven inches and five feet, nine inches with heels, and that the gunman was “quite a bit bigger.” Fragola also told the jury that the petitioner and Draughn wore hoods. She testified that Poole was wearing a zip up jacket that did not have a hood. Fragola also testified that Draughn was skinny and only around five feet, six inches or five feet, seven inches tall. Fragola had testified that when the petitioner, Poole and Draughn rode in her car after stopping at a person named Samantha’s house, it was the petitioner who had the black BB gun that looked like a pistol. As the four drove through New Haven, she saw two people walking on Willow Street. Fragola told the jury that it was the petitioner who told her to stop the car near Willow Street and Whitney Avenue, that the petitioner, Poole and Draughn exited her automobile and the petitioner was in possession of the gun. She testified that all three men proceeded to walk down Willow Street. Fragola said that after leaving the three men off, she drove around and eventually picked up Poole and then the petitioner and went back with them to her home. She saw the petitioner with a female’s wallet and credit cards. She used one of the credit cards in a female’s name to buy gasoline and snacks at a Mobil station and both the petitioner and Poole were in her automobile. There was thus independent evidence from Fragola that only the petitioner and Draughn wore hooded jackets, but that Draughn was smaller than the petitioner, that the petitioner possessed the gun immediately before the robbery occurred and possessed the fruits of the robbery immediately after, including the female victim’s wallet and credit cards. The habeas court also had before it the conviction of the petitioner which had been affirmed on appeal, for tampering with a witness, Poole, by threatening Poole if he went to the police and implicated the petitioner. There was thus sufficient direct and circumstantial evidence to lead the jury to the conclusion that the petitioner was guilty, even without Poole’s testimony. The petitioner has failed to satisfy his burden to show that Dakers’ representation was constitutionally ineffective or that he was prejudiced by Dakers’ representation.

We next turn to the petitioner’s claim that it was improper for the habeas court to permit Poole, over the petitioner’s objection, selectively to invoke his privilege against self-incrimination pursuant to the fifth amendment to the United States constitution during direct examination by the petitioner’s counsel in the habeas case. Certain portions of the dialogue on direct examination in which Poole invoked the privilege only as to certain questions are pertinent.

When asked if Poole testified at the criminal trial that the petitioner was the individual who body checked, or knocked over the two victims during the robbery, and hit one of them, specifically, the male victim, in the head, Poole, on the advice of counsel, invoked his fifth amendment privilege. Poole did respond to the next question and testified that he told his cousin, Walker, that the petitioner had nothing to do with the robbery. When asked if he testified truthfully at trial, specifically, that he stood in the middle of the street while the petitioner and Draughn approached the two victims, Poole reasserted his fifth amendment privilege. When asked if he recalled at any time after Walker was released from prison and before the trial in 2005, if he told Walker that he felt guilty for putting the blame on the petitioner because he was not involved and that Poole had committed this crime, alone, Poole’s response was that only half of that was true in that he felt bad for blaming the petitioner. When asked why he felt bad for the petitioner, he invoked his fifth amendment privilege. Poole admitted that he told Walker that he did whatever he had to do to stay out of jail because he was frightened by the New Haven police telling him that he would do twenty years for the robbery and he would never see his child again. When asked if anyone representing the petitioner approached him for an interview, he said that no one had but that he wished that someone did. When asked why he wanted to speak to someone representing the petitioner, Poole, on the advice of his attorney, reasserted his fifth amendment privilege.

The petitioner argues essentially that when Poole testified on direct examination without having first invoked his privilege not to testify at all, he had waived the fifth amendment privilege and that, therefore, the court’s permitting him to answer some questions but allowing him to refuse to answer others by invoking the fifth amendment was improper. He further argues that a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details, citing Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999). He asserts that the Mitchell court provided a logical rationale for its rule when it stated that a contrary rule “would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony . . . .” (Citation omitted; internal quotation marks omitted.) Id., 322. While this general rule admits of certain exceptions, we note that the petitioner did not ask that all of Poole’s testimony be struck because, although the privilege was exercised on the petitioner’s direct examination of a hostile witness, it was the equivalent of cross-examination directed at proving Poole himself was the principal robber. We also note, that although the petitioner claims that Poole, in effect, waived the privilege against incriminating himself, he did not ask the court to hold Poole in contempt for refusal to answer the questions. See Brown v. United States, 356 U.S. 148, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958). He also claims that because a habeas corpus proceeding is civil in nature an unfavorable inference should be drawn against Poole, namely, that he was lying in his trial testimony in which he accused the petitioner of being the robber of the two victims who hit one of them with his gun while Poole only stood by in the middle of the road. However, the record is silent as to whether the habeas judge did or did not make such an inference and, thus, that claim is unreviewable.

Finally, the linchpin of the petitioner’s argument is that without Poole’s testimony, it is debatable among jurists of reason whether the petitioner could have been convicted at his criminal trial and that, therefore, there was prejudice to the petitioner from the habeas court’s ruling permitting Poole selectively to invoke the privilege against self-incrimination. We see a flaw in this argument. The habeas court found that even without Poole’s testimony, the petitioner would have been convicted and that, therefore, there was no prejudice to the petitioner. A petitioner’s challenge to findings of fact made by a habeas court cannot be disturbed on appeal unless they are clearly erroneous. Harris v. Commissioner of Correction, 107 Conn. App. 833, 838, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). A finding of fact is clearly erroneous when there is no evidence to support it, or when there is evidence to support it, the reviewing court based on the entire evidence in the record is of the firm conviction that a mistake has been committed. Id. Upon the whole record, we conclude that the petitioner has failed to show that the habeas court’s finding was clearly erroneous.

The appeal is dismissed.

In this opinion the other judges concurred.


author: PELLEGRINO, J.

text:
    STATE OF CONNECTICUT v. BRUCE WARREN SOUZA
    (AC 31378)
    Beach, Robinson and Pellegrino, Js.
    Argued October 15
    officially released December 14, 2010

      Heather M. Wood, deputy assistant public defender, for the appellant (defendant).

      Raheem L. Mullins, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Christopher A. Parakilas, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Bruce Warren Souza, appeals from the judgment of conviction, rendered following a jury trial, of burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102 (a) (2). On appeal, the defendant claims that (1) the evidence was not sufficient to support the jury’s verdict and (2) prosecutorial impropriety during the state’s closing argument deprived him of his right to due process. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 13, 2007, at approximately 9 a.m., the complainant, Cariarme Bergeron, awoke at her home in Enfield. At the time, the only other person in the house was the complainant’s elderly grandmother, who remained asleep in her room. Upon opening the blinds on a window in the front of her house, the complainant saw the defendant walking through her yard and toward the home. As she looked out a kitchen window facing her backyard, she watched as the defendant entered the home’s enclosed breezeway that connected the kitchen to the garage. From her position crouched behind the refrigerator, she witnessed the defendant cup his hands against the kitchen window and peer inside. The complainant waited there for approximately three minutes until she thought she heard the screen door to the breezeway opening. At that point, she telephoned 911 from her home telephone. While on the telephone with police, she heard the defendant rattle the kitchen door handle. The defendant then exited the breezeway and walked down the driveway back toward the street. The police arrived shortly thereafter, locating the defendant on the street a few houses down from the complainant’s home. The complainant identified the defendant as the man who had entered her home that morning, and he was placed under arrest.

Later that day, at the Enfield police station, the defendant gave a detailed statement regarding his actions that morning, which was admitted as a full exhibit at trial. In the statement, the defendant acknowledged that he was drawn to the home after he saw a pile of bicycles toward the back of the house and that he eventually entered the home with the intent of stealing a bicycle inside. The defendant stated, “I know it was a dumb thing to do, but I thought I would take one of the bikes so I wouldn’t have to walk to where I was going. When I got to the bikes I saw they weren’t rideable. I decided to look in the garage that was connected to the house. I thought maybe there was a bike in the garage.”

On May 13, 2009, the case was tried to a jury on a one count information charging the defendant with burglary in the second degree in violation of General Statutes (Rev. to 2007) § 53a-102 (a) (2). On defense counsel’s request, the jury was also instructed on the lesser included offense of criminal trespass in the second degree in violation of General Statutes § 53a-108 (a) (l). The jury found the defendant guilty of the greater offense of burglary in the second degree, and the court imposed a total effective sentence of ten years imprisonment, execution suspended after six years, followed by three years of probation. This appeal followed. Additional facts and procedural history will be provided as necessary.

I

The defendant first claims that the court improperly rendered judgment against him on the charge of burglary in the second degree because there was insufficient evidence that (1) the breezeway constituted a dwelling and (2) he intended to commit a crime therein. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Arthurs, 121 Conn. App. 520, 523-24, 997 A.2d 568 (2010).

The defendant claims that there was insufficient evidence to show that the breezeway constituted a dwelling. General Statutes § 53a-100 (a) (2) defines “dwelling” as “a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present . . . .” Section 53a-100 (a) (1) defines a “building” as having “its ordinary meaning . ...” A “building,” according to Black’s Law Dictionary, is a “[structure designed for habitation, shelter, storage, trade, manufacture, religion, business, education, and the like.” Black’s Law Dictionary (6th Ed. 1990).

The complainant testified that the breezeway was furnished and extensively used by her family. She stated that the breezeway had “a little dining room table, rocking chair and table, another regular chair . . . [and] a shelf with a chair in front of that.” She also testified that when it rained, the family had cookouts and ate in the breezeway, children played games there and that she allowed guests to smoke in that area. The complainant specifically stated that she considered the enclosed breezeway part of her home. There was sufficient evidence, therefore, from which the jury reasonably could have concluded that the breezeway constituted a part of the family’s dwelling.

The defendant also claims that there was insufficient evidence that he entered the breezeway with the intent to commit a crime. The court admitted as a full exhibit the defendant’s statement to police, in which he confessed that he had entered the breezeway with the intent to steal a bicycle from inside the garage. The complainant also testified that the defendant was unknown to her or anyone in her family and that he did not have permission to enter the home. She witnessed him cup his hands up against the window and peer inside and rattle the kitchen door handle in an attempt to open it. From the aforementioned evidence, the jury reasonably could have concluded that the defendant’s unlawful entry into the home was for the purpose of committing a theft.

II

The defendant next claims that prosecutorial impropriety during the state’s closing argument deprived him of his right to due process. While we agree that the prosecutor made improper remarks dining his closing argument, we conclude that, in the context of the entire trial, the defendant was not deprived of his right to due process.

We begin by setting forth the legal principles and standard of review that guide our analysis. “In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. . . . [T]he touchstone of due process analysis in cases of allegedly] [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. ... In determining whether the defendant was denied a fair trial ... we must view the prosecutor’s [actions] in the context of the entire trial. . . .

“An appellate court’s determination of whether any improper conduct by the prosecutor violated the defendant’s right to a fair trial is predicated on the factors established in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987). Those factors include the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Internal quotation marks omitted.) State v. Lynch, 123 Conn. App. 479, 503, 1 A.3d 1254 (2010).

The prosecutor made the following comments during closing argument to the jury: “Home sweet home; there’s no place like home; home is where the heart is; home is a person’s castle; I just want to go home. I could give you dozens of references of either poems, song lyrics, or age-old adages that have the word home in it. Why is that the case? It’s a special place. It’s a very special place. . . .

“And I got to tell you right now, folks, it’s the state’s belief that none of these elements are an issue. There’s no contention whatsoever [that] the facts meet the evidence. I firmly believe that, but this is about what you believe. I will tell you that five out of six of these are not in dispute. They’re not in dispute based on the witness testimony that you heard, and they’re not in dispute based on the statements, the confession that the defendant gave. Not in dispute. . . .

“That leaves us with dwelling. And, again, as far as the state is concerned, this isn’t even an issue. But the defense is going to ask you to find [the defendant] not guilty of burglary in the second degree because the breezeway was not a part of the dwelling. And if you believe that, using all your common sense and discretion, that, that you brought with you here today and that you have inside of you, if you believe that, then let him go. I’ll tell you again. You believe that the breezeway is not part of the dwelling, let him go. . . .

“At the end of the day, you’ve got to weigh all this stuff. You’ve got to use your common sense, like I said, your sense of good judgment, and you’ve got to make a decision. If you feel in your heart of hearts, based on everything you learned about this, that the defendant did not commit a crime here, let him go. But if you think he broke into this home, this home sweet home, you know what you have to do.”

As our Supreme Court has stated, “[t]he prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. . . . Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and aré particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions.” (Internal quotation marks omitted.) State v. Grant, 286 Conn. 499, 546, 944 A.2d 947, cert. denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).

We find particularly troubling the prosecutor’s multiple suggestions to the jury that if it failed to determine that the home’s breezeway was part of the dwelling, it should “let him go.” By doing so, the prosecutor ignored that the jury could have found the defendant guilty of the lesser included offense of criminal trespass in the second degree. Moreover, juxtaposed with the prosecutor’s poetic references of “home sweet home,” and that “home is where the heart is,” the prosecutor’s suggestion that the jury should “let [the defendant] go” served improperly to appeal to the emotions and fears of the jury.

“[A] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they have the effect of diverting the [jurors’] attention from their duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the juiy to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Bell, 283 Conn. 748, 773, 931 A.2d 198 (2007).

Further, the prosecutor improperly infused his own beliefs into the minds of the jurors when he stated: “I got to tell you right now, folks, it’s the state’s belief that none of these elements are an issue. There’s no contention whatsoever [that] the facts meet the evidence. I firmly believe that, but this is about what you believe. I will tell you that five out of six of these are not in dispute.” (Emphasis added.) Later, in emphasizing that the complainant’s breezeway was part of the dwelling, the prosecutor stated that “as far as the state is concerned, this isn’t even an issue.” Such statements of his own beliefs could have led the jury, aware that the prosecutor may have access to matters not in evidence, to infer that his firm belief came, in part, from evidence outside the scope of trial. See State v. Alexander, 254 Conn. 290, 304, 755 A.2d 868 (2000) (“[i]t is well established that a prosecutor may not express [his] own opinion, either directly or indirectly, as to the . . . guilt of the defendant”).

The next step in our analysis is to determine whether the prosecutor’s improper comments, in the context of the entire trial, prejudiced the defendant and deprived him of a fair trial. “Just as the prosecutor’s remarks must be gauged in the context of the entire trial, once a series of serious improprieties has been identified we must determine whether the totality of the improprieties leads to the conclusion that the defendant was deprived of a fair trial. . . . Thus, the question in the present case is whether the sum total of [the prosecutor’s] improprieties rendered the defendant’s [trial] fundamentally unfair, in violation of his right to due process. . . . The question of . whether the defendant has been prejudiced by prosecutorial [impropriety], therefore, depends on whether there is a reasonable likelihood that the jury’s verdict would have been different absent the sum total of the improprieties. . . . Furthermore, whether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks.” (Internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 81-82, 3 A.3d 1 (2010).

In the present case, there is not a reasonable likelihood that the jury’s verdict would have been different absent the sum total of improprieties. The prosecutor’s improprieties, only occurring during his closing argument, were not severe and were infrequent. The evidence against the defendant, including his statement to police on the day of the burglary, was quite strong. The state presented the testimony of the complainant, as well as the defendant’s own statement confessing that he had entered the home in an attempt to steal a bicycle. “The state’s evidence does not need to be overwhelming to support- a conclusion that prosecutorial impropriety did not deprive the defendant of a fair trial.” State v. Felix, 111 Conn. App. 801, 816, 961 A.2d 458 (2008). Moreover, the defendant chose not to object or to request a curative instruction at the time the statements were made, suggesting that within the context of the trial, they were not prejudicial enough to jeopardize seriously his right to a fair trial. We, therefore, conclude that while the prosecutor made several improper statements, those improprieties did not deprive the defendant of his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2007) § 53a-102 (a) provides in relevant part: “A person is guilty of burglary in the second degree when such person . . . (2) enters or remains unlawfully in a dwelling, while a person other than a participant in the crime is actually present in such dwelling, with intent to commit a crime therein.”

       General Statutes § 53a-108 (a) provides in relevant part: “A person is guilty of criminal trespass in the second degree when, knowing that such person is not licensed or privileged to do so, (1) such person enters or remains in a building. . . .”

       As our Supreme Court has stated, “[W]e do not engage in the review of unpreserved claims of prosecutorial [impropriety] under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because the consideration of the Williams prosecutorial impropriety factors duplicate, and, thus makes superfluous, a separate application of the Golding test. . . . The absence of an objection at trial, however, plays a significant role in the application of the Williams factors: When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial. . . . [Thus], the fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.” (Citation omitted; internal quotation marks omitted.) State v. Outing, 298 Conn. 34, 82 n.23, 3 A.3d 1 (2010).


text:
    KEITH E. SIMPSON ASSOCIATES, INC. v. CRISTINA A. ROSS
    (AC 31976)
    Lavine, Alvord and Schaller, Js.

      Argued October 22
    officially released December 14, 2010

      John R. Williams, for the appellant (defendant).

      Anthony J. LaBella, with whom, on the brief, was Deborah M. Garskof for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant, Cristina A. Ross, appeals from the judgment of the trial court rendered in favor of the plaintiff, Keith E. Simpson Associates, Inc., in this breach of contract action that arose out of the defendant’s refusal to pay for services rendered by the plaintiff. On appeal, the defendant claims that the trial court erred in (1) awarding contract damages in an amount not supported by the evidence and (2) failing to address the plaintiffs admitted breach of an express material term of the contract between the parties. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The defendant, a licensed architect, purchased property in New Canaan that included a historic single-family dwelling. The defendant intended to restore the dwelling and, additionally, build a new six bedroom home on the property to be used as her family’s primary residence.

During the initial stages of the project, the defendant experienced opposition from the New Canaan environmental commission (commission) because construction for her project required transportation over wetlands on the property. On July 5,2005, the defendant entered into a written contract with the plaintiff, providing that the plaintiff would serve as a consultant to assist the defendant in presenting a site plan to the commission to obtain a variance.

Under the contract, the plaintiff was to receive an hourly rate of $250 for work performed by Keith Simpson, president of the plaintiff corporation, and $150 for work performed by all other personnel. The defendant provided the plaintiff with a retainer of $2500.

Pursuant to its duties under the contract, the plaintiff designed multiple plans to submit to the commission in support of the defendant’s request for a variance, and Simpson consulted with several specialists, including soil scientists, septic engineers and land surveyors. On December 8,2005, the plaintiff forwarded an invoice to the defendant for $19,825.32 for services rendered from July to October, 2005.

The plaintiff continued to work on the proposal until January, 2006, when the defendant terminated its employment. The plaintiff then sent a final invoice for $46,809.32, which incorporated services rendered between October and December, 2005. The plaintiff later provided the defendant with a revised final invoice, which contained an itemized list of services totaling $57,959.32. This revised invoice included services that the plaintiff had not included in the original invoice.

The plaintiff commenced this action on September 20, 2006, seeking, among other things, reimbursement for services rendered under the contract plus costs and interest. A trial to the court commenced on May 27, 2009, and concluded on June 23,2009. At the conclusion of trial, on the plaintiffs breach of contract claim, the court found in favor of the plaintiff and awarded it $55,459.32, representing the amount of the unpaid balance minus the original retainer, plus interest and attorney’s fees. Specifically, the court credited the testimony of Simpson and found that the contract between the. plaintiff and the defendant was “clear, concise and unambiguous.” The court also concluded that, although the plaintiff rendered the agreed upon services to the defendant, the defendant breached the contract with the plaintiff by failing to render payment. The defendant appeals from that judgment.

The defendant first claims that the amount of damages awarded by the court is not supported by the evidence. “[T]he trial court has broad discretion in determining damages. . . . The determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous.” (Internal quotation marks omitted.) Duplissie v. Devino, 96 Conn. App. 673,699,902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006). “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 377, 999 A.2d 721 (2010).

“Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony. . . . Thus, if the court’s dispositive finding . . . was not clearly erroneous, then the judgment must be affirmed. . . . The function of the appellate court is to review, and not retry, the proceedings of the trial court.” (Internal quotation marks omitted.) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 700, 1 A.3d 157 (2010).

On the basis of our review of the record, it is apparent that there is sufficient evidence to support the sum awarded by the court. Therefore, we conclude that the award of $55,459.32 is not clearly erroneous

The defendant next claims that the court failed to address the plaintiffs admitted breach of a material term of the contract. The defendant, however, has not provided this court with an adequate record for review on this issue. See Practice Book § 61-10. Therefore, we are unable to address this second claim.

After the court issued its memorandum of decision, the defendant filed a motion for articulation, seeking to set forth the court’s ruling with respect to the plaintiffs breach of a material term of the contract. The court denied this motion on February 9, 2010, and the defendant did not file a motion for review with this court. Because the defendant did not seek review, we are unable to address the court’s decision not to examine the issue of whether the plaintiff breached a material term of the contract. To do so would require us to speculate as to the court’s reasoning and any evidence it relied on. This we cannot do.

The judgment is affirmed.

       The defendant testified that she protested these charges when she received the invoice.

       The plaintiff filed a five count amended complaint against the defendant. In addition to its claim for breach of contract, the plaintiff alleged unjust enrichment, conversion and civil theft. The plaintiff also filed a mechanic’s lien on the defendant’s property for $46,809.32 and sought foreclosure of the lien in its complaint. The plaintiff withdrew that claim prior to this appeal.

       The court also found that the plaintiffs mechanic’s lien was proper and timely; however, it concluded that the plaintiff failed to sustain its burden of proof in regard to its claims of conversion and civil theft.

       The plaintiff presented the court with detailed invoices concerning the billing periods from June 24 to October 28,2005, and November 1 to December 27,2006. In the first invoice, the plaintiff charged the defendant $28,125, plus $825.32 for extra expenses, and, in the second invoice, the plaintiff charged the defendant $29,009. These two invoices totaled $57,959.32 but did not deduct the retainer of $2500 paid by the defendant.

       The defendant claims that the plaintiff breached the contract by not submitting bills on a monthly basis or, alternatively, at the completion of each phase of the contract. The contract specifically provided that “[b]ills will be submitted monthly or at the completion of each phase, whichever is considered the more appropriate, and will indicate services provided and expenses incurred.” The three phases were explicitly listed in the contract.

       Practice Book § 61-10 provides in relevant part: “It is the responsibility of the appellant to provide an adequate record for review. ...”

       “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Citations omitted; internal quotation marks omitted.) State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). Also, “[wjithout an adequate record on which to review the findings of the trial court, this court must assume that the trial court acted properly.” (Internal quotation marks omitted.) Singer v. Matto, 48 Conn. App. 462,467, 710 A.2d 823 (1998).