author: O’Connell, J.

text:
    Myroslaw Dragan v. Connecticut Medical Examining Board et al.
    (7878)
    Daly, O’Connell and Norcott, Js.
    Argued January 15
    decision released May 21, 1991

      Paul J. Lahey, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellants-appellees (defendants).

      Philip M. French, for the appellee-appellant (plaintiff).
   O’Connell, J.

The defendants appeal from the trial court’s judgment remanding for a new hearing a contested administrative case that resulted in the revocation of the plaintiff’s license to practice medicine. Proceedings were conducted pursuant to the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-166 et seq. The trial court correctly concluded that the plaintiff was denied his right of cross-examination and also should have been given copies of the witnesses’ statements prior to the hearing. We affirm in part and reverse in part.

The plaintiff is a physician licensed to practice medicine in Connecticut and the defendants are the state department of health services (the department) and the Connecticut medical examining board (the board). Both defendants are state agencies within the meaning of UAPA.

In May of 1983, the board, on motion of the department, issued an order summarily suspending the plaintiff’s medical license pursuant to General Statutes §§ 4-182 (c) and 19a-17c. All of the charges of which the plaintiff was found guilty pertained to his treatment of the same patient, Collette Connor, for drug addiction. Hearings held on various days between June 1, 1983, and October 28,1984, ultimately resulted in the board’s October 23, 1985 decision to revoke permanently the plaintiff’s medical license.

After the June 1,1983, hearing, the case proceeded next on June 7, 1983, and again on August 2, 1983. Because a criminal prosecution had been instituted against the plaintiff involving many of the same facts, the parties agreed to a stay of these proceedings pending completion of the criminal case. At the same time, they also entered into a consent order that permitted the plaintiff to continue practicing medicine, subject to certain limitations and conditions not relevant here, during the stay and until thirty days after the disposition of the criminal case and upon approval by the board.

On April 4, 1984, the plaintiff pleaded guilty in the criminal prosecution to two counts of reckless endangerment in the second degree in violation of General Statutes § 53a-64 (a), a class B misdemeanor. He was sentenced to one year in the custody of the commissioner of correction, execution suspended, two years probation to include 1000 hours of community service plus a $1500 fine. On May 9,1984, one month after conclusion of the criminal proceedings, the plaintiff wrote to the board requesting the termination of all restrictions on his practice. The board never responded to his letter but instead, on August 28, 1984, resumed the hearing, which had recessed on August 2,1983. Then, more than a year later, the board issued a decision permanently revoking the plaintiffs medical license on October 23, 1985.

The plaintiff appealed to the trial court claiming, inter alia, (1) that he had been denied his right of cross-examination, (2) that he should have been furnished with witnesses’ statements prior to the hearing, and (3) that the board should have terminated the consent order restrictions upon his request. The trial court found, inter alia, “that the denial of the opportunity by the plaintiff to cross-examine Collette Connor violated fundamental principles of fairness which are required in the conduct of administrative hearings.” The court remanded the case for a new hearing and ordered the department to furnish the plaintiff with copies of prior statements of all witnesses who would testify against the plaintiff at the rehearing. The court further ordered that if the plaintiff asked for it the board must hear evidence and rule on the plaintiff’s request to terminate the restrictions under the consent order. The defendants appeal to this court and the plaintiff cross appeals.

We turn first to the trial court’s ruling on the lack of an opportunity to cross-examine Connor. Connor was clearly a key witness and the centerpiece of the entire proceeding. All charges against the plaintiff relate solely to her. Without Connor this case would not have arisen.

The record shows that Connor testified as a department’s witness on June 1, 1983, the first day of the hearing. At the conclusion of her direct testimony, the department instructed her to return on the next hearing date for cross-examination. She did not appear on that day and has never returned. Consequently, the plaintiff never had an opportunity to cross-examine her.

The defendants argue that the record does not support a conclusion that Connor did not return for cross-examination. We do not agree. The transcript shows that at the opening of the next hearing the department informed the board and the plaintiff that Connor had not yet arrived because she was apparently experiencing difficulty obtaining transportation. The department then proceeded with other evidence in its case-in-chief. The defendants contend that it is possible that Connor appeared later in the day and that the plaintiff had changed his mind and decided that he no longer wanted to cross-examine her. This is pure unsupported speculation. If Connor was important at the start of the next hearing, we will not guess that her later appearance in the hearing room was so insignificant that no one mentioned it on the record.

Furthermore, the defendants’ contention is contrary to the principle that once a condition is proven to exist, it is presumed to continue to exist until the contrary is shown. Taintor v. Hartford, 123 Conn. 515, 539, 197 A. 173 (1937); B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 42. Thus, in the absence of a showing that Connor had returned for cross-examination, the trial court properly inferred that her absence continued, thereby denying the plaintiff his right to cross-examine her.

Cross-examination is an indispensable means of eliciting facts that may show motive, bias, interest or prejudice. State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986). It “ 'is a substantial legal right which may not be abrogated or abridged at the discretion of the court.’ ” Pickman v. Pickman, 6 Conn. App. 271, 277-78, 505 A.2d 4 (1986). We recognize that proceedings before administrative agencies are not bound by strict rules of evidence and procedure but they cannot be conducted so as to violate fundamental rules of justice. Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 207, 355 A.2d 21 (1974). Nor may the informalities that are permissible in an administrative hearing be permitted to prejudice the rights of the parties. If this should happen, the court is available to rectify the wrong. Adam v. Connecticut Medical Examining Board, 137 Conn. 535, 540, 79 A.2d 350 (1951). Moreover, the right of cross-examination is expressly provided for in contested hearings conducted by agencies subject to the UAPA, General Statutes § 4-1.78 (5).

The defendants argue that the plaintiff could have subpoenaed Connor to return and thus have been able to exercise his right of cross-examination. The trial court found that ''[Connor] had been present at the hearing and testified at length on direct examination, providing the cornerstone of the department’s case. The department had instructed her to return and the plaintiff was entitled to believe that she would. It would have been unreasonable for the defendant board then to require the plaintiff to subpoena Connor to return for the required cross-examination just as it is unreasonable now for the board to suggest that the plaintiff had such a duty.” We agree with the trial court. She was the department’s witness and the department received the full benefit of her direct testimony. The department cannot have the benefit of her incriminating direct testimony and then wash its hands of any responsibility for making her available for cross-examination. To fashion a rule requiring that a party subpoena an opponent’s witness to return in order to exercise a right of cross-examination would render the right meaningless.

The trial court correctly concluded that the denial of a party’s right to cross-examination of a crucial witness mandates a new trial; Hirsch v. Squillante, 17 Conn. App. 354, 358, 522 A.2d 1222 (1989); and in an administrative appeal a remand for a new hearing is the functional equivalent of a new trial.

As part of its remand, the trial court ordered that the defendants furnish the plaintiff with copies of any prior statements in its possession from its witnesses. The defendants object to this order on the ground that pretrial discovery is not available in administrative hearings. We agree that the full panoply of discovery rights provided in civil litigation is not available in an administrative hearing. Fundamental rules of procedural fairness, however, require that the plaintiff be accorded certain minimal rights. The court in discussing administrative pretrial discovery in Pet v. Department of Health Services, 207 Conn. 346, 361, 542 A.2d 672 (1988), expressly conferred on reviewing courts the duty of determining if minimum due process standards are satisfied. Here, the trial court properly concluded that the pretrial examination of witnesses’ statements was crucial to the plaintiff’s exercise of his right of cross-examination. We agree.

The defendants also appeal the trial court’s order for a hearing under the consent order. The circumstances under which the consent order was issued show that it was intended as an interim measure to allow the plaintiff to continue his medical practice while the license suspension hearing was in abeyance pending resolution of the criminal action. Issues pertaining to the consent order are now moot because that period of abeyance is over and the board has rendered a final judgment. We conclude that the trial court should not have ordered a hearing on the plaintiff’s petition to terminate the order because there exists no practical relief that can be granted. Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 158, 479 A.2d 801 (1984).

Upon determining that the defendants had acted unlawfully and identifying the errors, the trial court should simply have sustained the plaintiff’s appeal and remanded the case to the board without further comment. Under the law applicable to this case, by going further and ordering the implementation of specific corrective remedies (i.e., ordering cross-examination and disclosure of witnesses’ statements), the court encroached on the administrative function of government. Watson v. Howard, 138 Conn. 464, 469, 86 A.2d 70 (1952); see also Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 136, 439 A.2d 282 (1981), in which the trial court was held to have exceeded its authority by ordering a specific remedy, cross-examination and rebuttal to correct perceived errors on the part of the administrative agency.

In the present case, the trial court ordered a continuation of an earlier stay on revocation of the plaintiffs medical license pending the final outcome of a rehearing and any appeals therefrom. This was within the court’s authority. This stay should remain in effect pending final disposition of this matter or until further order of the trial court.

We do not reach any other claims in the appeal or cross appeal because they may not arise on rehearing.

The judgment sustaining the plaintiff’s appeal is affirmed in part; the judgment is reversed only as to the orders concerning cross-examination, disclosure of witnesses’ statements and a hearing on the consent order, and the case is remanded to the trial court with direction to vacate those orders.

In this opinion the other judges concurred.

       General Statutes § 4-182 provides in pertinent part: “(c) No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of

        a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.” (Emphasis added.)
      General Statutes § 19a-17 provides in pertinent part: “(c) Such board or commission or the department where appropriate may summarily suspend a practitioner’s license or permit in advance of a final adjudication or during the appeals process if such board or commission or the department finds that a practitioner or permittee represents a clear and immediate danger to the public health and safety if he is allowed to continue to practice.”

       The trial court summarized the counts as follows:
      1. The plaintiff violated General Statutes § 20-13c by prescribing certain controlled drugs for Connor “in amounts exceeding therapeutic or other medically proper purposes.”
      2. The plaintiff violated the Code of Federal Regulations (CFR), § 1306.07, by treating Connor for drug dependency “without making a referral to an approved drug treatment program.”
      3. The plaintiff violated CFR § 1306.07 by prescribing controlled drugs for Connor rather than administering them directly.
      4. The plaintiff violated CFR § 1306.07 by treating Connor for drug dependency for longer than the maximum period permitted under his license.
      5. The plaintiff violated General Statutes § 21a-266 by writing prescriptions for controlled drugs in the names of members of Connor’s family with the intent that such drugs would be delivered instead to Connor.
      6. The plaintiff violated General Statutes § 20-13c by giving Connor two syringes of a controlled drug for her to self-administer.

       General Statutes § 53a-64 (a) provides: “A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a risk of physical injury to another person.”

       General Statutes § 4-178 provides in pertinent part: “In contested cases ... (5) a party and such agency may conduct cross-examinations required for a full and true disclosure of the facts

       General Statutes § 4-183 (k) which would allow such an order did not become effective until July 1, 1989. This appeal is controlled by the law applicable at the start of the administrative proceedings which was prior to July 1, 1989. See Vernon Village, Inc. v. Carothers, 217 Conn. 130, 585 A.2d 76 (1991), and Citizens Against Pollution Northwest, Inc. v. Connecticut Siting Council, 217 Conn. 143, 584 A.2d 1183 (1991).

       General Statutes (Rev. to 1989) § 4-183 (c), applicable to cases instituted prior to July 1,1989, provides: “The filing of the petition does not of itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.” (Emphasis added.) Any questions concerning the terms of the stay should be directed to the trial court.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    State of Connecticut v. Guillermo Rivera
    (8462)
    Dupont, C. J., Foti and Lavery, Js.

      Argued September 12, 1990
    decision released May 28, 1991

      Joseph G. Bruckmann, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction of unlawful sale of narcotics in violation of General Statutes § 21a-278 (b). The defendant contends that the trial court’s instructions to the jury relating to circumstantial evidence violated his constitutional right to present a defense and his right to due process. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 8, 1988, an undercover detective from the Bridgeport police department approached the defendant in the vicinity of 378 Wood Avenue. The detective signaled to the defendant indicating that he wanted to buy cocaine. The defendant invited the detective into an alleyway adjacent to 378 Wood Avenue. There, the detective purchased $25 worth of cocaine from the defendant. The detective watched as the defendant left the alleyway and walked toward the store at the front of 378 Wood Avenue. He saw the defendant hand the money to another male. After leaving the scene, the detective radioed a backup unit that was waiting around the corner. He described the defendant as wearing a blue and gray striped shirt and gray pants. The detective indicated that the defendant was the only person so dressed in front of 378 Wood Avenue. The detective also ordered the backup unit to arrest the male to whom the defendant had given the money. An officer in the backup unit proceeded to 378 Wood Avenue and arrested the defendant, who was standing at the curb in front of that address. The undercover detective observed the arrest and confirmed by radio that the backup unit had apprehended the right person. A subsequent search of the defendant by the arresting officers produced neither drugs nor money.

At trial, the defendant called five witnesses who testified about the defendant’s movements at the time of the alleged sale, how the arrest was made, and the clothes the defendant was wearing when he was arrested. This testimony differed from the testimony given by the arresting officers and the undercover detective. At the conclusion of the trial, the court included in its jury charge an instruction on circumstantial evidence. When the defendant objected to this instruction, the trial court ruled against him, and he took an exception. On appeal, the defendant asserts that an additional instruction was required relating to circumstantial evidence introduced by the defense.

I

Before addressing the merits of the defendant’s appeal, we will first address the state’s assertion that the defendant’s exception to the court’s jury instruction was insufficient to preserve the issue for our review. The state asserts that the exception taken was insufficient because it failed to apprise the court of the deficiency of the charge in a way that would allow the court to make a correction. We disagree.

Pursuant to Practice Book § 852, the defendant was required to provide the trial court with a request to charge the jury or, in the alternative, take an exception by offering a distinct statement of the matter objected to and the grounds for the exception. In general, this court will not review a claim of error regarding a jury instruction unless one of these prerequisites exists. State v. Avila, 13 Conn. App. 120, 123, 534 A.2d 913 (1987); State v. Alston, 5 Conn. App. 571, 573, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). In this case, no written request to charge was made by the defendant. Defense counsel did, however, take immediate exception to the charge in question.

It is clear from a review of the dialogue between defense counsel and the trial court that the court was fully apprised of the charge to which the defendant was objecting and had a sufficient understanding of the defendant’s objection. See State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979). Thus, we conclude that the necessary predicate of defense counsel’s exception properly preserved the issue for our review.

II

The defendant challenges the trial court’s instruction to the jury on the application of the standard of proof beyond a reasonable doubt to the underlying facts relating to circumstantial evidence. The defendant asserts that the instruction was incorrect because it placed a burden on him as well as on the state to prove facts inferred from circumstantial evidence beyond a reasonable doubt. In essence, the defendant is seeking a separate instruction to the jury that he may rely on circumstantial evidence for his defense and that the facts inferable from his circumstantial evidence need not be proved beyond a reasonable doubt. He maintains that the failure to give such an instruction sets a single beyond a reasonable doubt standard for drawing inferences from circumstantial evidence whether offered by the state or the defendant and thereby places an unconstitutional burden on him. State v. Ortiz, 217 Conn. 648, 666, 588 A.2d 127 (1991).

In his brief, the defendant supplied this court with an example of a jury charge that he considers correct. It is as follows. “When you’re considering circumstantial evidence about the proof of a fact offered by the defense, if the defense, in this case the defendant offered testimony through witnesses to establish certain things. And when it’s relying on circumstantial evidence to develop that, it is not their burden to establish those facts beyond a reasonable doubt. It’s just that they are established, credible that you believe them but not beyond all reasonable doubt. They don’t have any burden here. And once they take on producing evidence, it does not rise to a level of proof beyond a reasonable doubt that the state has.”

Because there is no claim that the court in its instructions in any way diluted the state’s burden of proving all of the essential elements of the crime charged beyond a reasonable doubt, we will examine the court’s circumstantial evidence instruction in the context of the charge as a whole to determine if the jury was misled. See State v. Rodgers, 198 Conn. 53, 57-58, 58 n.1, 502 A.2d 360 (1985).

In this case, the defendant raised no affirmative statutory defenses that would place a burden of proof on him. A review of the entire charge discloses that the jury was properly instructed on the presumption of innocence afforded the defendant, and the burden on the state of proving every element of the crime beyond a reasonable doubt. The instruction suggested by the defendant had the potential of misleading the jury into believing that the defendant must establish his innocence by a preponderance of the evidence through exculpatory circumstantial facts. This burden could foreclose the defendant’s acquittal on the basis of a reasonable doubt “growing from any perceived inadequacy” in the state’s proof. State v. Ortiz, supra, 668. “Not only could such an instruction confuse a jury, but also, without properly emphasizing that the defendant had no burden to prove his innocence, such an instruction could dilute that constitutional protection afforded to an accused ‘against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ” Id., 668-69.

Ill

Our review discloses that the jury instruction rendered by the court on circumstantial evidence included the following statement concerning the drawing of inferences from such evidence.

“In fact, proof by circumstantial evidence maybe as conclusive as would be the testimony of witnesses speaking on the basis of their own knowledge. In passing upon the guilt of this accused on the basis of such evidence, you must be satisfied beyond a reasonable doubt that certain facts or circumstances existed and second, that the existence of those facts or circumstances go beyond a reasonable doubt, reasonably and logically lead you to other facts establishing that this crime was committed by this accused. And unless the existence of those facts or circumstances either alone or in conjunction with other direct evidence, compels you as reasonable men and women to only one conclusion, namely that this accused is guilty of this offense. Then of course, you would not be justified in finding him guilty.” (Emphasis added.)

Although the defendant did not challenge this portion of the charge on appeal, or that portion quoted in footnote 2, supra, our review leads us to conclude that in charging that the basic facts leading to the inferences must have been proven beyond a reasonable doubt the trial court was incorrect. Our Supreme Court has held that “jwjhere a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt.” State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988).

Although this portion of the charge was incorrect, we recognize that an incorrect charge does not always constitute harmful error. This is true in cases like the one before us where an isolated error in the instruction is cured by other portions of the charge and the circumstantial evidence is so insignificant, compared to the direct evidence, that it is clear beyond a reasonable doubt that the incorrect instruction did not affect the jury’s verdict. Id., 356.

In addition, the charge given here did not dilute the burden of proof placed on the state but instead increased it. “The state might well have complained that such a charge imposed a far greater burden upon it than the standard requirement that only the inference of guilt as to each element of the crime, as distinguished from the totality of the subordinate facts from which the inference is to be drawn, need be proved beyond a reasonable doubt.” State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989). The error in the charge benefited the defendant and was harmless beyond a reasonable doubt.

The major thrust of this case was identification and the credibility of the witnesses. A review of the charge as a whole leads us to conclude that there is no reasonable possibility that the jury was misled. The instruction requested by the defendant would have placed an unconstitutional burden on the defendant had it been given.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       The court instructed the jury in pertinent part as follows: “The defendant is innocent of the crime here charged unless and until the evidence produced before you here in court satisfied you of his guilt beyond a reasonable doubt. The accused does not have to prove that he did not commit the offense with which he’s been charged. The burden of proof remains with the state and the state must prove that he did commit the offense and in order to prove that, it must prove every essential element of the offense charge. The mere arrest is indicative of nothing. The fact of an arrest is as consistent with innocence as it is with guilt. Now evidence is developed in the course of trials and there is oral testimony, there are exhibits and there may be demonstrable evidence at times where someone stands up and demonstrates. And you see that and you consider that as evidence in the case. Direct evidence of course is a type of evidence and circumstantial evidence is another type of evidence. Direct evidence is the evidence of the event. The testimony produced here by witnesses, eyewitnesses to a crime or to an event, and they come into court and the witness states what they saw, or what they observed. What they heard, what they did. So you have that witness here and you are examining them and determining whether it is credible, reliable, and believable .... The evidence produced in the case must establish or prove the elements of the offense beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean that you must [have] direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of facts from which you are asked to infer the existence of another fact or set of facts. Circumstantial evidence is evidence offered to prove a certain fact from which you are asked to infer the existence of another fact in issue. The jury has to be initially satisfied that the basic fact from which you are asked to draw an inference has been proven beyond a reasonable doubt. If and only if the jury finds the basic fact to have been proved beyond a reasonable doubt may you go on to consider the inference. Inferences drawn must be reasonable and logical and not the result of speculation or conjecture . . . .’’(Emphasis added.)

       General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”


author: Dupont, C. J.

text:
    State of Connecticut v. Robert L. Willis
    (8974)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued January 7
    decision released May 28, 1991

      Amoldo E. Granados, assistant public defender, with whom, on the brief, were William Holden, public defender, and Joseph G. Bruckmann, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

After a jury trial, the defendant was found guilty of violating General Statutes § 21a-278 (b), possession of cocaine with intent to sell, and General Statutes § 2 la-279 (c), possession of marihuana. The defendant appeals from this conviction claiming that (1) the jury instructions had the effect of diluting the state’s burden of proving guilt beyond a reasonable doubt, thus violating his constitutional right to present a defense and his right to due process, and (2) the trial court allowed the admission of irrelevant and inflammatory evidence that deprived the defendant of his right to due process. We affirm the judgment of the trial court.

The defendant offered circumstantial evidence in support of his contention that he was not the owner of the drugs found in a garbage can in a booking room of police headquarters. The defendant also testified in his own behalf, claiming that he did not put the drugs in the can, although he had been in the room both alone and with others. His case, therefore, consisted of evidence introduced to negate possession, an element of both of the crimes of which he was found guilty, rather than evidence to assert an affirmative defense. A review of the record indicates that this case relies as much on credibility as it does on circumstantial evidence.

The trial court did not differentiate in its instructions between the circumstantial evidence offered by the state and that offered by the defendant and gave one instruction on circumstantial evidence. The defendant claims that he was entitled to a separate jury instruction on circumstantial evidence, charging the jury that the facts from which an inference may be drawn and the facts inferable from the circumstantial evidence produced by him need not be proven beyond a reasonable doubt. He argues that the court, by referring only to the state’s burden of proof regarding circumstantial evidence, impermissibly imposed a beyond a reasonable doubt standard on the inferences to be drawn from his evidence.

The defendant correctly asserts that not all evidentiary facts from which an inference can be drawn need to be proven by the state beyond a reasonable doubt, but only those that are essential to proof of an element of the crime. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991); State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). The defendant argues that if the circumstantial evidence, offered by the state to prove an evidentiary fact that is not essential to proof of an element of the crime, need not be proven beyond a reasonable doubt in order to infer another fact, the defendant should be entitled to the same instruction as to the circumstantial evidence introduced by him. The defendant thus reasons that the charge as given placed an unconstitutional burden on him to prove beyond a reasonable doubt the inferences on which he relied for a defense.

The defendant concedes that these claims were not properly preserved at trial but seeks review under the Evans-Golding doctrine. State v. Golding, 213 Conn. 232, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all [of four] conditions are met.” The conditions may be examined in any order. State v. Golding, supra. We conclude that the defendant cannot prevail here because he cannot meet the fourth condition of Golding, namely, that when the alleged constitutional violation is subjected to a harmless error analysis, the state is unable to demonstrate harmlessness beyond a reasonable doubt.

In State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), it was held that a defendant is not entitled to an instruction that he need not prove beyond a reasonable doubt the facts inferable from evidence introduced by him to negate an element of the crime pursuant to the statutory right of General Statutes § 53a-7, as long as the charge given does not suggest that the defendant’s circumstantial evidence must be ignored unless he proves that evidence beyond a reasonable doubt. Ortiz logically should also apply when a defendant introduces circumstantial evidence in order to deny an element of the crime, without a particular statutory authorization. There need not be a separate instruction on the circumstantial evidence introduced by him in either case. There is no evidentiary threshold beyond which a defendant’s evidence must pass in order for a trier to consider evidence negating an element of the crime. Id., 664. The defendant’s evidence of denial of an element of an offense, whether circumstantial or direct, does not exist in isolation but, rather, becomes a component of the ultimate question for the jury, namely, did the state prove all elements of the crime beyond a reasonable doubt?

A harmless error analysis in this case indicates that the state has demonstrated the harmlessness of the alleged constitutional violation beyond a reasonable doubt. Our conclusion is based on the Supreme Court’s reasoning in State v. Ortiz, supra, 667-68, which involved an almost identical charge to the jury, and a conclusion that the jury was not misled. Here, too, there was no reasonable possibility that the jury was misled by the trial court’s instruction.

The defendant’s second claim is that the trial court incorrectly denied his motion for mistrial after he objected to the admission of testimony on the physical effects of crack cocaine. The defendant maintains that the questioning of the state toxicologist by the state as to the effects of the drug, produced evidence that was both irrelevant and prejudicial to the defendant, thus denying him a fair trial. The court admitted the evidence on the ground that it related to the defendant’s intent to sell the drug.

Trial courts have broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). Rulings on the admissibility of evidence will be disturbed on appeal only upon a showing of a clear abuse of discretion. Id., 167-68. Evidence of the medical effects of cocaine or the physiological response to cocaine has been held relevant as probative of an intent to sell the drug particularly where, as here, the drug was found in large quantities. See State v. Parent, 8 Conn. App. 469, 474, 513 A.2d 725 (1986).

Once evidence has been admitted as relevant, “the determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial judge and is subject to reversal only where an abuse of discretion is manifest or injustice appears to have been done.” State v. Cruz, 212 Conn. 351, 361, 562 A.2d 1071 (1989). The defendant asserts that he could tell from the facial expressions of the members of the jury that their passions and emotions were being aroused by this evidence. The trial court, however, is in the best position to evaluate the effect of allegedly improper material on the jury. State v. Weinberg, 215 Conn. 231, 249, 575 A.2d 1003 (1990). We decline here to disturb its determination. Considering the length of this trial, we conclude the trial court did not abuse its discretion in determining that the brief mention of the harmful effects of crack cocaine was not unfairly prejudicial to the defendant.

A trial court has wide discretion in ruling on motions for mistrial. Id., 250. A motion for mistrial is a drastic remedy, granted only when some event has occurred that is so prejudicial it precludes a fair trial. State v. Marra, 215 Conn. 716, 732, 579 A.2d 9 (1990). Because we have concluded that the trial court did not abuse its discretion in finding this evidence more probative than prejudicial, we must conclude that the trial court correctly denied the defendant’s motion for mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with another count of violating General Statutes § 21a-278 (b), relating to drugs found in a car in which the defendant was seated just prior to his arrest. He was acquitted on that count.

       General Statutes § 53a-12 (b) provides: “When a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”

        State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), involved the introduction of evidence relating to the assertion of an affirmative defense, and the introduction of evidence of alcohol consumption relating to the negation of an element of the crime charged, as provided in General Statutes § 53a-7.

       The relevant portion of the court’s instruction was: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements of the application of this rule are satisfied: That the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt, and that the inference asked to be drawn is logical and reasonable and not the result of speculation and conjecture.
      “You must be satisfied that the fact to be inferred has been proven beyond a reasonable doubt. It is, however, only where a particular subordinate fact is essential to the proof of an element of the crime that it must be proved beyond a reasonable doubt. It is your right to draw inferences if you con-elude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.”

       The charge as given in the present case was not in conformity with State v. McDonough, 205 Conn. 352, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988); see also State v. Rivera, 24 Conn. App. 670, 591 A.2d 440 (1991). The state in the present case was held to a higher standard of proof as to subordinate facts than required by McDonough.

        State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), did not involve an unpreserved claim on the issue of the charge involving circumstantial evidence. The Supreme Court, however, engaged in a Golding type analysis and, quoting from State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983), stated “[without deciding whether the defendant’s claim is one of constitutional dimension, we note that ‘[a]n erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury [was] misled.’ ” Id., 666 n.11.


text:
    State of Connecticut v. Larry Tinsley
    (8122)
    Spallone, Foti and Lavery, Js.
    Argued December 12, 1990
    decision released May 28, 1991

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, and Joseph G. Bruckmann, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of the General Statutes § 53a-60 (a) (2), criminal possession of a pistol in violation of General Statutes § 53a-217 (a), and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). The defendant claims that (1) the trial court’s instructions on inferences and circumstantial evidence violated his federal and state constitutional rights to due process of law and (2) the trial court’s instruction on assault violated his federal and state constitutional rights to due process of law. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. At about 8 p.m. on June 29,1987, three brothers, Mark, Michael and Joseph Tracy, were walking through an alley near their home in Bridgeport. When they entered the alley, they saw the defendant and two other males at the opposite end. As the two groups approached the middle of the alley, the defendant pulled a gun, cocked it, and told the Tracys not to move. One of the other males hit Joseph in the arm with a black bag and the third attempted to remove a gold chain from Joseph’s neck. Joseph ran to the end of the alley, turned to see his brother Michael running toward him and saw the defendant shoot Michael in the hand. Mark, who was still standing in the alley, also saw the defendant shoot Michael. After the shooting, Mark ran home and Joseph called the police from an emergency call box. Michael stayed by the call box holding his wounded hand while Joseph ran home to get their mother. When Joseph returned, the police and an ambulance had arrived. Michael was taken to the hospital where he was treated for the bullet wound. Joseph and Mark accompanied Officer Travis James, a Bridgeport policeman, in a police cruiser to look for the assailants. The officer, Joseph and Mark cruised the Beardsley Terrace Housing project until Joseph identified the defendant, who was leaning against a truck, as his brother’s assailant. Mark also recognized the defendant. Upon seeing the police cruiser, two other individuals standing with the defendant ran behind a building and the defendant walked to a pickup truck. James exited his patrol car and walked toward the defendant. As he approached, the officer saw the defendant place a hat in the bed of the truck. James frisked the defendant but found no weapon. The defendant then reached for his hat and as he did James grabbed for the hat. James felt an object in the hat and wrestled it away from the defendant. The object was a gun that contained one spent shell in the chamber and an empty clip. The officer then brought the defendant to the patrol car, where both Mark and Joseph identified him as the man who had had the gun and had shot Michael.

I

The defendant’s first claim is that the court’s instructions on circumstantial evidence and the inferences drawn therefrom were defective in that they imposed on the defendant the burden of proving certain inferences beyond a reasonable doubt, thereby diluting the state’s burden of proof. The defendant concedes that he did not properly preserve this claim at trial, but argues that because his claim implicates a fundamental constitutional right it is, nevertheless, reviewable under the Evans-Golding doctrine. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

In Golding, our Supreme Court reformulated the test of reviewability in Evans. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim “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 omitted.) State v. Golding, supra, 239-40. When any one of these conditions is not met, the defendant cannot prevail. Id., 240. The reviewing court is, therefore, free to focus its attention on whichever element is most relevant to the circumstances before it. Id. If on review any one of these conditions is found to be absent, the defendant’s claim will fail. Id. We conclude that the defendant’s claim cannot prevail because the state has met its burden of demonstrating that the alleged constitutional violation was harmless beyond a reasonable doubt.

The jury charge at issue was given as follows: “Circumstantial evidence is offered to prove a certain fact from which you are asked to infer the existence of another fact or set of facts. Such an inference may be made provided two elements in the application of the law are satisfied. One that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt .... Secondly, you must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt. ...” The court did not instruct the jury to differentiate between circumstantial evidence offered by the state and circumstantial evidence offered by the defendant.

In challenging this jury charge, the defendant, in essence, is seeking a separate instruction to apprise the jury that he may rely on circumstantial evidence for his defense, and that facts inferable from that evidence need be only reasonable and logical. This challenge is at bottom the same as challenges recently raised and decided by the Supreme Court in State v. Ortiz, 217 Conn. 648, 667-69, 588 A.2d 127 (1991), and by this court in State v. Rivera, 24 Conn. App. 670, 591 A.2d 440 (1991), and State v. Willis, 24 Conn. App. 678, 591 A.2d 445 (1991). In both Ortiz and Rivera it was held that such an additional instruction had the potential of misleading a jury and diluting the burden borne by the state to prove every element of the crime charged beyond a reasonable doubt. In Willis, we declined .review because the claim was not preserved and failed under the fourth prong of Golding.

In this case, the jury was properly instructed as to the presumption of innocence afforded the defendant and the burden was squarely placed on the state to prove every element of the crime beyond a reasonable doubt. The state’s case, for the most part, was dependent on the issue of identification and the credibility of the witnesses. The charge did not dilute the burden of proof placed on the state but rather increased it. State v. James, 211 Conn. 555, 581, 560 A.2d 426 (1989). The defendant bore no burden of proof and there is no reasonable possibility that the jury was misled. State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). Although the court was incorrect in charging that each fact leading to an inference must be proven beyond a reasonable doubt this error was harmless beyond a reasonable doubt. State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). The defendant’s claim does not meet the fourth prong of Golding, and we decline to review it.

II

The defendant next claims that because there was no supporting evidence to establish that the defendant caused physical injury by means of a deadly weapon to anyone other than Michael Tracy, the trial court should not have instructed the jury on alternative forms of committing assault as set forth in General Statutes § 53a-60 (a) (2). Before taking up the merits of the defendant’s claim we must again address the issue of reviewability because the defendant did not file a request to charge nor did he except to the charge when given. State v. Williams, 202 Conn. 349, 362-63, 521 A.2d 150 (1987).

It is clear that the defendant’s claim is reviewable under the Evans-Golding bypass doctrine because it implicates his right to be convicted only upon proof beyond a reasonable doubt. State v. John, 210 Conn. 652, 687, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Williams, supra. Our Supreme Court has held that “ ‘[wjhere a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ ” State v. John, supra, 687-88.

The trial court instructed the jury in pertinent part as follows: “A person is guilty of assault in the second degree when, with' intent to cause physical injury, he causes such injury to such person or to a third person by means of a deadly weapon. The court now, in deciding whether intent to commit the crime of assault in the second existed in the mind of the defendant, you may and should draw such inferences and reach such conclusions as you find reasonable from all the surrounding circumstances. But remember, the inferences that you draw must be drawn from facts that are proven beyond a reasonable doubt and you must be satisfied that the fact to be inferred has itself been proved to you beyond a reasonable doubt.

“In considering this question of intent you will understand that the intent to cause injury need not be necessarily directed at the very person who was thereafter injured. The intent of the defendant to cause physical injury may be directed at any person other than himself. However, to make out this crime the injury need not be done to the actual person the defendant intended to injure. It may fall upon the intended person or upon a third person. In either event the elements of the crime would be complete.” (Emphasis added.)

The defendant asserts that because only one shot was fired and it struck Michael Tracy and no one else, there was insufficient evidence to support the alternative instruction of “or to a third person.” He argues that there was insufficient evidence to warrant a guilty verdict under both statutory alternatives in that there was no evidence that he caused physical injury by means of a deadly weapon to anyone other than Michael Tracy. We disagree.

When a defendant’s appeal is based on a challenge to the sufficiency of the evidence supporting his conviction our task is two-fold. First, we must review the evidence presented at the trial in the light most favorable to sustaining the verdict. State v. Carpenter, 214 Conn. 77, 78, 570 A.2d 203 (1990); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). We must then determine whether the factfinder could have reasonably concluded, on the facts established and reasonable inferences drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Arnold, 201 Conn. 276, 282, 514 A.2d 330 (1986); State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The fact that evidence on which the verdict is based is in whole or in part circumstantial rather than direct does not diminish its probative force. State v. Rollinson, supra, 666; State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). We do not weigh again the evidence or resolve questions of credibility in making such a determination. State v. Melillo, 17 Conn. App. 114, 117, 550 A.2d 319 (1988).

In this case, the jury could have reasonably concluded that both Michael and Joseph Tracy were running away from the defendant in the same direction in the alley. Joseph reached the end of the alley first and he saw Michael running toward him. He also saw the defendant shoot the gun and saw the bullet hit Michael. There was sufficient evidence for the jury to conclude that the defendant could see both Michael and Joseph, and that the defendant was aiming at and intended to shoot Joseph but instead shot Michael. Since there was no direct evidence of the defendant's intent, this was a reasonable and logical inference that the jury could make to find him guilty beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”


author: Landau, J.

text:
    State of Connecticut v. Hipolito Martinez
    (7498)
    Norcott, Landau and Cretella, Js.

      Submitted on briefs November 7, 1990
    decision released May 28, 1991

      Stephen V. Moran, assistant public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John C. Smriga, assistant state’s attorney, for the appellee (state).
   Landau, J.

The state charged the defendant, Hipólito Martinez, with the crimes of murder in violation of General Statutes § 53a-54a (a) and carrying a pistol on his person without a permit in violation of General Statutes §§ 29-35 and 29-37 (b). At trial, the defendant raised the affirmative defense of extreme emotional disturbance. A jury convicted the defendant of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l), and carrying a pistol on his person without a permit. On appeal, the defendant challenges the court’s jury instruction regarding circumstantial evidence.

The jury reasonably could have found the following facts. Two weeks before the victim’s death, the defendant, the victim’s former boyfriend, had seen the victim dancing with another man. The night before the victim’s death, the defendant was seen throwing rocks at her window. The defendant also had been seen lingering in the vicinity of the victim’s apartment for two days prior to the incident. Late one night, the defendant, holding a gun in his hand, accosted the victim at the door of her apartment. The defendant dragged the victim from the doorway across the street and struck her in the face. He then shot the victim and fled. Approximately one and one-half hours later, while in his car, the defendant was stopped by a police officer and said to him, “I’m the party. You’ve got me. I’m the one you want.” The police found a handgun on the floor wedged near the door in the front of the defendant’s car. A bullet found next to the victim was determined to have been fired from the same handgun. The defendant confessed in writing to having shot and killed the victim. In addition, he did not have a state or local permit for a handgun.

At trial, the defendant presented evidence to establish that he was suffering from an extreme emotional disturbance. Witnesses testified as to his sleeping, eating and drinking habits, his moodiness, and his extreme nervousness. The jury found the defendant not guilty of murder. He was not, however, found guilty, of manslaughter in the first degree with intent to cause death under the influence of an extreme emotional disturbance under § 53a-55 (a) (2), but was found guilty of manslaughter in the first degree with intent to cause serious physical injury to another person resulting in that person’s death under § 53a-55 (a) (1).

On appeal, the defendant claims that the trial court improperly instructed the jury on circumstantial evidence. He specifically claims that the court’s instruction required that any inferences that were drawn by the jury on the defendant’s behalf had to have been proved beyond a reasonable doubt. He further claims that the jury was misled, and was thereby prevented from making reasonable inferences on the defendant’s behalf. In essence, the defendant is seeking one jury instruction on circumstantial evidence for the state, and a separate jury instruction for any circumstantial evidence that he offers.

Our Supreme Court in State v. Ortiz, 217 Conn. 648, 588 A.2d 127 (1991), recently addressed the issue of separate jury instructions on circumstantial evidence. Viewing the charge as a whole, the court concluded that separate instructions were not warranted. Id., 666-67.

In Ortiz, the defendant challenged the court’s instruction on circumstantial evidence given as part of the general charge on the state’s burden of proof. Id., 665. The defendant in that case also raised the affirmative defense of extreme emotional disturbance, and claimed that the court’s failure to give a separate circumstantial evidence instruction regarding this evidence misled the jury “to apply the ‘beyond a reasonable doubt’ standard to the facts inferable from the evidence.” Id., 669. The Supreme Court, in holding that the court’s omission of a separate instruction “could not possibly have misled the jury”; id., 670; noted that the instruction regarding circumstantial evidence was part of the general charge and that the court had separately instructed the jury on the defendant’s affirmative defense. Id., 669-70.

In this case, the defendant objects to the following portion of the jury charge: “Therefore, in deciding whether to draw an inference you must look at and consider all of the facts in the light of reason and common sense and experience. After you have done that, it is for you to decide whether to draw a particular inference. The inference you draw must be a reasonable and logical one and not the result of speculation and conjecture. Also, secondly, you must be satisfied that the fact to be inferred has been proved beyond a reasonable doubt. After you have done that it is for you to decide whether to draw a particular inference.”

The charge at issue is similar to the disputed charge in Ortiz. Id., 665. That portion of the charge to which the defendant objects was given as part of the court’s charge on direct and circumstantial evidence. The court correctly instructed the jury on circumstantial evidence and the inferences that properly could be drawn from such evidence. Our review of the record also indicates that the court’s separate instruction on the defendant’s affirmative defense was thorough and proper and accurately discussed that the defendant’s burden of proof existed only on this issue, and that his burden of proof by a preponderance of the evidence was a lesser burden than that borne by the state.

We, therefore, conclude that the jury could not have been misled by the court’s instruction regarding inferences and circumstantial evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a provides: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       General Statutes § 53a-55 provides: “(a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”


author: Spallone, J.

text:
    State of Connecticut v. Bruce Lloyd
    (9371)
    Spallone, Laveey and Landau, Js.
    Argued March 19
    decision released May 28, 1991

      Kimball Haines Hunt, with whom, on the brief, was Heidi Cornish, law student intern, for the appellant (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from his convictions, following conditional pleas of nolo contendere, of the crimes of possession of cocaine in violation of General Statutes § 21a-279 (a), larceny in the third degree in violation of General Statutes § 53a-124 (a) (2), and attempted larceny in the second degree in violation of General Statutes §§ 53a-49 and 53a-123 (a) (2).

The defendant claims that the trial court improperly refused to suppress (1) narcotics that were seized from his automobile after he had been arrested, handcuffed and placed in a police cruiser, and (2) evidence that was seized under a warrant that allegedly failed to describe with particularity the items to be seized. Both of the defendant’s assertions are without merit.

On the morning of July 18, 1989, members of the New London police department, along with inspectors from the state’s attorney’s office, were armed with a warrant for the defendant’s arrest and observed the defendant operating his automobile. The officers stopped the defendant’s car, arrested him and placed him in a police cruiser. While the defendant was at the scene and seated in the cruiser, a police officer entered the passenger compartment of the defendant’s car and found a plastic bottle containing cocaine on the floor by the front seat. Subsequently, the defendant filed a motion to suppress which the court denied after a hearing. The trial court correctly applied existing state and federal law in denying the defendant’s motion to suppress the evidence seized during a warrantless search of the defendant’s automobile while the defendant was still at the scene, although he was handcuffed and in the police cruiser. See, e.g., New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); State v. Hull, 210 Conn. 481, 496, 556 A.2d 154 (1989); State v. Badgett, 200 Conn. 412, 428, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986); State v. Farr, 24 Conn. App. 259, 264, 587 A.2d 1047 (1991).

In his second claim, the defendant argues that the trial court improperly failed to suppress evidence seized pursuant to a search warrant that he alleges is defective as to the particularity of the items to be seized. This claim arises from a search conducted pursuant to a warrant of the defendant’s office and boat. Our review of the warrant reveals a substantial basis for the trial court’s ruling that the search warrant sufficiently described the property to be seized. See, e.g., United States v. Bentley, 825 F.2d 1104 (7th Cir. 1987); United States v. Kail, 804 F.2d 441 (8th Cir. 1986); United States v. Sawyer, 799 F.2d 1494 (11th Cir. 1986); United States v. Hayes, 794 F.2d 1348 (9th Cir. 1986); State v. Ruscoe, 212 Conn. 223, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990).

In denying the defendant’s motions to suppress, the trial court acted properly and in accordance with applicable law.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant claims that the search warrant, pursuant to which his office was searched and certain records seized, was invalid on its face because it did not describe the property to be seized with sufficient particularity. There was no argument or evidence presented to the trial court concerning the execution of the warrant or the nature of the property or records seized.


author: Heiman, J.

text:
    Charles A. Burke v. Joseph R. Ruggerio et al. Roland A. Pepin et al. v. Charles A. Burke

    (9274)
    Spallone, Foti and Heiman, Js.

      Argued February 13
    decision released May 28, 1991

      Robert F. Cohen, for the appellant (plaintiff in the first case, defendant in the second case).

      David A. Zipfel, for the appellees (named defendant et al. in the first case, plaintiffs in the second case).

      Dennis C. LaGanza, for the appellees (defendant Ralph A. Pasek et al. in the first case).

       The genesis of this appeal is an action that was instituted in February, 1988, by Roland Pepin, Joseph Ruggerio, and Nicholas Serignese against Charles Burke alleging that Burke had unlawfully entered onto the plaintiffs’ respective properties and constructed a fence thereby interfering with the plaintiffs’ use of their land. This case was filed in the Superior Court, Judicial District of Hartford and was assigned civil docket number CV-88-0341542S. In August, 1988, Charles Burke filed a separate action against the following abutting property owners: Joseph Ruggerio, Nicholas Serignese, Roland A. Pepin, Alfred P. Roggi, Dorothy D. Roggi, Ralph Pasek, Edythe L. Pasek, trustee for the Truck Drivers, Chauffeurs, Ware-housemen and Helpers Local Union No. 671, Carmine J. Napolitano, Michael J. Napolitano, Ruth Napolitano and Richard P. Napolitano. This case was also filed in the Hartford Superior Court and it was assigned civil docket number CV-88-0349471S. The court consolidated these actions for trial and its memorandum of decision referred to Burke v. Ruggerio, docket number CV-88-0349471S, as the primary case, but specifically stated that its decision refers to both cases. The trial court rendered judgment in favor of those defendants named in Burke v. Ruggerio and Burke appealed to this court.

   Heiman, J.

The plaintiff appeals from the judgment of the trial court (1) finding that he has not established that he had acquired title by deed to a piece of land located in East Hartford, and (2) quieting and settling title to the center of the strip of land known as Johnson Street in each abutting owner. We affirm that part of the judgment holding that the plaintiff had not established his record title ownership, and reverse that part of the judgment purporting to quiet and settle title to the center of Johnson Street.

In his appeal, the plaintiff claims that the court incorrectly (1) concluded that he had not established his title to the disputed land by deed, (2) refused to grant the plaintiff’s motion for continuance in order to permit him to secure additional witnesses, and (3) concluded that the plaintiff and the defendants each owned the property abutting their respective parcels to the center line of Johnson Street. We disagree with the plaintiff’s first and second claims but agree with him with respect to his third claim.

The facts as found by the trial court are as follows. The plaintiff is the owner of lot number twenty-five on a map or plan entitled: “Property of O. J. Signor situated on the southerly side of Tolland Street and on the northerly side of Burnside Avenue, East Hartford, Conn. Scale 1 inch equals 40 ft., August, 1918 L. W. Burke and Son, Civil Engineers, Hartford.”

This map also depicts an L-shaped strip of land denominated Johnson Street. Johnson Street was a “paper street.” There was no formal dedication pf it for use as a highway, nor was there any formal or implied acceptance of the strip by the town of East Hartford. Johnson Street was never developed as a public roadway and it was not used by any of the abutting owners for access. Title to only the base portion of the L-shaped strip was the subject of a previous action decided by this court. Ruggerio v. East Hartford, 2 Conn. App. 89, 477 A.2d 668 (1984). In that case, the trial court held that Ruggerio and Burke, a defendant in that action, each owned one-half of the base of Johnson Street for such distance as Johnson Street abutted their respective properties. We affirmed the judgment of the trial court. Id.

The defendants in this case are the owners of lots shown on the upper portion of the L-shaped strip referenced in the map. They each derived title to their respective lot from deeds in a chain of title derived from the original grantees of O. J. Signor. In addition, the defendants each received quitclaim conveyances from the town of East Hartford purporting to convey all of the right, title and interest that the town possessed in and to that portion of Johnson Street that abutted each defendant’s land. The plaintiff claims to have derived title to the entire strip of land known as Johnson Street by virtue of two warrantee deeds from people who he asserts were the heirs of O. J. Signor, the original owner of the whole tract. Prior to the execution of these two warrantee deeds, O. J. Signor had conveyed out all of the parcels of land shown on the map. Each conveyance by Signor referred to Johnson Street as a boundary where applicable.

Despite his claim that he had gained legal title from the heirs of O. J. Signor by deed, the plaintiff failed to offer any evidence that O. J. Signor was dead, that O. J. Signor was related to the plaintiff’s grantors, or of their chain of title to the strip of land known as Johnson Street. The court first concluded that the plaintiff had failed to establish his title to the entirety of Johnson Street. It then rendered judgment determining that the plaintiff and each of the defendants owns the land abutting his property to the center of the strip of land known as Johnson Street on the map.

I

The plaintiff first asserts that the court incorrectly concluded that the plaintiff had failed to establish his ownership of the disputed land by deed. We disagree.

The plaintiff alleged that his title to the disputed parcel of land was acquired by virtue of two deeds, one from Walter E. Signor dated December 21,1988, and one from Elaine Hemphill Popielarski dated February 9, 1982. Both of these grantors are alleged to be heirs of “J. [sic] J. Signor the record owner of said premises.” The court concluded that the plaintiff had failed to prove that (1) O. J. Signor was dead, (2) there existed any probate proceedings or any other evidence of any distribution to the grantors, and (3) the grantors had obtained any title interest in said premises.

Even in these modern days, the ancient legal maxim nemo est haeres viventis is still applicable. Thus, in order to establish that his purported grantors were the heirs of Signor, the plaintiff was first obligated to prove the death of Signor. The trial court found that it had before it no evidence to establish the death of Signor, a factual conclusion that cannot be disturbed on appeal. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 160, 510 A.2d 440 (1986).

The trial court also specifically found that the plaintiff had failed to establish the derivation of the claimed title of Popielarski or Walter Signor, the source of the plaintiff s'deeds to Johnson Street. This again is a factual conclusion that the trial court is permitted to draw from the evidence before it. Id. We cannot retry the facts of a case or judge the credibility of the witnesses. Triano v. Brodowy, 151 Conn. 445, 446, 199 A.2d 164 (1964).

It is well settled that in a dispute over the title to real estate, a party can prevail only on the strength of his own title. Marquis v. Drost, 155 Conn. 327, 334, 231 A.2d 527 (1967). “[0]ne cannot create a title in himself merely by proof of a set of deeds purporting to constitute a chain of title ending with a conveyance to himself.” Loewenberg v. Wallace, 147 Conn. 689, 696, 166 A.2d 150 (1960).

The court correctly applied the law to the facts found and its conclusion that the plaintiff did not meet his burden of proving his record title interest in Johnson Street by deed is amply supported by the record, and is not clearly erroneous. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 473, 542 A.2d 692 (1988).

II

The plaintiff next claims that the trial court abused its discretion in refusing to grant his motion for continuance in order to produce further testimony. We disagree.

Certain additional facts are necessary to the disposition of this claim. When the plaintiff rested his case, the defendants moved for a dismissal for failure of the plaintiff to make out a prima facie case. Practice Book § 302. The basis on which the defendants pressed this motion was their claim that the deeds offered into evidence by the plaintiff did not establish a chain of title to Johnson Street, and that there was no evidence of the death of Signor, or that an inventory of his property included the property in question filed in a Probate Court. The trial court denied the motion made by the defendants pursuant to Practice Book § 302. The plaintiff then moved that he be permitted to reopen his case and that he be allowed until 10 a.m. the following morning to produce either Popielarski or Walter Signor as a witness. The plaintiff offered no reason to the court for his request, nor did he offer any explanation as to why the additional witness was necessary. The trial court, after ascertaining that the return day of the case was May 24,1988, sustained the defendants’ objections and denied the plaintiff’s motion.

It is the burden of the plaintiff to demonstrate that the court abused its discretion in denying his motion for a continuance. Chaplin v. Balkus, 189 Conn. 445, 448-49, 456 A.2d 286 (1983). “ ‘ “A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion.” . . ” (Citations omitted.) Durso v. Misiorek, 9 Conn. App. 93, 96, 516 A.2d 450 (1986). We are especially hesitant to find an abuse of discretion where the request for continuance comes after the plaintiff has rested his case. See Thode v. Thode, 190 Conn. 694, 462 A.2d 4 (1983). “Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made.” Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).

Just as the plaintiff offered the trial court no explanation for his request for continuance, he also offers us no explanation for his claim that the trial court acted arbitrarily.

We conclude that the trial court properly exercised its discretion in denying the plaintiff’s motion for continuance.

III

The plaintiff asserts that the trial court incorrectly concluded that the plaintiff and the defendants each own the land abutting his property to the center of the strip of land known as Johnson Street as shown on the map described previously. He posits that the court’s reliance on the case of Peck v. Smith, 1 Conn. 103 (1814), is misplaced because Peck deals with a public highway. We agree. The trial court’s reliance on the holding in Ruggerio v. East Hartford, supra, is also misplaced because, in Ruggerio, the court found that there had been a valid acceptance of the dedication of the base of Johnson Street thereby making that case subject to the rule of Peck and its progeny. Here, the trial court expressly found that Johnson Street was never developed as a public road, that it was not used by any of the abutting owners for access, that it is a paper street, that there had been no formal dedication of the strip for use as a highway, and that there had been no formal or implied acceptance of the strip by the town of East Hartford. Compare Ruggerio v. East Hartford, supra, 93-95. The factual findings of the trial court make it abundantly clear that the land in dispute is not a public highway. “ ‘From early times, under the common law, highways have been established in this state by dedication and acceptance by the public.’ ” Ventres v. Farmington, 192 Conn. 663, 666, 473 A.2d 1216 (1984). Peck v. Smith, supra, and its progeny deal only with the disposition of public highways, and are, therefore, inapplicable to this case. Goodwin v. Bragaw, 87 Conn. 31, 36-38, 86 A. 668 (1913); see also E. Sostman & J. Anderson, “The Highway and the Right of Way: An Analysis of the Decisional Law in Connecticut Public, Private and Proposed Roads from Establishment to Abandonment,” 61 Conn. B.J. 299, 332 et seq. (1987).

Unless a contrary intent can be found in the deeds of conveyance, a deed to land abutting a private way does not convey any interest in fee to the center of the passway. Seery v. Waterbury, 82 Conn. 567, 571, 74 A. 908 (1909). Thus, the award by the trial court of title to the abutting owners of the property adjacent to their respective lots to the center line of Johnson Street was plain error being supported by neither the law nor the facts of this case. See Practice Book § 4185.

The judgment in favor of the defendants on the plaintiffs complaint is affirmed; that part of the judgment awarding title to Johnson Street to the plaintiff and defendants is reversed and the case is remanded with direction to vacate that portion of the judgment.

In this opinion the other judges concurred.

       In accord with footnote 1, supra, Charles Burke will be referred to as the sole plaintiff in this case.

       The record refers to this alleged grantee as both Walter E. Signor and Walter Signor, Jr.

       “No one is the heir of a living person.” Black’s Law Dictionary (6th Ed.).

       The following colloquy took place: “Mr. Cohen: If Your Honor pleases, I’d like to make a motion of my own, and that would be to allow me to reopen, Your Honor, and allow me until ten o’clock tomorrow morning to produce an additional witness, specifically, either Walter E. Signor, Jr., or Elaine Popielarski.

        “The Court: Now, this case has been on the books for a long time, Mr. Cohen. What’s the feeling of counsel?
      “Mr. Cohen: I have one more thing. If they feel that they have witnesses here who they’d like to put on, perhaps that could be accomplished in the same manner by allowing me to take that witness out of order.
      “Mr. Zipfel: He’s rested, Your Honor.
      “The Court: Well, what he’s asking for is the Court to allow him to withdraw that and continue with the matter until tomorrow, and my question is, do the defendants oppose that motion?
      “Mr. Zipfel: Your Honor.
      “The Court: Mr. Zipfel?
      “Mr. Zipfel: Your Honor, I’ll object to that request. Let the court decide.
      “The Court: What was the return date on this case?
      “Mr. Cohen: May 24, 1988.
      “The Court: Motion is denied. Defendant proceed.
      “Mr. Leone: Thank you, Your Honor.”


text:
    Donald R. Laufer v. Conservation Commission of the Town of Fairfield et al.
    (9456)
    Spallone, Landau and Heiman, Js.

      Argued March 18
    decision released June 4, 1991

      Ronald J. Pacacha, with whom, on the brief, were John F. Fallon, Jay S. Kogan and Wayne Pestone, for the appellant (plaintiff).

      Donal C. Collimore, assistant town attorney, for the appellees (named defendant et al.).

      Kimberly P. Massicotte, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Joseph Rubin and Robert B. Teitelman, assistant attorneys general, for the appellee (defendant commissioner of environmental protection).
   Heiman, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the action of the defendant Fairfield conservation commission denying his application for permission to construct a stream crossing within a wetland and watercourse area. We affirm the judgment of the trial court.

The plaintiff claims that the judgment is fatally flawed because the trial court failed to find (1) that the commission abused its discretion when it failed to apply its own standards in denying the plaintiffs application, (2) that the denial of the plaintiffs application was clearly erroneous in light of the substantial evidence supporting the application that was not rebutted by equally competent and countervailing authorities, and (3) that the commission’s denial of the application resulted in a confiscation of the plaintiffs property without just compensation. We disagree.

The facts necessary for the resolution of this appeal may be briefly summarized as follows. The plaintiff is the owner of a parcel of land known as lot five in an existing subdivision. He had previously received permits from the commission to construct houses on lots three, four and five of the subdivision. The plaintiff desires to resubdivide lot five into two separate parcels and to build a second house on one of the parcels. In order to ensure access to the proposed second house, the plaintiff filed the permit application at issue, seeking the commission’s permission to cross a stream. The plaintiff sought permission to install two eight foot by four foot box culverts to create a driveway crossing the stream.

The commission held a public hearing on the plaintiffs application in which it heard evidence and received exhibits from both the proponent and opponents of the application. The commission also received a recommendation from the staff of the Fairfield inland wetlands agency at this hearing.

On March 13,1989, the commission denied the plaintiff’s application with prejudice, finding (1) “that the stream crossing does not appear necessary, as upland access from the existing Mulberry Hill Road turnaround appears to be feasible and prudent,” and (2) “that the stream crossing will have adverse effects on the watercourse.”

The plaintiff, pursuant to General Statutes § 22a-43, appealed to the Superior Court, and, on May 25,1990, the court rendered judgment dismissing the appeal.

I

Although the plaintiff separates his claim that the trial court failed to find that the commission abused its discretion from his claim that the court failed to find that the denial of the permit was not supported by substantial evidence, we have consolidated them for purposes of this appeal because they are both fact bound issues.

A

The plaintiffs claim that the commission failed to adhere to its own standards is grounded on the fact that the staff of the Fairfield inland wetlands agency made a recommendation to the commission that the application be conditionally approved. The plaintiff reasons that because the commission did not adopt the recommendation of the agency’s staff, we must con-elude that the commission failed to apply its own standards and, thus, abused its discretion. We do not agree with either the plaintiffs basic premise or his conclusion.

The plaintiff has not pointed us to any Connecticut case to support his thesis that the failure of the defendant commission to adopt the staff’s recommendation constitutes a failure to adhere to its own standards, nor has our independent research disclosed such a case.

General Statutes § 22a-42 (c) expressly requires each municipality either to establish an inland wetlands agency or to authorize an existing board or commission to carry out the public policy of regulating activities affecting wetlands and watercourses. General Statutes § 22a-42a (c) provides that no regulated activity shall be conducted upon any inland wetland and watercourse without a permit, and further requires that the person proposing to conduct such an activity file an application for such a permit. Finally, General Statutes § 22a-42a (d) provides that in granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in General Statutes § 22a-41.

It is quite apparent that the statutory scheme for the resolution of permit applications envisions that the authorized agency shall be the decision maker. While the agency may seek advice and assistance from a professional staff, it is the agency itself that must find the facts and apply the statutory criteria to those facts. See Connecticut Natural Gas Corporation v. Public Utilities Control Authority, 183 Conn. 128, 136-37, 439 A.2d 282 (1981).

It is well settled that issues of credibility of witnesses and determinations of issues of fact are matters within the exclusive province of the administrative agency. Jaffe v. State Department of Health, 135 Conn. 339, 343, 64 A.2d 330 (1949); Altholtz v. Dental Commission, 4 Conn. App. 307, 310, 493 A.2d 917 (1985). To adopt the plaintiff's argument would negate these longstanding rules of administrative procedure, and would constitute an unlawful delegation of powers. See generally New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146, 148-49, 384 A.2d 337 (1977). We conclude, therefore, that the plaintiffs first claim is without merit.

B

The plaintiff next attacks the factual underpinnings of the trial court’s decision by claiming that the trial court incorrectly failed to find that the agency’s denial was clearly erroneous. The plaintiff posits that the evidence that was presented to the agency was not rebutted by equally competent and countervailing authorities. We do not agree.

After a full evidentiary hearing, the commission concluded that the application should be denied. It found that a stream crossing “does not appear necessary, as [the] upland access from the existing Mulberry Hill Road turnaround appears to be feasible and prudent.” It also concluded that the stream crossing “will have adverse effects on the watercourse,” with the short term construction impact being significant siltation, and the long term adverse impact involving road sands and salts degrading the wetlands and watercourses. The commission thus concluded, on the basis of the evidence that was before it, that “[significant, adverse and unnecessary effects are anticipated on the regulated area as a consequence of this proposal.”

The basis on which the defendant commission denied the permit is clearly set forth in its decision. Where the record discloses evidence that supports any one of the reasons given, the decision of the agency must be upheld. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 539-40, 525 A.2d 940 (1987). It is the burden of the plaintiff challenging the administrative action to establish that the record does not support the action of the agency. Red Hill Coalition, Inc. v. Conservation Commission, 212 Conn. 710, 718, 563 A.2d 1339 (1989).

As noted above, in reviewing decisions by a wetlands agency the evidence supporting the reason given by the agency for its action must be substantial. “ ‘ “ ‘[T]he credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.’ ” ’ ” Huck v. Inland Wetlands & Watercourses Agency, supra, 540-41. “ ‘This so-called substantial evidence rule is similar to the “sufficiency of the evidence” standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords “a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.”. . . “The‘substantial evidence’ rule is a compromise between opposing theories of broad or de novo review and restricted review or complete abstention. It is broad enough and capable of sufficient flexibility in its application to enable the reviewing court to correct whatever ascertainable abuses may arise in administrative adjudication. On the other hand, it is review of such breadth as is entirely consistent with effective administration. . . . [It] imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of ‘weight of the evidence’ or ‘clearly erroneous’ action. . . .” ’ ” Id., 541.

The fact that the possibility exists that two inconsistent conclusions may be drawn from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966); Huck v. Inland Wetlands & Watercourses Agency, supra.

An administrative agency is not required to believe any witness, even an expert, nor is it required to use any of the evidence presented to it in a particular manner. Manor Development Corporation v. Conservation Commission, 180 Conn. 692, 697, 433 A.2d 999 (1980).

Applying these standards to the trial court’s decision in this case, we conclude that the trial court correctly found the decision of the commission to have been supported by substantial evidence.

II

Finally, the plaintiff asserts that the trial court improperly concluded that the commission’s action did not constitute an unconstitutional taking of property without just compensation. We disagree.

Although both the fifth amendment to the constitution of the United States and article first, § 11, of the constitution of Connecticut require the payment of just compensation for the taking of private property for public use, neither has ever been interpreted so as to deny the state the power to regulate the uses to which an owner may devote his property. Figarsky v. Historic District Commission, 171 Conn. 198, 206, 368 A.2d 163 (1976).

On the basis of the evidence before it, the commission concluded that there was upland access to the property without the use of a stream crossing. The trial court concluded that the record contained substantial evidence to support that finding. Thus, no evidence exists to support the claim that the action of the commission constitutes a deprivation of the reasonable use of the plaintiffs property. See Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 357, 362 A.2d 948 (1975). “ ‘Until it appears that the plaintiff has been finally deprived by the commission of the reasonable and proper use of the property, it cannot be said that there has been an unconstitutional taking of property without just compensation. ’ ’ ’ Manor Development Corporation v. Conservation Commission, supra, 695.

At oral argument, the plaintiff conceded that the present application for a permit to install two eight foot by four foot box culverts to create a driveway crossing of the stream was the only permit application that had been filed relating to a resubdivided lot five. The trial court found that the plaintiff had failed to demonstrate the requisite finality to support his claim of an unconstitutional taking without just compensation. We agree with the trial court.

“We cannot know whether the board would also have rejected a more modest plan. Although we do not believe ‘that repeated applications and denials are necessary to pinpoint’ the board’s position . . . nor that a property owner must ‘take patently fruitless measures’. . . in most cases, a property owner must do more than submit one plan to an agency in order to establish that the agency’s decision is ‘final’ for the purposes of the taking clause.” (Citations omitted.) Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 607, 587 A.2d 126 (1991).

In light of the finding that other, less intrusive means are available for access to the property, and the plaintiff’s failure to demonstrate that a less grandiose or less ambitious plan would “receive similarly unfavorable reviews”; id., 608; we hold that the trial court correctly found that the plaintiff had failed to demonstrate the necessary finality of the commission’s action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the town of Fairfield conservation commission, Evelyn Hiller, clerk of the town of Fairfield, and the state commissioner of environmental protection.

       General Statutes § 22a-43 (a) provides: “The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may appeal to the superior court in accordance with the provisions of section 4-183, except venue shall be in the judicial district where the land affected is located, and if located in more than one judicial district to the court in any such judicial district. Such appeal shall be made returnable to said court in the same manner as that prescribed for civil actions brought to said court. Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action, but the court may, on application and after notice grant a restraining order. Such appeal shall have precedence in the order of trial.”

       General Statutes § 22a-42 (c) provides in pertinent part: “On or before July 1, 1988, each municipality shall establish an inland wetlands agency or authorize an existing board or commission to carry out the provisions of sections 22a-36 to 22a-45, inclusive. Each municipality, acting through its legislative body, may authorize any board or commission, as may be by law authorized to act, or may establish a new board or commission to promulgate such regulations, in conformity with the regulations adopted by the commissioner pursuant to section 22a-39, as are necessary to protect the wetlands and watercourses within its territorial limits.”

       General Statutes § 22a-42a (c) provides in pertinent part: “On and after the effective date of the municipal regulations promulgated pursuant to subsection (b) of this section, no regulated activity shall be conducted upon any inland wetland and watercourse without a permit. Any person proposing to conduct or cause to be conducted a regulated activity upon an inland wetland and watercourse shall file an application with the inland wetlands agency of the town or towns wherein the wetland in question is located.”

       General Statutes § 22a-42a (d) provides in pertinent part: “In granting, denying or limiting any permit for a regulated activity the inland wetlands agency shall consider the factors set forth in section 22a-41, and such agency shall state upon the record the reason for its decision. In granting a permit the inland wetlands agency may grant the application as filed or grant it upon such terms, conditions, limitations or modifications of the regulated activity, designed to carry out the policy of sections 22a-36 to 22a-45, inclusive.”

       General Statutes § 22a-41 provides: “factors for consideration of COMMISSIONER. FINDING OF NO FEASIBLE OR PRUDENT ALTERNATIVE, (a) In carrying out the purposes and policies of sections 22a-36 to 22a-45, inclusive, including matters relating to regulating, licensing and enforcing of the provisions thereof, the commissioner shall take into consideration all relevant facts and circumstances, including but not limited to:
      “(1) The environmental impact of the proposed action;
      “(2) The alternatives to the proposed action;
      “(3) The relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity;
      “(4) Irreversible and irretrievable commitments of resources which would be involved in the proposed activity;
      “(5) The character and degree of injury to, or interference with, safety, health or the reasonable use of property which is caused or threatened; and
      “(6) The suitability or unsuitability of such activity to the area for which it is proposed.
      “(b) In the case of an application which received a public hearing, a permit shall not be issued unless the commissioner finds that a feasible and prudent alternative does not exist. In making his finding the commissioner shall consider the facts and circumstances set forth in subsection (a). The finding and the reasons therefor shall be stated on the record.”