author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. LUIS COLON
    (AC 17641)
    O’Connell, C. J., and Hennessy and Stoughton, Js.
    Argued January 19
    officially released April 13, 1999

      Leopold P. DeFusco, special public defender, for the appellant (defendant).

      Cornelius P. Kelly, assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Luis Colon, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and two counts of risk of injury to a child in violation of General Statutes § 53-21. The sole issue on appeal is whether the trial court improperly denied the defendant’s motion for a mistrial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was the uncle of the victim, a twelve year old girl who baby-sat for his four children. On occasion, the defendant would be alone in his residence with his children and the victim. The victim testified that on those occasions, from the summer of 1994 through November, 1995, the defendant kissed her and committed various sexual assaults on her, and she considered all of these acts to be sexual.

In one incident that occurred in the victim’s home, the victim’s sister entered a bedroom and observed the defendant engaging in sexual intercourse with the victim. The defendant threatened the victim with harm if she told anyone about what he had done. Although the victim asked her sister not to tell their mother, the sister reported what she had observed to their mother. The victim initially denied that anything had occurred, but eventually disclosed to a teacher and a school nurse that the defendant had sexually molested her. Thereafter, she gave a statement to the police. An examination by a medical doctor revealed that the victim had no hymen and that she had cervical dysplasia, a condition that would not be expected in a young girl who had not had sexual intercourse.

The defendant denied that he had ever been alone with the victim and offered evidence tending to show that he had little opportunity to be alone with the victim and that she was untruthful. In addition to highlighting facts that they believed supported their arguments, both counsel emphasized the credibility of the witnesses as an important issue for the jury.

During his opening argument, the prosecutor asserted that the victim was embarrassed by what had occurred and that the defendant had taken the victim’s innocence. He emphasized the victim’s youthfulness, claiming that to her all of the kissing and touching that had taken place was sexual, in addition to the intercourse and other sexual assaults. He also told the jury that the victim had not wanted to discuss the events but had to do so. In apparent response to that argument, defense counsel asserted that the prosecution could play games with the word sex, but that on cross-examination the victim had used the correct terms for the male and female genitalia, rather than what he called “child terms.”

During the prosecution’s closing argument, the following exchange occurred:

“[Prosecutor]: You heard [the victim] testify in terms. Of course she used the word penis. Of course she used the word vagina. [Defense counsel] would have you believe that [the victim] would come in here as a young child, unsophisticated. I believe this defendant took away her childhood. She’s grown up now.

“[Defense Counsel]: Objection. I’d ask that that last remark be stricken for two reasons. First place, it’s a call to emotion. Second place, it’s a statement of his personal belief, which is improper.

“The Court: All right. At this point, I’ll instruct the jury that the personal beliefs of the attorneys are not evidence. It’s not proper for either attorney to express personal belief.”

At the conclusion of closing arguments, defense counsel moved for a mistrial and the motion was denied. This appeal followed.

The defendant claims that the prosecutor’s comments amounted to misconduct so egregious as to deprive him of his due process right to a fair trial, entitling him to a mistrial because the comments were improper and substantially prejudicial to him and were not cured by the court’s instructions. The defendant claims that the prosecutor’s comments improperly (1) expressed his personal opinion, (2) suggested that the victim had been a virgin, a fact for which there had been no evidence, and (3) appealed to the emotions of the jury. We disagree with these claims.

“[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... A determination of whether a mistrial is warranted is left to the sound judgment and discretion of the trial judge. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided.” (Citations omitted; internal quotation marks omitted.) State v. Wooten, 227 Conn. 677, 693-94, 631 A.2d 271 (1993).

Prosecutorial misconduct may occur in the course of closing argument and it may be so egregious that no curative instruction could reasonably be expected to remove its impact. State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987). However, “[i]n analyzing the defendant’s claim, we ask whether the prosecutor’s conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct.” (Citations omitted; internal quotation marks omitted.) Id., 539-40.

Moreover, our Supreme Court has considered several factors in assessing whether prosecutorial misconduct is so serious as to amount to a denial of due process. Id., 540. These factors include “the extent to which the misconduct was invited by defense conduct or argument . . . the severity of the misconduct . . . the frequency of the misconduct . . . the centrality of the misconduct to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) Id.

“In examining the prosecutor’s argument we must distinguish between those comments whose effects may be removed by appropriate instructions . . . and those which are flagrant and therefore deny the accused a fair trial. ... In determining whether the defendant was denied a fair trial we must view the prosecutor’s comments in the context of the entire trial.” (Citations omitted.) State v. Haskins, 188 Conn. 432, 457, 450 A.2d 828 (1982).

After reviewing the record, we conclude that the prosecutor’s comments in this case were not so egregious as to deprive the defendant of his constitutional right to a fair trial. The comments occurred during rebuttal argument, were to some extent invited and were not central to the case. There was eyewitness testimony concerning one of the acts committed by the defendant in light of which the case against the defendant was relatively strong. After the motion for mistrial had been made, the trial court opined that the prosecutor’s remark was not so egregious as to warrant a mistrial. Finally, the trial court gave an appropriate and prompt curative instruction, which was repeated in its charge to the jury. It is presumed that the jury followed these instructions of the court. State v. Teti, 50 Conn. App. 34, 45, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998).

We conclude that the instruction cured any prejudicial impact that the prosecutor’s remark might have had. Accordingly, we find no abuse of discretion in the trial court’s denial of the motion for mistrial.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court’s instructions to the jury included the following: “Certain things are not evidence, and you may not consider them in deciding what the facts are. These include arguments and statements by lawyers. The lawyers are not witnesses. What they have said in their closing arguments is intended to help you interpret the evidence, but it is not evidence. To the extent in this case that the prosecutor expressed a personal belief m the credibility of witnesses or in the evidence, you should disregard it. Personal beliefs of attorneys are not evidence, and not relevant to your deliberations. If the facts as you remember the facts differ from the way the lawyers stated the facts, your memory of the facts controls. . . .”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    IN RE TODD G.

    (AC 17596)
    Foti, Schaller and Spear, Js.
    Argued November 3, 1998
    officially released April 13, 1999

      Andrew M. Haynes, for the appellant (respondent).

      Patricia Johnson, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (petitioner).

      Robert H. Lessler, for the minor child.

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

   Opinion

SCHALLER, J.

The respondent appeals from the judgment of the trial court extending the commitment of her minor child to the commissioner of children and families (commissioner) for a period of twelve months. On appeal, the respondent claims that the trial court improperly (1) denied her an evidentiary hearing, as required by General Statutes (Rev. to 1997) § 46b-129 (e), on the merits of the commissioner’s petition for extension, (2) deprived her of her right to due process under the state and federal constitutions by failing to provide her with adequate notice of the hearing at issue and summarily granting the petition and (3) considered and relied solely on evidence from previous petitions, statements and reports, which were not in evidence in granting the petition. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. Todd G. was bom to the respondent on July 7,1983. Because of the respondent’s frequent psychiatric hospitalizations and inability to care for him, the trial court adjudicated the child uncared for and transferred his custody and guardianship to his maternal grandmother. It soon became clear that the child’s grandmother could not provide him with the care that he needed. Consequently, the trial court again adjudicated the minor child uncared for, this time committing him to the care of the commissioner for a period of eighteen months. The trial court extended the commitment for an additional eighteen months without objection. The respondent subsequently filed a petition for revocation of the extension. Following an eviden-tiary hearing, the trial court denied the petition. Later, the commissioner filed a petition to extend the child’s commitment. That petition was contested by the respondent but was granted by the trial court after an evidentiary hearing.

On March 3, 1997, the commissioner filed another petition for extension to which the respondent objected on March 24, 1997. The trial court set a pretrial hearing date of May 5, 1997. At the pretrial hearing, all parties agreed that psychological examinations of the respondent and the child, as well as a study of the interactions between them, would aid the court in its determination of the petition. The trial court did not rule on the pending petition at two subsequent hearings because the results of the court-ordered evaluations were not yet available. The matter was ultimately continued to August 25, 1997.

On August 25, 1997, the proceeding at issue took place. The trial court granted the commissioner’s petition, concluding that extending the commitment for a period of twelve months was in the child’s best interest. This appeal followed. Additional facts will be set forth as they become relevant.

I

The respondent first claims that the trial court improperly denied her a full evidentiary hearing, as required by General Statutes (Rev. to 1997) § 46b-129 (e), on the merits of the commissioner’s petition for extension. We disagree.

When considering a petition for extension of commitment, the trial court shall conduct a “hearing on such petition ... [to determine whether] an extension is in the best interest of the child . . . .” General Statutes (Rev. to 1997) § 46b-129 (e) (3). Although the respondent claims that this language suggests a full evidentiary hearing, we need not decide this issue because the respondent waived her right to any hearing by stating that she did not want one. At the hearing on August 25,1997, after the court proceeded to consider the commissioner’s petition for extension of commitment, respondent’s counsel stated: “Your Honor, [the respondent] has, you know, formally denied or entered a denial to the extension, is objecting to the extension, doesn’t want a hearing. (Emphasis added.)

The transcript reveals moreover, that, despite the respondent’s waiver, the trial court did grant her a full hearing as provided by § 46b-129 (e) (3). In reaching its decision on the petition, the trial court considered the court-ordered evaluations of the respondent and the child, a study done for the commissioner’s extension of commitment and two updates of that study. The trial court also invited the respondent to present her own evidence relevant to the petition for extension; the respondent declined to do so.

II

The respondent next claims that the trial court improperly deprived her of her right to due process under the state and federal constitutions by failing to provide her with adequate notice of the hearing at issue and by summarily granting the commissioner’s petition for extension. The record shows that the respondent was given adequate notice of the petition and was informed of all subsequent hearings. As to the claim that the court summarily decided the petition, as we stated in part I, the respondent was granted a full hearing in this case.

Ill

The respondent claims finally that the trial court improperly considered and relied solely on evidence gleaned from previous petitions, statements and reports, which were not in evidence in granting the petition for extension. We disagree.

In deciding a petition for extension of commitment, the trial court must consider “the social study and the total circumstances of the child [before it] orders whatever action is in the best interest of the child and the community. . . .” Practice Book § 26-1 (f). The transcript reveals that the trial court in the present case considered the study by the department of children and families that accompanied the petition, as well as two subsequent status reports in which the department had updated the circumstances of the minor child. The trial court also considered the court-ordered psychological examinations of the respondent and minor child, as well as a study of the interaction between parent and child. Under General Statutes (Rev. to 1997) § 46b-129 (c), the trial court was authorized to review such information. Furthermore, the trial court indicated that it would consider any evidence that the respondent wanted to offer. As previously noted, the respondent offered no relevant evidence.

We conclude that the trial court did not rely solely on evidence from prior proceedings relative to the child. In fact, the transcript reveals that the trial court’s use of such information in the present case was merely comparative, demonstrating only that the circumstances of the child remained unchanged and that an extension was still as much in the best interest of the child as it had been in the past. Accordingly, we conclude that the trial court did not improperly consider the evidence in granting the commissioner’s petition for extension of commitment.

The judgment is affirmed.

In this opinion the other judges concurred.

       In In re Todd G., 49 Conn. App. 361, 713 A.2d 1286 (1998), we held that the extension of a commitment order is a final judgment for purposes of appellate review.

       General Statutes (Rev. to 1997) § 46b-129 (e) provides in relevant part: “Ninety days before the expiration of each twelve-month commitment . . . and each extension . . . the Commissioner of Children and Families shall petition the court either to (1) revoke such commitment ... or (2) terminate parental rights . . . or (3) extend the commitment beyond such twelvemonth period on the ground that an extension is in the best interest of the child. The court shall give notice to the parent, parents or guardian and to the child or youth at least fourteen days prior to the hearing on such petition. Upon finding that an extension is in the best interest of the child, the court may extend the commitment for a period of twelve months. . . .”

       “The order appealed from, which extended the child’s commitment to the petitioner, expired on April 11,1998. On March 23,1998, the commitment was extended for a period not to exceed twelve months from April 11,1998. We conclude that this case is not moot in light of the continuing commitment of the child. The extension allows this court to grant practical relief to the [respondent] should it be warranted on the merits.” In re Todd, G., 49 Conn. App. 361, 362 n.4, 713 A.2d 1286 (1998).

       The trial court convened a third time and the evaluations were then available, but the matter was continued because counsel for the respondent was not in attendance.

       The record does not contain either a written memorandum of decision or a transcribed copy of an oral decision signed by the trial court stating its reasons for granting the commissioner’s petition to extend the minor child’s commitment. See Praciice Book § 64-1. The duty to provide this court with a record adequate for review rests with the appellant. Practice Book § 60-5; Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605. 607, 710 A.2d 190 (1998). We will review these claims, however, because we can determine the trial court’s reasoning from the hearing transcript. See Singer v. Matto, 48 Conn. App. 462, 466, 710 A.2d 823 (1998).

       At oral argument, the respondent argued that this language in the transcript was either a typographical error or a misstatement. Even if we were to accept these assertions as true and overlook the fact that the respondent took no action to rectify the transcript prior to appearing before this court, we note that the transcript is devoid of any objection by the respondent to the trial court’s consideration of the extension petition or to the hearing procedure. In the absence of a request for plain error review, we are not bound to hear such claims. Practice Book § 60-5; Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d 77 (1998).

       The hearing was continued to the date at issue because the court-ordered evaluations, which the respondent agreed were necessary for the court’s decision on the petition, were not ready. Because they were available at this hearing, the trial court moved forward on the petition.

       We note that the respondent’s argument is also capable of being interpreted as an improper failure to recuse. We will not review it as such, however, as it was not properly preserved with a motion for disqualification of judicial authority. See Practice Book §§ 1-23, 60-5; Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982).

       The court stated: “This court is familiar with the [minor child’s] case from the three and a half years that the court’s been sitting here. This case has been before this court at least twelve times. This court personally sat through the last extension hearing that was hotly contested. I am thoroughly familiar with all of the updates. I’m familiar with the study that’s been done for this extension. There has not been one single change that would warrant anything but an extension of commitment.”

       General Statutes (Rev. to 1997) § 46b-129 (c) provides in relevant part: “When a petition is filed ... for the commitment of a child or youth, the Commissioner of Children and Families shall make a thorough investigation of the case and shall cause to be made a thorough physical and mental examination of the child or youth if requested by the court. The court after hearing on the petition and upon a finding that the physical or mental ability of a parent or guardian to care for the child or youth before the court is at issue may order a thorough physical or mental examination, or both, of the parent or guardian whose competency is in question. . . .”

       See footnote 10.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. ROBERT MONTINI
    (AC 16883)
    Spear, Hennessy and Sullivan, Js.

      Argued November 12, 1998
    officially released April 13, 1999

      Louis S. Avitabile, for the appellant (defendant).

      Michael E. O’Hare, assistant state’s attorney, with whom were Cara Eschuk, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Robert Montini, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) (2) and 53a-49 and four counts of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that (1) the trial court abused its discretion by allowing the state to reopen its case to present additional testimony from the victim after the defense had rested, thus depriving the defendant of a fair trial, (2) the trial court abused its discretion in admitting into evidence a videotape of the victim’s testimony, in which the camera panned the courtroom and showed that the defendant was not present during the videotaping of that testimony, (3) the trial judge failed to recuse himself despite the appearance of partiality and (4) the trial court improperly granted the state’s motion to quash the defendant’s subpoena to have the victim testify at the Jarzbek hearing. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim was bom on May 28,1987, in Jamaica. On January 17, 1990, the victim’s mother married the defendant and in January, 1993, the victim, who had been living with relatives in Jamaica, moved in with her mother and the defendant.

On the evening of March 10, 1995, the mother saw the defendant stick his tongue into the victim’s mouth while kissing her. The mother called the police and the victim told the police about the incident. The police investigated the incident and reported it to the department of children and families (department). Subsequent interviews by the police and the department revealed the defendant’s prior conduct with the victim.

From about January, 1993, to March, 1995, the defendant subjected the victim to various sexual acts. The defendant said he would blame her for his behavior if she told anyone about what he did to her. Additional facts and procedural history will be discussed where relevant to the issues on appeal.

I

The defendant claims that the trial court deprived him of a fair trial when it improperly allowed the state to reopen its case to present additional testimony after the state and the defendant had rested. We disagree.

The following facts and procedural history are necessary to the resolution of this issue. The victim testified by videotape that, on the evening of March 10, 1995, while playing hide-and-seek with her sister, she was invited by the defendant to hide under the sheets of the bed in which he was resting. Upon doing so, the defendant stuck his tongue into her mouth while kissing her. Her mother came into the bedroom, saw what was taking place and asked her what happened. The victim told her, and her mother called the police.

On October 22, 1996, the state called the victim’s mother as a witness. The mother’s testimony contradicted the testimony of the victim and also differed from her prior descriptions of the incident. The mother testified that she and the defendant had an argument and, later in the evening, the defendant pushed her toward the wall and punched her when she said she was going to divorce him and take the children away. She then told the victim to tell the police that the defendant had put his tongue into her mouth and had been touching her. She claims that she told the victim to lie to the police because, on a previous occasion, when the defendant and she had had a physical confrontation, the police did nothing about it. The mother stated that she then called the police and falsely accused the defendant of molesting her daughter. She further testified that she later told her daughter to withdraw her statement against the defendant but did not tell the police that she made up the allegations against the defendant because she was afraid of being punished for falsely reporting a crime.

On October 29,1996, the state rested its case without presenting additional testimony from the victim to rebut her mother’s testimony. The next day, when the defendant still had two witnesses to call, the state indicated to the court that it planned to call the victim as a rebuttal witness. On October 31, 1996, the state filed a motion seeking the court’s permission to allow the victim to testify in rebuttal of her mother’s testimony, or, in the alternative, to reopen its case. The trial court declined to consider further testimony from the victim as rebuttal evidence, but granted the state’s motion to reopen its case.

The defendant argues that the rule of law is that a trial court may reopen a case only if it believes that evidence on a material issue was not introduced due to inadvertence or mistake, and that, in the absence of the evidence, there is a serious danger of a miscarriage of justice. The defendant further argues that there was no inadvertence or mistake because the state purposely delayed its request to reopen only to obtain a strategic advantage by having the victim testify last.

“[I]f a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of. a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided. . . . Thus, witnesses can be permitted to elaborate or to explain testimony already given. . . . The decision to reopen a criminal case to add further testimony lies within the sound discretion of the trial court. . . . The trial judge’s discretion, which is a legal discretion, should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The purpose of this discretion is to preserve the fundamental integrity of the trial’s truth-finding function. . . . The trial court’s discretion will be reversed only upon manifest abuse of discretion or injustice.” (Citations omitted; internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 441-42, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994).

In granting the state’s motion to reopen its case, the trial court indicated that the victim’s videotaped testimony was taken before anyone knew what testimony her mother would give, so the state was precluded from asking the child questions about her mother’s testimony. The defendant argued that, if the state had prepared its case properly, it would not have been surprised by the mother’s testimony. The state indicated, however, that prior to the trial, the mother was charged with a criminal offense as a result of her attempt to induce her daughter to conceal the defendant’s sexually abusive conduct from the police and, therefore, the attorney representing the mother in the criminal matter would not permit the prosecutor to interview her.

The trial court concluded that there was “a compelling circumstance here and that no substantial prejudice will occur . . . and [to] allow the state to reopen for that limited purpose is in accord with fundamental integrity of a trial’s truth finding function.” We note that “[i]n determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling.” (Internal quotation marks omitted.) Suffield, Bank v. Berman, 228 Conn. 766, 783, 639 A.2d 1033 (1994). “[E]xcept in special circumstances, appellate courts should generally defer to the trial court’s judgment in resolving the admissibility of evidence offered after the parties have rested. . . . Unless the state’s offer seeks to fill an evidentiary gap in its prima facie case that was specifically called to the state’s attention by the defendant’s motion for acquittal . . . the trial court may permit additional evidence to be presented even though that evidence strengthens the case against the defendant.” (Citations omitted.) State v. Roman, 224 Conn. 63, 71, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993).

In this case, the additional testimony permitted by the trial court did not fill an evidentiary gap in the state’s prima facie case but allowed the state to present additional testimony for the limited propose of clarifying the testimony of the victim in light of her mother’s testimony, which the trial court found the state had not anticipated. The trial court limited the state to recall the victim to testify that “her mother did not tell her to lie to the police on March 10,1995, and that the ‘trip’ to the laundry room was not taken, as [her mother] testified, before the police arrived and for the purpose of [her mother’s] instructing her what to say, but after the police left, and for the apparent purpose of chastising the child for the additional sexual activity—or for not telling [her mother] about it.” (Emphasis in original.) We conclude that, under the circumstances in the present case, the trial court did not abuse its discretion and there was no injustice to the defendant in allowing further testimony by the victim.

II

The defendant next claims that he was denied a fair trial because the trial court improperly allowed the jury to view the opening sequence of the victim’s videotaped testimony, which showed that the defendant was not in the room during the videotaping. The state responds that this court should not review the defendant’s claim because he did not seek “a ruling from the trial court that would have addressed his concerns” with the videotape.

A

We must first address the state’s claim that the defendant failed to preserve this claim. The following procedural history is necessary to the resolution of this issue. There were two separate videotapes shown to the jury, each of which included an opening sequence panning the courtroom. The initial testimony of the victim was taped on July 19 and August 9, 1996. On July 19, 1996, prior to the videotaping, the attorney for the defendant stated to the court: “I understand that we are going to be having the camera pan the room here today to show who the participants are. And I would just like to take this opportunity to place on notice that... I am going to be asking the trial judge not to show that particular panning to the jury for reasons that I will make clear at the time of trial.” Prior to the victim’s testimony, the video camera panned the room so that a viewer could see the courtroom setting.

On October 10,1996, the state filed a motion in limine requesting that the videotaped testimony of the victim be shown to the jury in its entirety, including the preliminary panning sequence. The defendant filed a memorandum in opposition to the state’s motion on October 15, 1996. The court did not formally rule on the motion in limine; the trial court, in effect, ruled on the motion in limine on October 15,1996, when it addressed the issue of the videotaped testimony and concluded that the full tape including the panning sequence would be shown to the jury. The full videotape of the victim’s testimony was admitted in evidence and viewed by the jury on October 17 and 18, 1996. At trial, the defendant did not object to the admission of the videotape in its entirety and did not object to the initial panning sequence.

Practice Book § 60-5 provides in relevant part: “In jury trials, where there is a motion ... in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated remain the same. ...” Here, the defendant filed an objection to the state’s motion in limine and, while the trial court did not rule specifically on the motion in limine, the trial court did rule on the issue of the admissibility of the panning sequence on October 15, 1996. We conclude, therefore, that the defendant properly preserved his objection to this issue at trial.

The second videotape of the testimony of the victim, which the state used to rebut the mother’s testimony, was made on October 31,1996. The defendant’s attorney objected to the initial panning sequence prior to the videotaping. Therefore, the objections to the introduction of both videotapes were properly preserved at trial.

B

We now address the merits of the defendant’s argument. Specifically, the defendant argues that the jurors “could draw the conclusion, if they knew of the defendant’s absence, that somehow the child was frightened of him and, therefore, give credit to the state’s criminal charges.” The defendant argues that, as a result, the showing of the videotapes denied him a fair and impartial trial.

The state responds that the opening sequence panning the room was necessary to show that a judge was present and to show the comparative size of the child to adults in the courtroom because the jurors evaluate the credibility of witnesses not only by what they say but how they say it and under what circumstances. The state also argues that the defendant failed to show that he was prejudiced because the panning sequence took only a few seconds and the absence of the defendant was hardly noticeable.

The admissibility of the opening panning sequence is an evidentiary question. “Our standard of review regarding challenges to atrial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 87-88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998).

The defendant did not provide this court with the factual basis of the trial court’s ruling. Normally, during a trial, the jury is able to observe each witness in the courtroom setting. In the present case, the jurors were able to observe the victim testifying only on videotape. “It is . . . the jury’s exclusive province to . . . determine the credibility of the witnesses.” State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). The environment in which the -witness testified is an important element for the fact finders to consider when evaluating the credibility of the witness.

In addition, “[t]he function of the court in a criminal trial is to conduct a fair and impartial proceeding. . . . A trial judge in a criminal case may take all steps reasonably necessary for the orderly progress of the trial. . . . Control of the proceedings in the courtroom is necessarily within the trial judge’s discretion. . . . When the rights of those other than the parties are implicated, [t]he trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.” (Citations omitted; internal quotation marks omitted.) State v. Jupin, 26 Conn. App. 331, 348-49, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992).

When the -witness is a child victim in a sexual abuse case, General Statutes § 54-86g allows the court to order, under proper circumstances, a videotaping of testimony in a place and in a manner that ensures that the child’s testimony will be as reliable as possible and not cause psychological or emotional harm. See State v. Jarzbek, 204 Conn. 683, 686 n.2, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). We conclude that the trial court, in its effort to conduct a fair and impartial proceeding protecting the rights of all involved, could reasonably conclude as it did.

In any event, the defendant failed to show substantial prejudice or injustice. Because of the brevity of the entire panning sequence, the defendant’s speculation as to what the jurors could have surmised does not convince this court that he was prejudiced or that injustice occurred. We conclude that the court did not abuse its discretion in admitting into evidence the entire testimony of the victim, including the opening sequence.

Ill

The defendant next claims that the trial court improperly denied his motion to recuse the trial judge, Gill, J., from sitting in this matter. Specifically, the defendant argues that the judge “enjoys a national reputation as a child advocate outside of his position as a judicial authority for the state of Connecticut” and that “the prominence attained by the [judge] would conflict with the appearance of neutrality and impartiality of the judicial authority when said judge is called upon to make evidentiary rulings and possibly sentence a defendant in a case where the central focus is the alleged sexual molestation of a child.”

The following facts and procedural history are relevant to the resolution of this issue. On October 2, 1996, the defendant moved for the recusal of the trial judge in accordance with Practice Book § 997, now § 1-23. The defendant cites General Statutes § 51-39, Practice Book § 996 and canon 3 (c) of the Code of Judicial Conduct to support the requested recusal. The defendant’s motion requested relief from the trial court by asking the trial judge to answer a series of questions concerning his membership in child advocacy organizations and his attendance at conferences and lectures on the topic of children’s rights, to provide copies of all his writings on the topic of children’s rights dealing with sexual molestation of children and to permit counsel to ask the judge reasonable questions on any information gathered from the judge’s answers to the questions posed in the motion. On October 2, 1996, the trial court, after a hearing on the motion, denied the defendant’s motion.

“Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . The appearance as well as the actuality of [partiality] on the part of the trier will suffice to constitute proof of bias sufficient to warrant disqualification.” (Citation omitted; internal quotation marks omitted.) DeMatteo v. DeMatteo, 21 Conn. App. 582, 590, 575 A.2d 243, cert. denied, 216 Conn. 802, 577 A.2d 715 (1990). Canon 3 (c) (1) provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party . . . .”

“To prevail on [his] claim of a violation of this canon, the [defendant] need not show actual bias. The [defendant] has met [his] burden if [he] can prove that the conduct in question gave rise to a reasonable appearance of impropriety. We use an objective rather than a subjective standard in deciding whether there has been a violation of canon 3 (c) (1). Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard .... The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his . . . impartiality, on the basis of all of the circumstances.” (Internal quotation marks omitted.) Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 819-20, 717 A.2d 1232 (1998).

In this case, the defendant argues that the judge is a “nationally known advocate for children’s rights.” He also states that, during the hearing on the motion for recusal, he learned that the trial judge was “a co-founder of the National Task Force for Children’s Constitutional Rights and that he had served on the Connecticut Bar-Association Crime Victims Committee and was chairman of the Subcommittee on Child Victims.” The defendant claims that, at the hearing, he argued that “the antithesis of child advocacy is in the form of an alleged defendant who is alleged to be a child molester or a child sexual predator, in this case accused of sexual assault against a child.” The defendant failed to present any evidence in support of his assertions. A factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge’s impartiality. “Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse . . . . LaBow v. LaBow, 13 Conn. App. 330, 340, 537 A.2d 157, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); Szypula v. Szypula, 2 Conn. App. 650, 656, 482 A.2d 85 (1984).” DeMatteo v. DeMatteo, supra, 21 Conn. App. 591. Even if the defendant had demonstrated that the trial judge had an interest in victim’s rights, he failed to show how that alone would raise a question of the trial judge’s impartiality in a case against a criminal defendant accused of sexual assault. “It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.” (Internal quotation marks omitted.) LaBow v. LaBow, supra, 340.

The defendant further argues that the trial court’s adverse rulings demonstrate the judge’s lack of impartiality. “[T]he alleged bias and prejudice, to be disqualifying, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” (Internal quotation marks omitted.) Id., 341-42. We conclude that the trial court did not abuse its discretion in denying the defendant’s motion for recusal.

IV

The defendant finally claims that the trial court improperly granted the state’s motion to quash the defendant’s subpoena to have the child victim testify at the Jarzbek hearing. The defendant argues that he must be given every opportunity to present evidence to convince the hearing court that it should not find the necessity to exclude him. The state responds that requiring a victim to testify at a Jarzbek hearing, the purpose of which is to determine whether it is necessary to exclude the defendant in order to preserve the accuracy and reliability of the child victim’s testimony, would undermine the purpose of § 54-86g. We agree with the state.

The following facts are necessary to the resolution of this issue. On December 29, 1995, the state filed a motion, pursuant to § 54-86g, requesting that the trial court order that the testimony of the child victim be videotaped outside the presence of the defendant. The trial court scheduled a hearing for February 29, 1996, to determine whether the state met the requirements articulated in State v. Jarzbek, supra, 204 Conn. 683. The defendant served a subpoena on the child victim in order to compel her to testify at the Jarzbek hearing.

On February 27, 1996, the state filed a motion to quash the defendant’s subpoena and a motion in limine requesting that the court prohibit the defendant from compelling the child victim to testify at the Jarzbek hearing. On February 28, 1996, after a hearing on both motions, the trial court granted the state’s motions.

“Section 54-86g permits a court, under limited circumstances, to order that the testimony of a child alleged to be a victim of sexual abuse be taken outside the defendant’s presence. State v. Jarzbek, [supra, 204 Conn. 704-705.] To take advantage of this statute, the state must establish by clear and convincing evidence that a compelling need exists to exclude the defendant in order to preserve the accuracy and reliability of the minor’s testimony. Id. In order to satisfy its burden, the state must show that the minor victim would be so intimidated ... by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. . . . State v. Bonello, 210 Conn. 51, 59, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S. Ct. 2103, 104 L. Ed. 2d. 664 (1989); State v. Spigarolo, 210 Conn. 359, 368, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

“In order to fulfill the compelling need requirement of § 54-86g and Jarzbek, the state must present evidence that the reliability of the minor victim’s testimony will be impaired if the child is forced to testify in the defendant’s presence. Although the trial court may consider the well-being of the [child] as a significant factor in its analysis, the state cannot prove [compelling] need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused. State v. Jarzbek, supra, 204 Conn. 705. Because the defendant’s constitutional right of confrontation is implicated in such a determination, the trial court must focus primarily on the reliability of the minor victim’s testimony.” (Internal quotation marks omitted.) State v. Ells, 39 Conn. App. 702, 704-705, 667 A.2d 556 (1995), cert. denied, 235 Conn. 940, 669 A.2d 577 (1996).

In essence, the defendant is arguing that a child victim should be compelled to testify at the hearing to determine if the child victim would be so intimidated by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question. We disagree.

“Jarzbek requires an individualized, case-by-case assessment of the need to resort to the videotaping of the complaining minor witness’ testimony outside the physical presence of the accused.” (Internal quotation marks omitted.) State v. Marquis, 241 Conn. 823, 835, 699 A.2d 893 (1997). “The [ability] of a witness [to testify reliably] is a matter peculiarly within the discretion of the trial court and its ruling will be disturbed only in a clear case of abuse or of some error in law.” (Internal quotation marks omitted.) Id., 836. In Marquis, our Supreme Court held that the trial court did not abuse its discretion when it granted the defendant’s request to have an expert examine the child for the purpose of providing expert opinion evidence at the Jarzbek hearing. In this case, however, after a hearing on both of the state’s motions, the trial court determined that it was not appropriate to have the child testify in the Jarzbek hearing. The trial court indicated that the defendant could have an expert interview the child for the purpose of providing expert opinion evidence to rebut the state’s evidence. The defendant argues that “the defendant would never have the opportunity to challenge the accuracy and truthfulness of the state’s expert and lay witnesses” if the child was not allowed to testify in appropriate cases.

As the trial court indicated, the defendant had other avenues available to challenge the accuracy and truthfulness of the state’s expert and lay witnesses. The trial court, in deciding if the state has met its burden in a Jarzbek hearing, must ensure that the hearing is meaningful. Id., 837. At the hearing on the state’s motions, however, the defendant did not give the trial court any reasons why it was necessary to have the child testify, rather than have the child examined by an expert and have the expert testify. The defendant argues that because he elected not to attend the Jarzbek hearing, the victim would not be compelled to testify in his presence. The defendant, however, has not persuaded us that, without the child’s testimony, his hearing would not be meaningful.

Under these circumstances, we conclude that the trial court did not abuse its discretion in granting the state’s motion to quash the defendant’s subpoena.

The judgment is affirmed.

In this opinion the other judges concurred.

       In State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), our Supreme Court held that, in a criminal prosecution involving sexual abuse of a minor child, a court may allow the videotaping of testimony of the minor victim outside the physical presence of the defendant, when the state proves by clear and convincing evidence a compelling need to exclude the defendant, without violating the defendant’s constitutional rights.

       At some time during the evening, the victim’s mother took the victim down to the laundry room in the basement. On the basis of the child’s videotaped testimony, it was not clear when the victim’s mother took the victim down to the laundry room. The state claims that it occurred after the police left and the purpose was to chastise the child. The defendant claims that the visit to the laundry room occurred before the police came, and its purpose was to tell the child to lie to the police.

       Practice Book § 1-22, formerly § 996, provides: “A judicial authority shall, upon motion of either party or upon its own motion, be disqualified from acting in a matter if such judicial authority is disqualified from acting therein pursuant to Canon 3 (c) of the Code of Judicial Conduct or because the judicial authority previously tried the same matter and a new trial was granted therein or because the judgment was reversed on appeal. A judicial authority may not preside at the hearing of any motion attacking the validity or sufficiency of any warrant the judicial authority issued nor may the judicial authority sit in appellate review of a judgment or order originally rendered by such authority.”

       Canon 3 of Code of Judicial Conduct provides in relevant part.: “(c) Disqualification.
      “(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . .”

       General Statutes § 54-86g (a) allows a trial court, upon motion, to order that the testimony of a victim of child abuse be taken outside the courtroom and may order the defendant excluded from the room “only if the state proves, by clear and convincing evidence, that the child would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that a compelling need exists to take the testimony of the child outside the physical presence of the defendant in order to insure the reliability of such testimony. . .


text:
    FRANK WITT ET AL. v. ST. VINCENT’S MEDICAL CENTER ET AL.
    (AC 17709)
    Foti, Landau and Hennessy, Js.

      Argued December 14, 1998
    officially released April 13, 1999

      Joel T. Faxon, with whom, on the brief, were Christopher D. Bernard and Joshua D. Koskoff for the appellants (plaintiffs).

      Garie J. Mulcahey, with whom, on the brief, was R. J. Weber III, for the appellee (defendant David Lobdell).
   Opinion

HENNESSY, J.

The plaintiffs, Frank Witt and Rebecca Witt, appeal from the judgment rendered in favor of the defendant David Lobdell after the trial court granted Lobdell’s motion for summary judgment. On appeal, the plaintiffs claim that the trial court improperly (1) failed to find that the statute of limitations, General Statutes § 52-584, was tolled by Lobdell’s continuous duty to warn Frank Witt of a suspected, harmful medical condition, (2) failed to find that § 52-584 was tolled by a continuous course of conduct premised on Lobdell’s failure to correct a reported diagnosis that he knew to be wrong, (3) failed to find that § 52-584 was tolled by a continuous course of conduct premised on an ongoing physician-patient relationship and (4) failed to find genuine issues of material fact related to issues one, two and three, which would have required denial of Lob-dell’s motion for summary judgment. We affirm the judgment of the trial court.

The following facts are relevant to the disposition of this appeal. In September, 1983, Frank Witt was sent by his family physician to a surgeon, Vincent Donnelly, to perform a biopsy on an enlarged cervical lymph node. Donnelly excised the node on September 26, 1983, and sent the node to Lobdell, a pathologist. Lobdell examined the tissue the following day and wrote a report in which he stated that his diagnosis was “atypical lymphoid hyperplasia” of the cervical lymph node. Frank Witt relied on this diagnosis and did not pursue any treatment for his persistent neck swelling.

Eleven years later, in November, 1994, Frank Witt discovered that he was suffering from non-Hodgkin’s lymphoma. On October 19,1994, Witt’s treating oncologist, Barry Meisenberg, requested from Lobdell the original slides of the excised lymph node. Lobdell complied and sent the slides as well as a copy of the medical report. At the bottom of the report, Lobdell wrote a note to Meisenberg that stated: “I’d be interested in a follow up on this patient!! I think at the time we were concerned that Mr. Witt might be evolving a small lymphocytic lymphoma/CCL.”

Thereafter, the plaintiffs filed this four count medical malpractice suit on March 27, 1995, within two years of Frank Witt’s learning that he had cancer and five months after learning of Lobdell’s comment to Meisen-berg on the medical report. Counts one and two of the complaint set forth claims on behalf of Frank Witt against St. Vincent’s Medical Center and Lobdell, respectively. Count three sets forth claims on behalf of Rebecca Witt and Frank Joseph Witt, the Witts’ seven year old son, for loss of consortium and loss of parental consortium, against St. Vincent’s Medical Center. Count four sets forth these claims against Lobdell.

On September 25, 1996, Lobdell filed a motion for summary judgment on counts two and four of the complaint, alleging that those claims were barred by the applicable statute of limitations. The plaintiffs filed a memorandum in opposition to the motion for summary judgment on May 2, 1997, arguing that the statute of limitations was tolled because of Lobdell’s continuous duty to warn Frank Witt of his condition and because there was a genuine issue of material fact raised by Lobdell’s admission by way of his sworn affidavit to the trial court. On September 29, 1997, the trial court, granted Lobdell’s motion for summary judgment as to both counts. This appeal followed.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Barrett v. Danbury Hospital, 232 Conn. 242, 250, 654 A.2d 748 (1995). Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue. Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994). It is not enough, however, for the opposing party merely to assert the existence of ... a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]. . . . Water & Way Properties v. Colt’s Mfg. Co., 230 Conn. 660, 665, 646 A.2d 143 (1994). Branford v. Monaco, 48 Conn. App. 216, 221-22, 709 A.2d 582, cert. denied, 245 Conn. 903, 719 A.2d 900 (1998). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 50 Conn. App. 385, 387, 717 A.2d 811 (1998). With these principles in mind, we look now to the plaintiffs’ claims on appeal.

The plaintiffs claim on appeal that the trial court improperly failed to find that the statute of limitations, § 52-584, was tolled by Lobdell’s continuous duty to warn Frank Witt of a suspected, evolving lymphoma and a continuous course of conduct premised on Lobdell’s failure to report a corrected diagnosis and an ongoing physician-patient relationship. The plaintiffs further claim that the trial court improperly failed to find genuine issues of material fact and granted Lobdell’s motion for summary judgment. We disagree.

“In the medical malpractice context, [our Supreme Court has] specifically determined that a lawsuit commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations, § 52-584, regardless of whether the [party bringing the action] had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. . . . [Our Supreme Court has] also recognized, however, that the statute of limitations, in the proper circumstances, may be tolled under . . . the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date.” (Citations omitted.) Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994).

The continuing course of conduct doctrine is well established in the jurisprudence of this state. “The continuous course of conduct doctrine requires that three requirements be met: (1) an ongoing physician-patient relationship; (2) negligence by the defendant; and (3) some form of conduct that continued beyond the initial treatment. [Id., 278.] These requirements are ‘conspicuously fact-bound.’ Id., 276. ‘The determination of whether the physician-patient relationship has terminated depends upon several factors. These factors include the subjective views of the parties as to whether their relationship had terminated; the length of their relationship; the frequency of their interactions; the nature of the physician’s practice; whether the physician had prescribed a course of treatment for or was monitoring the condition of the patient; whether the patient was relying upon the opinion and advice of the physician with regard to a particular injury, illness or medical condition; and whether the patient had begun to consult with another physician concerning the same injury, illness or medical condition.’ ... Id., 278.” Starkweather v. Patel, 34 Conn. App. 395, 401-402, 641 A.2d 809, cert. denied, 230 Conn. 905, 644 A.2d 918 (1994).

Here, Lobdell maintains that there is no basis to toll the statute of limitations because there was no longstanding relationship between the parties. The plaintiffs’ complaint alleges that Frank Witt’s injuries arose out of Lobdell’s alleged misdiagnosis and reporting of a pathology specimen on September 26, 1983. This one time occurrence was the sole medical service Lobdell provided to Frank Witt. Indeed, there is no claim that Lobdell had ever met Frank Witt, provided medical treatment or even had any contact with him subsequent to the examination of the lymph node specimen and his report to Witt’s physician. Furthermore, Lobdell filed a sworn affidavit with the trial court that stated that the September 26,1983 pathology report was the only medical service he ever provided to Frank Witt. The plaintiffs do not controvert this material fact, nor do they claim that they had any subjective view that there was any ongoing relationship between Frank Witt and Lobdell. Because of these facts, we find that there was no continuous course of conduct based on an ongoing physician-patient relationship that could toll the statute of limitations.

Furthermore, we agree with Lobdell that the plaintiffs’ reliance on Connell v. Colwell, 214 Conn. 242, 571 A.2d 116 (1990), is misplaced. In Connell, our Supreme Court applied the continuing course of conduct doctrine, stating: “ ‘To support a finding of a “continuing course of conduct” that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.’ Fichera v. Mine Hill Corporation, [207 Conn. 204, 209, 541 A.2d 472 (1988)]. In such situations, however, the continuing course of conduct is not the failure of the alleged tort-feasor to notify the plaintiff of his wrongdoing. As [our Supreme Court] stated in Fichera v. Mine Hill Corporation, supra, 210, it consists, rather, of ‘either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.' " (Emphasis added.) Connell v. Colwell, supra, 254-55. Here, there was no later wrongful conduct by Lobdell since he provided only a single medical service to Frank Witt. There was, furthermore, no special relationship between the parties that would give rise to a continuing duty. Lobdell did not engage in any conduct or initiate any other contact with Frank Witt after September, 1983, and had no fiduciary or contractual relationship with Frank Witt. The plaintiffs have not alleged any such facts, and the absence of such facts leads us to the conclusion that no special relationship existed that could give rise to a continuous duty, which would, in turn, toll the statute of limitations.

In addition, while the plaintiffs correctly state that the trial court improperly held that “there is no continuing duty to warn under Connecticut law,” there was, nonetheless, no duty to warn or correct an alleged misdiagnosis in the case. For support of their claim, the plaintiffs cite Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981). Their reliance is misplaced, however, because while our Supreme Court did recognize that “the negligent failure to warn is a continuing course of conduct”; id., 400, citing Prokolkin v. General Motors Corp., 170 Conn. 289, 298, 365 A.2d 1180 (1976); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957); in Cross, there was a long-standing relationship between the plaintiff and the defendant physician. In contrast, here, there was only a single occurrence. Therefore, there existed no duty to warn or correct a reported diagnosis.

The only other material fact relevant to this discussion is the date the plaintiffs filed this lawsuit. It is clear that the plaintiffs did not file this lawsuit until March 27,1995, more than eleven years after the alleged negligent act, and, therefore, this action was filed well past the expiration of the statute of limitations pursuant to § 52-584. Since there was only a single medical service provided by Lobdell to Frank Witt in September, 1983, and there was no breach of a duty that remained in existence subsequent to September, 1983, the continuing course of conduct doctrine cannot be applied to toll the statute. Furthermore, because there exists no issue of material fact as to the date on which the complaint was filed and whether the relationship between Frank Witt and Lobdell was a physician-patient relationship and whether such relationship was ongoing, the trial court properly granted summary judgment.

On the basis of the foregoing, we conclude that the trial court properly granted Lobdell’s motion for summary judgment because there was no genuine issue of material fact for a jury to consider and the claim was filed well beyond the applicable statute of limitations.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . . .”

       St. Vincent’s Medical Center has not moved for summary judgment.

       The trial court later filed a written memorandum of decision on December 1,1997. Thereafter, the plaintiffs filed a motion to reargue, which was denied.

       The claim for loss of parental consortium by the plaintiffs’ son, Frank Joseph Witt, on which summary judgment was granted, has not been raised as an issue in this appeal.

       This claim also fails because, while the plaintiffs brief the failure t o warn issue, they fail to mention any claimed failure to warn in their complaint. The plaintiffs also cite Handler v. Remington Arms Co., supra, 144 Conn. 316, to support their argument that a physician has a continuous duty to warn his patient of a dangerous condition of which he is aware. Handler is readily distinguishable from this case because Handler was not a medical malpractice case but, rather, a products liability action.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL WALSH
    (AC 16578)
    O’Connell, C. J., and Foti and Sullivan, Js.
    Argued September 15, 1998
    officially released April 13, 1999

      Pamela S. Nagy, special assistant public defender, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Maureen M. Keegan, supervisory assistant state’s attorney, and Cara Eschuk, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant, Michael Walsh, appeals, following a jury trial, from judgments of conviction of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes § 53-21 and one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (1) (A). The trial court granted the defendant’s motion for a judgment of acquittal of an additional risk of injury count.

The defendant claims that the trial court improperly (1) consolidated two cases, (2) admitted evidence of uncharged misconduct, (3) admitted irrelevant hearsay evidence, (4) refused to give his requested jury charge concerning inconsistent statements and (5) refused to disclose a victim’s confidential records. We affirm the judgments of the trial court.

The genesis of this appeal was two separate informa-tions, each charging the defendant with sexually assaulting a girl. The victim, A, was born on December 7, 1985, and the victim, H, was born on August 9, 1984. Pursuant to General Statutes § 54-57 and Practice Book § 829, now § 41-19, the trial court, pursuant to the state’s motion, consolidated both informations for trial.

The jury reasonably could have found the following facts. In February and March, 1995, the defendant lived in Naugatuck with his girlfriend, her nine year old daughter, A, and their infant son. One morning after his girlfriend had left for work, the defendant ordered A into his bedroom and anally penetrated her. A screamed and tried to get out from under him. The defendant similarly assaulted her three more times in February and March, 1995. Following the last assault, the defendant threatened to “double it” the next time. A subsequently spoke with Detective Laura Wigglesworth of the Naugatuck police department, informing her that the defendant might also have assaulted her friend H.

H was similarly assaulted by the defendant when she was staying overnight at his house. The assault took place in the defendant’s bedroom where he had H lie on his bed while he went behind her, pulled up her nightgown and, without removing her underpants, placed his penis between her legs. He did not, however, penetrate her. The defendant then went to his dresser, picked up a gun and, while loading it, threatened to kill H if she told anyone about the incident.

Additional facts will be included in the analysis of individual claims.

I

The defendant first claims that the trial court improperly granted the state’s motion to consolidate the counts involving A with counts involving H. Following oral argument, the trial court ruled that the two cases were “factually similar and legally connected” and that there was a common scheme of sexually abusing young girls. The similarities that the court found were that (1) both victims were young girls, (2) all the alleged abuse occurred at the defendant’s home, (3) similar threats were made against each victim and (4) the sexual assaults were all perpetrated in a similar manner.

The trial court has discretion to determine whether separate cases involving the same defendant should be consolidated; State v. Pollitt, 205 Conn. 61, 67, 530 A.2d 155 (1987); and the exercise of that discretion may not be disturbed on appeal unless it has been manifestly abused. Id., 67-68. To demonstrate that the trial court abused its discretion, the defendant bears the heavy burden of convincing this court that the joinder resulted in substantial injustice. Id., 68.

In Connecticut, joinder of cases is favored. State v. Hilton, 45 Conn. App. 207, 213, 694 A.2d 830, cert. denied, 243 Conn. 925, 701 A.2d 659 (1997), cert. denied, 522 U.S. 1134, 118 S. Ct. 1091, 140 L. Ed. 2d 147 (1998). Joinder “ ‘expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once.’ ” State v. Vinal, 198 Conn. 644, 649 n.4, 504 A.2d 1364 (1986).

“Whether a joint trial will be substantially prejudicial to the defendant’s rights means something more than that it will be less advantageous to [him].” State v. Lee, 32 Conn. App. 84, 106, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S. Ct. 1319, 127 L. Ed. 2d 668 (1994). In determining whether joinder is appropriate, the court must consider several factors. “The factors to be considered are (1) whether the charges involve discrete, easily distinguished factual scenarios, (2) how long and complex the trial was, and (3) whether one or more of the counts alleges brutal or shocking conduct by the accused.” State v. Stevenson, 43 Conn. App. 680, 686, 686 A.2d 500 (1996), cert. denied, 240 Conn. 920, 692 A.2d 817 (1997). If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred from improper joinder. State v. Lee, supra, 106-107.

First, the factual scenarios here are distinct, easily distinguished and discrete. Our review of the record indicates that the evidence was presented in an orderly manner. We will not conclude that the trial court has abused its discretion in consolidating two cases where the “state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” State v. Pollitt, supra, 205 Conn. 68.

It is true that, “[w]hen incidents are easily distinguished, but contain factual similarities, there is some danger that a jury, under certain circumstances, might use evidence of one to find guilt in the other.” State v. Stevenson, supra, 43 Conn. App. 688. In this case, however, the evidence admissible in the trial of the charges arising from one incident would likely be admissible in a separate trial of the charges arising from the other incident because “[e]vidence tending to prove prior criminal conduct which is relevant and material to an element of the crime, identity, malice, motive, or which shows a pattern of criminal activity is admissible if the trial court determines, in the exercise of its sound discretion, that its probative value outweighs its prejudicial impact.” State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). The jury, therefore, would have been able to use the evidence stemming from one set of charges to determine the defendant’s guilt in the trial stemming from the other set of charges.

Second, the trial was not exceptionally long or complex. It lasted only six days and involved only two victims. See State v. Chance, 236 Conn. 31, 43, 671 A.2d 323 (1996) (five day trial not unduly long or complex); State v. Stevenson, supra, 43 Conn. App. 689 (trial not unduly long or complex when it lasted six days and involved only two incidents).

Third, the defendant was not prejudiced by the join-der of two brutal and shocking cases. The defendant argues that the nature of the brutal and shocking allegations in the trial involving A made it impossible for the jury to consider independently the charges in the trial involving H. If both cases sought to be consolidated are brutal or shocking, “they may be joined properly, if consolidation does not cause a high risk of one case being tainted by the unusually shocking ... or brutal nature of the other . . . .” State v. Stevenson, supra, 43 Conn. App. 691.

We agree with the defendant that all of the sexual assaults charged to him were brutal and shocking. We cannot, however, assume that any and all sexual assaults are so brutal and so shocking that a defendant would always be prejudiced by a joint trial. Sexual assault cases should be severed only where one of the sexual assault crimes with which the defendant is charged is “so brutal and shocking when compared with the other, that a jury, even with proper instructions, could not treat them separately.” Id., 691-92. We conclude that the case involving A was not so brutal and shocking when compared to the case involving H that consolidation would create the risk that evidence of the defendant’s assaults against A would interfere with the jury’s consideration of the defendant’s assaults against H.

Even if the trial court had improperly consolidated the two cases, its jury instructions cured any prejudice that might have occurred. In the absence of contrary evidence, jurors are presumed to have followed the instructions of the trial court. State v. Moye, 199 Conn. 389, 396, 507 A.2d 1001 (1986). The trial court instructed the jury, when deliberating over one case, not to infer that the defendant had a criminal propensity to commit this type of crime on the basis of the evidence introduced in the other case. Accordingly, we conclude that the trial court sufficiently instructed the jury to keep the crimes charged in the two informations separate.

The defendant relies on State v. Boscarino, 204 Conn. 714, 722-25, 529 A.2d 1260 (1987), to argue that the two trials should not have been consolidated. The defendant’s reliance on Boscarino, however, is misplaced. In Boscarino, the trial court joined four cases arising from the defendant’s repeated sexual assaults over several years. Our Supreme Court applied the three prong test and ordered that the trials be severed, concluding that their consolidation allowed the jury to aggregate impermissibly the evidence. First, the Supreme Court concluded that the cases for which the defendant was being jointly tried did not involve discrete, easily distinguishable factual scenarios. Id., 722-23. In fact, the state conceded that if the trials were held separately, evidence from one would not have been admissible as substantive evidence in the others. Second, the ten week trial consisting of testimony from fifty-five witnesses was lengthy and complex, increasing the risk that the jury would weigh the evidence against the defendant cumulatively. Id., 723-24. Third, the joinder permitted the state to present the jury with brutal and shocking evidence that it could not have introduced had the trials been held separately. Id., 723.

Unlike Boscarino, in this case (1) the evidence from one trial would have been admissible in the other, (2) the trial was neither long nor complex and (3) the defendant was not prejudiced by the joinder of the brutal and shocking crimes for which he was charged. Thus, Boscarino is inapposite to the present case. Accordingly, we conclude that joinder in the present case did not result in substantial injustice and that the trial court did not abuse its discretion in joining the two cases.

II

The defendant next claims that the trial court abused its discretion by improperly admitting evidence under the uncharged misconduct doctrine. “As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. ... On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. Kulmac, 230 Conn. 43, 60-61, 644 A.2d 887 (1994).

The admission of evidence of prior uncharged misconduct is within the discretion of the trial court. The trial court’s discretionary determination that the probative value of such evidence outweighs its prejudicial effect will be disturbed on appeal only for a manifest abuse of discretion. Id., 61. Every reasonable presumption will be given in favor of the trial court’s ruling. Id. “We are more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than other crimes.” Id., 62; State v. Hauck, 172 Conn. 140, 145, 374 A.2d 150 (1976).

Prior to trial, the state filed written notice that it intended to adduce evidence of uncharged misconduct to show intent and a course of criminal conduct by the defendant. The notice expressly stated that “at 1492 Madison Avenue in the city of Bridgeport, the defendant restrained a child whose birth date is December 7,1985, by tying her legs together and assaulting her and that at that time or shortly thereafter, she had no underwear on.” The child referred to in this notice was A.

From a combination of the testimony of A and Donna Santos, a downstairs neighbor, the jury reasonably could have found that the defendant tied A’s legs together with a piece of plastic and proceeded to tickle her. Santos heard her screaming and also heard her knees and elbows banging against the floor. Shortly after the incident, Santos observed A wearing a nightgown or an adult T-shirt, but no underpants.

In overruling the defendant’s objection to the admission of this evidence, the trial court ruled that it “doesn’t find anything that occurred here to be too remote in time. Each incident involves a young child, each incident involves the same child, each incident involves a child that was in the household in which the defendant lived and the same child—the common thread of it is the use of force to prevent resistance. In this case there was some instrumentality used to tie the child’s legs. There was no evidence in [the] direct testimony from A of any sexual act. However, there is evidence of an act consisting of assaultive behavior to a minor child with whom he lived who had been prevented from resisting by being immobilized. There is other testimony where she talks about being subjected to anal intercourse by the defendant where there is her testimony that she was immobilized by him putting his hand on her back so she couldn’t move. So to that extent I think it’s evidence of a prior act which is relevant in showing a course of conduct, assaultive, although in this case not necessarily sexually assaultive, showing a common design to assault this child with whom he lived.”

The state claims that the prior evidence was admitted to show a common scheme or plan. “Evidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.” State v. Esposito, 192 Conn. 166, 169-70, 471 A.2d 949 (1984).

The defendant argues that his touching of A did not rise to the level of misconduct because he touched her only while she was clothed. The defendant argues that the trial court abused its discretion by admitting evidence in the trial of the uncharged misconduct against H because tickling is not similar to sexual assault.

The trial court concluded, and the state argues on appeal, that the evidence of the prior uncharged misconduct was admitted to show a common scheme or plan and was therefore admissible. The defendant does not argue that the offenses were too remote in time or were not committed on a person similar to the prosecuting witness, H. Rather, the defendant argues that the prior uncharged misconduct was not similar to the offenses for which he was charged. The defendant further claims that even if his conduct was similar to the offenses for which he was charged, the evidence should have been excluded because its prejudicial effect outweighed its probative value. We do not agree.

Although the defendant claims that he merely tickled A while she was clothed, we cannot conclude that the trial court manifestly abused its discretion by allowing evidence of this misconduct as prior uncharged misconduct. Santos testified that she heard A screaming and might have heard her crying. Moreover, Santos testified that A was not wearing underpants when she talked to Santos. Accordingly, the trial court properly allowed the jury to hear Santos’ testimony in order to decide for itself whether the defendant’s actions established a common scheme or design.

“Evidence of a defendant’s prior sexual misconduct with his victim is admissible to prove, inter alia, a pattern of criminal activity, provided that the trial court determines the probative value of such evidence outweighs its prejudicial effect, and that the court also gives an appropriate limiting instruction.” State v. Tirado, 21 Conn. App. 449, 452, 574 A.2d 252, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990). In this case, because Santos’ testimony was highly probative of the defendant’s continuing course of sexual misconduct with A, the court did not abuse its discretion by finding that the probative value of the evidence outweighed its prejudicial effect. Moreover, the court, in its jury instructions, warned the jury to use Santos’ testimony only as evidence of a course of criminal conduct by the defendant and not as evidence of the defendant’s criminal disposition. Accordingly, the trial court did not abuse its discretion in admitting evidence of the tickling as prior uncharged misconduct.

Ill

The defendant next complains that the trial court abused its discretion in admitting an out-of-court statement concerning sexual activity that A may have observed. Additional facts are necessary for a resolution of this claim. Wigglesworth testified on direct examination that the defendant’s girlfriend told her that she and the defendant had previously engaged in anal sex. The defendant objected, arguing that this statement was irrelevant and hearsay. The court overruled the objection.

The defendant argues that the girlfriend’s statement to Wigglesworth is hearsay because it is an out-of-court statement offered for its truth and does not fall within any of the hearsay exceptions. Additionally, the defendant claims that the statement was not offered to show the girlfriend’s state of mind because she did not think that A had witnessed her and the defendant engaging in anal intercourse.

“We do not reach the issue of whether the trial court’s ruling was proper. This is a claim of an erroneous evi-dentiary ruling and as such does not implicate the constitution. In nonconstitutional claims, the defendant has the burden of demonstrating the haxmfulness of the claimed error. State v. Robinson, 213 Conn. 243, 259, 567 A.2d 1173 (1989). He must show that it is more probable than not that the claimed error affected the verdict. Id.” State v. Williams, 30 Conn. App. 654, 656, 621 A.2d 1365 (1993).

It does not appear that the exclusion of Wig-glesworth’s testimony would have resulted in a different verdict or that its admission would require reversal on appeal. “[A] judgment need not be reversed merely because inadmissible evidence has been admitted, if permissible evidence to the same effect has also been placed before the jury.” Id.

Here, as part of the defendant’s case-in-chief, the defendant’s girlfriend testified concerning her sexual conduct with the defendant, including anal intercourse. Accordingly, Wigglesworth’s testimony was cumulative of properly admitted evidence.

IV

The defendant next claims that the trial court improperly refused to instruct the jury in accordance with his requested charge on inconsistent statements. He argues that correct instruction on inconsistent statements was particularly vital to his case because the crux of his defense was that both A and H had falsely accused him.

The defendant contends that the court’s instructions did not provide adequate guidance as to how the jury should have considered and weighed the victims’ testimony in light of the numerous inconsistencies in their statements. The court, however, refused to give the defendant’s instruction but instead instructed the jury generally about the credibility of witnesses.

We will not reverse a conviction solely because a charge as given was not in the language of a party’s request. State v. Coleman, 35 Conn. App. 279, 290, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994). To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict. State v. Wolff, 29 Conn. App. 524, 531, 616 A.2d 1143 (1992). The test that we apply to any part of a charge is whether the charge as a whole presents the case to a jury in such a manner that no injustice is perpetrated. State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980). In the present case, the court’s instruction viewed in its entirety was correct in law and fairly presented the case to the jury.

V

In his final issue, the defendant argues that the trial court’s denial of access to some of H’s school and psychiatric records is an abuse of discretion and a violation of his constitutional rights. This argument is without merit.

The facts pertinent to this issue are as follows. Prior to trial, certain of H’s school and psychiatric records were subpoenaed by the defendant, who hoped to use them for impeachment purposes. He believed these records would have relevance to H’s ability to perceive and relate the truth. The court conducted an in camera review of the records, and turned over to the defendant numerous documents it deemed exculpatory.

Other records that were not turned over to the defendant were sealed by the court. The defendant requested that these additional records be released, claiming that all of the exculpatory information to which he was entitled had not been provided and that he could not fully understand the information provided to him without the benefit of the additional records. The defendant does not question the procedure employed by the trial court in ruling on his motion but, rather, alleges that it improperly refused to release certain portions of those records. The defendant’s motion to unseal these documents was denied. “While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not any easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records.” State v. Bruno, 236 Conn. 514, 531-32, 673 A.2d 1117 (1996). On review, we must determine whether he trial court’s decision constituted an abuse of discretion. Id., 534.

On appeal, this court has the responsibility of conducting its own in camera inspection of the sealed records to determine if the trial court abused its discretion in refusing to release those records to the defendant. State v. Tyson, 43 Conn. App. 61, 70, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996). The defendant argues that the court’s denial of certain school and psychiatric records was an abuse of discretion and a violation of his constitutional rights. We are not persuaded.

“The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material ‘especially probative of the ability to “comprehend, know and correctly relate the truth’ ” ... so as to justify breach of their confidentiality . . . .” (Citation omitted.) State v. Storlazzi, 191 Conn. 453, 459, 464 A.2d 829 (1983). “Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis.” Id. At this stage in the proceedings, when the trial court has reviewed the records in camera, access to the records “ ‘must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it’ . . . and to weigh that value against the interest in confidentiality of the records.” (Citation omitted.) Id. We review the trial court’s decision under an abuse of discretion standard.

We have carefully examined the challenged records and conclude that the trial court reasonably could have found that they contain no evidence that is probative of H’s testimonial capacity or that is relevant to her impeachment. The trial court did not abuse its discretion in denying the defendant’s motion for disclosure of H’s school and psychiatric records. The trial court reasonably could have found that all relevant documents were released and the remaining documents contained no evidence that was probative of H’s testimonial capacity or that was relevant to impeachment.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”

       General Statutes § 53a-73a (a) provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book §41-19 provides:-“The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       The released records are as follows: (1) records from Priority Care, Inc., dated June 27, 1994; (2) records from Priority Care, Inc., dated February 24, 1995; (3) records from Yale-New Haven Hospital dated June 2, 1994; (4) records from Yale-New Haven Hospital dated June 3,1994; (5) records from Yale-New Haven Hospital dated June 6, 1994; (6) records from Yale-New Haven Hospital dated June 14,1994; (7) records from Child Guidance Center of Greater Bridgeport, Inc. (Child Guidance Center), dated July 18, 1994; (8) records from Child Guidance Center dated April 6, 1995; (9) records from Child Guidance Center dated April 27, 1995; (10) records from Child Guidance Center dated June 29,1995; and (11) records from Child Guidance Center dated April 3, 1996.