author: Schaller, J.

text:
    Gaetana Mary Keans v. Paul Bocciarelli
    (12056)
    La very, Landau and Schaller, Js.
    Argued February 16
    decision released July 26, 1994

      Craig A. Fontaine, with whom was Matthew G. Conway, for the appellant-appellee (defendant).

      M. Hatcher Norris, with whom was Alan J. Rome, for the appellee-appellant (plaintiff).
   Schaller, J.

The defendant in this dental malpractice action appeals from the judgment of the trial court in favor of the plaintiff. The trial court awarded the plaintiff damages of $20,000, but reduced the award by $5034.46 after finding that the plaintiff had failed to mitigate her damages. On appeal, the defendant claims that the trial court improperly (1) found that the plaintiff had proven that the defendant was negligent, (2) found that the plaintiff had failed to mitigate damages rather than finding comparative negligence on the part of the plaintiff, and (3) granted the plaintiff an excessive award of damages. The plaintiff claims on cross appeal that the trial court improperly (1) found that the plaintiff had failed to mitigate damages, and thereby reduced the amount of damages by the amount of her hospital costs, and (2) failed to award costs to the plaintiff for the videotaped deposition testimony of her medical expert. We affirm the trial court’s judgment.

The trial court could reasonably have found the following facts. On July 19, 1990, the plaintiff consulted the defendant, an oral surgeon, to have a tooth extracted. On the initial visit to the defendant, the plaintiff informed the defendant that she suffered from myelofibrosis, a rare blood disorder that inhibits production of red blood cells and platelets, thereby affecting the blood clotting ability of afflicted individuals. The plaintiff’s condition requires her to receive frequent blood and platelet transfusions and to self-administer interferon injections. The plaintiff further informed the defendant that her platelet count was 39,000. The defendant performed the extraction without first consulting the plaintiff’s hematologist, concluding that the plaintiff “looked good” and would not require a platelet transfusion. The plaintiff remained in the defendant’s recovery room until the area around the extraction site stopped bleeding and was sent home with a prescription for penicillin and a pamphlet detailing postoperative instructions. After returning home, the extraction site began to bleed. The plaintiff’s son called the defendant, who advised him that the plaintiff should bite down on a tea bag to release tannic acid to facilitate blood clotting. The plaintiff made no further effort to contact the defendant that day, despite worsening of her condition.

The next morning, the plaintiff contacted Richard Heilman, her hematologist, who admitted her to the hospital. The plaintiff, diagnosed with neutropenia, severe thrombocytopenia, severe anemia and myelofibrosis, was hospitalized for three days and was discharged on July 23,1990, with no permanent injuries.

The trial court, finding the plaintiff’s expert to be more credible than the defendant’s experts, concluded that the plaintiff had sustained her burden of proof regarding her claim of malpractice. The plaintiff’s expert testified that the defendant deviated from prudent and standard dental practice by failing to consult the plaintiff’s hematologist prior to proceeding with the extraction.

In reliance on Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1992), the trial court concluded that the plaintiff’s failure to follow the defendant’s postoperative instructions led to the hospitalization, and determined that damages should be mitigated to the extent of the plaintiff’s hospitalization expense.

I

The Defendant’s Appeal

A

“In order to prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” Sammose v. Hammer-Pasaro Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 102-103, 586 A.2d 614, cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991). “To prove that a physician has breached the legally required standard of care, the plaintiff must offer some evidence that the conduct of the physician was negligent.” Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064 (1990), citing Snyder v. Pantaleo, 143 Conn. 290, 295, 122 A.2d 21 (1956). “[TJestimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician . . . ‘and that the defendant failed to conform to that standard of care.’ ” Campbell v. Palmer, supra, 548, quoting Mather v. Griffin Hospital, 207 Conn. 125, 131, 540 A.2d 666 (1988).

The plaintiffs expert testified that the conduct of the defendant deviated from prudent and standard dental practice. He testified that because the plaintiff reported a low platelet count, the defendant should have consulted her hematologist prior to attempting the extraction. One of the defendant’s experts reported that on the one occasion that he himself performed an extraction on a myelofibrotic patient he consulted with a hematologist. The trial court determined that the plaintiff’s expert was more credible than that of the defendant, and that a causal connection existed between the deviation from prudent and standard dental practice and the plaintiff’s initial injury. We conclude that the trial court’s finding that the plaintiff had established the elements necessary to prove dental malpractice by the defendant was not clearly erroneous.

B

The trial court applied the doctrine of mitigation of damages and reduced the award by the amount of the plaintiff’s hospitalization expense. Our Supreme Court has stated that “[w]e have long adhered to the rule that one who is injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries.” (Internal quotation marks omitted.) Preston v. Keith, supra, 217 Conn. 15. “When there are facts in evidence that indicate that a plaintiff may have failed to promote his recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages.” Jancura v. Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978). “[Although the defendant need not specially plead [a duty to mitigate damages], the defendant ‘must bring forward evidence that the plaintiff could reasonably have reduced his loss or avoided injurious consequences . . . .’ ” Preston v. Keith, 20 Conn. App. 656, 663-64, 570 A.2d 214 (1990), rev’d in part, 217 Conn. 12, 584 A.2d 439 (1991). To prevail, the wrongdoer “ ‘must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty.’ ” Preston v. Keith, supra, 217 Conn. 22, quoting 2 M. Minzer, Damages in Tort Actions (1989) § 16.10, pp. 16-18.

The trial court concluded that the three requirements to establish a failure to mitigate damages set forth in Preston v. Keith, supra, 217 Conn. 22, were proven. The trial court found that the plaintiff’s conduct exacerbated her initial injury. The trial court found that the plaintiff failed to take reasonable action to lessen the damages by neglecting to fill the prescription for penicillin and by not following the defendant’s postoperative instructions. The trial court further found that this failure on the part of the plaintiff caused the need for her hospitalization. We conclude that the trial court’s reduction of the damage award for this reason was not clearly erroneous. We, therefore, also reject the plaintiff’s contention on cross appeal that the trial court improperly reduced her award.

C

The defendant next contends that the plaintiff’s damage award of $14,965.54 for her pain and suffering was excessive. At the outset, we note the “question of damages in personal injury cases ... is always a difficult one.” Prosser v. Richman, 133 Conn. 253, 256, 50 A.2d 85 (1946). The “amount of an award is a matter peculiarly within the province of the trier of facts.” Pisel v. Stamford Hospital, 180 Conn. 314, 342, 430 A.2d 1 (1980); Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978). Because we find that the amount of the damage award was properly within the bounds of fair and reasonable compensation and is far from “shocking to our] sense of justice”; Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983); we find that the trial court did not abuse its discretion in assessing the damages.

II

The Plaintiff’s Cross Appeal

A

The plaintiff first claims that the trial court improperly reduced her award of damages through the application of the legal doctrine of mitigation of damages. On the bases of our discussion and our previous determination of the issue of mitigation of damages, we conclude that the trial court did not improperly reduce her award.

B

The plaintiff also contends that the trial court improperly refused to grant the plaintiff’s motion to accept a bill of costs, specifically, with reference to an item relating to the videotaped testimony of the plaintiff’s expert. Because the plaintiff failed to file a written motion to set aside, we review this claim under the standard of plain error.

It is well settled that the “right to costs must be based on some statute or authorized rule of the court. Condon v. Pomroy-Grace, 73 Conn. 607, 614, 48 A. 756 (1901); see also Bridgeport Gas Co. v. United Mine Workers, 21 Conn. Sup. 331, 154 A.2d 530 (1959).” Triangle Contractors, Inc. v. Young, 20 Conn. App. 218, 221, 565 A.2d 262 (1989). The statute clearly provides that the bill of costs under General Statutes § 52-257 includes each witness “attending court.” (Emphasis added.) Because the testimony of the plaintiffs expert was presented in court in the context of a videotaped deposition, rather than in person, the trial court did not commit plain error when it determined that the expert did not attend court for purposes of taxation of costs under § 52-257.

The judgment is affirmed.

In this opinion the other judges concurred.

       When an appellant has failed to move to set aside the verdict as required by General Statutes § 52-228b and Practice Book § 320, plain error is the appropriate standard of review. Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 363, 603 A.2d 1160 (1992); Prishwalko v. Bob Thomas Ford, Inc., 33 Conn. App. 575, 580, 636 A.2d 1383 (1994). “The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .” Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. Saporoso v. Aetna Life & Casualty Co., supra, 363, quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).” (Internal quotation marks omitted.) Prishwalko v. Bob Thomas Ford, Inc., supra, 580-81.


source: Caselaw Access Project

author: Lavery, J.

license: Public Domain

text:
    Carter S. Evans v. Susan C. Evans
    (11999)
    Lavery, Heiman and Schaller, Js.
    Argued March 24
    decision released July 26, 1994

      Sandra P. Lax, for the appellant (plaintiff).

      Charles J. Irving, for the appellee (defendant).
   Lavery, J.

The plaintiff, Carter Evans, appeals from the judgment of the trial court granting the defendant’s motion to modify the plaintiff’s child support obligations and awarding the defendant attorney’s fees related to this motion. The plaintiff claims that the trial court (1) incorrectly applied New York law to the case and (2) abused its discretion by granting the motion for modification and attorney’s fees. We affirm the judgment of the trial court.

The parties married in 1974 and lived in New York until they divorced in 1987. Two boys were born to the parties during the marriage; they are both under the age of eighteen. The parties signed a separation agreement in New York that required the plaintiff to pay unallocated alimony and child support of $35,000 per year until the end of 1991. The agreement further provided that he would pay $5500 per year, per child, from 1992 until the children reached majority. The separation agreement explicitly stated that this support provision would be incorporated and merged into the court’s judgment of dissolution and would thereby be subject to the court’s on-going jurisdiction to modify the support provisions. The judgment of the New York Supreme Court dissolving the parties’ marriage, rendered June 23, 1987, specifically merged the support payment provision of the separation agreement into the judgment.

In 1992, after the New York judgment was made a judgment of Connecticut pursuant to General Statutes § 46b-71, the defendant moved to increase the plaintiff’s child support payments. The defendant asserted that the support payments were insufficient to support the children, that the payments were not in accord with the child support guidelines and that the plaintiff’s salary had increased substantially. The defendant subsequently amended her motion to include an assertion that there had been a substantial change in circumstances to warrant modification of the child support award.

After extensive discovery, the defendant moved for attorney’s fees pursuant to General Statutes § 46b-62. At the hearing on the motions, evidence established that the plaintiff’s salary had increased from $115,419 to $320,000 since the divorce. On the basis of the parties’ testimony and financial affidavits, the trial court ordered the plaintiff to pay $900 per week in child support and awarded the defendant $10,000 in attorney’s fees. The plaintiff appealed.

The dissolution judgment modified in this appeal was made a judgment of this state pursuant to General Statutes § 46b-71. Foreign judgments that become judgments of this state “shall be enforced and otherwise treated in the same manner as a judgment of a court in this state provided ... in modifying . . . any such foreign matrimonial judgment in this state the substantive law of the foreign jurisdiction shall be controlling.” General Statutes § 46b-71 (b). Thus, the controlling substantive law in this case is the New York law of domestic relations.

The plaintiff’s first claim, although framed in several different ways, essentially asserts that the trial court improperly applied New York law. He claims that New York law required the defendant to show that the changes in circumstances giving rise to the motion for modification were both unanticipated and unreasonable at the time of dissolution. The plaintiff’s specific assertions flow from his reading of New York law, namely: (1) the motion for modification was not properly before the court because the defendant had not alleged that the changes in circumstances were unanticipated and unreasonable; (2) neither the increase in the plaintiff’s salary nor an increase in the needs of the children is sufficient change in circumstances to justify a modification of child support unless the increases were unanticipated and unreasonable; (3) there was no unanticipated change in circumstances. Because we conclude that the plaintiff incorrectly interprets New York law, the plaintiffs assertions must fail.

Under New York law, a court may modify the child support provisions of a separation agreement only if the movant shows an unanticipated and unreasonable change in circumstances. Boden v. Boden, 42 N.Y.2d 210, 212-13, 366 N.E.2d 791, 397 N.Y.S.2d 701 (1977). Because the child support obligations result from contractual agreement of the parties, the court should not freely disregard the provision. Id.; Minarovich v. Sobala, 121 App. Div. 2d 701, 702, 504 N.Y.S.2d 143 (1986). Where, however, the child support provisions established by agreement are merged with the judgment, the agreement retains no contractual significance. Minarovich v. Sobala, supra, 702. Therefore, where child support provisions are merged with the judgment, the court retains jurisdiction to modify the child support obligations in light of changed circumstances. Id.; Wlodarek v. Wlodarek, 78 App. Div. 2d 981, 433 N.Y.S.2d 673 (1980). The movant is not required to comply with Boden and, thus, need not demonstrate unanticipated and unreasonable changes in circumstance. Minarovich v. Sobala, supra, 702; Wlodarek v. Wlodarek, supra, 981; Gotthainer v. Gotthainer, 107 Misc. 2d 221, 225, 435 N.Y.S.2d 444 (1980).

Thus, the defendant was not required to allege or prove that the changes in circumstance giving rise to her motion were unanticipated and unreasonable at the time of the dissolution. The defendant was required only to demonstrate changes in circumstance sufficient to warrant modification. Rogers v. Bittner, 181 App. Div. 2d 990, 991, 581 N.Y.S.2d 945 (1992); Minarovich v. Sobala, supra, 121 App. Div. 2d 702; Wlodarek v. Wlodarek, supra, 78 App. Div. 2d 981; Gotthainer v. Gotthainer, supra, 107 Misc. 2d 225.

The trial court had before it financial affidavits and the testimony of both parties. On the basis of the totality of that evidence, the court found that the defendant had proven by a preponderance of the evidence that the plaintiffs salary had increased from $115,419 to $320,000 and that the financial needs of the children had also increased. The trial court also found that the best interests of the children were not being served by the present level of child support. Although the court noted that it was not bound by the New York child support guidelines, it did consider them in evaluating the needs of the children and the ability of the parties to provide financial support. The court also considered the criteria set forth in § 240 (f) of the New York Domestic Relations Law, specifically the admonition that the court consider “[t]he standard of living the child would have enjoyed had the marriage or household not been dissolved.” In short, the court concluded from the evidence that the defendant had proven changed circumstances warranting additional child support.

“Our standard of review in a domestic relations case is well settled. We will not substitute our judgment for that of the trial court and will not disturb an order of the trial court absent an abuse of discretion or findings lacking a reasonable basis in the facts.” Michel v. Michel, 31 Conn. App. 338, 340, 624 A.2d 914 (1993); Siracusa v. Siracusa, 30 Conn. App. 560, 567, 621 A.2d 309 (1993); Brash v. Brash, 20 Conn. App. 609, 612, 569 A.2d 44 (1990). The orders here were reasonably based on the facts; we conclude that there was no abuse of discretion.

The plaintiffs second group of claims relates to the trial court’s application of New York law. Specifically, the plaintiff asserts that the trial court (1) blindly applied the New York child support guidelines, (2) failed to consider the factors enumerated in New York Domestic Relations Law § 240 (f) in reaching its decision, and (3) ignored the plaintiffs other financial contributions to the children’s support. The plaintiff concludes by claiming that the child support modification is merely a “mask” for alimony.

We only need read the trial court’s memorandum of decision to resolve these claims. As noted above, the court observed that it was not bound by the New York child support guidelines. The trial court stated that it considered the guidelines as a manifestation of New York’s public policy regarding the appropriate level of child support. Thus, the trial court did not “blindly” apply these guidelines.

The trial court also explained that in reaching its conclusion it had reviewed and considered all of the factors enumerated in New York Domestic Relations Law § 240 (f). Therefore, the plaintiff’s claim to the contrary is wholly without basis in fact.

The plaintiff’s claim that the trial court ignored the plaintiffs other financial contributions to the children’s support is meritless. The plaintiff asserts that the trial court failed to consider his expenditures on the children during their visits with him, such as the cost of food for them. The trial court had before it the judgment of dissolution and separation agreement, which detailed the custody arrangements for the children. Thus, the court was aware that the children visited the plaintiff approximately seventy-seven days per year, and that the plaintiff would incur related expenses. Therefore, we conclude that the trial court did not ignore the plaintiff’s other financial contributions to the children’s support in modifying the child support order.

Finally, the plaintiff’s claim that the child support order is merely a mask for alimony is without basis in fact or law. The plaintiff presents no evidence that the trial court’s modification was not based on the evidence before it. As we noted previously, the conclusion the trial court reached was rationally based on the evidence and was not an abuse of discretion.

Further, the plaintiff cites Brown v. Brown, 190 Conn. 345, 460 A.2d 1287 (1983), in which our Supreme Court held that the trial court had abused its discretion by awarding child support in an amount grossly disproportionate to the needs of the child. Id., 349. In Brown, the amount of child support was only $15 less than the total weekly expenses of the entire household, which included the custodial parent and an emancipated daughter. Id., 348. Our Supreme Court ruled that the support award was so disproportionate as to be disguised alimony. Id., 349.

In this case, however, the trial court had before it evidence that the defendant’s total weekly household expenses were $1825.23. The child support order was $925.23 less than the total weekly expenses of the entire household. Thus, Brown is inapposite. In short, the trial court did not abuse its discretion and correctly applied the appropriate law in modifying the plaintiff’s child support obligations.

The plaintiff’s third claim relates to the trial court’s award of $10,000 in attorney’s fees to the defendant. During discovery, the defendant moved for attorney’s fees pursuant to General Statutes § 46b-62. That section provides the trial court with the discretion to award reasonable attorney’s fees to a spouse in accordance with the parties’ respective financial abilities and the criteria set forth in General Statutes § 46b-82. O’Neill v. O’Neill, 13 Conn. App. 300, 305, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). The plaintiff claims that the award was not based on sufficient evidence.

The trial court had before it the defendant’s sworn financial affidavit that listed outstanding attorney’s fees of $2334.35. Further, the trial court was made aware of the extensive nature of discovery and observed two days of trial. Thus, the trial court had evidence before it from which it could reasonably conclude that the defendant’s attorney’s fees related to this proceeding would be at least $10,000. Further, the trial court stated in its memorandum of decision that it had considered both of the parties’ abilities to pay and the criteria enumerated in General Statutes § 46b-82. Therefore, we conclude that the trial court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Landau, J.

text:
    James A. Dinnis et al. v. John Roberts et al.
    (12417)
    O’Connell, Landau and Schaller, Js.
    Argued March 21
    decision released July 26, 1994

      Bradley K. Cooney, with whom, on the brief, was Todd R. Bainer, for the appellants (plaintiffs).

      Benson A. Snaider, with whom, on the brief, was Alysia D. Maffucci, for the appellees (defendants).
   Landau, J.

The plaintiffs appeal from the judgment of the trial court granting the defendants’ motion for summary judgment. The plaintiffs claim that the trial court improperly (1) limited its consideration of the bad faith exception to the enforcement of the Home Improvement Act to a review of bad faith only in the inducement, and (2) concluded that there was no genuine issue of material fact in dispute regarding the plaintiffs’ claim of bad faith on the part of the defendants in the performance, termination and repudiation of the home improvement contract. We affirm the judgment of the trial court.

The relevant facts are as follows. On November 21, 1988, the plaintiff home improvement contractors, James Dinnis and Denise Dinnis, doing business as Prestige Construction, entered into an agreement with the defendant homeowners, John Roberts and Sharon Roberts, for the construction of an addition to the defendants’ home in Cheshire. In an amended complaint, the plaintiffs alleged that during the first week of April, 1989, with approximately 85 percent of the addition completed, the defendants terminated the plaintiffs’ services without notice or explanation. The plaintiffs alleged that the defendants acted deceptively and in bad faith in the execution and repudiation of the home improvement contract, and sought recovery under the theories of quantum meruit and unjust enrichment.

The defendants filed an answer, special defenses and a counterclaim. They asserted as a special defense to each count of the amended complaint that the plaintiffs’ claims were barred because the contract failed to comply with the requisite provisions of the Home Improvement Act and therefore was unenforceable. The plaintiffs filed a reply to the defendants’ special defenses asserting that the defendants had acted in bad faith, rendering the act inapplicable.

The defendants filed a motion for summary judgment directed to the plaintiffs’ amended complaint, claiming that the plaintiffs’ action was barred because the contract was unenforceable in that it failed to comply with General Statutes § 20-429 (a) (6) and (7). The defendants argued that they had acted in good faith and with intent to pay the plaintiffs for services rendered at all times during the transaction, and that the plaintiffs had not raised any facts that could form the basis of an issue of fact regarding the defendants’ bad faith.

In support of their motion, the defendants submitted a copy of the contract at issue. In addition, the defendants submitted affidavits stating that the construction was performed negligently; that, when the defendants hired an engineer to evaluate the plaintiffs’ work, the plaintiffs quit the job before the work specified in the contract was completed; that the plaintiffs’ work was not in compliance with the building code, nor was it of a good workmanlike standard; that despite the invalidity of the home improvement contract, the plaintiffs filed a mechanic’s lien against the defendants; and that the defendants had acted in good faith at all times during the transaction and had no knowledge of deficiencies in the home improvement contract prior to consulting an attorney.

The plaintiffs, opposing the motion for summary judgment, contended that the granting of summary judgment for the defendants would be inappropriate in light of the factual issues remaining in dispute between the parties, particularly with regard to the defendants’ bad faith. The plaintiffs further argued that whether the defendants had acted in bad faith was itself a genuine issue of material fact justifying denial of the defendants’ motion for summary judgment.

The plaintiffs, in their counteraffidavit, argued that they performed the work in accordance with the terms of the contract, yet, with 85 percent of the work completed, were terminated without notice or explanation; that, without consulting the plaintiffs, the defendants hired an engineer to inspect the plaintiffs’ work; that the defendants never expressed dissatisfaction with the plaintiffs’ work; that the defendants acted deceptively and in bad faith in dealing with the plaintiffs around the time that they terminated the contract, and thereafter, in using various harassing litigation tactics; and that they adopted and ratified the facts contained in the third amended complaint asserting bad faith on the part of the defendants.

The trial court granted the defendants’ motion for summary judgment, concluding that the plaintiffs had failed to establish a factual basis to raise a genuine issue of fact as to bad faith on the part of the defendants. The plaintiffs filed this appeal.

I

The plaintiffs first claim that the trial court improperly limited its consideration of the bad faith exception to the enforcement of the act to a review of bad faith only in the inducement to contract. We disagree.

Absent proof of bad faith on the part of the homeowner, General Statutes § 20-429 permits no recovery by a home improvement contractor under theories of quantum meruit or unjust enrichment if the home improvement contract fails to comply with the statutory requirements of the act. Sidney v. DeVries, 215 Conn. 350, 354, 575 A.2d 228 (1990); Barrett Builders v. Miller, 215 Conn. 316, 328, 576 A.2d 455 (1990). Discussing the bad faith exception, our Supreme Court “stated in dictum that, in the absence of bad faith, a homeowner is privileged to repudiate a home improvement contract that violates the act. In Habetz v. Con-don, 224 Conn. 231, 618 A.2d 501 (1992) . . . [the court] more fully addressed the bad faith exception and held that proof of a homeowner’s bad faith will preclude that homeowner from repudiating with impunity a home improvement contract that violates the act.” Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247-48, 618 A.2d 506 (1992).

In Habetz v. Condon, supra, 224 Conn. 237, the court reasoned: “[P]roof of bad faith on the part of the homeowner is an exception to what might otherwise be a harsh lesson to the home improvement contractor unable to recover due to a violation of the act. The central element giving rise to this exception is the recognition that to allow the homeowner who acted in bad faith to repudiate the contract and hide behind the act would be to allow him to benefit from his own wrong, and indeed encourage him to act thusly. Proof of bad faith therefore serves to preclude the homeowner from hiding behind the protection of the act.” The court defined bad faith as involving “ ‘actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.’ Black’s Law Dictionary (5th Ed. 1979). Bad faith means more than mere negligence; it involves a dishonest purpose. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 644, 447 A.2d 1163 (1982); Hartford National Bank & Trust Co. v. Credenza, 119 Conn. 368, 371, 177 A. 132 (1935):” Id.

In Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 249, the court concluded that the plaintiff’s allegation that the defendant homeowners had acted in bad faith by initially enforcing the contract and subsequently asserting the contract’s invalidity as a defense to a suit by the contractor did not, in itself, present a claim of bad faith. “There is nothing dishonest or sinister about homeowners proceeding on the assumption that there is a valid contract, enforcing its provisions, and later, in defense to a suit by the contractor, upon learning that the contract is invalid, then exercising their right to repudiate it. See Caulkins v. Petrillo, 200 Conn. 713, 720, 513 A.2d 43 (1986). As noted above, the plaintiff did not allege that the defendants knew of the violation earlier, or that they purposely drafted the contract in violation of the act in order later to avoid their obligation to pay. On the contrary, the plaintiff did not even challenge the defendants’ statements in their affidavits that they had been unaware of the act prior to the commencement of this lawsuit. Farrell v. Farrell, [182 Conn. 34, 39-40, 438 A.2d 415 (1980)].” Id.

The plaintiff's contend that the bad faith exception to the enforcement of the act is not limited to instances of bad faith relating to the formation of, or inducement to, enter into a home improvement contract. The plaintiffs claim that the Supreme Court’s references in Barrett Builders v. Miller, supra, 215 Conn. 328, to bad faith in the “unwarranted repudiation” of the agreement indicate that an improper termination or repudiation of a home improvement contract by a homeowner may exempt a home improvement contractor from the otherwise harsh application of the act. They urge that the court in Habetz v. Condon, supra, 224 Conn. 236 n.10, recognized, in dictum, that additional grounds for the application of the bad faith exception might exist, and ask this court to extend the bad faith exception enunciated in Wadia and Habetz. We decline to do so under the facts of this case.

II

The plaintiffs further claim that the trial court improperly concluded that there was no genuine issue of material fact in dispute regarding the plaintiffs’ claim of bad faith on the part of the defendants in the performance, termination and repudiation of the home improvement contract. We disagree.

The standards governing our review of a trial court’s decision on a motion for summary judgment are well established. Practice Book § 384 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.” “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists. Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. Farrell v. Farrell, [supra, 182 Conn. 39]; Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 567, 611 A.2d 452 (1992). Moreover, [i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, quoting Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).” (Internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 247.

In reviewing the ' plaintiffs’ contention that its amended complaint contained “detailed and far reaching allegations” as to the defendants’ bad faith, thereby raising an issue of fact, the trial court noted that the mere presence of an alleged adverse claim is not sufficient to defeat a motion for summary judgment. The defendants stated, in affidavits, that they had been unaware of the act prior to consulting an attorney; the plaintiffs did not challenge these statements in opposing the defendants’ motion, except by referring to the allegations of the defendants’ bad faith set forth in their complaint. The trial court properly concluded that by simply referring to the allegations of the complaint and by failing to submit supporting documents that tended to show bad faith on the part of the defendants, the plaintiffs failed to establish a factual basis to raise a genuine issue of fact as to the defendants’ bad faith.

The plaintiffs further claim that bad faith is itself a genuine issue of material fact in dispute and, as such, not appropriately decided on a motion for summary judgment. The plaintiffs rely on cases in which our Supreme Court has held that summary judgment is ill suited for cases of a complex nature or for those involving important public policy issues requiring a trial, and that summary judgment is particularly inappropriate where the inferences that the parties seek to have drawn deal with questions of motive, intent and subjective feelings. See, e.g., United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 375-76, 260 A.2d 596 (1969). The court has held, however, that even with respect to issues involving motive, intent and subjective feelings, the party opposing a motion for summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld, supra, 224 Conn. 250; Connell v. Colwell, supra, 214 Conn. 251.

In opposing the motion for summary judgment, the plaintiffs failed to present the necessary factual predicate to raise a genuine issue as to the defendants’ bad faith. We conclude that the trial court properly granted the defendants’ motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-418 et seq., the Home Improvement Act, sets forth the statutory requirements governing home improvement contracts. General Statutes § 20-429 provides in pertinent part: “(a) No home improvement contract shall be valid or enforceable against an owner unless it: (1) Is in writing, (2) is signed by the owner and the contractor, (3) contains the entire agreement between the owner and the contractor, (4) contains the date of the transaction, (5) contains the name and address of the contractor, (6) contains a notice of the owner’s cancellation rights in accordance with the provisions of chapter 740, (7) contains a starting date and completion date, and (8) is entered into by a registered salesman or registered contractor. . . .”

       The parties did not dispute that the contract was a home improvement contract within the meaning of the Home Improvement Act. Nor did the parties dispute that the contract was deficient in that it failed to contain a notice of the homeowners’ cancellation rights or starting and completion dates, as required by General Statutes § 20-429 (a) (6) and (7).

       The court in Habetz stated: “We interpret the dictum in Barrett Builders v. Miller, [supra, 215 Conn. 328], to mean that a homeowner cannot in bad faith invoke the contractor’s statutory violation as a basis for his own repudiation of the contract. Whether proof of bad faith in some other manner on the part of the homeowner will also allow a contractor who has failed to comply with the requirements of the act to recover is a question left for another day.” Habetz v. Condon, supra, 224 Conn. 236 n.10.


author: Foti, J.

text:
    State of Connecticut v. Robert Wiedl
    (11360)
    Dupont, C. J., and Foti and Freedman, Js.
    Argued May 3
    decision released June 22, 1994

      Robert G. Golger, with whom, on the brief, was Howard T. Owens, Jr., for the appellant (defendant).

      Pamela S. Meotti, deputy assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Cornelius Kelly, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of threatening in violation of General Statutes § 53a-62 (a) (1), burglary in the second degree in violation of General Statutes § 53a-102 (a), and criminal trespass in the first degree in violation of General Statutes § 53a-107 (a). He was sentenced to a total effective sentence of eight years imprisonment, suspended after four years, with five years of probation. On appeal, the defendant claims that the trial court improperly (1) admitted evidence of his prior misconduct, and (2) submitted the charge of criminal trespass in the first degree to the jury because insufficient evidence was presented to sustain that conviction. He also claims that prosecutorial misconduct during closing argument deprived him of his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim lived in an apartment attached to a thirty-four room house in Fairfield, and worked for the owners in exchange for free lodging. Only one road led to the main house and the entrance to that road had a gate house that was attended at all times. The names of all invited guests were supplied to the guards for purposes of admission.

The victim also worked as a waitress at a different location. On September 10, 1991, she arrived at her apartment at approximately 1 a.m. after waitressing. As she was leaving her apartment to take out the garbage, she heard a noise in the garage attached to her apartment. She entered the garage and discovered the defendant, with whom she had previously had a relationship, dressed in black clothing with black grease or paint on his face. He was crouched in a hiding position beside a car, and when she asked what he was doing there, he grabbed her wrists. She broke away from him and ran up the stairs and into her apartment. She tried to close the door on the defendant, but he forced his way through the door and inside. The victim pushed a security alarm button but it failed to operate. The defendant came at her and she struck him with a wood carving, which splintered from the impact. He picked up a jagged piece of wood and threatened to kill her. She feared for her safety and told the defendant to leave. She called 911 and told the dispatcher that there was a man in her house threatening to kill her. The defendant left before the police arrived.

I

The defendant first claims that the trial court improperly admitted evidence of his prior misconduct.

During the state’s case-in-chief, the prosecuting attorney sought to introduce evidence, through the testimony of the victim, that in May, 1990, she awakened during the night to find the defendant in her bedroom, dressed entirely in black. At that time, the defendant ran immediately upon being observed. The state argued that this evidence was being offered to show a common scheme or to establish a continuing system of criminal activity. The defendant pointed out that identity was not an issue; he admitted that he was on the victim’s premises on September 10,1991, but claimed that he was there with her permission. He objected to the admission of this prior act evidence because it was highly prejudicial and did not tend to establish a type of signature offense. The trial court permitted the victim to testify as to that prior misconduct because it tended to demonstrate a common scheme of criminal activity.

“Evidence of a defendant’s uncharged misconduct is inadmissible to prove that the defendant committed the charged crime or to show the predisposition of the defendant to commit the charged crime. State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Sierra, 213 Conn. 422, 428, 568 A.2d 448 (1990). Exceptions to this rule have been recognized, however, to render misconduct evidence admissible if, for example, the evidence is offered to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.” State v. Graham, 33 Conn. App. 432, 438, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

Uncharged misconduct evidence must satisfy a two part test in order to be admitted as an exception. The evidence must be relevant and material to at least one of the claimed exceptions, and its probative value must outweigh its prejudicial effect. State v. Cooper, 227 Conn. 417, 425, 630 A.2d 1043 (1993). The admission of such evidence is a decision within the discretion of the trial court; id., 426; we will reverse such a decision only when it is manifest that the trial court has abused its discretion or an injustice has occurred. State v. Santiago, 224 Conn. 325, 338-39, 618 A.2d 32 (1992). We will draw every reasonable presumption in favor of the trial court’s ruling. State v. Cooper, supra, 427.

As the defendant points out, identity was not an issue in this case. It was unnecessary, therefore, to demonstrate that the defendant’s acts were distinctive or similar to a signature. See State v. Mooney, supra, 218 Conn. 131-32. Evidence of prior misconduct, however, may also be used to show a common scheme. “Generally, the determination of whether the uncharged misconduct evidence is relevant as proof of a common scheme or system of criminal activity depends on a number of factors. Those factors include: (1) the degree of general similarity between the uncharged and charged misconduct; (2) the frequency of the uncharged misconduct; and (3) the remoteness or closeness in time between the uncharged and charged misconduct.” (Emphasis in original) State v. Murrell, 7 Conn. App. 75, 87-88, 507 A.2d 1033 (1986).

The similarities between the two incidents were rather remarkable. In both instances, the defendant appeared at an unusual hour, in a secured area, dressed entirely in black, and attempted concealment or attempted to evade detection. These distinctive combinations of facts constitute more than the required “general” similarities. The trial court did not improperly admit such evidence as relevant to show a common scheme or system of criminal activity. The trial court could have reasonably found that the evidence had significant probative value on this issue, “especially where the similarities of the crimes are so striking, a circumstance that makes the evidence that much more probative.” State v. Reddick, 33 Conn. App. 311, 328, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).

We conclude that the trial court acted properly and did not abuse its discretion in determining that the evidence was relevant and material and that the probative value of the testimony outweighed any potential prejudicial effect on the jury.

II

The defendant next claims that the state presented insufficient evidence to establish the crime of criminal trespass in the first degree, General Statutes § 53a-107 (a).

“The two part test for evaluating the sufficiency of the evidence in a jury trial is well established. First, the reviewing court construes the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Gray, 221 Conn. 713, 719-20, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). The reviewing court then determines whether the jury could have reasonably found, on the basis of the facts established and the inferences reasonably drawn from them, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Baldwin, supra [368]; State v. Gray, supra, 720; State v. Allen, supra [380]. In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct. State v. Baldwin, supra [368]; State v. Gray, supra [720]; State v. Allen, supra, 380-81.” State v. Wager, 32 Conn. App. 417, 429-30, 629 A.2d 1146, cert. denied, 228 Conn. 912, 635 A.2d 231 (1993).

The evidence was sufficient under either subdivision (1) or (2) of § 53a-107 (a) to have allowed the court properly to submit this charge to the jury. There was evidence presented that a court order was in existence on September 10,1991, prohibiting the defendant from contacting the victim. Furthermore, the victim ran from the defendant, attempted to stop him from entering her apartment, ordered him to leave, struck the defendant and eventually called 911.

It is not our function, but is rather the function of the jury, to determine the credibility of the victim as a witness. State v. Baldwin, supra, 224 Conn. 367. It is also the function of the jury to find facts and draw reasonable inferences from those facts. State v. Stanley, 223 Conn. 674, 681, 613 A.2d 788 (1992). There was sufficient evidence presented to allow the jury to conclude that the defendant knew that he was not licensed or privileged to enter or remain in the victim’s apartment and that he entered or remained therein after the victim ordered him out, or that he entered or remained in violation of a court order.

Ill

The defendant also claims that the prosecutor’s closing remarks were improper and denied him his right to a fair trial. The defendant asserts that the prosecutor acted improperly in appealing to the jurors’ emotions, passions and prejudices. The defendant neither objected to the remarks nor requested a curative instruction. Our careful review of the record in this case reveals that the prosecutor’s comments during argument, while improper, did not reveal a pattern of conduct and were not so blatantly egregious as to deprive the defendant of a fundamental constitutional right and a fair trial as required by the Evans-Golding doctrine. We will not review this unpreserved claim of prosecutorial misconduct. State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The judgment is affirmed.

In this opinion the other judges concurred.

       As a result of these convictions, the defendant was convicted of two counts of violation of probation. Upon the defendant’s request to consolidate the judgments, the trial court also sentenced the defendant on the two violation of probation convictions resulting in an effective sentence of two years consecutive to the underlying sentence.

       General Statutes § 53a-107 (a) provides: “A person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, he enters or remains in a building or any other premises after an order to leave or not to enter [is] personally communicated to him by the owners of the premises or other authorized person; or (2) he enters or remains in a building or any other premises in violation of a restraining order issued pursuant to section 46b-15 or a protective order issued pursuant to section 46b-38c by the superior court.”

       During his closing arguments, the prosecutor stated: “I don’t know if many of you have been in any type of a stormy relationship, but try to put yourself in her shoes and find out exactly how you would feel, given some of the things that you heard in this courtroom over the past week.”
      He also stated: “I pose a question to a witness; they give you the response. I’m stuck with whatever they say. I’m stuck with their appearance. I’m stuck with their past criminal history. Mother Theresa did not come into the courtroom and sit on the witness stand. Hopefully, Mother Theresa would not get herself involved in something like this. However, you have a woman up here — I don’t think a woman should have to go through what she went through. . . .
      “I’m stuck with [the victim]. Obviously, I would want a better witness, in some respects, maybe to answer the question directly, maybe to answer the question in a way I think would be the best to be put before you. But I can’t direct or I can’t control what comes out of her mouth; I’m stuck with that. But I believe everything that she [has] said is the truth.”

       The defendant seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).


author: Heiman, J.

text:
    Anthony Reynaud v. Town of Winchester
    (12321)
    Landau, Heiman and Schaller, Js.
    Argued May 4
    decision released July 26, 1994

      Maureen E. Donahue, with whom, on the brief, was David M. Cusick, for the appellant (plaintiff).

      Kevin F. Nelligan, for the appellee (defendant).
   Heiman, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from the action of the board of tax review of the town of Winchester. On appeal, the plaintiff claims that the trial court improperly (1) found that the video cassette recordings owned by the plaintiff were taxable and (2) employed a valuation method that failed to take into account the rapid depreciation of video cassette recordings. We affirm the judgment of the trial court.

The plaintiff operates a video cassette rental establishment in the town of Winchester. On October 1, 1991, the plaintiff submitted a list of video cassette recordings to the town tax assessor for valuation and assessment. The assessor valued the cassettes at $10.59 per cassette using the “cost minus depreciation” method of valuation. The total assessment, made pursuant to General Statutes § 12-71, was $55,750. The plaintiff appealed the assessment to the board of tax review which reduced the assessment to $43,760. The plaintiff then appealed, pursuant to General Statutes §§ 12-117a, 12-118 and 12-119, to the trial court claiming that (1) the town imposed an illegal tax on intangible property, and (2) the depreciation method adopted by the assessor did not reflect the true rate of depreciation of the recordings. The trial court found that the town taxed only the tangible component of the video cassette recordings and that their intangible components were not taxed. The rights to produce and sell copies, to change the underlying work, and to license its use to others or to transfer the copyright, a value that the trial court stated would be in the millions of dollars, were not taxed. The trial court further found that the depreciation method was a logical and accurate method of arriving at the true and actual value of the video cassette recordings. This appeal followed.

I

“[T]he question before the court is whether the town has levied an illegal tax. . . . Levying a tax on property exempt from taxation would be an illegal exaction. . . . The burden of proving that it is exempt from taxation rests on the taxpayer.” (Citations omitted.) Faith Center, Inc. v. Hartford, 192 Conn. 434, 437, 472 A.2d 16, cert. denied, 469 U.S. 1018, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984). The plaintiff asserts that the video cassette recordings are similar in nature to computer software, and thus are intangible personal property exempt from taxation. Northeast Datacom, Inc. v. Wallingford, 212 Conn. 639, 642-43, 563 A.2d 688 (1989). The defendant, on the other hand, asserts that the video cassette recordings are tangible personal property, similar to movie reels, and are thus taxable personal property. Columbia Pictures Industries, Inc. v. Tax Commissioner, 176 Conn. 604, 610, 410 A.2d 457 (1979). “General Statutes § 12-71 (a) subjects to local municipal taxation ‘[a]ll goods, chattels and effects or any interest therein, belonging to any person who is a resident in this state . . . .” Northeast Datacom, Inc. v. Wallingford, supra, 642. Our Supreme Court has interpreted this language, in light of past statutory language, to subject only tangible personal property to local tax. Id. Tangible personal property is “ ‘personal property which may be seen, weighed, measured, felt or touched or which is in any other manner perceptible to the senses.’ ” Columbia Pictures Industries, Inc. v. Tax Commissioner, supra, 606. Intangible personal property is the copyright, “the right to produce and sell more copies, the right to change the underlying work, the right to license its use to others and the right to transfer the copyright itself.” Northeast Datacom, Inc. v. Wallingford, supra, 646.

Our Supreme Court in Columbia Pictures Industries, Inc. v. Tax Commissioner, supra, 176 Conn. 609-10, determined that movie reels were tangible personal property because “the plaintiffs’ object was to acquire possession of the film in its finished state in order to reproduce it for profit rather than to acquire the services performed in producing the film.” The possessor “acquires a limited right to use and enjoy the material’s content.” Northeast Datacom, Inc. v. Wallingford, supra, 212 Conn. 645. Our Supreme Court in Northeast Datacom has also determined that the physical components of computer software are intangible property because they are “only the most tangential incidents of a computer program and the fact that tangible property is used to store or transmit the software’s binary instructions does not change the character of what is fundamentally a classic form of intellectual property.” Id., 644.

We conclude that the video cassette recordings are similar to movie reels and are tangible personal property. The critical factor is whether the plaintiff owns an individual’s skills or a tangible end product of those skills. Columbia Pictures Industries, Inc. v. Tax Commissioner, supra, 176 Conn. 610-11. The plaintiff acquired the video cassette recordings for a limited purpose — to sell and rent the content of the cassette for profit — and did not acquire the incidents of ownership associated with intangible property. The cassettes also do not contain a code of binary instructions, the meaning of which is known only to skilled individuals. Since the plaintiff owns only the end product, a copy of the production on video cassette, he owns tangible personal property subject to local tax.

The plaintiff further claims that, even if the video cassette recordings are tangible property, the tax by the town was levied on the intangible portion of the recordings; the copyright, “the right to produce and sell more copies, the right to change the underlying work, the right to license its use to others and the right to transfer the copyright itself.” Northeast Datacom, Inc. v. Wallingford, supra, 212 Conn. 646. The trial court stated in its memorandum of decision that the value of such rights is millions of dollars and the assessment was only $55,750. The trial court thus found that the town taxed only the value of what the plaintiff owned, namely, the right to sell and lease the video cassette recordings for profit. “The factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. . . .” (Citations omitted; internal quotation marks omitted.) Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40-41, 632 A.2d 1134 (1993). On the basis of the record, we conclude that the trial court’s finding is supported by evidence and that no mistake was committed by the trial court. Thus, the finding is not clearly erroneous.

II

The plaintiff next claims that the trial court improperly employed a valuation method that failed to account for the rapid depreciation of video cassette recordings. The record and briefs are unclear as to the statutory authority under which the plaintiffs bring this action. General Statutes §§ 12-117a, 12-118 and 12-119 all authorize the plaintiff to challenge the valuation of property by the assessor. Neither party led us to the statute on which the plaintiff asserted his claim. Because the record is unclear as to the statute under which the plaintiff brought this action, we will demonstrate the inadequacy of the plaintiff’s argument under all of the statutes.

Under General Statutes §§ 12-117a and 12-118, “[t]he valuation of property for assessment purposes is a question of fact for the trier. Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 607, 424 A.2d 282 (1979). ‘The trier arrives at his own conclusions as to the value of [property] by weighing the opinion of the appraisers, the claims of the parties in light of all the circumstances in evidence bearing on value, and his own general knowledge of the elements going to establish value.’ O’Brien v. Board of Tax Review, 169 Conn. 129, 136, 362 A.2d 914 (1975).” Tucker v. Hartford, 15 Conn. App. 513, 517, 545 A.2d 584, cert. denied, 209 Conn. 807, 548 A.2d 444 (1988). “The conclusions reached by the trial court must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law.” (Internal quotation marks omitted.) Newbury Commons Ltd. Partnership v. Stamford, 226 Conn. 92, 100, 626 A.2d 1292 (1993); Tucker v. Hartford, supra, 517-18. The trial court’s determination was based on the town assessor’s depreciation method, which the trial court found to be a reasonable method of valuation. The court’s conclusions as to the value of the plaintiff’s properties are adequately supported by the evidence and do not depend on an erroneous rule of law. See Tucker v. Hartford, supra, 518.

Under General Statutes § 12-119, we review the claim to determine whether “the tax was imposed by a town that had no authority to tax the subject property, or that the assessment was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of [the property]. . . .” (Emphasis in original; internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 30-31, 633 A.2d 1368 (1993); Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 340, 597 A.2d 326 (1991). There are “two possible grounds for recovery under the statute: the absolute nontaxability of the property in the municipality where situated, and a manifest and flagrant disregard of statutory provisions. . . . The first category in the statute embraces situations where a tax has been laid on property not taxable in the municipality where it is situated . . . .” (Internal quotation marks omitted.) Second Stone Ridge Cooperative Corp. v. Bridgeport, supra, 340. We have already concluded that the video cassette recordings are tangible property and thus subject to tax. The second category requires “allegations beyond the mere claim that the assessor overvalued the property. [The] plaintiff . . . must satisfy the trier that [a] far more exacting test has been met: either there was misfeasance or nonfeasance by the taxing authorities, or the assessment was arbitrary or so excessive or discriminatory as in itself to show a disregard of duty on their part.” (Internal quotation marks omitted.) Id., 341. The record fails to reveal any claim by the plaintiff beyond the mere assertion that the assessor overvalued the property. The plaintiff does not claim and the record does not reflect misfeasance or nonfeasance by the taxing authorities, or that the assessment was arbitrary or so excessive or discriminatory in itself to show a disregard of duty on their part. Thus, the plaintiffs claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The assessor depreciated the value of the cassettes to 80 percent, 60 percent, 40 percent and 30 percent of their original value for each successive year of ownership.


text:
    In re Emmanuel M.

    (13135)
    Lavery, Heiman and Freedman, Js.
    Argued June 7
    decision released August 2, 1994

      David E. Mandell, for the appellant (respondent mother).

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

      Joseph A. Cipparone, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 4166B.2, 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.

   Lavery, J.

This appeal arises from the judgment of the trial court adjudicating Emmanuel M. a neglected child and terminating the parental rights of his adoptive parents, Carlos M. and Martha M. The respondent Martha M. (respondent) claims on appeal that the trial court based its ruling on insufficient evidence. We affirm the judgment of the trial court.

Emmanuel M. was born in 1989 to the sister of the respondent father. The biological father is unknown. The respondents adopted Emmanuel on November 20, 1990. Emmanuel was admitted to the Naval Hospital at the U.S. Submarine Base in Groton on January 3, 1993. When admitted, Emmanuel had a spiral fracture of the right femur, bruises on his forehead, the top of his head, both upper arms and back, abrasions on his left ear and the left side of his face, a second to third degree burn on his right thigh, multiple scars over his entire body, a cigarette-size burn on his right wrist, blisters between his fingers, a strap-like mark above his eyebrows, perforated right eardrum, scratches under his arms and strap marks across his shoulder. Two days later, physicians removed a substance from Emmanuel’s left ear that was later determined to be candle wax.

In light of the extent of Emmanuel’s injuries, and the conflicting and fluctuating explanations offered by the respondents, the hospital notified the department of children and families (DCF). On January 11, 1993, DCF petitioned pursuant to General Statutes § 46b-129 to have Emmanuel adjudicated a neglected child. DCF simultaneously petitioned pursuant to General Statutes § 17a-112 to terminate the parental rights of the respondents.

After a three day trial in the fall of 1993, the trial court issued its memorandum of decision in which it reviewed in detail the evidence before it and the standards of law applicable to its determinations. The trial court found that the petitioner had demonstrated by a fair preponderance of the evidence that Emmanuel was a neglected child. The trial court also found that the petitioner had presented clear and convincing evidence sufficient to justify termination and that termination was in Emmanuel’s best interest. Finally, the trial court found that the totality of circumstances warranted waiving the requisite one year waiting period provided by General Statutes § 17a-112 (b).

On appeal, the respondent claims that the trial court lacked sufficient evidence to support its ruling. We have carefully reviewed the briefs and oral argument as well as the entire record and are satisfied that the judgment of the trial court should be affirmed. We have also reviewed the trial court’s memorandum of decision. In re Emmanuel M., 43 Conn. Sup. 108, 648 A.2d 904 (1994). That memorandum is an accurate statement of the Connecticut law governing this action. Little would be accomplished by our recitation of what the trial court, through its diligent efforts, has already ably furnished. Accordingly, we adopt the trial court’s well reasoned decision as a statement of the facts and the applicable law of this case. See, e.g., Daw’s Critical Care Registry, Inc. v. Dept. of Labor, 225 Conn. 99, 102, 622 A.2d 518 (1993); Forge Square Associates Ltd. Partnership v. Construction Services of Bristol, Inc., 33 Conn. App. 669, 673, 638 A.2d 606 (1994); LaValley v. Correia, 33 Conn. App. 41, 43, 632 A.2d 1143 (1993), cert. denied, 228 Conn. 923, 638 A.2d 37 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.


author: Spear, J.

text:
    State of Connecticut v. Charles Coleman
    (12287)
    Lavery, I-Ieiman and Spear, Js.
    Argued April 29
    decision released August 2, 1994

      Bonnie L. Amendola, special public defender, with whom, on the brief, was Brian Preleski, special public defender, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l), assault in the first degree in violation of General Statutes § 53a-59 (a) (3), and attempted robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (3) and 53a-49 (a). The defendant claims that the trial court improperly (1) admitted testimony concerning three knives seized from the defendant’s car, (2) instructed the jury with respect to the knives seized from the defendant’s car and the partial palm print lifted from the bathtub in the victim’s residence, and (3) concluded that the evidence presented by the state was sufficient to convict the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was asleep in her bed during the early morning hours of June 23, 1986, when she was awakened by the touch of a knife on her throat and a hand placed over her mouth. The victim struggled with her assailant and tried to grab the knife from him. During the struggle, the victim sustained several lacerations on her right hand and was struck in the face several times. When the victim was finally able to break free, she ran to the kitchen and screamed for help. She then fled to the bathroom with her assailant in pursuit. The victim told her assailant that she was having an asthma attack and needed her medication. He then told her she could “take care of [her] business,” and he returned to the bedroom in search of money.

The victim left the water running in the bathroom sink, wrapped a towel around her bleeding hand, ran to the front door, unlocked it and exited her first floor apartment. Once outside, she rang the bell for the upstairs apartment where her parents lived. When they failed to respond immediately, she ran to her father’s parked car, and crawled underneath it. She remained there for “quite a while” before emerging to flag down a truck driver who radioed for police.

When the police arrived, they found the front door unlocked and no one inside the victim’s apartment. They also discovered that the bathroom window was wide open even though the victim had left it open only a few inches before retiring to bed. At the scene, the victim described her attacker as a black male wearing a face cover that felt like a ski mask and a cotton sweatsuit. She estimated that he was about five feet eleven inches tall and of average weight.

The police obtained a partial latent palm print from the victim’s bathtub that matched the defendant’s left palm print. The location of the print indicated that it was placed there from inside the tub, consistent with someone entering through the bathroom window. On July 8, 1986, the police seized three knives from the defendant’s car pursuant to a search warrant issued with respect to other crimes. The defendant was subsequently convicted and this appeal ensued.

I

The defendant first claims that the trial court improperly admitted testimony describing three knives seized from the defendant’s car. In particular, the defendant argues (1) that the knives were seized in violation of the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution, and (2) that evidence of the knives was irrelevant and highly prejudicial. Although we agree that the trial court improperly admitted the testimony concerning the knives, we conclude that the error was harmless.

A

The defendant moved to suppress the three knives seized during the search of his car. The defendant argued that the search warrant, although it permitted a search of his residence, did not specify his car as a place to be searched. He claims that the only reference to his car is found on two pieces of paper appended to the affidavit and the search warrant. Thus, he argues that the authorization to search his car, if it existed at all, came from the attachments to the warrant. He claims that the attachments lack the necessary signatures and oaths required for the search of any premises and that they are not dated. In addition, he argues that because the warrant did not incorporate the attachments by reference, the court cannot consider them in determining the validity of the warrant.

At the suppression hearing, the trial court determined that the attachments to the search warrant were proper and authorized the search of the defendant’s automobile and the seizure of the three knives therein. The trial court’s determination was a finding of fact that will not be overturned unless it was clearly erroneous. Adriani v. Commission on Human Rights & Opportunities, 228 Conn. 545, 548, 636 A.2d 1360 (1994); State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). “This court cannot retry the facts or pass upon the credibility of the witnesses. . . . Pandolphe’s Auto Parts, Inc. v. Manchester, [181 Conn. 217, 220, 435 A.2d 24 (1980)].” (Internal quotation marks omitted.) Carol Management Corp. v. Board of Tax Review, 228 Conn. 23, 41, 633 A.2d 1368 (1993). “When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence. State v. Northrop, 213 Conn. 405, 414, 568 A.2d 439 (1990) (reviewing factual findings in fourth amendment claims).” State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993). Upon review, we conclude that the trial court correctly denied the motion to suppress.

The trial court found that the attachments to the affidavit contained the requisite initials of the affiants, two officers of the New Haven police department, and of Judge Ronan of the Superior Court after he found probable cause for the search and took the officers’ oaths. The trial court also found that the attachments were affixed “at the precise spot on the first page [of the affidavit] where the description of the places to be . . . searched is set forth and there is no more room in that space on the page and this is then attached adding some words describing the house . . . and a 1968 Chevrolet two door sedan, color red, bearing identification number . . . 344-DUP.”

The court further found that although the warrant provided sufficient space to describe the victim’s residence, it did not provide sufficient space to describe the defendant’s automobile. The exact description of the automobile contained in the first attachment was thus placed in a second attachment and affixed to the portion of the warrant where the description of the places to be searched is located. This second attachment also contained the requisite initials of the affiants and of Judge Ronan.

Despite the defendant’s contention to the contrary, the court found that the body of the affidavit contained a detailed description of the defendant’s automobile. Although the court did concede that “it would be better practice to make some reference to the fact [that there are attachments] or put the date on the [attachments],” it nevertheless concluded that the attachments were clearly a part of the warrant and thus the automobile was specifically designated as a place to be searched.

The trial court’s findings were supported by substantial evidence and therefore were not clearly erroneous.

B

Although the search of the defendant’s vehicle was proper, the testimony concerning the three knives discovered therein should not have been admitted because the state failed to establish a nexus between those knives and the crimes with which the defendant was charged.

At trial, the state offered the testimony of Detective James Stephenson of the New Haven police department, a participant in the inventory search of the defendant’s car on July 8,1986. The defendant objected on the ground that there was no evidence connecting the knives found in his car to the crimes charged against him and that these knives were irrelevant and highly prejudicial. The objection was overruled on the ground that the knives were relevant to show the “accused possessed an article with which the particular crime charged may have been accomplished,” and that “the accused had the means to commit the crime.” Further, the court concluded that the probative value of such evidence outweighed its prejudicial nature. The defendant took an exception. Stephenson then testified that the knives found in the defendant’s car were a survival knife with a sheath found in the front of the car on the left side, a sheetrock knife with a blue handle found in the glove compartment, and a brown pocketknife found in a tool pouch in the trunk. The state chose not to offer the knives into evidence.

In determining the admissibility of evidence, “[t]he trial court has broad discretion to determine both the relevancy and remoteness of evidence.” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). “In 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. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) Shaywitz v. Singing Oaks Day Camp, Inc., 8 Conn. App. 71, 74, 510 A.2d 1013 (1986); State v. Payne, 219 Conn. 93, 114, 591 A.2d 1246 (1991).

There is nothing in the record to suggest that the knives found in the defendant’s car had any connection to the crimes committed against the victim. Although the victim testified that she was awakened in her apartment by an assailant who was holding a knife against her throat and that during a struggle with him her right hand was slashed by the blade of the knife, the state never connected the fact of the defendant’s possession of three knives with the commission of the crimes for which he stood charged. The knives were discovered in the defendant’s car more than two weeks after the victim was assaulted, the victim never described the knife used by her assailant, and the state never argued that one of the defendant’s knives was used in the assault against the victim.

The state nevertheless contends that the testimony regarding the knives discovered in the defendant’s car was admissible to show that, since the defendant possessed the knives, he possessed the means of committing the crimes charged. See State v. Thomas, 205 Conn. 279, 283-84, 533 A.2d 553 (1987); State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Villafane, 171 Conn. 644, 675-76, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Corbett, 12 Conn. App. 217, 219, 530 A.2d 208 (1987); State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986). The state maintains that the fact that none of the knives could be positively identified as the one used in the crime affects the probative weight of the evidence and not its admissibility. State v. Corbett, supra, 221.

In each of the cases on which the state relies, there was some evidence linking the seized item or items to the crime charged. See State v. Marra, 222 Conn. 506, 610 A.2d 1113 (1992) (witnesses testified that sneaker found in Long Island Sound was identical to one victim was wearing when he was assaulted by defendant); State v. Jeffrey, 220 Conn. 698, 704, 601 A.2d 993 (1991), cert. denied, U.S. , 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992) (urine stained blouse worn by victim admissible where victim testified that defendant urinated on her during sexual assault); State v. Thomas, supra, 205 Conn. 283 (witness testified that clothesline rope seized from defendant’s basement looked like rope used in crime charged); State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987) (evidence that handcuffs found on victim were same brand as those shipped to federal correctional institution where defendant had been previously employed); State v. Villafane, supra, 171 Conn. 675 (crime charged was committed with handgun and defendant admitted to possession of handgun one day after shooting); State v. Ortiz, 14 Conn. App. 493, 499-500, 542 A.2d 734 (1988) (witness testified that he was beaten with stick and stick was found near crime scene); State v. Corbett, supra, 12 Conn. App. 220 (shotgun shells and pellets seized from defendant’s bedroom were kind used in crime charged).

It is error to allow into evidence testimony concerning articles seized from the defendant that tend to indicate criminal propensity when those articles are not connected to the commission of the crime charged. State v. Ferraro, 160 Conn. 42, 45, 273 A.2d 694 (1970); State v. Johnson, 160 Conn. 28, 31, 273 A.2d 702 (1970). Thus, Stephenson’s testimony concerning the three knives found in the defendant’s car should not have been admitted because the state failed to produce evidence connecting the knives with the assault of the victim. See State v. Onofrio, 179 Conn. 23, 31, 425 A.2d 560 (1979); State v. Ferraro, supra, 45; State v. Johnson, supra, 32. We conclude, therefore, that the trial court abused its discretion in admitting Stephenson’s testimony concerning the three knives.

Our analysis, however, does not end here. Having concluded that the trial court improperly admitted testimony concerning the knives seized from the defendant’s car, we must next determine whether such an error was harmful. We hold that it was not.

“When, as is true here, an error in a criminal case does not involve a constitutional violation, the burden is on the defendant to demonstrate the harmfulness of the court’s error. The defendant must show that it is more probable than not that the erroneous action of the court affected the result [of the trial]. . . . State v. Hoeplinger, 27 Conn. App. 643, 649, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); see also State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980).” (Citations omitted; internal quotation marks omitted.) In re Jose M., 30 Conn. App. 381, 390-91, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993).

The defendant has failed to demonstrate how the admission of Stephenson’s testimony was harmful to him. Stephenson’s testimony was limited to a brief description of the knives. It was not the type of evidence “that [would] have a tendency to excite the passions, awaken the sympathy, or influence the judgment of the jury . . . State v. Onofrio, supra, 179 Conn. 32; State v. Ferraro, supra, 160 Conn. 45.

In Ferraro, the court found harmful a witness’ testimony that the defendants had been living in an apartment where pistols, ammunition and a ski mask were found concealed in the ceiling above a closet because it was highly inflammatory and may have led the jury to believe that the defendants were violent individuals. Unlike the evidence in Ferraro, however, Stephenson’s testimony was not inflammatory so as to lead a jury to infer that the defendant was a violent person simply because he possessed three knives. Moreover, the jury never saw the actual knives as the state chose not to put them into evidence. Cf. State v. Girolama, 197 Conn. 201, 207-208, 496 A.2d 948 (1985); State v. Addin, 171 Conn. 105, 114-16, 368 A.2d 212 (1976).

The state’s evidence linking the defendant to the crime included the evidence that the bathroom window was found opened much wider than the victim had left it when she retired, that the defendant did not have permission to enter her apartment, and that the defendant’s latent left palm print was discovered in the bathtub. The only reasonable inference that the jury could have drawn from this evidence is that the defendant entered her apartment through the window and inadvertently left his palm print in the bathtub during the commission of the crimes charged.

Testimony was elicited that the location of the print indicated that it was placed there from the inside of the tub, consistent with someone’s entering through the bathroom window directly above the tub. In light of this evidence, we cannot say that the improper testimony briefly describing three knives more probably than not affected the result. See State v. Castonguay, 218 Conn. 486, 505, 590 A.2d 901 (1991); State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988). Because the defendant has failed to meet his burden of proving that the error was harmful, his claim must fail.

II

The defendant next claims that the trial court improperly instructed the jury concerning (1) the partial palm print found on the victim’s bathtub and (2) the knives seized from the defendant’s car. We disagree that the charge concerning the fingerprint evidence was improper. Although we agree that the charge concerning the knives was improper, we conclude that the error was harmless.

A

The defendant submitted a proper written request to charge on the fingerprint evidence, which the trial court declined to give. “It is well established that when a proper request to charge is filed [pursuant to Practice Book § 852] and the trial court has failed to charge the jury in the exact language of the request, the test is whether the court’s instructions properly covered the substance of the written request. ... A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. . . . [Our Supreme Court] has often repeated that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. ... It is the trial court’s responsibility to instruct the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration under the offenses charged and upon the evidence. ... A claim of error in jury instructions must be reviewed in the context of the charge as a whole.” (Citations omitted; internal quotation marks omitted.) State v. Arena, 33 Conn. App. 468, 488-89, 636 A.2d 398, cert. granted, 229 Conn. 918, 644 A.2d 914 (1994).

At the close of evidence, the defendant submitted the following written request to charge: “Fingerprint evidence, standing alone, is not sufficient to sustain a conviction of the crime charged. In addition to the evidence of a palm print of the defendant on the bathtub, you must also find that the print could only be placed there when the crime was committed. State v. Payne, 186 Conn. 179, [182, 440 A.2d 280] (1982); State v. Thorpe, 188 Conn. 645, [648, 453 A.2d 88] (1982); State v. Manley, 195 Conn. 567, [585, 489 A.2d 1024] (1985).”

The trial court declined to instruct the jury as the defendant requested and, instead, provided its own instruction concerning the palm print evidence. The trial court instructed the jury in part as follows: “A conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could have been made only at the time the crime was committed, which is what the state claims it has proven in this case. Therefore, if you conclude that the state has shown the defendant left his palm print on an incriminating object, in this case the bathtub in [the victim’s] bathroom, and that the only reasonable explanation for the presence of that print is that the defendant placed it there while he was in the house committing the crimes charged, then you must find the defendant guilty. If you find that the evidence reasonably fails to prove to you that the print was— left by the defendant during the commission of the crimes, then you must find the defendant not guilty.” The defendant took an exception to the charge.

The defendant claims that the trial court’s instructions on the issue of fingerprint evidence was an incorrect statement of the law and insufficient to properly guide the jury. In comparing the defendant’s request to charge with that given by the trial court, however, it is apparent that the essence of the request was given, albeit not in the precise language submitted by the defendant. The challenged instruction was more detailed and specific than the defendant’s request, but nevertheless contained a correct statement of the law. “[A]ny semantical discrepancy between the instruction as given and the rule as stated in both State v. Payne, supra, [186 Conn. 179] and State v. Thorpe, supra, [188 Conn. 645] cannot be considered reversible error.” State v. Manley, supra, 195 Conn. 585.

In light of the trial court’s instruction as a whole, we conclude that the charge given by the trial court was correct in law and sufficiently guided the jury on the issues presented at trial. Skrzypiec v. Noonan, 228 Conn. 1, 18, 633 A.2d 716 (1993); Hall v. Burns, 213 Conn. 446, 482, 569 A.2d 10 (1990).

B

The trial court further instructed the jury that “[t]here was testimony from Detective Stephenson that he found three knives in the defendant’s car about two weeks after the incident [at the victim’s] home. There was no evidence which directly established that any one of those knives was the knife used by the intruder. However, evidence indicating that a defendant possessed an article, a knife, with which the particular crimes charged may have been accomplished, is generally relevant to show that the defendant had the means to commit the crime. The weight you choose to give this evidence is up to you. And you should consider in evaluating that evidence that the knives were not found in the car until two weeks after the incident on June 23, 1986.” The defendant properly excepted to this charge.

The defendant argues that the charge as given was contrary to law because it failed to mention that the state must establish some link between the evidence seized and the crime committed in order for the evidence to be admitted. He contends that no permissible inference could have been drawn by the jury with respect to the three knives.

Because the testimony concerning the knives was improperly admitted into evidence, the instruction concerning the knives was also improper. “We have recognized [however] that an erroneous charge is not always harmfiil.” State v. McDonough, 205 Conn. 352, 356, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988); State v. Rivera, 24 Conn. App. 670, 677, 591 A.2d 440, cert. denied, 219 Conn. 914, 583 A.2d 139 (1991). The test for harmfulness is whether there is a reasonable possibility that the improper instruction contributed to the conviction. State v. Hoeplinger, 206 Conn. 278, 294, 537 A.2d 1010 (1988); State v. Shifflett, 199 Conn. 718, 751-52, 508 A.2d 748 (1986). There was substantial circumstantial evidence in this case demonstrating that the defendant was the perpetrator of the crimes charged. In light of this, we conclude that the improper instruction concerning the knives did not affect the jury verdict.

Ill

The defendant’s last claim is that the evidence introduced at trial was insufficient for a jury to conclude that he was at the victim’s apartment when the crimes were committed. At the conclusion of the state’s casein-chief, the defendant moved for a judgment of acquittal, claiming that the evidence of his partial palm print found inside the victim’s bathtub was not sufficient to sustain a conviction. The trial court denied the motion. After the verdict, the defendant again made a motion for judgment of acquittal on the same grounds, which was also denied.

“We employ a two part test in reviewing claims relating to the sufficiency of the evidence. State v. Young, 29 Conn. App. 754, 767, 618 A.2d 65 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287 (1993); State v. Cruz, 28 Conn. App. 575, 578, 611 A.2d 457 (1992). We first construe the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Young, supra [767]; State v. Cruz, supra [578]. We then determine whether, from the evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Young, supra [767]; see also State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993); State v. Baldwin, 224 Conn. 347, 368, 618 A.2d 513 (1993); State v. Crosswell, 223 Conn. 243, 249, 612 A.2d 1174 (1992).” (Internal quotation marks omitted.) State v. Ash, 33 Conn. App. 782, 787, 638 A.2d 633 (1994). The probative force of the evidence is not diminished if it consists in whole or in part of circumstantial evidence rather than direct evidence. State v. Sommerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993). It is not one fact, but the cumulative impact of a multitude of facts that establishes guilt in a case involving substantial circumstantial evidence. State v. Sinclair, supra, 576.

“[A] conviction may not stand on fingerprint evidence alone unless the prints were found under such circumstances that they could only have been impressed at the time the crime was perpetrated.” State v. Santangelo, 205 Conn. 578, 598, 534 A.2d 1175 (1987); State v. Payne, 186 Conn. 179, 182, 440 A.2d 280 (1982). “[Wjhere a conviction rests solely on fingerprint evidence, the proof must demonstrate not only that at some time the defendant . . . touched objects found at the scene of the crime, but also that the objects were generally inaccessible to the defendant . . . and that therefore the objects were probably touched during the commission of the crime.” (Internal quotation marks omitted.) (State v. Thorpe, supra, 188 Conn. 648, quoting United States v. Jones, 433 F.2d 1107, 1108-1109 n.10 (D.C. Cir. 1970).

The defendant contends that his palm print could have been left on the bathtub after the crimes were committed, during the time period when the victim ran out of her apartment and the police arrived. The victim estimated that she was attacked between 2:30 and 3 a.m., and that she hid under her father’s car “for quite a while” before flagging down a passing truck. The police arrived on the scene at 4:17 a.m. The defendant posits that since the victim left her front door unlocked when she fled, it is reasonable to presume that he could have entered her apartment after her departure and before the police arrived at the scene, and left his palm print on the inside of her bathtub.

The defendant’s reliance on State v. Mayell, 163 Conn. 419, 311 A.2d 60 (1972), is misplaced. In Mayell, our Supreme Court reversed a conviction based primarily on fingerprint evidence. The court noted that the fact that the defendant’s fingerprints were found on the rearview mirror of the vehicle used in a robbery had no probative force because the defendant was regularly employed to drive the vehicle and was rightfully in it six hours before the crime was committed. Id., 426. Here, in contrast, the defendant’s palm print was lifted from the interior of the victim’s bathtub, a permanent fixture in her private residence, inaccessible to members of the general public. The victim testified that she lived alone and was the only person who used the bathtub. In addition, she testified that she did not know the defendant and had never given him permission to enter her apartment.

Despite the defendant’s contention to the contrary, there is substantial evidence from which the jury reasonably could conclude that the defendant’s palm print was not impressed on the bathtub at a time other than during the commission of the crimes. The victim testified that before retiring to bed on the evening of June 22,1986, she locked all of her doors and left her bathroom window open a few inches. When the police arrived after the attack, they discovered that the bathroom window was open wider than the victim had left it. A partial palm print, identified as the defendant’s, was lifted from the victim’s bathtub. The location of the print indicated that it was placed there from the inside of the tub, consistent with someone’s entering through the bathroom window directly above the tub.

Here, the evidence could reasonably have led the jury to exclude the hypothesis that the defendant’s palm print was placed on the bathtub at a time other than during the perpetration of the crime. Accordingly, the evidence against the defendant was sufficient to sustain the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-101 (a) provides in pertinent part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with ... a deadly weapon or dangerous instrument . . . .”

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

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

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