author: HENNESSY, J.

text:
    AVON MEADOW CONDOMINIUM ASSOCIATION, INC., ET AL. v. BANK OF BOSTON CONNECTICUT
    (AC 17267)
    Foti, Hennessy and Kulawiz, Js.

      Argued June 4
    officially released October 13, 1998

      Richard P. Weinstein, with whom, on the brief, were Nathan A. Schatz and Gail P. Ferris, for the appellants (plaintiffs).

      BenM. Krowicki, with whom was Ann M. Siczewicz, for the appellee (defendant).
   Opinion

HENNESSY, J.

The plaintiffs, Avon Meadow Condominium Association, Inc., and the owners of condominiums in the complex known as Avon Meadows, appeal from the summary judgment rendered in favor of the defendant, Bank of Boston Connecticut. At trial, the plaintiffs sought to recover damages, as third party beneficiaries, for expenses incurred and losses sustained as a result of the alleged breach by the defendant’s predecessor, Colonial Bank (Colonial) of a contract between Colonial and Avon Meadow Associates (developer). The plaintiffs claim that the trial court improperly applied the statute of limitations to each of the three counts of the complaint.

More specifically, the plaintiffs argue that (1) the three year statute of limitations, General Statutes § 52-581, does not apply to an agreement where the evidence tends to show that writings existed showing that the defendant had acknowledged the contract and where the contract sued upon was no longer executory, (2) the trial court improperly applied the three year statute of limitations to the common-law tort claim of misrepresentation, where it was not alleged by the defendant, and (3) the trial court improperly applied a three year statute of limitations, General Statutes § 42-1 lOg (f), to the third count of the complaint, which alleged a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., where it was not specifically pleaded by the defendant. We reverse the judgment in part.

The trial court found the following facts. Colonial loaned money to the developer for the construction and development of a commercial condominium project. The developer defaulted on its payments to Colonial, which then filed an action to recover on the note. The jury in the note action found that Colonial had breached an oral agreement with the developer to fund the project to completion and that the developer had released Colonial from any claims it had against it, including those stemming from the breach of the oral contract.

The plaintiffs’ purchase of the condominium units from the developer forms the basis of their claims against the defendant. The plaintiffs, predicating their claims on their status as third party beneficiaries, instituted this action seeking damages for losses allegedly incurred as a result of Colonial’s breach of its oral agreement with the developer.

The plaintiffs, in a three count complaint, claimed the following: In count one, that Colonial had breached its contract with the developer by refusing to fund the condominium project to completion; in count two, that Colonial had misrepresented the state of its financial condition in that it did not have sufficient funds to meet its lending commitments to existing customers, including the developer, and refused to continue construction lending as a matter of corporate policy; and, in count three, that Colonial had violated CUTPA.

The defendant raised the following special defenses: (1) that the plaintiffs are collaterally estopped to make claims based upon the alleged oral contract; (2) that the plaintiffs’ claims were released in a forbearance agreement signed by their predecessor in interest; (3) that the claims are barred by the doctrine of res judicata; (4) the claims are barred by the statutes of limitation; and (5) that the plaintiffs waived all claims because they entered into a prior agreement with the defendant.

On September 18, 1995, the defendant filed a motion for summary judgment to which the plaintiffs filed an opposition motion on September 20, 1995. On March 18,1997, the trial court granted the defendant’s motion for summary judgment, finding that counts one and two of the plaintiffs’ complaint are subject to the three year statute of limitations set out in General Statutes §§ 52-581 and 52-577, respectively, and that count three is subject to the three year statute of limitations set forth in § 42-1 lOg (f).

On April 2, 1997, the plaintiffs filed a motion to rear-gue, which was granted. On April 14, 1997, the trial court heard reargument and, on May 12, 1997, denied the plaintiffs’ request to reconsider the granting of the defendant’s motion for summary judgment as to all counts.

We note that our standard of review on appeal following a trial court’s grant of summary judgment is well established and is set forth in Practice Book § 17-49. “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5, 698 A.2d 795 (1997); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). “The test is whether a party would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, [247], 571 A.2d 116 (1990).” (Internal quotation marks omitted.) Beebe v. East Haddam, 48 Conn. App. 60, 64, 708 A.2d 231 (1998).

“A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985).” (Internal quotation marks omitted.) Beebe v. East Haddam, supra, 48 Conn. App. 64.

On appeal, “[w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292, 596 A.2d 414 (1991).” (Internal quotation marks omitted.) Connecticut National Bank v. Rytman, 241 Conn. 24, 37, 694 A.2d 1246 (1997).

I

The first count of the plaintiffs’ April 19, 1994 amended revised complaint alleges that the parties entered into an agreement in which the defendant agreed to finance the construction and development of the condominium project. The plaintiffs argue that the defendant breached that agreement in 1990 when it “failed, neglected and refused to complete the construction financing.” The sole claim of the plaintiffs is that certain expenses were incurred and losses sustained as a result of “the breach of the defendant’s obligation to complete the funding.”

The defendant’s April 12, 1995 amended answer to the revised complaint stated the following under its fourth special defense: “Paragraphs 4, 6, and 8 of Plaintiffs’ Revised Complaint, dated April 19, 1994, make reference to an alleged oral contract between [the developer] and [the defendant]. Pursuant to General Statutes § 52-581, ‘No action founded upon any express contract or agreement which is not reduced to writing . . . shall be brought but within three years after the right of action accrues.’ . . . The above-captioned action was not brought within three years after any alleged right of action under the Alleged Oral Contract accrued. Plaintiffs claims are, therefore, barred by the applicable statutes of limitations.”

On September 18, 1995, the defendant moved for summary judgment, arguing that no genuine issues of material fact existed and that because the plaintiffs’ claims were barred by the statute of limitations, it was entitled to judgment as a matter of law. On September 20,1995, the plaintiffs filed an opposition to the motion for summary judgment. In their opposition, the plaintiffs argued that the defendant failed to plead the applicable statute of limitations, which applies to a written contract, and that the motion should be denied on those grounds.

On March 18,1997, the trial court issued its memorandum of decision in which it characterized the plaintiffs’ complaint as “breach of an oral construction financing agreement between [the developer] and [the defendant].” Thereafter, the trial court dismissed the first count as untimely filed, relying on § 52-581.

On April 2, 1997, the plaintiffs filed a motion for reargument and reconsideration in which they asserted that they are entitled to a determination of whether the contract was written or oral; see Practice Book § 64-1, formerly § 4059; as they had raised that in their opposition to the defendant’s motion for summary judgment pursuant to § 52-581. The plaintiffs argued that they claimed that a written contract existed. Although this claim was extensively briefed and evidence was produced to support it, the trial court made no determination on this issue; rather, it took as true the defendant’s assertion that the contract was oral.

The trial court granted reconsideration but denied the relief requested. In a memorandum of decision filed on May 12, 1997, the trial court reviewed the plaintiffs’ claim, which was, in the trial court’s words, “whether the multiple writings in this case support a conclusion that the six year statute of limitations” applies. The trial court found that the writings were insufficient to support the conclusion that a written contract was formed and that “the court assumes there was an oral contract. What the plaintiffs have failed to prove by affidavit and documentation is what the contract provided.”

Under the facts of this case, we cannot say that the trial court properly granted the defendant’s motion for summary judgment as to count one. For the trial court to conclude that the plaintiffs’ action was barred by the statute of limitations, it had to determine two things: First, whether a contract existed and, second, whether the contract was oral or written.

“The existence of a contract is a question of fact to be determined by the trier on the basis of all of the evidence. ”Fortier v. Newington Group, Inc., 30 Conn. App. 505, 509, 620 A.2d 1321, cert. denied, 225 Conn. 922, 625 A.2d 823 (1993). Further, the determination of whether a contract is oral or written is also a question of fact. See Union Trust Co. v. Jackson, 42 Conn. App. 413, 419, 679 A.2d 421 (1996) (“question of whether the parties had an oral contract is material, if, and only if, atrier of fact were to find that there was an oral agreement”).

A motion for summary judgment is properly granted only where no genuine issue of fact exists. Here, that is not the case. The first count of the plaintiffs’ complaint was not vulnerable to the statute of limitations defense because it was brought within the outer limit of six years for a contract claim. “In passing on a defendant’s motion for summary judgment, the trial court is limited to deciding whether an issue of fact exists, but in passing on that motion it cannot try that issue if it does exist.” (Emphasis added.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). We find that the trial court acknowledged that there was a factual dispute as to the existence of a contract and, therefore, improperly dismissed count one of the plaintiffs’ complaint.

II

The plaintiffs next claim that the trial court improperly applied § 52-577, a three year statute of limitations, to the misrepresentation claim alleged in count two of the amended complaint. They argue that the wording of the defendant’s fourth special defense did not plead the statute of limitations as to the tort claim of misrepresentation and, therefore, the statute of limitations cannot be applied to the plaintiffs’ misrepresentation count. We agree.

At oral argument before this court, the defendant made two arguments. The first was that because the special defense of the statute of limitations as to the misrepresentation claim was clearly set forth in its original answer and special defenses to the plaintiffs’ original complaint, it carried over and became part of the amended answer. The defendant’s second argument asserted that the wording in the amended special defense was sufficient to raise the statute of limitations as applied to the count of misrepresentation.

As to the defendant’s first claim, it cites no case law, statute or rule of practice in support of its argument. Moreover, our research did not discover any that supports this proposition. To the contrary, “if the amended special defenses are merely an attempt to correct defects in the original answer and special defenses, the amended answer serves to displace the answer that was stricken, and any right to appeal the stricken answer is waived.” Great Country Bank v. Pastore, 241 Conn. 423, 434, 696 A.2d 1254 (1997). We therefore reject this argument.

The defendant’s alternative argument asserts that the wording of the special defense contained in its answer to the revised complaint is sufficient to raise the defense of the statute of limitations. A review of this pleading, set forth in footnote 9, convinces us that the special defense pertains to count one of the plaintiffs’ complaint, not count two. We find that because the defendant cited § 52-581, which pertains to contracts exclusively, it did not plead § 52-577. Moreover, there is no reference made to § 52-577, which applies to actions sounding in tort.

Practice Book § 10-3 (a) provides that “[w]hen any claim made . . . in a . . . special defense ... or other pleading is grounded on a statute, the statute shall be specifically identified by its number.” (Emphasis added.) We find that the defendant failed to follow that rule of practice and to make reference to the misrepresentation count in its fourth special defense. We conclude that the defendant failed to plead the defense of the statute of limitations to the second count of the plaintiffs’ revised complaint.

Our inquiry does not end upon concluding that the defendant failed to plead the special defense as to the tort claim. “The general rule is that where the right of action exists independently of the statute in which the limitation is found, such a statutory bar is considered personal and procedural, and it is deemed waived unless it is specially pleaded.” Orticelli v. Powers, 197 Conn. 9, 15, 495 A.2d 1023 (1985). “Applying this [rule] to the present case leads to the conclusion that General Statutes § 52-577 is procedural, not jurisdictional, and thus may be waived.” Orticelli v. Powers, supra, 16. By not specifically pleading the statute of limitations in its special defense, the defendant waived its right to have the statute of limitations considered by the trial court.

We conclude that given the pleadings before it, the trial court improperly applied the special defense of the statute of limitations to the second count of the plaintiffs’ amended complaint. We reverse the judgment of the trial court as to the second count of the complaint.

III

The plaintiffs finally claim that the trial court improperly applied the three year statute of limitations as set forth in § 42-1 lOg (f) to the third count of the amended complaint, which alleged a violation of CUTPA. We do not agree.

Our Supreme Court has addressed this issue in Ecker v. West Hartford, 205 Conn. 219, 231-33, 530 A.2d 1056 (1987): “In deciding whether a time limitation contained within a statute is subject to waiver, we must determine whether the limitation is substantive or procedural in nature. See Moore v. McNamara, 201 Conn. 16, 22-23, 513 A.2d 660 (1986); Orticelli v. Powers, [supra, 197 Conn. 15]. ‘“A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971).” Collucci v. Sears, Roebuck & Co., 585 F. Sup. 529, 532 (D. Conn. 1984).’ Moore v. McNamara, supra, 22. Where the limitation is deemed procedural and personal it is subject to being waived unless it is specifically pleaded because the limitation is considered merely to act as a bar to a remedy otherwise available. See Moore v. McNamara, supra [22]; Orticelli v. Powers, supra [15]; L. G. DeFelice & Son, Inc. v. Wethersfield, 167 Conn. 509, 511, 356 A.2d 144 (1975); Hillier v. East Hartford, 167 Conn. 100, 106, 355 A.2d 1 (1974).

“Where, however, a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. See Moore v. McNamara, supra [201 Conn. 22-23]; Orticelli v. Powers, supra [197 Conn. 15]; L. G. DeFel-ice & Son, Inc. v. Wethersfield, supra [167 Conn. 511]; Hillier v. East Hartford, supra [167 Conn. 106]; Diamond National Corporation v. Dwelle, 164 Conn. 540, 547, 325 A.2d 259 (1973). In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone. Vecchio v. Sewer Authority, 176 Conn. 497, [504], 408 A.2d 254 (1979); see American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 224, 384 A.2d 378 (1978); Hillier v. East Hartford, supra [106]; DeMartino v. Siemon, [90 Conn. 527, 528-29, 97 A. 765 (1916)]; Cofrancesco v. Smith, [29 Conn. Sup. 139, 141-42, 275 A.2d 608 (1971)]; 22 Am. Jur. 2d 633, Death § 35. The courts of Connecticut have repeatedly held that, under such circumstances, the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived. See Moore v. McNamara, supra, 23; Orticelli v. Powers, supra [15]; American Masons’ Supply Co. v. F. W. Brown Co., supra [224]; L. G. DeFel-ice & Son, Inc. v. Wethersfield, supra [511]; Diamond National Corporation v. Dwelle, supra [547]; Wilburn v. Mount Sinai Medical Center, 3 Conn. App. 284, 288, 487 A.2d 568 (1985).” (Emphasis added.)

Accordingly, we hold that the three year limitation contained in § 42-1 lOg (f) is jurisdictional and was properly applied by the trial court to the third count.

Our holding that the trial court improperly applied the statute of limitations to the first and second count of the plaintiffs’ amended complaint requires that the matter be remanded to the trial court, that the summary judgment be vacated and that a trial be afforded to the plaintiffs on the contract and misrepresentation counts.

The judgment is reversed as to the first and second counts of the plaintiffs’ complaint and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff owners are Avon Meadow Real Estate Associates, Remed Associates, LSGE Realty and Continental Real Estate Holdings, Inc.

       The plaintiffs purchased the condominium units from the developer; this ownership forms the basis of their claims. The developer was not a party in the underlying action and is not a party in this appeal.

       Several of these special defenses were predicated on the fact that a prior action, Bank of Boston Connecticut v. Avon Meadow Associates, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 0702045 (November 27, 1991), barred further litigation. The trial court did not consider these special defenses and, therefore, this opinion does not make a conclusion as to their correctness because they are not properly before us. We note, however, that the record does reveal the following. In its March 18, 1997 memorandum of decision, the trial court makes note of the prior litigation, in particular the jury’s finding that the bank had entered into and breached an oral agreement with the developer to fund the project to completion, and from that point forward refers to the contract as an “oral construction financing agreement.” Despite this adoption of the jury’s finding that an oral contract existed, in its memorandum of decision on the motion to reargue, the trial court states that it “assumes that there was an oral contract.” On the basis of these inconsistencies, we conclude that the trial court did not make a finding regarding the impact of the prior litigation on these proceedings, specifically whether the jury finding that an oral contract existed precluded litigation on that matter.

       The amount of time that passed between the filing of the motion and the decision by the trial court to grant it was due in part to the reassignment of the case to another judge. Oral argument on the motion was originally heard by the court, Sheldon, J., on September 22,1995. Thereafter, the case was transferred to O’Neill, J., who granted the motion on March 18, 1997.

       The trial court found that the cause of action accrued on May 1, 1990, and that suit was brought January 27, 1994.

       Practice Book § 17-49 provides: “The judgment sought 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.”

       We note that the plaintiffs did not refer to the agreement between the two parties as an oral agreement; that was interjected by the defendant.

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

       The defendant’s fourth special defense is as follows: “1. Paragraph 1 of the First Special Defense (pertaining to an alleged oral contract) is hereby made Paragraph 1 of this Fourth Special Defense as if more fully stated herein.
      “2. Pursuant to Conn. Gen. Stat. § 52-581, ‘No action founded upon any express contract or agreement which is not reduced to writing, or of which some note or memorandum is not made in writing and signed by the party to be charged therewith or his agent, shall be brought but within three years after the right of action accrues.’

        “3. Principals of the Plaintiff Avon Meadow Condominium Association have alleged that [the defendant] breached its obligation under the Alleged Oral Contract on or about June of 1990.
      “4. The above captioned action was not brought within three years after any alleged right of action under the Alleged Oral Contract accrued.
      “5. Plaintiffs’ claims are, therefore, barred by the applicable statute of limitations.”

       We also note that the trial court’s application of the statute of limitations to the tort count sua sponte is improper. The same reasoning applies as is stated above. The limitation acts as a bar to a remedy otherwise available. Orticelli v. Powers, supra, 197 Conn. 15. The plaintiffs’ claim that the statute of limitations was tolled by virtue of some “continuing course of conduct by the defendant” need not be addressed in light of our holding that the statute of limitations does not apply to the second count of the plaintiffs’ amended complaint.

       General Statutes § 42-1 lOg (f) provides: “An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    GENERAL ACCIDENT INSURANCE COMPANY OF AMERICA v. POWERS, BOLLES, HOULIHAN AND HARTLINE, INC.
    (AC 17345)
    O’Connell, C. J., and Lavery and Schaller, Js.
    Argued March 23
    officially released October 13, 1998

      Daniel P. Scapellati, with whom, on the brief, was Joseph T. Sweeney, for the appellant (defendant).

      William F. Corrigan, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

This appeal arises out of proceedings in the trial court following our decision in General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 38 Conn. App. 290, 660 A.2d 369, cert. denied, 235 Conn. 904, 665 A.2d 901 (1995). The defendant, Powers, Bolles, Houlihan and Hartline, Inc., appeals from the judgment of the trial court rendered in favor of the plaintiff, General Accident Insurance Company of America (General Accident), in the amount of $105,904.

On appeal, the defendant claims that the trial court improperly (1) concluded that its insurance application was deficient as a matter of law for the purpose of electing a lesser amount of uninsrired-underinsured motorist coverage, and (2) failed to hold that the proper measure of damages was the difference between the premium that was actually charged to the policyholder for the coverage and the premium that would have been charged for the higher amount of coverage. We reverse the judgment of the trial court.

The following relevant facts and procedural history are recited in General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., supra, 38 Conn. App. 290. “On January 19, 1990, the plaintiff and the defendant were parties to an insurance agency agreement. At that time, the defendant processed an application from Barbara Zakrzewski to the plaintiff, requesting automobile insurance for each of two automobiles owned by Zakrzewski. The application form utilized by the plaintiff was entitled the ‘Acord Personal Automobile Application.’ This form was completed by the defendant and signed by Zakrzewski. It requested $100,000 of liability coverage and $40,000 of uninsured-underinsured motorist coverage for each of her two automobiles. At the time of Zakrzewski’s application for automobile insurance, General Statutes (Rev. to 1989) § 38-175c (now § 38a-336) required that every automobile liability insurance policy ‘issued or renewed on and after July 1, 1984’ was to have uninsured motorist coverage equal to the liability coverage of the policy ‘unless the insured requests in writing a lesser amount.’

“On July 19, 1990, Zakrzewski’s son, John Sliwka, was seriously injured in a motor vehicle accident when the car in which he was a passenger went off the road and overturned. Sliwka filed a claim against the operator’s insurance carrier, which paid its policy limit of $20,000. Sliwka then filed a claim against the plaintiff for underinsured motorist coverage under Zakrzewski’s policy. Sliwka alleged that there had been no written request by Zakrzewski for uninsured-underinsured motorist coverage in an amount less than the liability coverage, as required under § 38a-336. Because the policy provided for $100,000 of liability coverage, Sliwka filed a claim based on $100,000 of uninsured-underin-sured motorist coverage for each of two vehicles. Sliw-ka’s claim was for $180,000.®

“After determining that the Acord application signed by Zakrzewski did not fulfill the statutory requirement of a written request for a lower limit of uninsured-underinsured motorist coverage, the plaintiff concluded that it owed Sliwka up to $200,000 in uninsured-underin-sured motorist coverage. The plaintiff subsequently settled the claim with Sliwka for $160,904.

“Thereafter, the plaintiff filed a two count complaint against the defendant, alleging both breach of contract and negligence. The plaintiff alleged that the defendant was liable for failing to obtain a written request from Zakrzewski for unmsured-underinsured motorist coverage in an amount less than the liability coverage. The plaintiff claimed damages of $105,530, the amount by which the plaintiffs payment to Sliwka exceeded the intended coverage under the policy.

“The focal point of the evidence during trial was the Acord application form, which had been filled out by the defendant and signed by Zakrzewski on January 19, 1990. The primary liability issue was whether that Acord application satisfied the written request requirement imposed by § 38a-336. The defendant conceded that it had a duty to obtain a sufficient written request to comply with the statute, but it argued that the Acord application satisfied that statutory requirement. The plaintiff argued that the Acord application did not satisfy the statute and that the defendant should have utilized a separate, supplemental application form which the plaintiff had prescribed. The jury returned a verdict in favor of the plaintiff on the breach of contract count, awarding $20 in damages, and in favor of the defendant on the negligence count. The verdict was accepted and recorded on September 21,1993.” General Accident Ins. Co. of America v. Powers, Bolles, Houli-han & Hartline, Inc., supra, 38 Conn. App. 291-94.

Both parties appealed to this court, claiming that the trial court improperly instructed the jury. We determined in the first appeal that the trial court’s charge with respect to § 38a-336 was inadequate to guide the jury on issues of fact and impermissibly forced the jury to decide a material question of law. Id., 298. We remanded the case for a new trial. Id. Thereafter, the parties submitted the case to the trial court, first, for a determination of liability on the basis of summary judgment and, second, for a determination of the appropriate measure of damages if liability was found. The trial court granted summary judgment in favor of the plaintiff as to liability. Subsequently, the trial court directed the jury to return a verdict in favor of the plaintiff in the amount of $105,904. Additional relevant facts will be recited where necessary.

The defendant claims that the trial court, in ruling on the parties’ cross motions for summary judgment, improperly concluded that the Acord application was deficient as a matter of law for the purpose of electing a lesser amount of uninsured motorist coverage. The defendant argues that the trial court improperly interpreted the following phrase in General Statutes § 38a-336: “unless the insured requests in writing a lesser amount.” The defendant argues that the trial court, after concluding that the phrase was unambiguous, improperly went on to consider the legislative history of the statute and to consider as “clarification” the elaborate new requirements contained in § 2 of No. 93-297 of the 1993 Public Acts (P.A. 93-297), which was enacted subsequent to the transactions that occurred in this case. The defendant contends that in so doing, the trial court ignored the plain language of the statute in determining that the Acord Personal Automobile Application was deficient as a matter of law for the purpose of electing a lesser amount of uninsured-underin-sured coverage.

The plaintiff argues that the trial court properly considered the legislative history of § 38a-336 and the language of P.A. 93-297 in determining that the Acord application did not constitute a request in writing for lesser coverage.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established.” Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 402, 528 A.2d 805 (1987). Practice Book § 17-49, formerly § 384, requires that “[t]he judgment sought 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.” “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A motion for summary judgment “is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” Perille v. Raybestos-Manhat-tan-Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985). Because this appeal involves questions of statutory construction, it presents a question of law, which we review de novo. Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995).

In addressing the issues in this case, we are initially guided by well defined principles of statutory interpretation. The court’s “fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Edelstein v. Dept. of Public Health & Addiction Services, 240 Conn. 658, 664, 692 A.2d 803 (1997), quoting State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). Moreover, principles of statutory construction require the court to construe a statute in a manner that will not frustrate its intended purpose or lead to an absurd result. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). The court “must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” Id., 713. “When ... we are confronted with ambiguity in a statute, we look to its legislative history, its language, the purpose it is to serve, and the circumstances surrounding its enactment to determine the legislative intent. Verrastro v. Sivertsen, 188 Conn. 213, 221, 448 A.2d 1344 (1982).” (Internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Pasión, 219 Conn. 764, 769, 594 A.2d 468 (1991). “Where the legislative intent is clear there is no room for statutory construction.” (Internal quotation marks omitted.) Kelemen v. Rimrock Corp., 207 Conn. 599, 606, 542 A.2d 720 (1988). “[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, [54], 523 A.2d 477 (1987).” American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987).

The trial court determined that application of the principles of statutory interpretation to the phrase “requests in writing a lesser amount” required “a finding that the legislature intended to require a more exacting writing [than] an insurance application, filled out by the insurance agent, signed by the insured, containing no conspicuous notice of the insured’s right to the statutory amount of coverage or specified alternatives, or of the effect of making the election.” The trial court found that the phrase was unambiguous and that “the words themselves express the intent of the legislature.” The trial court reached its conclusion primarily based on its interpretation of the common usage of the terms in the phrase in question. In addition, however, the trial court went on to examine P.A. 93-297 and determined that the public act clarified the earlier law. As we have noted, P.A. 93-297 enacted specific requirements including the signing of an informed consent form before an insured’s election of a lesser amount of insurance coverage would be effective.

We believe that the trial court was correct in concluding that the phrase “requests in writing a lesser amount” is unambiguous and that accordingly, resort to legislative history is unnecessary. According to the plain meaning of the statute, the requirement is fully satisfied by the written application for insurance that was signed by the insured. The plaintiff notes in its brief that “[t]he application signed by Ms. Zakrzewski requested $100,000 liability and $40,000 uninsured motorist/under-insured motorist coverage for each of two automobiles.” That statement plainly indicates the plaintiffs acknowledgement that Zakrzewski requested in writing an amount of uninsured motorist coverage in a lesser amount than the liability coverage. There is no requirement that the plaintiff personally produce the writing. That requirement is satisfied by the Acord application. The Acord application includes reference to both the greater amount of liability coverage and the lesser amount of uninsured coverage. The difference is unmistakable. There was no requirement at the time of the insured’s application that the writing must specifically use the term “lesser” in requesting the uninsured coverage. The difference in amounts of coverage requested informs the insured that the uninsured coverage was requested in a lesser amount than the liability coverage. Thus, the plain language of the statute is satisfied. Section 38a-336 required nothing further of the insured in order effectively to waive the uninsured coverage in an amount equal to the liability coverage.

The trial court stated that “[t]here is no evidence in the writing that the alleged election to purchase less uninsured motorist coverage than the statute would have prescribed was informed, conscious or reflective.” The language of § 38a-336 provided no requirement that the writing contain such evidence. The statute required only that the insured “requests in writing a lesser amount.” We note, however, that the trial court had in its possession, when it ruled on the summary judgment motions, undisputed evidence in the affidavit of Arthur B. Powers, an officer of the defendant, stating facts to support a determination that the insured’s decision was informed, conscious and reflective.

Our analysis of the statutory language of § 38a-336 is in accord with the line of cases decided by our Supreme Court governing this subject. See Harlach v. Metropolitan Properly & Liability Ins. Co., 221 Conn. 185, 602 A.2d 1007 (1992); Nationwide Mutual Ins. Co. v. Pasion, supra, 219 Conn. 764; Travelers Indemnity Co. v. Malec, 215 Conn. 399, 576 A.2d 485 (1990). In Malee, the Supreme Court, addressing § 38-175c, now § 38a-336, stated: “We have no doubt that the General Assembly contemplated that an insured should make a purposeful and knowing decision to request a lesser amount of [uninsured motorist] coverage.” Travelers Indemnity Co. v. Malee, supra, 403. The court examined the legislative history in the course of concluding that the insured’s rejection in that case did not satisfy the statutory requirement because it was a past, not present, rejection of the coverage. Id., 402-404. The court, in referring to the statutory language “unless the insured requests in writing a lesser amount,” did not hold that any specific language or procedure was necessary in order to constitute an effective request. Id., 404.

In Harlach, which upheld an election of lesser coverage pursuant to § 38-175c, now § 38a-336, our Supreme Court stated: “Although the word ‘waiver’ nowhere appears in the statute, even if we assume, arguendo, that the waiver doctrine was applicable to the circumstances here, application of its principles would not support the plaintiffs position. ‘Waiver is the voluntary relinquishment of a known right. It involves the idea of assent, and assent is an act of understanding. This presupposes that the person to be affected has knowledge of his rights, but does not wish to assert them. Intention to relinquish must appear, but acts and conduct . . . inconsistent with intention to terminate the contract are sufficient. The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct.’ . . . MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 547-48, 173 A. 783 (1934). ‘In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy.’ Jenkins v. Indemnity Ins. Co., 152 Conn. 249, 257-58, 205 A.2d 780 (1964). The plaintiff knew that he was selecting less coverage than that to which he was entitled. The notice made it very clear that increased amounts of coverage were available at a higher premium and that an election to accept less would reduce both the amount of coverage and the policy premium.” Harlach v. Metropolitan Property & Liability Ins. Co., supra, 221 Conn. 192-93.

Finally, in Nationwide Mutual Ins. Co., supra, 219 Conn. 771, in deciding that the signature of one insured could not bind another, our Supreme Court referred to a “conscious choice” being necessary to elect lesser coverage. As in Malee, the court in Nationwide Mutual Ins. Co. did not prescribe any specific language as nec-essaiy for an insured to make the election effectively. Id., 770-71.

We turn next to the relevance, if any, to the present case of P.A. 93-297. There is no doubt that the legislature, in 1993, enacted more elaborate requirements for the insured’s waiver. The issue is whether that public act qualifies as an amendment that clarifies the language of § 38-175c at issue in this case. See Daly v. DelPonte, 225 Conn. 499, 511, 624 A.2d 876 (1993) (subsequent amendment to existing statute may clarify legislature’s original intent).

The guidelines for determining whether an amendment can be applied retroactively as a clarifying act are well known. “Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. See, e.g., State v. Magnano, 204 Conn. 259, 284, 528 A.2d 760 (1987). In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes § 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law.

. . . Thus, we have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. Coley v. Camden Associates , Inc., 243 Conn. 311, 316, 702 A.2d 1180 (1997). This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. In re Daniel H., 237 Conn. 364, 372, 678 A.2d 462 (1996); accord Bayusik v. Nationwide Mutual Ins. Co., 233 Conn. 474, 483-84, 659 A.2d 1188 (1995); Miano v. Thorne, 218 Conn. 170, 175, 588 A.2d 189 (1991). Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect. . . . Toise v. Rowe, 243 Conn. 623, 628, 707 A.2d 25 (1998). We generally look to the statutory language and the pertinent legislative histoiy to ascertain whether the legislature intended that the amendment be given retrospective effect. See, e.g., Reliance Ins. Co. v. American Casualty Co. of Reading, Pennsylvania, 238 Conn. 285, 290, 679 A.2d 925 (1996); Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 787, 657 A.2d 616 (1995).” (Internal quotation marks omitted.) Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 718-19, 714 A.2d 1209 (1998).

There is no doubt that P.A. 93-297 addresses the same subject matter as the statute that it was enacted to amend. That coincidence, however, does not mean that the later act was intended to clarify the earlier. The trial court construed P.A. 93-297 as a clarification of § 38a-336, and the plaintiff urges us to so construe the act. Neither the trial court nor the plaintiff, however, has offered any analysis of the pertinent factors necessary to support such a construction of the act. The plaintiff points to no judicial interpretation to which the legislature was responding. No controversies are cited that the act was supposedly designed to resolve. The legislative history pertaining to P.A. 93-297 makes no mention of whether the act was intended to clarify the language at issue in § 38a-336. There is no indication in the language of P.A. 93-297, its legislative history or the surrounding circumstances that the legislature intended the act to clarify the existing law. Rather than a clarification of existing law, in response to a controversy created by a judicial interpretation, P.A. 93-297 represents a decision by the legislature to change the law by adding elaborate and stringent requirements before an insured could be deemed to waive a lesser amount of uninsured motorist coverage. Colonial Penn Ins. Co. v. Bryant, supra, 245 Conn. 722-23 (P.A. 93-297 change, not clarification, of existing law with respect to whether any named insured may elect less uninsured motorist coverage on behalf of all insureds). In the absence of evidence that P.A. 93-297 was intended to clarify existing law, the newly created stringent requirements may not be applied retroactively to the facts of this case. The defendant’s conduct must be measured according to the language of the statute then in effect, General Statutes (Rev. to 1989) § 38-175c. On the basis of the plain language of that statute, we conclude that the Acord Personal Automobile Application signed by the insured fulfilled the statutory requirement of a request by the insured in writing for a lesser amount of uninsured motorist coverage. As a result, the trial court improperly rendered judgment in favor of the plaintiff.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       Our determination of the first issue on appeal malees resolution of this issue unnecessary.

       General Statutes (Rev. to 1989) § 38-175c (a) (2) provides in relevant part: “Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on and alter July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. . . .” Section 38-175 (a.) (2) was transferred without change to § 38a-336 (a) (2) in 1991. We refer in this opinion to the statute’s current designation, § 38a-336.

       This figure is the total of $100,000 of uninsured-underinsured motorist coverage for each of two vehicles. This was reduced by $20,000, which Sliwka received from the automobile operator’s insurance carrier.” General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., supra, 38 Conn. App. 292 n.3.

         The plaintiff claimed that the intended coverage under the policy was $55,000. The policy called for $40,000 of unmsured-underinsured motorist coverage for each of two vehicles, totaling $80,000. This was to be reduced by the $20,000 Sliwka received from the operator’s insurance carrier and $5000 in basic reparations paid, leaving a total of $55,000. The difference between the plaintiffs actual payment to Sliwka and $55,000 came to $105,530.

       “This supplemental form specifically dealt with uninsured-underinsured motorist coverage and options available to an insured.” General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., supra, 38 Conn. App. 293 n.5.

       “During the trial, the jury heard testimony from one of the plaintiffs employees that if Zakrzewski’s policy had provided $100,000 of uninsured motorist coverage per car, rather than the $40,000, the premium price would have been $20 higher than the premium price actually charged.” General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., supra, 38 Conn. App. 294 n.6.

       At the time of Zakrzewski’s application for automobile insurance, General Statutes (Rev. to 1989) § 38-I75c, now § 38a-336, required that every automobile liability insurance policy “issued or renewed on and after July 1, 1984” was to have uninsured motorist coverage equal to the liability coverage of the policy “unless the insured requests in writing a lesser amount.” It was not until almost four years later, in Public Acts 1993, No. 93-297, that the legislature imposed the more exacting standards to evidence an insured’s knowing waiver of the standard uninsured-underinsured coverages. See footnote 8.

       Number 93-297, § 1, of the 1993 Public Acts amended General Statutes (Rev. to 1993) § 38a-336 (a) (2) to provide: “Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after January 1, 1994, shall provide uninsured and underinsured motorist coverage with limits for bodily iqjury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless any named insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by any named insured. No such written request for a lesser amount shall be effective unless any named insured has signed an informed consent form which shall contain: (A) An explanation of uninsured and underinsured motorist insurance approved by the commissioner; (B) a list of uninsured and underinsured motorist coverage options available from the insurer; and (C) the premium cost for each of the coverage options available from the insurer. Such informed consent form shall contain a heading in twelve-point type and shall state: ‘WHEN YOU SIGN THIS FORM, YOU ARE CHOOSING A REDUCED PREMIUM, BUT YOU ARE ALSO CHOOSING NOT TO PURCHASE CERTAIN VALUABLE COVERAGE WHICH PROTECTS YOU AND YOUR FAMILY. IF YOU ARE UNCERTAIN ABOUT HOW THIS DECISION WILL AFFECT YOU, YOU SHOULD GET ADVICE FROM YOUR INSURANCE AGENT OR ANOTHER QUALIFIED ADVISOR.’ ”

       The effective date of the amendment is January 1, 1994.

       The plaintiff includes in its brief a portion of the legislative history of § 38a-336, namely, a statement by Senator Wayne A. Baker, a chairman of the committee on insurance and real estate. Senator Balter stated: “The insured would have an opportunity to waive in writing the additional uninsured motorist coverage.” 26 S. Proc., Pt. 9, 1983 Sess., p. 3055. liven if it were necessary to consider that statement, it does not reveal the legislative intent with any greater clarity than is expressed in the statutory language itself.

       Powers stated in his affidavit that he thoroughly discussed the coverages available to the insured, including the right to elect uninsured-underinsured coverage eqiial to the amount of the liability coverage, and that she made an informed choice in electing less coverage.


author: SPEAR, J. HENNESSY, J.,

text:
    STATE OF CONNECTICUT v. RONALD ALBERT
    (AC 15490)
    Schaller, Spear and Hennessy, Js.

      Argued March 24
    officially released October 13, 1998

      Suzanne Zitser, assistant public defender, with whom was Martin Zeldis, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, senior assistant state’s attorney, with whom were Anne F. Mahoney, deputy assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. The defendant’s principal claim is that penetration of the labia majora, as charged here, does not constitute sexual assault in the first degree because such penetration does not constitute “vaginal” intercourse as defined in General Statutes (Rev. to 1991) § 53a-65 (2). Consequently, the defendant asserts that the trial court (1) should have granted his motion for a judgment of acquittal because neither the allegation nor the evidence of penetration of the labia majora was sufficient to sustain his conviction, (2) improperly instructed the jury that penetration into the genital opening of the victim constituted vaginal intercourse and (3) improperly precluded cross-examination of the victim’s mother with respect to having been sexually molested herself and the victim’s therapist with respect to the mother’s disclosure of that fact to him. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2,1992, the defendant attended a picnic at Globe Hollow Pond in Manchester with the victim, N, age three, her mother, her father and her brother. N referred to the defendant, her godfather, as Uncle Ronnie. N testified that while she and the defendant were swimming, the defendant put his hand underneath N’s bathing suit and touched her “inside” her “crotch” with his index finger. The touching caused pain and N screamed. After N screamed, the defendant told her not to tell anyone about the touching. When N started crying, her father took her out of the water and brought her to her mother. While she was crying, N said “bad Uncle Ronnie” several times. Physical examinations by physicians shortly thereafter revealed two scrapes on the inside fold of the labia majora that were typical of recent sexual abuse.

The first count of the original information alleged that the defendant “penetrated the vagina” of the victim with his finger or fingers. During the trial, the state amended the first count of the information to allege that the defendant committed sexual assault by penetrating “the labia majora of the genitalia of a three (3) year old girl with his finger or fingers.” The jury returned a verdict of guilty on both counts of the information and, after denying the defendant’s motion for a judgment of acquittal, the trial court imposed sentence. This appeal followed.

I

A

The defendant’s principal contention is that the conviction cannot stand because § 53a-65 (2) defines sexual intercourse as, inter alia, “vaginal intercourse . ...” He asserts that the information does not charge, nor does the evidence prove, vaginal intercourse. Whether digital penetration that is alleged and proven to have occurred between the folds of the labia majora, but not into the vagina, constitutes vaginal sexual intercourse pursuant to § 53a-65 (2) presents a question of statutory construction.

The defendant claims that no interpretation is necessary because the clear wording of the statute requires that vaginal penetration be alleged and proven to support a conviction. We are aware of the rule of statutory interpretation that where the language of a statute is clear and unambiguous, no construction is necessary and a court simply applies the statute as its words direct. See State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990); State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989). We conclude that § 53a-65 (2) is facially ambiguous because it is not clear whether digital penetration of the genital opening is sufficient to complete sexual intercourse or whether such penetration must be into the vagina. Because of this ambiguity, we must turn to recognized principles of statutory construction to ascertain the meaning of the term “sexual intercourse” in the context of this case.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. Frillici v. Westport, 231 Conn. 418, 431, 650 A.2d 557 (1994). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) United Illuminating Co. v. New Haven, 240 Conn. 422, 431, 692 A.2d 742 (1997).

We first address the principle that a statute that imposes criminal liability should be strictly construed and ambiguities normally resolved in favor of the defendant. State v. Harrell, 238 Conn. 828, 832, 681 A.2d 944 (1996); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). Such strict construction, according to the defendant, precludes us from construing vaginal intercourse as including penetration of the labia majora.

Although the defendant asserts that the doctrine of strict construction is dispositive, that doctrine “is only one of the aids which is to be used in the construction of penal statutes. . . . Other aids include such things as the statutory language itself, legislative history where available, the furthering of the policy and purposes fairly apparent from the statute which include the mischief sought to be proscribed and related statutes.” (Citation omitted.) Singh v. Singh, 213 Conn. 637, 646-47, 569 A.2d 1112 (1990). The Singh court also stated that “[n]o rule of construction, however, requires that a penal statute be strained and distorted in order to exclude conduct clearly intended to be within its scope .... It is sufficient if the words are given their fair meaning in accord with the evident intent of [the legislature].” (Internal quotation marks omitted.) Id., 646. Even where a criminal statute is at issue, our Supreme Court has shown its “disinclination to interpret statutes in a vacuum. . . . Where a court possesses clues to the meaning of a statute, there certainly can be no rule of law which forbids [their] use, however clear the words may appear on superficial examination.” (Citation omitted; internal quotation marks omitted.) State v. Golino, 201 Conn. 435, 442, 518 A.2d 57 (1986).

Our search for the meaning of the superficially clear words “vaginal intercourse” and “penetration” is not constrained by the doctrine of strict construction because the law surrounding the crime of rape does not exist in a vacuum, but has a long history that we may consult in aid of our interpretation. As a starting point, we focus on the words “[p]enetration, however slight,” because that phrase links § 53a-65 (2) to its statutory and case law antecedents.

We first encounter the notion that the least penetration is sufficient to complete the crime of rape in State v. Shields, 45 Conn. 256 (1877). The defendant requested that the trial court charge the jury that “to constitute rape actual penetration of the body of the woman by the insertion into her of the private parts of the accused is absolutely necessary.” Id., 259. After charging as requested, the court added, “ ‘but the least penetration is sufficient . . . ” Id. Our Supreme Court affirmed the charge as correct. Id., 263. That was the first charge regarding penetration challenged in the Connecticut courts, and the concept of minimal penetration has been a part of our law prohibiting sex offenses ever since. See State v. Dubina, 164 Conn. 95, 97, 318 A.2d 95 (1972); State v. Hickey, 23 Conn. App. 712, 714, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991). We have found no cases, and the defendant cites none, in which our Supreme Court or this court has construed the least penetration doctrine as requiring penetration of the vagina.

Prior to our adoption of the Penal Code in 1971, General Statutes (Rev. to 1968) § 53-238 provided in relevant part: “Any person who commits the crime of rape upon any female shall be imprisoned .... Any person who carnally knows any female under the age of sixteen years shall be guilty of rape . . . .” In addition to enunciating the slightest penetration rule, the Supreme Court defined “carnal knowledge” as sexual intercourse. See State v. Dubina, supra, 164 Conn. 97; State v. Ferris, 81 Conn. 97, 99, 70 A. 587 (1908). Sexual intercourse always had its ordinary meaning.

Public Acts 1969, No. 828, § 66, which went into effect in October, 1971, and was codified in 1972 as General Statutes § 53a-65, provided in relevant part: “(1) ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight. . . .” For the first time, the least penetration rule was made a part of a statute that defined sexual intercourse. There was a separate subsection in § 53a-65 that defined “deviate sexual intercourse” as “sexual contact . . . consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva . . . .” General Statutes (Rev. to 1972) § 53a-65 (2). The commission comment to § 53a-65 noted that these specific sexual acts were “intended to replace the archaic and ambiguous terms of ‘carnal knowledge’ and ‘indecent assault.’ ” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes (1969).

The amendments to § 53a-65 in 1975, Public Acts 1975, No. 75-619, § 1, eliminated the words “has its ordinary meaning” as part of the definition of sexual intercourse and inserted the word “vaginal. ” The legislature also eliminated the word “deviate” and placed all of the definitions of “sexual intercourse” in subsection (2). In addition, the legislature added the sentence: “Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. . . .” Public Acts 1975, No. 75-619, § 1 (2).

During the hearings on the amendments to the sexual offense statutes, Senator Betty Hudson remarked: “The present statute defines sexual assault only in terms of rape, ordinary intercourse. ... It doesn’t talk about all kinds of assault that can be done sexually on a person. The statute before you does explicitly . . . .” 18 S. Proc., Pt. 7, 1975 Sess., pp. 3222-23. Kay Bergin, executive director of the Permanent Commission on the Status of Women, testified: “It is an omnibus bill and it has many sections. One of the other things that the task force discovered when it did its work was that there were a number of statutes overlapping, confusing and so on that had come into use over many years, and this really is an attempt to straighten out and organize the various statutes and bring them up to date and pick up some [of] the areas which were really no longer useful or were contradictory. So the beginning of this bill has to do with the definitions of the act, sexual intercourse, what it really means. And I won’t go into all of this, deviate sexual intercourse is considered to be unnecessary at this point and so this was removed.” Conn. Joint Standing Committee Hearings, Human Rights and Opportunities, 1975 Sess., p. 92.

Although the word “vaginal” appeared in a sexual offense statute for the first time in 1975, the aforementioned testimony supports a conclusion that the definitions section of § 53a-65 was not intended to affect the ordinary meaning of the words “sexual intercourse,” except as to the language regarding penetration by an object. With respect to the change in § 53a-65 (2), we have stated: “The legislative history reveals that the purpose of changing the definition of sexual intercourse from having its ordinary meaning was to include anal intercourse, fellatio and cunnilingus . . . .” (Internal quotation marks omitted.) State v. Siering, 35 Conn. App. 173, 181-82, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). We are persuaded that the legislature did not intend to change the ordinary meaning of the words “sexual intercourse.” The words “vaginal intercourse” were intended to be descriptive so as to differentiate sexual intercourse in its ordinary meaning from what were previously considered to be the deviate forms of sexual intercourse: fellatio, cunnilingus and anal intercourse.

Our conclusion is buttressed by our Supreme Court’s statement: “The rule of statutory construction is that [a] statute should not be construed as altering the common law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express.” (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). Sexual intercourse had previously been defined in the common law as having its ordinary meaning. The “[p]enetration, however slight,” language of the statute is a common-law carryover that was designed to eliminate precisely the kind of claim that is made here. The common-law construction of rape was designed to punish the fact, not the degree, of penetration. Nothing in the legislative history of the 1975 amendment that introduced the word “vaginal” into the definitions and nothing in the circumstances surrounding the statute’s enactment suggests that the legislature intended a more restrictive definition of sexual intercourse. On the contrary, the meaning of sexual intercourse was expanded to include the manipulation of an object into the genital opening of the victim’s body.

Although we ordinarily accept specific definitions in legislation, we may depart from that rule when a literal reading would produce results that are inconsistent with the intent of the legislature. Vernon Village, Inc. v. Carothers, 217 Conn. 130, 139, 585 A.2d 76 (1991); Sienkiewicz v. Sienkiewicz, 178 Conn. 675, 683, 425 A.2d 116 (1979); Leach v. Florkosky, 145 Conn. 490, 497, 144 A.2d 334 (1958). This case presents such an occasion.

Obviously, one of the purposes of the statute is to protect children from sexual assault. That purpose can be carried out by construing the statute to preclude behavior such as the defendant’s without doing violence to any principle of statutory construction. The defendant’s act of putting his index finger between the labia majora of a three year old girl falls squarely within the statute’s proscription against penetration “by an object manipulated by the actor into the genital . . . opening of the victim’s body . . . .” General Statutes (Rev. to 1991) § 53a-65 (2). A finger is considered an “object” that can be manipulated into a genital opening. State v. Grant, 33 Conn. App. 133, 139-41, 634 A.2d 1181 (1993). By construing the word vaginal as descriptive to distinguish it from the other forms of intercourse, the phrase “[p]enetration, however slight,” retains its accepted meaning. In doing so, we also follow that principle of statutory construction that requires us to reconcile and harmonize the parts of a statute to the extent possible. Marangio v. Shop Rite Supermarkets, Inc., 11 Conn. App. 156, 160, 525 A.2d 1389, cert. denied, 204 Conn. 809, 528 A.2d 1155 (1987).

Over one-half century ago, our Supreme Court reconciled the doctrines of strict construction and legislative intent. “It is a false humanity which would protect offenders, either by stifling detection and prosecution, or by affording facilities to escape conviction, by unnecessary and artificial technicalities in the administration of the law. The purpose of the rule of strict construction is not to enable a person to avoid the clear import of a law through some mere technicality, but to enable the people of the State to know clearly and precisely what acts the legislature has forbidden under a penalty, that they may govern their conduct accordingly, and to make sure that no act which the legislature did not intend to include will be held by the courts within the penalty of the law. ... To enforce the rule beyond its purpose would be to exalt technicalities above substance.” (Citations omitted; internal quotation marks omitted.) State v. Faro, 118 Conn. 267, 274, 171 A. 660 (1934).

The Faro rationale underlies the rule that criminal statutes must be strictly construed. “The rule of strict construction, however, does not require that the most narrow, technical and exact meaning be given to the language of a statute in frustration of an obvious legislative intent. . . . Common sense should be applied to the language of a penal statute, particularly if otherwise absurdity or frustration of the evident design of the legislature results.” (Citation omitted.) State v. Morelli, 25 Conn. App. 605, 609, 595 A.2d 932 (1991).

For us to direct a judgment of acquittal here, as the defendant contends we must, we would have to strain and distort the words of the statute to reach an absurd and bizarre result. The defendant’s abhorrent act of putting his index finger between the labia of a three year old girl is conduct that is clearly intended to be within the scope of the statute because such penetration is sufficient under the least penetration doctrine. If we were to adopt the construction that is proffered by the defendant, we would set the stage for drawn out battles over the degree, rather than the fact, of penetration. By applying the least penetration doctrine with respect to the genital opening, we preclude such disputes.

B

The defendant argues that even if we conclude that the information properly charges a violation of § 53a-70 (a) (2), the evidence was not sufficient to convict him because the labia majora is not an opening, but a “structure” that cannot be digitally penetrated. He also claims that there was no evidence that the defendant did anything more than place his hand on top of the victim’s labia majora. We are unpersuaded.

First, the expert testimony at trial established that the labia majora consist of two folds between which a finger or other object can pass. The defendant’s claim that penetration in the context of both the information and the court’s charge means through the skin and tissue of a labium is strained and illogical. Penetration, in the context of the statute, obviously means intrusion through an opening and not penetration through skin and tissue. Second, the defendant dismisses the victim’s direct testimony that the defendant put his finger “inside” her “crotch.” He claims that this testimony was ambiguous because N had earlier testified that the defendant placed his hand inside her bathing suit. It is axiomatic that this was grist for the jury’s mill. Authority abounds that we do not sit as a seventh juror or retiy the facts, but rather we determine whether any rational jury could have so found. See State v. Smith, 46 Conn. App. 321, 326, 699 A.2d 262 (1997); State v. Ketchum, 45 Conn. App. 270, 281, 696 A.2d 987, cert. denied, 242 Conn. 910, 697 A.2d 368 (1997). We conclude, therefore, that the evidence was sufficient to sustain the conviction.

II

The defendant makes one last claim with respect to the issue of penetration. He asserts that the trial court’s “absurd” interpretation of sexual intercourse as penetration of the genital opening would eliminate any distinction between sexual assault in the first degree and the less serious offenses of sexual assault in the third and fourth degree by way of “sexual contact.” General Statutes 53a-65 (3) defines sexual contact as, inter alia, contact with the “intimate parts of a person . . . .” General Statutes § 53a-65 (8) defines intimate parts as, inter alia, the “genital area . . . .” The defendant makes much of the fact that the trial court, in denying his motion for a judgment of acquittal, stated that the words “genital or anal opening” in § 53a-65 (2) meant genital area or anal opening. For the reasons that we have previously discussed, we conclude that the trial court properly denied the defendant’s motion for a judgment of acquittal. We may affirm a trial court’s decision that reaches the right result, albeit for the wrong reason. See Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998); Herr-mann v. Summer Plaza Corp., 201 Conn. 263, 274, 513 A.2d 1211 (1986).

The trial court instructed the jury that “sexual intercourse means penetration into the genital opening .... Our law provides that penetration, however slight, is sufficient to complete sexual intercourse and does not require the emission of semen. Our law further provides that penetration may be committed digitally, that is, by the finger or fingers into the genital opening of the victim’s body.” The court also instructed the jury: “You may consider the labia majora as an anatomical part of a woman’s genital opening.”

There was medical testimony to the effect that the labia majora are part of the genital area of a female, acting as a “flap” that covers the labia minora and the vagina. There was also medical testimony that a finger could be inserted between “the two labia majora” and could reach the vagina. Most importantly, Frederick Berrien, a physician, was asked, “Is the space between the labia the beginning of the genital opening?” He responded: “Yes, it is.”

We find no reference in the court’s charge to penetration of a “genital area” as the defendant claims. The court’s instructions properly tracked both the statute and the evidence, and provided sufficient guidance for the jury.

Ill

The defendant next claims that the trial court improperly restricted the cross-examination of both N’s mother, S, and Kevin Conter, N’s psychologist, regarding S’s prior history of sexual molestation and her previous disclosure of that fact to Conter. Specifically, the defendant relies on Conter’s statement that “N’s mother has been sexually molested, and her own experiences impact her reactions to N’s experiences and can negatively impact any intervention” in support of the proposition that S may have influenced N’s disclosures in this case. Notwithstanding the trial court’s determination that S’s prior sexual molestation lacked relevance and that the pursuit of that line of questioning would, in effect, have required a trial within a trial, the defendant argues that his cross-examination of both S and Conter was improperly restricted. He claims a violation of his sixth amendment rights to confrontation, to present a defense and to due process because N’s allegations “were a product of her mother’s creation and influence,” and Conter had expressed concern about that possibility. We disagree.

A

With respect to S, the defendant claims that he was improperly restricted from questioning her about her past history of sexual molestation because her history “may have played a key role in N’s subsequent disclosures, and in particular, S’s bias and motives both as a witness and as a key factor in N’s testimony.” The defendant made no offer of proof as to why the statement at issue shows bias or a motive on the part of S to influence her daughter to “manufacture” a charge against the defendant. The statement refers only to how S reacted to N’s molestation and how this reaction could negatively affect Conter’s efforts to treat N. S’s reaction to the molestation of her daughter and the subsequent treatment could have arisen only after there had been a determination that the molestation had occurred.

“It is axiomatic that [a] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . The confrontation clause does not, however, suspend the rules of evidence to give the defendant the right to engage in unrestricted cross-examination. . . . Only relevant evidence may be elicited through cross-examination. ... In determining whether a defendant’s right of cross-examination has been unduly restricted, we consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Citation omitted; internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 307, 705 A.2d 181 (1997), cert. denied, 523 U.S. 1077, 118 S. Ct. 1523, 140 L. Ed. 2d 674 (1998); see also State v. Lindstrom, 46 Conn. App. 810, 820, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997); State v. Johnson, 21 Conn. App. 291, 293, 573 A.2d 1218 (1990).

The trial court determined that the defendant had an extensive opportunity to cross-examine S in this case and that an inquiry into S’s prior history of sexual molestation not only would be irrelevant to whether the defendant perpetrated the alleged acts in this case, but would require having the therapists who may have previously treated S testify as to what impact this prior sexual abuse had on her. This would, the court concluded, contribute to a trial within a trial. “The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Sullivan, 244 Conn. 640, 653, 712 A.2d 919 (1998), quoting State v. Barnes, 232 Conn. 740, 746-47, 657 A.2d 611 (1995). Accordingly, we conclude that the trial court’s restriction of the cross-examination of S in this case was proper.

B

The defendant also argues that the trial court improperly restricted his cross-examination of Confer with respect to S’s disclosure to Confer regarding her prior sexual molestation. The state called Confer as a constancy of accusation witness. The trial court determined that the defendant’s attempted cross-examination of Confer with respect to S’s previous disclosure to him regarding her own history of prior sexual molestation was not relevant and would contribute to the evolution of a trial within a trial.

We are persuaded that Conter’s statement, on which the defendant relies, did not purport to evince concern that S’s own prior history of sexual molestation might have impacted N in this case. We are not persuaded that the defendant’s questioning of Confer with respect to S’s prior history of sexual molestation would be relevant to whether she influenced N in this case. It does not follow from Conter’s statement that N’s identification of Uncle Ronnie was in any way influenced by S. Moreover, S’s reactions to N’s experiences are not at all relevant to whether N was actually molested by the defendant.

For all the reasons discussed in part II A, we conclude that the trial court properly determined that this proposed line of questioning was not relevant and properly restricted the cross-examination of Conter in this case.

The judgment is affirmed.

In this opinion SCHALLER, J., concurred.

HENNESSY, J.,

dissenting. Because I agree with the defendant’s first three claims, which rest on his assertion that the trial court improperly limited the interpretation of the term “sexual intercourse” to the mere penetration of the labia majora and, therefore, improperly allowed the state to amend the information, I respectfully dissent.

If the trial court’s interpretation was improper, the defendant claims that (1) the trial court should have granted his motion for a judgment of acquittal at the close of the state’s case because the state failed to present evidence from which a jury could find vaginal penetration, as required by General Statutes (Rev. to 1991) § 53a-65 (2) and General Statutes (Rev. to 1991) § 53a-70 (a) (2), (2) the jury charge on sexual intercourse was improper and (3) there was insufficient evidence to sustain his conviction. The defendant does not argue that the facts charged could not constitute a crime, but rather that they cannot support a conviction of first degree sexual assault. Therefore, the trial court improperly allowed the state to amend the information and denied the motion for judgment of acquittal. I believe that because the trial court improperly interpreted the term sexual intercourse, the defendant’s conviction of first degree sexual assault must be reversed. In addition, because the trial court predicated the conviction of risk of injury to a child on a conviction of sexual assault in the first degree, the conviction of risk of injury to a child must be reversed and remanded for a new trial.

I

The defendant was charged by an amended long form information with first degree sexual assault. The information stated in relevant part that “on or about August 2, 1992, in Manchester, Connecticut, Ronald Joseph Albert engaged in sexual intercourse with a child under thirteen (13) years of age, to wit: he penetrated the labia majora of the genitalia of a three (3) year old girl with his finger or fingers, in violation of § 53a-70 (a) (2).” General Statutes (Rev. to 1991) § 53a-65 (2) provides that “ ‘[sjexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus . . . .” The state did not allege anal intercourse, fellatio or cunnilingus in the amended information. Therefore, the dispositive issue was whether penetration of the labia majora alone constitutes vaginal intercourse.

In support of its interpretation, the trial court relied on § 53a-65 (2), which provides in relevant part that “[pjenetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body . . . .” The trial court interpreted the phrase to mean genital area or anal opening. It is important to note that the court stated, when it ruled on the defendant’s motion for a judgment of acquittal and again in its charge to the jury, that it was undisputed that no penetration of the victim’s vagina occurred.

The court improperly interpreted the phrase “into the genital or anal opening” as meaning into the genital area or anal opening. The term genital, as used in § 53a-65 (2), is an adjective, not a noun, and to expand the meaning of it to include the genital area is nonsensical. The legislature did not use the noun “genitals,” which would have supported the trial court’s interpretation. The adjectives “genital” and “anal” both modify the noun “opening.”

The majority opinion holds that vaginal intercourse can be committed by the penetration of the labia majora alone. Vaginal intercourse, however, requires more than penetration of the labia majora; it requires penetration of the vagina. Of the four alternative definitions of sexual intercourse provided in § 53a-65 (2), cunnilingus is the only theory that does not require penetration for the commission of the offense. State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). “ ‘Cunnilingus is sexual stimulation of the clitoris or vulva by the lips or tongue.’ ” State v. Storlazzi, 191 Conn. 453, 463, 464 A.2d 829 (1983), quoting State v. Kish, supra, 764. The clitoris is enclosed by the labia majora. H. Gray, Anatomy of the Human Body (29th Ed. Goss 1973), p. 1330. The labia majora must necessarily be penetrated or passed through to reach the clitoris. Therefore, because penetration of the genital opening is not required for cunnilingus but is required for vaginal intercourse, penetration of the genital opening must require more than the penetration of the labia majora alone.

Moreover, the majority’s interpretation of vaginal intercourse is antithetical to its common meaning. “In the absence of special circumstances, the words of a statute are to be accorded their common meaning. General Statutes § 1-1 [a]; Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 474, 217 A.2d 698 [1966].” Torrington Water Co. v. Board of Tax Review, 168 Conn. 319, 323, 362 A.2d 866 (1975). Furthermore, it is a well established rule that “penal statutes are to be strictly construed”; State v. McCarthy, 25 Conn. App. 624, 626, 595 A.2d 941, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991); and “are to be interpreted strictly against the state.” (Emphasis added.) State v. Desimone, 241 Conn. 439, 455, 696 A.2d 1235 (1997). These principles underlie “the general rule of statutory interpretation that the intent of the legislature is to be found not in what it meant to say, but in what it did say. State v. Roque, 190 Conn. 143, 150, 460 A.2d 26 (1983), quoting Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). In ascertaining that intent, [i]f the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature . . . and we need inquire no further. State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990), quoting State v. Mattioli, [210 Conn. 573, 576, 556 A.2d 584 (1989)]. Further, interpretation of a penal statute must accord with common sense and commonly approved usage of the language. State v. Edwards, 201 Conn. 125, 132, 513 A.2d 669 (1986); State v. Roque, supra, 151.” (Internal quotation marks omitted.) State v. McCarthy, supra, 626.

The term vaginal is an adjective and means “of ... a vagina.” Webster’s Third New International Dictionary. The majority’s conclusion that vaginal intercourse can be committed by the penetration of the labia majora, when the state concedes that no vaginal penetration occurred, is contrary to common sense and the commonly approved usage of the term. I believe that penetration of the vagina, however slight, is required to commit vaginal intercourse.

The majority’s reliance on the long history of the language, “[p]enetration, however slight,” is misplaced and does not advance the discussion. The resolution of the defendant’s claim requires us to determine what must be penetrated.

The linchpin of the majority’s argument is that “the legislature did not intend to change the ordinary meaning of the words ‘sexual intercourse.’ The words ‘vaginal intercourse’ were intended to be descriptive so as to differentiate sexual intercourse in its ordinary meaning from what were previously considered to be the deviate forms of sexual intercourse: fellatio, cunnilingus and

anal intercourse.” The majority fails to recognize, however, that the ordinary meaning of sexual intercourse always required penetration of the vagina.

First, as the majority correctly points out, the concept of minimal penetration was first used in the rape context. State v. Shields, 45 Conn. 256 (1877). In Shields, however, the examining physician testified that “ ‘penetration had taken place as far as the internal organs of generation, whether further or not I cannot from my examination say ....’” Id., 258. The defendant, in essence, requested that the court instruct the jury that complete penetration was required to constitute rape. Id., 259. The court instructed the juiy that penetration was absolutely necessary, but that “ ‘the least penetration is sufficient’ ” .... Id. Vaginal penetration was not disputed, only the degree of vaginal penetration.

Second, “[p]rior to 1975, sexual intercourse was defined by General Statutes (Rev. to 1975) § 53a-65 as having ‘its ordinary meaning and occurs upon any penetration ....’” State v. Siering, 35 Conn. App. 173, 180, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). “[T]he ‘ordinary meaning’ of sexual intercourse contemplates a continuous act of penetration ....’” Id., 181. It is clear that the ordinary definition of sexual intercourse prior to 1975 involved penetration of the vagina. “Public Act 75-619 changed the definition in part to provide: ‘Penetration, however slight, is sufficient to complete vaginal intercourse ....’” Id., 180-SI. This court has held that the amendment did not change the ordinary meaning of sexual intercourse, but rather construed “the statutory reference to penetration as establishing the minimum amount of evidence necessary to prove that intercourse has taken place.” Id., 182.

“It is a basic principle of law that common sense is not to be left at the courtroom door; State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985); State v. Perez, 10 Conn. App. 279, 291, 523 A.2d 508, cert. denied, 203 Conn. 810, 525 A.2d 524 (1987); and courts will not pretend to be more ignorant than the rest of mankind. Masline v. New York, N. H. & H. R. Co., 95 Conn. 702, 709, 112 A. 639 (1921). In anybody’s everyday lexicon, continued penetration of the female sex organ by the male sex organ ... is factually sexual intercourse’ . . . .” (Citation omitted; internal quotation marks omitted.) State v. Siering, supra, 35 Conn. App. 184.

“When an information sufficiently sets out the offense with which a defendant is charged, ‘the state is limited to proving that the defendant has committed the offense in substantially the manner described.’ ” State v. Newton, 8 Conn. App. 528, 532, 513 A.2d 1261 (1986); see State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Cole, 8 Conn. App. 545, 553, 513 A.2d 752 (1986). The state had the burden to prove, therefore, that the defendant engaged in sexual intercourse, namely vaginal intercourse, by penetrating the labia majora. Under § 53a-65 (2), however, penetration of the labia majora alone cannot constitute vaginal intercourse.

The facts charged in the amended information cannot, even if proved, constitute vaginal intercourse, which is required to support the defendant’s conviction under § 53a-70 (a) (2). The pivotal issue is not whether the act allegedly committed by the defendant could constitute a crime under this section if properly charged, but whether the facts as charged constitute a crime under this statutory section. Therefore, the trial court improperly allowed the state to amend the information to allege that penetration of the labia majora alone constituted sexual intercourse and improperly denied the defendant’s motion for a judgment of acquittal.

I would reverse the judgment and remand the case with direction to render judgment of not guilty on the charge of first degree sexual assault.

II

The defendant was also charged with risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21.1 believe that this conviction must be reversed and the case remanded for a new trial.

In its charge to the jury, the trial court instructed the jury as follows: “Now you may return a verdict of guilty on both counts or a verdict of not guilty on both counts. If you return a verdict of not guilty on the first count, that is sexual assault in the first degree, you ought to return a verdict of not guilty on the second count because the second count is triggered based on the evidence submitted on behalf of the first count. If, however, you find the defendant guilty on the first count, you are not required to find him guilty on the second count. That is, you may find him, if you so choose, guilty on the first count and not guilty on the second count.”

In essence, the trial court predicated a conviction of risk of injury to a minor on a conviction of first degree sexual assault. “In the absence of a clear indication to the contrary, juries are presumed to follow the instructions that they are given. State v. Guess, 39 Conn. App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995).” (Internal quotation marks omitted.) State v. Jones, 44 Conn. App. 338, 350, 689 A.2d 517, cert. denied, 240 Conn. 929, 693 A.2d 301 (1997). We must presume that the finding of guilty of risk of injury to a child is in part based on the finding of guilty of first degree sexual assault.

I also believe that the trial court improperly restricted the defendant’s cross-examination of S regarding her prior history of sexual molestation as a child. It was more than one year after the incident, on November 30,1993, that N disclosed, for the first time to someone other than her mother, that “a bad man” had touched her and that the “bad man” was her Uncle Ronnie. In addition, S purchased a book for children dealing with good and bad touching. S testified that she read this book many times to N. The defendant argued that S’s past history was relevant to motive and bias because for more than one year, N told only S that the defendant touched her. The defendant sought to cross-examine S as to whether her own experience could have influenced N’s recollection of the events and identification of the defendant.

“[I]t is axiomatic that [a] defendant is entitled fairly and fully to confront and to cross-examine the witnesses against him. . . . State v. Joyce, 243 Conn. 282, 307, 705 A.2d 181 (1997). Moreover, [i]t is true that the scope and extent of cross-examination generally rest within the sound discretion of the trial court. . . . This discretion arises, however, only after the defendant has been permitted cross-examination and impeachment of a witness sufficient to satisfy the sixth amendment. . . . [A]n important function of cross-examination is the exposure [of] a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . State v. Joyce, 45 Conn. App. 390, 397-98, 696 A.2d 993, cert. granted, 243 Conn. 904, 701 A.2d 336 (1997).” (Internal quotation marks omitted.) State v. Santiago, 48 Conn. App. 19, 24, 708 A.2d 969, cert. denied, 245 Conn. 901, 719 A.2d 1164 (1998).

Because I believe that the motion for a judgment of acquittal should have been granted as to the first degree sexual assault count and that the jury should not have been allowed to reach that count, or, in the alternative, that the trial court improperly restricted the defendant’s cross-examination of S, I would reverse the defendant’s conviction of risk of injury to a child and remand the case for a new trial on that count.

       General Statutes (Rev. to 1991) § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.”

         General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Webster’s Third New International Dictionary defines labia majora as follows: “Labium . . . [noun, plural] Labia ... (1) any of the folds at the margin of the vulva. ...”

       General Statutes (Rev. to 1991) § 53a-65 provides in relevant part: “As used in this part, except section 53a-70b, the following terms have the following meanings:
      “(1) ‘Actor’ means a person accused of sexual assault.
      “(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. . . .”

       The trial court instructed the jury that a verdict of not guilty on the sexual assault charge ought to result in a not guilty verdict on the risk of injury charge because the risk of injury count is triggered by the first count. The defendant claims that because of that instruction, the jury found him guilty of risk of injury as a result of the guilty finding on the first count. Therefore, the defendant asserts that a reversal and a directed judgment of acquittal as to the sexual assault charge should result in a judgment of acquittal or a new trial on the risk of injury charge. Because we affirm the judgment on the sexual assault charge, the risk of injury conviction is also affirmed.

       See footnote 4.

       More importantly, the trial court never used such language in its instructions to the jury.

       The defendant claims that S was molested when she was a child, but Conter’s statement that was disclosed to the defendant does not say how old S was at the time of the molestation.

       This statement was originally contained in Conter’s notes dated December 16, 1992. At the defendant’s request, the trial court ordered the state to turn over any material that may have been exculpatory for the defendant. These notes from Conter were included in that disclosure to the defendant.

       On appeal, the state claims that the statement at issue should be precluded because it is a privileged statement of a patient pursuant to General Statutes § 52-146c. The state claims that proper procedures were not followed prior to disclosing the statement. That procedure would involve a preliminary showing by the defendant that failure to produce the records would likely impair his right to impeach the witness and a request of the witness for permission for the court to conduct an in camera inspection of the records. If the witness refuses to give permission, the court can strike the witness’ testimony. If assent is obtained and an in camera inspection conducted, a further waiver must be obtained from the witness to release relevant portions of the record to the defendant. See State v. Grant, supra, 33 Conn. App. 655-56. It is not clear what procedure was followed here. In any event, the state did not raise this claim in the trial court. Therefore, we decline to address it See Practice Book § 60-5.

       In his brief, the defendant states that his “theory of defense was that in actuality [S] invented the alleged molestation in her mind and then repeatedly related it to N, ultimately convincing N that indeed it occurred.”

       Although the defendant did not attempt to cross-examine S about this matter, the issue was properly preserved because the court clearly ruled that the defendant could not use the statement in any fashion.

       The trial court stated: “The record should further state that [S] was cross-examined by [the defendant] in excess of two hours, possibly three hours, nearly half a day that this witness was on the stand.”

       The trial court was not persuaded by the defendant’s argument that without a history of being sexually molested herself, S would not have brought. N to therapy or bought her the book, “Feel Safe.” The court also stated that “[t]here are many instances that appear in this court where mothers encourage their children to enter into therapy, they buy them this type of literature . . . [and] to suggest in effect that none of this would have occurred [absent S’s own past history of being sexually molested] is clearly speculative and a disservice to the mother.”

       Our review of the record further reveals that the defendant made no offer of proof to the court with respect to how his pursuit of S’s past history of being sexually molested would be relevant to motive or bias in this case. “It is the sole responsibility of the appellant to provide an adequate record for review. Keiser v. Conservation Commission, 41 Conn. App. 39, 46, 674 A.2d 439 (1996); Practice Book § 4061 [now § 60-5].” (Internal quotation marks omitted.) State v. Rodriguez, 47 Conn. App. 91, 101, 702 A.2d 906 (1997), cert. denied, 243 Conn. 960, 705 A.2d 552 (1998).

       The trial court stated: “[C]learly, matters pertaining to [the victim] that are contained in this record that would be exculpatory would be permissible for cross-examination . . . [but] allowance of this particular statement. . . would be grossly collateral and would require a trial within a trial of this case . . . .”

       The labia majora axe the two outer folds of skin that enclose the external genital organs of the female. See H. Gray, Anatomy of the Human Body (29th Ed. Goss 1973), p. 1330; Webster’s Third New International Dictionary.

       In reversing the defendant’s conviction, I do not reach the propriety of the trial court’s instruction.