author: LAVTNE, J.

text:
    STATE OF CONNECTICUT v. THOMAS W.

    (AC 29003)
    Flynn, C. J., and Lavine and Hennessy, Js.

      Argued April 13
    officially released June 30, 2009

      William B. Westcott, special public defender, for the appellant (defendant).

      Nancy L. Chupak, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Marc G. Ramia, assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to use the defendant’s full name or to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

LAVTNE, J.

The defendant, Thomas W., appeals from the judgment of the trial court, rendered after a jury trial, convicting him of one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (2), two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (l) and one count of sexual assault in the fourth degree in violation of General Statutes (Rev. to 2003) § 53a-73a (a) (1) (A). On appeal, the defendant claims that (1) § 53-21 (a) (1) is void for vagueness, (2) there was insufficient evidence to convict him of the four counts of which he was convicted and (3) the court made improper remarks to the juiy, placing the burden of proof on him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In November or December, 2003, when the victim was six years old, the defendant, who is her great uncle, arrived at the residence that the victim shared with her mother, brother and sister, to have the victim’s mother braid his hair. The mother testified that the defendant is her uncle. The victim testified that the defendant visited their residence every once in a while and that she thought that he was her uncle, not her mother’s uncle. When the investigating detective initially contacted the defendant regarding the incident, the defendant did not recognize the victim’s name.

When the defendant arrived at the victim’s residence, the victim’s mother was at work, and only the victim and her ten year old brother were present. The children were watching television in either the living room or their mother’s bedroom. The victim testified that, while watching cartoons, she heard noises in the kitchen that she could not describe but stated that they were not “pots and pans noises.” She looked toward the kitchen and saw the defendant rubbing his penis, with his pants pulled down. The victim stated that she observed him do this for approximately two minutes.

Immediately or shortly afterward, the victim went to the bathroom. She testified that the defendant cracked the bathroom door open and looked inside so that the victim was able to see his face. She stated that he looked at her while she was “using the bathroom.”

The victim’s mother arrived home while the victim was in the bathroom, or shortly afterward. She braided the defendant’s hair, and the defendant spent the night at their home. The victim did not want to sleep alone in the room she shared with her sister, who was at a Mend’s house, so she slept with her mother in the mother’s bed. The victim went to bed wearing her nightclothes. Sometime during the night, the defendant came into the bedroom of the victim’s mother and touched the victim’s buttocks underneath her nightclothes. The victim testified that she awoke when she felt the defendant touching her buttocks and that when she looked at him, he pretended to be searching for something near the bed. He did not say anything to her. The victim unsuccessfully tried to awaken her mother, who was a heavy sleeper. The victim reported the incident to her mother and one of her mother’s relatives sometime thereafter. Further relevant facts will be set forth as necessary.

I

The defendant’s first claim is that § 53-21 (a) (1) is void for vagueness. The defendant claims that the so-called “situation” prong of the statute pursuant to which he was convicted is vague as applied to the circumstances of his case and void for vagueness on its face. The defendant failed to raise this claim at trial and seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review his claim under Golding because the record is adequate, and a claim that a statute is unconstitutionally vague implicates the defendant’s fundamental due process right to fair warning. See State v. Coleman, 83 Conn. App. 672, 676-77, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290,161 L. Ed. 2d 1091 (2005). We conclude, however, that there was no constitutional violation because the statute is not vague as applied to the circumstances of the present case.

We begin by setting forth the relevant legal principles. “The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. . . . For statutes that do not implicate the especially sensitive concerns embodied in the first amendment, we determine the constitutionality of a statute under attack for vagueness by considering its applicability to the particular facts at issue.” (Citation omitted; internal quotation marks omitted.) State v. Stuart, 113 Conn. App. 541, 560-61, 967 A.2d 532 (2009). “A defendant whose conduct clearly comes within a statute’s unmistakable core of prohibited conduct may not raise a facial vagueness challenge to the statute.” State v. Indrisano, 228 Conn. 795, 804, 640 A.2d 986 (1994).

“[T]he defendant must demonstrate beyond a reasonable doubt that the statute, as applied to him, deprived him of adequate notice of what conduct the statute proscribed or that he fell victim to arbitrary and discriminatory enforcement. . . . The proper test for determining [whether] a statute is vague as applied is whether a reasonable person would have anticipated that the statute would apply to his or her particular conduct. . . . The test is objectively applied to the actor’s conduct and judged by a reasonable person’s reading of the statute .... [0]ur fundamental inquiry is whether a person of ordinary intelligence would comprehend that the defendant’s acts were prohibited . . . .” (Citation omitted; internal quotation marks omitted.) State v. Stuart, supra, 113 Conn. App. 562. “References to judicial opinions involving the statute . . . may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 710, 905 A.2d 24 (2006).

“Our case law has interpreted § 53-21 [(a) (1)] as comprising two distinct parts and criminalizing two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being. . . . Thus, the first part of § 53-21 [(a) (1)] prohibits the creation of situations detrimental to a child’s welfare . . . .” (Internal quotation marks omitted.) Id., 713. “Under the ‘situation’ portion of § 53-21 [(a) (1)], the state . . . must prove that the defendant wilfully created a situation that posed a risk to the child’s health or morals.” (Internal quotation marks omitted.) Id.

The defendant argues that a fair reading of the statute reasonably would not have alerted him to the fact that masturbating where the six year old victim could observe him and watching her while she was using the bathroom was prohibited conduct. We are not persuaded.

First, we address the kitchen incident. We conclude that the statutory language and the authoritative judicial gloss afforded the defendant sufficient notice that masturbating in the kitchen where a six year old could observe him was prohibited by § 53-21 (a) (1). The statute prohibits wilfully creating a situation in which the morals of a minor are likely to be impaired. In State v. Cutro, 37 Conn. App. 534, 536, 539-40, 657 A.2d 239 (1995), the defendant created a situation likely to impair the morals of a minor pursuant to § 53-21 (a) (1) when a fourteen year old victim and her seventeen year old sister observed him masturbating inside his car in a parking lot of a shopping mall, parked three cars away from theirs. The victim in Cutro merely saw the defendant shaking and rocking back and forth with his mouth open; she did not observe the defendant’s genitals and did not know what he was doing. Id., 536. In State v. Erzen, 29 Conn. App. 591, 592, 617 A.2d 177 (1992), the defendant approached two children in the street, asked them to help him look for his lost puppy and then exposed himself and tapped or patted his penis.

We are not persuaded by the defendant’s attempts to distinguish his case from Erzen and Cutro by arguing that there was no evidence that his penis was erect or that he ejaculated, that he did not address or “flash” the victim and that he might have been unaware that she saw him masturbate. The statute in question requires only that the defendant wilfully causes or permits a child to be placed in a situation likely to impair his or her morals. The defendant was not, as he argues, merely touching his penis in a private place. He was not in his home but was in the common area of a home occupied by three children. He pulled his pants down and masturbated where the six year old victim and her ten year old brother only had to look away from the television set to observe him. He also made sounds that caused the victim to look toward the kitchen. On the basis of the statutory language and the case law discussed previously, we conclude that a person of ordinary intelligence would comprehend that masturbating where he or she can be observed by children is prohibited by § 53-21 (a) (1).

The defendant next argues that he lacked sufficient notice that watching the victim while she was using the bathroom would be prohibited under § 53-21 (a) (1). The defendant argues that his conduct consisted merely of looking at the victim and that looking at a child is not conduct prohibited by the statute. He emphasizes that he was a member of the victim’s extended family and that there was no evidence regarding the length of his observation of the victim or whether the victim was urinating, bathing or engaging in any private activity.

We first note that the defendant is speculating about the jury’s factual findings and essentially arguing that the jury found that he merely opened the door a small amount and innocently looked into the bathroom. It is undisputed, however, that “[i]t is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented.” (Internal quotation marks omitted.) State v. Smith, 110 Conn. App. 70, 75, 954 A.2d 202, cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). By finding the defendant guilty on this count, the jury concluded that he created or placed the victim in a situation in which her morals were likely to be impaired. We therefore are not convinced that the jury inferred from the evidence that the defendant’s decision to peek into the bathroom was innocent. The victim, who was six years old at the time of the incident and nine years old at the time of the trial, did not specify what she was doing but merely testified that she was “using the bathroom.” The door to the bathroom was closed, and the defendant cracked it open and looked inside closely enough so that the victim was able to observe his face. The jury was free to consider the fact that the bathroom of someone’s home is a place in which that person has a reasonable expectation of privacy. Moreover, although it is unclear from the evidence what the victim was doing and whether she was exposed, a reasonable person knows that when another is in the bathroom behind the closed door, there is a high likelihood that he or she is fully or partially unclothed and engaged in a private act. The defendant should have reasonably expected that the victim would be at least partially undressed when he cracked open the door. There was no evidence that the defendant watched the victim for an innocent purpose, such as to supervise her. There also was no evidence that the defendant briefly looked inside the bathroom to check whether anyone was inside. The jury also could have considered the facts that the victim was disturbed by the incident enough to report it to her mother and that the defendant did not say anything to her while he was watching her. The facts that the defendant was not close to the victim, did not recognize her name when the police contacted him and that she was unsure how they were related also were in evidence. Moreover, the jury was free to consider that the bathroom incident occurred after the defendant masturbated in the kitchen in full view of the victim, as well as that he proceeded to touch the victim’s private parts while she was asleep that night. Viewing all the evidence in context, the jury, therefore, could have reasonably inferred that the defendant’s observing of the victim amounted to peeping at a six year old child for voyeuristic or sexual gratification purposes.

We acknowledge that determining whether the defendant had sufficient notice that his conduct as such was prohibited by § 53-21 (a) (1) is a close question, principally because we are not aware of any cases in which our courts have held that the same or similar conduct amounted to creating a situation likely to impair the morals of a child. The state refers us to cases holding that photographing nude or seminude children is a violation of § 53-21. See State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976) (defendant took nude and seminude photographs of victim after promising to give her “C” in class); see also State v. Palangio, 24 Conn. App. 300, 588 A. 2d 644 (defendant created situation that impaired victims’ morals when he took numerous photographs of them in various stages of undress), cert. denied, 218 Conn. 911, 591 A.2d 813 (1991); State v. Manluccia, 2 Conn. App. 333, 478 A.2d 1035 (defendant took numerous photographs of nude child and paid child for posing), cert. denied, 194 Conn. 806, 482 A.2d 711 (1984). We find these cases applicable only to a certain extent. Although they share an element of voyeurism, the bathroom incident differs from the situations in these cases because it did not involve preserving a child’s image for personal use or distribution.

We nonetheless conclude that the statutory language of § 53-21 (a) (1) sufficiently put the defendant on notice that his conduct would be prohibited. We are fully aware that precisely defining “morals” is an inherently difficult task because what constitutes societal standards can be amorphous, prone to widely varying views and subject to changing mores. Our courts have asked jurors, when considering the likelihood of the impairment of morals under § 53-21, to decide whether a defendant acted “in accordance with the principles and precepts that are commonly accepted among us as right and decent.” State v. Barksdale, 79 Conn. App. 126,137, 829 A.2d 911 (2003) (jury instructions). Our Supreme Court, in discussing an unrelated issue of wrongfulness under General Statutes § 53a-13 (a), has noted that the proscriptions of the criminal law generally reflect the moral prohibitions of the social order. State v. Cole, 254 Conn. 88, 103, 755 A.2d 202 (2000). We also take notice of the following definitions of the term “moral”: “1. Pertaining or relating to the conscience or moral sense or to the general principles of right conduct. 2. Cognizable or enforceable only by . . . the principles of right conduct . . . .” Black’s Law Dictionary (5th Ed. 1979). We conclude that the concept of morals is not so ephemeral that a reasonable person would fail to understand that the defendant’s conduct was not “right or decent” and that it was likely to impair the victim’s morals. Despite the varying views on morality, the fair reading of the statute would put a reasonable person on notice that opening the door of a bathroom to peep at a six year old child for voyeuristic purposes or sexual gratification, especially when the child is aware of being watched, crosses the line from lawful into unlawful conduct. Compare State v. Scruggs, supra, 279 Conn. 719 (state did not refer to any statutes, published or unpublished opinions, newspaper reports, television programs or other public information that would alert defendant that living conditions in her apartment posed unlawful risk to mental health of child under § 53-21). “The general purpose of § 53-21 is to protect the physical and psychological well-being of children from the potentially harmful conduct of adults.” (Internal quotation marks omitted.) State v. Fagan, 92 Conn. App. 44, 52, 883 A.2d 8, cert. denied, 276 Conn. 924,888 A.2d 91 (2005). “[T]he phrase ‘morals likely to be impaired’ expresses the legislature’s intent to prohibit conduct threatening the morality of children . . . .” State v. Payne, 240 Conn. 766, 772, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004). It is well within reason to conclude that the act of peeping at one’s six year old grandniece for voyeuristic purposes or sexual gratification, especially after masturbating in front of her and before touching her private parts, threatened her morality.

We conclude that § 53-21 (a) (1) is not unconstitutionally void for vagueness as applied to the defendant’s conduct in both instances.

II

The defendant next claims that there was insufficient evidence presented at trial to support his conviction. The defendant argues that the evidence regarding the “bathroom incident” shows at most that he looked into a room in which a child was present and that, as such, it is insufficient to establish that he created a situation likely to impair the morals of a child. The defendant argues that the evidence regarding the kitchen incident does not demonstrate that he deliberately created a situation likely to impair the morals of a child, but that it merely shows that he was “negligent in assuring his privacy before touching himself.” The defendant also argues that the evidence regarding the bedroom incident demonstrated only that he touched the victim’s buttocks and that it is insufficient to satisfy the elements of § 53-21 (a) (2). See footnote 2; see also General Statutes (Rev. to 2003) § 53a-73a (a) (1) (A); footnote 4.

In addition to the facts outlined previously, the following facts are relevant. After the victim reported the incidents to her mother, the mother took her to the Yale Child Sexual Abuse Clinic. An employee spoke to the victim and showed her an anatomical drawing of a male body. The victim drew a circle around the penis, indicating that that was the part of the defendant’s body she saw him rubbing in the kitchen. She then was shown another anatomical drawing, and she circled the buttocks area, indicating that that was where the defendant touched her during the night. The drawings were introduced as exhibits at trial. The victim’s mother also testified as a constancy of accusation witness.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .

“If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proved and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Aziegbemi, 111 Conn. App. 259, 263-64, 959 A.2d 1, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).

We first address the kitchen incident. The defendant, in addition to repeating his vagueness claim addressed previously, primarily argues that the evidence does not prove beyond a reasonable doubt that he wilfully or deliberately created a situation likely to impair the morals of a child. “[I]t is not necessary [however], to support a conviction under § 53-21, that the [accused] be aware that his conduct is likely to impact a child younger than the age of sixteen years. Specific intent is not a necessary requirement of the statute. Rather, the intent to do some act coupled with a reckless disregard of the consequences ... of that act is sufficient to [establish] a violation of the statute.” (Internal quotation marks omitted.) Id., 265; see also State v. Cutro, supra, 37 Conn. App. 539.

In State v. Cutro, supra, 37 Conn. App. 539-40, this court concluded that the juiy reasonably could have found that the defendant acted wilfully and in reckless disregard of the consequences when he sat in his car and masturbated in the parking lot of a shopping mall. We are persuaded that the evidence that the defendant pulled his pants down in the kitchen of the victim’s residence and masturbated where she and her ten year old brother could see him likewise demonstrates a reckless disregard of the consequences of that act. We therefore conclude that the jury reasonably could have found the defendant guilty beyond a reasonable doubt under § 53-21 (a) (1).

We next address the bathroom incident. We have discussed already the evidence relevant to this count when we reviewed the defendant’s void for vagueness claim in part I. The defendant here makes a similar argument about the jury’s factual findings, namely, he argues that the evidence that he looked at a child in the bathroom is not sufficient to find him guilty beyond areasonable doubtunder § 53-21 (a) (1). We arenotpersuaded.

The only evidence regarding the bathroom incident was the testimony of the victim, recounted previously, and the constancy of accusation testimony from the victim’s mother. To find a defendant guilty under § 53-21 (a) (1), the state must establish beyond a reasonable doubt that the defendant wilfully or unlawfully caused or permitted any child under the age of sixteen years to be placed in such a situation that the morals of such child are likely to be impaired. The evidence shows that the defendant, who did not have a close relationship with the victim, opened the closed door of a bathroom and silently watched her while she was using it. The jury was free to consider this fact in context and in combination with other proven facts, including evidence showing that the defendant did this after masturbating in front of the victim and before he proceeded to touch her buttocks while she was sleeping clothed next to her mother. The jury also was free to draw reasonable inferences and conclude that the defendant watched the victim for purely voyeuristic or sexual gratification purposes. Although we do not find the bathroom incident to be as clear cut as the kitchen incident, we conclude that the cumulative force of this evidence establishes beyond a reasonable doubt that the defendant created a situation likely to impair the victim’s morals when he watched her using the bathroom.

Last, we address the bedroom incident. The defendant was convicted of counts one and four on the basis of the victim’s testimony that he entered the room where she was sleeping next to her mother, put his hands inside her nightclothes and touched her bare buttocks. The defendant argues that the evidence shows no indication of fondling or manipulation and therefore does not satisfy the required element that the touching be of a sexual nature.

On the first count, the defendant was found guilty under § 53-21 (a), which provides that “[a]ny person who ... (2) has contact with the intimate parts, as defined in [General Statutes §] 53a-65, of a child under the age of sixteen years ... in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .” (Emphasis added.) General Statutes § 53-21 (a). Section 53a-65 defines “intimate parts” as specifically including buttocks. This court has held that “touching” under this statutory provision means “a touching or meeting” and that the statute provides fair warning that a single touching constitutes a violation. State v. Antonio A., 90 Conn. App. 286,294,878 A.2d 358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005), cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed. 2d 81 (2006). Evidence of fondling or manipulation therefore was not necessary. We further conclude that the jury, on the basis of the evidence presented, legally and reasonably could have concluded that the contact occurred in a sexual and indecent manner. The jury was free to draw reasonable inferences from the evidence presented. The defendant entered the bedroom at night while the victim was asleep and placed his hands under her nightclothes to touch her bare buttocks. He pretended to be searching for something when she awoke and did not offer any explanation for his behavior. There is nothing in the record to support an inference that the defendant touched the victim’s buttocks for innocent purposes, such as hygienic or medical reasons. See State v. Kulmac, 230 Conn. 43,65,644 A.2d 887 (1994). We therefore conclude that the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt under § 53-21 (a) (2).

On the fourth count, the jury found the defendant guilty under General Statutes (Rev. to 2003) § 53a-73a (a), which provides in relevant part that a “person is guilty of sexual assault in the fourth degree when (1) [he] intentionally subj ects another person to sexual contact who is (A) under fifteen years of age . . . .” The term “[s]exuai contact” for the purposes of § 53a-73a is defined in relevant part as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (3).

The defendant argues that there was no evidence showing that the contact occurred for the purpose of his sexual gratification because the victim did not testify as to how long the defendant touched her, how much of the defendant’s hand touched her or the particular location of the touch. We are not persuaded by the defendant’s argument. The victim testified that the defendant placed his hands underneath her nightclothes and touched her buttocks. In State v. Eric T., 8 Conn. App. 607, 609, 513 A.2d 1273 (1986), the jury found that the defendant placed his hands on one victim’s chest and buttocks and reached between another victim’s legs, grabbing her genital area. The defendant in that case argued that there was no evidence that the contact was for his personal sexual gratification because he was trying to win a bet, and he did not touch the victims’ bare skin. Id., 613. This court held that other evidence, such as the defendant’s boasting to others and the comments he made to the victims telling them that they had beautiful bodies, was sufficient to prove that the touching was for his sexual gratification. Id., 614. The court also noted that the defendant’s choice of where to touch the victims was unquestionably, sexual in nature. Id. In the present case, the jury considered evidence that the defendant came into the bedroom at night, touched the victim’s buttocks and pretended to be looking for something when she awoke. He lifted her nightclothes to access the area of her body that is unquestionably sexual in nature and offered no explanation for his conduct. Again, the jury is free to draw reasonable inferences from the evidence. We conclude that there was sufficient evidence that the defendant had contact with the victim’s intimate parts for sexual gratification and that the jury therefore reasonably could have concluded beyond a reasonable doubt that he was guilty under General Statutes (Rev. to 2003) § 53a-73a (a) (1) (A).

We conclude that there was sufficient evidence admitted at trial to support the defendant’s conviction of all of the charges.

Ill

The defendant’s final claim on appeal is that the court improperly diluted the state’s burden of proof and placed the burden of proof on the defendant by telling the jurors that they must decide whether he was “innocent or guilty” of the crimes for which he was charged. We decline to review this claim because we conclude that the defendant waived it.

The following additional facts are relevant to our consideration of the defendant’s claim. On November 16, 2008, the court gave preliminary instructions to the jurors, informing them that they could not make a final decision about whether the defendant is innocent or guilty of a particular charge until they heard the court’s final instructions. The court also stated that the jurors should only decide innocence or guilt on the basis of what they heard in the courtroom.

After the court’s preliminary instructions, defense counsel objected to the court’s reference to the jury deciding whether the defendant was guilty or innocent because the defendant is cloaked with the presumption of innocence. Defense counsel asked the court to instruct the jury that it had to decide whether the defendant was guilty or not guilty. The court stated that it would instruct the jury on the presumption of innocence on the following morning. Defense counsel stated: “Yes, Your Honor. Thank you.” On the following morning, the court instructed the jury on the presumption of innocence, and defense counsel took no exceptions.

During its final charge to the jury, the court again stated that it was the jury’s job “to decide what the facts are and whether the defendant is innocent or guilty of the crimes with which he has been charged,” that the jury must “reach the final conclusion as to the guilt or innocence of the accused,” and that the jury is “to find the fact of guilt or innocence of the accused.” Before it gave the jury the final charge, the court stated on the record that it had held a charging conference in chambers prior to the closing arguments where it submitted copies of its charge to counsel. The court noted that defense counsel had asked for an “identification instruction” and “a delay in reporting advisement.” The court asked counsel if they had any objections and whether there was anything they wanted to add, and both counsel replied in the negative.

First, we address the claim regarding the court’s remarks during the preliminary instructions. Defense counsel objected to those remarks; therefore, the defendant’s claim with respect to them is preserved for appellate review. We conclude, however, that the defendant waived this claim on the following morning when his counsel agreed to the court’s clarification regarding the presumption of innocence. See State v. Fabricatore, 281 Conn. 469, 481, 915 A.2d 872 (2007) (defendant waived claim when he did not object or take exception and explained that he was satisfied with instruction); State v. Duncan, 96 Conn. App. 533, 558, 560, 901 A.2d 687 (2006) (claim waived when defense counsel, upon reviewing corrected charge, failed to object to and voiced satisfaction with it), cert. denied, 280 Conn. 912, 908 A.2d 540 (2006). In the present case, when defense counsel objected to the court’s reference to the “guilt or innocence” of the defendant, the court stated that it would instruct the jurors on the presumption of innocence and asked defense counsel if that was sufficient. Defense counsel stated that it was and thanked the court. On the following morning, when the court instructed the jurors on the presumption of innocence, defense counsel did not object or take exception to those instructions. We conclude that the defendant waived his claim regarding the court’s preliminary instructions.

The defendant admits that he did not object to the court’s remarks during its final charge to the jury and is asking for reversal under State v. Golding, supra, 213 Conn. 239-40. See footnote 6. Our Supreme Court, however, has held that “when a right has been affirmatively waived at trial, we generally do not afford review under . . . Golding .... In State v. Fabricatore, [supra, 281 Conn. 482], we concluded that unpreserved, waived claims, fail under the third prong of Golding . . . . [W]aiver is the intentional relinquishment or abandonment of a known right. . . . The mechanism by which a right may be waived, however, varies according to the right at stake. . . . When a party consents to or expresses satisfaction with an issue at trial, claims arising from that issue are deemed waived and may not be reviewed on appeal.” (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 70-71, 967 A.2d 41 (2009).

In the present case, the court stated on the record that both counsel received and reviewed a copy of the court’s final charge to the jury when they met in chambers. The court noted, on the record, the specific objections that defense counsel had raised in chambers and asked counsel whether they had any further objections. Defense counsel stated, on the record, that he had no further objections to the final charge. The defendant therefore consented to and expressed satisfaction with the final charge, and we conclude that he waived any challenge to it on appeal. See State v. Fabricatore, supra, 281 Conn. 481; State v. Velez, 113 Conn. App. 347, 359, 966 A. 2d 743 (defense counsel’s expression of satisfaction with court’s jury instruction constituted waiver of defendant’s constitutional rights regarding proper jury instruction), cert. denied, 291 Conn. 917, 970 A.2d 729 (2009); see also State v. Duncan, supra, 96 Conn. App. 560. We therefore conclude that the defendant’s claim fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 (a) provides in relevant part that “[a]ny person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years ... in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”

       General Statutes § 53-21 (a) provides in relevant part that “[a]ny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the . . . morals of such child are likely to be impaired . . . shall be guilty of a class C felony . . . .”

       General Statutes (Rev. to 2003) § 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when: (1) [s]uch person intentionally subjects another person to sexual contact who is (A) under fifteen years of age . . . .”

       In addition to the conduct for which the defendant was charged; see footnote 3; § 53-21 (a) (1) also prohibits doing any act likely to impair the health or morals of any such child. See State v. Aziegbemi, 111 Conn. App. 259, 267, 959 A.2d 1 (2008) (distinguishing between “situation” and “act” prongs of statute), cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).

       The defendant may prevail under Golding if “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 710, 905 A.2d 24 (2006).

       We consequently do not address the defendant’s attack on the facial validity of the statute. See State v. Indrisano, 228 Conn. 795, 804, 640 A.2d 986 (1994) (defendant may not challenge facial validity of statute when his conduct unmistakably falls within statute’s core meaning of prohibited conduct).

       The defendant was charged with violating § 53-21 (a) (1) in the second and third counts of the amended information, which related to the kitchen incident and the bathroom incident. Counts one and four stem from the defendant’s conduct in the bedroom of the victim’s mother during the night, i.e., the bedroom incident.

       We note that these are isolated instances and that the court also repeatedly stated that the defendant is presumed to be innocent and that “the defendant does not have to prove that he’s innocent.” The court also stated that the burden of proof is on the state to prove beyond a reasonable doubt the elements of the crimes charged.

       We note again that the court also extensively instructed the jurors regarding the presumption of innocence and the state’s burden of proof during the final charge.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    CAROL B. DIONNE v. JASON J. DIONNE
    (AC 29274)
    Flynn, C. J., and Alvord and West, Js.

      Argued April 23
    officially released July 7, 2009

      Tad J. Bistor, for the appellant (defendant).
   Opinion

ALVORD, J.

The determinative issue in this appeal is whether a trial court properly may continue a hearing on a motion for contempt when the alleged contemnor’s attorney represents to the court that the court-ordered child support payment is “in the mail.” We hold that the court is not obligated to accept the attorney’s representation and may continue the hearing for a determination of compliance with the child support orders. Accordingly, we affirm the judgment of the trial court.

The plaintiff, Carol B. Dionne, and the defendant, Jason J. Dionne, were married on September 25, 1998, and have two children, bom in 1997 and 2002. Following an irretrievable breakdown of the marriage, the court rendered judgment of dissolution on March 1,2006. The court incorporated by reference an agreement of the parties that the defendant pay the plaintiff $138 each week as child support and 20 percent of child care costs. On May 9, 2006, the plaintiff filed a motion for contempt, alleging that the defendant had not paid child support or child care expenses, and that he was in arrears in the amount of $552 in child support and $174 in child care expenses. On numerous dates between June 13,2006, and July 17,2007, the defendant appeared in court for review of his compliance with the court orders. On July 17,2007, the court found that the defendant owed the plaintiff an arrearage of $90 and set a compliance date of August 14, 2007.

On August 14, 2007, the defendant’s attorney and the pro se plaintiff appeared before the court, Pinkus, J., and represented that the defendant had made all of the payments due on or before August 3, 2007. The defendant’s attorney also represented that the defendant had mailed a money order to the plaintiff on August 13, 2007, for his child support payment due on August 10, 2007. The defendant’s attorney and the plaintiff discussed, on the record, a photocopy of the postal money order and a certified mail receipt received by facsimile by the defendant’s attorney. The plaintiff, however, stated that she had yet to receive the money order, that she received only the payments for the arrearage on August 11, 2007, and that the defendant’s noncompliance with the court-ordered child support payments was an ongoing problem. The plaintiff also stated that the defendant had “told [the court] many times that he was going to be in compliance, and every time we come he’s not in compliance.” The court suggested that the case be continued to either Monday, August 27, 2007, or Monday, September 24,2007, for compliance because the defendant was scheduled to visit the children on the weekends preceding those dates. The defendant’s attorney objected to any continuance, arguing that the court could not continue the matter because the defendant was in full compliance. The court disagreed, finding that the plaintiff had yet to receive the latest payment, and it continued the matter to September 24, 2007.

On September 24, 2007, both parties appeared before the court, Prestley, J. The defendant’s attorney again raised the issue of whether the court had jurisdiction to hear the issue of contempt. He argued that the contempt hearing should not have been continued because the defendant “[essentially paid the order in full as of the last court date.” Judge Prestley reviewed the August 14, 2007 transcript and determined that Judge Pinkus had found that the representation that a money order had been mailed was not sufficient to conclude that the defendant was current on his child support. The parties stipulated to a new arrearage of $961.20 owed by the defendant, which had accrued between August 14 and September 24, 2007. The court found the defendant in contempt of the child support court order, set a purge amount of $500 and stayed the order until 5 p.m. to allow the defendant to avoid incarceration by paying the purge amount. The defendant returned to court with only $300 and was ordered incarcerated with an amended purge amount of $200. The defendant paid the $200 later that evening and was released from incarceration. The defendant timely filed this appeal.

The defendant claims that the court improperly continued the hearing on the motion for contempt when he “had fully complied with the court’s orders to pay child support.” Specifically, the defendant claims that the court (1) “exceeded its authority, and thereby abused its discretion, in continuing the contempt citation and the threat of incarceration thereunder, when the defendant had fully complied with the court’s orders to pay child support” and (2) continued the “contempt citation and the threat of incarceration thereunder, when the defendant had fully complied with the court’s orders to pay child support [in violation of] his due process rights under the fifth and fourteenth amendments to the United States constitution and article [first, § 9] of the Connecticut constitution because he did not hold the ‘key to his release’ in that he was prevented from purging himself of a past contempt until he met all future obligations.” We disagree.

To begin, we briefly address the defendant’s challenge to the court’s finding on August 14, 2007, that he was not in compliance with the court’s order. The defendant argues that there was sufficient evidence in the record to make a finding that he was in compliance with the court’s orders. The defendant was seeking to defend the motion for contempt with the representations of counsel. “This court, as well as our Supreme Court, repeatedly has stated that representations of counsel are not evidence. See, e.g., State v. Sauris, 227 Conn. 389, 404, 631 A.2d 238 (1993), overruled in part on other grounds by Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 309, 852 A.2d 703 (2004); Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985); Baker v. Baker, 95 Conn. App. 826, 832, 898 A.2d 253 (2006); Irizarry v. Irizarry, 90 Conn. App. 340, 345, 876 A.2d 593 (2005); Prial v. Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001); Tevolini v. Tevolini, 66 Conn. App. 16, 26, 783 A.2d 1157 (2001); Constantine v. Schneider, 49 Conn. App. 378, 397, 715 A.2d 772 (1998); Martin v. Liberty Bank, 46 Conn. App. 559, 562-63, 699 A.2d 305 (1997).” Aley v. Aley, 101 Conn. App. 220, 229, 922 A.2d 184 (2007). In addition, the defendant relied on documents, namely, the facsimile copies of a money order and a certified mail receipt, for which counsel never laid a foundation, never supported with testimony and never asked to have admitted as exhibits.

Furthermore, even if we assume that there was evidence sufficient for such a finding, that is not the standard by which we review a court’s refusal to make such a finding. We review the court’s factual findings in the context of a motion for contempt to determine whether they are clearly erroneous. “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Auerbach v. Auerbach, 113 Conn. App. 318, 327, 966 A.2d 292, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009).

In the present case, we are called on to determine whether the court’s finding that the defendant was not in compliance with the court’s orders was clearly erroneous. The defendant would have us conclude that when there is a prior noncompliance by an obligor with court orders and an obligee asserts that she has not received the payment of child support, a court must dismiss a motion for contempt if counsel for an alleged contemnor presents the court with a photocopy of a money order and a receipt for certified mail addressed to the obligee, and the obligor’s counsel makes the representation that the obligor purchased and mailed the money order to the obligee. We cannot so hold. Therefore, the court’s refusal to credit, as conclusive, the representations of the defendant’s counsel and documents not placed in evidence was not clearly erroneous.

The defendant argues that we should review de novo the court’s decision to continue the plaintiffs motion to September 24, 2007, and thereby maintain jurisdiction. It is well settled that a reviewing court “will only find error in the grant or denial of a motion for a continuance if a clear abuse of the trial court's discretion is shown. Rusch v. Cox, 130 Conn. 26, 32, 31 A.2d 457 (1943); State v. McLaughlin, 126 Conn. 257, 260,10 A.2d 758 [1939]; Allen v. Chase, 81 Conn. 474, 477, 71 A. 367 [1908], State v. Best, 171 Conn. 487, 492, 370 A.2d 1035 (1976). Every reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. See State v. Jeustiniano, 172 Conn. 275, 285, 374 A.2d 209 (1977); State v. Manning, 162 Conn. 112, 121, 291 A.2d 750 (1971).” (Internal quotation marks omitted.) Ridgeway v. Ridgeway, 180 Conn. 533, 538, 429 A.2d 801 (1980).

The defendant also argues that this appeal raises an issue of first impression for the appellate courts of this state, namely, whether a court has jurisdiction over a motion for contempt after a once delinquent obligor comes into compliance before a hearing. We note, however, that this court addressed a strikingly similar argument in Rocque v. Design Land Developers of Milford, Inc., 82 Conn. App. 361,844 A.2d 882 (2004). In Rocque, the defendant had argued that “the court had no jurisdiction to consider the motion [for contempt] because the defendant, at the time [of the hearing], was in compliance. In its memorandum of decision, the [trial] court ‘emphatically’ disagreed, stating that ‘[t]he court has continuing jurisdiction to enforce its orders and judgments. When a defendant has violated a court judgment or order, its subsequently coming into compliance before the hearing does not deprive the court of jurisdiction of the matter. Otherwise a defendant could violate a court order or judgment and then comply with it without the court having power to reach him.’ ” Id., 365.

This court held that the trial court “properly stated the rule of law in Connecticut. [T]he trial court’s continuing jurisdiction is not separate from, but, rather, derives from, its equitable authority to vindicate judgments. Moreover, we [held] that such equitable authority does not derive from the trial court’s contempt power, but, rather, from its inherent powers. See Connecticut Pharmaceutical Assn., Inc. v. Milano, [191 Conn. 555, 563, 468 A.2d 1230 (1983)] (recognizing trial court’s power to fashion a remedy appropriate to the vindication of a prior consent judgment); Papa v. New Haven Federation of Teachers, 186 Conn. 725, 737, 444 A.2d 196 (1982) (recognizing the inherent power of the court to coerce compliance with its orders). Although the trial court found the noncompliant party to be in contempt in both Connecticut Pharmaceutical Assn., Inc., and Papa, nothing in those cases suggests that the court’s authority to fashion a remedy appropriate to the vindication of a prior consent judgment derived from the finding of contempt. Connecticut Pharmaceutical Assn., Inc. v. Milano, supra, 563. Rather, the language in Papa suggests the converse: that the contempt power arises from the court’s inherent power to vindicate prior judgments. See Papa v. New Haven Federation of Teachers, supra, 737 ([t]he penalties which may be imposed [in a contempt proceeding] . . . arise from the inherent power of the court to coerce compliance with its orders). . . . AvalonBay Communities, Inc. v. Planning & Zoning Commission, 260 Conn. 232, 241, 796 A.2d 1164 (2002).

“The interests of orderly government demand that respect and compliance be given to orders issued by courts possessed of jurisdiction of persons and subject matter. One who defies the public authority and willfully refuses his obedience, does so at his peril. United States v. United Mine Workers, 330 U.S. 258, 303, 67 S. Ct. 677, 91 L. Ed. 884 (1947). [A]n order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. Id., 293; see also W. R. Grace & Co. v. Local Union 759, International Union of United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983); DeMartino v. Monroe Little League, Inc., 192 Conn. 271, 276-77, 471 A.2d 638 (1984).” (Emphasis in original; internal quotation marks omitted.) Rocque v. Design Land Developers of Milford, Inc., supra, 82 Conn. App. 365-66.

Moreover, like the defendant in the present case, the defendant in Rocque argued that “civil contempt is designed to coerce the contemnor to achieve compliance, thus requiring that the contemnor be out of compliance, and to compensate the opposing legal party for losses sustained because of such noncompliance. . . . The defendant further argue[d] that if there is no opportunity for the court to coerce the defendant to rectify existing noncompliance because . . . there is compliance, any sanction imposed ceases to be remedial and coercive, but rather becomes wholly punitive, i.e., criminal, in nature. According to the defendant, the court’s purely punitive finding of contempt [was] contrary to law.” (Internal quotation marks omitted.) Id., 366-67.

This court then looked to our Supreme Court’s decision in In re Jeffrey C., 261 Conn. 189, 802 A.2d 772 (2002), for guidance. In that case, our Supreme Court rejected that argument, holding: “[Although it is true that, in civil contempt proceedings, the contemnor must be afforded the opportunity to purge himself of the contempt, this is only a consideration when punishment, such as imprisonment or a noncompensatory fine, has been imposed in accordance with the finding of contempt. ... In [In re Jeffrey C.], the trial court did not impose a noncompensatory fine or other punishment. Rather, the trial court ordered that the respondent father pay attorney’s fees ... to compensate the commissioner [of children and families] for expenses incurred in enforcing compliance with the orders of the trial court. . . . Thus, the fact that the respondent father was not offered the opportunity to purge himself of his contemptuous behavior does not, under the circumstances of this case, in any way undermine the trial court’s finding of contempt.” (Citations omitted.) Id., 198. Accordingly, this court in Rocque held that because “the parties entered into a judgment that required future action on a defined schedule . . . there existed an actual and ongoing controversy between the parties. The parties’ interests were adverse, and the court was empowered to adjudicate the controversy until there was compliance with the judgment.” Rocque v. Design Land, Developers of Milford, Inc., supra, 82 Conn. App. 368-69.

In the present case, the court never punished the defendant with imprisonment or noncompensatory fines in accordance with a finding of contempt. In fact, the defendant was not found in contempt on August 14, 2007. The case simply was continued to another date, September 24, 2007, to ascertain compliance because the court was unable to determine satisfactorily the defendant’s compliance with its orders. Aside from the defendant’s allegation that the court abused its discretion, he has provided no factual support or legal analysis for that position. Upon our review of the record, including the defendant’s numerous failures to pay child support and the court’s proper finding that the defendant had not shown compliance, we cannot say that the court abused its discretion by granting a continuance.

On September 24, 2007, when the defendant was found in contempt, he had failed to pay child support for approximately six weeks and owed the plaintiff $961.20. The court found him in wilful contempt of a prior court order. The court, however, stayed the contempt finding until the end of that court day and ordered the defendant incarcerated only if he could not purge the contempt finding by providing a partial payment of $500 to the plaintiff. The court’s orders were coercive and, therefore, were properly imposed in accordance with the finding of civil contempt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff did not file a brief in this court or appear at oral argument, and she failed to comply with our order pursuant to Practice Book § 67-3, requiring her to file a brief by January 28, 2009. We therefore considered this case on the record, the defendant’s brief and oral argument only. See Walsh v. Jodoin, 283 Conn. 187, 191 n.4, 925 A.2d 1086 (2007).

       During this period, the defendant was found to be in arrears on several occasions, including arrearages of approximately $1312 on July 17, 2006; $1555 on September 18, 2006; $118 on December 8, 2006; $671 on January 20, 2007; $1513 on March 26, 2007; and $260 on June 5, 2007.

       The defendant’s attorney, however, did not ask the court to admit the documents as evidence and did not provide anything other than his representations as support for his argument that the defendant actually had placed the money order in the mail to the plaintiff. The representations of counsel are not evidence. State v. Roman, 224 Conn. 63, 68, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993).

       The following exchange occurred between the defendant’s attorney, the plaintiff and the court:
      “[The Defendant’s Counsel]: Your Honor, I would suggest that the case law would state that it’s improper at this point for the contempt citation to be continued, and I’m referring to the matter of Berthiaume v. Berthiaume, [Superior Court, judicial district of New Haven, Docket No. FA-98-0412981S (August 11, 2000)], which indicates it’s improper to continue a contempt citation when the defendant is in full compliance—
      “The Court: He wasn’t. He didn’t pay—
      “[The Defendant’s Counsel]: He’s got zero arrears.
      “[The Plaintiff]: I have not received it.
      “The Court: That’s right. She hasn’t received it yet. So, that’s not true.

      “[The Defendant’s Counsel]: Well, Your Honor, it’s been deposited in the [United States] mail. There is proof that it has been deposited in the [United States] mail, which would bring him into full compliance and ... to continue the case would be improper under the fifth and fourteenth amendments [to] the federal constitution as well as article first, § 9, of the state constitution because in continuing the citation at this point, my client does not have the key to release.
      “The Court: Sure he does. The key to his release is to make the payments when they’re due. He has the key.
      “[The Defendant’s Counsel]: But, Your Honor, he has a zero arrearage at this point.
      “The Court: No, he doesn’t. The ‘check’s in the mail.’

        “[The Defendant’s Counsel]: Yes, Your Honor, and I would suggest that most people that come into this court before Your Honor have wage garnishment, and a lot of times the person hasn’t received it even though it has been deducted from their pay.
      “The Court: He doesn’t have to come to court. Does he have a wage garnishment?
      “[The Plaintiff]: Your Honor ... it [is] going to take a month to two months to get a wage garnishment involved because the out-of-state log is backed up.
      “The Court: I’m going to continue this to September 24 for compliance. If he’s current, he doesn’t have to be here.
      “[The Defendant’s Counsel]: Yes, Your Honor, twenty-fourth of September.
      “The Court: Twenty-fourth of September. If he’s current, he doesn’t have to be here. If he’s not current, meaning—now he’s coming up on that weekend. That’s why I scheduled it. He doesn’t have to be here. So, that means he doesn’t have to mail a check to her. That means he can hand her a check when he picks up the child. So, if he’s current, you don’t have to be here. If he’s not current, you do have to be here, and we’ll deal with it. If he’s current, then this matter is resolved and you’ll have to file another motion at another time. Okay.” (Emphasis added.)

       The record indicates that the plaintiff did receive the money order for the August 10, 2007 payment prior to September 24, 2007.

       The defendant stated that he lost his job on August 20, 2007, and, therefore, discontinued payments to the plaintiff. He also stated that he had found new employment that was to begin on September 25, 2007.

       Although the defendant did not brief this claim directly, it is implicit in his arguments and was claimed explicitly at oral argument before this court.

       We note that the defendant’s argument that the court continued the matter to monitor only his future compliance is wholly without merit. At the time of the hearing on August 14, 2007, his August 10, 2007 payment to the plaintiff had not yet been received. Accordingly, we cannot say that he was not in violation of a court order even if the money order was in fact in the mail.

       As discussed previously in this opinion, the court properly found that the defendant had not satisfactorily shown compliance at the hearing on August 14, 2007. Nevertheless, we find instructive this court’s analysis in Rocque of the continuing jurisdiction of the court over a defendant in full compliance with court orders at the time of the hearing.

       Nothing in this opinion should be construed to hold that the court could not have found the defendant in contempt when the payment due August 10, 2007, had not been received by the plaintiff as of August, 14, 2007.

       The defendant has not challenged the factual basis of this finding of contempt.


author: DiPENTIMA, J.

text:
    KENNETH W. CLARK v. MARY ANN CLARK
    (AC 30430)
    DiPentima, Gruendel, Harper, Lavine and Robinson, Js.
    Argued April 16
    officially released July 7, 2009

      Arnold H. Rutkin, for the appellant (proposed intervenor).

      Mary Ann Clark, pro se, the appellee (defendant).
   Opinion

DiPENTIMA, J.

In this matter, we are asked to address the right of former counsel to intervene as a party in a marital dissolution action. The proposed intervenor, the law firm of Rutkin and Oldham, LLC (Rutkin), appeals from the trial court’s denial of its motion to intervene as a party defendant. We raised the question on the court’s own motion of whether the appeal should be dismissed for lack of a final judgment because the proposed intervenor cannot make a colorable claim to intervention as a matter of right. We conclude that the trial court’s denial of the motion to intervene in this matter is not an appealable final judgment, and we dismiss the appeal.

On June 26, 2006, the plaintiff, Kenneth W. Clark, filed this action seeking dissolution of his marriage to the defendant, Mary Ann Clark, and a fair division of the marital property and debts, as well as orders regarding child support, visitation and custody as to the parties’ children. The proposed intervenor, Rutkin, filed an appearance on behalf of the defendant, and it represented the defendant before the trial court until January 23, 2008, when a different law firm filed an appearance on behalf of the defendant in lieu of that of Rutkin.

On May 24, 2007, when Rutkin was counsel of record for the defendant, it filed a motion on her behalf seeking relief from the trial court’s automatic orders, as set forth in Practice Book § 25-5, to allow her to execute a note and mortgage on the marital home located in Greenwich. The note and mortgage were to compensate Rutkin for attorney’s fees and costs incurred by the defendant up to that date and to serve as a retainer for fees anticipated to be incurred in the litigation of this action. The court, Schofield, J., granted the defendant’s motion, and the defendant executed a note and mortgage payable to Rutkin in the principal sum of $125,000.

After Rutkin was no longer counsel of record for the defendant, it filed a motion to intervene as a party defendant, asserting that it had an interest in the subject matter of the litigation by virtue of its note and mortgage. The defendant filed an objection to the motion to intervene, and, following argument on the motion, the court, Schofield, J., denied the motion. Rutkin filed a motion to reargue the denial of its motion to intervene. After hearing reargument, the court, Schofield, J., denied the relief requested. Thereafter, Rutkin filed this appeal from the denial of its motion to intervene. When this appeal was filed, the trial court had not yet rendered judgment in this dissolution action.

This appeal was placed on the court’s own motion calendar with an order that counsel and the pro se parties should appear and give reasons, if any, why this appeal should not be dismissed for lack of a final judgment because the proposed intervenor cannot make a colorable claim to intervention as a matter of right. On April 16, 2009, this court heard oral argument on the issue raised in the court’s own motion from Rutkin and the defendant, who appeared pro se to respond to this appeal. Having considered the arguments made to this court at oral argument and in Rut-kin’s appellate brief, we conclude that the proposed intervenor, Rutkin, cannot make a colorable claim to intervention as a matter of right, and, therefore, the denial of the motion to intervene was not appealable as a final judgment.

“The jurisdiction of the appellate courts is restricted to appeals from judgments that are final. General Statutes §§ 51-197a and 52-263; Practice Book § [61-1] .... The policy concerns underlying the final judgment rule are to discourage piecemeal appeals and to facilitate the speedy and orderly disposition of cases at the trial court level. . . . The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 793-94, 967 A.2d 1 (2009); see also Practice Book § 66-8 (“[t]he court may on its own motion order that an appeal be dismissed for lack of jurisdiction”).

When this appeal was filed, the court had not rendered judgment on the plaintiffs complaint for dissolution or the defendant’s cross complaint. We must, therefore, determine whether the court’s order denying Rutkin’s motion to intervene, although interlocutory, is a final judgment for purposes of appeal. Our Supreme Court has determined that certain interlocutory orders may be treated as final judgments for purposes of appeal. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). “An otherwise interlocutory order is appeal-able in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id.

“The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make a colorable claim to intervention as a matter of right.” (Internal quotation marks omitted.) Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990); see also Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291-92, 497 A.2d 780 (1985) (dismissing appeal where would-be inteivenor did not make colorable claim to intervention as matter of right). If the proposed intervenor makes a colorable claim to intervention as a matter of right, then it satisfies the second prong of Curcio. See Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 449 n.3, 904 A.2d 137 (2006).

We apply a four element, conjunctive test when determining whether a proposed intervenor can make a colorable claim to intervention as a matter of right. “[T]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the movant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation.” (Internal quotation marks omitted.) Id., 456-57. In the present case, our determinations of the second and third elements are interrelated; our conclusion that Rutkin does not have a direct and substantial interest in the subject matter of the litigation is supported by the conclusion that the interests that Rutkin does have will not be impaired by the disposition of the present litigation without its involvement. Because we conclude that Rutkin does not satisfy the second and third elements for a colorable claim to intervention as a matter of right, we need not make a determination of whether Rutkin satisfies the first and fourth elements.

We first consider whether Rutkin satisfies the second element for a colorable claim to intervention as a matter of right. Rutkin claims that it has a direct and substantial interest in the subject matter of the litigation as a result of its mortgage on the marital home, which is a part of the marital estate anticipated to be divided in the dissolution judgment. We conclude that Rutkin’s property right, arising from its mortgage, does not give it a direct and substantial interest in the subject matter of this dissolution action.

“The purpose of a dissolution action is to sever the marital relationship, to fix the rights of the parties with respect to alimony and child support . . . [and] to divide the marital estate .... The trial court is empowered to deal broadly with the equitable division of property incident to a dissolution proceeding, and, consistent with the purpose of equitable distribution statutes generally, the term property should be interpreted broadly as well. . . . General Statutes § 46b-81 confers broad powers upon the court in the assignment of property, and the allocation of liabilities and debts is a part of the court’s broad authority in the assignment of property.” (Citations omitted; internal quotation marks omitted.) Roos v. Roos, 84 Conn. App. 415,420, 853 A.2d 642, cert. denied, 271 Conn. 936, 861 A.2d 510 (2004).

Rutkin’s mortgage on the marital home is not placed directly at issue in the present dissolution action. As a mortgagee, Rutkin holds legal title to the property, while the plaintiff and the defendant hold equitable title. Mortgage Electronic Registration Systems, Inc. v. White, 278 Conn. 219, 231, 896 A.2d 797 (2006). Even if the dissolution judgment transferred equitable title in the marital home to one party, that transfer would not affect Rutkin’s legal title pursuant to the mortgage. See id. Furthermore, our conclusion that Rutkin’s rights under the mortgage would not be impaired without its involvement in the dissolution action also demonstrates that those rights are not part of the subject matter of this dissolution action.

Rutkin fails to recognize the distinction between its interest in the mortgage on the marital property and the underlying debt that the mortgage is intended to secure. “A mortgage . . . is ‘[a] conveyance of title to property that is given as security for the payment of a debt . . . .’ Black’s Law Dictionary (7th Ed. 1999).” Ankerman v. Mancuso, 271 Conn. 772, 778, 860 A.2d 244 (2004). A mortgage is a separate instrument from the promissory note creating the debt, itself. Id., 777. To illustrate this point, it may be observed that a transfer of the equitable title of the mortgaged marital home would not, by itself, result in a transfer of the debt underlying that mortgage; the obligation to repay that debt would remain, in this instance, the defendant’s alone. See Cassidy v. Bonitatibus, 5 Conn. App. 240, 242, 497 A.2d 1018 (1985) (“[u]nless the grantee has agreed to assume an existing mortgage debt, the mere taking of title to the mortgaged property imposes no personal liability on the grantee to satisfy the debt, and the obligation to pay remains that of the mortgagor alone”). We conclude, therefore, that Rutkin’s property right arising from its mortgage is not part of the subject matter of the dissolution action.

We also consider whether the debt underlying the mortgage would amount to a direct and substantial interest in the subject matter of the litigation. Rutkin argues that it is unlike other creditors that hold a mortgage on marital property in that its rights under the mortgage expressly were made “subject to the orders of the court” in the dissolution matter. Both at the trial court and in its argument to this court, Rutkin has equated its rights under the mortgage with its claim for unpaid attorney’s fees against its former client, the defendant. Rutkin has argued that the trial court must determine the amount of reasonable attorney’s fees owed from the defendant to Rutkin before the amount of the mortgage can be known. The amount of attorney’s fees that Rutkin could recover from the defendant, however, is not an issue that the court would determine. The reference to the dissolution action in the language of Rutkin’s mortgage does not impose an obligation on the court to adjudicate the fee dispute between the defendant and her former counsel.

There are potentially two independent claims for attorney’s fees arising from Rutkin’s prior participation in this action as counsel for the defendant: the defendant’s claim for an award of attorney’s fees against her husband, the plaintiff, and Rutkin’s claim for attorney’s fees against the defendant. The defendant may request that, as part of the dissolution judgment, the court order the plaintiff to pay her attorney’s fees in a reasonable amount; General Statutes § 46b-62; but that would be a claim for the defendant to make, not Rutkin. See generally Bailey v. Bailey, 312 S.C. 454, 458, 441 S.E.2d 325 (1994) (holding attorneys lacked standing to intervene in divorce action because their interest in fees was peripheral). The amount of reasonable attorney’s fees that the defendant might recover pursuant to § 46b-62 is dependent on the parties’ respective financial abilities and the criteria set forth in General Statutes § 46b-82. It bears noting that it is entirely possible that the dissolution judgment could order both parties to pay their own counsel fees. See Bornemann v. Bornemann, 245 Conn. 508, 543, 752 A.2d 978 (1998) (“[wjhere, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so” [internal quotation marks omitted]); Fitzgerald v. Fitzgerald, 190 Conn. 26, 34-35, 459 A.2d 498 (1983) (finding no abuse of discretion where trial court denied plaintiffs request for counsel fees).

Rutkin’s claim for unpaid fees against the defendant, on the other hand, is not a part of the subject matter of this dissolution action. In a collection action between a law firm and its former client, the court’s assessment of the reasonableness of the fees claimed would be guided by considerations including “the time and labor required, the novelty and difficulty of the questions involved, and the fee customarily charged in the locality for similar legal services.” (Internal quotation marks omitted.) St. Onge, Stewart, Johnson & Reens, LLC v. Media Group, Inc., 84 Conn. App. 88, 93, 851 A.2d 1242, cert. denied, 271 Conn. 918,859 A.2d 570 (2004); see also Rules of Professional Conduct 1.5 (a) (listing factors to be considered in determining reasonableness of fee). Even though the court in this dissolution action might consider these factors as well, Rutkin’s claim against the defendant would not be dependent on, or limited to, the parties’ financial abilities or the criteria set forth in § 46b-82. The evidence submitted in support of the defendant’s claim for attorney’s fees in this action might be virtually identical to that submitted by Rutkin in a claim against the defendant, but the subject matter of this action does not thereby include Rutkin’s fee dispute with the defendant.

We conclude that Rutkin does not have a direct and substantial interest in the subject matter of the litigation as a result of its mortgage on the marital home or the claimed debt underlying that mortgage, and, thus, it does not satisfy the second element of the test described in Kerrigan v. Commissioner of Public Health, supra, 279 Conn. 456-57.

We also consider whether Rutkin satisfies the third element for a colorable claim to intervention as a matter of right, namely, whether the interests that Rutkin has by virtue of its mortgage and the debt underlying that mortgage would be impaired by disposition of the dissolution action without its involvement. Our consideration of this third element is informed by our analysis of the second in that a determination of the scope of the subject matter of this dissolution action assists in the determination of how Rutkin’s interests could be affected within the dissolution action.

Rutkin argues that its mortgage would be unenforceable if the defendant no longer held title to the marital home. On the contrary, Rutkin’s interest in the mortgage on the marital home would not be impaired by the dissolution judgment even if the judgment were to transfer the defendant’s interest in the property to the plaintiff or to a third party. See, e.g., Mortgage Electronic Registration Systems, Inc. v. White, supra, 278 Conn. 219 (affirming foreclosure judgment in favor of mortgagee omitted as party in prior tax hen foreclosure action and against defendants who purchased property from successful bidder at tax lien foreclosure sale). Should the defendant fail in her obligations under the promissory note, Rutkin might choose to pursue an action to foreclose its mortgage on the marital home, regardless of the identity of the holder of equitable title at that point. Therefore, we conclude that Rutkin’s mortgage wih not be set aside or otherwise impaired by disposition of the dissolution action without Rut-kin’s involvement.

Turning to a consideration of the debt underlying the mortgage, that interest will also remain unaffected by disposition of this dissolution action without Rutkin’s involvement. Should Rutkin’s claim for unpaid attorney’s fees against the defendant remain unresolved after the conclusion of this dissolution action, there are several avenues available to Rutkin by which it could pursue its claim. An award of attorney’s fees pursuant to § 46b-62 to the defendant in this dissolution action would not preclude Rutkin from seeking a different amount in an action upon the promissory note or retainer agreement. See, e.g., Rosenberg v. Rosenberg, 286 N.J. Super. 58, 67-68, 668 A.2d 84 (App. Div. 1995).

Rutkin’s reliance on Molitor v. Molitor, 184 Conn. 530, 440 A.2d 215 (1981), Gaudio v. Gaudio, 23 Conn. App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), and Derderian v. Derderian, 3 Conn. App. 522, 490 A.2d 1008, cert. denied, 196 Conn. 810, 811, 495 A.2d 279 (1985), is misplaced, as each of those cases involved a claim that one of the parties to a dissolution action had made a fraudulent conveyance of a marital asset prior to judgment and that the conveyance should be set aside. There is no claim made by Rutkin that there is even a possibility that its mortgage is at risk of being set aside by the court in this action as a fraudulent conveyance.

We have determined that Rutkin cannot make a color-able claim to intervention as a matter of right because it does not have a direct and substantial interest in the subject matter of the litigation and what interests it does have would not be impaired by disposition of the litigation without Rutkin’s involvement. Accordingly, we conclude that the present appeal is not taken from a final judgment.

The appeal is dismissed.

In this opinion the other judges concurred.

       The motion to intervene was filed in the name of Rutkin and Oldham, LLC, which has changed its name to Rutkin, Oldham & Needle, LLC.

       Former counsel for the plaintiff and for the minor children also were granted permission by the trial court to receive similar notes and mortgages as security for attorney’s fees. Former counsel for the plaintiff and for the minor children have not sought permission to intervene as parties to this action.

       No briefs on the merits of the proposed intervenor’s appeal were filed on behalf of the plaintiff, defendant or minor children in this appeal.

       The record indicates that Rutkin is one of several persons or entities that hold mortgages on the marital home, including the former counsel for the plaintiff and the minor children. See footnote 2.

       Our holding that Rutkin’s mortgage does not create a direct and substantial interest in the subject matter of the litigation is not a determination as to the propriety of such a mortgage by an attorney representing a party in a dissolution proceeding or as to the enforceability of this particular mortgage should Rutkin bring an action to foreclose said mortgage. See generally Ankerman v. Mancuso, supra, 271 Conn. 778-80 (noting public policy concerns surrounding attorneys obtaining proprietary interests in subject matter of litigation); Rules of Professional Conduct 1.5 (d) (1) and 1.8 (i).


author: FLYNN, C. J.

text:
    WILLIAM R. SENK v. DONNA LEE SENK
    (AC 29863)
    Flynn, C. J., and Lavine and Beach, Js.

      Argued April 14
    officially released July 7, 2009

      Thomas C. Simones, for the appellant (defendant).

      Michael J. Devlin, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The defendant, Donna Lee Senk, appeals from the judgment of the trial court, rendered following a limited contested trial, dissolving her marriage to the plaintiff, William R. Senk. On appeal, the defendant claims that the court improperly (1) failed to recuse itself from the case after hearing another matter involving the defendant, (2) failed to take into account the evidence in the record as a whole and (3) allowed the submission of evidence that was irrelevant and prejudicial to the defendant. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff and the defendant were married on February 7, 2003. The defendant had been married five or six times, and it was unclear whether she was lawfully divorced or widowed at the times she entered into some of the marriages. While she was married to the plaintiff, she married Mark Randall Johnson in Vermont on August 3, 2006. At the time of the parties’ marriage, the plaintiff had owned the marital residence since August, 1992. The defendant moved into the residence with her three children from a previous marriage. Sometime thereafter, Timothy Maheu, the defendant’s former or present husband at the time, moved in as well. After Maheu moved into the residence, the defendant moved the plaintiff from the master bedroom on the first floor to the basement.

On or about August 1, 2002, the defendant caused the plaintiff to quitclaim to her a 50 percent interest in the marital residence. The plaintiff refinanced the mortgage on the residence, taking a second mortgage loan from People’s Bank in the amount of $80,000, which he used to pay off the existing $38,000 mortgage on the property. The defendant took the remaining $42,000 to pay her accumulated credit card debt and bills and to purchase multiple vehicles. On March 17, 2003, the plaintiff quitclaimed the remaining 50 percent interest in the residence to the defendant. In May, 2004, People’s Bank commenced a foreclosure action on the residence. To avoid foreclosure, the defendant refinanced the People’s Bank mortgage in November, 2005, by securing from another lender an additional interest only mortgage in the amount of $70,000. The loan has a balloon payment of $70,000 due in 2010. The state placed a lien on the residence due to assistance received by the defendant or her children.

Throughout the parties’ marriage, the defendant was abusive, controlling, intimidating and threatening toward the plaintiff. The plaintiff is an alcoholic, and the defendant encouraged or enabled his alcoholism and, further, supplied him with unprescribed prescription medication that caused him to become confused and feeble, quite contrary to his state prior to the parties’ marriage. The defendant further exercised control over the plaintiffs home, credit cards and finances. In 2003 or 2004, the plaintiff vacated the marital residence following the defendant’s unfounded accusations that he had molested her children.

The plaintiff filed a complaint in November, 2006, seeking dissolution of the marriage. The court, Shluger, J., heard testimony on February 21 and 22 and April 1, 2008. On April 2, 2008, the court issued a memorandum of decision in which it stated that it found the plaintiffs testimony to be credible and the defendant’s to be not credible. The court dissolved the parties’ marriage and ordered the defendant to quitclaim the marital residence to the plaintiff. The court further ordered the defendant to pay the lien held by the state and the plaintiff to assume the remaining mortgage on the property. This appeal followed. Additional facts will be supplied where necessary.

I

The defendant first claims that the trial judge, Shluger, J., improperly failed to recuse himself from the case. Specifically, she argues that the trial judge had acquired personal knowledge of the defendant and her situation when he presided over an unrelated restraining order hearing concerning the defendant and her children, held during the course of the parties’ divorce trial. She contends that an appearance of impropriety resulted from the judge’s decision to continue presiding over the divorce action and that pursuant to canon 3 (c) (1) (A) of the Code of Judicial Conduct, the judge should have recused himself from the matter. We disagree.

The following additional facts are necessary for our review of the defendant’s claim. The court, Shluger, J., heard evidence in the parties’ dissolution trial on February 21 and 22, 2008. On March 10, 2008, while the dissolution trial was still ongoing, the court presided over an unrelated hearing in which the department of children and families (department) sought a restraining order against the defendant in regard to two of her children who were in foster care. After hearing testimony from the foster mother of one of the defendant’s children and two witnesses called by the defendant, the court granted the department’s request for a restraining order. On April 1, 2008, the day that the dissolution trial continued, the defendant filed a motion seeking that Judge Shluger recuse himself from the dissolution trial. Following a brief hearing on the matter, the defendant’s counsel withdrew the motion, stating: “Your Honor, just to be absolutely clear, my client has said on the record that she wants you to finish this trial, and she knows you’re a fair and honest man and she—and she’s comfortable with it.”

The defendant acknowledges that because she withdrew the motion to recuse, her claim is unpreserved, and she, therefore, seeks to prevail pursuant to the plain error doctrine. See Practice Book § 60-5. Ordinarily, we will not review a claim of judicial bias unless that claim was properly presented to the trial court through a motion for disqualification or a motion for a mistrial. Cameron v. Cameron, 187 Conn. 163, 168, 444 A.2d 915 (1982). Because of the seriousness of an accusation of judicial bias or prejudice, such claims have been reviewed under the plain error doctrine. Id. The plain error doctrine is not a rule of reviewability; it is a rule of reversibility pertaining to unpreserved trial court rulings for reasons of policy. State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). Its use is limited to truly extraordinary situations where the existence of obvious error affects the fairness and integrity of and public confidence in the judicial proceedings. Id. To prevail under the plain error doctrine, the appellant must show that the judgment appealed will result in manifest injustice. Id.

After review of the transcripts of the relevant proceedings, we conclude that the defendant’s claim does not present the type of extraordinary situation that warrants application of the plain error doctrine. The defendant cites no authority for the proposition that a trial judge who presides over a matter concerning a party thereafter should be recused from hearing another matter concerning that party; indeed, there is authority to the contrary. See Liteky v. United States, 510 U.S. 540, 551, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994) (judge having presided over earlier proceeding concerning party not necessarily biased or prejudiced thereafter against that party); In re Heather L., 274 Conn. 174, 178, 874 A.2d 796 (2005) (same). There is nothing extraordinary about a judge who has presided previously over a proceeding concerning a party hearing another case involving that same party. The defendant here withdrew her motion seeking recusal. The judge was not required to recuse himself simply because he had heard another matter concerning the defendant. Further, we find nothing in the record that would undermine public confidence in the court’s impartiality during the remaining course of the dissolution proceedings. The defendant, therefore, cannot prevail on this claim under the plain error doctrine.

II

The defendant next claims that the court failed to take into account the evidence as a whole. She specifically argues that the court improperly ordered her to quitclaim her interest in the marital residence to the plaintiff because the evidence showed that the plaintiff “gave the marital home to the [defendant] of his own accord.” We disagree.

Our standard of review for this claim is as follows. “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . We also must determine whether those facts correctly found are, as a matter of law, sufficient to support the judgment.” (Internal quotation marks omitted.) Wyszomierski v. Siracusa, 290 Conn. 225, 237, 963 A.2d 943 (2009).

Our thorough review of the record reveals that the court properly considered all the evidence before it in coming to its decision ordering the defendant to quitclaim the marital residence to the plaintiff. The record is replete with evidence of the defendant’s abusive and controlling nature toward the plaintiff from the very outset of the marriage. The court reasonably concluded that the defendant caused the plaintiff to become confused and feeble by plying him with alcohol and prescription drugs not prescribed to him. Also reasonable in light of the evidence was the court’s conclusion that the defendant exerted control over the plaintiffs property, credit cards and finances. Given this evidentiary background, the court’s decision to grant the marital home to the plaintiff was reasonable, grounded in its findings, and well within the court’s statutory authority. See General Statutes § 46b-81 (a). The defendant has failed in her burden to show that any of the court’s findings were clearly erroneous, and the facts found strongly support the court’s judgment.

Ill

The defendant’s final claim is that the court improperly admitted evidence of the defendant’s prior misconduct that was irrelevant and unduly prejudicial to her. Although we agree that such evidence was not admitted properly under the common scheme or plan exception, we conclude that the defendant has failed to demonstrate that these evidentiary rulings were harmful, that is, that they were likely to affect the result in the case.

The court received testimony and other evidence that the defendant, on previous occasions, falsely had accused various men, including two former husbands and her stepfather, of sexually abusing her children. The court also admitted evidence that the defendant had committed financial fraud, including a Probate Court order terminating her guardianship over an estate due to her fraudulent and improper withdrawals from a bank account connected to the estate. The defendant objected to admission of the evidence on the ground that it was irrelevant to the dissolution proceedings and unduly prejudicial to her. The plaintiff stated that he offered the evidence to prove that the defendant’s prior misconduct and various actions during her marriage to the plaintiff constituted a common plan or scheme to obtain the plaintiffs assets fraudulently.

Our standard of review of a claim that a court improperly admitted evidence is well established. We afford great deference to the ruling of a trial court concerning the admissibility of evidence. Jacobs v. General Electric Co., 275 Conn. 395, 406, 880 A.2d 151 (2005). Accordingly, such evidentiary rulings will be overturned only upon a showing of a court’s manifest abuse of its discretion. Id.

Evidence concerning a person’s prior misconduct is inadmissible to prove that person’s bad character or criminal tendencies. Conn. Code Evid. § 4-5 (a). This prohibition pertains to both criminal and civil cases. See Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 191-92, 510 A.2d 972 (1986); 1 C. McCormick, Evidence (6th Ed. 2006) § 189, pp. 748-49. Such evidence of prior wrongdoing is admissible, however, to prove “intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” (Emphasis added.) Conn. Code Evid. § 4-5 (b); see Russell v. Dean Witter Reynolds, Inc., supra, 193 (evidence of defendant’s prior misconduct admissible to prove defendant’s motive and fraudulent intent).

Our Supreme Court has described the common plan or scheme exception, as follows. “Evidence of uncharged misconduct, although inadmissible to prove a defendant’s bad character or propensity to engage in criminal behavior, is admissible ‘[t]o prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part.’ 1 C. McCormick, [supra] § 190, pp. 754-55. To prove the existence of a common scheme or plan, each crime must be ‘an integral part of an overarching plan explicitly conceived and executed by the defendant or his confederates.’ Id., p. 755; see also C. Tait, Connecticut Evidence (3d Ed. 2001) § 4.19.9, p. 237 (‘The exception for common plan or scheme admits evidence of conduct that forms part of an overall plan. This exception requires that the misconduct be connected to a “common” plan or scheme and not be isolated or unconnected conduct of a similar nature.’).” State v. Randolph, 284 Conn. 328, 342, 933 A.2d 1158 (2007).

Applying this law to the facts of the present case leads to the conclusion that the challenged evidence of the defendant’s prior misconduct did not qualify for admission under the common plan or scheme exception. The evidence showed that the defendant had made numerous false allegations of sexual abuse prior to her marriage to the plaintiff. However, the evidence did not demonstrate that these acts were part of an overarching plan which included the defendant’s similar accusations against the plaintiff. Instead, the evidence demonstrated, at most, that the defendant had acted badly in this manner in the past with respect to other persons. The evidence concerning the defendant’s prior financial fraud similarly was not admissible under the common plan or scheme exception, as it was unconnected to any overall plan to defraud the plaintiff in this case.

This determination that the challenged evidence was not admissible under the common scheme or plan exception does not complete our analysis. A party claiming error in an evidentiary ruling of the court must carry the burden of demonstrating that the error was harmful before a new trial may be granted. Desrosiers v. Henne, 283 Conn. 361, 366, 926 A.2d 1024 (2007). In a civil case, the standard for determining whether such an improper ruling is harmful is whether the ruling would likely affect the result. Hicks v. State, 287 Conn. 421, 439, 948 A.2d 982 (2008).

The defendant has not met her burden of demonstrating that the evidentiary error likely affected the result in this case. As has been previously detailed, the court found that the defendant abused, controlled, intimidated and threatened the plaintiff throughout their brief marriage. The court found that the defendant caused the plaintiff to become confused and feeble by encouraging his drinking and providing him with prescription drugs. The court further found that the defendant exercised control over the plaintiffs finances, including the proceeds from the second mortgage loan on the marital residence and the plaintiffs credit cards. All of these findings of the court were supported strongly by the evidence admitted without objection during the trial. The court’s judgment granting the marital residence to the plaintiff was similarly supported by its findings. It cannot be said, therefore, that had the evidence of the defendant’s prior misconduct been excluded the result of the case would have been different.

The judgment is affirmed.

In this opinion the other judges concurred.

       Canon 3 (c) (1) of the Code of Judicial Conduct provides in relevant part: “A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
      “(A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding .. .

       Under our rules of practice, a motion to disqualify a judicial authority must be in writing and accompanied by an affidavit stating the factual basis for the motion and certifying that the motion is made in good faith. Practice Book § 1-23. Further, such a motion must be filed no less than ten days prior to the time the case is next called for trial or hearing, unless good cause is shown for failure to file within this time. Id. The record reflects that the defendant’s motion was not accompanied by the required affidavit. It was also filed on the same day that the court resumed the dissolution trial, although the hearing concerning the restraining order occurred three weeks earlier. The defendant did not provide a satisfactory reason for its lateness. This practice is to be discouraged. The rules of practice exist for a reason and should be followed, particularly in the case of such a serious matter as a claim of judicial bias.

       General Statutes § 46b-81 (a) provides: “At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the Superior Court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect.”