author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. MARLIK A. MOURNING
    (AC 27821)
    DiPentima, Gruendel and Hennessy, Js.

      Argued March 14
    officially released October 30, 2007

      Alice Osedach, assistant public defender, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin and Jason Germain, assistant state’s attorneys, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Marlik A. Mourning, appeals from the judgments of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, and criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction of conspiracy to commit murder and the jury’s verdict was legally inconsistent, (2) the trial court improperly failed to conduct an inquiry into a witness’ assertion of his fifth amendment privilege against self-incrimination, (3) the court improperly denied admission into evidence of the witness’ written statement to police, (4) the court improperly denied the defendant’s for cause challenges to potential jurors during voir dire and (5) the court improperly charged the jury on the elements of conspiracy to commit murder. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In the late evening of July 8, 2003, Lamar Daniels, Deshon Thomas and the defendant gathered in front of an establishment named Cobra’s Place in what is known as the Sugar Bowl area of Waterbury, where the defendant and Daniels often sold drugs. There they engaged in an argument with Desmond Williams and the victim, Trevor Salley, who recently had completed a sale in the area. After the argument ended, the individuals dispersed, and Daniels called his cousin, Sherita Norman, requesting that she pick him up. Several minutes later, Norman and her sister, Sharon Norman, arrived and drove Daniels and the defendant away from the Sugar Bowl and back to Sherita Norman’s apartment. Daniels entered the apartment and retrieved a silver .38 caliber revolver and an AK-47 assault rifle from a bedroom closet. At some point, Daniels handed the .38 caliber revolver to the defendant. Sherita Norman then drove the defendant and Daniels back to the Sugar Bowl and parked in a lot, enclosed by a fence, located behind Cobra’s Place. As the defendant and Daniels approached the fence, they saw the victim and Williams. Daniels called out to them and displayed the rifle, at which point the victim and Williams ran in the opposite direction. Daniels discharged the AK-47 assault rifle several times. The defendant then fired the .38 caliber silver revolver. The gunshot that killed the victim came from the .38 caliber silver revolver fired at the scene.

The defendant subsequently was charged by information with murder, conspiracy to commit murder and criminal possession of a pistol or revolver. After a jury trial, the defendant was found guilty of manslaughter in the first degree with a firearm, conspiracy to commit murder and criminal possession of a pistol or revolver. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to sustain his conviction of conspiracy to commit murder. In a related claim, the defendant argues that the conviction of conspiracy to commit murder and manslaughter in the first degree with a firearm constituted an inconsistent verdict. We disagree with both claims.

A

Our Supreme Court has set forth the well settled standard of review for a claim challenging the sufficiency of the evidence: “In reviewing a sufficiency of the evidence claim, we 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[ A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.” (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842-43, 911 A.2d 1086 (2007).

“To establish the crime of conspiracy to commit murder, the state must show that there was an agreement between two or more persons to cause the death of another person and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. ... In addition, the state also must show that the conspirators intended to cause the death of another person.” (Citation omitted.) State v. Sanchez, 84 Conn. App. 583, 588, 854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d 585 (2004). “The existence of a formal agreement between the parties need not be proved. It is sufficient to show that they are knowingly engaged in a mutual plan to do a forbidden act. . . . Because of the secret nature of a conspiracy, a conviction is usually based on circumstantial evidence. . . . The state need not prove that the defendant and a coconspirator shook hands, whispered in each other’s ear, signed papers, or used any magic words such as we have an agreement.” (Citations omitted; internal quotation marks omitted.) State v. Crump, 43 Conn. App. 252, 258, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996).

In this case, the jury heard ample evidence from which it could have concluded that the defendant and Daniels conspired to murder the victim. On the date of the murder, the defendant and Daniels had an argument in front of Cobra’s Place with the victim and Williams regarding an alleged drug sale. There was testimony that after the argument, Daniels was heard saying that “those niggers got to go” and that “somebody’s gonna feel this shit tonight.” The defendant, though remaining quiet, appeared equally upset. The Normans drove the defendant and Daniels from the scene of the argument to Sherita Norman’s apartment where Daniels retrieved two loaded guns from a bedroom closet and handed one to the defendant. The Normans then drove the defendant and Daniels back to the area of Cobra’s Place. The defendant stood next to Daniels when the latter fired his weapon in the direction of the victim and Williams. The weapon that was determined to have killed the victim was the one that the defendant had been carrying. Both the defendant and Daniels fled the scene together once the victim had been shot.

From these facts, the jury reasonably could have found that the defendant and Daniels agreed to cause the death of the victim and committed an overt act in furtherance thereof. In addition, the jury reasonably could have determined that the defendant and Daniels intended to cause the death of the victim. “In considering whether the evidence fairly supports a jury’s finding of guilt, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Diaz, 237 Conn. 518, 542, 679 A.2d 902 (1996). Accordingly, we conclude that sufficient evidence was offered to convict the defendant of the crime of conspiracy to commit murder.

B

In a related claim, the defendant argues that the jury’s guilty verdict of conspiracy to commit murder and of manslaughter in the first degree with a firearm is legally inconsistent. Specifically, he claims that the verdict’s legal inconsistency is evident because the intent to kill and the intent to cause serious physical injury are contradictory elements. We note that “[t]he resolution of a claim of inconsistent verdicts presents a question of law. . . . Our review is therefore plenary.” (Citation omitted.) State v. Flowers, 85 Conn. App. 681, 694, 858 A.2d 827 (2004), rev’d on other grounds, 278 Conn. 533, 898 A.2d 789 (2006).

“The issue of legal inconsistency typically arises when a defendant is convicted of two offenses that contain contradictory elements. Such verdicts are legally inconsistent if the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted.” (Internal quotation marks omitted.) State v. Knight, 266 Conn. 658, 667, 835 A. 2d 47 (2003). The elements necessary to convict the defendant of conspiracy to commit murder have been set forth in part I A and include the intention to cause the death of another. See State v. Sanchez, supra, 84 Conn. App. 588. To convict the defendant of manslaughter in the first degree with a firearm, “the state must prove that the defendant, (1) with the intent to cause serious physical injury to another person, (2) caused the death of such person or a third person (3) using, or threatening to use by displaying or representing by his words or conduct, that he possesses a firearm.” (Emphasis added.) State v. Smith, 73 Conn. App. 173, 180, 807 A.2d 500, cert. denied, 262 Conn. 923, 812 A.2d 865 (2002).

Although the specific intents necessary for both crimes are not identical, appellate precedent dictates that the two are not mutually exclusive. See, e.g., State v. Williams, 237 Conn. 748, 679 A.2d 920 (1996), on remand, 44 Conn. App. 231, 689 A.2d 484, cert. denied, 240 Conn. 918, 692 A.2d 815 (1997). The defendant in Williams had been convicted of both attempt to commit murder and assault in the first degree for having punched the victim and having hit her repeatedly over the head with a baseball bat, ultimately causing her death. Id., 749, 751. He claimed that the intent to cause death and the intent to cause serious physical injury were mutually exclusive states of mind. Id., 749. Our Supreme Court concluded that “under the appropriate circumstances, a defendant can simultaneously intend to cause the death of, and intend to cause serious physical injury to, the same victim. . . . The jury reasonably could have inferred from the defendant’s conduct that he had possessed, at the same time and by the same acts, the intent to cause the victim’s death and the intent to cause the victim serious physical injury while he was attempting to kill her.” (Citations omitted; internal quotation marks omitted.) Id., 757.

The defendant attempts to distinguish Williams by emphasizing that it involved repeated hits with a baseball bat while this case concerns a single deadly gunshot, and “[f]rom that one action, it would be unreasonable to conclude that the defendant simultaneously possessed the intent to kill and the intent to cause serious physical injury.” We note, however, that gradations of specific intent for purposes of a claim of legal inconsistency represent a distinction without a difference. See, e.g., State v. Murray, 254 Conn. 472, 483, 757 A.2d 578 (2000) (“one cannot intend to cause death without necessarily intending to cause a physical injury”); cf. State v. King, 216 Conn. 585, 593-94, 583 A.2d 896 (1990) (jury could not find defendant guilty on count of attempt to commit murder and guilty on count of assault in first degree because “statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive and inconsistent”), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991).

“Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 197, 672 A.2d 488 (1996). Because the intent required for conviction of conspiracy to commit murder and the intent necessary for a conviction of manslaughter in the first degree with a firearm are not contradictory, the jury’s conclusion is not unreasonable, and the defendant’s claim of legal inconsistency of the verdict fails.

II

The defendant raises multiple claims concerning the assertion by a witness, Clifford Wynn, of his fifth amendment privilege against self-incrimination. The following facts are relevant to our consideration of these claims.

Wynn was an inmate at New Haven Correctional Center during the investigation of the death of Salley. Sergeant Scott Stevenson of the detective bureau of the Waterbury police department testified that he received a telephone call from the department of correction that an inmate, later identified as Wynn, had information regarding the shooting of Salley. Specifically, Wynn claimed that he witnessed the shooting and that someone other than the defendant was the shooter. Wynn eventually met with detectives and made an official statement. The defendant sought to call Wynn as a witness and to introduce his statement into evidence at trial.

Prior to Wynn’s taking the witness stand, the court and defense counsel had a discussion off the record, after which the jury was excused and the court called Wynn to the stand. The court asked Wynn if he had any concerns regarding testifying. When he responded, “I need my rights,” the court read Wynn his rights and asked him specifically if he thought any questions he might have to answer would be incriminating. The court informed him that if that was the case, he would have the right to invoke his fifth amendment privilege against self-incrimination. Wynn stated that he understood and that he had concerns. The court reexplained the fifth amendment privilege and its purpose, and Wynn stated that he had no concerns. The court gave both counsel the opportunity to question the witness and both declined. The court again asked Wynn if he had any concerns or questions he wanted to ask of the court before the jury returned, to which he replied that he had been questioned several times, but had not been able to speak with a lawyer. The court asked Wynn if he would like to speak to a lawyer before answering any questions, and he replied in the affirmative. Defense counsel then requested the opportunity to voir dire Wynn. The court granted this request and allowed both defense counsel and the prosecutor to voir dire Wynn. At the conclusion of voir dire, the court recessed to find an attorney with whom Wynn could speak before having him testify in the case. The court reconvened, and Wynn retook the witness stand after speaking with an attorney.

When Wynn had retaken the witness stand, the court heard from Wynn’s newly appointed attorney, who informed the court that having met with Wynn and having had a “very, very good interchange in terms of what we thought would be the appropriate action to take,” he had advised Wynn that he should claim his privilege as to all questions asked of him. The court then allowed defense counsel to inquire. During counsel’s inquiiy and prior to Wynn’s assertion of his fifth amendment privilege, defense counsel, in an attempt to ascertain Wynn’s motive for not testifying, asked Wynn whether he had been having problems in jail and whether he had been threatened in jail. Wynn responded to both questions affirmatively. Next, defense counsel asked Wynn whether he had told Sergeant Stevenson that he had been threatened. Before Wynn could respond, his appointed attorney interjected to advise his client to assert his fifth amendment privilege to this and all other questions. Wynn did not respond to this question either by answering it or by asserting his fifth amendment privilege. After some discussion between the court and counsel regarding the relevance of the questions asked and whether they were questions to which Wynn could validly assert his privilege, defense counsel began to inquire again. Defense counsel asked Wynn if he had been jumped in prison, and Wynn asserted his fifth amendment privilege to this question. Defense counsel objected to Wynn’s assertion, and the court overruled the objection. There was no further inquiry by defense counsel.

A

The defendant claims that the court failed to “[hear] a voir dire conducted by trial counsel of the proposed questions and area of inquiry so that the court could make a determination if such testimony would possibly have a tendency to incriminate . . . .” The defendant argues that the failure of the court to hold a voir dire amounted to an acceptance of a blanket assertion in violation of the defendant’s constitutional right to compulsory process to produce witnesses in his behalf under the sixth amendment to the federal constitution and article first, § 8, of the state constitution. Although such a claim may be raised on appeal, the record in the present case is inadequate for review.

It is axiomatic that appellants bear the burden to provide this court with an adequate record for review. See Practice Book § 61-10. As we have noted, “[speculation and conjecture have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). In the present case, after Wynn asserted his fifth amendment privilege, the defendant neither asked the court to conduct a voir dire, nor objected on the ground that a voir dire was not allowed. When Wynn asserted his privilege, defense counsel requested that the court either force the witness to testify or grant the witness immunity. The court refused to do either but invited further inquiry from defense counsel. Defense counsel did not inquire further. Because defense counsel did not pursue further questioning or request an evidentiary hearing, it is impossible for this court to tell, without speculating, whether the trial court would have denied defense counsel an opportunity to voir dire such that it amounted to an acceptance of a blanket assertion of Wynn’s privilege.

B

The defendant also claims that Wynn asserted an invalid fifth amendment privilege against self-incrimination that deprived the defendant of his constitutional right to compulsory process to produce witnesses in his behalf under the sixth amendment to the federal constitution. This claim is preserved only with regard to the question to which Wynn asserted his fifth amendment privilege, namely, whether he had been jumped in jail.

Because a valid fifth amendment privilege against self-incrimination will always prevail over a defendant’s right to compel testimony on his behalf; State v. Simms, 170 Conn. 206, 209, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976); it first must be ascertained whether Wynn had a valid fifth amendment privilege to assert. If Wynn’s privilege is valid, the defendant’s sixth amendment claim must give way, and he will have failed to state a constitutional claim on appeal. Id., 209-10.

A ruling on the validity of a witness’ fifth amendment privilege is an evidentiary determination that this court will review under the abuse of discretion standard. As our Supreme Court has stated: “It is well settled that the trial court’s evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.” (Citation omitted.) Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002). “To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” (Internal quotation marks omitted.) State v. Simms, supra, 170 Conn. 209. Put another way,- in order for the trial court to find that the witness does not have a valid privilege, “it must be perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have [a] tendency to incriminate the witness. . . . The right of the privilege does not depend upon the likelihood of prosecution but upon the possibility of prosecution.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Giraud, 258 Conn. 631, 640, 783 A.2d 1019 (2001).

In the present case, it was not perfectly clear from all the circumstances that the answers could not possibly have a tendency to incriminate the witness. Before Wynn testified, Stevenson testified that the police doubted the veracity of Wynn’s statement for several reasons, including (1) Wynn’s attempt to obtain a release from prison in exchange for his statement, (2) Wynn’s having been incarcerated with the person whom he claimed to be the shooter, (3) the inconsistency of Wynn’s statements with other witness statements and (4) the fact that no other witness identified Wynn as being at the scene of the shooting. Because the possibility of prosecution is sufficient for a valid fifth amendment privilege to exist, the court did not abuse its discretion in ruling that Wynn had a valid privilege to assert. Therefore, the defendant’s sixth amendment right to compel testimony must yield to Wynn’s valid fifth amendment privilege, and the defendant’s claim thus fails.

C

In the alternative, the defendant claims that even if Wynn had a valid privilege, the court either should have ordered the state to grant immunity or should have granted the witness immunity sua sponte. Additionally, the defendant claims that the court’s failure to rule in the defendant’s favor excluded evidence necessary to the defendant’s defense and thus violated the defendant’s right to compulsory due process under the sixth amendment to the federal constitution. “The issue of whether a defendant’s rights to due process and compulsory process require that a defense witness be granted immunity is a question of law and, thus, is subject to de novo review.” State v. Holmes, 257 Conn. 248, 252, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L. Ed. 2d 229 (2002). We conclude that the court did not act improperly in not granting either request.

General Statutes § 54-47a grants the prosecutor, and not the court, the authority to compel the testimony of any witness through a grant of immunity. The defendant’s claim, therefore, that the court should have granted Wynn immunity sua sponte is incorrect according to applicable state law. The defendant also refers to an alternative theory of granting immunity, the so-called “effective defense theory.” Under this theory, the court presumably could order the prosecutor to grant a wdtness immunity when the witness’ testimony will be clearly exculpatory and clearly necessary in that it is material yet not cumulative, and where the prosecutor does not have a strong interest in withholding immunity. State v. Holmes, supra, 257 Conn. 255. Although recognized as a theory for granting immunity, our Supreme Court has never applied this theory. In addition, our Supreme Court has noted that “[t]he effective defense theory has not been well received by the other Circuit Courts of Appeals. . . . [They] have found this theory to implicate separation of powers principles.” (Citation omitted.) Id., 255 n.7. The legislature has granted the prosecutor the power of providing immunity to witnesses, but has not granted such power to the court.

The defendant argues that Wynn’s testimony was clearly exculpatory and clearly essential to the defense in that Wynn was the only witness who supported the defense theory of the case: that someone other than the defendant was the person who fired the fatal gunshot. We conclude, however, that Wynn’s testimony was not clearly essential to the defendant’s case in that it would have been cumulative. As noted in part II B, on direct examination, Stevenson testified that Wynn had made a written statement that he had witnessed the shooting and that someone other than the defendant was the shooter. Further, Stevenson testified on direct examination as well as on cross-examination about the contents of Wynn’s statement regarding where Wynn would have been standing and how Wynn described the events that had transpired. As a result, the evidence that the defendant wanted to present to the jury through Wynn had already been admitted through Stevenson. We therefore cannot say that the court’s denial of the defendant’s request was improper.

Ill

The defendant next claims that the court improperly ruled that Wynn’s statement should not be admitted into evidence under the residual hearsay exception. “It is well settled that the trial court’s evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and [our appellate courts] will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.” (Citation omitted.) Pestey v. Cushman, supra, 259 Conn. 368-69. We conclude that the court did not abuse that discretion.

Once Wynn asserted his fifth amendment privilege not to testify, defense counsel attempted to enter into evidence Wynn’s written statement to police regarding his version of the events that transpired on the evening of the incident. Under our rules of evidence, hearsay is “a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted.” Conn. Code Evid. § 8-1 (3). Wynn’s statement to police was one he made other than while testifying, and it was being offered to establish the truth of the content of the statement. Wynn’s statement, therefore, was hearsay and could not be admitted into evidence unless it met the requirements for a hearsay exception, specifically, the residual hearsay exception. Under the residual hearsay exception, a hearsay statement that is not otherwise admissible under any of the other exceptions is admissible if the court determines that “(1) there is a reasonable necessity for the admission of the statement, and (2) the statement is supported by equivalent guarantees of trustworthiness and reliability that are essential to other evidence admitted under traditional exceptions to the hearsay rule.” Id., § 8-9.

Here, the court could have found that either the admission of the statement was not reasonably necessary or that it was not supported by equivalent guarantees of trustworthiness. Up to that point in the trial, the court had already heard testimony from Stevenson that Wynn claimed to have witnessed the shooting and had made a written statement identifying someone other than the defendant as the shooter. Because this testimony was already before the jury, the court may have found that Wynn’s statement was not reasonably necessary. More importantly, however, Stevenson had testified that the police attempted to corroborate Wynn’s statement of the events to no avail, that prior to giving his statement, Wynn had been incarcerated with the person whom he claimed to be the shooter and that Wynn had been looking to cooperate in an attempt to lighten his own sentence. From Stevenson’s testimony, therefore, the court could have found that Wynn’s statement was not supported by equivalent guarantees of trustworthiness and reliability. The court, therefore, did not abuse its discretion by not allowing Wynn’s statement into evidence.

IV

The defendant claims that he was forced to use his peremptory challenges to strike certain potential jurors during voir dire because the court improperly denied four for cause challenges. He claims specifically that, as a result of using his peremptory challenges to strike potential jurors who should have been stricken for cause, he was left with an insufficient number of peremptory challenges with which to strike venireperson T when he was originally seated as an alternate juror.

“[ I]t is reversible error for a trial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” (Internal quotation marks omitted.) State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992). In the present case, however, upon accepting T as an alternate juror, defense counsel stated, “[w]ell, Your Honor, I am out of challenges, so I have none for cause; I suppose I accept him.” Although he reluctantly accepted T, defense counsel conceded that he had no reason to challenge T for cause, and he failed to ask for an additional peremptory challenge. Because the defendant failed to challenge T for cause, or to request an additional challenge, we do not reach the question of whether the for cause challenges earlier denied were improperly denied because we do not know for sure whether the defendant would have stricken T at the time T was seated as an alternate juror.

Furthermore, the court did not abuse its discretion by denying the defendant the opportunity to use a newly gained peremptory challenge to strike T retroactively once T’s status changed from that of alternate juror to that of regular juror.

During the jury selection process, the court excused a total of three regular jurors and one alternate. The court seated the remaining alternates, including T, as regular jurors in order to replenish the regular jury panel. The court then resumed jury selection in order to select three additional jurors to serve as alternates. Each side was given one additional peremptory challenge for this selection process. Defense counsel sought to use this newly gained peremptory challenge to retroactively strike T, who had by this time become a member of the regular jury. This request was denied.

“[ W]hen the examination is on the voir dire, a party has no right to a peremptory challenge after he has accepted a juror upon the conclusion of his examination; but the court, where the ends of justice so require, may in its discretion permit such a challenge to be made at anytime before the jury is sworn.” (Internal quotation marks omitted.) Walczak v. Daniel, 148 Conn. 592, 596-97, 172 A.2d 915 (1961). Moreover, “once a juror is accepted, with opportunity for exercise of aperemptory challenge, he may not later be challenged except for cause later appearing.” DeCarlo v. Frame, 134 Conn. 530, 534, 58 A.2d 846 (1948). As explained previously, the defendant neither challenged T for cause nor requested an additional peremptory challenge with which to strike T at the time he was seated as an alternate juror. Nothing about T had changed from the time he had been impaneled as an alternate to the time he was moved to the regular jury. T’s change of status from alternate to regular jury member does not, as the defendant suggests, change anything about T’s ability to be a fair and impartial juror. The court, therefore, did not abuse its discretion in denying the defendant the opportunity to strike T retroactively.

V

The defendant claims that he was deprived of his right to a fair trial because the court failed to instruct the jury that the crime of conspiracy to commit murder requires the specific intent to cause the death of another. We conclude that, read as a whole, the jury charge was not improper.

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established mies of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper-verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instmction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instmction misled the jury. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instmctions as improper.” (Citation omitted; internal quotation marks omitted.) State v. Michael T., 97 Conn. App. 478, 483-84, 905 A.2d 670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006).

When charging the jury on the conspiracy to commit murder charge, the court first instmcted on the elements of conspiracy generally by quoting the statutory language, stating: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance [of] such conspiracy. To constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt: one, there was an agreement between the defendant and one or more persons to engage in conduct constituting a crime. Two, there was an overt act and furtherance of [the] subject of the agreement by any one of those persons. And, three, there was intent on the part of the defendant that conduct constituting a crime be performed.” (Emphasis added.)

The court further explained each element of the crime in greater detail and, as to the intent element, instructed that “ [i]f you find that there was an agreement to engage in conduct constituting a crime [and] that the agreement was followed by an act or acts directed to achieve or further the objective of the conspiracy, you must still determine whether the defendant had criminal intent. The defendant may not be found guilty unless the state has proven beyond a reasonable doubt that he had specific intent to violate the law when he entered into the agreement to engage in conduct constituting a crime.” (Emphasis added.)

After the charge was read to the jury, defense counsel objected to the conspiracy charge. Counsel argued that by charging that the intent was the “intent on the part of the defendant that conduct constituting a crime be performed,” the court failed to align the conspiracy count with the crime of murder and so confused and misled the jury. Defense counsel argued that the jury should have been instructed that conspiracy to commit murder required an agreement to commit murder, an overt act in furtherance of the agreement to commit murder and the intent to commit the crime of murder. The court then recharged the jury on the conspiracy charge, adding that the crime the state alleged was the object of the conspiracy was the crime of intentional murder. The court recharged as follows: “To constitute the crime of conspiracy, the state must prove the following elements beyond a reasonable doubt: there was an agreement between the defendant and one or more persons to engage in conduct constituting a crime. This is the additional part, [l]he crime the state alleges is the object of the conspiracy is the crime of intentional murder. Two, that there was an overt act ... in furtherance of the subject of the agreement by any one of those parties . . . and three, there was intention on the part of the defendant [that] the conduct constituting the crime be performed.” (Emphasis added.)

Defense counsel objected to the recharge on the same grounds as the original objection. After the recharge, the jury sent a note to the court, asking whether it would be possible for the court to define conspiracy in layman’s terms because the jury was having “some confusion and different interpretations of the definition.” In response, the court recharged the jury on conspiracy to commit murder as follows: “[T]he crime of conspiracy has four essential elements, which are: one, two or more persons reached an agreement or came to an understanding to engage in conduct constituting a criminal act. Here, to commit the crime of intention[al] murder as I have defined that crime for you in § 27 at pages thirty-seven and thirty-eight of the jury charge, the agreement or understanding does not have to be an expressed or formal agreement. Two, the defendant voluntarily and intentionally joined in the agreement or understanding either at the time it was first reached or at some later time while it was still in effect. Three, at the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding. And, four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did an act for the purpose of carrying out or carrying forward the agreement or understanding.” (Emphasis added.)

The court defined intentional murder in § 27 of the jury charge as follows: “A person is guilty of murder when with intent to cause the death of another person he causes the death of such person . . . .” (Internal quotation marks omitted.) In addition, the instruction names the victim as the object of the crime.

The essential elements for the crime of conspiracy are well established. General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” “Conspiracy is a specific intent crime, with the intent divided into two elements: (a) the intent to agree or conspire and (b) the intent to commit the offense which is the object of the conspiracy.” (Internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986). Thus, “[p]roof of a conspiracy to commit a specific offense requires proof that the conspirators intended to bring about the elements of the conspired offense.” (Emphasis in original; internal quotation marks omitted.) Id., 5. The state, therefore, in order to prove the offense of conspiracy to commit murder, “must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to cause the death of another person.” State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992). Because these two distinct elements of intent to conspire to commit murder are required to be found by the jury beyond a reasonable doubt, it is essential that the jury instructions charge the jury accordingly. Although the original charge did not sufficiently charge the jury on the specific intent required to find the defendant guilty of conspiracy to commit murder, the court’s subsequent curative instructions clarified this for the jury such that, read as a whole, the jury charge was “correct in law, adapted to the issues, and sufficient for the guidance of the jury . . . .” (Internal quotation marks omitted.) State v. Michael T., supra, 97 Conn. App. 484.

In a case strikingly similar to the present case, involving conspiracy to commit murder, State v. Aponte, 63 Conn. App. 82, 774 A.2d 1035 (2001), aff'd, 259 Conn. 512, 790 A.2d 457 (2002), the same issue was presented, and a similar curative instruction was found to be sufficient to guide the jury. In Aponte, the original jury charge instructed the jury that the intent required to be found guilty of conspiracy to commit murder was the “intent to violate the law when [the defendant] entered into the agreement to engage in conduct constituting a crime.” (Internal quotation marks omitted.) Id., 87. The defendant took exception to the charge on the intent element, and the court provided a curative instruction that clarified that the object of the conspiracy was the crime of murder. The court stated: “I just want to add one thing . . . and that is when we talk about the conspiracy, the crime that’s related to conspiracy is murder so, in other words, the question is whether there was a conspiracy to commit murder as I’ve defined that for you.” (Internal quotation marks omitted.) Id.

In the present case, the court provided a similar curative instruction. In the recharge, the court instructed the jury that the object of the conspiracy was intentional murder. In the second recharge, the court restated that the object of the conspiracy was intentional murder and, further, directed the jury to the section and page of the jury charge that defined intentional murder and named the victim as the object of the murder. In sum, therefore, read as whole, including the curative instruction given by the court, the jury was instructed properly such that it was not misled, and no injustice was done to the defendant.

The judgments are affirmed.

In this opinion the other judges concurred.

       We review the defendant’s sufficiency of the evidence claim first because that claim, “if successful, would necessitate the entry of a judgment of acquittal . . . .” (Citation omitted.) State v. Murray, 254 Conn. 472, 478, 757 A.2d 578 (2000).

       Although the defendant did not preserve his claim, we afford review because it implicates his constitutional right not to be convicted on insufficient proof. See, e.g., State v. Morgan, 70 Conn. App. 255, 281, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002).

       Upon objection by the defendant during the court’s charge to the jury, the court clarified that the crime that the defendant and Daniels intended to commit was murder. See part V.

       The defendant’s motion for a judgment of acquittal properly preserved his claim of a legally inconsistent verdict.

       The defendant also appears to claim that the verdict is factually inconsistent because the jury found him not guilty of murder, yet found him guilty of the lesser included offense of manslaughter in the first degree with a firearm, thus finding that he did not have the requisite intent to cause death, but rather, the intent to cause serious physical injury. He claims that those not guilty findings cannot be reconciled with his conviction of conspiracy to commit murder, which necessarily requires the intent to cause death. We note, however, that “[a] factually inconsistent verdict will not be overturned on appeal. On several occasions, [our Supreme Court] has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. . . . The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise.” (Internal quotation marks omitted.) State v. Knight, supra, 266 Conn. 670. We thus conclude that the defendant’s apparent claim of factual inconsistency of the verdict is without merit.

       See State v. Cecarelli, 32 Conn. App. 811, 820, 631 A.2d 862 (1993) (holding that trial court improperly accepted blanket assertion of witness’ fifth amendment privilege from witness’ attorney without having witness take witness stand thereby delegating its authority to witness’ attorney).

         In response to defense counsel’s request that Wynn be forced to testify or be granted immunity to testify, the court replied: “I will not go behind the reasons why counsel and his client have elected to invoke their fifth amendment privilege, so I will not force the witness to testify, nor indicate that the state should give immunity, nor sua sponte grant immunity from the court. Anything else?” Defense counsel responded: “No, nothing from the defense, Your Honor."

       Whether Wynn had a valid fifth amendment privilege to assert regarding the statement he gave to police cannot be reviewed, as those questions were never asked.

       See State v. Kelly, 256 Conn. 23, 30 n.4, 770 A.2d 908 (2001) (“[w]e use the initials of . . . venirepersons to protect their privacy”).

       Prior to the court’s recharging the jury, defense counsel objected to the proposed recharge on the same grounds as in his first objection.

       Defense counsel objected to the recharge on two grounds. First, he claimed that the court’s recharge broke the crime down into four elements as opposed to three and, second, he claimed that the charge failed to instruct the jury that in order to find the defendant guilty of conspiracy to commit murder, the jury must be convinced beyond a reasonable doubt that the defendant intended to cause the death of the victim.
      During the colloquy between the court and counsel and outside the presence of the jury, the court stated that although intending that the victim die is an element of the crime of intentional murder, it is not an element of the crime of conspiracy. The state concedes that this was an incorrect statement of the law, and we agree. Nevertheless, because the statement was made outside the presence of the jury, it could not have had an impact on the deliberations of the jury and did not affect the correct instruction that the court ultimately gave.

       The defendant relies on State v. DeJesus, 92 Conn. App. 92, 883 A.2d 813 (2005), appeal dismissed, 282 Conn. 783, 928 A.2d 533 (2007), for the proposition that the court’s curative instruction was not sufficient. The issue in DeJesus was unique to that case. In DeJesus, the defendant was charged with various crimes, the victims of which were different depending on the crime charged. Therefore, it was necessary for the trial court to be specific when it charged on conspiracy to commit murder in that it needed to go “beyond a bare statement of accurate legal principles” and state the person to which the conspiracy count referred. (Internal quotation marks omitted.) Id., 107. In the present case, although it was not necessary for the court to refer to the intended victim by name, as there was only one possible person to whom the charge could relate, the court did name him in its instruction on intentional murder. Therefore, DeJesus is distinguishable from the present case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RAMON MORENO-CUEVAS
    (AC 27620)
    Bishop, McLachlan and Pellegrino, Js.
    Argued September 5
    officially released October 30, 2007

      Ramon Moreno-Cuevas, pro se, the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Roslyn Fleisher, senior assistant state’s attorney, for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Ramon MorenoCuevas, who is representing himself, appeals from the judgment of conviction, rendered after a trial to the court, of criminal trespass in the first degree in violation of General Statutes § 53a-107. On appeal, the defendant claims that he was denied his constitutional rights to a fair trial as a result of prosecutorial impropriety and judicial misconduct. We affirm the judgment of the trial court.

The following facts and procedural history are necessary for our disposition of the defendant’s appeal. The defendant was granted admission to a master’s degree program at Fairfield University (university) in the spring of 2005. On September 21, 2005, the director of security for the university, Todd A. Pelazza, informed the defendant that he was not allowed in university buildings after 10 p.m. On multiple occasions thereafter, university personnel saw the defendant in university buildings after 10 p.m. in violation of Pelazza’s order. On September 28, 2005, Pelazza met with the defendant and issued a criminal trespass letter stating that the defendant was not to enter the premises of the university. When the defendant refused to sign the letter, Pelazza read the letter verbatim and handed it to the defendant.

On or about October 17, 2005, at approximately 1 a.m., David Salthouse, a security officer for the university, saw a vehicle on university property that he recognized as belonging to the defendant. Salthouse confirmed that the vehicle belonged to the defendant and that there was a valid criminal trespass warning against him. Salthouse then stopped the vehicle and identified the operator as the defendant. Security for the university summoned the Fairfield police department. An officer arrested the defendant and charged him with criminal trespass in the first degree.

After a trial, the court found the defendant guilty of criminal trespass in the first degree. The court rendered judgment and sentenced the defendant to one year in the custody of the commissioner of correction, execution suspended, plus three years probation with the special condition that the defendant not enter the premises of the university. This appeal followed.

We begin our analysis by noting our role as an appellate court. “This court cannot retry the facts or pass upon the credibility of the witnesses.” (Internal quotation marks omitted.) Drabik v. East Lyme, 234 Conn. 390, 395, 662 A.2d 118 (1995). “The [fact-finding] function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us. Appellate review of a factual finding, therefore, is limited both as a practical matter and as a matter of the fundamental difference between the role of the trial court and an appellate court.” (Internal quotation marks omitted.) Welsch v. Groat, 95 Conn. App. 658, 666, 897 A.2d 710 (2006). The trial court’s findings of fact are entitled to great deference and will be overturned only on a showing that they were clearly erroneous. See, e.g., Benedetto v. Wanat, 79 Conn. App. 139, 146-47, 829 A.2d 901 (2003).

In the present case, the defendant raises a plethora of factual issues, some of which are being raised for the first time on appeal. We are not at liberty, however, to make the factual findings the defendant wants us to make. At trial, the court found that the evidence established beyond a reasonable doubt that the defendant was guilty of criminal trespass in the first degree. Applying our deferential standard of review to the record, we cannot say that the court’s findings were clearly erroneous. There is sufficient evidence in the record by which the court could determine that the defendant was guilty of criminal trespass in the first degree.

The defendant also claims that a number of his constitutional rights were violated by prosecutorial impropriety and judicial misconduct. We summarily dispose of the defendant’s constitutional claims. Our review of the record, including four volumes of transcript and all of the exhibits introduced at trial, fails to uncover even an inkling of evidence supporting the defendant’s claims of prosecutorial impropriety or judicial misconduct, much less evidence supporting a violation that would rise to the level of constitutional significance. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Contrary to the defendant’s assertions, there was no constitutional error.

The judgment is affirmed.

       General Statutes § 53a-107 (a) provides in relevant part: “A person is guilty of criminal trespass in the first degree when: (1) Knowing that such person is not licensed or privileged to do so, such person enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to such person by the owner of the premises or other authorized person . . . .”

       By sua sponte order dated August 18, 2006, the court struck the defendant’s claim of ineffective assistance of trial counsel. The prosecutorial impropriety claims include (1) suppression of evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), (2) improper attack of the defendant's character during closing arguments, (3) distortion of the record while questioning witnesses and (4) undisclosed conflicts of interest. The judicial misconduct claims include (1) violation of the defendant’s sixth amendment rights, (2) excessive judicial intervention during cross-examination, (3) bias, (4) failure to recuse the prosecutor and (5) failure to hold a public trial.

       The court canvassed the defendant on his right to representation, but the defendant elected to try his case pro se. When the state concluded its case, the defendant engaged defense counsel who, thereafter, remained counsel of record throughout the trial.

       The defendant argued his appeal pro se. Many of his arguments and assertions far exceed the scope of our appellate review. Furthermore, many of the defendant’s assertions fail to provide any meaningful legal analysis or arguments, and he merely alludes to his litany of claims in a haphazard manner. “[Appellate courts] are not required to review issues that have been improperly presented . . . through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 153 n.19, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005). We limit our review to the defendant’s claims of prosecutorial impropriety and judicial misconduct.

       Specifically, the court found 1hat, the defendant was on the premises of the university knowing that he was not privileged to do so and after an order to leave had been personally communicated to him. The court also found that the defendant’s defenses, including, inter alia, that he was privileged to be on university property, were unavailing.

       The defendant failed to raise any constitutional claims at trial. “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3} the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


text:
    GOLNAZ SHOBEIRI v. ANNE W. RICHARDS ET AL.
    (AC 28299)
    Flynn, C. J., and DiPentima and Lavine, Js.
    Argued September 19
    officially released October 30, 2007

      Anne W. Richards, pro se, the appellant (named defendant).

      Maureen O’Doherty, for the appellee (plaintiff.)
   Opinion

PER CURIAM.

This is an appeal from the judgment of the trial court in favor of the plaintiff, Golnaz Shobeiri, for money damages resulting from the breach of a residential lease agreement. The pro se defendant Anne W. Richards claims that the court improperly (1) failed to apply provisions of the Bridgeport housing code to the facts and (2) found her liable for rent for the entire term of the lease without requiring the plaintiff to mitigate her damages. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. In her complaint, the plaintiff alleged that on October 31,2003, the parties entered into a lease agreement according to which the defendant would rent 25 Cartwright Street, unit 8A, in Bridgeport, a condominium owned by the plaintiff, for a term of one year commencing on November 1, 2003. The defendant admitted in her answer that she signed the lease, but claimed that no rent was due because certain housing and health code violations existed in the unit. Soon after moving in, the defendant moved out, notified the plaintiff that she had vacated the property, and requested the return of her security deposit.

Following a trial on November 8 and 9, 2006, the court rendered an oral decision in favor of the plaintiff, concluding that the defendant “did violate the lease” and “had no legal grounds for leaving the premises or vacating the premises.” Finding the defendant responsible for the entire term of the lease, the court stated, “I find [that] the testimony of [the defendant] was overcooked, overdone. I’m unable to agree with her that the premises were in the condition that she says they were in . . . .” The court ordered the defendant to pay damages of $950 per month, crediting her with three months rent paid, for a total of $8550. While issuing its ruling, the court did not address the applicability of the Bridgeport housing code or the question of mitigation of damages. The defendant then filed this appeal.

The court issued neither a memorandum of decision nor a signed transcript. Practice Book § 64-1 (a) provides in relevant part: “The court shall state its decision either orally or in writing .... If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. . . .” Practice Book § 64-1 (b) provides in relevant part that “[i]f the trial judge fails to file a memorandum of decision or sign a transcript of the oral decision . . . the appellant may file with the appellate clerk a notice that the decision has not been filed in compliance with subsection (a). ...” Section 64-1 clearly establishes the procedure to be followed by an appellant in the event that the trial court fails to comply with Practice Book § 64-1 (b). Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 608, 710 A.2d 190 (1998). A defendant who fails to utilize this procedure fails to ensure an adequate record for review. Id.

In cases in which the requirements of Practice Book § 64-1 have not been followed, this court has declined to review the claims raised on appeal due to the lack of an adequate record. See New Haven Savings Bank v. Mongillo, 67 Conn. App. 799, 789 A.2d 547 (2002). “This court has on occasion, however, reviewed an appellant’s claims in light of an unsigned transcript as long as the relevant transcript contains a sufficiently detailed and concise statement of the trial court’s findings.” Id., 802. In this case, such a statement of the court’s findings might exist had the defendant filed a motion for articulation, which she did not. “It is well settled that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [P] roper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision . . . .” (Internal quotation marks omitted.) Dey, Smith & Collier, LLC v. Steenson, 79 Conn. App. 831, 833-34, 832 A.2d 82, cert. denied, 267 Conn. 903, 838 A.2d 209 (2003). An “[appellant’s] failure to seek an articulation of the trial court’s decision to clarify the . . . issues and to preserve them properly for appeal leaves this court without the ability to engage in a meaningful review.” (Internal quotation marks omitted.) Id., 834. Because the defendant failed to file a motion for articulation of the court’s decision, no detailed and concise statement of the court’s findings complements the inadequate record before us.

Pursuant to Practice Book § 60-5, it is the responsibility of the appellant to provide an adequate record for review. “The duty to provide this court with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 48 Conn. App. 607.

We are mindful in reaching our decision that the defendant represents herself on appeal. “This court has always been solicitous of the rights of pro se litigants and, like the trial court, will endeavor to see that such a litigant shall have the opportunity to have his case fully and fairly heard so far as such latitude is consistent with the just rights of any adverse party. . . . Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done. . . . For justice to be done, however, any latitude given to pro se litigants cannot interfere with the rights of other parties, nor can we disregard completely our rules of practice.” (Citation omitted; internal quotation marks omitted.) Wasilewski v. Machuga, 92 Conn. App. 341, 342, 885 A.2d 216 (2005).

“Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting [a] claim would be entirely speculative.” (Internal quotation marks omitted.) New Haven Savings Bank v. Mongillo, supra, 67 Conn. App. 802. Because the defendant failed to provide us with an adequate record for review, we cannot review the merits of her claims.

The judgment is affirmed.

       Fairfield County Real Estate Company and its agent, Erika R. Urszenyi, also were defendants at trial. As the trial court found in favor of these defendants, they are not parties to this appeal. We therefore refer in this opinion to Richards as the defendant.


author: DiPENTIMA, J. MCDONALD, J.

text:
    JOHN SULLIVAN v. THOMAS THORNDIKE ET AL.
    (AC 27339)
    DiPentima, McLachlan and McDonald, Js.

      Argued March 13
    officially released November 6, 2007

      Robert H. Boynton, for the appellant (plaintiff).

      Jason L. Musante, with whom, on the brief, was Audrey J. Porzio, for the appellee (named defendant).
   Opinion

DiPENTIMA, J.

In this appeal, we address the parameters of a dismissal entered pursuant to Practice Book § 15-8. The plaintiff, John Sullivan, appeals from the judgment of the trial court dismissing his complaint against the defendant Thomas Thorndike on the ground that the plaintiff failed to make out a prima facie case of breach of contract and embezzlement pursuant to Practice Book § 15-8. On appeal, the plaintiff claims that (1) he presented sufficient evidence that established damages as an element of his breach of contract claim and the defendant’s misappropriation of funds as an element of his embezzlement claim, (2) the court improperly based its granting of the defendant’s motion to dismiss on his special defenses and (3) the court improperly vacated the plaintiffs prejudgment remedy prior to a final judgment on the pending appeal. We affirm in part and reverse in part the judgment of the trial court.

We view the evidence presented by the plaintiff in the light most favorable to him. Toward the end of 1996, the parties, who were longtime social acquaintances, made an oral agreement to form a limited liability corporation for the purpose of purchasing and selling certain pieces of real estate. On January 10,1997, the defendant formed Diko Development, LLC (Diko). The only two members of Diko were the defendant and his wife, Theresa Thorndike. The plaintiff was not a member of Diko. In February, 1997, three parcels of real estate were purchased through Diko with funds contributed by both the plaintiff and the defendant. All three properties were eventually sold in 1998 and 2000. The plaintiff brought this claim against the defendant in 2001, alleging breach of contract and embezzlement arising from the parties’ failed attempt to form the limited liability company with the parties as members. The plaintiff filed an application for a prejudgment remedy seeking to attach property belonging to the defendant, which the court granted on February 21, 2001. A trial to the court was held, and, at the end of the plaintiffs case, the defendant moved to dismiss the action for failure to make out a prima facie case pursuant to Practice Book § 15-8. The court granted the defendant’s motion, and the case was dismissed. In its dismissal, the court ruled that the plaintiff had not made out a prima facie case of breach of contract because he failed to establish damages and had not made out a prima facie case of embezzlement because he failed to establish ownership of the property at issue. The court also based its ruling on its determination that the plaintiffs breach of contract claim was barred by the defendant’s special defenses: the statute of limitations and statute of frauds. The plaintiff subsequently filed a motion to reargue and a motion for a new trial. The defendant filed a motion to vacate the prejudgment remedy. On January 11,2006, the court issued a decision denying the plaintiffs two motions and granting the defendant’s motion to vacate the prejudgment remedy. This appeal followed.

I

Before addressing the plaintiffs claims on appeal, we first must consider the threshold question raised by the defendant of whether this court lacks subject matter jurisdiction to hear this appeal. “[Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Pedro v. Miller, 281 Conn. 112, 117, 914 A.2d 524 (2007). The defendant challenges this court’s jurisdiction to hear the present appeal on the basis of the plaintiffs failure to name Diko as a party to this action. We note that Diko’s absence as a defendant does not affect our jurisdiction over this appeal; see General Statutes § 52-263; and we are not precluded from addressing the issue of whether its absence may implicate the subject matter jurisdiction of the trial court. See Gemmell v. Lee, 42 Conn. App. 682, 684 n.3, 680 A.2d 346 (1996); see also Bauer v. Souto, 277 Conn. 829, 838, 896 A.2d 90 (2006). We conclude, therefore, that we do have jurisdiction over this appeal.

With respect to whether the trial court had subject matter jurisdiction over the underlying action, our standard of review is well established. Our Supreme Court has “long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Statewide Grievance Committee v. Burton, 282 Conn. 1, 6, 917 A.2d 966 (2007). “[I]n determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Internal quotation marks omitted.) Pritchard v. Pritchard, 281 Conn. 262, 275, 914 A.2d 1025 (2007). Following our Supreme Court’s reasoning, we previously have stated: “The nonjoinder of a party implicates the court’s subject matter jurisdiction and therefore requires dismissal if a statute mandates the naming and serving of the parly.” (Emphasis added.) Demarest v. Fire Dept., 76 Conn. App. 24, 30-31, 817 A.2d 1285 (2003); see also Fong v. Planning & Zoning Board of Appeals, 212 Conn. 628, 634-35, 563 A.2d 293 (1989). The defendant has not cited any statute that requires the plaintiff to name Diko as a party to the present action. Moreover, even if Diko is an indispensable party, if it is not “required by statute to be made a party, the court’s subject matter jurisdiction is not implicated and dismissal is not required.” Demarest v. Fire Dept., supra, 31. We conclude, therefore, that the trial court had subject matter jurisdiction over the underlying action.

II

The plaintiff first claims that he presented evidence that, when viewed most favorably to making out a prima facie case of breach of contract and embezzlement, established damages as an element of his breach of contract claim and the defendant’s misappropriation of funds as an element of the embezzlement claim.

As an initial matter, we set forth the applicable standard of review. Practice Book § 15-8 provides in relevant part: “If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. ...” “A prima facie case ... is one sufficient to raise an issue to go to the trier of fact. ... In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. ... In evaluating [the trial court’s decision on] a motion to dismiss, [t]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.” (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 54-55, 913 A.2d 407 (2007); Thomas v. West Haven, 249 Conn. 385, 392, 734 A.2d 535 (1999), cert. denied, 528 U.S. 1187, 120 S. Ct. 1239, 146 L. Ed. 2d 99 (2000). “Whether the plaintiff has established a prima facie case entitling the plaintiff to submit a claim to a trier of fact is a question of law over which our review is plenary.” (Internal quotation marks omitted.) Winn v. Posades, supra, 55; DiStefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005).

A

Breach of Contract

The plaintiff claims that the court improperly concluded that he failed to present sufficient evidence of damages as an element of his breach of contract claim to survive the defendant’s motion for a judgment of dismissal. We agree.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.” (Internal quotation marks omitted.) Chiulli v. Zola, 97 Conn. App. 699, 706-707, 905 A.2d 1236 (2006). With respect to damages, our Supreme Court has clarified that lost profits are considered an element of compensatory damages. Ambrogio v. Beaver Road Associates, 267 Conn. 148, 155, 836 A.2d 1183 (2003). “[0]ur case law unequivocally supports awarding lost profits as an element of compensatory damages for general breach of contract claims. The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. . . . The Restatement (Second) of Contracts divides a defendant’s recovery into two components: (1) direct damages, composed of the loss in value to him of the other party’s performance caused by its failure or deficiency; 3 Restatement (Second), Contracts § 347 (a) (1981); plus, (2) any other loss, including incidental or consequential loss, caused by the breach .... Id., § 347 (b). Traditionally, consequential damages include any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself. . . . Although there is no unyielding formula by which damages are calculated, it is our rule that [u]nless they are too speculative and remote, prospective profits are allowable as an element of damage whenever their loss arises directly from and as a natural consequence of the breach.” (Citations omitted; internal quotation marks omitted.) Ambrogio v. Beaver Road Associates, supra, 155.

It is incumbent on the party asserting either direct or consequential damages to provide sufficient evidence to prove such damages. See Frillici v. Westport, 264 Conn. 266, 283, 823 A.2d 1172 (2003). Further, “[w]hen damages are claimed they are an essential element of the plaintiffs proof and must be proved with reasonable certainty. . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.” (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).

In its oral decision, the court made the following findings: “[T]here was sufficient evidence to find that there existed at the last quarter of 1996 an oral contract and that the plaintiff and the defendant agreed that they would purchase and sell real estate together and share the profits.” The court, however, found that even if the plaintiff could prove liability, he failed to present sufficient evidence to support his claim for damages. After reviewing all of the evidence, the court could not determine whether there was a profit. According to the court, there was “no evidence as to what overhead might have been required for the maintenance of these properties: repairs, salaries, taxes, insurance, carrying costs.” In its articulation filed April 25, 2006, the court elaborated further on that finding, stating that: “There was nothing in the evidence to establish whether [Diko] ever made any profit from the real estate in question. There was evidence that the properties were purchased for X value and sold several years later for Y value, but there was no evidence whatsoever that the difference between those figures constituted an actual profit.” The plaintiff suggests that it is the defendant’s burden to show any expenses that may have reduced the profit from the sale of the real estate. We agree.

As a practical matter, it would be a Herculean task, and not one required by our law, for a party asserting a breach of contract claim founded on lost profits to be required to have advance knowledge of any carrying costs or expenses incurred by the opposing party prior to the latter presenting his case. The record supports the court’s finding that the plaintiff produced sufficient evidence to establish both the purchase price and sales price of each property. Viewed in the light most favorable to the plaintiff, we conclude that the evidence was sufficient at this early stage of the proceedings to show that a profit was made on the sale of the three properties. “The amount of lost profits may be determined by approximation based on reasonable inferences and estimates.” Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 541, 546 A.2d 216 (1988); see also Burr v. Lichtenheim, 190 Conn. 351, 360, 460 A.2d 1290 (1983); Gordon v. Indusco Management Corp., 164 Conn. 262, 274, 320 A.2d 811 (1973). Whether the plaintiff can sustain his burden past this stage of the proceedings is an entirely different matter and not a question that this court needs to answer to resolve this claim. The plaintiff has presented sufficient evidence of damages as an element of his breach of contract claim to survive the defendant’s motion for a judgment of dismissal. We conclude, therefore, that the court improperly dismissed the action with respect to the breach of contract claim.

B

Embezzlement

The plaintiff next claims that he submitted sufficient evidence to establish that the defendant misappropriated funds that belonged to the partnership for his own use and benefit. Specifically, the plaintiff contends that prior to the sale of the three properties, the defendant took out a mortgage with North American Bank for $60,000 through Diko on one of the properties, which he then converted to his own use. At the time the mortgage was secured, Diko still owed $78,655.24 on the note in favor of the plaintiff. We are not persuaded.

General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes ... (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.” As aptly stated by our Supreme Court, “[t]he crime of embezzlement is consummated where . . . the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use.” State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986). Although the plaintiff attaches an embezzlement title to this claim, his allegations also sound in conversion. In addition, the court treated the claim as one in conversion. As such, we also set forth the relevant law with respect to conversion.

“The tort of [conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner’s rights. . . . Thus, [conversion is some unauthorized act which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.” (Citation omitted; internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770-71, 905 A.2d 623 (2006). To establish a prima facie case of conversion, the plaintiff had to demonstrate that (1) the proceeds from the mortgage belonged to the plaintiff, (2) the defendant deprived the plaintiff of the proceeds for an indefinite period of time, (3) the defendant’s conduct was unauthorized and (4) the defendant’s conduct harmed the plaintiff. See Discover Leasing, Inc. v. Murphy, 33 Conn. App. 303, 309, 635 A.2d 843 (1993). An essential element of embezzlement and conversion is the requirement that the party asserting such a claim have either a legal right or possessory interest in the property at issue. It is the ownership element that the court found could not be satisfied when it dismissed the plaintiffs claim pursuant to Practice Book § 15-8.

Viewing the evidence in the most favorable light to the plaintiff with respect to embezzlement and conversion, he has established that (1) he and the defendant agreed to form a limited liability company for the purpose of buying and selling certain pieces of real estate, (2) Diko was formed by the defendant and his wife, and the properties were bought and sold through Diko, (3) the plaintiff lent $82,000 to Diko toward the purchase of the properties, which was later secured by a note, (4) the defendant mortgaged one of the properties through Diko without the consent of the plaintiff and (5) the defendant converted the entire proceeds of the mortgage for his own use and benefit, while still owing $78,655.24 on the note in favor of the plaintiff. Despite that evidence, the plaintiffs embezzlement and conversion claim must fail because he cannot point to specific, identifiable property to which he had a legal ownership or right, as he must in order to make out a prima facie case of conversion and embezzlement. Generally, “[a] plaintiff must establish legal ownership or right to possession in the particular thing, the specifically identifiable [property], that the defendant is alleged to have converted.” (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 650, 804 A.2d 180 (2002). As our Supreme Court has reiterated, “[a]n action for conversion of funds may not be maintained to satisfy a mere obligation to pay money. ... It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use. . . . [Thus] [t]he requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally. ... A mere obligation to pay money may not be enforced by a conversion action . . . and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied.” (Citation omitted; internal quotation marks omitted.) Id.

The court properly concluded that the plaintiff could not establish a prima facie case of embezzlement or conversion because the plaintiff did not present evidence that he had either a legal right or possessory interest in the mortgage proceeds that he claims the defendant converted to his own use. In fact, the plaintiff testified that he was not a member of Diko, which would be necessary in order to have an interest in either the property owned by Diko or the proceeds from the mortgage on that property. Thus, he is unable to satisfy the ownership requirement necessary to make out a prima facie case of conversion or embezzlement.

Ill

The plaintiff next claims that the court improperly based its granting of the defendant’s motion to dismiss on the defendant’s special defenses. Specifically, the plaintiff claims that the court improperly dismissed the breach of contract claim on the basis of its determination that the claim was barred by the statute of limitations and that the agreement between the parties was subject to the statute of frauds. We agree with the plaintiff.

Adhering to our plenary standard of review with respect to a motion to dismiss, we conclude that the court improperly considered the defendant’s special defenses, the statute of limitations and statute of frauds, when dismissing the case pursuant to Practice Book § 15-8. Following the reasoning expressed by our Supreme Court in Resnik v. Morganstern, 100 Conn. 38, 42, 122 A. 910 (1923), we have stated that “[a] motion for dismissal is not generally granted when based on a special defense, such as the statute of limitations . . . .” John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 606, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003); Resnik v. Morganstern, supra, 42 (plaintiff not bound to meet defendant’s affirmative defenses in establishing case); see also Gambardella v. Apple Health Care, Inc., 86 Conn. App. 842, 843 n.5, 863 A.2d 735 (2005); Carnese v. Middleton, 27 Conn. App. 530, 537, 608 A.2d 700 (1992). That fundamental principle has not been altered or modified since its inception in 1923, and we see no compelling reason to do so now. As originally stated by our Supreme Court in Resnik and later reiterated by this court in John H. Kolb & Sons, Inc., “[i]f this were not so, a plaintiff would be compelled to assume the burden of proving not only his own case but meeting the special defenses of the defendant.” (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., supra, 606.

The defendant’s reliance on a series of cases in which dismissals granted on the basis of collateral estoppel were permitted is misplaced. Collateral estoppel is fundamentally different from either the statute of frauds or the statute of limitations. Taking note of the distinct characteristics of that defense, we held specifically that although most defenses cannot be considered on a motion to dismiss, “a trial court can properly entertain a § 302 [now § 15-8] motion to dismiss that raises collateral estoppel grounds.” Carnese v. Middleton, supra, 27 Conn. App. 539; id., 538-39 (“the application of the principle of collateral estoppel as a defense, if it was a defense on which the defendants could ultimately prevail, would preclude the plaintiff from proving his action”). It is quite plausible that a court could determine whether a claim or issue had been previously decided after the close of the plaintiffs case. “The essence of collateral estoppel is that there is no additional evidence that a party can produce that would require a different resolution of a disputed ultimate fact.” Id., 539. The same cannot be said for either the statute of limitations or the statute of frauds. In Camese, this court recognized that distinction when we affirmed the trial court’s dismissal of the party’s action on the basis of collateral estoppel. Id., 538. In the present case, the defendant has provided no authority for this court to expand the holding in Resnik to include a statute of frauds or statute of limitations defense. We conclude, therefore, that the court improperly dismissed the breach of contract claim on the basis of the statute of frauds and statute of limitations as set forth in the defendant’s special defenses.

IV

The plaintiffs final claim is that the court improperly vacated his prejudgment remedy prior to a final judgment on the pending appeal.

“Appellate review of a trial court’s broad discretion to deny or grant a prejudgment remedy is limited to a determination of whether the trial court’s rulings constituted clear error.” State v. Ham, 253 Conn. 566, 568, 755 A.2d 176 (2000). The court heard extensive testimony regarding the merits of the plaintiffs claim before granting the defendant’s motion to dismiss. In light of our reversal of the trial court’s judgment with respect to the breach of contract claim, however, we must conclude that the court improperly vacated the plaintiffs prejudgment remedy.

The judgment is reversed as to the dismissal of the action for failure to make out a prima facie case of breach of contract and the vacating of the plaintiffs prejudgment remedy, and the case is remanded for a new trial as to breach of contract. The judgment is affirmed in all other respects.

In this opinion McLACHLAN, J., concurred.

MCDONALD, J.

Concurring in part and dissenting in part. Although I agree as to the breach of contract count, I respectfully disagree with the conclusion in part II B of the majority opinion that the plaintiff, John Sullivan, has failed to make out a prima facie case of statutory theft by embezzlement.

I conclude, considering the plaintiffs evidence in a favorable light, that the plaintiff presented sufficient evidence to make out a prima facie case. A trier of fact could find that the plaintiff, knowing certain properties could be purchased because of the plaintiffs relationship with the owners, contacted the defendant Thomas Thorndike, a lifelong friend, to have the defendant form a limited liability company in which the plaintiff and the defendant would be members. After acquiring these properties, the plaintiff and the defendant would share equally in any profits from their resale. To purchase the properties, the plaintiff advanced the sum of $82,000. When the defendant formed Diko Development, LLC (Diko), which took title to the properties, he did not, as promised, make the plaintiff a member of Diko. Although the defendant led the plaintiff to believe that the plaintiff was a member of Diko, the defendant and the defendant’s wife were its only members. Unknown to the plaintiff, the defendant then mortgaged one of the properties, and the defendant obtained and kept the entire proceeds, the net of a $60,000 mortgage loan. When this property was sold and the mortgage was paid off, there were no funds to repay the plaintiffs advance and to pay the plaintiff half the profits while the defendant had received $93,000.

To establish a prima facie case of embezzlement, the plaintiff had to produce evidence that the funds he gave to the defendant belonged to the plaintiff and that, without the plaintiffs authorization, the defendant intentionally misappropriated the funds to benefit himself to the detriment of the plaintiff. See State v. Radzvilowicz, 47 Conn. App. 1, 19-22, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997); see also General Statutes § 53a-119 (1); State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986); State v. Moreno, 156 Conn. 233, 238, 240 A.2d 871 (1968). I conclude that the plaintiff did so.

Accordingly, I respectfully dissent.

       The plaintiff also named Theresa Thorndike as a defendant, in his complaint. The claim against Theresa Thorndike was withdrawn prior to trial, and she is not a party to this appeal. We therefore refer in this opinion to Thomas Thorndike as the defendant.

       The combined purchase price for the three properties totaled $94,294.52, of which $82,000 was contributed by the plaintiff and the balance from the defendant. A promissory note was subsequently executed by Diko in favor of the plaintiff in the amount of $82,000.

       The plaintiff also claims that he presented evidence that established the formation of an agreement and the breach of that agreement as elements of his breach of contract action. We note, however, that the court did not base its dismissal on the absence of either of those elements. In fact, as stated in 1he court’s articulation filed on May 30, 2006, the court, specifically found that “[t]he defendant breached its promise to the plaintiff to make the plaintiff a member of the [limited liability company] . . . .”

       The defendant urges this court to affirm the trial court’s dismissal of the breach of contract claim alternatively on the basis of the absence of an enforceable contract. We decline to do so. The defendant mistakenly relies on our conclusion in Coady v. Martin, 65 Conn. App. 758, 766, 784 A.2d 897 (2001) (“absence of aprovision delineating the percentage of ownership of all of the parties in the company rendered the agreement fatally incomplete”), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002), to suggest that we should similarly determine that the plaintiff in this case cannot establish an enforceable contract because there was no “meeting of the minds.”
      We note that in Coady, the procedural position and, thus, our standard of review was not the same as in this case. In Coady, the appeal was filed after judgment was rendered subsequent to trial to the court. Here, where the plaintiff appeals from the granting of a motion to dismiss pursuant to Practice Book § 15-8, we view the evidence in the light most favorable to the plaintiff, and every reasonable inference is drawn in the plaintiffs favor. See Winn v. Posades, supra, 281 Conn. 54-55. On the basis of that standard, we conclude that there was sufficient evidence to establish a formation of an agreement between the parties to survive a motion for dismissal pursuant to Practice Book § 15-8.

       The plaintiff is seeking treble damages pursuant to General Statutes § 52-564, which requires him to establish statutory theft. “Statutory theft under § 52-564 is synonymous with larceny under General Statutes § 53a-119. (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 771, 905 A.2d 623 (2006). As previously stated, embezzlement is included under our larceny statute.

       We acknowledge that “[t]he term owner is one of general application and includes one having an interest other than the full legal and beneficial title. . . . The word owner is one of flexible meaning, and it varies from an absolute proprietary interest to a mere possessory right. ... It is not a technical term and, thus, is not confined to a person who has the absolute right in a chattel, but also applies to a person who has possession and control thereof.” (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., supra, 279 Conn. 770-71. The plaintiff, however, has not produced any evidence to indicate either a legal right or possessory interest in the moneys he claims to have been deprived of in this instance.

       We note that in light of our resolution of the plaintiffs first claim, it is necessary to reach his second claim because the court dismissed the action on the basis of the insufficiency of the plaintiffs evidence and the defendant’s special defenses with respect to the breach of contract claim.

       The defendant contends that the plaintiff did not raise this argument before the trial court and that therefore we should not consider this claim. Our Supreme Court has noted that “to review [a] claim . . . articulated for the first time on appeal and not [raised] before the trial court, would [be nothing more than] a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993). A review of the record shows, however, that the plaintiff did raise this argument before the trial court when defending against the defendant’s motion to dismiss.

       The defendant argues that because the Resnik court was addressing an issue of nonsuit and not a dismissal for failure to make out a prima facie case, we should ignore the reasoning in that opinion. We find that to be a distinction without a difference for purposes of the present case. As our Supreme Court has previously clarified with respect to those two motions, “a motion for a judgment of dismissal has replaced the former nonsuit for failure to make out a prima facie case. . . . Under either motion it was, and is, the duty of the trial court to take as true the evidence offered by the plaintiff and to interpret it in the light most favorable to him, with every reasonable inference being drawn in his favor.” (Citation omitted.) Berchtold v. Maggi, 191 Conn. 266, 271, 464 A.2d 1 (1983).

       We note that our conclusion merely will serve to preserve the prejudgment remedy in the amount originally ordered, the vacating of which was stayed during the pendency of this appeal. Whether the remedy amount should be modified on the basis of our conclusion is not for this court to determine. General Statutes § 52-278k provides in relevant part: “Modification of prejudgment remedy. . . . The court may, upon motion and after hearing, at any time modify or vacate any prejudgment remedy granted or issued under this chapter upon the presentation of evidence which would have justified such court in modifying or denying such prejudgment remedy under the standards applicable at an initial hearing.”