author: DUPONT, J.

text:
    IN RE SHAQUANNA M. ET AL.

    (AC 19704)
    Foti, Schaller and Dupont, Js.

      Argued September 15, 2000
    officially released February 6, 2001

      Barbara J. Ruhe, with whom, on the brief, were Jonathan W. A. Ruhe and Jennifer L. Breuer, legal intern, for the appellant (respondent mother).

      Mary K. Lenehan, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

DUPONT, J.

The primary issue of this appeal is whether the respondent mother, whose parental rights in her three sons were terminated, was denied procedural due process when the court denied her motion for a mistrial or a continuance. Her motion, made during the course of trial, was based on the death of the lawyer who the court had appointed as both attorney and guardian ad litem for her sons. The resolution of this issue necessarily requires an answer to the preliminary question of whether the respondent has standing to claim such a denial of due process. At the hearing on her motion for a mistrial or a continuance, the respondent claimed a due process violation of her children’s rights and of her own rights.

The following facts and procedural history are relevant to this appeal. The petitioner, the commissioner of children and families (commissioner), filed termination of parental rights petitions in October, 1998. Those petitions followed the respondent’s July, 1998 petitions for revocation of the commitment of her five children to the custody of the commissioner. The court consolidated for trial the commissioner’s petitions to terminate parental rights and the respondent’s petitions. All five of the respondent’s children, including the three sons, A, T and F, who are involved in this appeal, have been in and out of home placement through the department of children and families (department) since 1995. The children have suffered violent and physically abusive behavior when in their own home and, in the case of T and A, in the foster home in which the department had placed them. The latter two children were both institutionalized for in-patient psychiatric treatment and, as of the date of oral argument, remain in a hospital for such treatment. The state-placed foster home was a “chamber of horrors,” worse than the parental home for the latter two of the respondent’s sons.

The trial of the termination of parental rights and revocation of the commitment to the commissioner began in November and extended into December, 1998. The court then continued the trial to January, 1999, and, during that interim, the individual serving as the lawyer and guardian ad litem for the respondent’s sons died. The respondent moved for a mistrial or, alternatively, for a continuance to provide the newly appointed person acting as both attorney and guardian ad litem for her sons with transcripts of the five days of testimony that had occurred prior to January, 1999. A hearing was held on the respondent’s motion.

At the hearing on the motion for a continuance, the substitute attorney and guardian ad litem for the respondent’s sons stated his position as follows: “I have an obligation, I think, a legal professional obligation, to represent these children competently. It’s difficult calculus in this case based on the information that I have. If I felt in doing the calculus, if I felt the need, it’s a close call in my view. And in some technical sense I would have loved to have been able to read through the transcript, however, with all the other information I’ve been able to look at and the investigation I’ve done into the matter, I don’t believe it would serve the best interest of these children to prolong the matter at all. I mean that’s the bottom line for me. ... I don’t think it’s absolutely essential that I review the trial transcripts up to this point to fulfill my obligation to represent these children competently.”

The court denied the respondent’s motion for a mistrial or a continuance, and she challenges that decision in her appeal from the judgments terminating her parental rights. The court found certain relevant facts that follow. From mid-1995, the respondent has maintained contact with the department and her children to the extent that the department has permitted. The court noted that “in her own, perhaps misguided way, the mother has shown that she is very interested in her children” and that “she is perhaps guilty of excessive contact with the children rather than insufficient contact.” Accordingly, the court held that the evidence was not clear and convincing that the respondent had abandoned her children.

In May, 1997, the department suspended the respondent’s visitation rights with all of her sons. As of the date of the termination hearing, two of the children, T and A, were probably not adoptable. The third child, F, was still in the foster home in which the department had placed him in 1995. That foster mother would probably not adopt him, however, due to her age, although it was contemplated that he would remain with her for the foreseeable future. The court also found that F and the respondent have gotten along well and that the respondent has kept in contact with F. The court granted the petitions to terminate the respondent’s parental rights as to all three children on the ground that for more than one year, she had failed to achieve personal rehabilitation and, as to T and A, on the additional ground that she had no ongoing parent-child relationship with them.

I

The petitioner claims that the respondent lacks standing to pursue a claim that the denial of her motion for a continuance violated due process. If standing does not exist, there is no subject matter jurisdiction, and we cannot review the respondent’s claim.

There are two kinds of standing, that arising from statutory aggrievement and that arising from classical aggrievement. Here, no statute gives the respondent the specific right to seek the remedy of a mistrial or a continuance because of the death of counsel or the guardian ad litem for her children. She claims classical aggrievement instead because she has a colorable claim of a direct injury that she is likely to suffer, which need not be great, but is an injury that is personal, and in which she is specially involved. See Connecticut Post Ltd. Partnership v. South Central Connecticut Regional Council of Governments, 60 Conn. App. 21, 27, 758 A.2d 408, cert. granted on other grounds, 255 Conn. 903, 762 A.2d 907 (2000). In other words, she claims aggrievement in the classical sense by the denial of her motion, which aggrievement is peculiar and personal to her, and that she is entitled to appeal from the court’s decision denying her motion. An individual establishes classical aggrievement if there is a possibility, not necessarily a certainty, that a legally protected interest is adversely affected. Hall v. Planning Commission, 181 Conn. 442, 445, 435 A.2d 975 (1980).

The United States Supreme Court has recognized that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982) (listing Supreme Court precedent recognizing fundamental nature of right). The state has, however, an interest in preserving and promoting the welfare of a child. Id., 766. These interests conflict in cases involving the termination of parental rights, and state interference with the relationship between a parent and child is justified only in specific instances. The state must act in accordance with procedural due process in any interference with that relationship; Lehrer v. Davis, 214 Conn. 232, 237, 571 A.2d 691 (1990); and must prove a termination of parental rights by clear and convincing evidence, rather than by the lesser burden of a fair preponderance of the evidence. The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. These legitimate interests of parent, child and state require a balancing of the factors involved in those interests. See id., 240. In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child’s best interest, the child being the focus of the struggle. Troxel v. Granville, 530 U.S. 57, 86, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (Stevens, J., dissenting).

It is difficult to separate the right to federal due process of the respondent from those of her children. She had a stake in the outcome of her motion for a continuance because whether the court granted it could affect the course of the trial and, ultimately, whether her rights as a parent would be terminated. At stake was the possible or probable direct injury to her of her right to retain her status as a mother. It is hard to understand how she could be more specially involved.

The inadequate representation of her children by an attorney or guardian ad litem could, at the very least, colorably harm her. A colorable claim of direct injury to her that she may suffer or is likely to suffer gives her standing. Ramos v. Vernon, 254 Conn. 799, 809, 761 A.2d 705 (2000). Inadequate representation of her children in the capacity of guardian ad litem could particularly harm her because it is in that capacity that the best interests of her children must be determined. A mother has standing to challenge a ruling that involves an alleged interference with her status as a parent. See id., 811; see also In re Elizabeth M., 232 Cal. App. 3d 553, 565, 283 Cal. Rptr. 483 (1991) (“father has standing to assert his child’s right to independent counsel, because independent representation of the children’s interests impacts upon the father’s interest in the parent-child relationship”). We conclude that the respondent has standing to pursue her claim that her motion for a continuance should have been granted.

II

A

Whether the denial of a continuance has been shown by the respondent to have interfered with her basic constitutional right to raise her children, thereby depriving her of procedural due process, is the issue of this case. Its resolution is a question of law for which our review is plenary. See State v. Reilly, 60 Conn. App. 716, 727, 760 A.2d 1001 (2000). The abuse of discretion standard “does not apply to constitutional . . . claims, which are reviewed de novo by the courts.” McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991). The issue is not whether the termination of the parental rights of the respondent in this case was in the best interests of the children, which issue will be resolved at some future time, but whether a continuance was necessary to ensure the respondent’s right to due process.

The due process rights of the fourteenth amendment to the United States constitution apply in proceedings brought by the state to terminate parental rights. In re Jessica B., 50 Conn. App. 554, 575, 718 A.2d 997 (1998). We first consider whether we should analyze the denial of the motion for a continuance in this case in terms of whether there was an abuse of discretion or in terms of whether there was a deprivation of constitutional due process.

Some cases seem not to distinguish between the two analyses. See State v. Johnson, 253 Conn. 1, 31, 751 A.2d 298 (2000). Other cases determine whether the particular ruling is constitutionally defective, and, if the court concludes that the ruling was not infirm on that basis, then such cases consider whether there was an abuse of discretion. See State v. Castro, 196 Conn. 421, 426, 493 A.2d 223 (1985); State v. Cepeda, 51 Conn. App. 409, 418, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). In rare instances, an abuse of discretion may implicate due process rights. State v. DeMatteo, 186 Conn. 696, 704 n.3, 443 A.2d 915 (1982). The petitioner’s brief analyzes the facts of this case both in terms of the standard of abuse of discretion and deprivation of due process, whereas the respondent’s brief analyzes the case in terms of the latter only.

A reviewing court ordinarily analyzes a denial of a continuance in terms of whether the court has abused its discretion. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964); State v. Beckenbach, 198 Conn. 43, 47, 501 A.2d 752 (1985). This is so where the denial is not directly linked to a specific constitutional right. Anderson v. Sheppard, 856 F.2d 741, 749 (6th Cir. 1988) (abuse of discretion to deny continuance in civil case for plaintiff to obtain his third counsel where trial court was allegedly biased and hostile toward plaintiff; State v. Williams, 200 Conn. 310, 321, 511 A.2d 1000 (1986) (abuse of discretion to deny continuance of proceedings until after sentencing of cocon-spirator); Chaplin v. Balkus, 189 Conn. 445, 448-49, 456 A.2d 286 (1983) (no abuse of discretion to deny continuance to enable better preparation for trial).

If, however, the denial of a continuance is directly linked to the deprivation of a specific constitutional right, some courts analyze the denial in terms of whether there has been a denial of due process. Gardner v. Barnett, 175 F.3d 580, 587-88 (due process violation to deny continuance to allow petitioner to produce crucial witness in contravention of sixth amendment right to present defense), rev’d, 199 F.3d 915 (7th Cir. 1999) (enbanc), cert. denied sub nom. Gardner v. Neal, 529 U.S. 1079, 120 S. Ct. 1699, 146 L. Ed. 2d 504 (2000); Bennett v. Scroggy, 793 F.2d 772, 777 (6th Cir. 1986) (due process violation to deny continuance to allow defendant time to present his only defense in contravention of sixth amendment); Lee v. Winston, 717 F.2d 888, 898-99 (4th Cir. 1983) (due process violation to deny continuance to allow defendant’s counsel to prepare argument as to whether removal of bullet from defendant’s body would violate his fourth amendment rights), aff'd, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662 (1985).

Even if the denial of a motion for a continuance on the ground of lack of due process can be directly linked to a claim of a denial of a specific constitutional right, if the reasons given for the continuance do not support any interference with the specific constitutional right, the court’s analysis will revolve around whether the trial court abused its discretion. State v. Bethea, 167 Conn. 80, 85-87, 355 A.2d 6 (1974) (no abuse of discretion to deny continuance despite deprivation of sixth amendment claim when no showing that defendant attempted to find alibi witness, that witness would establish alibi defense or that witness available). In other words, the constitutional right alleged to have been violated must be shown, not merely alleged. See Whyte v. Commissioner of Correction, 53 Conn. App. 678, 682-83, 736 A.2d 145, cert. denied, 250 Conn. 920, 738 A.2d 663 (1999); see also Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

As we have noted, many cases involving motions for a continuance do not divorce a claim of a denial of due process from one claiming an abuse of discretion and discuss both. In this case, we analyze the respondent’s claim in terms of a denial of due process for the following reasons.

Discretion involves a choice by a court to do or not to do something that one cannot demand as an absolute right. Courts exercise discretion in cases where impartial minds could hesitate, which exercise usually entails a balancing of the relative gravity of the factors involved. See State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors. Some cases involving motions for a continuance analyze the facts in terms of discretion and then state that some denials are so arbitrary as to violate due process. In Ungar v. Sarafite, supra, 376 U.S. 589, the United States Supreme Court stated: “The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process .... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.” (Citations omitted.) In Gandy v. Alabama, 569 F.2d 1318, 1328 (5th Cir. 1978), the court stated: “[W]e do not disparage the traditional notion that a motion for a continuance is committed to the trial court’s discretion, in the first instance. We simply perform in our role of reviewing the exercise of discretion for abuse of constitutional dimension.” An abuse of discretion occurs when an injustice has been done. See Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). Discretion implies the absence of a hard and fast rule or a mandatory procedure regardless of the circumstances. State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986).

A denial of constitutional due process, when shown by the particular facts, does not involve discretion because due process is an absolute right guaranteed by the constitution and allows the court no choice. “Due process” may be a phrase impossible of precise definition, but when an act is shown by reliable facts to affect a specific constitutional right, such as the constitutional interests of parents in their children, the analysis should turn on whether a due process violation exists rather than whether there has been an abuse of discretion. A discretionary act and an act requiring due process are mutually exclusive.

Decisions to grant or to deny continuances are very often matters involving judicial economy, docket management or courtroom proceedings and, therefore, are particularly within the province of a trial court. State v. Stevenson, 53 Conn. App. 551, 562, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999). Whether to grant or to deny such motions clearly involves discretion, and a reviewing court should not disturb those decisions, unless there has been an abuse of that discretion, absent a showing that a specific constitutional right would be infringed.

Courts analyze termination of parental rights cases involving procedural due process claims using the test articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), rather than using an abuse of discretion standard. In re Alexander V., 223 Conn. 557, 560, 613 A.2d 780 (1992); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982). Before discussing the Mathews test, We note that the difference in the two analyses relates to the lack of discretion involved in providing procedural safeguards to satisfy procedural due process when dealing with the irrevocable severance of a parent’s rights, as opposed to the presence of discretion in granting or denying a continuance in the garden variety civil case with its lesser standard of proof.

Mathews and In re Alexander V. concern procedural due process in situations where the claim is a denial of an evidentiary hearing, rather than a denial of a motion for a continuance. Because due process in termination of parental rights cases calls for such procedural safeguards as the particular situation demands; Mathews v. Eldridge, supra, 424 U.S. 334; we equate a motion for a continuance with a motion for an eviden-tiary hearing in this case and use the Mathews test. We, therefore, analyze this case in terms of whether there was a denial of due process, rather than in terms of whether there was an abuse of discretion.

B

The United States Supreme Court established a three-pronged balancing test in Mathews to determine what safeguards the federal constitution requires to satisfy procedural due process. Courts apply that balancing test when the state seeks to terminate parental rights. Santosky v. Kramer, supra, 455 U.S. 754; In re Alexander V., supra, 223 Conn. 560. The three factors to be considered are (1) the private interest that will be affected by the state action, (2) the risk of an erroneous deprivation of such interest, given the existing procedures, and the value of any additional or alternate procedural safeguards, and (3) the government’s interest, including the fiscal and administrative burdens attendant to increased or substitute procedural requirements. Mathews v. Eldridge, supra, 424 U.S. 335. The bottom-line question is whether the denial rendered the trial fundamentally unfair in view of the Mathews factors.

The private interest here is the constitutional right of a mother to retain her status as a mother. The burden on the state if a continuance were granted is slight in terms of dollars or increased administration. The second factor of Mathews, however, may not be dismissed so summarily. We conclude, however, that the risk of erroneous deprivation of parental rights was present and that there was value in the additional procedural safeguard. In the present case, the respondent moved for a continuance based on the death of the person originally appointed as both attorney and guardian ad litem for her three sons. The respondent was at risk of being erroneously deprived of the companionship and love of her children because of the failure to continue a trial for a relatively short time. The continuance, a procedural safeguard, should have been granted. It would not have compromised or disregarded the government’s interest, the third Mathews prong, in the well-being of the children or materially increased its financial or administrative burdens. This is an extremely close case, but on the basis of a careful review of all the facts, we conclude that the hearing on the motion for a continuance did not obliterate the need for a continuance.

Courts do not condone the policy of appointing one person to fill the different roles of guardian ad litem and attorney. A child’s attorney is an advocate for the child, while a guardian ad litem is a representative of a child’s best interest. Ireland v. Ireland, 246 Conn. 413, 439, 717 A.2d 676 (1998). “[A] distinction between the two roles is proper. An attorney for the child should not express to the court, in advance of trial, his or her opinion as to the best interests of the child .... An attorney for the child should participate in legal proceedings by submitting trial briefs, questioning witnesses, giving oral argument, and, generally, by functioning in a manner similar to an attorney for an unimpaired adult.” Id., 440.

The child’s attorney has a duty to heed the wishes of his client, whereas the guardian ad litem has a duty to consider the needs of the child. The attorney for the children may have been able to represent their wishes by talking to them. He could not, as guardian ad litem, however, in the best way possible, assess their best interests without the benefit of the transcripts or the tapes of the transcripts, if available.

The state’s primary interest in terminating parental rights is to free the child for adoption or to free the child of uncertainty. The children here were not immediately adoptable, if ever. Thus, the only reason for haste was to free the children from uncertainty. In view of the ages of the children and their current living arrangements, a few more weeks in parent-child limbo was not unreasonable when balanced against the constitutional rights of their mother and their right to have their future decided in their best interests.

The judgments of the trial court are reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The court dismissed petitions to terminate the parental rights with respect to the respondent mother’s two daughters, and those judgments are not involved in this appeal. In the trial court, these consolidated petitions were captioned after one of those daughters, Shaquanna. The father of two of the respondent’s three sons consented to the termination of his parental rights, and the court granted the petition to terminate the parental rights of the father of the third son, F. F’s father has not appealed from that judgment. We refer in this opinion to the respondent mother as the respondent.

       In view of our conclusion as to the primary issue, we need not reach the respondent’s claim that the grounds for termination were not proven by clear and convincing evidence and, therefore, that the court should not have terminated her parental rights as to all three sons, T, A and F.

       The court rendered judgments denying the respondent’s petitions to revoke the commitment of her three sons to the commissioner. The respondent took no appeal from those judgments.

       Neither we nor the parties are aware of any reported case in Connecticut involving the death of counsel during the course of a trial, with a motion for a continuance as a result. The cíase is one of first impression in Connecticut. Continuances in cases from other jurisdictions based on the death of counsel are rare. One such case involved the death of counsel while he was representing a party whose case was on appeal. Applying an abuse of discretion standard, the United States Supreme Court granted two continuances in a civil case for two terms because the matter was one of great moment and because new counsel should have had an opportunity to investigate the principles involved. See Hunter v. Fairfax, 3 Dall. 305 (1796).

       We decide this case on the basis of the motion for a continuance. In view of our conclusion that a new trial is necessary, we need not address the issue of whether the court should have granted the motion for a mistrial.

       At oral argument, the petitioner noted that she did not know if a. court reporter or a court monitor was present at the trial. Counsel for the respondent stated that most of the trial was conducted with a court monitor present.

       The attorney and guardian ad litem for the three sons did not file a separate brief in this appeal, but agrees with the arguments and positions expressed by the state.

       The petitions to terminate cited three grounds, namely, abandonment, no ongoing parent-child relationship and a failure to achieve personal rehabilitation. See General Statutes (Rev. to 1997) § 17a-112 (c) (3).

       At the time of oral argument on the motion for a continuance, A was thirteen years old, bom February 3,1987; T was ten years old, bom November 10, 1989; and F was six years old, born March 2, 1993. T has not seen his mother since December, 1996. A psychiatric social worker testified that A does not want to see his mother.

       The due process rights guaranteed by the federal constitution are the same as those guaranteed by the state constitution. In re Alexander V., 25 Conn. App. 741, 742 n.l, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992).

        Taff v. Bettcher, 35 Conn. App. 421, 423, 646 A.2d 875 (1994), does not apply to the present case. In that case, the defendant mother, in a custody modification case incident to a dissolution of marriage, claimed that the trial court should not have conducted a hearing to modify custody and visitation without counsel for the minor child present. Id. This court concluded that the mother had no standing to assert the due process rights of her child. Id., 426. In the present case, the respondent is claiming not only that the children’s attorney should have had more time to prepare for his representation of them, but also that his guardian ad litem role to pursue the best interests of her children has been compromised by a lack of time to prepare and by a lack of precise knowledge of the testimony of the witnesses who already had testified before his appointment as guardian ad litem, which the transcripts could have provided. There is a significant difference between the standard of proof in custody modification cases involving the parents of a child and that in termination of parental rights cases. Also, the former cases concern modifiable orders, whereas the latter concern irrevocable judgments. We note, furthermore, that unlike the defendant in Taff, the respondent claims that the denial of her motion for a continuance prejudiced her own case. See Schult v. Schult, 40 Conn. App. 675, 687 n.10, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997).

       Although the United States Court of Appeals for the Seventh Circuit, en banc, reversed the finding of a due process violation, it analyzed the denial of the continuance in terms of a due process violation rather than an abuse of discretion.

       We note that our Supreme Court in In re Juvenile Appeal (Docket No. 10155), analyzed the motion for a continuance in terms of a due process violation, although the court arrived at a conclusion different from our conclusion in this case. In re Juvenile Appeal (Docket No. 10155) holds that there was no due process violation in failing to grant the father’s motion for a continuance until his release from prison, unlike our holding in the present case. In re Juvenile Appeal (Docket No. 10155), supra, 187 Conn. 440. The different holdings result from factually dissimilar cases. The facts of In re Juvenile Appeal (Docket No. 10155) differ in that a complete transcript of the state’s principal witnesses was sent to the father, who was incarcerated in California; the father’s prison release was anticipated approximately nine months from the date of the morion; the father testified by telephone from the California prison, with his voice audible to all at the hearing in Connecticut; counsel for the petitioner and the child cross-examined him; and the record contained no rejection by either state to pay the father’s transportation expenses to the Connecticut courtroom.

       In the present case, no party alleges any impropriety because of the duality of the roles on the part of either the original or successor attorney and guardian ad litem.

       The respondent’s two daughters had two different counsel, one who acted as attorney for the daughters and the other who acted as guardian ad litem for them. The former opposed the termination of parental rights, whereas the latter supported termination. The court concluded that the termination of the respondent’s parental rights as to her daughters was not in their best interests.


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    MARY KUBISH ET AL. v. BUZZIENA ZEGA ET AL.
    (AC 19697)
    Lavery, C. J., and Spear and Hennessy, Js.

      Argued September 20, 2000
    officially released February 6, 2001

      Charles F. Brower, with whom, on the brief, was Marcus G. Organschi, for the appellants-appellees (plaintiffs).

      Anthony F. DiPentima, for the appellees-appel-lants (defendants).
   Opinion

LAVERY, C. J.

The plaintiffs, Mary Kubish and Stephen Kubish, appeal from the judgment of the trial court ordering a partition of three parcels of real property among the plaintiffs and the defendants, Buzziena Zega, Helen Kubish and Josephine Kubish, all of whom previously owned the property as tenants in common. The defendants cross appeal from that part of the judgment ordering them to pay $2500 to the plaintiffs to equalize the differing values of the properties distributed. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our review of the judgment on appeal. The plaintiffs brought this action for a partition in kind of three parcels of real property in Goshen. All five parties owned the parcels as tenants in common.

The tenancy in common came about as follows. Martin Kubish, Sr., the father of the parties, originally acquired the first parcel (parcel A), the Home Farm, through several purchases beginning in 1920. He died intestate on July 2, 1962, whereupon his interest in parcel A passed to his widow, Veronika, and to her eight children. Veronika Kubish died intestate in March, 1966, and her interest in parcel A passed to her eight children.

Since Veronika Kubish’s death, the defendants Helen Kubish and Josephine Kubish have had exclusive use and occupancy of parcel A, and, with the help of the defendant Zega, have paid all taxes and other expenses related to the property. Prior to this action, each party had a one-fifth interest in parcel A. Parcel A has a current value of approximately $400,000.

The plaintiff Stephen Kubish and his brother, John, purchased the second parcel (parcel B), the Stephen-John Farm, on March 2,1965, for $45,000. John contributed $8000 to the purchase price, and the plaintiffs contributed the remaining $37,000.

When John died in 1990, intestate and unmarried, his 50 percent interest in parcel B passed in equal shares to the parties to this action and to two other brothers, Frank and Martin, Jr. The plaintiffs submitted a claim against John’s estate to recover expenses they paid for improvements, repairs, taxes and insurance that related to John’s share of ownership of parcel B. The fiduciary of John’s estate disallowed that claim. Although the plaintiffs did not appeal from that disallowance, they claim that those payments entitle them to a disproportionate share of the property. After John’s death, plaintiff Stephen Kubish had an eight-fourteenths interest in parcel B, and his six siblings each had a one-fourteenth interest in parcel B.

When Frank Kubish died in 1993, intestate and unmarried, his one-fourteenth interest in parcel B passed equally to his six surviving siblings—the five parties to this action and Martin, Jr. The plaintiffs filed no claim against Frank’s estate. After Frank’s death, the plaintiff Stephen Kubish had a seven-twelfths interest in parcel B, and his five siblings each had a one-twelfth interest in parcel B.

When Martin Kubish, Jr., died in 1994, intestate and unmarried, his one-twelfth interest in parcel B passed equally to the parties in this action. After Martin’s death, the plaintiff Stephen Kubish had a three-fifths interest in parcel B, and his four surviving siblings each had a one-tenth interest in parcel B. That was the state of the ownership of parcel B prior to the commencement of this action. Parcel B has a value of approximately $600,000.

The third parcel (parcel C), the Upton Morse piece, is a landlocked piece of property. The plaintiffs and their brother, Frank Kubish, purchased parcel C as tenants in common in February, 1989. Each party acquired a one-third interest in the parcel. Upon Frank’s death in 1993, intestate and unmarried, his one-third interest passed to his six surviving siblings. As a result of that event, each plaintiff had a seven-eighteenths interest, and the remaining four siblings each had a one-eighteenth interest in parcel C.

Upon the death of Martin Kubish, Jr., intestate and unmarried, in 1994, his one-eighteenth interest passed in equal parts to the five parties to this action. As a result, each plaintiff had a two-fifths interest, and each defendant had a one-fifteenth interest in parcel C. Parcel C has a value of $10,000.

The plaintiffs thereupon brought this action seeking a partition in kind, alleging that, because they paid a disproportionate share of the cost of improvements to parcel B, they have an equitable claim in excess of their combined legal interest of seven tenths. In their cross complaint, the defendants allege that because they paid for a disproportionate share of the investments and improvements expended on parcel A, they have an equitable claim in excess of their combined legal interest of three fifths.

The defendants also filed a motion to appoint a committee pursuant to Practice Book § 19-2 to hear and consider the parties’ claims. The court granted that motion and appointed a committee.

In January, 1999, the committee filed its report with the court. The committee found that parcel A had a market value of $400,000, parcel B had a value of $600,000 and parcel C had a value of $10,000. The committee found that the plaintiffs collectively own 40 percent of parcel A, and the defendants collectively own the remaining 60 percent; the plaintiffs collectively own 70 percent of parcel B, and the defendants collectively own the remaining 30 percent; and the plaintiffs collectively own 80 percent of parcel C, and the defendants collectively own the remaining 20 percent. On the basis of those percentages, the committee found that the plaintiffs’ collective interests in those parcels had a value of $588,000 and that the defendants’ collective interests had a value of $422,000.

The committee made two alternative recommendations for partition depending on whether the court found that General Statutes § 45a-363 (b), commonly referred to as a “statute of nonclaim,” would bar the plaintiffs’ equitable claim for their disproportionate contributions to the purchase of parcel B. The first alternative would credit the plaintiffs for that disproportionate contribution by increasing their ownership percentage of parcel B to 82 percent, resulting in a total value of their interests in all parcels of $660,000. The committee’s second recommendation would simply partition the property solely on the basis of the parties’ relative legal interests, disregarding the plaintiffs’ greater contribution to the acquisition of parcel B. The committee recommended that the court adopt the first of those two recommendations, presuming that the court found the statute of nonclaim inapplicable.

After considering the committee’s recommendations and the parties’ legal memoranda in response to the committee report, the court ordered that the plaintiffs would receive parcel B, with a value of $600,000, even though the value of their ownership interests was $588,000, and that the defendants would receive parcels A and C, with a combined value of $410,000. Recognizing that such a partition would result in the plaintiffs receiving property worth $12,000 more than the value of their collective ownership rights, the court ordered that the plaintiffs’ excess contribution to the purchase of parcel B over that of the defendants ($22,500 versus $8000), entitled them to an offset of $14,500. Thus, the court rendered judgment awarding parcel B to the plaintiffs, parcels A and C to the defendants, and ordering the defendants to pay the plaintiffs an owelty payment of $2500 ($14,500 minus $12,000). This appeal and cross appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The plaintiffs first claim that the court improperly failed to render judgment on the basis of the findings and conclusions of the committee. We disagree.

Before turning to the merits of the plaintiffs’ claim, we articulate our standard of review of the court’s action. This first requires some discussion of the nature of a complaint seeking partition in kind and the procedures attendant thereto. “[General Statutes §] 52-495 gives discretionary authority to courts of equitable jurisdiction to order, upon the complaint of any interested person, the physical partition of any real estate held by tenants in common . . . .” Rice v. Dowling, 23 Conn. App. 460, 463, 581 A.2d 1061 (1990), cert. denied, 217 Conn. 805, 584 A.2d 1190 (1991). “An action for partition at common law was equitable in nature, requiring courts to examine all relevant circumstances.” Fernandes v. Rodriguez, 54 Conn. App. 444, 450, 735 A.2d 871 (1999), rev’d on other grounds, 255 Conn. 47, 761 A.2d 1283 (2000).

“The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981); Robert Lawrence Associates, Inc. v. Del Vecchio, 178 Conn. 1, 18-19, 420 A.2d 1142 (1979).

“Our standard of review is whether the trial court abused its discretion. . . . The determination of what equity requires is a matter for the discretion of the trial court. ... In determining whether the trial court has abused its discretion, we must make eveiy reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the . . . discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Internal quotation marks omitted.) Rosenblit v. Williams, 57 Conn. App. 788, 792, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000); Citicorp Mortgage, Inc. v. Conant, 54 Conn. App. 529, 532, 736 A.2d 928, cert. denied, 251 Conn. 909, 739 A.2d 264 (1999).

General Statutes § 52-495 sets forth the court’s jurisdiction over and procedure for handling actions seeking partition of property among joint tenants or tenants in common. Practice Book § 19-2 sets forth the procedure for referring such a case to a committee. The counsel for the respective parties agreed on the appointment and membership of the committee. Practice Book § 19-17 (a) and (b) sets forth the court’s function following the receipt of the report from the committee.

Notwithstanding the plaintiffs’ argument, none of the statutes or rules of practice previously discussed indicate that the court is in any way bound by the recommendations contained in the committee report. Those provisions merely require the court to accept the facts or to reject the report and refer the matter to another committee.

The rules of practice refer to “committee” and “attorney trial referee” interchangeably, in accordance with recent revisions to our rules of practice. Accordingly, we equate the powers of the court concerning the report of a committee with the court’s powers concerning the report of an attorney trial referee.

Practice Book § 19-17 enumerates the actions a court is to take upon receipt of the committee report. See footnote 16. That section draws a distinction between the committee’s factual findings and its conclusions. Practice Book § 19-8 (a) provides that the report of the committee should contain “the facts found and the conclusions drawn therefrom.” Practice Book § 19-17 (a) requires that the court “render such judgment as the law requires upon the facts in the report.” The rules of practice give no instructions as to the disposition of the committee’s conclusions or recommendations.

Several cases our courts have decided concerning the powers and duties of committees, and the nature of the contents of their reports further explain the distinction between factual findings and conclusions. “In proceedings involving [committees], the trial court may not disturb the factual findings made by the [committee]. Hassane v. Lawrence, 31 Conn. App. 723, 728, 626 A.2d 1336 (1993). The trial court may not retry the case and find facts contrary to those found by the [committee] unless a material fact has been found without evidence or the [committee] has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear. . . . Thus, our review of the substantive merits of the trial court’s judgment devolves into two questions: (1) did the court exceed its authority by finding additional facts or rejecting facts found by the [committee]; and (2) did the court err in applying the law to the facts found?” (Citations omitted; internal quotation marks omitted.) Schmaling v. Schmaling, 48 Conn. App. 1, 10-11, 707 A.2d 339, cert. denied, 244 Conn. 929, 711 A.2d 727 (1998); see also Dills v. Enfield, 210 Conn. 705, 714, 557 A.2d 517 (1989).

The common theme running through all of the previously cited cases, in which either this court or our Supreme Court has reviewed the actions of a trial court concerning a committee report, is that the trial court must, except as previously noted, accept the facts found by the committee, but is not bound by the conclusions or recommendations the committee draws from those facts. The format of the committee report further supports that conclusion by clearly delineating “facts found” from “conclusions drawn,” placing them in separate sections that are separately numbered. The committee also recognized that distinction by noting in the summary of its report that “the committee recommends”-, (emphasis added); that a partition be ordered. The use of the word “recommends” indicates that the committee understood that its conclusion as to the proper disposition of this matter did not bind the court.

Nothing in the court’s judgment indicates any rejection of or addition to the facts found by the committee. The only difference between the committee’s recommendation and the judgment rendered by the court was that the court gave the plaintiffs credit for their additional $14,500 contribution to the purchase of one of the parcels. The committee also mentioned that point when it stated in its decision that “it is recommended that in calculating the plaintiffs’ equitable share in [parcel B] the court should recognize their greater contribution toward the purchase price.” That “greater contribution” is the $14,500 difference between the $37,000 the plaintiffs contributed and the contribution represented by their 50 percent share of ownership, or $22,500. The recommendation by the committee does not account, however, for this $14,500 greater contribution. Thus, the court did not reject any of the facts found by the committee, but merely amended the committee’s recommended judgment to account for a fact that the committee found but neglected to consider in its recommended judgment.

Accordingly, we conclude that the court properly discharged its duties under Practice Book § 19-17 (a) to “render such judgment as the law requires upon the facts in the report. . . .” The mere fact that the court’s judgment does not mirror that recommended by the committee does not alter this conclusion.

II

In their cross appeal, the defendants contend that the court improperly ordered them to pay $2500 to the plaintiffs to equalize the respective values of the properties that the court awarded to the parties. We disagree.

The following facts and procedural history are relevant to our consideration of this claim. The court, as explained in greater detail in part I of this opinion, ordered that the defendants receive title to parcels B and C, and that the plaintiffs receive title to parcel A. As the committee noted, however, that award would result in the defendants receiving property worth a total of $410,000. Since the combined value of the defendants’ legal interests prior to the partition, as found by the committee, was $422,000, such a partition would result in the plaintiffs receiving an “overpayment” in property of $12,000, which they would owe to the defendants. The court further found, however, that the plaintiffs were entitled to compensation for their greater contribution of $14,500 toward the purchase price of parcel B. The net result of those amounts, the court found, would be a payment of $2500 from the defendants to the plaintiffs.

The defendants claim in their cross appeal that the statute of nonclaim, § 45a-363, prohibits the court from using the payment of money to remedy any discrepancy between the parties’ relative ownership interests in the properties prior to partition and the values of the properties awarded to them in the partition action. We agree with the court’s conclusion that the statute of nonclaim does not apply to the present action.

The defendants’ reliance on § 45a-363 is misplaced. That section applies to the filing of claims against estates of decedents. The purpose of the statute is to encourage the timely settlement of decedents’ estates. “[Section] 45a-363 is purely procedural in nature, governing the time within which to file a suit against an estate when a claim has been rejected by an executor or administrator.” (Emphasis added.) Northeast Savings, F.A. v. Milazzo, 44 Conn. Sup. 477, 480, 691 A.2d 603 (1996). The placement of § 45a-363 in the General Statutes farther supports that construction. It is part of chapter 802b, which is titled, “Decedents’ Estates,” and, within that chapter, part VII is titled, “Claims Against Decedents’ Estates for Decedents Dying on or After October 1. 1987.” The plaintiffs in this action did not file a claim against the estate of any decedent or name any estate as a defendant in their action. The defendants did not contend at trial that any estate should have been made party to the action. No party has filed suit against an estate, and thus § 45a-363 does not apply to this case.

The court ordered the payment of money from the defendants to the plaintiffs to preserve the action as one of partition in kind, rather than converting it into a partition by sale. That was, in the court’s conclusion, the best way to partition the properties among the respective parties and yet reach the desired outcome of the respective parties having the same total ownership values that they had prior to the partition action.

In a decision rendered subsequent to the arguments in this case, our Supreme Court stated that “[o]nce [a] partition has been ordered, the parties’ respective interests relative to the property are an appropriate consideration in deciding . . . whether to award money damages if an order of partition in kind results in minor inequities. ” Fernandes v. Rodriguez, 255 Conn. 47, 59, 761 A.2d 1283 (2000). In its conclusion, the Supreme Court ordered that the trial court “reexamine the respective interests of the parties in deciding . . . whether to award money damages if an order of partition in kind results in minor inequities.” Id., 60.

In this case, the court, in an act bordering on prescience, followed nearly exactly the guidance given by the Supreme Court in Fernandes. The court ordered the defendants to pay the plaintiffs a relatively small amount of money, $2500 in an action partitioning property worth in excess of $1 million, to resolve “minor inequities” resulting from its order of partition in kind. We cannot say that this was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       All five parties are each others’ siblings.

       Three other siblings died prior to the commencement of this action, their interests passing to the parties in this action.

       The plaintiff Stephen Kubish’s interest was comprised of his original one-half interest plus one seventh of John’s one-half interest.

       The interest of each of the six siblings was one seventh of one half.

       That interest was comprised of the eight fourteenths he previously had, plus one sixth of Frank’s one-fourteenth interest.

       The interest of each of the five siblings was comprised of the one fourteenth each originally had, plus one sixth of Frank’s one-fourteenth interest.

       That interest was comprised of the seven twelfths he previously had, plus one fifth of Martin’s one-twelfth interest.

       That interest was comprised of the one twelfth each originally had, plus one fifth of Martin’s one-twelflh interest.

       That interest was comprised of the one-third interest each plaintiff originally had, plus one sixth of Frank’s one-third interest.

       That interest was comprised of one sixth of Frank’s one-third interest.

       That interest was comprised of the seven eighteenths each plaintiff originally had, plus one fifth of Martin’s one-eighteenth interest.

       That interest was comprised of the one eighteenth each defendant originally had, plus one fifth of Martin’s one-eighteenth interest.

       Practice Book § 19-2 provides in relevant part: “The court or any judge thereof may send to a committee for a finding of facts any case wherein the parties are not, as a matter of right, entitled to a trial by jury. A committee shall not be appointed without the consent of all parties appearing . . .

       General Statutes § 52-495 provides in relevant part: “Courts having jurisdiction of actions for equitable relief may, upon the complaint of any person interested, order partition of any real property held in . . . tenancy in common .... The court may appoint a committee to partition any such property."

       See footnote 13.

       Practice Book § 19-17 provides: “(a) The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the committee or attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should notbe accepted, the court shall reject the report and refer the matter to the same or another committee or attorney trial referee, as the case may be, for a new trial or revoke the reference and leave the case to be disposed of in court.
      “(b) The court may correct a report at any time before judgment upon the written stipulation of the parties or it may upon its own motion add a fact which is admitted or undisputed or strike out a fact improperly found.”

       General Statutes § 45a-363 (b) provides in relevant part: “Unless aperson whose claim has been rejected (1) commences suit within one hundred twenty days from the date of the rejection of his claim, in whole or in pari, or (2) files a timely application pursuant to section 45a-364, he shall be barred from asserting or recovering on such claim from the fiduciary, the estate of the decedent or any creditor or beneficiary of the estate . . .


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. JAMES DAVIS
    (AC 18619)
    Lavery, C. J., and Mihalakos and Zarella, Js.

      Argued November 1, 2000
    officially released February 6, 2001

      Michelle M. Napoli, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Stephen J. Sedensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, James Davis, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l), risk of injury to a child in violation of General Statutes § 53-21 (2) and unlawful restraint in the second degree in violation of General Statutes § 53a-96. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress an out-of-court identification, (2) denied his motion for judgment of acquittal and (3) instructed the jury as to the element of force in its charge on the offense of sexual assault in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of April 29, 1997, the victim, a fourteen year old girl, walked with her friend M from the victim’s home to the apartment where M lived. As the two walked, they came upon two men, one of whom was identified later as the defendant. The men were standing at the end of the driveway leading into the apartment complex. The defendant, age twenty-two, briefly spoke with the two girls as they passed. The defendant further engaged the victim in a brief conversation as she again passed the two men on her return home.

Shortly thereafter, the victim passed the defendant and his companion for a third time as she walked from her home and through the complex to a nearby store. As the victim walked by the two men, the defendant asked who was in her house, to which the victim responded her grandmother, grandfather, mother and cousins. The victim passed the defendant and his companion for a fourth time on her return trip from the store. Soon after arriving home, the victim’s grandmother asked her to return to the store. Although the victim did not see either of the two men as she again walked to the store, she saw both of them in the driveway when she returned. The defendant was wearing a yellow and black jacket in addition to the white T-shirt and black pants that the victim saw him wearing earlier. As the victim passed the defendant and his companion for the fifth time, the defendant told her to “go put your stuff in the house and come here.” The victim continued walking toward her home. Once there, the victim repeatedly looked out the window to determine whether the defendant remained in the driveway.

After noticing that neither the defendant nor his companion was in the driveway, the victim left her home and walked to the store for a third time. As the victim walked through the complex on her way to the store, she noticed the defendant standing alone on the steps to building number five. The defendant called to the victim, “Come here, I wanna show you somethin’.” The victim walked up the stairs nearer to the defendant. As the victim came closer, the defendant grabbed her arm and led her into the basement of the building. The defendant then led the victim down a hallway and up a stairwell, where he began to grope her between the legs and threatened, “If you tell, I’m gonna kill you.” The victim partially removed her pants under threat and laid down as the defendant instructed. The defendant got on top of the victim and, as the victim attempted to slide away from the defendant, he inserted his penis into her vagina. Within minutes of the assault, the defendant heard someone in the stairwell and ran from the basement.

The victim immediately dressed and went home. Soon after arriving home, the distraught victim informed her grandmother and M, who had returned to the victim’s home, of the assault. The police were called and the victim was transported to the hospital. Meanwhile, M and the victim’s uncle accompanied the police in a search for the defendant. The defendant and his companion were located in a park that is within walking distance of the apartment complex. M identified the men as the two individuals that she and the victim had seen earlier in the day. The police placed both the defendant and his companion into a waiting police cruiser. M returned home while the officers proceeded to the hospital with the two men.

Officer Faith Tyghter of the Bridgeport police department interviewed the victim at the hospital. The victim described her assailant “as a black male, slender build, [having] corn rows hairstyle, approximately six feet” and stated that “[h]e was wearing a yellow and black jacket, white T-shirt and a black pair of pants.” Tyghter went outside to the police cruiser, recognized the suspect who fit the description and brought him to the victim’s hospital room for identification. After the suspect was removed from the room, the victim identified the individual, the defendant in this case, as her assailant. The victim also identified the defendant in a photographic array on May 15, 1997, and again in court.

The defendant was charged with sexual assault in the first and second degrees, risk of injury to a child and kidnapping in the first degree. He was convicted of each of the sexual assault offenses and of risk of injury to a child. Although the defendant was found not guilty of kidnapping in the first degree and of the lesser included offense of kidnapping in the second degree, he was found guilty of the lesser included offense of unlawful restraint in the second degree. The defendant received a total effective sentence of twenty years imprisonment, execution suspended after fifteen years, and ten years probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion to suppress the identification at the hospital because it violated his right to due process under the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut.

The following additional facts and procedural history are necessary for our resolution of this claim. On or about June 5, 1997, the defendant filed a motion to suppress the out-of-court identification and his statement to the police. A pretrial hearing on the motion was held on March 2, 1998, at which time the state called the victim as a witness. She testified that on the afternoon of April 29, 1997, she passed the defendant and another male at the end of the driveway leading into the complex several times during the afternoon preceding the assault. Each time she passed the defendant and his companion, the defendant engaged her in a brief conversation. She further testified that the defendant was wearing a yellow and black jacket over a white T-shirt and black pants.

The victim testified that shortly after returning from her second trip to the store, she decided to walk to the nearby store for a third time. Although the victim did not see either of the two men as she walked up the driveway to the complex en route to the store, she came upon the defendant as she walked past building number five. The defendant, who was still wearing the yellow and black jacket with the white T-shirt and black pants, was standing at the top of the stairs to the building. He called out to her, “Come here, I want to show you somethin’.” He motioned her toward the basement of the building and led her into the basement and up a staircase where the sexual assault took place.

The victim further testified that while at the hospital, she gave a description of the defendant to Tyghter. The victim recounted that Tyghter “kept going out the door, [saying] ‘we got him, we got him. ... We had two boys. You got to tell which one, who it is.’ And so she [brought] the boy that I recognized, the one that took me down to the basement.” She further testified that she identified the defendant and that he was still wearing the yellow and black jacket, white T-shirt and black pants that he was wearing earlier.

The state then called to the witness stand Tyghter, the officer who interviewed the victim at the hospital. According to her testimony, the victim identified her assailant as a slender black male with a brown complexion, light facial hair and a com row hairstyle, wearing a yellow and black jacket, white T-shirt and black pants. Tyghter further testified that she relayed this information to another officer, who located the defendant and another male and transported them to the hospital for a positive identification. After they arrived at the hospital, Tyghter went to the police cruiser, selected the suspect who more closely matched the given description and brought him into the hospital. After the victim consented to a face-to-face identification, Tyghter presented the defendant to the victim. After the defendant was removed from the room, the victim identified him as the person who assaulted her.

On cross-examination, Tyghter testified that she selected the defendant over the other individual in the police cruiser based on the victim’s description of the suspect’s clothing, facial hair and hairstyle, and because the other individual was clean shaven. She further testified that she did not present the other individual to the victim “[b]ecause it was a trae identity.”

The court, thereafter, denied the defendant’s motion to suppress the identification. The court reasoned that the identification was valid because “under the totality of the circumstances . . . [the victim] had a sufficient opportunity to observe the accused on a number of occasions, had seen him before, and [because] there was a nonsuggestive bringing of the accused forward

The defendant claims that the identification at the hospital was unnecessarily suggestive and unreliable, and, therefore, it tainted the subsequent photographic and in-court identifications. We disagree.

“Upon review of a trial court’s denial of a motion to suppress, [t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts. State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991). . . . State v. MacNeil, 28 Conn. App. 508, 512-13, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). The trial court’s factual findings will be reversed only if they are clearly erroneous. . . . State v. Owens, 38 Conn. App. 801, 804, 663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d 609 (1995).” (Internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 360, 748 A.2d 891 (2000).

“It is well settled that [i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. . . . The burden rests on the defendant who moves to suppress identification evidence to establish that the identification resulted from the employment of an unconstitutional procedure by the police.” (Internal quotation marks omitted.) State v. Gordon, 56 Conn. App. 512, 513-14, 744 A.2d 453 (2000).

We first address whether the procedure used to identify the defendant at the hospital was unnecessarily suggestive. Our Supreme Court has repeatedly stated that “a one-to-one confrontation between a [victim] and the suspect presented to him for identification is inherently and significantly suggestive because it conveys the message to the [victim] that the police believe the suspect is guilty.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 247, 710 A.2d 732 (1998); see State v. Wooten, 227 Conn. 677, 686, 631 A.2d 271 (1993); State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991); State v. Mills, supra, 57 Conn. App. 361; State v. Sparks, 39 Conn. App. 502, 509, 664 A.2d 1185 (1995). “Show-ups, however, and procedures like them tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay.” (Internal quotation marks omitted.) State v. Mills, supra, 361 (one-on-one show-up in which police stood on either side of defendant not so unduly suggestive as to be improper); see State v. Gagnon, 18 Conn. App. 694, 703, 561 A.2d 129 (bringing victim to public place by police to identify defendant among patrons entering and exiting restaurant not impermissibly suggestive), cert. denied, 213 Conn. 805, 567 A.2d 835 (1989); see also State v. Askew, 55 Conn. App. 34, 40 & n.5, 739 A.2d 274 (show-up in which defendant handcuffed, seated in police vehicle and wearing stolen coat, although unduly suggestive, not unreliable), cert. denied, 251 Conn. 918, 740 A.2d 866 (1999); State v. Barnes, 16 Conn. App. 333, 344, 547 A.2d 584 (1988) (officer’s comment to victim during show-up that he had perpetrators in custody, although inappropriate, did not make identification unreliable).

In the present case, the victim testified that Tyghter went to and from the examining room saying, “We got him, we got him. . . . We had two boys. You got to tell which one, who it is.” We consider these comments in determining whether the one-on-one show-up was unduly suggestive. State v. Austin, 195 Conn. 496, 500, 488 A.2d 1250 (1985). We cannot think of any useful puipose that Tyghter’s comments served in the identification process. If they were indeed suggestive, therefore, it follows that they were unnecessarily so. See id., 499.

To the extent that Tyghter’s remarks were suggestive, the critical inquiry relates to their impact on the overall reliability of the identification made by the victim. Id., 500. We conclude, on the basis of an analysis of the totality of the circumstances, that the identification was reliable.

“The reliability of an identification procedure is considered under various factors, such as the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [his] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brath-waite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977) . . . .” (Internal quotation marks omitted.) State v. Mills, supra, 57 Conn. App. 362, quoting State v. Davis, 198 Conn. 680, 683-84, 504 A.2d 1372 (1986).

As discussed earlier, the span of time between the victim’s first observation of the defendant, the assault and the victim’s identification of the defendant at the hospital was no more than several hours. See State v. Howard, 221 Conn. 447, 452-55, 604 A.2d 1294 (1992) (identification occurring two and one-half months after commission of crime not unreliable); State v. Gettes, 42 Conn. App. 472, 478, 680 A.2d 996 (identification occurring fifteen days after commission of crimes did not render identification unreliable), cert. denied, 239 Conn. 921, 682 A.2d 1009 (1996); State v. Felder, 39 Conn. App. 840, 848, 668 A.2d 382 (1995) (identification made ten days after commission of crime not unreliable), cert. denied, 236 Conn. 906, 670 A.2d 1306 (1996). The victim observed the defendant up close at least five times during the afternoon immediately preceding the assault. Within a short time after the assault, she gave a detailed description of the defendant and what he was wearing to the police. When Tyghter brought the defendant into the victim’s hospital room for identification, the victim readily identified the defendant as her assailant. See State v. Mills, supra, 57 Conn. App. 362-63 (where victim had opportunity to view defendant, provided detailed description and readily identified defendant within short time of attempted robbery, one-on-one identification did not violate defendant’s right to due process under United States constitution). Accordingly, we conclude that the show-up did not violate the defendant’s right to due process under the constitutions of Connecticut or the United States. The trial court properly denied the defendant’s motion to suppress.

II

The defendant next claims that the court improperly denied his motion to set aside the verdict because the state failed to prove beyond a reasonable doubt the element of sexual intercourse pursuant to §§ 53a-70 (a) and 53a-71 (a), and the element of force or threat thereof pursuant to § 53a-70 (a). This claim is without merit.

“The trial court’s refusal to set aside [a] verdict . . . is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying [a motion] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Internal quotation marks omitted.) Daigle v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 465, 476, 760 A.2d 117, cert. granted on other grounds, 255 Conn. 915, 763 A.2d 1037 (2000).

To the extent that the defendant’s claim rests on a sufficiency of the evidence argument, we apply a two part test to determine whether there was sufficient evidence to sustain the jury’s verdict. “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.” (Internal quotation marks omitted.) State v. Turner, 252 Conn. 714, 747-48, 751 A.2d 372 (2000). In this process of review, the probative force of the evidence is not diminished, in whole or in part, if the evidence “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.” (Internal quotation marks omitted.) State v. Smith, 57 Conn. App. 290, 296, 748 A.2d 883, cert. denied, 253 Conn. 916, 754 A.2d 164 (2000).

The defendant argues that the evidence was wholly insufficient to find that he engaged in sexual intercourse with the victim as required for a conviction under §§ 53a-70 (a) and 53a-71 (a). In support of his argument, the defendant notes that there was no medical evidence of tears or abrasions in the victim’s vagina or her introi-tus hymen. Notwithstanding this argument, the jury had before it other evidence from which it could determine whether penetration had occurred.

Section 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . .” Section 53a-71 (a) similarly provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .” For purposes of these two sections, sexual intercourse is defined in relevant part as “vaginal intercourse . . . between persons regardless of sex. . . . Penetration, however slight, is sufficient to complete vaginal intercourse . . . and does not require emission of semen. ...” General Statutes § 53a-65. Penetration, therefore, is an element of the offenses of sexual assault in the first and second degrees, which the state was required to prove beyond a reasonable doubt. State v. Artis, 198 Conn. 617, 621, 503 A.2d 1181 (1986).

The jury reasonably could have concluded that the defendant had vaginally penetrated the victim. See id. (“ [w]hether there was actual penetration was a question of fact for the jury”). The victim testified that the defendant got on top of her and inserted his penis into her vagina. See id. (“ ‘[w]hen one of understanding testifies to a completed act of sexual intercourse, it has been held to be sufficient proof of penetration’ ”); State v. Orhan, 52 Conn. App. 231, 236, 726 A.2d 629 (1999) (victim’s testimony that defendant inserted his finger into her vagina constituted sufficient evidence of element of penetration pursuant to § 53a-70 [a]). George Reese, a physician employed by Saint Vincent’s Medical Center who examined the victim shortly after the assault, testified that although there was no indication of vaginal tears or abrasions, “with an assault of a person who is a teenager or older, the architecture of the vaginal area is such that you wouldn’t necessarily see any overt or outward sign of trauma with penetration with a penis.” Reese diagnosed the victim as having moderate tenderness in the vaginal area, of which she complained, and that such tenderness was the result of trauma. Reese further testified that “there was some dried discharge on the thighs and pubic hair.” Accordingly, we conclude that the jury reasonably could have determined that penetration occurred on the basis of these facts and the inferences reasonably drawn therefrom.

The defendant also argues that the evidence was insufficient to find that he compelled the victim to engage in sexual intercourse through the use of force or threat thereof pursuant to § 53a-70 (a). The victim testified that the defendant grabbed her by the arm and led her into the basement of building number five, and that the defendant threatened, “If you tell, I’m gonna kill you.” The victim further testified that the defendant threatened that if she did not remove her clothes, he would kill her. She also testified that the defendant opened her pants and started grabbing between her legs. On the basis of this evidence, the jury reasonably could have concluded that the defendant threatened to use force and actually used force against the victim. See State v. Kish, 186 Conn. 757, 766-67, 443 A.2d 1274 (1982) (evidence that defendant grabbed victim’s wrist, forced her into bedroom and threatened victim is sufficient to prove element of force); State v. Coleman, 52 Conn. App. 466, 470, 727 A.2d 246 (victim’s testimony that defendant “held her right shoulder and pushed his body weight against her” sufficient evidence of use of force), cert. denied, 249 Conn. 902, 732 A.2d 776 (1999); State v. Jackson, 30 Conn. App. 281, 287-88, 620 A.2d 168 (defendant’s placing of hand over victim’s mouth and pushing victim against wall and down sufficient evidence of forcible sexual assault), cert. denied, 225 Conn. 916, 623 A.2d 1026 (1993). Accordingly, the court properly denied the defendant’s motion to set aside the verdict.

III

The defendant’s final claim is that the court misled the jury when it instructed on the element of force during the charge on sexual assault in the first degree because there was no evidence presented that the defendant used force against the victim. The defendant failed to object to the instruction at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). He argues that he is entitled to Golding review because the court’s instruction could have led the jury to believe that “the act of touching constituted force,” and, therefore, the instruction violated his right to due process under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut.

Under Golding, “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.” (Emphasis in original.) Id.; see also State v. Montgomery, 254 Conn. 694, 711 n.26, 759 A.2d 995 (2000). “We may . . . dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” (Internal quotation marks omitted.) State v. Burrus, 60 Conn. App. 369, 375, 759 A.2d 149 (2000).

Although the record is adequate to review the defendant’s claim, the defendant fails to satisfy the third prong of Golding because a constitutional violation did not clearly exist. Moreover, in light of our conclusion in part II of this opinion that there was sufficient evidence for the jury to conclude that the defendant used force or the threat thereof during the sexual assault of the victim, the defendant’s claim must fail to the extent that it rests on the argument of insufficiency of evidence as to force or the threat thereof.

To the extent that the defendant’s claim challenges the propriety of the instruction as to the element of force, we conclude that the instruction was proper. The instruction in no way could have led the jury to believe that the act of touching was sufficient to satisfy the element of force. See State v. Floyd, 253 Conn. 700, 714, 756 A.2d 799 (2000) (court considers jury charge as a whole to determine whether it was reasonably possible for jury to be misled).

The court began its instruction on the charge of sexual assault in the first degree by reading the relevant portion of § 53a-70 almost verbatim. The court further instructed the jury in relevant part: “For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt. That the defendant compelled another person to engage in sexual intercourse. That the sexual intercourse was accomplished by the use of force against the victim or by the threat of use of force against the victim which reasonably caused the victim to fear physical injury to herself. . . . Compelled has its ordinary meaning. It means that the victim did not consent and that the defendant must have required the victim to engage in sexual intercourse against her will. In this case, the state has charged that the sexual intercourse was compelled by the use of force and by the threat of the use of force. These are two methods by which compulsion may be demonstrated and proven. That element will be established as long as each of you find proven beyond a reasonable doubt that the intercourse was compelled, either by the use of force or the threat of the use of force. Simply put, it is not necessary for the state to prove that the intercourse was compelled both by the use of force and by the threat of the use of force, as long as each one of you is satisfied that it was compelled by force or the threat of the use of force. Use of force means use of actual physical force or violence or superior physical strength against the victim.

“You may find a threat of use of force because you find that a threat was actually expressed. Or you may find a threat implied from the circumstances and from what you find to have been the defendant’s conduct. Any such threat must have been such as it reasonably caused the victim to fear physical injury to herself.”

The court then discussed briefly and in general terms some of the evidence that was presented. During this discussion, the court noted that “the only reason I’m not describing [the assault] to you is because you heard the evidence and you’re the ones that find the facts, not myself.”

The defendant’s claim that the court’s instruction as to the element of force was misleading is wholly without merit. The defendant was not deprived of his right to due process, and, therefore, the claim does not satisfy the third prong of Golding. The defendant cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person . . . which reasonably causes such person to fear physical injury to such person . . . .”

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes § 53-21 provides in relevant part: “Any person who . . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”
      General Statutes § 53a-65 (8) defines intimate parts as “the genital area, groin, anus, inner thighs, buttocks or breasts.”

       In the amended information filed February 23, 1998, the state charged the defendant with, inter alia, kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). After a jury trial, the defendant was found not guilty of kidnapping in the first degree and not guilty of the lesser included offense of kidnapping in the second degree in violation of General Statutes § 53a-94, but was found guilty of the lesser included offense of unlawful restraint in the second degree in violation of § 53a-96.
      General Statutes § 53a-96 provides: “(a.) A person is guilty of unlawful restraint in the second degree when he restrains another person.
      “(b) Unlawful restraint in the second degree is a class A misdemeanor.”

       Both the victim and her friend are minors, and, therefore, to protect their identities, we do not use their names in this opinion.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be deprived of life, liberty, or property, without due process of law . . . .”

       The fourteenth amendment to the United States constitution provides in relevant part: “No state shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       Article first, § 9, of the constitution of Connecticut provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       We note, in passing, that although the court denied the defendant’s motion to suppress his statement, the statement was not admitted into evidence, and the defendant therefore does not appeal from that part of the court's judgment.

       In light of our determination that the identification was reliable, we need not consider the defendant’s additional claim that the identification at the hospital tainted the victim’s subsequent photographic identification and the later in-court identification of the defendant.

       The defendant also claims that the court improperly denied the motion because the evidence was insufficient to establish the identification of the defendant as the victim’s assailant. In light of our conclusion in part I of this opinion, we conclude that the evidence of the identification was sufficient and that the court properly denied the motion on this ground.

       On cross-examination, Reese testified that the victim’s hymen would not have necessarily ruptured with two or three minutes of penile vaginal intercourse.

       General Statutes § 53a-65 (7) defines the use of force as: “(A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.”

       We are compelled to respond to the defendant’s argument that because the victim did not “tell her alleged assailant to stop,” nor did she scream or “exhibit any indication of protest . . . there is no credible evidence that the victim was assaulted through the use of force.” In State v. Coleman, 52 Conn. App. 466, 469-70, 727 A.2d 246, cert. denied, 249 Conn. 902, 732 A.2d 776 (1999), we reaffirmed that § 53a-70 “no longer requires that the state prove that physical force overcame earnest resistance. . . . [T]he state is now required to prove that it was the use of force or its threat which caused the victim to engage in sexual intercourse, and does not by its express language require that resistance be proven. See also State v. Kulmac, 230 Conn. 43, 75, 644 A.2d 887 (1994) (focus in sexual assault case is not conduct of victim and adequacy of resistance, but conduct of defendant and use of force or threat of use of force).” (Internal quotation marks omitted.) We take this opportunity to reiterate once again that the focus in a sexual assault case is the defendant’s use of force or threats thereof in compelling the victim to engage in sexual intercourse, not the victim’s reaction to such force or threats.