author: Lavery, J.

text:
    State of Connecticut v. Mark Vincent
    (10688)
    Dupont, C. J., Foti and Lavery, Js.

      Argued September 28, 1992 —
    decision released February 9, 1993

      Michael K. Courtney, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and David Holzbach, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a revolver in violation of General Statutes § 53a-217. The defendant claims that the trial court: (1) should have suppressed the revolver and ammunition seized during the execution of a search warrant because (a) there was no probable cause to believe that the items sought were present within the premises to be searched or that there was a nexus between such items and criminal activity, (b) the description of items authorized to be seized was overly broad and authorized a general warrant, (c) the trial court’s conclusion that the seizure was valid because of the plain view exception was mistaken because the police had sufficient antecedent probable cause to obtain a search warrant for the revolver, and (d) the Connecticut constitution requires “inadvertence” for plain view seizure even if the United States constitution does not; (2) should have excluded evidence regarding the investigation into the disappearance of the defendant’s daughter; (3) should have issued the preliminary voir dire oath to the first four jurors selected; and (4) should have ruled on a pretext claim by the defendant. We affirm the judgment of the trial court.

The following facts could have reasonably been found by the jury. In June, 1988, the defendant’s daughter Doreen disappeared from the defendant’s home in Wallingford. On July 31,1989, officers of the Wallingford police department were issued a search and seizure warrant for the defendant’s mother’s home in Bethel where the defendant was residing. The warrant authorized the officers to seize medical records, personal papers, clothing, artifacts and photographs of the defendant’s daughter Doreen.

During the execution of the warrant, one of the officers discovered a revolver under articles of clothing inside a paper bag between the studs of the garage. The defendant told the officers that they could not take his gun because it was not listed in the search warrant. Since the defendant had a prior felony record, it was illegal for him to have possession of a gun. The officers seized the gun as contraband. Other guns discovered during the search were not seized because the defendant’s mother claimed ownership of them. As a result of the search, the police recovered photographs of the defendant’s daughter and her birth certificate in addition to the gun. The defendant was subsequently arrested and charged with criminal possession of a firearm.

I

The Motion to Suppress

A

We must determine whether the facts that appear on the affidavit presented a substantial basis for the magistrate’s conclusion that probable cause existed. State v. Johnson, 219 Conn. 557, 565, 594 A.2d 933 (1991). We are confined to the facts that appear on the face of the affidavit and those facts that may properly be inferred therefrom, testing those facts with common sense and reality and with great deference to the fact that the issuing magistrate found probable cause. State v. Rodriguez, 27 Conn. App. 307, 316, 606 A.2d 22 (1992).

From the allegations set forth in the warrant affidavit, the issuing magistrate could reasonably conclude the following. On June 5, 1988, the defendant moved from Bridgeport to Whirlwind Hill Road in Walling-ford with his wife Sharon, her children, and Doreen Vincent, the defendant’s daughter from a previous marriage. Doreen’s mother, Donna Jones, lived in Waterbury. On June 15, 1988, at approximately 11:30 p.m., Sharon Vincent returned home from church and was informed by the defendant that Doreen was missing. The defendant said that she had left through the front door. Sharon Vincent later stated that this was impossible because the door was locked with a deadbolt that required a key. Jones then called the defendant’s Wallingford home and was told that Doreen was not at home. Jones attempted to contact Doreen several times on June 17, but the defendant had removed the phone from the wall. On Saturday evening, June 18, Jones arrived at the defendant’s house to pick up Doreen and was then told that she had run away. Jones asked the defendant to alert the police, but he refused. Only at Jones’ insistence did the defendant agree to report Doreen missing. He explained that he did not report her missing right away because he thought she had run away to Jones’ house. Doreen had run away to Jones’ house three times before, but on each occasion Jones had immediately called the defendant. The defendant also told police that he did not report Doreen missing because he thought Jones had come to get her when, in fact, he knew that at the time of the disappearance Jones did not know where he lived. The defendant did not tell his mother or a longtime family friend that Doreen was missing even though he visited those people on June 19, 1988.

In 1989, when Sharon Vincent moved from the Wallingford residence to Danbury, she gave Doreen’s bedroom furniture and curtains to Jones. She told Jones that the defendant had thrown away Doreen’s bedspread because Doreen had “messed it up.” Sharon refused to turn over to police any of Doreen’s school papers, clothing or personal effects.

On July 10,1989, search and seizure warrants were issued to seize Doreen’s personal effects from Sharon’s home in Danbury and her brother’s home in Newtown. Property of Doreen’s that the defendant said she had taken with her was recovered pursuant to these warrants.

The defendant admitted to the police that he had a volatile temper and that on June 15, 1988, he had become angry with Doreen, had hit her and had pushed her into a window, breaking it.

In November, 1988, the defendant moved into a house he shared with Roseann Pelloni. He left no forwarding address with the police, Sharon Vincent or Jones. His whereabouts were discovered after he was involved in a domestic dispute to which the Walling-ford police were called.

The defendant admitted to the police that he had taken photographs of Doreen in her underwear in the weeks prior to her disappearance. Pelloni stated that the defendant often took photographs, but that she searched his personal effects and was not able to find any. The defendant claimed that he no longer had any property of Doreen’s when in fact, acting pursuant to a warrant, the police seized from the defendant’s truck a jersey similar to Doreen’s clothing. Jones consented to -a search of her house and turned over to police papers, furniture and magazines belonging to Doreen. The police were unable to recover any personal or medical records of Doreen and believed it valuable to their investigation to obtain any personal articles that might contain fingerprints, hair samples, handwriting samples and medical records that might identify her, and personal artifacts that might contain information concerning her disappearance. Sharon Vincent told police that, after Doreen’s disappearance, she found several letters that Doreen had written to her friends but had not mailed. Those letters were not recovered. The defendant had been living at his mother’s house in Bethel for several weeks prior to the issuance of the warrant.

The defendant claims that there is nothing in the affidavit showing that the affiants or the parties supplying information had reason to believe that any of the items sought were in the house, and that the magistrate could not have reasonably concluded that there was a nexus between the objects sought and any crime because there was no crime under investigation. The defendant argues that the application does not mention a crime or offense but rather “the sudden disappearance of Doreen Vincent.” We find no merit in the defendant’s claims.

General Statutes § 54-33a permits the issuance of a search warrant if there is probable cause to believe that the property constitutes evidence of an offense. The government has an interest in solving crimes and may seize property solely for the purpose of proving a crime. Warden v. Hayden, 387 U.S. 294, 306, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). For purposes of the fourth amendment “there is no viable reason to distinguish intrusions to secure ‘mere evidence’ from intrusions to secure fruits, instrumentalities, or contraband.” Id., 310. In the case of mere evidence, “[t]here must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior.” Id., 307; General Statutes § 54-33a; State v. Gold, 180 Conn. 619, 650-51, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). Consideration of police purposes is required to this end. Warden v. Hayden, supra.

We conclude, as did the trial court, that there was probable cause to believe that a crime had been committed, that the evidence sought would aid in a particular apprehension or conviction, and that the named items would be in the defendant’s mother’s house where the defendant was living.

The defendant was uncooperative and evasive regarding his daughter Doreen’s disappearance. He delayed reporting the disappearance for three days and filed the report only after pressure from his former wife, Doreen’s mother. He actually concealed her disappearance from family, friends and the girl’s mother.

The defendant gave vague and contradictory information to the police. His accounts of how Doreen left the house and his subsequent efforts to locate her were contradicted by others. Items that the defendant claimed Doreen had taken with her were later recovered from the defendant’s estranged wife, Sharon Vincent.

The defendant moved at least twice after Doreen’s disappearance and failed to inform the police. His whereabouts were discovered after he was involved in a domestic disturbance to which the police responded. The defendant has a volatile temper and in fact had hit Doreen and had pushed her into a window on the day she disappeared. The defendant had taken photographs of Doreen in her underwear shortly before her disappearance.

More than one year had elapsed between Doreen’s disappearance and the issuance of the search warrant. Doreen was twelve years old at the time of her disappearance. The police were interested in recovering items that would contain physical evidence that would help to identify her if she was located and items that might contain evidence regarding her disappearance. The information set forth in the affidavit established that there was a fair probability that the defendant was criminally involved in his daughter’s disappearance and that the evidence sought would aid in proving this.

Doreen lived with the defendant until her disappearance. The defendant was residing at his mother’s house at the time the warrant was issued. The police had already searched Sharon Vincent’s home, her brother’s home, Jones’ home and the defendant’s truck, but had found no personal or medical records relating to Doreen. Unmailed letters written by Doreen to her friends were discovered by Sharon Vincent after Doreen’s disappearance. These letters had not been recovered by the police. Thus, the magistrate could have inferred that the defendant was concealing personal effects and records of Doreen and that those items would be kept where he resided.

“The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item. . . . The quantum of certainty required is a ‘fair probability’ that the search will yield the article specified.” (Citations omitted.) State v. Rodriguez, supra, 313-14.

B

The defendant next claims that the use of the word “artifacts” coupled with the words “personal papers” in the search warrant constitutes a general warrant and authorized an exploratory search. We disagree and find that the warrant described the objects to be seized with sufficient particularity to pass constitutional muster.

The description of the items sought to be seized was as specific as the circumstances and nature of the activity under investigation permitted. The police were seeking items that would yield physical evidence, including hair samples, fingerprints, handwriting samples, records that might help identify Doreen and personal artifacts that would explain her disappearance. In this case it would have been impossible to describe the objects sought with any great specificity. State v. Ruscoe, 212 Conn. 223, 234, 563 A.2d 267, cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1989), citing United States v. Blum, 753 F.2d 999, 1001 (11th Cir. 1985) (description of “ ‘[pjorcelain ware, toys, furniture, baby products and miscellaneous merchandise fraudulently obtained from vendors throughout the United States . . .’ ” was sufficient). In State v. Johnson, 160 Conn. 28, 35, 273 A.2d 702 (1970), the words “ ‘paraphernalia which could be used to violate’ ” the conspiracy statute were insufficient because there may be conspiracy to do a limitless variety of illegal acts and the language was not specific enough.

The warrant did not authorize the officers to conduct a search for anything other than items belonging to Doreen Vincent. Andresen v. Maryland, 427 U.S. 463, 481-82, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). As to what was to be taken, nothing was left to the discretion of the officers executing the warrant. Id., 480.

C

The defendant’s next two claims, first, that the trial court’s conclusion that the seizure of the gun was valid in accordance with the “plain view” exception was clearly erroneous, as the police had sufficient antecedent probable cause to obtain a search warrant for the gun, and, second, that the declaration of rights in the Connecticut constitution requires “inadvertence” in the plain view seizure context even if the United States constitution does not, can be combined because it is unnecessary to reach either of those two claims.

“Two requirements must be met to invoke the plain view doctrine: (1) the initial intrusion that enabled the police to view the items seized must have been lawful; and (2) the police must have had probable cause to believe that these items were contraband or stolen goods.” State v. Ruscoe, supra, 237-38. “Inadvertence is not required if the items seized fall under the category of contraband, stolen property or objects dangerous in themselves.” State v. Couture, 194 Conn. 530, 547, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 971, 83 L. Ed. 2d 967 (1985).

“Contraband” is defined in General Statutes § 54-36a, as any property the possession of which is prohibited by a provision of the General Statutes. Section 53a-217 prohibits the possession of a pistol or revolver by a convicted felon. In this case, the police were lawfully in the defendant’s mother’s residence pursuant to the search warrant. Since the warrant called for a search of the residence of the defendant on Marywood Road in Bethel, the police were entitled to search the entire dwelling. See United States v. Sawyer, 799 F.2d 1494, 1509 (11th Cir. 1986), cert. denied sub nom. Leavitt v. United States, 479 U.S. 1069, 107 S. Ct. 961, 93 L. Ed. 2d 1009 (1987). The police were entitled to enter an area or open a container where items sought pursuant to the warrant could be concealed. United States v. Gray, 814 F.2d 49, 51 (1st Cir. 1987). During the search, a handgun was found underneath clothing in a paper bag in the garage. The defendant, who was with the officers, said the gun was his. The police officers present had knowledge of the defendant’s prior conviction. They had probable cause to associate the property with criminal activity and as contraband without further investigation. State v. Reddick, 207 Conn. 323, 335, 541 A.2d 1209 (1988). Because the revolver seized in this case constitutes contraband, the protection of our state constitution would be unavailing to the defendant even if we were to find that article first, § 7, requires an inadvertence limitation on the plain view doctrine. The seizure of the revolver was proper. State v. MacNeil, 28 Conn. App. 508, 521, 613 A.2d 296, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992).

II

Evidence of Disappearance of the Defendant's Daughter

The defendant claims that the trial court should have excluded the testimony regarding the investigation into the disappearance of the defendant’s daughter. He claims that the repeated reference to her disappearance was more prejudicial than probative because the jury was led to believe that the defendant had killed her. The defendant objected only once on the ground that the disappearance of Doreen Vincent “has nothing to do with this particular case.” The trial court overruled the objection on the basis that the evidence was foundational and an exception was taken. There were no exceptions to the subsequent references. We decline to review this claim because the defendant did not raise the ground that the evidence was more prejudicial than probative and, in fact, the defendant made no other objections after the first one. When an objection is made, Practice Book § 288 requires that counsel state the grounds for the objection and requires counsel to take an exception to make it a ground of appeal. On appeal, we will review evidentiary rulings only on the specific ground raised in the objection. State v. Sinclair, 197 Conn. 574, 579, 500 A.2d 539 (1985). The single objection on the basis of relevancy was insufficient to alert the trial court to a claim that the probative evidence was outweighed by the danger of undue prejudice. In State v. Sinclair, supra, our Supreme Court refused to review the claim that certain evidence should not have been admitted because its prejudicial impact far outweighed its probative value because the objection at trial was based on relevance. Likewise, the defendant here cannot prevail on his evidentiary claim since he failed to articulate the basis for his objection at trial.

Ill

The defendant next claims that the court failed to issue the preliminary voir dire oath to the first four jurors selected. The defendant did not preserve this issue in the trial court by means of objection and exception to the court’s ruling. Prior to oral argument of this case, the defendant did file a motion for review of the trial court’s ruling on his motion for rectification. The defendant had sought an evidentiary hearing in the trial court on the issue of the administration of the voir dire oath to the first four jurors. We granted the defendant’s motion for review, but denied the relief requested because the record reflected that the oath was administered. The defendant also moved to file a supplemental brief on this issue. We denied that motion because we have previously held that the sole remedy of a party seeking review of an order denying articulation or rectification is by a motion for review. State v. Holloway, 22 Conn. App. 265, 274-76, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). “To hold otherwise would mean that a defendant, having unsuccessfully sought review by this court of a trial court’s ruling on a motion for articulation, could thereafter present the same issue to this court on the merits of the appeal. We would then be providing two appellate reviews of the same issue.” Id., 275. Therefore, having previously-ruled on this issue in this case, we decline to review it in this opinion.

IV

The defendant’s final claim is that the claim of subterfuge or pretext was raised before the trial court and not ruled on, and that the case should be remanded to the trial court for a full development of the pretext claim. The defendant claims that the real object of the search was the defendant’s gun and that two weeks prior to the search the defendant had told the police in a recorded statement that he had a gun at home, and the police had told him that he was a convicted felon and should not have a gun in his house. A review of the transcript shows that the defendant had a hearing on this subject and that the trial court ruled as follows: “The defendant has made a great attempt here, and presented it well, that there was more than appeared here, but the testimony of each of the officers was sequestered, was we were not there searching for a gun. They found it when they were searching the premises. So I take — I find that it was discovered inadvertently and in plain view. The cases then indicate that when you find inadvertent evidence in plain view and they constitute the means or instrumentalities of a separate crime, they are evidence of another crime, they may be seized.” “The police need not be caught completely by surprise for a discovery to be inadvertent, so long as they did not anticipate the discovery or know in advance the location of the evidence and intent to seize it.” State v. Pepe, 176 Conn. 75, 79-80, 405 A.2d 51 (1978); see also State v. Blackwell, 20 Conn. App. 193, 200, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989). We are bound by the findings of the trial court unless they are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1990). We conclude they are not. We also conclude that the court’s legal conclusion was supported by its finding and was legally correct. Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1989) § 53a-217 provides: “(a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60e, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
      “(b) Criminal possession of a pistol, revolver or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 54-33a provides in pertinent part: “(a) As used in sections 54-33ato 54-33g, inclusive, ‘property’ includes, without limitation, documents, books, papers, films, recordings and any other tangible thing.
      “(b) Upon complaint on oath by any state’s attorney or assistant state’s attorney or by any two credible persons, to any judge of the superior court, that he or they have probable cause to believe that any property . . . which constitutes evidence of an offense ... is within or upon any place, thing or person, such judge . . . may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into his custody all such property named in the warrant. . . .”

       Practice Book § 288 provides: “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Artur Pinheiro v. Board of Education of the Town of West Hartford et al.
    (11052)
    (11053)
    Foti, Lavery and Freedman, Js.
    Argued December 8, 1992 —
    decision released February 9, 1993

      Ronald T. Murphy, for the appellant (named plaintiff).

      Patricia A. Cofrancesco, for the appellees (named defendant et al).

      William C. Berry, for the appellee (defendant Peter J. Tierinni).
   Freedman, J.

The named plaintiff and the intervening plaintiff, the town of West Hartford, appeal from the decision of the trial court granting the defendants’ motions for summary judgment in this negligence action. This appeal presents the issue of whether a tractor, claimed to have been operated negligently in the course of the plaintiff’s employment by one of the plaintiff’s fellow employees, is a “motor vehicle” and thus falls within an exception to the general bar against actions based on the negligence of a fellow employee created by General Statutes § 31-293a. Because we agree with the trial court that there is no genuine issue as to any material fact and that the tractor involved in this case is not a motor vehicle for purposes of § 31-293a, we affirm the judgment of the trial court.

The affidavits and other materials submitted by the parties accompanying and opposing the motions for summary judgment, taken in the light most favorable to the plaintiff, revealed the following pertinent facts. On June 18, 1987, the plaintiff Artur Pinheiro was employed by the West Hartford board of education as a daytime custodian at William H. Hall High School in West Hartford. On that day, Pinheiro was a passenger on a Red Seal tractor, model number DN6, SN-210, being driven by the defendant Peter Tierinni, also an employee of the West Hartford board of education. Pinheiro and Tierinni were crossing the high school grounds to do landscaping in preparation for a graduation ceremony. The usual route was through the parking lot and up the driveway. On this date, however, they could not take that route because other workers and students preparing for the graduation ceremony were in the way. To go around those workers and students, Tierinni drove the tractor off the driveway and over a curb. As the tractor went over the curb, Pinheiro was thrown off and run over. Pinheiro sustained injuries to his left leg and foot as a result of the accident.

During the course of his employment, Pinheiro rode on and drove the tractor involved in this case across the grounds of the high school and on the driveways, parking lots, sidewalks and streets surrounding the school. The tractor was operated on nearly a daily basis. It was used to transport property and equipment, and often pulled a low trailer behind it. Frequently, when the tractor was being operated, there were students around. The operator of the tractor would often have to go around the students or stop to avoid striking them.

Notwithstanding its use, the tractor involved in this case is not suitable for operation on the highways of the state of Connecticut and can not be registered for such purpose for the following reasons: (1) It does not satisfy the minimum speed requirements set by department of motor vehicle regulations; (2) it is not equipped with turn signal lights as required by General Statutes § 14-96e; (3) it is not equipped with rearview mirrors as required by General Statutes § 14-99; (4) it is not equipped with a windshield as required by General Statutes § 14-99f; (5) it is not equipped with fenders or other wheel protectors as required by General Statutes § 14-104; (6) it is not equipped with brakes on all wheels as required by General Statutes § 14-80h (b); (7) it is not equipped with a parking brake system that is so constructed that failure of any one part of the service brake operating mechanism will leave it with braking ability on at least two wheels as required by General Statutes § 14-80h (d); (8) it is not equipped with an exhaust system that exhausts behind the driver’s seat as required by General Statutes § 14-80 (d); (9) it is not equipped with stop lights as required by General Statutes § 14-96e; (10) it is not equipped with parking lights on the left side in the rear as required by General Statutes § 14-96Z (a); (11) it is not equipped with two tail lamps as required by General Statutes § 14-96c; and (12) it is not equipped with a suspension (springs) at each wheel as required by department of motor vehicle regulations.

The trial court rendered summary judgment for the defendants after concluding that the unsuitability of the tractor for operation on a highway and the statutory definition of a motor vehicle prevented the plaintiff from successfully claiming that the alleged negligence related to the operation of a motor vehicle so as to fall within the exception contained in § 31-293a.

“ ‘The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact’; (internal quotation marks omitted) Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); ‘it [is] incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.’ Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). ‘The presence ... of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.’ Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980); Real Estate Auctions, Inc. v. Senie, 28 Conn. App. 563, 567, 611 A.2d 452 (1992). Moreover, ‘[i]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.’ (Internal quotation marks omitted.) Connecticut Bank & Trust Co. v. Carriage Lane Associates, supra, 781, quoting Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984).” Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 246-47, 618 A.2d 506 (1992). The dispute between the parties here does not arise out of contested versions of the facts, but out of the legal significance of the facts as they relate to relevant statutory definitions. We now consider those statutory definitions as they apply to the facts of this case.

Section 31-293a provides that when the workers’ compensation remedy is available for an injury caused by the negligence or wrong of a fellow employee, that remedy is exclusive and “no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 1U-1.” (Emphasis added.) The purpose of the motor vehicle exception to the exclusive remedy provision of the workers’ compensation law is “to distinguish ‘simple negligence on the job’ from negligence in the operation of a motor vehicle. Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by § 31-293a to accidents having a less distinct relationship to the hazards of the employment. At the same time it has accorded the injured employee, in addition to workers’ compensation, the same remedy he would have against a member of the general public who caused a motor vehicle accident.” Dias v. Adams, 189 Conn. 354, 359-60, 456 A.2d 309 (1983).

The definition of motor vehicle for purposes of the motor vehicle exception to § 31-293a is controlled by the definition of motor vehicle in General Statutes § 14-1. General Statutes (Rev. to 1987) § 14-1 (30) (now § 14-1 [a] [47]) defines “motor vehicle” broadly as meaning “any vehicle propelled or drawn by any non-muscular power,” but excepts various vehicles named specifically including a category of vehicles referred to as “special mobile equipment as defined in subsection (i) of section 14-165 and any other vehicle not suitable for operation on a highway.”

General Statutes § 14-165 (i) expressly defines special mobile equipment to mean “a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including but not limited to . . . tractors other than truck tractors .... The term does not include house trailers, dump trucks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached.” The trial court concluded that the tractor involved here was specifically included in the definition of special mobile equipment. Notwithstanding the specific inclusion of tractors in the definition of special mobile equipment, the plaintiff argues that because the tractor in this case was regularly used for transporting equipment and supplies and because it often pulled a trailer, it must be deemed to have been “designed for the transportation of . . . property to which machinery has been attached” and therefore excluded from the definition of special mobile equipment. The plaintiff also argues that the driveways and parking lots at Hall High School qualify as a “highway” pursuant to General Statutes § 14-1 (18) (now § 14-1 [a] [34]) and that the regular use of the tractor thereon cannot be characterized as only incidental operation or movement over a highway.

Although there is support for the view that the definition of special mobile equipment is limited to construction equipment; see Ferreira v. Pisaturo, 215 Conn. 55, 57, 573 A.2d 1216 (1990); and may turn on the question of whether a particular vehicle is used more than incidently on a highway; see Ferreira v. Pisaturo, 41 Conn. Sup. 326, 350, 574 A.2d 1324 (1989), aff'd, 215 Conn. 55, 573 A.2d 1216 (1990); we need not resolve whether the tractor involved here is excluded from the definition of a motor vehicle as special mobile equipment. Even if the plaintiff correctly argues that the tractor is not special mobile equipment, it is still excluded from the statutory definition of a motor vehicle if it is “any other vehicle not suitable for operation on a highway.” General Statutes § 14-1 (a) (47).

The tractor involved here lacks various equipment required for registration of a motor vehicle. General Statutes § 14-12 requires that a vehicle must be registered before it can be operated on a highway. The trial court concluded that if a vehicle is not suitable for registration, it is “not suitable for operation on a highway” and is therefore excluded from the statutory definition of a motor vehicle.

The plaintiff argues that this is a flawed reading of the definition of motor vehicle. He claims that suitability for operation on a highway cannot be made dependent on compliance with the motor vehicle registration requirements. Otherwise, even an automobile that fails to meet one of the equipment-related registration requirements could be deemed to be unsuitable for operation on a highway and therefore not a motor vehicle. The plaintiff further argues that the use of the tractor on a highway comprised of the driveways and parking lots at Hall High School rebuts the conclusion that the tractor is not suitable for operation on a highway. We believe, however, that both of the plaintiffs arguments miss the mark.

The phrase “any other vehicle not suitable for operation on highway” must be understood by reference to the specifically enumerated vehicles that precede it, which are also excluded from the definition of a motor vehicle. Under the rule of statutory construction known as ejusdem generis, “where a particular enumeration is followed by general descriptive words, the latter will be understood as limited in their scope to matters and things of the same general kind or character as those specified in the particular enumeration, unless there is something to show a contrary intention. . . . When no such contrary intent appears, the general words will be construed with reference to the context, and the specific terms with which the general are associated in the context will control the meaning to be given to the more general expression used in their immediate connection.” (Citations omitted.) Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912); see also Eastern Connecticut Cable Television, Inc. v. Montville, 180 Conn. 409, 413, 429 A.2d 905 (1980); Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 217-18, 332 A.2d 83 (1973). Most of the enumerated vehicles specifically excluded from the definition of motor vehicle in § 14-1 (a) (47) are certainly capable of being operated on a highway but are nonetheless not suitable for such use because of their design. See, e.g., Ferreira v. Pisaturo, supra, 41 Conn. Sup. 338-47 (special mobile equipment can operate on a highway for a limited purpose, but such vehicles are still not suitable for operation on a highway because they are not designed for such use). It is therefore the vehicle’s design that controls in determining whether a particular vehicle is suitable for operation on a highway and qualifies as a motor vehicle. Id., 346. Consequently, an automobile that is not registered because its equipment is in disrepair, as suggested by the plaintiff’s hypothetical; see footnote 7, supra; is still a motor vehicle for purposes of § 14-1 and is still suitable for operation on a highway, although perhaps not permitted to be so operated until necessary repairs are made, because it is an automobile by design. The tractor involved in this case, by contrast, does not incorporate in its design many equipment items necessary for its registration and hence its suitability for operation on a highway. Under the statute, the mere fact that the tractor was operated on a highway at various times and is therefore capable of doing so does not mean that it is a motor vehicle for purposes of § 14-1 (a) (47). See Ferreira v. Pisaturo, supra, 41 Conn. Sup. 340-41, 346-47. Consequently, the tractor involved in this case is not a motor vehicle for purposes of § 31-293a.

Because the tractor being operated by the plaintiff’s fellow employee at the time of the injury was not a “motor vehicle,” the alleged negligence in this case did not relate to the operation of a motor vehicle so as to escape the bar of § 31-293a against such actions. Accordingly, the trial court properly rendered summary judgment for the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       As a result of the injuries giving rise to this action, the town of West Hartford became obligated to pay and has paid to the plaintiff sums of money as workers’ compensation. Accordingly, the town of West Hartford intervened in this action as a party plaintiff pursuant to General Statutes § 31-293 (a).

       In addition to the named defendant, the town of West Hartford and Peter Tierinni are also named as defendants in this action.

       The trial court also granted summary judgment for the defendants with respect to the plaintiffs allegations of wilful or malicious conduct. The plaintiff does not challenge this ruling on appeal.

       “[General Statutes] Sec. 31-293a. no right against fellow employee; exception. If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors’ mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not ‘motor vehicles’ if the claimed injury involving such equipment occurred at the work-site on or after October 1, 1983. No insurance policy or contract shall be accepted as proof of financial responsibility of the owner and as evidence of the insuring of such person for injury to or death of persons and damage to property by the commissioner of motor vehicles required by chapter 246 if it excludes from coverage under such policy or contract any agent, representative or employee of such owner from such policy or contract. Any provision of such an insurance policy or contract effected after July 1, 1969, which excludes from coverage thereunder any agent, representative or employee of the owner of a motor vehicle involved in an accident with a fellow employee shall be null and void.”

       At the time of the injuries involved in this case, General Statutes (Rev. to 1987) § 14-1 (30) provided: “ ‘Motor vehicle’ means any vehicle propelled or drawn by any nonmuseular power, except aircraft, motor boats, road rollers, baggage trucks used about railroad stations or other mass transit facilities, electric battery-operated wheel chairs when operated by physically handicapped persons at speeds not exceeding fifteen miles per hour, golf carts operated on highways solely for the purpose of crossing from one part of the golf course to another, golf cart type vehicles operated on roads or highways on the grounds of state institutions by state employees, agricultural tractors, farm implements, such vehicles as run only on rails or tracks, self-propelled snow plows, snow blowers and lawn mowers, when used for the purposes for which they were designed and operated at speeds not exceeding four miles per hour, whether or not the operator rides on or walks behind such equipment, bicycles with helper motors as defined in section 14-286, special mobile equipment as defined in subsection (i) of section 14-165 and any other vehicle not suitable for operation on a highway.”
      In 1990, the above definition was renumbered to General Statutes § 14-1 (a) (47) without any change in its text. In this opinion, we will refer to § 14-1 (a) (47) as the statutory definition of motor vehicle.

       General Statutes § 14-165 (i) provides: “ ‘Special mobile equipment’ means a vehicle not designed for the transportation of persons or property upon a highway and only incidentally operated or moved over a highway, including but not limited to ditch-digging apparatus, well-boring apparatus and road construction and maintenance machinery such as asphalt spreaders, bituminous mixers, bucket loaders, tractors other than truck tractors, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth moving carry-alls and scrapers, power shovels and drag lines, and self-propelled cranes and earth moving equipment. The term does not include house trailers, dump tracks, truck-mounted transit mixers, cranes or shovels, or other vehicles designed for the transportation of persons or property to which machinery has been attached.”

       In his brief, the plaintiff supports this argument with the following hypothetical: “Assume that all facts were identical to those presented, but that the injuries were caused, not by the tractor, but by an automobile (a typical passenger automobile). Assume further that the automobile was unregistered, because it failed to meet one of the equipment-related registration requirements set forth in General Statutes § 14-12 (h), that is, it was not ‘equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet.’ [General Statutes] § 14-80 (e). Given the trial court’s analysis, the injured worker would be unable to maintain an action against his fellow employee because the automobile that caused his injuries failed to meet the motor vehicle registration requirements and was thus ‘not suitable for operation on a highway.’ It is inconceivable that the legislature intended such a result.”

       The trial court likewise properly rejected the plaintiff’s argument that the defendants are estopped to deny that the tractor is a motor vehicle because they induced him to believe that the tractor was suitable for operation on the highway by requiring him to use the tractor on the school grounds. The court correctly concluded that this argument “disregards the language of [§ 14-1 (a) (47)], which defines motor vehicle in terms of suitability for operation on a highway, rather than use on a highway.” Similarly, the plaintiff’s arguments based on the policy underlying the motor vehicle exception; see Dias v. Adams, 189 Conn. 354, 359-60, 456 A.2d 309 (1983); must fail in light of the intent expressed by the words of the statute. Our interpretation of those words does not frustrate the statutory purpose, and we note that “[a]ny change in the words of the statute . . . must come from the legislature.” Vecca v. State, 29 Conn. App. 559, 565, 616 A.2d 823 (1992).


author: O’Connell, J.

text:
    The Allied Grocers Cooperative, Inc. v. Richard Caplan et al.
    (11240)
    O’Connell, Foti and Heiman, Js.
    Argued December 7, 1992 —
    decision released February 9, 1993

      Donald C. Lunt, for the appellant (named defendant).

      Amy B. Levy, for the appellee (plaintiff).
   O’Connell, J.

The defendant Richard Caplan appeals from the summary judgment rendered against him, awarding the plaintiff $219,054.98 in damages, $24,250 in counsel fees and $341.20 in costs. The appeal raises two issues: (1) whether the trial court improperly granted the plaintiffs motion to strike Caplan’s special defense to the third count of the complaint; and (2) whether the trial court improperly granted summary judgment in favor of the plaintiff on the second and third counts of the complaint. We affirm the judgment of the trial court.

The plaintiff brought this action against TDC Corporation (TDC) and Caplan as its guarantor for the unpaid balance on TDC’s account for groceries and equipment. The obligations stem from two separate guarantee agreements signed by Caplan. The first was executed in January, 1986, and the second was executed in July, 1989. The complaint contained four counts. The first and fourth counts were against TDC, while the second and third counts were against Caplan and alleged breaches of the 1986 and the 1989 guarantees. The action was automatically stayed as to the two counts against TDC by TDC’s filing of a chapter thirteen bankruptcy petition, but continued against Caplan.

Caplan’s answers to the second and third counts admitted the essential allegations of the complaint except that he denied being unconditionally obligated to the plaintiff for all debts owed by TDC. Caplan also filed a special defense to the third count in which he claimed that he had signed the 1986 guarantee in reliance on the plaintiff’s representations that the guarantee was limited to ensuring payment on a $43,000 promissory note.

On May 13, 1991, the plaintiff moved to strike Caplan’s special defense on the basis of the parol evidence rule. Caplan did not oppose the motion because he believed that his personal bankruptcy was inevitable. On May 28, 1991, the trial court granted the motion. Subsequently, there was an improvement in Caplan’s circumstances and, on July 12,1991, he moved to set aside the order granting the motion to strike. On August 12, 1991, the trial court granted Caplan’s motion, but on August 27,1991, after reargument by the parties, the trial court again granted the plaintiff’s motion to strike the special defense.

On July 11,1991, the plaintiff filed a motion for summary judgment based on Caplan’s failure to respond to the plaintiff’s request for admissions, dated April 5, 1991. See Practice Book § 238.* The plaintiff argued that Caplan had admitted each and every allegation of the complaint by failing to respond to the request for admissions. The motion was scheduled for argument on February 3,1992, but neither Caplan nor his attorney appeared in opposition. Caplan did not file any opposing affidavits or other documentary evidence. Consequently, on February 5, 1992, the trial court granted the motion as to liability on the second and third counts.

Thereafter, a hearing in damages was scheduled for March 9,1992. As before, neither Caplan nor his attorney appeared and judgment was subsequently rendered in favor of the plaintiff on counts two and three in the amount of $219,054.98, in addition to attorney’s fees of $24,250 plus costs.

We commence our analysis with a consideration of the defendant’s special defense to the third count, alleging that he was induced to execute the 1986 guarantee by the plaintiffs representation that its sole purpose was to guarantee a certain $43,100 promissory note. This pleading raises the defense of equitable estoppel, also known as estoppel in pais. See Black’s Law Dictionary (5th Ed.) pp. 483, 495. The trial court granted the plaintiff’s motion to strike this special defense on the ground that it was legally insufficient due to the parol evidence rule.

The plaintiff argues that estoppel in pais may be raised under a general denial and need not be specially pleaded and cites Schaefer, Jr. & Co. v. Ely, 84 Conn. 501, 505, 80 A. 775 (1911), for this principle of law. Caplan, however, criticizes this citation as being retrieved from ancient history and not representative of modern law. This criticism overlooks a line of cases bringing the Schaefer rule into contemporary jurisprudence. See O’Hara v. State, 218 Conn. 628, 641, 590 A.2d 948 (1991); DelVecchio v. DelVecchio, 146 Conn. 188, 195, 148 A.2d 554 (1959); Reardon v. Mutual Life Ins. Co., 138 Conn. 510, 519, 86 A.2d 570 (1952); Wolfe v. Wallingford Bank & Trust Co., 124 Conn. 507, 510-11, 1 A.2d 146 (1938); Lebas v. Patriotic Assurance Co., 106 Conn. 119, 125, 137 A. 241 (1927); Cupo v. Royal Ins. Co., 101 Conn. 586, 593, 126 A. 844 (1924).* Indeed, it is the rule that requires an estoppel to be specially pleaded that is archaic; see, e.g., Shelton v. Alcox, 11 Conn. 240, 250 (1836); and has not been the law for over a century. See Hawley v. Middlebrook, 28 Conn. 527, 536-37 (1859) (estoppel in pais, arising from conduct, does not have to be specially pleaded).

Consequently, striking the estoppel defense did not preclude Caplan from proving estoppel, had he chosen to defend the action. Accordingly, we do not have to decide whether the trial court improperly struck Caplan’s special defense. The striking of this unnecessarily pleaded special defense, whether erroneous or not, is not reversible error because it caused no harm to the defendant. DelVecchio v. DelVecchio, supra; Wolfe v. Wallingford Bank & Trust Co., supra. Caplan was still free to proceed to trial and offer evidence supporting his estoppel in pais theory.

Accordingly, the harm to Caplan was caused, not by the loss of the special defense, but by his failure to reply to the plaintiff’s request for admissions. The request included statements, that, if not contested, admitted each material allegation of the complaint. Practice Book § 239; Orenstein v. Old Buckingham Corporation, 205 Conn. 572, 575-77, 534 A.2d 1172 (1987). Because Caplan did not respond to the request for admissions, those facts were conclusively established for purposes of this action. Practice Book § 240; see W. Moller & W. Horton, Connecticut Practice (3d Ed.) § 240. Thus, Caplan is conclusively deemed to have admitted that (1) on or about January 22,1986, he executed a guarantee agreement, (2) the true and genuine signature of Caplan appeared on that document, (3) the guarantee agreement unconditionally guaranteed prompt payment to the plaintiff of any and all obligations owed by TDC to the plaintiff, and (4) pursuant to said guarantee agreement the plaintiff made demand on Caplan for payment of moneys owed by TDC to the plaintiff and Caplan refused and failed to make said payment to the plaintiff.

At oral argument, Caplan conceded that the 1986 guarantee was unlimited as to time so that, if the estoppel he pleaded in his special defense was not available to him, the 1986 guarantee would support the judgment. In Orenstein v. Old Buckingham Corporation, supra, our Supreme Court affirmed the granting of a summary judgment on the basis of admissions by a party who did not respond to requests to admit, even though an opposing affidavit was filed. The present case is even more favorable to sustaining the trial court’s action because here, although Caplan filed an unsworn statement in response to the plaintiffs motion for summary judgment, he did not file an opposing affidavit.

The trial court properly found that there was no genuine issue of material fact as to the defendant’s liability on count three and rendered summary judgment only as to liability on that count. Caplan does not contest the amount of the judgment, attorney’s fees or costs rendered after a subsequent hearing in damages.

Because the foregoing discussion of the third count is dispositive of this appeal, we do not reach Caplan’s claims relating to count two of the complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parol evidence rule declares inadmissible any evidence to contradict, vary or materially affect, by way of explanation, the terms of a written contract. Lester v. Resort Camplands International, Inc., 27 Conn. App. 59, 65, 605 A.2d 550 (1992); 1 B. Holden & J. Daly, Connecticut Evidence (3d Ed.) § 83a.

       Practice Book § 238 provides: “(a) A party may serve in accordance with Sec. 120 upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters relevant to the subject matter of the pending action set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the existence, due execution and genuineness of any documents described in the request. The party serving a request for admission shall separately set forth each matter of which an admission is requested and shall leave sufficient space following each request in which the party to whom the requests are directed can insert an answer or objection. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon any party at any time after the return day. Unless the court orders otherwise, the frequency of use of requests for admission is not limited.
      “(b) The party serving such request shall not file it with the court but shall instead file a notice with the court which states that he has served a request for admission on another party, the name of the party to whom the request has been directed and the date upon which service in accordance with Sec. 120 was made.”

       Caplan filed an unsworn “Response to Plaintiffs Motion for Summary Judgment” dated July 12, 1991.

       Equitable estoppel and estoppel in pais are interchangeable terms. Brown v. Corn Exchange National Bank & Trust Co., 136 N.J. Eq. 430, 439, 42 A.2d 474 (1945), modified, 137 N.J. Eq. 507, 45 A.2d 668 (1946).

       Some of these cases were decided on demurrers, the pleading precursor of the motion to strike.

       The sole exception appears to be Wilmot v. McPadden, 78 Conn. 276, 61 A. 1069 (1905), an action to recover damages for personal injuries resulting in the death of a minor. The plaintiff, who was the administrator of the estate of the minor decedent, appealed from the trial court’s instruction to the jury that there could be no recovery if the minor decedent’s parents had been negligent. The trial court reasoned that recovery, in that situation, would be impermissible because, due to the statute of distribution, “the parents of the child would be benefitted by a verdict rendered in favor of the plaintiff.”
      On appeal, the court recognized the error of the trial court’s ruling and held that the culpable negligence of an infant’s parents does not, of itself, preclude recovery of damages by the administrator. The court further surmised that “if the claim advanced [that the effect of the statute of distribution is to estop recovery] were correct, it would have no application to this case, for such an estoppel must be pleaded and proved by the defendant.” Id., 285.
      We do not find this case sufficiently persuasive so as to disregard the extensive line of cases holding that an estoppel in pais need not be specially pleaded. The language of the opinion plainly limits its rule to the particular type of estoppel at issue in that case. Moreover, as recognized by Wilmot and subsequent cases, this particular defense, which is a variant of the notion that a parent’s negligence may be imputed to a minor to preclude the minor’s recovery, has no legal validity. See, e.g., Lange v. Hoyt, 114 Conn. 590, 596, 159 A. 575 (1932).

       In his reply brief, Caplan argues that a defendant has the right to plead his case as he desires if he complies with the rales of practice. Caplan claims, therefore, that he was free to plead equitable estoppel as a special defense even though there is no such requirement in the rules of practice. Although it is generally true that a defendant may plead a defense as a special defense when a simple denial would have been sufficient, this does not alter the fact that the rules of practice do not require an equitable estoppel to be pleaded as a special defense. Consequently, whether equitable estoppel may be raised as a special defense, the fact remains that its being stricken as a special defense did not deprive Caplan of his ability to raise the issue.

       Practice Book § 239 provides in pertinent part: “Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Sec. 238 (b), or within such shorter or longer time as the court may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.”

       Practice Book § 240 provides in pertinent part: “Any matter admitted under this section is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”


text:
    State of Connecticut v. Parnell Jackson
    (10738)
    Landau, Heiman and Freedman, Js.
    Argued November 30, 1992 —
    decision released February 9, 1993

      Brian M. O’Connell, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Vicki O’Donnell, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (l), and unlawful restraint in the second degree in violation of General Statutes § 53a-96. On appeal, the defendant claims that (1) the evidence was insufficient to sustain the convictions and (2) the trial court’s failure to instruct the jury on the issue of intent with respect to the sexual assault offenses requires a new trial on those charges. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On July 19,1990, the female victim and a friend, Donna Thibodeau, went to Dagny’s, a Hartford nightclub, arriving at approximately 8:30 p.m. There, they met Shane O’Brien and several other friends. The defendant, who was a friend of O’Brien’s but who was not acquainted with the victim, joined the group during the evening. After drinking beer at Dagny’s for approximately two and one-half hours, the group proceeded to North Shore, a nightclub located on Asylum Street in Hartford.

At about midnight, the victim left the nightclub for a breath of fresh air. While outside, she agreed to accompany the defendant to search for a mutual friend, Billy Jackson, who was in possession of the defendant’s car keys. The defendant stated that he was concerned that Jackson had taken his car without permission. Jackson had never borrowed the defendant’s car without permission, and he gave the defendant no reason to believe that he would do so that evening. After walking a short distance, they located the defendant’s car and proceeded to walk back toward North Shore. When the defendant entered a parking lot, the victim followed, believing that the parking lot provided a shortcut to North Shore.

The defendant walked toward an alcove located in that parking lot, stating that he needed to relieve himself. While the victim was waiting, the defendant pulled her by the arm into the alcove. With his right hand on her shoulder and his left hand over her mouth, the defendant asked the victim if she had ever been kissed by a black man. The victim protested, stated that she wanted to return to her friends and tried to leave the alcove. The victim then tried to push past the defendant in order to leave the alcove.

Despite the victim’s resistance to the defendant’s advances, the defendant pushed the victim against the alcove wall and tried to kiss her. The defendant then lowered his pants, reached under the victim’s skirt and attempted to push down her underwear. The victim kept pulling her underwear up and pushing her skirt down. There was testimony that the two “were fighting like this, back and forth.” The defendant next placed his hand behind the victim’s neck and pushed her down to perform oral sex. The defendant put his penis into the victim’s mouth, moving it back and forth for a few minutes. The defendant then pulled the victim up and again began to manipulate her skirt and underwear, this time trying to insert his penis into her vagina. The victim blocked his attempts with her hand. Angry that the victim was not cooperating, the defendant again pushed the victim down by the neck in order to perform oral sex for approximately one minute.

The victim was frightened, crying and shaking during her encounter with the defendant in the alcove, too frightened to attempt to leave. When the victim saw three men walking toward their car in the nearby parking lot, she ran toward the car, jumping in the driver’s seat. Extremely upset and screaming, the victim told onlookers to keep the defendant away from her. After the defendant left the immediate area of the car, the victim told the men and others that she had been sexually assaulted by the defendant.

When the police arrived, the victim was still upset and crying. After indicating that she had been sexually assaulted, the victim was taken by ambulance to St. Francis Hospital where she was examined. During the procedure, the victim was still upset, tearful and a bit withdrawn. Similar behavior continued over the next several days after the sexual assault.

At trial, the defendant maintained that his sexual contact with the victim was consensual. He denied that any form of intercourse took place. He introduced testimony intended to support his argument that the vietim fabricated the story in order to enrage her alleged boyfriend, O’Brien, who was allegedly flirting with Thibodeau.

The defendant was charged with three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and one count of unlawful restraint in the second degree in violation of General Statutes § 53a-96 (a). He was acquitted of the first charge of sexual assault in the first degree. He was acquitted of the second charge of sexual assault in the first degree but was convicted of sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) as a “lesser included offense” of that charge. The defendant was also convicted of the third charge of sexual assault in the first degree and unlawful restraint in the second degree. This appeal followed.

I

The defendant first claims that the evidence at trial was insufficient to sustain the convictions. Specifically, with respect to the sexual assault convictions, the defendant argues that the evidence failed to establish beyond a reasonable doubt the use of force or a threat of use of force by the defendant and likewise failed to establish beyond a reasonable doubt that the defendant intended to exert force. The defendant also asserts that the same deficiencies in the evidence underscore the absence of any restraint of the victim or any intent to restrain her on his part and therefore require that his conviction for unlawful restraint be overturned. We are not persuaded.

“An accused has a fundamental right to an acquittal under both the United States constitution and the Connecticut constitution where the state has failed to prove beyond a reasonable doubt each and every element of the crime charged. In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986). Appellate review of a claim of insufficiency of the evidence is a twofold task: We must first review the evidence by construing it in the light most favorable to sustaining the verdict. We must then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. In this 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. State v. Marra, 215 Conn. 716, 726, 579 A.2d 9 (1990).” State v. Ortiz, 29 Conn. App. 825, 832, 618 A.2d 547 (1993).

A

In order to convict a person of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1); see footnote 1, supra; or sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1); see footnote 2, supra; the state must prove that the accused compelled the victim to engage in sexual intercourse or compelled the victim to submit to sexual contact by the use of force or by the threat of use of force which reasonably causes the victim to fear physical injury. State v. Smith, 210 Conn. 132, 136-43, 554 A.2d 713 (1989); State v. Mezrioui, 26 Conn. App. 395, 398-400, 602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d 169 (1992). The defendant argues that the victim’s testimony that the defendant did not use a great amount of force during the incident, that she did not attempt to clench her teeth, claw, or otherwise resist the defendant during oral sex, and that the defendant did not hold his hands against her entire body or restrain her arms, demonstrates the lack of “earnest resistance” on the part of the victim necessary to show the use of force by the defendant. See, e.g., State v. Morgan, 170 Conn. 110, 112, 365 A.2d 99 (1976). The defendant further argues that no threat may be reasonably construed from the defendant’s conduct in the absence of physical violence or any explicit threat by the defendant to do something of a violent nature to the victim. We disagree.

The evidence established beyond a reasonable doubt that this was a forcible sexual assault by the defendant. The defendant began the sexual encounter by placing his hand over the victim’s mouth-. • Despite her expressed desire to leave the alcove and her attempt to do so, the defendant pushed the victim against the alcove wall and continued to make sexual advances toward her. The victim resisted those advances repeatedly by attempting to put her skirt and underwear back into place after the defendant attempted to move them. Thereafter, the defendant twice pushed the victim down by the neck, forcing her to perform oral sex. In between those events, the victim blocked the defendant’s attempts at vaginal intercourse with her hand. During the entire time, the victim was scared, crying and shaking.

“Although the victim never said ‘no’ or ‘stop,’ such an explicit verbal rejection of unwanted sexual advances is not required .... Similarly, it is not necessary that the victim physically resist the unwanted sexual advances.” State v. Mezrioui, supra, 399; State v. Mackor, 11 Conn. App. 316, 323, 527 A.2d 710 (1987). The defendant’s reliance on cases in which the sexual assault was compelled through physical violence or a threat of physical violence; see, e.g., State v. Franko, 199 Conn. 481, 483, 508 A.2d 22 (1986) (victim choked until she blacked out); State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986) (victim choked); State v. Kish, 186 Conn. 757, 762, 443 A.2d 1274 (1982) (victim threatened with physical injury); is misplaced. While those cases illustrate that proof of physical violence is sufficient to establish that the sexual assault was compelled by the use of force or a threat of the use of force, nothing in those cases, or elsewhere in our law, suggests that proof of physical violence is necessary to establish that the sexual intercourse or contact has been compelled by the use of force or a threat of the use of force. See State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987) (use of force proven by “either violence or some other form of physical coercion”); see also General Statutes § 53a-65 (7) (defining “use of force” as not only the use of physical violence, but also as the “use of physical force ... or superior physical strength against the victim”). To the contrary, it is not required that a sexual assault victim resist to the point of physical injury in order to establish that she did not consent to the sexual advances. The force used or threatened to be used in the course of committing sexual assault in the first and third degrees is that necessary to compel the victim to engage in sexual intercourse or to submit to sexual contact. State v. Rogers, 198 Conn. 53, 62, 502 A.2d 360 (1985). If such force is proven beyond a reasonable doubt, lack of consent is implicit. State v. Clinkscales, 21 Conn. App. 411, 419, 574 A.2d 243 (1990).

The fact that the victim eventually submitted to the defendant’s demands after he refused to permit her to leave the seclusion of the alcove as she requested and after he applied force to her person in order to further the sexual contact and intercourse is sufficient to support a conclusion that the defendant used both force and the threat of force, which reasonably caused the victim to fear physical injury, in order to compel the victim to engage in sexual intercourse and to submit to sexual contact. State v. Mezrioui, supra, 399-400. Moreover, the defendant’s use of such force in response to the victim’s lack of consent makes it clear that the evidence established the necessary “criminal intent” to support a conviction. See State v. Smith, supra. “Only by entertaining the fantasy that ‘no’ meant ‘yes,’ and that a display of distaste meant affection, could the defendant have believed that [the victim’s] behavior toward him indicated consent. Such a distorted view of her conduct would not have been reasonable. The evidence was more than sufficient to support the verdict.” Id., 143.

B

Because the record contains sufficient evidence from which the trier of fact could reasonably infer both the use of force and threat of the use of force upon the victim during the sexual assaults, the jury could properly conclude that the defendant had intentionally restricted the victim’s movement without her consent. See State v. Drake, 19 Conn. App. 396, 400-401, 562 A.2d 1130 (1989). Consequently, there was sufficient evidence to support the defendant’s conviction for unlawful restraint in the second degree. See footnote 3, supra.

II

The defendant next challenges the trial court’s failure to instruct the jury on the issue of intent as it relates to the offenses of sexual assault in the first degree and sexual assault in the third degree. This claim requires little discussion, as it is controlled by State v. Pierson, 201 Conn. 211, 514 A.2d 724 (1986), and State v. Johnson, 22 Conn. App. 477, 578 A.2d 1058, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990).

Sexual assault in the first degree requires proof of general intent, that is “[t]hat the defendant intended to perform the physical acts that constitute the crime of sexual assault.” State v. Pierson, supra, 216. Nonetheless, “[o]ur acknowledgement of the fundamental principle that a criminal act must be volitional does not mean that a charge to a jury that omits reference to this principle is constitutionally defective where the evidence at trial contains no suggestion that the defendant’s conduct was involuntary and he has made no such claim either in the trial court or on appeal.” Id., 217. Thus, “no special instructions as to intent are required for a general intent crime unless something in the evidence presented indicates that the defendant acted involuntarily, without sufficient mental capacity, under duress or while entrapped.” (Emphasis in original.) State v. Johnson, supra, 485. No such evidence was presented or argument made in this case. Consequently, the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent 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 t)

       General Statutes § 53a-72a (a) provides in pertinent part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person ... or (B) by the threat of use of force against such other person . . . which reasonably causes such other person to fear physical injury . . . .”
      General Statutes § 53a-65 (3) provides that for purposes of § 53a-72a sexual contact means “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”

       General Statutes § 53a-96 (a) provides: “A person is guilty of unlawful restraint in the second degree when he restrains another person.”
      General Statutes § 53a-91 (1) provides in pertinent part that for purposes of § 53a-96 restrain means “to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty ... by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. . . .”

       The defendant was convicted of sexual assault in the third degree after the trial court instructed the jury, pursuant to the defendant’s request, that it could consider the crime of sexual assault in the third degree as a “lesser included offense” of the charge of sexual assault in the first degree pertaining to that count of the substitute information alleging sexual assault in the first degree by way of penis-vagina intercourse. Although sexual assault in the first degree and sexual assault in the third degree do not stand in relation of greater and lesser offenses; State v. Milardo, 224 Conn. 397, 416-17, 618 A.2d 1347 (1993); the defendant does not challenge his conviction of sexual assault in the third degree on this basis, and we note that the constitutional right to notice of the charges against an accused is not implicated where the accused has requested that the jury consider the offense not encompassed by the information. See State v. Scognamiglio, 202 Conn. 18, 23-25, 519 A.2d 607 (1987).

       With respect to the sexual assault convictions, the defendant frames the issue as whether “the evidence submitted by the state [was] insufficient to sustain the convictions of sexual assault.” (Emphasis added.) Because the defendant elected to put on evidence after the denial of his motion for judgment of acquittal at the end of the state’s evidence, he is deemed to have waived his right to appellate review of the sufficiency of the evidence at the completion of the state’s case. We thus review the entirety of the evidence taking into account both the evidence offered by the state and that offered by the defendant. State v. Commerford, 30 Conn. App. 26, 33, 618 A.2d 574 (1993); State v. Wolff, 29 Conn. App. 524, 527-28, 616 A.2d 1143 (1992); State v. Booker, 28 Conn. App. 34, 41-42, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992).

       As the state aptly noted at oral argument: “The defendant is asking this court to adopt an earnest resistance to sexual advances exception [to a charge of sexual assault] but that is not the current state of the law, nor is physical violence by the perpetrator required. We have come beyond that in the state of Connecticut. Instead, it is a question of force and that is a question of fact for the jury. ... A victim might not want to fight off [the perpetrator], A victim might just hope that the perpetrator gets it over with quickly and goes away, to minimize the assault, to minimize the anguish, just to minimize what is happening at that particular time. To require physical resistance would punish a victim unnecessarily when the victim is already being assaulted.”

       “Although the defendant did not properly preserve this claim for appeal, we will review it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); see also State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); because the claim involves an essential element of the crime on which the failure to instruct may result in a due process violation. State v. Pollitt, 205 Conn. 132, 150, 531 A.2d 125 (1987).” State v. Johnson, 22 Conn. App. 477, 485 n.2, 578 A.2d 1058, cert. denied, 216 Conn. 817, 580 A.2d 63 (1990).

       Although sexual assault in the first degree is a general intent crime, a similar conclusion is not as clear with respect to sexual assault in the third degree, which requires proof of sexual contact “for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating [the victim].” General Statutes § 53a-65 (3). If sexual assault in the third degree is a specific intent crime, then it is clear from our review of the jury instructions that the trial court adequately instructed the jury on this element of the crime. If, on the other hand, sexual assault in the third degree, like sexual assault in the first degree, is a general intent crime, then the defendant’s claim must fail for the reasons set forth in our discussion of sexual assault in the first degree.

       The defendant’s suggestion in his brief that, absent a charge on general intent in this case, “the jury is free to convict an accused even if they reasonably believed that he was engaging in consensual sexual activity,” is equally without merit. See State v. Smith, 210 Conn. 132, 136-44, 554 A.2d 713 (1989).


author: Landau, J.

text:
    Bette Ann Mathis v. Donnie Lee Mathis
    (10547)
    Landau, Heiman and Schaller, Js.
    Argued December 10, 1992 —
    decision released February 9, 1993

      Linda P. Stambovsky, with whom, on the brief, was Patricia Buck Wolf, for the appellant (plaintiff).

      Daniel M. Arcobello, with whom, on the brief, was Jerome J. Larracuente, for the appellee (defendant).
   Landau, J.

The plaintiff appeals from the judgment in this action for the dissolution of her marriage, claiming that the trial court (1) abused its discretion by improperly distributing various real and personal property owned by the parties, and (2) improperly made the alimony award to the plaintiff a time limited alimony award. Because we agree with the plaintiff’s second claim, we need not address the first claim, and reverse the judgment of the trial court and remand the case for a new trial.

The following facts are pertinent to this appeal. The parties were married in 1977, and the marriage had irretrievably broken down by the mid-1980s. At trial, the court distributed various real and personal property between the parties in accordance with General Statutes §§ 46b-62, 46b-81, and 46b-82. The trial court also awarded time limited alimony in the amount of $75 per week for a period of eighteen months.

Review “of a trial court’s exercise of its broad discretion in domestic relations cases is limited to whether that court correctly applied the law and whether it could reasonably conclude as it did. Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985); Louney v. Louney, 13 Conn. App. 270, 273, 535 A.2d 1318 (1988). The trial court must consider all relevant statutory criteria in a marital dissolution action but it does not have to make express findings as to the applicability of each criteria. . . . The trial court may place varying degrees of importance on each criterion according to the factual circumstances of each case.” (Citation omitted; internal quotation marks omitted.) Ippolito v. Ippolito, 28 Conn. App. 745, 751, 612 A.2d 131, cert. denied, 224 Conn. 905, 615 A.2d 1047 (1992).

We have reviewed challenges to an award of time limited alimony on many occasions. Id.; Wolfburg v. Wolfburg, 27 Conn. App. 396, 606 A.2d 48 (1992); Henin v. Henin, 26 Conn. App. 386, 601 A.2d 550 (1992); Watson v. Watson, 20 Conn. App. 551, 568 A.2d 1044 (1990); Roach v. Roach, 20 Conn. App. 500, 568 A.2d 1037 (1990). “The trial court does not have to make a detailed finding justifying its award of time limited alimony. . . . Although a specific finding for an award of time limited alimony is not required, the record must indicate the basis for the trial court’s award. . . . There must be sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand.” (Citations omitted; internal quotation marks omitted.) Ippolito v. Ippolito, supra, 751-52.

There are several valid reasons for the awarding of time limited alimony. One is the “sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” (Internal quotation marks omitted.) Id., 752; Roach v. Roach, supra, 506. A time limited alimony award generally is for rehabilitative purposes, but other reasons may also support this type of alimony award. Another reason is to provide support for a spouse until some future event occurs that renders such support less necessary or unnecessary. Ippolito v. Ippolito, supra, 752; Wolfburg v. Wolfburg, supra, 400.

Our review of the record indicates no factual basis for the trial court’s award of time limited alimony. The trial court does not state that the award is for rehabilitative purposes, for instance, or until such time as the plaintiff may be able to support herself or become less dependent on the defendant. Nor does the record indicate that the time limited alimony award is connected to any future event that will render the alimony less necessary or unnecessary. Indeed, we are unable to discern any reason from the record as to why the alimony award was limited to eighteen months. Therefore, this financial award must be vacated and remanded to the trial court.

We will not, however, limit the remand in this case solely to the issue of time limited alimony. “The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ ” Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). Therefore, because the award of time limited alimony is connected to, and dependent on, the other financial orders, on remand the court is to reconsider all of the financial awards.

The judgment is reversed as to the financial orders and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.