text:
    STATE OF CONNECTICUT v. ERNESTO P.

    (AC 32825)
    DiPentrma, C. J., and Graendel and West, Js.

      Argued February 1
    officially released May 1, 2012

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and John F. Fahey, senior assistant state’s attorney, for the appellee (state).

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

   Opinion

GRUENDEL, J.

The defendant, Ernesto P., appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree by the threat of use of force in violation of General Statutes § 53a-70 (a) (1), one count of sexual assault in the first degree by intercourse with a victim under the age of thirteen in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), one count of risk of injury to a child in violation of General Statutes § 53-21 (a) (1), one count of risk of injury to a child in violation of § 53-21 (a) (2), one count of possession of child pornography in the third degree in violation of General Statutes § 53a-196f (a), and one count of employing a minor in an obscene performance in violation of General Statutes § 53a-196a (a) (1). On appeal, the defendant claims that the evidence was insufficient to establish that he (1) threatened the use of force and (2) employed a minor in an obscene performance. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the late summer of 2006, the victim was eleven years old. The victim resided in Hartford near the home of C, who lived with her father, the defendant. The victim and C were close friends in the fifth grade. They played often, spending considerable time together. On one particular day, the victim stopped by C’s home on her way to a park to play with other friends. At that time, C asked the defendant if she could spend the night at the victim’s house. The defendant answered affirmatively, on the condition that C first cleaned her room. As C proceeded to her room, the defendant asked if he could have a moment with the victim, who waited in the kitchen. The defendant then approached the victim and touched her breasts and vaginal area outside her clothing. As he did so, he warned the victim that if she told anyone of the encounter “something bad would happen to [her]” and also that his daughter “would never talk to [her] and [they] would never be best Mends no more.” C returned from her bedroom and observed the defendant “humping” the victim. She testified that the victim at that time looked uncomfortable and sad. C yelled at her father, stating that what he was doing to her best Mend was wrong. The defendant responded by explaining to C that the victim simply was “showing him what she had did to her boyfriend.” C replied that she knew that he was lying because the victim did not have a boyfriend and would not engage in such behavior. The gMs then left the defendant’s property and headed to the victim’s home, where they contacted the police. When the police responded, C falsely denied witnessing anything between the defendant and the victim because she “was scared of what was gonna happen if I told. ... I thought I was gonna to get hurt or something. ... By [the defendant].” C testified that “every time I get in trouble [the defendant] would . . . pick up a wire or hit me with a stick or something.” Although the defendant was arrested, he later was released. As a result of that encounter, the victim refrained from entering the defendant’s home and instead always waited in the backyard for C to come out and play. The victim testified that she did so because she was afraid of the defendant.

Approximately two months after the encounter with the defendant, the victim entered the defendant’s home with C when he was not present. On that occasion, the defendant returned home while the girls were inside the residence and ordered C to take a shower. The victim at that point wanted to leave, but did not do so. As C showered, the defendant approached the victim and took naked photographs of her. He then sodomized the victim. The defendant stopped when C finished her shower and he instructed the victim to pull up her clothes. At trial, the victim testified that the sexual assault felt “[n]asty.” The victim did not contact the police after that assault because she did not believe that the police would take any action when “they didn’t believe” her initial report weeks earlier.

Approximately two years later, while speaking with personnel from the department of children and families on an unrelated matter, C informed them that the defendant had “touched” the victim, which prompted an investigation. Stacey Karpowitz, a forensic interview specialist at the Aetna Children’s Foundation, subsequently met with the victim on October 27, 2008, and questioned her about the allegations of sexual assault, which interview was monitored by members of the Hartford police department. During that interview, the victim stated that the defendant had touched her breasts and vaginal area, had taken pornographic photographs of her and had sodomized her. The police thereafter executed a search warrant on the defendant’s home, where they found and seized twenty-six photographs of various females under a stack of pornographic magazines in a kitchen cabinet. Eleven of the photographs are of a young female exposing her naked breasts, buttocks, vagina and anus. At trial, the victim identified herself as the female in those photographs.

The defendant thereafter was arrested and taken to police headquarters, where he signed a waiver of his Miranda rights. Detective Edward P. Foster testified at trial that the defendant at that time stated, “I’m guilty. I’m guilty. Only guilty people sign papers.” The defendant also identified the victim as the nude female in several of the seized photographs. He denied ever touching the victim in a sexual manner and explained that the victim “was enamored [with] him and that on repeated occasions she had shown up at his door naked . . . [b]egging him to teach her about sex.” He further stated that he believed that his daughter and the victim were engaged in a lesbian relationship. When asked about the identity of other females in the seized photographs, the defendant replied, “[H]ow much time am I gonna do in jail, five years? It’s gonna take you ten years to figure out who those girls are.”

The defendant was charged by information with the aforementioned offenses. A trial followed, at the conclusion of which the jury found the defendant guilty on all counts. The court rendered judgment accordingly and sentenced the defendant to a total effective term of twenty years incarceration and five years of special parole. From that judgment, the defendant now appeals.

I

The defendant claims that the evidence adduced at trial was insufficient to establish that he threatened the victim with the use of force. He preserved this claim by moving for a judgment of acquittal on that basis as to the charge of sexual assault in the first degree in violation of § 53a-70 (a) (l), which pertained to the act of sodomy, and the charge of sexual assault in the third degree in violation of § 53a-72a (a) (1) (B), which pertained to the touching of the victim’s breasts and vaginal area as he “humped” the victim.

Our standard of review for claims of evidential insufficiency is well established. “[W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. . . . Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. . . .
“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 517-19, 782 A.2d 658 (2001).

In the present case, there is a reasonable view of the evidence that supports the jury’s finding that the defendant threatened the use of force while perpetrating the crimes of sexual assault in the first degree and sexual assault in the third degree. The jury heard testimony from the victim that the defendant threatened that “something bad would happen to [her]” if she ever told anyone of their initial sexual encounter. The jury, as sole arbiter of credibility, was free to believe that testimony. See State v. Russell, 101 Conn. App. 298, 316, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

Significantly, the jury also heard testimony that the defendant articulated that threat as the initial physical assault transpired — as he touched the intimate parts of the victim. Because “[p]hysicai injury is both a serious and foreseeable risk in the ordinary course of such [sexual] encounters”; United States v. Daye, 571 F.3d 225, 231 (2d Cir. 2009); the jury reasonably could infer that the defendant’s verbal threat, uttered as he “humped” the victim, communicated a threat of physical force to the victim. The jury likewise could reasonably infer that the defendant, a fifty-four year old adult male, was stronger than the eleven year old victim. See State v. Glasper, 81 Conn. App. 367, 375, 840 A.2d 48 (in considering evidence jury not required to leave common sense at courtroom door), cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). Our appellate courts “have consistently held that one also may be guilty of sexual assault in the first degree if one uses one’s physical size or strength to threaten another to submit to sexual intercourse and that such threat may be expressed or implied.” (Emphasis in original.) State v. Mahon, 97 Conn. App. 503, 512, 905 A.2d 678, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006); see also State v. Kulmac, 230 Conn. 43, 76, 644 A.2d 887 (1994) (defendant’s use of “superior physical size and strength, or an implied threat thereof, to compel [the victim] to engage in intercourse” sufficient to sustain conviction of sexual assault in first degree).

Moreover, the jury also heard the victim testify that, after her initial physical assault by the defendant— during which he warned her that “something bad would happen to [her]” if she reported the assault — she feared the defendant. In light of that fear, the jury rationally could infer from the evidence before it that, as the defendant penetrated her anus with his penis during the second sexual assault, the eleven year old victim was mindful of his earlier threat, which communicated an implicit threat of the use of force.

As one federal court observed, “crimes involving indecent sexual contact with a child typically occur in close quarters, and are generally perpetrated by an adult upon a victim who is not only smaller, weaker, and less experienced, but is also generally susceptible to acceding to the coercive power of adult authority figures.” (Internal quotation marks omitted.) United States v. Cadieux, 500 F.3d 37, 45 (1st Cir. 2007), cert. denied, 552 U.S. 1190, 128 S. Ct. 1226, 170 L. Ed. 2d 77 (2008); accord United States v. Velazquez-Overa, 100 F.3d 418, 422 (5th Cir. 1996) (“[a] child has very few, if any, resources to deter the use of physical force by an adult intent on touching the child”), cert. denied, 520 U.S. 1133, 117 S. Ct. 1283, 137 L. Ed. 2d 359 (1997). In fight of the foregoing and viewing the evidence in the fight most favorable to sustaining the verdict, we conclude that the jury reasonably could have inferred that the defendant used the threat of force to compel the victim to submit to both the initial sexual contact and the subsequent act of anal intercourse two months later.

n

The defendant also argues that the evidence was insufficient to establish that he employed a minor in an obscene performance. His claim is twofold in nature. The defendant first posits that § 53a-196a (a) (1) contains a public distribution element, contending that “[a]dults who take obscene images of minors solely for their own use” cannot be prosecuted under that statute. On that interpretation of § 53a-196a (a) (1), the defendant reasons that because no evidence was submitted indicating that the defendant distributed the obscene photographs of the victim seized in the search of his residence, his conviction of that crime cannot stand. We disagree.

A

We first consider the defendant’s novel interpretation of § 53a-196a (a) (1), over which, as a question of statutory interpretation, our review is plenary. See State v. Johnson, 301 Conn. 630, 649, 26 A.3d 59 (2011). “The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes.” (Internal quotation marks omitted.) State v. Rodriguez-Roman, 297 Conn. 66, 74, 3 A.3d 783 (2010).

Section 53a-196a (a) provides that “[a] person is guilty of employing a minor in an obscene performance when such person (1) employs any minor, whether or not such minor receives any consideration, for the purpose of promoting any material or performance which is obscene as to minors, notwithstanding that such material or performance is intended for an adult audience . . . .” The defendant claims that “a photographer who takes pictures for personal use, with no intent to distribute, is not an ‘audience’ within the meaning” of the statute. By contrast, the state maintains that an audience, as that term is used in § 53a-196a (a) (1), can be a single individual such as the defendant. Because both interpretations are plausible, the statute is ambiguous; State v. Johnson, supra, 301 Conn. 650; particularly when, unlike other terms used in § 53a-196 (a) (1), the term “audience” is not specifically defined by statute. In seeking to ascertain and give effect to the apparent intent of the legislature, we therefore may “look for intexpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . (Internal quotation marks omitted.) State v. Rodriguez-Roman, supra, 297 Conn. 75.

We begin by noting that § 53a-196a (a) (1) is part of the statutory scheme governing obscenity related offenses. That scheme includes, inter alia, offenses relating to the promotion of obscene materials to minors; General Statutes § 53a-196; the employment of minors in obscene performances; General Statutes § 53a-196a; the importation of child pornography; General Statutes § 53a-196c; and the possession of child pornography. General Statutes § 53a-196d et seq. The goal underlying that legislative scheme, as noted by our Supreme Court in State v. Ehlers, 252 Conn. 579, 595 n.19, 750 A.2d 1079 (2000), is “to prohibit the exhibition and viewing of children engaged in sexual conduct, regardless of the number of spectators or whether the spectators are depicted in any reproduction.”

To that end, § 53a-196a (a) (1) prohibits a person from employing a minor “for the purpose of promoting any material or performance which is obscene as to minors . . . .” A performance “obscene to minors” is defined in General Statutes § 53a-193 (2) as one that “depicts a prohibited sexual act and, taken as a whole, it is harmful to minors. . . .” Section 53a-193 (3) defines “prohibited sexual act” as, inter alia, a “nude performance . . . .” Nude performances in turn are defined as “the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discemibly turgid state in any play, motion picture, dance or other exhibition performed before an audience.” General Statutes § 53a-193 (4). It is undisputed that the photographs of the victim seized during the search of the defendant’s residence contain exhibitions of her genitals, pubic area, buttocks and breasts. The defendant nevertheless insists that the retention of such photographs by a photographer for his own personal use cannot constitute an audience for purposes of the offense of employing a minor in an obscene performance.

For two reasons, we disagree with that proposition. First and foremost, it runs counter to the legislative policy of prohibiting the exhibition and viewing of children engaged in sexual conduct. State v. Ehlers, supra, 252 Conn. 595 n.19. Second, we are mindful of the well established canon of statutory construction that “[a]n identical term used in [statutory provisions] pertaining to the same subject matter should not be read to have differing meanings unless there is some indication from the legislature that it intended such a result.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 78, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). In State v. Ehlers, supra, 595, our Supreme Court expressly considered the meaning of the term “audience” as used in § 53a-196d, the possession of child pornography in the first degree statute. It explained that a performance held before an audience “means that there must be some recording or viewing of, or listening to, a live performance, or a reproduction of a live performance, by a person or persons other than the person or persons simultaneously engaged in the performance. The number of such persons recording, viewing or listening to the performance and whether they actually are present at the live performance or depicted in reproductions of it are irrelevant for purposes of determining whether an audience exists. Thus, an audience . . . could consist of a single photographer of the live performance, whether or not he or she actually was present at the performance or ever viewed the photographs, or a single person viewing photographs of the performance, whether or not any spectator was present at the live performance or depicted in the photographs.” Id., 595-96. It further indicated that “if a person engaged in the performance himself records the performance, or views or listens to material depicting a reproduction of a performance in which he participated, he will constitute an audience . . . .’’Id., 595 n.18. Our Supreme Court articulated an identical reasoning in rejecting a similar claim regarding § 53a-196c, the importation of child pornography statute, in State v. Sorabella, 277 Conn. 155, 188-89, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

There is no indication that the legislature intended the term “audience,” as it is used in § 53a-196a, to have a different meaning from that utilized in §§ 53a-196c and 53a-196d. The defendant disagrees, arguing that recent legislation targeting the practice known as “sext-ing” demonstrates a legislative understanding that § 53a-196a contains a public dimension component. He claims that, in enacting General Statutes § 53a-196h (a) (2), which proscribes the knowing and voluntary transmission by means of an electronic communication device a visual depiction of child pornography by a minor, the legislature intended that misdemeanor; General Statutes § 53a-196h (c); to be the exclusive punishment for such conduct. He thus alleges that interpreting “ ‘audience’ as including a photographer creating an image for personal use [in § 53a-196a (a) (1)] creates felony liability for minors who take obscene photographs of each other or encourage each other to take photographs of themselves for personal use,” thereby contravening the legislative intent to make § 53a-196h (a) (2) the exclusive punishment for such conduct. His claim fails to appreciate the fact that the act of transmitting “by means of an electronic communication device a visual depiction of child pornography ... to another person”; General Statutes § 53a-196h (a) (2); necessarily is imbued with a public dimension, as the “visual depiction” is viewed by an audience of more than one spectator. Furthermore, the legislative history of that statute does not indicate that § 53a-196h (a) (2) was intended to be the exclusive punishment for such conduct. Rather, it substantiates the state’s assertion that the statute serves as a statutory alternative to § 53a-196a, affording a degree of discretion to law enforcement. See 53 H.R. Proc., Pt. 11, 2010 Sess., p. 3499, remarks of Representative Michael P. Lawlor (noting that a “number of people thought that maybe it would be a good idea to give the police another option”). The defendant’s contention, therefore, is without merit.

Applying the principle that “a word used in different parts of the same statutory scheme has the same meaning”; State v. Rivera, 250 Conn. 188, 201, 736 A.2d 790 (1999); we conclude that the term audience, as used in § 53a-196a, may consist of a single photographer of the live performance or a single person viewing photographs of the performance, whether or not any spectator was present at the performance or depicted in the photographs. To paraphrase Ehlers, this commonsense interpretation of § 53a-196a (a) (1) advances the legislative purpose of “prohibit[ing] the exhibition and viewing of children engaged in sexual conduct, regardless of the number of spectators . . . .” State v. Ehlers, supra, 252 Conn. 595 n.19.

Moreover, adopting the defendant’s interpretation of the statute to exempt “[a]dults who take obscene images of minors solely for their own use” would lead to a most bizarre result, as it would condone the exhibition of children engaged in sexual conduct, so long as such exhibition was limited to what the defendant characterizes as the photographer’s “personal use.” The legislature could not have intended such a result. See State v. Sandoval, 263 Conn. 524, 553, 821 A.2d 247 (2003) (“we interpret statutes to avoid bizarre or nonsensical results”); State v. Spears, 234 Conn. 78, 92, 662 A.2d 80 (“[w]e must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve” [internal quotation marks omitted]), cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995).

B

In light of our conclusion that the term audience, as used in § 53a-196a, may consist of a single photographer of the live performance or a single person viewing photographs of the performance, the defendant’s evidential insufficiency claim is untenable. The record demonstrates — and the defendant in this appeal does not dispute — that the jury had before it evidence from which it reasonably could determine that he photographed the victim’s nude performance, which was memorialized in the obscene photographs found in his residence. The jury further could reasonably conclude that the victim engaged in that performance at the behest of the defendant. Accordingly, the defendant’s claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his appellate brief, the defendant states that he “has consistently maintained his innocence in this case.” Nevertheless, in this appeal he does not challenge the judgment of conviction with respect to his commission of the crimes of sexual assault in the first degree by intercourse with a victim under the age of thirteen in violation of § 53a-70 (a) (2), possession of child pornography in violation of § 53a-196f (a), and risk of injury to a child in violation of both § 53-21 (a) (1) and (2). In light of the foregoing and in furtherance of our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child; see footnote 1 of this opinion; we refer to the victim by that nomenclature in this opinion.

       The defendant separated from C’s mother in October, 1997.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The court merged the defendant’s conviction of two counts of sexual assault in the first degree in violation of § 53a-70.

       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 threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
      General Statutes § 53a-65 (2) defines “sexual intercourse,” as that term is used in § 63a-70 (a) (1), as “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       General Statutes § 53a-72a (a) provides in relevant part that “[a] person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against athirdperson, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”
      General Statutes § 53a-65 (3) defines “sexual contact,” as that term is used in § 53a-72a (a) (1), as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person 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.” Likewise, General Statutes § 53a-65 (8) defines “intimate parts” as “the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts.” Although § 53a-65 (8) was amended by Public Acts 2006, No. 06-11, § 1, that amendment has no bearing on the merits of this appeal. For convenience, we refer to the current revision of the statute.

       To “hump” is slang for “to have sexual intercourse with.” Random House Webster’s Unabridged Dictionary (2d Ed. 2001) p. 932; see also Webster’s Third New International Dictionary (2002) p. 1102 (defining “hump” as “to copulate with”). Considered in tandem with the victim’s testimony that the defendant was touching her breasts and vaginal area outside her clothing, the jury reasonably could infer that when C testified that she witnessed the defendant “humping” the victim, she meant that he held her in a sexual embrace.

       The defendant argues that given his other threat that his daughter “would never talk to [the victim] and [they] would never be best friends no more,” the evidence plausibly suggests that the victim merely feared a social loss. That contention is undercut by C’s testimony at trial that, upon witnessing the sexual assault, C immediately yelled at the defendant, called him a liar and thereafter maintained her friendship with the victim. We note further that, in evaluating a sufficiency of the evidence claim, we do not view the evidence in a light most favorable to a convicted defendant, but rather in one most favorable to sustaining the verdict of guilty. State v. Niemeyer, supra, 258 Conn. 519.

       We note that technical changes were made to subsection (a) of § 53a-196a since the time of the defendant’s conduct at issue in this appeal. See Public Acts 2007, No. 07-143, § 6. Because those changes have no bearing on the merits of this appeal, for clarity and convenience, we refer to the current revision of the statute.

       Like the defendant in the present case, the defendant in Ehlers relied on the dictionary definition of “audience” to support his proposition that the term meant multiple spectators. State v. Ehlers, supra, 252 Conn. 592.

       In Sorabella, our Supreme Court declined “the defendant’s invitation” to “overrule Ehlers insofar as we held that self-recording may be deemed to satisfy the audience requirement of the statute.” State v. Sorabella, supra, 277 Conn. 189 n.39. Rather, the court adhered “to the reasons for our conclusion in Ehlers regarding the audience requirement . . . .” (Citation omitted.) Id.

       “Sexting” is the act of sending sexually explicit messages or photographs between mobile telephones. See United States v. Broxmeyer, 616 F.3d 120, 123 (2d Cir. 2010).

       General Statutes § 53a-196h (a) (2) provides: “No person who is thirteen years of age or older but under sixteen years of age may knowingly and voluntarily transmit by means of an electronic communication device a visual depiction of child pornography in which such person is the subject of such visual depiction to another person who is thirteen years of age or older but under eighteen years of age.”


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    IN RE CHRISTOPHER L.

    (AC 33803)
    Beach, Robinson and Sheldon, Js.

      Argued January 31
    officially released April 17, 2012

      Erich H. Gaston, with whom was Alison Gaston, for the appellant (respondent mother).

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, 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.

       April 17,2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

ROBINSON, J.

The respondent mother, Shanequa L, appeals from the judgment of the trial court terminating her parental rights with respect to her minor son, Christopher L. On appeal, the respondent contends that the trial court erred in (1) terminating her parental rights when she did not have notice that the petitioner, the commissioner of children and families, would attempt to prove that the department of children and families (department) made reasonable efforts at reunification because the petition did not allege reasonable efforts at reunification, (2) concluding that the department made reasonable efforts to reunify the child with the respondent and (3) concluding that the respondent had failed to achieve sufficient personal rehabilitation. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the respondent’s claims. The respondent had two children, Christopher, and a daughter who was eighteen at the time of trial. Christopher was bom on August 8, 2005. The department has been involved with the family since 2006. On December 23, 2006, the respondent was driving while intoxicated when she rear-ended a car and left the scene of the accident. Both of her children were in the car at the time of the accident. When she was apprehended by the police shortly thereafter, she admitted to the accident but did not take responsibility for her actions. The respondent was charged with operating a motor vehicle while under the influence of intoxicating liquor, two counts of risk of injury to a child, following too closely and evading responsibility.

On May 24, 2007, a department social worker visited the foster home of one of her clients who was unrelated to this case. At the foster home, the social worker found the respondent intoxicated with both of her children present. The social worker reported that the respondent “ran into the fence at the home with her car, breaking the side mirror and scratching the side of her car.” The department thereafter invoked a ninety-six hour hold for Christopher and placed him in a foster home.

On June 25, 2007, the respondent was admitted to the inpatient program at Coventry House, a substance abuse treatment facility for mothers and their children. On June 29, 2007, the respondent arrived at Coventry House intoxicated. On July 31, 2007, the court, Dan-nehy, J., adjudicated the two children neglected. Christopher was placed with his mother at Coventry House. The respondent actively participated in many of the programs that Coventry House offered but was discharged on October 29, 2007, after she engaged in an altercation with another resident. Christopher was thereafter placed in his previous foster home.

The children and the respondent were reunited on May 1, 2008. The respondent at that time was sober for eleven months and had completed numerous programs to help in her recovery.

On September 4, 2009, the respondent was arrested for operating a motor vehicle while under the influence of intoxicating liquor. The respondent had parked her car on a sidewalk, was sitting in the driver’s seat with no pants on and had urinated on herself. Because there were no children with her in the car, the department was not notified of the respondent’s September 4, 2009 arrest. The respondent was found guilty of operating a motor vehicle while under the influence of intoxicating liquor and was sentenced to six months in jail, execution suspended, with one year of probation.

On September 7, 2010, the respondent drove into a secured gated area at the J.C. Penney in Manchester. Christopher was in the car at the time. The responding officer reported that when confronted at that location, the respondent was slurring her words and had an unsteady gait. The police found three empty bottles of Smirnoff vodka under the seat in the respondent’s vehicle and the respondent’s blood alcohol levels were .24 and .23. The respondent was arrested for operating a motor vehicle while under the influence of intoxicating liquor, risk of injury to a child and driving with a suspended license, and was sentenced to two years in jail, execution suspended after 120 days, with two years of probation. A family friend initially took in Christopher; thereafter, he was placed with his paternal grandparents.

The respondent was released from jail in January, 2011. Thereafter, beginning on April 29, 2011, she attended a four week program called Strive, which works on personal development, employment skills and team building. She also completed the STEPS program in May, 2011, which is a mental health and substance abuse program. She had consistent attendance in the program and tested negative for drugs and alcohol in all mine screens and Breathalyzer tests administered to her. She also participated in individual counseling and women’s trauma groups. In addition, in June, 2011, she reported that she had obtained a job with her former employer as a certified nurse’s aide. At the time of trial, she was attending Alcoholics Anonymous groups and had obtained a sponsor.

On September 14, 2010, the department filed a coterminous petition seeking to adjudicate Christopher neglected and to terminate the parental rights of the respondent and Christopher’s father, Dwayne W. As for the respondent, the petitioner checked the box on the petition for termination alleging that the mother had been unable or unwilling to benefit from reunification efforts. The petitioner, however, did not check the box alleging that the department had made reasonable efforts to reunify the respondent with her child. The petitioner also checked the box on the petition alleging that the respondent’s child had been found in a prior proceeding to be neglected or uncared for and that the respondent had failed to achieve a sufficient degree of personal rehabilitation to encourage the belief that within a reasonable time she could assume a responsible position in the life of the child. Attached to the petition was a summary of facts offered to substantiate the petition for neglect and termination of parental rights. Included in the summary of facts was a section entitled “Reasonable Efforts,” which detailed the efforts the department had made to reunify the respondent with her child.

Christopher was adjudicated neglected following a hearing that took place on December 23, 2010. Christopher thereafter was committed to the petitioner. On June 21,2011, the petitioner filed a motion for technical correction, seeking to correct the petition for termination of parental rights by checking the box on the petition alleging that the department has made reasonable efforts to reunify the child with his mother and father. The court did not rule on the petitioner’s motion. A hearing was held on the petition to terminate the respondent’s parental rights on June 28 and June 29, 2011.

On July 5,2011, the court issued its decision terminating the parental rights of the respondent. In its memorandum of decision, the court outlined the extensive history that the respondent had with the department. The court noted that the respondent had attended a court-ordered psychological evaluation in November, 2010, with psychologist David Mantell, who filed a report with the court. The court pointed to elements of Mantell’s report that indicated his “pessimism regarding [the respondent’s] capacity for a sustained rehabilitation.” The court also noted that Mantell had “serious doubts regarding allowing [the respondent] another opportunity to re-establish herself as the child’s custodial parent and primary caretaker.” The court then noted that Mantell’s evaluation had taken place while the respondent was incarcerated, and that since her release, she had been working as a certified muse’s aide and was actively engaged in Alcoholics Anonymous. The court agreed, however, that Mantell appropriately asked, “when will we know with a reasonable level of psychological certainty that [the respondent] will be a sober and reliable parent?” The court found that Mantell believed that she would need one, two or three years of sobriety in order to answer that question, and that the child needed permanency soon. The court noted that: “[The respondent] has not been able to maintain sobriety without relapse for more than twelve months at a time.” The court specifically pointed out times in [the respondent’s] history when she had experienced success with her sobriety, similar to the present situation, but then had relapsed. The court noted: “Since Christopher was first in [the department’s] care in 2007, [the respondent] has expressed several times her success with sobriety. In July, 2008, [the respondent] reported to [the department] that she was sober for a year; that she attends [Alcoholics Anonymous] meetings and likes them. On August 19, 2008, [the respondent] reported to [the department] that she had started college courses to become a drug and alcohol counselor. In September, 2008, she reported she was attending groups at the Coventry House. . . . Despite [the respondent’s] prior reports that she is sober and participating in [Alcoholics Anonymous], she has relapsed on each occasion.” The court further stated that the respondent had expressed that she was ready for reunification with the child and that she could maintain her sobriety. The court noted, however, that she had made similar statements in the past and subsequently relapsed and put Christopher in danger.

The court found that the respondent’s periods of sobriety had ranged from six months to two years. The court thereafter determined that Christopher needed stability at the present time and could not afford to wait two years to see if his mother could continue to remain sober. It then determined that the respondent could not “be counted on to safely, soberly and consistently provide care” for Christopher, and, therefore found that the petitioner had met her burden of demonstrating that the respondent had not achieved rehabilitation, as contemplated under General Statutes § 17a-112 (j) (3) (B). The court also concluded that the department had made reasonable efforts to reunify the respondent with the child. The court did not make a finding that the respondent was unwilling or unable to benefit from reunification efforts. The court thereafter terminated the respondent’s parental rights. This appeal followed. Additional facts will be provided where necessary.

I

The respondent’s first claim on appeal is that the trial court erred in terminating the respondent’s parental rights when the petitioner did not allege in the petition for termination that the department had made reasonable efforts at reunification, and the trial court determined that the department had made such reasonable efforts. The respondent contends that the petitioner failed to check the box on the petition for termination of parental rights alleging that the department had made reasonable efforts to reunify the child with the parent and, instead, checked the box alleging that the mother was unable or unwilling to benefit from reunification efforts. Accordingly, the respondent contends that she was not provided notice of the petitioner’s intention to prove that the department had made reasonable efforts at reunification.

“[I]t is well established that [w]e will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) In re Anna Lee M., 104 Conn. App. 121, 124 n.2, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007); Histen v. Histen, 98 Conn. App. 729, 737, 911 A.2d 348 (2006); see Practice Book § 60-5. The respondent did not file an objection to the petitioner’s motion for technical correction, and at no point during or after the proceedings did the respondent raise this issue before the trial court. We therefore decline to review the merits of the respondent’s claim.

II

The respondent’s next contention on appeal is that the court erred in concluding that the department made reasonable efforts to reunify the child with the respondent. Specifically, the respondent argues that the department did not offer services to the respondent to address the trauma she had suffered due to significant losses in her life and their impact on her alcohol abuse.

Under § 17a-112 (j), in order to terminate an individual’s parental rights on the basis of failure to achieve personal rehabilitation, the department must demonstrate that it made reasonable efforts to reunify the child with the parent, or prove that the parent will not benefit from such reunification efforts. “In order to terminate parental rights under § 17a-112 (j), the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts ... to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification .... [Section 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Citation omitted; internal quotation marks omitted.) In re Devon W., 124 Conn. App. 631, 642, 6 A.3d 100 (2010).

In support of her argument, the respondent cites In re Vincent B., 73 Conn. App. 637, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). The circumstances of the present case are, however, distinguishable from those of In re Vincent B. In that case, the department had determined that the respondent would be unwilling or unable to benefit from reunification services after he had failed to benefit from prior services offered to him by the department. Id., 642-44. This court overturned the termination of the respondent’s parental rights because the department had not made any efforts to reunify the respondent with his children after the respondent had successfully completed an inpatient substance abuse treatment program. Id., 645-47.

Contrary to In re Vincent B., the record in the present case demonstrates that the department made reasonable efforts to reunify the respondent with her son. The respondent was offered a number of services to help her with her alcohol abuse and to assist her in achieving reunification with Christopher. As of the time that the petition for termination of parental rights was filed, the department had provided the respondent with substance abuse treatment and inpatient treatment at Coventry House that included group sessions on addiction and relapse prevention, anger management, parenting, personal development, spirituality, life skills, art therapy and group therapy. In addition, the department provided the respondent with individual counseling, family therapy, medication management, parenting education, intensive safety planning, an intercommunity mental health intensive outpatient program, pretrial alcohol education systems program at PACES Counseling Associates, Inc., and case management services. The department returned Christopher to the respondent’s care twice: once when Christopher joined his mother at Coventry House, and again on May 1, 2008. Furthermore, when the respondent was incarcerated, the department arranged for supervised visitations with Christopher. On the basis of the record, it appears that the trial court’s determination that the department made reasonable efforts to reunify the respondent with Christopher was not clearly erroneous.

Moreover, even if the evidence established that additional services for the respondent’s trauma issues might have been beneficial, such evidence would not necessarily render the trial court’s finding clearly erroneous. See In re Melody L., 290 Conn. 131, 147, 962 A.2d 81 (2009); In re Alexander T., 81 Conn. App. 668, 673, 841 A.2d 274 (“[i]n light of the entire record, the failure to provide the referral, while a lapse, does not make the overall efforts of the department fall below the level of what is reasonable”), cert. denied, 268 Conn. 924, 848 A.2d 472 (2004). “[R]easonable efforts means doing everything reasonable, not everything possible.” (Internal quotation marks omitted.) In re Devon W., supra, 124 Conn. App. 642. On the basis of the evidence presented, we conclude that the court’s finding that there was clear and convincing evidence that the department had made reasonable efforts to reunify the respondent and Christopher was not clearly erroneous.

Ill

The respondent’s final contention on appeal is that the court erred in concluding that she had failed to achieve sufficient personal rehabilitation. The respondent argues that she made considerable efforts to comply with the specific steps required of her in order to achieve personal rehabilitation and to achieve reunification with Christopher.

“[W]e review a trial court’s finding that a parent has failed to rehabilitate herself in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Jordan T., 119 Conn. App. 748, 755, 990 A.2d 346, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010).
“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parents’] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [that the parents have] achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [they] can assume a responsible position in [their] child’s life. . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue. ... As part of the analysis, the trial court must obtain a historical perspective of the respondent’s child caring and parenting abilities, which includes prior adjudications of neglect, substance abuse and criminal activity.” (Citations omitted; internal quotation marks omitted.) In re Daniel C., 63 Conn. App. 339, 353-54, 776 A.2d 487 (2001).

The respondent argues that she made considerable efforts to achieve personal rehabilitation and to achieve reunification with Christopher. We agree that the respondent benefited from services made available to her and has made significant progress; nevertheless, the record supports the court’s finding that she failed to rehabilitate sufficiently, such that she could parent Christopher within a reasonable period of time.

Meg Michaels, a social work supervisor with the department, testified: “[The respondent] has had a number of relapses, and in her relapses, she puts Christopher in danger. She gets in the car and she drives and that’s putting this child at risk. Mom, this time — you know, as we stand today, she’s completed services. She’s taken part in services. She’s doing and she’s saying the right things that she would say in order to, you know, get a child back in her care. But she said these things in the past — you know, upon the first removal. She’s gone through treatment. Even after going through treatment, having the children reunified to her care, she again — 2009—had another episode where she got behind the wheel of a car drinking — you know, this new episode, again, where she put Christopher in harm’s way. . . . Christopher is in need of permanency. At this point in time, this child’s been in care— he’s going to be six in August; he’s been in care for twenty-three months. He’s had a number of different placements. ... At this point, this child needs permanency. He needs consistency, reliability, stability. He needs a sober caretaker.” When asked her opinion as to how long the respondent would have to demonstrate sobriety in order for reunification to take place, Michaels responded that, based on the respondent’s history of substance abuse and relapse, a minimum of two years would be necessary.

Furthermore, the Manchester Memorial Hospital Ambulatory Behavioral Health treatment plan update (treatment plan update) dated May 23, 2011, which was introduced as an exhibit at the hearing, noted that the respondent presented problems of “alcohol dependence, anxiety, crying episodes, depression, flashbacks, guilt, history of multiple traumas, intrusive thoughts, legal problems, low frustration tolerance, sleep disturbance, and [u] nemployment. ’ ’ The treatment plan update also indicated that the reasons for continued treatment included “to prevent psychiatric hospitalization . . . adequate coping skills have yet to be established . . . patient continues to be at high risk for substance use relapse . . . [and] to build the patient’s healthy defenses and self esteem.”

Mantell testified that he believed that Christopher should not be returned to the respondent because her risk of relapse was too high. In his opinion, the respondent would need to remain sober and to seek treatment for several years before she could function independently on a day-to-day basis. He testified that the respondent had reported to him that she had had a history of substance abuse since she was a teenager. Mantell further testified: “And now I, on the basis of my evaluation, came to the conclusion that those factors alone indicate that the nature of her temperament, her problem solving capacity, her low frustration tolerance, her ability to generate a successful support system, the manner in which she deals with sadness and reminders of grief because of significant losses in her life cause her to decompensate to a degree that causes her children to be significantly endangered. And that did not happen once; that’s happened multiple times. Therefore, there’s a pattern of behavior that extended over a period, I think, of three years or perhaps more. So, I would expect that a period of rehabilitation would foresee a period of time that’s at least that great, if not greater, to establish that she has the — not only the sobriety, but also the personal resources to deal with significant life stressors without decompensating again. That would be the minimum requirement to consider placing a dependent child into her care.”

Further, Mantell testified that, despite the level of services she was presently engaged with, he would not recommend that the respondent be given another chance to be reunited with Christopher. Mantell stated: “What I hear you telling me is [the respondent is] off to a good start in her rehabilitation, and she has access and is using the optimal services. But the issue is when will we know with a reasonable level of psychological certainty that those services have been successful in enabling her to remain sober and a reliable parent. My answer is not for another two to three years minimally.”

On the basis of the evidence provided, the court reasonably could have determined that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child. There was evidence presented to the court that the respondent would need to maintain her sobriety for a minimum of two years. Therefore, the court did not err in determining that the respondent had failed to achieve personal rehabilitation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The petition also sought to terminate the parental rights of Christopher’s father, Dwayne W. Dwayne W. had court-appointed counsel, and although appearing at some prior proceedings, failed to appear for trial. The court determined that Dwayne W. had abandoned the child under General Statutes § 17a-112 Q) (3) (A). Dwayne W. is not a party to the present appeal. Therefore, we refer to Shanequa L. as the respondent.

       At the time of the arrest, the respondent’s daughter was under the age of eighteen.

       The respondent completed the following programs prior to the time that she was reunited with her children on May 1, 2008: alcohol education, parenting education, anger management, life skills, group therapy, an addiction workshop, medication management and outpatient therapy.

       Christopher remained with his paternal grandparents until June 24,2011, when he was placed with the foster family with whom he had previously resided. As of the time of the hearing, Christopher had spent twenty-three months in the care of the department in total.

       The motion for technical correction also sought to correct the petition for termination of parental rights by adding the docket number T11-CP10-013758-A, and that the petitioner is the agency that had agreed to accept custody or guardianship of the child upon disposition.

       It appears from reading the respondent’s brief that she may disagree that the rehabilitation of the respondent should be measured from the date of the first finding of neglect on July 31, 2007. She does not, however, address this argument in her brief. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003).

       The respondent’s mother died of an aneurism in September, 1994. The father of the respondent’s daughter was murdered in September, 2006. The respondent’s father died in November, 2007.

       General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-lllb, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”


author: FLYNN, J.

text:
    EDWIN GARCIA v. CITY OF HARTFORD ET AL.
    (AC 32270)
    DiPentima, C. X, and Espinosa and Flynn, Js.

      Argued January 9
    officially released May 8, 2012

      Robert F. Ludgin, for the appellant (plaintiff).

      Catherine H. Freeman, for the appellees (defendants).
   Opinion

FLYNN, J.

The plaintiff, Edwin Garcia, appeals from the judgment of the trial court denying his request for damages and the issuance of two writs of mandamus ordering (1) the defendants the city of Hartford treasurer, Kathleen Palm, and the city of Hartford pension commission to allow the plaintiff to apply eighty days of accumulated sick time toward increased pension benefits and (2) the defendant Santiago Malave, director of personnel for the city of Hartford, to certify the exact amount of accrued sick time the plaintiff had accumulated at the time he resigned as a city employee. On appeal, the plaintiffs sole claim is that the trial court incorrectly determined that the controlling collective bargaining agreement between the city of Hartford (city) and the Hartford police union (union) prohibited the plaintiff from applying eighty accumulated sick days toward a pension benefit enhancement once the plaintiff reached the twentieth anniversary of his hire date. We affirm the judgment of the trial court.

The following facts and procedural history inform our review of the plaintiffs claim. The plaintiff resigned from the Hartford police department (department) after completing over sixteen years of service and accumulating eighty unused sick days. Immediately prior to his resignation on January 24, 1997, the plaintiff was suspended from service from June 28, 1996, until January 3, 1997. When he resigned, the plaintiff was subject to a collective bargaining agreement (agreement) between the city and the union that took effect on July 1, 1994. The agreement awards pension benefit payments to department employees who meet specific service criteria as expressly set forth in the agreement.

At the time the plaintiff resigned from the department, he was ineligible to receive retirement benefits because he had not yet reached the twentieth anniversary of his hire date, as required under the agreement, which would occur on March 24, 2000. Once the plaintiff began receiving retirement benefits after the twentieth anniversary of his hire date, he requested to trade in accumulated sick time for increased pension benefits. Specifically, the plaintiff requested to trade in eighty sick days for four years of service time. This request was denied by the defendant.

On November 12, 2004, the plaintiff filed a complaint in the Superior Court seeking the issuance of two writs of mandamus and damages. As to the first writ, the plaintiff sought a writ of mandamus ordering Palm and the city pension commission to comply with the agreement between the city and the union by allowing the plaintiff to trade in accumulated sick time for additional pension benefits. As to the second writ, the plaintiff sought a writ of mandamus ordering Malave to certify to Palm and the city pension commission, the exact amount of accrued sick time the plaintiff had accumulated at the time of his resignation as a city employee. On December 8, 2004, the defendant filed an answer and special defenses asserting that an action of mandamus, pursuant to Practice Book § 23-45, “may be brought in an individual right by any person who claims entitlement to that remedy to enforce a private duty owed to that person” and that the defendant “did not owe . . . any private duty to [the] [p]laintiff.”

On January 29,2008, the defendant moved to dismiss the plaintiffs complaint on the basis that the court lacked subject matter jurisdiction because the plaintiff never initiated a grievance procedure, as required under the terms of the agreement, and therefore failed to exhaust his administrative remedies prior to filing his complaint. In response, the plaintiff contended that, because he was no longer an employee, he did not have standing to pursue the grievance procedure and such an attempt to pursue administrative remedies would prove futile. On April 18, 2008, the court, Bentivegna, J., granted the defendant’s motion to dismiss on the basis that the court lacked subject matter jurisdiction to adjudicate the dispute. The court reasoned that the plaintiffs argument that pursuit of a remedy via the grievance procedures would prove futile was unavailing in light of the facts that the plaintiff (1) had alleged in his complaint that the defendant had allowed other former employees to trade in their accumulated sick leave and (2) failed to allege that he did not have access to the grievance procedures under the agreement.

The plaintiff timely filed an appeal, and the Supreme Court concluded that the court improperly determined that the agreement could be interpreted to require a retiree to exhaust the administrative remedies available to employees therein. Garcia v. Hartford, 292 Conn. 334, 336-37, 972 A.2d 706 (2009). Accordingly, the Supreme Court reversed the judgment of the court and remanded the case for further proceedings. Id., 349. A court trial thereafter commenced, and, on April 27, 2010, the court, Domnarski, J., rendered judgment in favor of the defendant after finding the issues of damages and the issuance of the two writs of mandamus for the defendant.

The court made the following factual findings: “The plaintiff resigned from the . . . department after sixteen years of service. On the date of his resignation, the plaintiff was subject to, and a beneficiary of, a collective bargaining agreement between the . . . union and the city . . . that was in effect for the period of July 1, 1994, to June 30, 1996 ....

“Prior to terminating his employment, the plaintiff had accumulated eighty sick days as a Hartford police officer. At the time the plaintiff terminated his employment, he was not yet eligible to receive retirement benefits because he had not yet reached the twentieth year of his hire date, which would occur on March 24, 2000. The agreement contains a provision that allows accumulated sick time to be traded in for increased pension benefits. After the plaintiff began receiving retirement benefits, he requested to trade in accumulated sick time for increased pension benefits. Specifically, the plaintiff requested to trade in eighty sick days for four years of service time for increased pension benefits. The request was refused by the defendant.”

In its review of the agreement, the court cited certain provisions of article III, § 3.6, which sets forth the criteria for awarding pensions. Article III, § 3.6, paragraph 3 of the agreement provides: “Normal retirement shall be after twenty (20) years of continuous service. Employee pension benefits shall be vested after ten (10) years of continuous service.” Article III, § 3.6, paragraph 4 provides: “An employee who vests his or her pension and leaves the service of the [c]ity will be entitled to collect a pension benefit commencing on the date he or she would have reached his or her normal retirement date.” Article III, § 3.6, paragraph 8 provides in relevant part: “Effective July 1, 1994, an employee whose retirement becomes effective on or after that date, may upon retirement, and prior to any formula reduction, exchange a portion of his or her accumulated sick leave for up to four (4) years (in whole years only) of additional pension service time for the purpose of computing the amount of his or her retirement allowance provided, however, such additional service time shall not be used for establishing eligibility for normal retirement benefits, but shall be used as additional service credits for employees who are qualified or become qualified for normal/disability retirement benefits.

The court then analyzed these provisions in light of the plaintiffs claim that the agreement permitted him to exchange accumulated sick time upon reaching the twentieth anniversary of his hire date to increase his pension benefits. Although the court agreed that the plaintiff was entitled to collect pension benefits under article III, § 3.6, paragraphs 3 and 4, it nonetheless observed that the accumulated sick time exchange provision of article III, § 3.6, paragraph 8 applied only to employees who are qualified or become qualified for normal/disability retirement benefits. The court farther observed that employees must complete a minimum of twenty years continuous service to qualify for normal retirement benefits, and the plaintiff, who had completed only sixteen years of service, failed to qualify for normal retirement benefits. The court therefore determined that the plaintiff was not included in the class of employees who were authorized to use the sick time exchange because he did not qualify for normal retirement/disability benefits. Consequently, the court concluded that the clear and unambiguous language of the agreement did not allow the plaintiff to exchange accumulated sick time for increased pension benefits. This appeal followed.

The plaintiffs only claim in this appeal is that the court incorrectly concluded that the agreement prohibits him from exchanging his accumulated sick time in return for increased pension benefits. The plaintiff concedes that the agreement is unambiguous and that the court applied the relevant sections of the agreement in rendering its decision. The plaintiff disputes, however, the court’s interpretation and conclusions concerning those sections.

We begin by setting forth the applicable law and standard of review. “In deciding the propriety of a writ of mandamus, the trial court exercises discretion rooted in the principles of equity. ... In determining whether the trial court abused its discretion, [an appellate] court must make every reasonable presumption in favor of its action. . . . Nevertheless, [an appellate] court will overturn a lower court’s judgment if it has committed a clear error or if it has misconceived the law. . . .

“A writ of mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. . . . [The court’s discretion] will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Citations omitted; internal quotation marks omitted.) Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408, 412, 898 A.2d 157 (2006).

“Principles of contract law guide our interpretation of collective bargaining agreements.” Honulik v. Greenwich, 293 Conn. 698, 710, 980 A.2d 880 (2009). “If a contract is unambiguous within its four comers, intent of the parties is a question of law requiring plenary review.” (Internal quotation marks omitted.) Id., 711.

The intent of the parties as expressed in a contract “is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable constmction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).

Our plenary review of the agreement reveals that its terms are not ambiguous. We conclude that the court properly determined that the plaintiff did not qualify to exchange his accumulated sick time in return for increased pension benefits. Consequently, we determine that the court properly denied the plaintiffs request for a writ of mandamus to compel the defendant to allow him to exchange his accumulated sick time because he has not satisfied the requirements for mandamus and he did not show a clear legal right as to his benefits.

Before reaching the issue of whether the plaintiff is eligible to exchange his accumulated sick time for increased pension benefits, we first must examine how the plaintiff became eligible to receive his pension benefits under the agreement. The preamble to article III, § 3.6, of the agreement makes clear that pension and survivor benefits apply to all sworn police officers who retire effective on or after July 1,1994. Article III, § 3.6, paragraph 3 provides that normal retirement shall be after twenty years of continuous service and that employee pension benefits shall vest after ten years of continuous service. Finally, article III, § 3.6, paragraph 4 expressly provides that “[a]n employee who vests his or her pension and leaves the service of the [c]ity will be entitled to collect a pension benefit commencing on the date he or she would have reached his or her normal retirement date.” On the basis of the foregoing, the plaintiff was entitled to receive pension benefits on the twentieth anniversary of his hire date. He was a sworn police officer who retired after completing just over sixteen years of service on January 24, 1997. As such, his pension benefits vested after his tenth year of continuous service, and he began receiving his pension benefits on his normal retirement date, which is the date that would have marked his twentieth year of service, on March 24, 2000.

Having explained the plaintiffs eligibility to receive pension benefits under the agreement, we now turn to his claim that the agreement allows someone in his position to exchange accumulated sick time for increased pension benefits. Resolution of the plaintiffs claim turns on whether he qualified or became qualified to receive normal retirement benefits. The agreement only allows those who qualify or become qualified for normal retirement benefits to participate in the accumulated sick time exchange for increased pension benefits. We conclude that although the plaintiff qualified to receive pension benefits, he did not qualify or become qualified to receive normal retirement benefits.

The controlling language of the agreement pertaining to the exchange of accumulated sick time for increased pension benefits appears in article III, § 3.6, paragraph 8 of the agreement, which provides in relevant part: “Effective July 1, 1994, an employee whose retirement becomes effective on or after that date, may upon retirement . . . exchange a portion of his or her accumulated sick leave for up to four (4) years ... of additional pension service time . . . however, such additional service time . . . shall be used as additional service credits for employees who are qualified or become qualified for normal/disability retirement benefits.” (Emphasis added.) This provision makes expressly clear that only employees who are qualified or become qualified for normal/disability retirement benefits are eligible to exchange their accumulated sick time for increased pension benefits. Furthermore, article III, § 3.6, paragraph 3 explicitly defines normal retirement as occurring “after twenty (20) years of continuous service.” Because the plaintiff completed less than the twenty years of continuous service necessary to qualify for normal retirement benefits, he is prohibited from exchanging his accumulated sick time for increased pension benefits under article III, § 3.6, paragraph 8.

The plaintiff nonetheless claims that he remains eligible to exchange his accumulated sick time for increased pension benefits under the “become qualified for normal/disability retirement benefits” clause in article III, § 3.6, paragraph 8 of the agreement. The plaintiff argues that, although he lacked the twenty years of continuous service to qualify initially for normal retirement benefits, he later became qualified for them when he reached the twentieth anniversary of his hire date four years after his resignation. We disagree with the plaintiffs interpretation of the “become qualified” clause because he misconstrues the definition of normal retirement as defined in the agreement.

The agreement defines normal retirement as occurring after twenty years of continuous service. Specifically, article III, § 3.6, paragraph 3 of the agreement unambiguously provides in relevant part: “Normal retirement shall be after twenty . . . years of continuous service. . . .” Nothing in the agreement modifies or alters this definition of “normal retirement.” A fair and reasonable construction of the language of article III, § 3.6, paragraph 8 would lead to the interpretation that an employee qualifies for normal retirement benefits because he already has completed twenty years of continuous service, or he becomes qualified at a future point in time when he completes his twentieth year of continuous service. “Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Assn. Resources, Inc. v. Wall, 298 Conn. 145, 183, 2 A.3d 873 (2010).

“Normal retirement” also appears in article III, § 3.6, paragraph 4 of the agreement, but in the context of establishing a specific date at which an employee can begin collecting pension benefits. That paragraph allows an employee whose pension benefits vest after ten years of continuous service to begin collecting his pension benefits commencing on the date he would have reached his normal retirement, which would be twenty years from his hire date. Article III, § 3.6, paragraph 4 of the agreement provides: “An employee who vests his or her pension and leaves the service of the [c]ity will be entitled to collect a pension benefit commencing on the date he or she would have reached his or her normal retirement date.” Although the plaintiff was entitled to and did begin collecting his pension benefits on the date that he would have reached his normal retirement, he nonetheless cannot be considered to have qualified for normal retirement benefits on that date because he still resigned well short of the required twenty years of continuous service that article HI, § 3.6, paragraph 3 requires. A fair and reasonable construction of “normal retirement” in this paragraph leads to the conclusion that its sole use in the paragraph is to mark the twenty year point in time from an employee’s hire date and not to confer “normal retirement” status on employees who fail to complete twenty years of continuous service.

Finally, the plaintiff contrasts the existence of certain language in article V, § 5.3, of the agreement with the absence of such language in article III, § 3.6, paragraph 8 for the proposition that this absence in article III, § 3.6, paragraph 8 indicates that the plain meaning of that section allows him to exchange his accumulated sick time for increased pension benefits.

Article V, § 5.3, of the agreement provides in relevant part: “The [c]ity will pay an employee 50 percent of his accumulated sick leave upon his retirement. No payment will be made to an employee who vests his pension benefits and collects a benefit commencing other than at termination of service.” The second sentence makes expressly clear that an employee who vests his pension and collects a benefit subsequent to his separation from service to the city cannot receive payment for unused sick time.

Article III, § 3.6, paragraph 8 of the agreement provides in relevant part that the accumulated unused sick days which may be exchanged “shall be used as additional service credits for employees who are qualified or become qualified for normal/disability retirement benefits.” The plaintiff argues that the “become qualified” language in article III, § 3.6, paragraph 8 has to be given meaning and effect in any fair construction of the terms of the agreement.

The plaintiff argues that article III, § 3.6, paragraph 8 lacks the language found in article V, § 5.3, foreclosing unused sick time credits to persons who start collecting pension benefits at a time other than their separation from service to the city. He therefore contends that he is permitted to exchange his unused sick time for increased pension benefits once he started receiving benefits following his resignation from the department. We disagree.

“[A reviewing court] will not import terms into [an] agreement . . . that are not reflected in the contract.” Gibson v. Capano, 241 Conn. 725, 732, 699 A.2d 68 (1997). The unambiguous terms of article III, § 3.6, paragraph 8 make clear that only those employees who qualify or become qualified for normal retirement benefits may exchange their accumulated sick time for increased pension benefits. As explained previously, the plaintiff was ineligible to exchange his accumulated sick time under this provision because he failed to complete twenty years of continuous service with the department. “When the plain meaning and intent of the language is clear, a clause in a written [agreement] cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language.” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 232, 654 A.2d 342 (1995). The relevant language of article III, § 3.6, paragraph 8 states simply that the accumulated sick time exchange “shall be used as additional service credits for employees who are qualified or become qualified for normal/disability retirement benefits.” Although that paragraph does not contain express prohibitory language analogous to that in article V, § 5.3, it also does not contain express permissive language allowing employees who receive benefits subsequent to separation from service to the city and without twenty years of continuous service to participate in the sick time exchange.

Instead, the key distinguishing feature of article III, § 3.6, paragraph 8 is made through the use of the word “normal” to modify “retirement benefits.” Had the agreement intended to include the plaintiff in the class of employees eligible to participate in the exchange, it simply would have omitted the word “normal” thereby allowing any employee who qualified or later became qualified for retirement benefits to participate in the exchange. Inserting the word “normal” immediately prior to “retirement benefits,” however, signals a clear intent that only those employees who qualified or become qualified in the future for normal retirement benefits, after twenty years of continuous service as defined in article III, § 3.6, paragraph 3, are eligible for the exchange.

On the basis of the foregoing analysis, we conclude that the plaintiffs completion of just over sixteen years of continuous service renders him ineligible to qualify or to later become qualified to receive normal retirement benefits. Consequently, the court properly determined that the plaintiff cannot exchange his accumulated sick time for increased pension benefits under the terms of article III, § 3.6, paragraph 8 of the agreement. This determination by the court justified its decision not to award damages and to deny the plaintiffs request to issue a writ of mandamus ordering the defendant to allow the plaintiff to exchange his accumulated sick time for additional pension benefits.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are the city of Hartford, Palm, the city of Hartford pension commission and Malave. For purposes of this opinion, we refer to the defendants collectively as the defendant and individually by name when appropriate.

       Although the plaintiff resigned from the department on January 24,1997, both parties stipulated before trial that the agreement applicable to the plaintiffs claims is for the period July 1, 1994, to June 30, 1996. The court also applied the terms of this agreement to the controversy before it.

       Both parties stipulated before trial that the plaintiff commenced his service with the department on March 24, 1980, which makes March 24, 2000, the twentieth anniversary of his hire date. March 24, 2000, is also the anniversary date that the court references in its memorandum of decision. We note, however, that the plaintiffs attorney, Frank J. Szilagyi, in a letter to Malave dated April 16, 2004, listed February, 2000, as the twentieth anniversary of the plaintiffs hire date. This discrepancy in dates between the parties’ stipulated facts and the April 16, 2004 letter does not alter the court’s subsequent finding that the plaintiff completed less than twenty years of continuous service with the department, nor does it affect our analysis.

       The court’s determination that the plaintiff was ineligible to participate in the accumulated sick time exchange pursuant to article IH, § 3.6, paragraph 8 renders it unnecessary for this court to determine whether the court improperly denied the defendant’s request for a writ of mandamus to certify the exact amount of sick time the plaintiff had accrued at the time of his resignation as a city employee. Any certified sick time that the plaintiff accrued is irrelevant in light of the agreement’s prohibition on sick time exchange for employees, such as the plaintiff, who do not qualify for normal retirement benefits.