author: Spear, J.

text:
    State of Connecticut v. Ashton Smith
    (11764)
    Dupont, C. J., and Schallek and Spear, Js.

      Argued March 30
    decision released June 7, 1994

      Daniel S. Fabricant, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assisant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and William Bumpus, former assistant state’s attorney, for the appellee (state).
   Spear, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (2). The defendant claims that the trial court improperly (1) excluded the written statement of an unavailable witness, (2) refused to instruct the jury on a lesser included offense, (3) refused to read back testimony to the jury, (4) permitted the state’s expert witness to testify about ultimate issues of fact, and (5) charged the jury on the meaning of reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 9, 1990, at approximately 6 p.m., Thomas Farrell was driving his car on Farmington Avenue in Hartford. Farrell’s car was directly behind that of the defendant and both drivers were preparing to turn into the parking lot of Cheese & Stuff. As the defendant turned into the parking lot, the victim, Alonzo Restrepo, was attempting to exit the lot in his car. The two cars blocked each other’s path, and a heated argument ensued. The defendant got out of his car, ran over to the victim’s car, reached in through the driver’s side window and repeatedly punched the victim as he sat in the driver’s seat. The defendant then took a knife from his back pocket and slashed the victim’s face.

After being slashed, the victim emerged from his car carrying a lead pipe. The victim and the defendant squared off, holding their weapons. The defendant lost his footing and fell backward. The victim then stood over the defendant, threatening him with the lead pipe. The victim then retreated and the defendant returned to his car, which his passenger, Angela Coye, had driven forward about twenty feet. The victim noted the defendant’s license plate number before the defendant left the premises.

Officer Paul David Zodda of the Hartford police department arrived on the scene shortly after the altercation and traced the license plate number obtained by the victim to the defendant’s car. The victim later identified the defendant from a photographic array. Farrell, who witnessed the entire sequence of events, testified for the state at trial and corroborated the victim’s version of the incident. The defendant was convicted and this appeal ensued.

I

The defendant first claims that the trial court violated his constitutional due process right to present a defense by improperly excluding from evidence the written statement of an unavailable witness Karen J. Higgins. The defendant concedes that this claim was not properly preserved at trial. He nevertheless maintains that his claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and alternatively, the plain error rule. Practice Book § 4185.

Under Golding, a defendant may prevail on a claim not preserved at trial only if four conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40. “We are free ... to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992), cert. denied, 224 Conn. 924, 618 A.2d 531 (1993); State v. Ulen, 31 Conn. App. 20, 37, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993).

“The first two conditions are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself. Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992); State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852 (1994); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).” State v. Crosby, 34 Conn. App. 261, 264, 641 A.2d 406 (1994). The defendant has satisfied the first two conditions of Golding because the record is adequate for review and the right to present a defense is a constitutional right. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982); State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982); State v. Jenkins, 29 Conn. App. 262, 270, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992). The defendant’s claim, however, fails under the third condition of Golding because the trial court’s exclusion of Higgins’ testimony was not a constitutional violation and did not deprive the defendant of a fair trial. Further, this claim did not rise to the level of plain error.

At trial, the defendant sought to introduce into evidence a statement given by Higgins, a Cheese & Stuff employee who had witnessed at least some of the events of August 9,1990. As Higgins was not present to testify, the defendant attempted to introduce her statement under the “residual” exception to the hearsay rule. He argued that Higgins was unavailable to testify, that her statement was reliable and trustworthy, and that it was necessary because she was the only unbiased witness able to establish or corroborate his theory of self-defense. He also claimed that the trial court was predisposed against admitting Higgins’ statement into evidence. When the defendant first notified the court that Higgins was unavailable to testify, the court asked whether she was “another yuppie that went to Cheese & Stuff.” The defendant argues that this comment deprived him of his right to a fair trial before an impartial judge. Although this remark was unfortunate, we cannot say that it deprived the defendant of a fair trial where the proffered evidence was properly excluded.

“The ‘residual/ or ‘catch-all/ exception to the hearsay rule allows a trial court to admit hearsay evidence not admissible under any of the established exceptions if: (1) there is ‘a reasonable necessity for the admission of the statement/ and (2) the statement is ‘supported by the equivalent guarantees of reliability and trustworthiness essential to other evidence admitted under the traditional hearsay exceptions.’ ” State v. Oquendo, 223 Conn. 635, 664, 613 A.2d 1300 (1992); State v. Boyd, 214 Conn. 132, 140, 570 A.2d 1125 (1990). The trial court refused to admit the statement on the ground that it lacked the requisite indicia of reliability and trustworthiness.

The trial court’s determination of a witness’ credibility will ordinarily not implicate due process concerns. “[EJvery evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. . . . The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. ... In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. . . .” (Citations omitted; internal quotation marks omitted.) State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). Excluding certain evidence does not vitiate the defendant’s constitutional right to present a defense.

“We will not overturn a trial court’s evidentiary ruling unless there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993); State v. Boles, [supra, 223 Conn. 549]; State v. Bailey, 32 Conn. App. 773, 778, 631 A.2d 333 (1993). With respect to the trial court’s discretion, great weight is accorded the trial court’s decision and every reasonable presumption will be indulged in favor of its correctness. State v. Leonard, 31 Conn. App. 178, 190, 623 A.2d 1052 (1993).” (Internal quotation marks omitted.) State v. Bryan, 34 Conn. App. 317, 327, 641 A.2d 443 (1994).

The circumstances surrounding Higgins’ statement to defense counsel reveal that the statement “ ‘was not imbued with guarantees of reliability and trustworthiness sufficient to support its admission.’ ” State v. Oquendo, supra, 223 Conn. 667. First, defense counsel obtained Higgins’ statement approximately sixteen months after the incident. The longer the interval between the witnessed event and the statement describing it, the less likely it is to be reliable and the more likely it is to be the product of reflective thought. Cf. State v. Outlaw, 216 Conn. 492, 499, 582 A.2d 751 (1990). Second, the statement was handwritten by defense counsel, and it elicited only favorable information.

Finally, even if Higgins’ statement had been admitted under the residual hearsay exception, it would not have bolstered the defendant’s self-defense claim. Higgins’ statement corroborates rather than contradicts the version of the incident as described by the victim and Farrell. Higgins’ statement reveals that she must have arrived on the scene after the defendant had slashed the victim. Her statement begins with the defendant outside of his car and the victim exiting his car with a lead pipe in hand. She observed the men arguing and the victim threatening the defendant with the pipe. She saw that the victim was bleeding, but did not see anything in the defendant’s hand. Contrary to the defendant’s assertion, Higgins described the events in the same sequence as did the victim. Accordingly, the defendant’s contention that the jury could reasonably have inferred that the victim was the aggressor and that he acted in self-defense is without merit.

The reliability of a witness’ hearsay statement is essential because the opposing party does not have the opportunity to cross-examine out-of-court declarants to test the truthfulness of their statements. State v. Lawson, 23 Conn. App. 358, 362, 580 A.2d 87 (1990). Here, the trial court did not abuse its discretion in refusing to admit Higgin’s statement because the statement was not sufficiently reliable and trustworthy to satisfy the residual hearsay exception.

II

The defendant next claims that the trial court improperly refused to instruct the jury, as requested, on the lesser included offense of assault in the third degree in violation of General Statutes § 53a-61 (a) (2). The defendant specifically argues that the elements of permanence of the victim’s injury and the defendant’s intent were sufficiently in dispute so as to warrant a charge on the lesser included offense. We disagree.

Prior to the trial court’s instructions to the jury, the defendant filed a written request to charge on the lesser included offense of assault in the third degree. The trial court refused to give the instruction and the defendant excepted.

Assault in the third degree in violation of § 53a-61 (a) (2) could be a lesser included offense of assault in the first degree in violation of § 53a-59 (a) (2). See State v. Bunker, 27 Conn. App. 322, 329-30, 606 A.2d 30 (1992). “In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we held that a defendant is entitled to an instruction on a lesser included offense if he can demonstrate compliance with each of four conditions: ‘(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ ” State v. Ray, 228 Conn. 147, 152-53, 635 A.2d 777 (1993); State v. Arena, 33 Conn. App. 468, 479, 636 A.2d 398, cert. granted, 229 Conn. 918, 644 A.2d 914 (1994). The state claims that the defendant has failed to meet the first and fourth requirements of Whistnant. We agree that the defendant has not met the fourth requirement.

In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. 576, we view the evidence in the light most favorable to the defendant’s request for a charge on the lesser included offense. State v. Montanez, 219 Conn. 16, 22-23, 592 A.2d 149 (1991); State v. Herring, 210 Conn. 78, 106, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “[T]he jury’s role as fact-finder is so central to our jurisprudence that, in close cases, the trial court should generally opt in favor of giving an instruction on a lesser included offense, if it is requested. . . . Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. Rasmussen, 225 Conn. 55, 68, 621 A.2d 728 (1993).

Under Whistnant, the evidence is “sufficiently in dispute where it is of such a factual quality that would permit the [jury] reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. . . . Nonetheless, jurors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on the evidence . . . from which inferences can fairly be drawn. . . . They should not be encouraged to engage in speculation.” (Citations omitted; internal quotation marks omitted.) State v. Montanez, supra, 219 Conn. 23.

On appeal, an appellate court must reverse the judgment rendered following a trial court’s failure to give the requested instruction if “we cannot as a matter of law exclude [the] possibility that the defendant is guilty only of the lesser offense. State v. Falby, 187 Conn. 6, 30, 444 A.2d 213 (1982).” (Internal quotation marks omitted.) State v. Ray, supra, 228 Conn. 155.

A

The defendant claims that he placed the element of permanency of the victim’s scar sufficiently in dispute to warrant a charge on the lesser included offense of assault in the third degree. We disagree.

The trial court found that the defendant did not satisfy the fourth condition of Whistnant because proof of the element of permanency, which distinguishes assault in the first degree under General Statutes § 53a-59 (a) (2), and the lesser included offense of assault in the third degree under General Statutes § 53a-6! (a) (2), was not sufficiently in dispute. Section 53a-59 (a) (2) requires proof of a serious and permanent disfigurement while § 53a-61 (a) (2) requires proof of a serious physical injury, which need not be permanent.

A defendant can place a particular element of the crime charged sufficiently in dispute “either through the right of cross-examination, the major function of which is to put certain matters in dispute, or through evidence presented as part of the defendant’s case.” State v. Fernandez, 5 Conn. App. 40, 47-48, 496 A.2d 533 (1985); State v. Vass, 191 Conn. 604, 619, 469 A.2d 767 (1983). Here, the defendant sought to place the element of permanence sufficiently in dispute through the cross-examination testimony of the state’s medical expert, Larry Marcus, a facial plastic surgeon. On direct examination, Marcus testified that the scar on the victim’s face was permanent. He also testified that, in his opinion, all scars are permanent. During cross-examination by defense counsel, Marcus stated that the victim did not seem very bothered by the scar and did not want corrective surgery right away. Marcus testified that the victim wanted to wait and see if the scar would improve by itself. The defendant argues that on the basis of Marcus’ testimony, the jury could reasonably have disbelieved Marcus and found that the scar on the victim’s face was not permanent. Even if the jury disbelieved Marcus, the reverse of his testimony, namely that all scars are not permanent, has not been proved, nor has that issue been put in dispute. See State v. McNeil, 21 Conn. App. 519, 523, 574 A.2d 1314, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990).

The defendant claims that because the victim did not seem overly bothered by the scar and did not immediately seek corrective surgery, the permanency issue was, therefore, in dispute. This claim is without merit. The victim’s attitude about the scar and the need for corrective surgery are completely irrelevant to the question of permanency.

We are not persuaded by the defendant’s claim that the proof of permanency of the victim’s scar was sufficiently in dispute to require an instruction on the claimed lesser included offense.

B

The defendant further argues that his state of mind was sufficiently in dispute to warrant a charge on the lesser included offense of assault in the third degree.

“The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged.” State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980). To be guilty of assault in the first degree, of which the defendant was convicted, the defendant must intend to disfigure another person seriously and permanently. General Statutes § 53a-59 (a) (2). To act intentionally, the defendant must have had the conscious objective to harm the victim. General Statutes § 53a-3 (11).

Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. State v. Francis, 228 Conn. 118, 128, 635 A.2d 762 (1993); State v. Smith, 212 Conn. 593, 603, 563 A.2d 671 (1989). Intent may also be inferred from the surrounding circumstances. State v. Russell, 29 Conn. App. 59, 64-65, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992). “The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . State v. Baldwin, [224 Conn. 347, 368, 618 A.2d 513 (1993) ].” (Citations omitted; internal quotation marks omitted.) State v. Ash, 33 Conn. App. 782, 792, 638 A.2d 633, cert. granted, 229 Conn. 916, 642 A.2d 1211 (1994) . Intent may be gleaned from “ ‘circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.’ State v. Allen, [28 Conn. App. 81, 89-90, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992)].” State v. Ash, supra, 793; State v. Medina, 228 Conn. 281, 303, 636 A.2d 351 (1994); State v. Commerford, 30 Conn. App. 26, 34-35, 618 A.2d 574 (1993). “ ‘Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct. . . . State v. Montanez, [supra, 219 Conn. 20].’ ” State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993).

The defendant contends that the element of intent is sufficiently in dispute to warrant an instruction on third degree assault because the evidence does not exclude the reasonable hypothesis that he acted with a merely reckless mens rea. “A person acts recklessly with respect to a particular result or a circumstance described by a statute ‘when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. . . .’ General Statutes § 53a-3 (13); State v. Bunkley, 202 Conn. 629, 643, 522 A.2d 795 (1987) . . . .” (Citation omitted.) State v. Jupin, 26 Conn. App. 331, 340, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). “Recklessness involves a subjective realization of that risk and a conscious decision to ignore it. State v. Bunkley, supra, [643], It does not involve intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result. Griffin v. Parker, [219 Conn. 363, 370, 593 A.2d 124 (1991)]; State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986).” (Internal quotation marks omitted.) State v. Jupin, supra, 340. Like intent, the “ ‘state of mind amounting to recklessness may be inferred from conduct.’ ” State v. Bunkley, supra, 645, quoting Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942).

The defendant claims that the evidence shows that he did not intentionally slash the victim but rather acted recklessly, in the heat of the moment, pursuant to General Statutes §§ 53a-61 (a) (2) and 53a-3 (13). He contends that the confrontation “erupted almost instantaneously in the heat of unrestrained emotion with no time for reflection or cool reaction.” The victim testified that it was a hot, humid day, that the defendant was yelling vulgarities and waving his hands in the air, and that the incident developed so quickly that the victim did not have time to avoid the confrontation by putting up the electric window or backing up the car.

“[A] person cannot at one and the same time act both intentionally and recklessly with regard to the same act and the same result . . . .” State v. Hinton, 227 Conn. 301, 312, 630 A.2d 593 (1993); State v. King, 216 Conn. 585, 594, 583 A.2d 896 (1990). “The court ‘must appraise all the testimony and evidence to determine whether it is capable of more than one reasonable inference . . . .’ ” (Citation omitted.) State v. Fernandez, supra, 5 Conn. App. 52. We conclude that the jury could not reasonably and logically have inferred from these facts that when the defendant slashed the victim, he was behaving recklessly. His loss of temper, the heat of the day, and the rapid sequence of events do not support a finding of recklessness. Rather, the defendant’s actions clearly support a finding of intentional conduct. The evidence reveals that the defendant quickly exited his car and ran toward the victim’s car. He reached through the window on the driver’s side of the victim’s car, grabbed the victim by the shirt, and began punching him in the head and face. He threatened the victim that “he [was] going to teach [him] a fucking lesson,” at which point the defendant deliberately pulled a knife out of his back pocket and intentionally slashed the victim’s face, causing a permanent scar. The defendant then fled the scene in his car.

Viewing the evidence in the light most favorable to the defendant, we conclude that the defendant’s state of mind was not sufficiently in dispute so as to entitle him to a lesser included offense charge of assault in the third degree.

Ill

The defendant next claims that the trial court improperly denied his request to read back to the jury the cross-examination testimony of a state’s witness that counsel and the court earlier had agreed would be read. He argues that the court’s ruling deprived him of the right to a fair trial in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Although the defendant concedes that he did not properly preserve this claim at trial, he seeks to prevail under State v. Golding, supra, 213 Conn. 233, or the plain error doctrine. Practice Book § 4185. Although the first two conditions of Golding are met because there is an adequate record for review and because the defendant’s claim that he was denied a fair trial is of constitutional magnitude, we conclude that a review of the merits of the defendant’s claim shows that no constitutional violation exists that clearly deprived the defendant of a fair trial. Further, we are not persuaded that the trial court’s failure to read back the cross-examination testimony, if in error, was such that it affected the fairness and integrity of the proceedings.

During deliberations, the jury asked the trial court to read back the testimony of Farrell, who witnessed the events at the scene of the victim’s stabbing. Out of the presence of the jury, the trial court informed counsel that it would replay the direct and cross-examination testimony of Farrell. During the playback of Farrell’s direct testimony, however, the jury indicated to the court that it had heard all that it wanted to hear. After the jury was excused to resume deliberating, the defendant asked that the cross-examination testimony also be replayed because it was improper for the jury to hear only the direct testimony. The court denied the request and the defendant excepted.

“The trial court has discretion to grant a jury’s request to review testimony. Practice Book § 863; State v. Rivera, 223 Conn. 41, 48, 612 A.2d 749 (1992). What portions of the record, if any, will be submitted to the jury for their consideration is a matter of sound judicial discretion. State v. Bennett, 171 Conn. 47, 59, 368 A.2d 184 (1976).” (Internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 770-71, 631 A.2d 309 (1993). The defendant now asserts that the trial court abused its discretion by refusing to read back Farrell’s cross-examination testimony, notwithstanding that the jury stated it did not want to hear it.

State v. Rivera, supra, 223 Conn. 41, and State v. Harris, supra, 227 Conn. 751, are dispositive of this issue. See also State v. Tucker, 226 Conn. 618, 629 A.2d 1067 (1993); State v. Nowakowski, 188 Conn. 620, 452 A.2d 938 (1982). In Rivera, the jury asked the trial court to replay the testimony of two witnesses and then stated that it had heard enough after hearing the direct examination of one witness. The defendant objected, arguing that the jury should also be required to rehear that witness’ cross-examination testimony. Our Supreme Court concluded that the trial court did not abuse its discretion by not requiring the jury to hear more testimony than it wanted to hear. State v. Rivera, supra, 48. The court also stated that “[w]e cannot conclude, as the defendant seems to advocate, that the trial court was required as a matter of law to replay more of the witnesses’ testimony than the jury believed it needed to rehear in order to reach a verdict.” Id.

Furthermore, the trial court’s discretion was not limited by the agreement between the court and counsel, made out of the presence of the jury, to read back Farrell’s entire testimony. See State v. Harris, supra, 227 Conn. 771. “Because the jury asked that the reading of the testimony stop . . . the trial court did not abuse its discretion when it halted the reading of the testimony. Unless the court was convinced that an injustice would result, it was not, despite any agreement, required to force the jury to listen to what it did not want to hear. The prior agreement postulated that the reading of the unrequested testimony would have some purpose. The jury’s request, however, that the reading be stopped . . . clearly indicated that the evidence was now firmly fixed in its collective mind ánd that no further refreshing of its memory was necessary for it to arrive at a verdict. The agreement was not a contract that compelled the trial court to comply with its terms if compliance would interfere with its proper conduct of the trial.” Id., 771-72. Accordingly, the defendant’s claim that the trial court abused its discretion is without merit.

IV

The defendant next claims that the trial court improperly permitted the state’s expert witness to testify as to ultimate issues of fact. We disagree.

Marcus, a facial plastic surgeon, testified for the state that the scar on the victim’s face was “definitely permanent . . . [bjecause all of the scars that I have ever seen are permanent . . . I have never seen a scar just totally dissolve.” Marcus further testified that the victim’s injury was a “serious laceration.” The defendant excepted to both of Marcus’ statements, arguing that the scar’s permanence and the degree of injury sustained were ultimate issues of fact for the jury to decide.

The defendant further argued that Marcus’ testimony was unnecessary for the following reasons: (1) During a colloquy between the court and defense counsel regarding whether the element of permanence was in dispute, the court stated that “we don’t even need a doctor to tell us that [the scar is permanent]. You and I know that when you get a scar, even though it may not be as visible as it once [was], it is there forever”; (2) the victim described his injury in detail to the jury; and (3) the jury saw not only pictures of the scar, but the victim came off the witness stand to show it to the jurors.

“The admissibility of opinion testimony of expert witnesses is a matter within the discretion of the trial court.” State v. Christiano, 228 Conn. 456, 461, 637 A.2d 382 (1994); State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987); State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993); Knock v. Knock, 224 Conn. 776, 783-84, 621 A.2d 267 (1993); State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989).

“An expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.” State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988); State v. Spigarolo, supra, 210 Conn. 372; Kowalewski v. Mutual Loan Co., 159 Conn. 76, 80, 266 A.2d 379 (1970); In re Noel M., 23 Conn. App. 410, 422, 580 A.2d 996 (1990). An expert may, however, “give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass . . . .” (Citations omitted; internal quotation marks omitted.) State v. Rodgers, 207 Conn. 646, 652, 542 A.2d 1136 (1988); State v. Vilalastra, supra, 41. “[Ejvidence of the . . . medical effect upon the human system of the infliction of injuries, is generally not within the sphere of the common knowledge of a lay witness”; Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979); and requires expert testimony. State v. McClary, 207 Conn. 233, 241, 541 A.2d 96 (1988); Sickmund v. Connecticut Co., 122 Conn. 375, 379, 189 A.2d 876 (1937). The trial court’s exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law. State v. Borrelli, supra, 227 Conn. 166; Vickers v. Jessup, 32 Conn. App. 360, 366, 629 A.2d 457, cert. granted, 227 Conn. 922, 632 A.2d 701 (1993).

Marcus’ expert opinion was properly and necessarily admitted to explain the full extent and cause of the victim’s obvious injury. See State v. McClary, supra, 207 Conn. 241. First, as a facial plastic surgeon, Marcus possessed a knowledge and skill directly relevant to the anatomical area of the injury. Second, despite the trial court’s assertion to the contrary, the permanence of a scar is not necessarily an obvious matter within the common knowledge of the average person. Finally, Marcus’ expert testimony assisted the jury in intelligently assessing the ultimate issue as to whether assault in the first degree had occurred.

We conclude, therefore, that the trial court did not abuse its discretion in allowing the state’s medical expert to testify about the permanence and severity of the facial injury.

V

The defendant’s final claim is that the trial court violated his due process right to a fair trial and misled the jury when it improperly defined a reasonable doubt as “a doubt for which a valid reason can be assigned.” He seeks review of this claim under State v. Golding, supra, 213 Conn. 233. At oral argument, the defendant, although not abandoning this claim, conceded that he would not prevail on the merits. We agree.

Our Supreme Court has specifically upheld the constitutionality of this precise instruction. See State v. DePastino, 228 Conn. 552, 573, 638 A.2d 578 (1994); State v. Campbell, 225 Conn. 650, 663-66, 626 A.2d 287 (1993) (Borden, J., concurring); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993); State v. Thomas, 214 Conn. 118, 119 n.1, 570 A.2d 1123 (1990); State v. Findlay, 198 Conn. 328, 345-46, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Leonard, 31 Conn. App. 178, 200-201 and n.17, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A. 2d 985 (1993), motion to dismiss appeal granted, January 7, 1994; State v. Johnson, 29 Conn. App. 584, 617 A.2d 174 (1992), aff’d, 228 Conn. 59, 634 A.2d 293 (1993). As the instruction in question is not constitutionally defective, we will not review this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when ... (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person . . . .”
      The defendant’s motions for judgment of acquittal of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and attempted assault in the first degree in violation of General Statutes § 53a-49 were granted by the trial court, the former before the case was submitted to the jury, the latter after the jury had returned a guilty verdict.

       Practice Book § 4185 provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . .
      Plain error review “is reserved for truly extraordinary situations where the existence of error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Ulen, supra, 31 Conn. App. 38.

       Higgins’ statement was as follows: “On August 9,1990,1 was at Cheese & Stuff, located on Farmington Avenue in West Hartford. I had worked there that day and was leaving the building at approximately 6 p.m. I exited the store through the Kenyon Street side and entered my car. I attempted to leave the parking lot through the Kenyon Street exit, but two cars were blocking the way. I was approximately twelve to fifteen feet distance from the cars. I heard the two drivers of each car arguing. I did not see any other people in the cars. The white man got out of his car, then reached into the car and pulled out a metal bat. The bat was approximately twelve to eighteen inches in length. The black man had already gotten out of his car. The two men began to argue. The white man was holding the bat in a threatening manner. I saw the black man attempt to kick the white man, but the black man missed and landed on the ground. The two men continued to fight. At some point, I saw the white man bleeding, but I never saw anything in the black man’s hand. The entire incident lasted approximately five minutes.
      “When the two men first began arguing, outside of their cars and with the white man holding the bat, I went back into Cheese & Stuff to tell the manager to call the police. When I came back out of Cheese & Stuff, I then witnessed the remainder of the events which I have stated above. It took me less than one minute to notify the manager and return to the parking lot, where I had left the engine of my car running.”

       General Statutes § 53a-61 (a) (2) provides that “[a] person is guilty of assault in the third degree when ... he recklessly causes serious physical injury to another person . . . .”

       We decline to consider the state’s alternate claim that the defendant’s written request for a jury charge on the lesser included offense was insufficient under the first prong of State v. Whistnant, supra, 179 Conn. 588. The trial court decided the issue solely on the fourth prong of Whistnant and the state failed to raise the first prong claim in the trial court.

       The jurors are “free to reject even uncontradicted testimony, if they do not find it credible.” State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983).

       At trial, the following colloquy occurred:
      “[Defense Counsel]: What I am saying is that the issue in dispute then is not whether or not it is a permanent scar under a serious physical injury, the issue is whether or not the defendant intended to disfigure, so it is a separate analysis under Whistnant when the court is looking at [assault in the first degree and assault in the third degree].
      “The Court: [Assault in the first degree in violation of 5 53a-59 (a) (2)] says, if I read it correctly, ‘[w]ith intent to disfigure another person seriously and permanently ... he causes such injury.’
      “[Defense Counsel]: But the question is, his intent to disfigure that is the element that is in dispute, what his intent was.
      “The Court: No, did he cause such an injury which was a serious and permanent disfigurement.”

       Practice Book § 863 provides: “If the jury after retiring for deliberations request a review of certain testimony, they shall be conducted to the courtroom. Whenever the jury’s request is reasonable, the judicial authority, after notice to the prosecuting authority and counsel for the defense, shall have the requested parts of the testimony read to the jury.”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    United Technologies Corporation v. John G. Groppo, Commissioner of Revenue Services Norden Systems, Inc. v. John G. Groppo, Commissioner of Revenue Services
    (12604)
    Landau, Heiman and Spear, Js.
    Argued May 4
    decision released June 6, 1994

      Charles H. Lenore, with whom, on the brief, was Laura J. Foltz, for the appellants (plaintiffs).

      PaulM. Scimonelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Heiman, J.

This appeal comes to us on a reservation of legal issues pursuant to General Statutes § 52-235 and Practice Book § 4147. The stipulation of the parties presents two questions for the advice of this court: “1. Is the purchase pursuant to a cost-reimbursement type contract between the plaintiffs and the United States government, where title to the goods passes to the United States government prior to the use of the property, exempt from sales and use tax? 2. Is the purchase of services which are otherwise enumerated under General Statutes § 12-407 (2) (i), in order to fulfill, or in support of, cost-reimbursement type contracts between the plaintiffs and the United States government, exempt from sales and use tax?” In lieu of a full hearing on the reserved questions, we ordered the parties to show cause why we should not decline to answer the reserved questions as an improper reservation.

The parties stipulated to the following facts. At all times relevant to this action, the plaintiffs were engaged in business in Connecticut and subject to the Connecticut Sales and Use Tax Act. General Statutes § 12-407 et seq. At all times relevant to this case, the plaintiffs were parties to cost-reimbursement type contracts with the United States government. From July 1, 1981, through June 30,1985, the plaintiffs purchased tangible personal property and services from vendors to fulfill government contracts. Under the government contracts, title to any property shipped to the plaintiffs for which the plaintiffs were reimbursed as a direct item of cost under the contract passed to and vested in the United States government. The use of the property by the plaintiffs was limited to the performance of the government contracts. The purchase orders used by the plaintiffs to make purchases under the contracts from vendors identified the number of the government contract under which the purchase was made and stated that the United States government has the right to inspect and test all goods being purchased. The services purchased under the contracts were also reimbursed by the United States government.

The defendant’s position prior to July 1, 1982, was that the purchases of tangible personal property and services by the plaintiffs under the contracts were not subject to the Connecticut Sales and Use Tax Act. See United Aircraft Corp. v. Connelly, 145 Conn. 176, 140 A.2d 486 (1958); Avco Mfg. Corp. v. Connelly, 145 Conn. 161, 140 A.2d 479 (1958). On June 21,1982, the defendant changed its position on the taxability of these purchases. On the basis of United States v. New Mexico, 455 U.S. 720, 102 S. Ct. 1373, 71 L. Ed. 2d 580 (1982), the defendant stated that, commencing July 1, 1982, all purchases of tangible personal property or taxable services made in performing government contracts would be subject to the Connecticut sales and use tax, except for specifically exempted property. See State Tax Rep. (Conn.) (1982 CCH) ¶ 200-214.

On April 2, 1986, after an audit by the defendant, the defendant assessed the plaintiffs $2,200,237.25 for unpaid taxes, excluding interest. On April 30,1986, the plaintiffs filed a petition for reassessment contesting the assessment pursuant to General Statutes § 12-418. On July 24, 1986, the defendant determined that no basis existed for any revision of the assessment. On August 22, 1986, the plaintiffs filed an appeal in the trial court pursuant to General Statutes § 12-422. On June 11,1993, the trial court approved this stipulation for reservation.

A trial court cannot compel this court to render advisory type opinions by the simple expedient of reserving questions to this court that do not meet the criteria set forth in General Statutes § 52-235 and Practice Book § 4147. Gianetti v. Norwalk Hospital, 211 Conn. 51, 55-56, 557 A.2d 1249 (1989); Hoblitzelle v. Frechette, 156 Conn. 253, 255, 240 A.2d 864 (1968); Barr v. First Taxing District, 147 Conn. 221, 223-24, 158 A.2d 740 (1960). “General Statutes § 52-235 provides that questions of law may be reserved for the advice of this court in all cases in which an appeal could lawfully be taken were judgment rendered. Section [4147] of the Practice Book provides that no reservation will be entertained in an action which is not ready for final judgment unless the questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case and ‘it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .’ This court is not bound to entertain a reservation, and whether it will do so rests in its discretion. . . . While a reservation of questions of law can, in an appropriate case, promote ‘simplicity, directness and economy of judicial action,’ it does not necessarily follow that a case which appears to present an unusual factual situation or involve a number of legal issues should be reserved.” (Citations omitted.) Barr v. First Taxing District, supra, 223-24; Gianetti v. Norwalk Hospital, supra, 55-56; Hoblitzelle v. Frechette, supra, 255.

“ ‘[I]t is certain that the statute [now § 52-235] did not contemplate, and ought not to be construed to permit, that every question which a trial court may encounter in the progress of a cause, much less every one which it may anticipate that it may encounter, might be brought here at once upon its being either met or scented from afar, and its determination had for the guidance of the trial court. Such a practice would inevitably result in this court being called upon to formulate principles of law which would never enter into the determination of a cause, to formulate such principles in an abstract form suited to more or less general application and not as related to a concrete state of facts and narrowed and simplified by such relation, to create a mass of dicta embodying statements of abstract general principles which might some day rise up to harass judicial action, and to unnecessarily multiply the number of appearances in this court which an action might have before final disposition was made of it. We do not, however, wish to be understood as saying that no reservation ought to be made or entertained until the case is ready for final judgment.’ ” Barr v. First Taxing District, supra, 147 Conn. 224. “ ‘Situations have arisen and may well arise where ... [a reservation] would be in the interest of simplicity, directness and economy in judicial action. Such situations, however, will be those exceptional ones where the advantages resulting from such proceeding are manifest and distinct, and the question upon which advice is asked is one which will quite certainly enter into the determination of the cause.’ ” Hoblitzelle v. Frechette, supra, 156 Conn. 268; Barr v. First Taxing District, supra, 224; see also Commission on Human Rights & Opportunities v. Greenwich Catholic Elementary School System, Inc., 202 Conn. 609, 615, 522 A.2d 785 (1987); Duggins v. H.N.S. Management Co., 34 Conn. App. 863, 644 A.2d 376 (1994). Further, “[t]his court cannot find facts, nor, in the first instance, draw conclusions of facts from primary facts found, but can only review such findings to see whether they might legally, logically and reasonably be found.” Wiegert v. Pequabuck Golf Club, Inc., 150 Conn. 387, 391, 190 A.2d 43 (1963).

The reservation does not satisfy the criteria for us to answer the reserved questions. First, this case requires us to determine a factual issue. The parties stipulate that the United States government gains title to the items and services purchased by the plaintiffs. The plaintiffs argue that this stipulation requires a finding, as a matter of law, that the sales and use tax is illegal on the basis of our Supreme Court decisions in United Aircraft Corp. v. Connelly, supra, 145 Conn. 176, and Avco Mfg. Corp. v. Connelly, supra, 145 Conn. 161. In United Aircraft and Avco, the defendant argued that the imposition of the sales and use tax was legal because the sales and use tax was levied on the government contractor, not the government. United Aircraft Corp. v. Connelly, supra, 179-82; Avco Mfg. Corp. v. Connelly, supra, 171. In these decisions, our Supreme Court relied on the federal case law prevailing at the time. The United States Supreme Court, at that time, enunciated an agency test to determine whether a state tax violated the supremacy clause. Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110, 74 S. Ct. 403, 98 L. Ed. 546 (1954); Alabama v. King & Boozer, 314 U.S. 1, 62 S. Ct. 43, 86 L. Ed. 3 (1941); see U.S. Const., art. VI. If an agency relationship was found to exist between the contractor and the government, then the tax on the contractor violated the supremacy clause. U.S. Const., art. VI; Kern-Limerick, Inc. v. Scurlock, supra, 110; Alabama v. King & Boozer, supra, 1. Our Supreme Court applied the federal test and determined that the facts found by the trial court required a finding that the contractor was an agent of the federal government. Since these Connecticut decisions, the United States Supreme Court revisited the test for determining whether a state imposed tax violates the supremacy clause. United States v. New Mexico, supra, 455 U.S. 720. The new test to be applied is whether “the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the [government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned.” Id., 735. In applying this test, the United States Supreme Court looked to several facts found by the trial court to determine whether the trial court had before it sufficient evidence to find that the tax did not violate the Supremacy Clause. The court considered that (1) the contractor purchased the materials in its own name, (2) the contractor was liable to the vendors, (3) the vendors were not informed that the government was the only party with an interest in the purchase, (3) the contractor need not have obtained advance authorization for purchases and (4) the government disclaimed any intention to denominate the contractor as purchasing agent. Id., 743. Further, the court stated: “It is true that title passes directly from the vendor to the Federal Government, but that factor alone cannot make the transaction a purchase by the United States, so long as the purchasing entity, in its role as a purchaser, is sufficiently distinct from the Government.” Id. The court also stated that “immunity may not be conferred simply because the tax has an effect on the United States, or even because the Federal Government shoulders the entire economic burden of the levy.” Id., 734.

The determination of whether the contractor is the purchaser of the goods is, in the first instance, a finding of fact based on, but not limited to, the factors enumerated by the United States Supreme Court. The parties’ stipulation provides some of the factors to be considered in reaching this determination. This court cannot, however, find facts. See Wiegert v. Pequabuck Golf Club, Inc., supra, 150 Conn. 391. In order to answer the questions presented, we must determine the status of the parties from the facts stipulated. Since this exercise requires a factual determination, we cannot entertain the questions presented.

Second, our answers to the reserved questions are not reasonably certain to enter into the decision of the case because, after we determine the answer to the questions, further inquiry may be required by the trial court. In the stipulation, the parties concede that, if we answer the second question no, the purchases of services under the contracts are not exempt from the sales and use tax, the trial court must then make a further determination of whether the services rendered are those enumerated as exempt from the tax in General Statutes § 12-407 (2) (i) (A) through (GG). If the trial court determines that the services rendered are exempt under General Statutes § 12-407 (2) (i) (A) through (GG), then our answer to the reserved questions would never enter into the determination of the cause. See Hoblitzelle v. Frechette, supra, 156 Conn. 268; Barr v. First Taxing District, supra, 147 Conn. 255. Thus, there is no reasonable certainty that the answers would enter into the determination of the trial court. Further, if the answer to the second question is no, the determination would complicate the matter, in effect thwarting the purpose of the reservation procedure. See Barr v. First Taxing District, supra, 225.

Third, this case does not present such an exceptional situation “where the advantages resulting from [deciding the reservation] are manifest and distinct.” Hoblitzelle v. Frechette, supra, 156 Conn. 268. The possibility of any advantage following our decision of the reserved questions is tenuous because the answer to the second question may complicate the trial court proceedings. Further, the case is a tax appeal that, although involving a large sum of money, does not involve any monumental question of law. As we have stated above, the case involves a question of fact that will determine the outcome of the case. Thus, this case does not present an exceptional circumstance on which to entertain a reservation.

We decline to answer the reserved questions.

No costs will be taxed in this court to any party.

In this opinion the other judges concurred.

       General Statutes § 52-235 provides: “(a) The superior court, or any judge of the court, with the consent of all parties of record, may reserve questions of law for the advice of the supreme court or appellate court in all cases in which an appeal could lawfully have been taken to said court had judgment been rendered therein.
      “(b) The court or judge making the reservation shall, in the judgment, decree or decision made or rendered in such cases, conform to the advice of the supreme court or the appellate court.”

       Practice Book § 4147 provides in pertinent part: “A reservation shall be taken ... to the appellate court from those cases in which an appeal could have been taken directly . . . to the appellate court . . . had judgment been rendered. . . .
      “All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
      “The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . .”

       This case in the trial court was a consolidated case. The plaintiff in one case was United Technologies Corporation and in the other case was Nor-den Systems, Inc. John G. Groppo is the defendant in both cases.

       These dates represent the period of time in which the tax has been assessed.

       As here, the defendant in both cases was the tax commissioner.


author: Lavery, J.

text:
    Madison Hills Limited Partnership II v. Madison Hills, Inc., et al.
    (12278)
    Dupont, C. J., and Foti and La very, Js.
    Argued January 18
    decision released June 6, 1994

      Bernard Green, with whom, on the brief, were Eric N. Gross and Joel Z. Green, for the appellants (defendants).

      Edwin L. Doernberger, for the appellee (plaintiff).
   Lavery, J.

In this appeal, we review for the first time in Connecticut how a creditor may enforce a judgment against a partner in a limited partnership. That issue includes a consideration of whether the remedy of strict foreclosure of a partnership interest is availáble to a judgment creditor of a partner.

In this case, the defendant Madison Hills, Inc., was a general partner in the plaintiff, Madison Hills Limited Partnership II. The two other defendants, Robert M. Green and M. Richard Kaufmann, Jr., were the majority shareholders in Madison Hills, Inc. The plaintiff obtained a judgment against the defendant on April 9,1991, after it defaulted on several promissory notes held by the partnership. The defendant paid only $9828.74 of the $169,195.08 judgment.

In an effort to satisfy the remainder of the judgment, the plaintiff moved for a charging order to be entered against the defendant corporation’s partnership interest in the plaintiff, pursuant to General Statutes §§ 34-30 and 34-66. The plaintiff also moved for immediate strict foreclosure of the partnership interest. The trial court held a hearing at which the plaintiff established the amount of the unsatisfied judgment and the percentage of the defendant’s partnership interest in the plaintiff. The plaintiff also presented testimony from Donald Blauvelt, a real estate appraiser, regarding the value of the partnership’s sole asset, 822 acres of undeveloped land in Madison. This expert testimony was offered to assist the court in determining the value of the defendant’s partnership interest.

At the conclusion of the hearing, the trial court granted the plaintiff’s motion and charged the defendant’s partnership interest with the judgment of $186,841.54 The court denied the plaintiff’s motion for immediate strict foreclosure, but ordered that the partnership interest be foreclosed unless redeemed by the defendant prior to April 15, 1993. The defendant has appealed the court’s ruling.

I

As a threshold matter, we address whether the trial court properly applied the remedy provisions of General Statutes § 34-66, part of Connecticut’s Uniform Partnership Act (UPA), to a limited partnership. The defendant did not raise this issue before the trial court or on appeal. This court will not consider issues not raised before the trial court and not properly preserved for appeal; consideration of this issue is appropriate, however, under the plain error doctrine. Practice Book § 4185. Plain error review is warranted in this case because (1) the proper application of the remedy provisions of the UPA to a limited partnership is a question of law, (2) neither party is prejudiced because the interpretation of the statutes does not require further fact finding by the trial court, and (3) both parties have had an opportunity to present written arguments regarding the statutes in their supplemental briefs, ordered and submitted after oral argument. See Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 480 n.6, 628 A.2d 946 (1993).

A

CHARGING ORDERS UNDER THE UPA AND THE ULPA

Connecticut has adopted both the UPA and the Uniform Limited Partnership Act (ULPA), General Statutes §§ 34-9 through 34-38q. Limited partnerships aré governed by the ULPA, and by the UPA to the extent that its provisions are not inconsistent with those of the ULPA. General Statutes § 34-44 (2). In this case, the plaintiff is a limited partnership in which the defendant is a general partner. Thus, this case is controlled by the ULPA and by those provisions of the UPA that do not conflict with the ULPA.

The UPA permits a judgment creditor of a partner to place a type of lien known as a charging order on the partner’s interest in the partnership. General Statutes § 34-66; 1 A. Bromberg & L. Ribstein, Partnership (1994) § 3.05, p. 3:71. “[A] charging order . . . is neither fish nor fowl. It is neither an assignment nor an attachment.” Bank of Bethesda v. Koch, 44 Md. App. 350, 354, 408 A.2d 767 (1979). Under this procedure, a court may grant a judgment creditor’s application and issue an order charging the debtor partner’s interest in the partnership with payment of the judgment debt. General Statutes § 34-66. The charging order leaves the partnership intact but diverts to the judgment creditor the debtor partner’s share of the profits. General Statutes § 34-66; A. Weinberger, “Making Partners Pay Child Support: The Charging Order at 100,” 27 Hous. L. Rev. 297, 302 (1990). The charging order replaced levies of execution as the remedy for reaching the interest of a partner. See generally J. Gose, “The Charging Order under the Uniform Partnership Act,” 28 Wash. L. Rev. 1, 7 (1953).

Once a judgment creditor obtains a charging order, the trial court is authorized to make any orders and inquiries in support of the charging order. General Statutes § 34-66; see, e.g., Bohonus v. Amerco, 124 Ariz. 88, 89, 602 P.2d 469 (1979); Hellman v. Anderson, 233 Cal. App. 3d 840, 849, 284 Cal. Rptr. 830 (1991); Arkansas City v. Anderson, 242 Kan. 875, 890, 752 P.2d 673 (1988); Gates Rubber Co. v. Williford, 530 S.W.2d 11, 15 (Mo. App. 1975); Federal Deposit Ins. Corp. v. Birchwood Builders, 240 N.J. Super. 260, 267, 573 A.2d 182, cert. denied, 122 N.J. 317, 585 A.2d 337 (1990). The charging order affects only the partner’s interest in the partnership, which is personal property. General Statutes § 34-64. The partner’s interest in the partnership is one of three property rights the partner possesses; the others are the partner’s rights in specific partnership property and the right to participate in partnership management. General Statutes § 34-62. It is important to note that a charging creditor does not become a full partner, is not entitled to manage the partnership, and has no right to attach specific partnership property. Rector v. Azzato, 74 Md. App. 684, 690, 539 A.2d 1162 (1988); Beckley v. Speaks, 39 Misc. 2d 241, 245, 240 N.Y.S.2d 553 (1963), aff’d, 21 App. Div. 2d 759, 251 N.Y.S.2d 1015, appeal dismissed, 15 N.Y.2d 546, 202 N.E.2d 906, 254 N.Y.S.2d 362 (1964); Federal Deposit Ins. Corp. v. Birchwood Builders, supra, 266-67; E. Axelrod, “The Charging Order — Rights of a Partner’s Creditor,” 36 Ark. L. Rev. 81, 90 (1982). Because the partner’s rights in specific property of the partnership cannot be attached or made subject to execution; General Statutes § 34-63 (c); and the partner’s management rights cannot be assigned to or conferred on anyone other than a partner; General Statutes §§ 34-65 and 34-56 (e); the charging order is the sole remedy available to a judgment creditor of a partner. In re Matter of Smith, 17 Bankr. 541, 547 (M.D. Ga. 1982); see also A. Weinberger, supra, 27 Hous. L. Rev. 306; E. Axelrod, supra, 36 Ark. L. Rev. 92.

The ULPA provides protection similar to the UPA. Judgment creditors of a partner in a limited partnership can obtain a charging order against the partnership interest. General Statutes § 34-30; see, e.g., Crocker National Bank v. Perroton, 208 Cal. App. 3d 1, 6, 255 Cal. Rptr. 794 (1989); Rector v. Azzato, supra, 74 Md. App. 690; Chrysler Credit Corp. v. Peterson, 342 N.W.2d 170, 173 (Minn. App. 1984); Central Petroleum Corp. v. Korman, 15 Misc. 2d 245, 247, 177 N.Y.S.2d 761 (1958), appeal dismissed, 8 App. Div. 2d 782, 190 N.Y.S.2d 314 (1959); Major Real Estate & Investment Corp. v. Republic Financial Corp., 695 P.2d 893, 894 (Okla. App. 1985). Section 34-30 of the ULPA does not, however, provide a means to enforce the charging order. Therefore, we must consider what remedies are available to a charging creditor under the ULPA.

B

CONSISTENCY OF THE UPA AND THE ULPA

As noted, both the UPA and the ULPA apply to limited partnerships to the extent that they do not conflict. General Statutes § 34-44. Thus, if § 34-66 of the UPA is not inconsistent with § 34-30 of the ULPA, the UPA remedies in § 34-66 apply.

The language in the two sections is not identical. That alone, however, does not determine whether they conflict. Under the ULPA, the rights of a charging creditor are limited to the rights of an assignee of the partnership interest. General Statutes § 34-30. An assignee of a partnership interest is entitled to distributions to which the assignor partner is entitled. General Statutes § 34-30. If all the partners consent, an assignee of a partnership interest has the right to become a limited partner. General Statutes § 34-27a.

Under the UPA, however, a charging creditor is entitled to more than just the rights of an assignee. The UPA provides that the charging creditor is entitled to the distributions to which the partner is entitled plus the benefit of all other orders, directions, accounts and inquiries that the partner could make. General Statutes § 34-66. Assignees under the UPA are denied the latter benefit. General Statutes § 34-65.

This disparity in the rights of charging creditors under the UPA and the ULPA suggests that the two sections are not consistent. That suggestion is dispelled, however, by the official comment that accompanied this adoption of the present version of the ULPA. When the present ULPA was adopted, the drafters deleted provisions that granted charging creditors the same powers and remedies as the UPA. Compare 6 U.L.A. § 22 (1914) with 6 U.L.A. § 703 (1976). The official comment explains that the remedy provisions were superfluous. This explanation suggests that the UPA and the ULPA were not intended to differ.

The consistency of the two sections is also revealed by the fact that § 34-30 of the ULPA has no remedy provisions. Although § 34-30 provides that the charging creditor has the rights of an assignee; General Statutes § 34-30; and assignees have a right to the partner’s distributions; General Statutes § 34-27; neither § 34-30 nor § 34-27 provides a method for the assignee to enforce that right. A charging order alone provides little comfort to the charging creditor. A. Bromberg & L. Ribstein, supra, § 3.05, p. 3:71; A. Weinberger, supra, 27 Hous. L. Rev. 314-15. Only General Statutes § 34-66 of the UPA contains a means of enforcing a charging order. Thus, § 34-30 relies on rather than conflicts with § 34-66. See also Major Real Estate & Investment Corp. v. Republic Financial Corp., supra, 695 P.2d 894-95 (noting that charging order provision of ULPA supplements charging order provisions of UPA).

Finally, the other jurisdictions that have interpreted this language have found the two sections to be consistent and have applied the remedies of the UPA to entities governed by the ULPA. See Crocker National Bank v. Perroton, supra, 208 Cal. App. 3d 9; Major Real Estate & Investment Corp. v. Republic Financial Corp., supra, 695 P.2d 894. We are likewise persuaded that § 34-30 is not inconsistent with § 34-66. Therefore, the remedy provisions of the UPA are available to judgment creditors under the ULPA.

C

REMEDIES: THE AVAILABILITY OF STRICT FORECLOSURE

As noted above, the remedy provisions of the UPA allow the court to issue any order and make any inquiry necessary to enforce a charging order. General Statutes § 34-66. Foreclosure is one of the orders available to charging creditors. General Statutes § 34-66. A vast majority of courts and commentators agrees that the UPA authorizes foreclosure. See, e.g., Hellman v. Anderson, supra, 233 Cal. App. 3d 349; Myrick v. Second National Bank of Clearwater, 335 So. 2d 343, 345 (Fla. Dist. Ct. App. 1976); Arkansas City v. Anderson, supra, 242 Kan. 890; Tupper v. Kroc, 88 Nev. 146, 153, 494 P.2d 1275 (1972); A. Weinberger, supra, 27 Hous. L. Rev. 315; A. Bromberg & L. Ribstein, supra, § 3.05, pp. 3:72-73; but see Buckman v. Goldblatt, 39 Ohio App. 2d 1, 4 and n.7, 314 N.E.2d 188 (1974) (noting in dicta that foreclosure would conflict with that court’s prior interpretation of UPA § 25 [2] [c]). In all of the reported cases, the partnership interest was foreclosed by sale.

Similarly, charging creditors under the ULPA have been permitted to foreclose on the partnership interest by sale. Crocker National Bank v. Perroton, supra, 208 Cal. App. 3d 6; Major Real Estate & Investment Corp. v. Republic Financial Corp., supra, 695 P.2d 894; but see In re Stocks, 110 Bankr. 65, 67 (N.D. Fla. 1989) (noting that ULPA provision does not provide for foreclosure). Charging creditors under the UPA and ULPA logically are treated similarly because the purpose of the charging order provisions under both statutes is to balance the need to protect the orderly operation of the partnership and the rights of creditors. See A. Weinberger, supra, 27 Hous. L. Rev. 301-302.

A more difficult question is presented in this case, in which the trial court ordered strict foreclosure. Our research has revealed no reported cases in which a charging order was enforced by strict foreclosure. We must determine whether strict foreclosure is available under the UPA and, thereby, the ULPA.

We begin this consideration by reviewing the definition of the term foreclosure. “ ‘Where a statute does not define a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.’ ” Southington v. State Board of Labor Relations, 210 Conn. 549, 561, 556 A.2d 166 (1989). Foreclosure is not defined in the UPA. Generally, foreclosure means to cut off the equity of redemption, the equitable owner’s right to redeem the property. See Barclays Bank of New York v. Ivler, 20 Conn. App. 163, 166, 565 A.2d 252, cert. denied, 213 Conn. 809, 568 A.2d 792 (1989); Black’s Law Dictionary (6th Ed. 1990); J. Durham, “In Defense of Strict Foreclosures: A Legal and Economic Analysis of Mortgage Foreclosure,” 36 S.C.L. Rev. 461, 473 and n.76 (1985). The equity of redemption can be cut off either by sale or by strict foreclosure. Barclays Bank of New York v. Ivler, supra, 166; Black’s Law Dictionary (6th Ed. 1990); J. Durham, supra, 36 S.C.L. Rev. 473 and n.76. Thus, the common understanding of the term foreclosure includes both strict foreclosure and foreclosure by sale.

This conclusion is also supported by the manner in which the term foreclosure is used in other of our statutes. In the mortgage context, foreclosure refers to both strict foreclosure and foreclosure by sale. See General Statutes §§ 49-1, 49-14, 49-24. Because the term is used in § 34-66 as in those statutes, it should be interpreted similarly.

Our interpretation of foreclosure is further supported by its historic meaning. At common law, the term foreclosure meant strict foreclosure. See Fairfield Plumbing & Heating Supply Corp. v. Kosa, 220 Conn. 643, 647, 600 A.2d 1 (1991); D. Caron, Connecticut Foreclosures (2d Ed. 1989) § 9.05A, p. 158. General Statutes § 49-24 appends to that definition the remedy of foreclosure by sale without altering the existing common law definition. The legislature used the term foreclosure in the UPA without further definition. The legislature is presumed to have acted with knowledge of existing law and with an intent to create one consistent body of law. Zachs v. Groppo, 207 Conn. 683, 696, 542 A.2d 1145 (1988). Therefore, the legislature is presumed to have known of the existing definition of foreclosure and intended to invoke that definition in the context of the UPA.

Textual analysis also supports the conclusion that strict foreclosure is available under the UPA. Section 34-66 distinguishes between foreclosure and a court-ordered sale. If the word foreclosure meant foreclosure solely by sale, the word would be superfluous in that sentence. In statutory interpretation, no word is to be treated as superfluous. Groton v. Yankee Gas Services Co., 224 Conn. 675, 689, 620 A.2d 771 (1993). Thus, in the context of the UPA, we conclude that the meaning of foreclosure must include strict foreclosure.

The availability of alternative methods of foreclosure affords some protection to the debtor defendant. This can be important; under strict foreclosure, the property is appraised at the fair market value. General Statutes § 49-14 (a); New England Savings Bank v. Lopez, 227 Conn. 270, 278, 630 A.2d 1010 (1993). Fair market value is not, however, necessarily consistent with value obtained by foreclosure by sale. Id., 280. In the paradigm of the foreclosure sale “there is no asking price, no offer and counteroffer, and no opportunity for the parties to incur the respective market risks.” Id., 280-81. In short, foreclosure by sale is designed to “make a deal” without regard to the fair market value. Id., 280. The difference between the fair market value and the best deal available can be great. Both parties are entitled to move for an order of foreclosure by sale or strict foreclosure.

Finally, we are persuaded by an analogy to the Uniform Commercial Code (UCC), General Statutes §§ 42a-l-101 through 42a-10-109. Section 42a-9-501 (1) authorizes a secured party to reduce its claim to judgment, on the debtor’s default, and “foreclose or otherwise enforce the security interest by any available judicial procedure.” (Emphasis added.) The official comment accompanying the section explains that a secured party can foreclose by any procedure available under state law. “[A] judicial sale following judgment, execution and levy is one of the methods of foreclosure contemplated by [this section] . . . .” General Statutes § 42a-9-501, comment 6. Thus, both foreclosure by sale and strict foreclosure are available to secured parties under the UCC. We are persuaded that similar remedies should be available to charging creditors under the UPA.

We conclude, therefore, that the UPA does permit a charging creditor to enforce its charging order through strict foreclosure. In sum, we conclude that the charging order provisions of the UPA and the ULPA do not conflict, that the remedy provisions of the UPA apply to limited partnerships, that a charging creditor can foreclose on a partner’s interest in the partnership and that strict foreclosure is available. Therefore, the trial court properly applied § 34-66 of the UPA to this case.

II

The defendant claims that (1) the trial court erroneously permitted testimony on the value of the partnership assets, and (2) the evidence adduced was insufficient to support the judgment. We are unpersuaded by either claim.

The defendant asserts that the trial court improperly admitted testimony from Blauvelt, the plaintiffs expert appraiser, regarding the value of the partnership’s undeveloped land. The defendant claims that the witness lacked a sufficient and complete factual basis for his opinion because his appraisal was incomplete when he testified. Blauvelt admitted that a market feasibility study of the potential for development of the land was still in progress. He testified that his appraisal was based on five sales of comparable property, and that he had taken into consideration the possible results of the study.

“ ‘The trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the error is clear and involves a misconception of the law, its ruling will not be disturbed.’ ” Churchill v. Skjerding, 31 Conn. App. 247, 249-50, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993). “In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion. . . . Some facts must be shown as the foundation for an expert’s opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence.” (Citations omitted; internal quotation marks omitted.) State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). “Once the trial court has determined that the witness has reasonable qualifications to testify as an expert on the question presented, the objection goes to the weight rather than the admissibility of the testimony. . . . It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony.” (Citation omitted.) Id., 677.

Our review of Blauvelt’s testimony reveals that he had sufficient basis for his opinion. Further, although the feasibility study was not yet complete, Blauvelt had considered its possible results in his appraisal. Thus, the expert had sufficient facts on which to base his opin-. ion. Therefore, the trial court did not abuse its discretion when it admitted his testimony.

Finally, the defendant claims that the evidence before the court was insufficient to support the judgment. Specifically, the defendant asserts that, because the expert’s testimony lacked sufficient factual basis for his appraisal, the judgment could not be based on that testimony. As we noted above, the expert did possess a sufficient factual basis for his opinion, and it was not an abuse of discretion to admit his testimony. It follows from that conclusion that there was sufficient evidence to support the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the sole interest sought to be foreclosed belongs to Madison Hills, Inc., we will refer to that corporation as the defendant.

       General Statutes § 34-30 provides: “On application to a court of competent jurisdiction by any judgment creditor of a partner, the court may charge the partnership interest of the partner with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the partnership interest. Nothing in this chapter shall be held to deprive a partner of the benefit of any exemption laws applicable to his partnership interest.”

       General Statutes § 34-66 (1) provides in pertinent part: “On due application to a competent court by any judgment creditor of a partner, the court . . . may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner might have made, or which circumstances of the case may require.”

       General Statutes § 34-66 (2) provides in pertinent part: “The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution . . . .”

       This figure reflects the original judgment less the amount paid plus interest.

       The trial court referred to both §§ 34-30 and 34-66 but did not specify under which statute the order was granted. Our decision in this case, however, makes this of no matter.

       General Statutes § 34-39 et seq.

       After argument, this court requested, sua sponte, supplemental briefs on this issue.

       Although the UPA does not explicitly establish the exclusivity of the charging order, the UPA’s intended replacement, the Uniform Partnership Act (1992), does. Section 504 (e) of the Uniform Partnership Act (1992), approved by the National Conference of Commissioners on Uniform State Laws in 1992, states: “This section provides the exclusive remedy by which a judgment creditor of a partner or partner’s transferee may satisfy a judgment out of the judgment debtor’s transferable interest in the partnership.”

       See footnotes 2 and 3.

       The official comment to § 703 of the Uniform Limited Partnership Act (1976) states: ‘ ‘Section 703 is derived from Section 22 of the 1916 Act but has not carried over some provisions that were thought to be superfluous. For example, references in Section 22 (1) to specific remedies have been omitted, as has a prohibition in Section 22 (2) against discharge of the lien with partnership property. Ordinary rules governing the remedies available to a creditor and the fiduciary obligations of general partners will determine those matters.”

       See footnote 4 for text of statute.

       The Uniform Partnership Act (1992) explicitly authorizes foreclosure. Section 504 (b) of the Uniform Partnership Act (1992) provides: “A charging order constitutes a lien on the judgment debtor’s transferable interest in the partnership. The court may order a foreclosure of the interest subject to the charging order at any time and upon conditions it considers appropriate. The purchaser at the foreclosure sale has the rights of a transferee.”

       See footnote 4 for the text of the statute.