text:
    STATE OF CONNECTICUT v. MICHAEL G.

    (AC 27665)
    McLachlan, Harper and Beach, Js.
    Argued February 21
    officially released May 6, 2008

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were David Shepack, state’s attorney, and Dawn M. Gallo, 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

BEACH, J.

The defendant, Michael G., appeals from the judgment of conviction, rendered after a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and four counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) determined that there was sufficient evidence to support the jury’s verdict of guilty, (2) instructed the jury on expert witness testimony and (3) admitted into evidence photographs of his residence and testimony by a state police trooper who executed a search of the defendant’s residence. We affirm the judgment of the trial court.

The jury reasonably court have found the following facts. In early 1998, when the victim, M, was eight years old, she moved to northwestern Connecticut with her mother, C, her two brothers and her father, the defendant. She entered second grade at the local school. Five or six months after the move to Connecticut, the defendant began to assault her sexually. M testified that one day, the defendant called her into his bedroom, removed her clothes and positioned her on her back, on the side of the bed, with her legs dangling over the edge. He then inserted his penis into her vagina. When he was finished, the defendant ejaculated into a washcloth.

M testified that the defendant had vaginal intercourse with her on at least a weekly basis through the sixth grade, unless the family was on vacation or M had her menstrual period. Before engaging in intercourse, the defendant sometimes would give M alcoholic beverages and show her pornographic movies or images. During intercourse, the defendant occasionally used petroleum jelly as a lubricant. The defendant also would enter the shower with M and have her wash his body, including his penis.

When M was twelve years old, in 2001, the family moved to Massachusetts, where she resided with her immediate family, as well as her paternal uncle and his wife and their three children. Approximately two years after moving to Massachusetts, in August, 2003, M’s mother, C, moved to upstate New York to care for her ailing father and returned to Massachusetts on the weekends. M’s brothers had gone to New York to live with their grandparents in June, 2003. M and the defendant were planning to join them in New York at some point in the near future and were preparing to move in October, 2003. On October 27,2003, M called her mother in New York and left a message. When C returned the call, M told her that the defendant had been assaulting her and that she “couldn’t take it anymore.” The day before M called C, the defendant had told her that he wanted to have sex with her, but she had refused. In response, the defendant hit her in the face. Upon hearing this news, C told her daughter to pack her bags secretly and to tell her aunt what had happened. The police arrived shortly thereafter and took M to the police station, where she gave a statement. The defendant was arrested and charged accordingly.

A trial was held in December, 2005. Ann Burgess, an expert in child sexual abuse, testified at the trial. Burgess, who did not treat M, described general symptoms of sexually abused children, including common delayed reporting of such abuse. John Dellenbach, a pediatrician with expertise in the examination of children for sexual assaults, testified about a sexual abuse video colposcopy he performed on M on November 13, 2003. At trial, Dellenbach compared photographs of a normal prepubescent female hymen with photographs of M’s hymen, which had a distinctive notch and scar tissue indicative of a tear that had healed. He testified that his finding was consistent with a history of repetitive vaginal intercourse and that, although he did not know how the hymen was injured, it had to have been caused by at least one incident of penetration by a ridged, blunt instrument. He noted, however, that the injury could not have been caused by masturbation or a tampon.

At trial, family members testified about questionable behaviors on the part of the defendant, such as his propensity to position M on his lap, directly over his genital area, while dressed only in underwear. The defendant also slept with M in the marital bed while C was away in New York. M’s older brother testified that when M was six or seven, he walked into the defendant’s bedroom and found the defendant naked with M, who was not wearing a shirt or pants. The defendant explained to M’s older brother that M had “messed her pants.” M’s older brother also testified that M and the defendant were often alone in the marital bedroom and that the defendant often angrily insisted that the brother make his presence known when he was near the bedroom. M’s uncle, who resided with M in Massachusetts, testified that the defendant spoiled M and bought her makeup and jewelry.

On December 20, 2005, the juiy returned a guilty verdict on four counts of sexual assault in the first degree and four counts of risk of injury to a child. On March 10, 2006, the defendant was sentenced to a total effective term of eighty years imprisonment, execution suspended after forty years, followed by six years of special parole and twenty years probation. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support the conviction as to the sexual assault and risk of injury charges stemming from his conduct in 1998. Specifically, he contends that M’s testimony contained inconsistencies such that the jury could not have found that any assaults occurred in 1998. We disagree.

When reviewing sufficiency of the evidence claims we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

The defendant argues that the evidence was insufficient to demonstrate that he assaulted M in 1998. In support of his argument, the defendant cites portions of M’s testimony when her memory was faulty. In particular, the defendant notes that “she claimed that the assaults began five to six months after the family moved to Connecticut. She also claimed that she was in the second grade when the assaults began. . . . Since the victim moved to Connecticut in January, 1998, it would be impossible for the sexual assaults to occur while she was in second grade because she would not have been in school, but on summer break at the time she claims the sexual assaults began.” (Citation omitted.) The defendant concludes that the jury therefore had to engage in speculation to find that the assaults began in 1998.

The defendant’s claim, although clothed in sufficiency of the evidence language, in reality challenges the credibility of M’s testimony. His attack on M’s credibility is exemplified by his description of her testimony as “clearly improbable and unconvincing,” as well as “unreliable and impossible.” “Our task is to view the evidence in the light most favorable to sustaining the verdict before determining if the jury reasonably could have concluded that such evidence established guilt beyond a reasonable doubt. . . . We assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A. 2d 1082 (2005). On the record before us, the jury reasonably was free to credit M’s testimony. Because we cannot decide issues of credibility, the defendant’s first claim fails.

II

The defendant next claims that the court improperly instructed the jury. Specifically, the defendant claims that pursuant to Nash v. Hunt, 166 Conn. 418, 352 A.2d 773 (1974), “the trial court’s charge to the jury failed to (a) delineate specifically the subordinate facts and (b) adequately advise and caution the jury regarding the proof and completeness of the facts used in opinions based on hypothetical questions.” We agree that the court should have given the requested instruction but conclude that the error was harmless.

The following additional facts are necessary to our resolution of the defendant’s claim. During her testimony at trial, the state’s expert on child sexual abuse, Burgess, answered several hypothetical questions posed by the state. Following the court’s instruction to the jury, the defendant preserved his claim by taking exception to the court’s failure to instruct the jury with his requested charge concerning expert testimony and hypothetical questions.

“Although [a] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given ... [a] refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance. . . . Thus, when the substance of the requested instructions is fairly and substantially included in the trial court’s jury charge, the trial court may properly refuse to give such instructions.” (Internal quotation marks omitted.) State v. Ledbetter, 263 Conn. 1, 22, 818 A.2d 1 (2003).

In Nash v. Hunt, supra, 166 Conn. 426-27, our Supreme Court addressed the issue of proper jury instructions concerning expert testimony, noting that “it is incumbent upon the court not only to instruct the jury as to the weight and effect to be given expert testimony and the standards by which it should be evaluated, but also to delineate and to particularize those subordinate facts on which expert opinion rests when the jury as finder of facts must itself resolve them.” That court also noted in regard to expert witness’ answers to hypothetical questions that those answers “would have value only insofar as [the jury] found the facts assumed in the question upon which the opinion was based to have been proved.” Id., 425-26. These principles expressed in Nash were reiterated in State v. Russo, 38 Conn. Sup. 426, 450 A.2d 857 (1982), in which the Appellate Session of the Superior Court observed that “where the opinion testimony of an expert witness is based upon exhibits prepared by others and not upon firsthand knowledge, or is by way of answer to a hypothetical question premised upon an assumed state of facts, there is an increased danger that the jury will attach undue weight to the testimony.” Id., 444. That court additionally noted that the “[trial] court in its charge concerning hypothetical questions properly instructed the [jurors] that they must reject the opinion of an expert witness to the extent that it is based on subordinate facts which they do not find proved.” Id., 445; see also Pischitto v. Waldron, 147 Conn. 171, 177, 158 A.2d 168 (I960).

As we have indicated, the defendant sought an instruction informing the jury that when an expert has given an opinion based on a hypothetical question, the value of that opinion depends on the truth and completeness of the facts on which it is based and, further, that the jury should consider whether those underlying facts were proven. The defendant’s request to charge constituted an accurate statement of the law expressed in Nash and was relevant to the issues in the case. The court, therefore, was obligated to give the requested charge, either as sought or in substance. Although the court gave a lengthy instruction on expert testimony, the instruction did not contain the requested charge. This analysis does not end our inquiry, however, because we must next consider whether the deficient instruction warrants reversal of the judgment and a new trial. This consideration requires application of the harmless error doctrine.

“When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error.”* (Internal quotation marks omitted.) State v. Sierra, 213 Conn. 422, 436, 568 A.2d 448 (1990). Our Supreme Court recently stated that “ [a] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict.” (Internal quotation marks omitted.) State v. Slater, 285 Conn. 162, 190, 939 A.2d 1105 (2008); State v. Sawyer, 279 Conn. 331, 357, 904 A.2d 101 (2006) (en banc).

We conclude that the court’s omission of the requested charge was harmless error. Although the court did not give an instruction specifically addressing hypothetical questions as required by Nash, the court did instruct the jury concerning expert testimony in general, noting that an expert opinion “is subject to review by you [and] is in no way binding upon you,” and that “[y]ou should consider the proof or lack of proof and the completeness or lack of completeness of any facts considered by the expert in forming his or her opinions or reaching his or her conclusion.” Moreover, the state’s case did not rest entirely on the credibility of M. It also presented physical evidence, as well as corroborative testimony. In light of the foregoing, we cannot conclude that the error substantially affected the verdict.

m

The defendant finally claims that the court improperly admitted evidence of events that occurred in Massachusetts, which were unrelated to the charged crimes that occurred in Connecticut. Specifically, the defendant claims that the admission of photographs depicting petroleum jelly and wine coolers in the defendant’s residence and testimony by a state police trooper who seized wine coolers and pornography from the defendant’s residence were not relevant and were improperly admitted “for the sole purpose of bolstering the victim’s credibility.”

The following additional facts are relevant to our resolution of the defendant’s claim. At trial, the state offered into evidence photographs of wine coolers and petroleum jelly taken at the defendant’s residence in Massachusetts. It then offered the testimony of M, her mother and her uncle that the photographs accurately depicted the Massachusetts house where they had lived. The defendant objected to the introduction of the photographs on the grounds that they were not relevant and had not been authenticated properly. He renewed his objection after the state had rested its case. The court disagreed, finding that the exhibits were sufficiently tied in and authenticated by the witnesses who had testified to their accuracy. The state also offered the testimony of Massachusetts state police Trooper Brian Berkel about his seizure of wine coolers and pornography from the Massachusetts residence. The defendant objected to Berkel’s testimony on relevancy grounds both at the time the testimony was offered, as well as after the state had rested its case.

Our standard of review for evidentiary rulings is well established. “[T]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence. . . . The proffering party bears the burden of establishing the relevance of the offered testimony. (Citation omitted; internal quotation marks omitted.) State v. Lemay, 105 Conn. App. 486, 491-92, 938 A.2d 611, cert. denied, 286 Conn. 915, 945 A.2d 978 (2008).

The photographs and testimony in question tended to corroborate factual details surrounding the defendant’s commission of the sexual assaults. The state’s introduction of the photographic evidence corroborated both M’s and C’s testimony that the defendant used petroleum jelly, as well as M’s testimony that the defendant had wine coolers. Likewise, Berkel’s testimony that he found pornography at the defendant’s residence further corroborated M’s testimony that the defendant had pornography. It is true that the evidence tended to show that the defendant had these items at a location different from the location of the charged crimes, and the weight of the evidence may have been in issue. Nonetheless, the evidence tended to show that the defendant had the items, and, thus, the evidence had some relevance. We do not find independently that the probative value was outweighed by unfair prejudice. “All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative.” (Internal quotation marks omitted.) State v. Nelson, 105 Conn. App. 393, 412, 937 A.2d 1249, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008). Accordingly, the court did not abuse its discretion when it admitted the photographs and testimony into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       Two of the counts listed in the amended long form information pertain to conduct occurring in 1998. The information as to those counts states in relevant part: “Count One . . . [the defendant] did engage in sexual intercourse . . . with a female child ... on divers dates in 1998, in violation of Connecticut General Statutes § 53a-70 (a) (2). . . . Count Six . . . [the defendant] did have contact with the intimate parts of a child under the age of sixteen ... on divers dates in 1998, in violation of Connecticut General Statutes § 53-21 (2).

       The defendant’s written requested charge was as follows: “In addition to the instruction I have just given you about expert witness testimony, in this case, you heard from a witness, Ann Burgess, who testified as to her opinions regarding sex abuse trauma syndromes, including the delayed reporting of sexual abuse, based on what we call hypothetical questions— that is, where she was asked to assume certain facts and then give an opinion on those facts without having had any direct knowledge of or contact with any of the witnesses or parties in this case.
      “Where an expert witness gives such an opinion, the value of that opinion depends on the truth and completeness of those facts. You should consider whether those facts were proven or not, and you should consider whether or not her opinion was based on all the relevant facts or whether some relevant facts were omitted. In a situation such as this, the expert witness cannot vouch for the credibility of the complainant in this case, nor state an opinion that the complainant has, in fact, been abused, and you must disregard any testimony from her which constitutes a direct or indirect assertion that validates the truthfulness of the complainant’s testimony.”

         The court’s complete instruction on expert testimony was as follows: “In this case, two witnesses took the [witness] stand and stated to you not merely what they knew as facts, but they gave opinions as experts. An expert witness may give an opinion even though that opinion is not expressed in terms of certainty, so long as the opinion is expressed in terms of reasonable probability, in terms of what is reasonably probable. No matter what may be the expertise of a particular witness who states to you an opinion upon a fact in a case, that opinion is subject to review by you. It is in no way binding upon you. It is for you to consider along with the other circumstances in this case, and, using your best judgment, to determine whether or not you will give any weight to it, and, if so, what weight you will give to it.
      “In weighing and considering the testimony of an expert, you should apply to him or her the same considerations of credibility that you apply to any other witnesses, such as his or her appearance and demeanor on the [witness] stand, his or her interest or lack of interest in the outcome of the case, Iris or her ability to recall and relate facts to you, and all the other considerations you use in judging the believability of any other witness. In deciding the weight to be accorded to the testimony of an expert witness, you should consider his or her education, his or her expertise, his or her ability in the particular field of knowledge and any other material matters of the sort developed in the course of his or her testimony.
      “You should consider the proof or lack of proof and the completeness or lack of completeness of any facts considered by the expert in forming his or her opinions or reaching his or her conclusion. You should recall the testimony of the expert witnesses in this case in light of the principles which I just stated to you.”

         The defendant concedes that the instructional deficiency was not of constitutional magnitude.

       Recently, this court in State v. McCarthy, 105 Conn. App. 596, 939 A.2d 1195, cert. denied, 286 Conn. 913, 944 A.2d 983 (2008), examined an improper instruction claim under the following standard: “In reviewing claims of instructional [impropriety], we seek to determine whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions . . . .” (Internal quotation marks omitted.) Id., 617. We did not, however, engage in a harmless error analysis in that case, concluding instead that the instructions there were proper. We note, in any event, that under either standard of review, the outcome in this case would not be different.

       The defendant also argues that the admission of the state police trooper’s testimony and the photographs constituted impermissible uncharged misconduct evidence. The defendant’s challenge on this ground is unfounded, however, because evidence that pornography and wine coolers were merely present in the defendant’s house does not, by itself, demonstrate any uncharged misconduct on the part of the defendant.
      The defendant additionally asserts that the photographs admitted into evidence were not authenticated properly. The defendant’s challenge to the admission of the photographs on this ground is likewise without merit. Testimony by both M and her uncle verifying that the photographs admitted accurately depicted the defendant’s residence properly authenticated the photographs. See Conn. Code Evid. § 9-1, commentary (“Evidence may be authenticated in a variety of ways. They include, but are not limited to, the following: ... A witness with personal knowledge may testify that the offered evidence is what its proponent claims it to be.”).


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    TREVEK ENTERPRISES, INC. v. VICTORY CONTRACTING CORPORATION
    (AC 28086)
    Flyrm, C. X, and Lavine and Peters, Js.

      Argued February 14
    officially released May 6, 2008

      Randall J. Carreira, for the appellant (defendant).

      Leon J. Greenspan, for the appellee (substitute plaintiff).
   Opinion

PETERS, J.

Pursuant to General Statutes § 33-921 (a), a foreign corporation that has conducted business in this state without having a certificate of authority from the secretary of the state must obtain such a certificate in order to maintain a proceeding in a Connecticut state court. Section 33-921 (b) imposes a similar constraint on an assignee of a cause of action arising out of such business. The principal issue in this case is whether, as the trial court impliedly held, § 33-921 (b) exempts an assignee from this certification requirement if the assignee is a Connecticut corporation. Under the circumstances of this case, in which the assignee was not in existence at the time that the foreign corporation conducted its business in Connecticut, we decline to construe § 33-921 to excuse compliance with the statute’s broadly stated certification requirement. Accordingly, we reverse the judgment of the trial court in favor of the assignee.

On March 29, 2005, Trevek Enterprises, Inc. (Trevek, Inc.), a New York corporation, brought an action in the Superior Court against the defendant, Victory Contracting Corporation, to recover the unpaid portion of the contract price for roofing services that Trevek, Inc., had performed for the defendant in this state. The defendant not only denied its liability on the contract but also raised a number of special defenses, including a challenge to Trevek, Inc.’s authority to pursue its claim in light of § 33-921 (a). In response, Trevek, Inc., assigned its contract claim to a recently formed Connecticut corporation, Trevek Enterprises CT, Inc. (Trevek CT). Over the defendant’s objection, the trial court, Mints, J., granted the motion of Trevek CT to be substituted as party plaintiff and denied the defendant’s motion that the action be stayed pursuant to § 33-921 (c). After a trial on the merits, during which the court denied the defendant’s renewed motion for a stay as well as its subsequent motions to reargue and to open and to vacate the judgment, the court, Schuman, J., rendered a judgment on the merits in favor of the substitute plaintiff, Trevek CT, in the amount of $24,877.84.

The relevant facts are undisputed. Pursuant to a written contract dated November 21, 2003, Trevek, Inc., agreed to perform roofing services for the defendant. Trevek, Inc., maintained that it had completed its performance under the contract by December 5,2003. Contesting the quality of the workmanship, the defendant refused to pay the remaining part of the contract price to Trevek, Inc.

About one year later, on December 14, 2004, Trevek CT was incorporated in this state. After the substitution of Trevek CT as the plaintiff to pursue Trevek, Inc.’s contract rights against the defendant, the trial court found that credible testimony presented by the president of Trevek CT established the right of Trevek CT to recover monetary damages from the defendant. The court expressly denied the defendant’s request to reconsider the prior ruling of the court, Mintz, J., on the applicability of § 33-921 to the controversy between the parties.

The defendant has raised a number of issues in its appeal, but we need to decide only two. The first issue is the propriety of the trial court’s substitution of Trevek CT as the party plaintiff in the contract action against the defendant. The second issue is the propriety of the trial court’s denial of the defendant’s motion for a stay to require Trevek, Inc., to obtain certification in compliance with § 33-921. We disagree with the defendant’s first claim but we agree with its second claim.

I

SUBSTITUTION

Practice Book § 9-16 confers authority on atrial court judge to substitute a new plaintiff as the sole plaintiff in a pending action as long as the substitution does not prejudice the defense of the action. “The decision whether to grant a motion for the [substitution] of a party to pending legal proceedings rests generally in the sound discretion of the trial court.” Lettieri v. American Savings Bank, 182 Conn. 1, 13, 437 A.2d 822 (1980). Our review is limited to a determination of possible abuse of discretion. Id., 14.

For three reasons, the defendant claims that the trial court in this case abused its authority in granting the motion to substitute Trevek CT as the plaintiff. The defendant maintains that (1) the assignment from Trevek, Inc., to Trevek CT was so poorly executed as to be a nullity, (2) because the assignment to Trevek CT did not expressly identify Trevek CT’s status as that of an assignee, Trevek CT lacked standing to pursue Trevek, Inc.’s contract claim and the trial court lacked subject matter jurisdiction to adjudicate its merits, and (3) because the assignment was intended to evade and undermine the legislative policy articulated in § 33-921, the assignment was invalid and ineffective as a matter of public policy. We disagree.

At the outset, we note that the objections that the defendant now raises to the validity of the assignment to Trevek CT were not raised at trial. In response to the motion for substitution, the defendant merely filed another motion for a stay of the proceedings pursuant to § 33-921. Generously construed, the defendant’s motion may be read as challenging the legal consequences of the assignment and the subsequent substitution, but it did not inform the trial court that the defendant was challenging the validity of the assignment itself.

On this state of the record, the only issue that is properly before us is the defendant’s claim that the assignment was so flawed that the trial court lacked subject matter jurisdiction to adjudicate the underlying contract dispute between the parties. This argument assumes that § 33-921 is a constraint on the subject matter jurisdiction of the Superior Court rather than on its personal jurisdiction. This assumption is untenable. This court has recognized the authority of a trial court to substitute a new plaintiff when the record showed that the original plaintiff had no standing to bring the action in the first place. See Investors Mortgage Co. v. Rodia, 31 Conn. App. 476, 483-84, 625 A.2d 833 (1993); Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn. App. 80, 84-85, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993). Indeed, under the predecessor statute to § 33-921, we noted that a foreign corporation “could have at any time during the course of the trial filed a certificate of authority with the secretary of the state.” Poly-Pak Corp. of America v. Barrett, 1 Conn. App. 99, 104, 468 A.2d 1260 (1983). The fact that the statute expressly contemplates an action by the assignee of a cause of action demonstrates that the court did not lack subject matter authority to adjudicate controversies arising under the statute. See Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).

We are persuaded, in sum, that the trial court had jurisdiction to permit Trevek CT to be substituted as the party plaintiff in this case and did not abuse its discretion in doing so. Section 33-921 does not require the assignment of the rights of a foreign corporation to an in state assignee to take any particular form. The defendant has no basis for complaining about an assignment that is contemplated by the very statute on which it relies for relief.

II

STAY

The defendant’s alternate contention is that the trial court improperly denied its motion to stay the contract action until the foreign corporation, Trevek, Inc., complied with the certification requirement in § 33-921. A dispute about the applicability and interpretation of a statute is entitled to plenary review on appeal. See, e.g., Barry v. Quality Steel Products, Inc., 280 Conn. 1, 8, 905 A.2d 55 (2006).

Section 33-921 (c) authorizes a court to “stay a proceeding commenced by a foreign corporation, its successor, or assignee until it determines whether the foreign corporation or its successor requires a certificate of authority. . . .” (Emphasis added.) On the record in this case, it is undisputed that, if Trevek, Inc., itself had continued to prosecute its contract claim against the defendant, it would have been required, by the terms of § 33-921 (a), to obtain certification before persisting in the present litigation about the merits of the contractual controversy between the parties. Under those circumstances, as the defendant consistently has maintained, the defendant would have been entitled to insist on a stay of such litigation pursuant to § 33-921 (c).

The dispute of the parties focuses therefore on the applicability of the foreign coiporation certification requirement to a Connecticut assignee such as Trevek CT. The trial court summarily denied the defendant’s request for a stay without engaging in any analysis of any part of § 33-921.

In response to the defendant’s renewal on appeal of the statutory argument presented to the trial court, Trevek CT asserts that its status as a Connecticut corporation categorically exempts it from having to procure a certificate of authority. It maintains that, as a local corporate citizen, it presently is subject to regulation in this state with respect to any business that it conducts here. According to Trevek CT, it follows that it impliedly is exempt from the regulatory constraints that § 33-921 imposes on other assignees of causes of action arising from business conducted here by uncertificated foreign corporations. This novel argument has been put forward unbuttressed by citation to statutory language or case law authority.

To address the issue of first impression that Trevek CT has raised, we must place it in context. Of necessity, our starting point is the text of § 33-921. “The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply. . . . 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. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Citation omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-402, 920 A.2d 1000 (2007).

The text of § 33-921 provides no support for Trevek CT’s position because it makes no distinction between assignees that are Connecticut corporations and assignees that are not. The question for us is whether to engraft an exemption on the text of the statute.

Our point of departure for assessment of the claim by Trevek CT for judicial creation of an exemption that § 33-921 does not contain expressly is the undisputed fact that our statute was enacted to conform our corporate law to that of the Model Business Corporation Act (model act). That statute, and ours, are properly characterized as remedial statutes. See Model Business Corporation Act Task Force, Connecticut Business Corporation Act Final Working Draft (March 3, 1994) p. 328. The rules of construction governing exemptions from remedial statutes are unequivocal. “In order to implement the policy and the purpose of [a remedial statute], it is appropriate to construe its exemptions narrowly and to impose the burden of proving the applicability of an exemption upon the [party] claiming its benefit.” Westport v. State, 204 Conn. 212, 222, 527 A.2d 1177 (1987). It would be inconsistent with this established rule of construction for this court to “infer from the statute an exception to its provisions which the legislature has not prescribed either by word or implication.” Busko v. DeFilippo, 162 Conn. 462, 471, 294 A.2d 510 (1972).

The legislative history of § 33-921 further undermines Trevek CT’s argument. When the final draft of the Connecticut Business Corporation Act was presented to the judiciary committee, an official commentary accompanied § 33-921. See Connecticut Business Corporation Act Final Working Draft, supra, pp. 327-28. The official comment, extracted from the model act, states: “If the successor has acquired all or substantially all of the assets of the foreign corporation, the successor may maintain suit after it has qualified. In the case of all other assignments, the foreign corporation itself must obtain a certificate of authority before the assignee may maintain suit on the claim.”* * (Emphasis added.) Id., p. 328.

The plaintiff has not cited any case law in any other jurisdiction that supports its proposed interpretation of § 33-921. To the contrary, our research has uncovered three cases in which state courts, analyzing the claims of local assignees of uncertificated foreign corporations pursuant to statutes similar to § 33-921, have interpreted their statutes to require a certificate of authority from the foreign corporation before the assignee may be allowed to pursue the assigned cause of action. See Healey v. Morgan, 135 Ga. App. 915, 915-16, 219 S.E.2d 628 (1975); Associates Financial Services Co. of New Jersey v. Bozzarello, 168 N.J. Super. 211, 402 A.2d 942 (1979); Leasecomm Corp. v. Renaissance Auto Care, Inc., 122 N.C. App. 119, 121-22, 468 S.E.2d 562 (1996).

Indeed, the undisputed facts in this case make Trevek CT’s argument for an implied exemption particularly unpersuasive. Trevek CT has not challenged the accuracy of the defendant’s repeated representation to the trial court that, according to the records maintained by the secretary of the state, the date of Trevek CT’s establishment in this state postdated Trevek, Inc.’s contract performance by more than one year. Indisputably, if Trevek, Inc., had itself endeavored to enforce its contract rights against the defendant during that first year, it would have had to comply with § 33-921 (d) by paying the fees, taxes and penalties that the legislature has prescribed for transacting business in this state without a certificate of authority. Furthermore, Trevek CT has not represented that it complied with § 33-921 (d) in any fashion in the course of becoming incorporated here.

On this state of the record, we conclude that the trial court improperly denied the defendant’s motion for a stay pursuant to § 33-921 (c) to compel Trevek CT to obtain from Trevek, Inc., the certificate of authority prescribed by § 33-921 (b). The court’s apparent assumption that Trevek CT’s status as a Connecticut corporation automatically exempted it from compliance with § 33-921 cannot be reconciled with the requirements for enforcing the mandates of a remedial statute.

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

In this opinion the other judges concurred.

       General Statutes § 33-921 provides: “(a) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.
      “(b) The successor to a foreign corporation that transacted business in this state without a certificate of authority and the assignee of a cause of action arising out of that business may not maintain a proceeding based on that cause of action in any court in this state until the foreign corporation or its successor obtains a certificate of authority.
      “(c) A court may stay a proceeding commenced by a foreign corporation, its successor, or assignee until it determines whether the foreign corporation or its successor requires a certificate of authority. If it so determines, the court may further stay the proceeding until the foreign corporation or its successor obtains the certificate.
      “(d) A foreign corporation is liable to this state, for the years or parts thereof during which it transacted business in this state without a certificate of authority, in an amount equal to (1) all fees and taxes which would have been imposed by law upon such corporation had it duly applied for and received such certificate of authority to transact business in this state and (2) all interest and penalties imposed by law for failure to pay such fees and taxes. A foreign corporation is further liable to this state, for each month or part thereof during which it transacted business without a certificate of authority, in an amount equal to one hundred sixty-five dollars, except that a foreign corporation which has obtained a certificate of authority not later than ninety days after it has commenced transacting business in this state shall not be liable for such monthly penalty. Such fees and penalties may be levied by the Secretary of the State. The Attorney General shall bring such action as he may deem necessary to recover any amounts due the state under the provisions of this subsection including an action to restrain a foreign corporation against which fees and penalties have been imposed pursuant to this subsection from transacting business in this state until such time as such fees and penalties have been paid.
      “(e) Notwithstanding subsections (a) and (b) of this section, the failure of a foreign corporation to obtain a certificate of authority does not impair the validity of its corporate acts or prevent it from defending any proceeding in this state.”

       The defendant, was unsuccessful in its timely effort to obtain a meaningful articulation of the trial court’s reasoning.

       Trevek CT has not argued that assignees that are not newly incorporated Connecticut corporations are exempt from the obligations imposed by General Statutes § 33-921 (b) and (d).

       In 1994, the General Assembly enacted § 33-921 as part of a comprehensive revision of the Connecticut Stock Corporation Act, designed to bring our corporations statutes into conformity with the American Bar Association’s revised Model Business Corporation Act. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1994 Sess., p. 1801. Collectively, the new statutes are known as the Connecticut Business Corporation Act.

       At the hearing on this statute, Representative Richard D. Tulisano affirmatively commented on the availability of the official commentary for interpretation of our statute. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 6, 1994 Sess., pp. 1803-1805, testimony of Harold Finn, and remarks of Representative Tulisano.

       Trevek CT has not persuaded us that it should be considered as a successor corporation under the statute. Nothing in the record indicates that Trevek CT has acquired all or substantially all of the assets of Trevek, Inc.

       “All but [eleven] jurisdictions follow the substance of the Model Act and expressly provide that the successors and assignees of a foreign coiporation may not maintain suit until the corporation obtains a certificate of authority.” 4 Model Business Corporation Act Annotated (American Bar Association) § 15.02, p. 1540 (3d Ed. 2000 through 2002 Sup.).

       Dicta in two other cases indicate that an assignee could proceed on a claim, having obtained its own certificate of authority, without certification compliance by the foreign corporation. See Dieter Engineering Services, Inc. v. Parkland Development, Inc., 199 W. Va. 48, 56 n.5, 483 S.E.2d 48 (1996); State ex rel. Carlund Corp. v. Mauer, 850 S.W.2d 357, 363 (Mo. App. 1993).


author: STOUGHTON, J.

text:
    THOMAS MANKUS v. ROBERT MANKUS ET AL.
    (AC 28033)
    DiPentima, Harper and Stoughton, Js.

      Argued February 6
    officially released May 13, 2008

      Neil Johnson, for the appellant (plaintiff).

      Donna H. Summers, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   Opinion

STOUGHTON, J.

The plaintiff, Thomas Mankus, has appealed from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) to open a previous finding and award and to dismiss the compensation claim for lack of subject matter jurisdiction. He claims that (1) the defendant second injury fund (fund) may not challenge the commissioner’s subject matter jurisdiction over a claim when the alleged employer has not done so, (2) the evidence does not support a finding of no employment relationship, and (3) the board misinterpreted and failed to rule on his motion to submit additional evidence. We affirm the decision of the workers’ compensation review board.

The opinion of the board sets out the following relevant history. On November 9, 1995, the plaintiff was injured when he fell off a ladder at a home renovation project in Windsor. On December 30, 1995, he filed a form 30C with the commissioner, requesting compensation payments and asserting that he was working for his brother, the defendant Robert Mankus, at the time of the injury. A formal hearing was held on the claim on April 1, 1997. Neither the alleged employer, Robert Mankus, nor the fund attended the hearing. The commissioner issued a finding and award on September 12, 1997, finding an employer-employee relationship between the plaintiff and Robert Mankus and determining that the injury was compensable. Robert Mankus lacked insurance, and, as a result, the statutory responsibility for the compensable injury, if Robert Mankus did not pay the award, was the obligation of the fund. The commissioner issued a supplemental finding on October 17,1997, ordering the fund to pay the plaintiffs award, which it did for several years. The fund eventually located Robert Mankus, in the fall of 2003, and he stated that he had not employed the plaintiff on the date of the accident. The fund filed a motion to open the 1997 finding and award on the basis of newly discovered evidence and filed a motion to dismiss the claim on the basis of a lack of subject matter jurisdiction. After a new formal hearing, the commissioner granted the motion to open, found that there was no employment relationship between the plaintiff and Robert Mankus and dismissed the claim for lack of subject matter jurisdiction on June 7, 2005. The board affirmed the decision, and this appeal followed.

I

The plaintiff first claims that the commissioner improperly entertained the fund’s motion to dismiss. The plaintiff argues that (1) the fund is precluded from challenging the commissioner’s subject matter jurisdiction over his claim because the alleged employer has not done so, and the fund may not “step in the shoes” and assert the rights of the alleged employer, and (2) the fund is prevented by statute from challenging subject matter jurisdiction after failing to contest liability for payment within twenty-eight days of the notice directing payment, as provided by General Statutes § 31-355 (b). We do not agree.

The plaintiff cites no authority indicating that the fund’s ability to challenge the commissioner’s subject matter jurisdiction over the claim hinges on the alleged employer’s doing so. More importantly, the plaintiff misconstrues the nature of subject matter jurisdiction. The plaintiff states, in his appellate brief, that the fund is “invoking the substantive rights of the noncomplying employer.” Although the alleged employer may have benefited from the grant of the fund’s motion to dismiss, case law makes clear that subject matter jurisdiction is not a personal right, susceptible to waiver by the parties but, rather, is a question of the court’s or agency’s power to entertain the particular matter before it. Castro v. Viera, 207 Conn. 420, 427-30, 541 A.2d 1216 (1988). Further, once the question of the agency’s subject matter jurisdiction over the claim has been raised, that issue “must be disposed of no matter in what form it is presented . . . .” (Citations omitted; internal quotation marks omitted.) Id., 429. Thus, we are unpersuaded that the alleged employer’s failure to contest the commissioner’s subject matter jurisdiction precluded the fund from doing so.

We also disagree with the plaintiffs argument that the fund is statutorily precluded from challenging subject matter jurisdiction once the appeal period has ended. The commissioner has no jurisdiction to hear and to decide a workers’ compensation claim in the absence of an employment relationship. Id., 433. General Statutes § 31-355 (b) provides in relevant part: “If the Treasurer fails to file the notice contesting liability within the time prescribed in this section, the Treasurer shall be conclusively presumed to have accepted the compensability of such alleged injury or death from the . . . [f]und and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or contest the extent of the employee’s disability.”

By its own terms, § 31-355 (b) concerns awards made to an employee and can have no application when the employment relationship does not exist at all. Thus, the statutory language does not prevent the fund from arguing, after the appeal period, that the commissioner lacked jurisdiction. A claim similar to the plaintiffs, on the basis of nearly identical statutory language, was rejected in Castro v. Viera, supra, 207 Conn. 433. A claim of want of jurisdiction may be raised at any time and once raised must be dealt with before any other proceedings are taken. Id., 429. Therefore, we disagree that the commissioner improperly entertained the fund’s motion to dismiss.

II

The plaintiff next asserts that the evidence did not support the finding by the commissioner on June 7, 2005, that he was not an employee of Robert Mankus on November 9, 1995. We disagree.

At the hearing, the plaintiff testified that Robert Mankus had visited him the night before the injury and offered to hire him to help with a job replacing the roof of Francesca Strong. He further testified that he had accepted the job and that Robert Mankus had provided directions and agreed to pay the plaintiff in the same manner in which he had paid the plaintiff for previous jobs. The plaintiff testified that he had been working at the site on the day of the injury, preparing plywood and then laying the plywood on the roof. The plaintiff did not provide any other direct evidence of his employment status besides his testimony, although he did proffer a contract that was allegedly the contract between Strong and Robert Mankus to make the roof repairs. Although the contract does not mention the plaintiff, the plaintiff argues here that the contract provides evidence that Robert Mankus intended to hire others to assist him with repairing the roof. The plaintiff also argues that his mere presence at the job site is evidence that he was working for his brother at the time of the injury.

Robert Mankus also testified regarding the plaintiffs employment status. He testified that he had not hired the plaintiff or anyone else to assist in the repair, that the plaintiff had not done any work on the project on the day of the injury and that he was unaware that the plaintiff was even at the job site until after the plaintiff had been injured.

The commissioner heard argument during the hearing on issues other than the plaintiffs employment status. Among the other issues discussed was whether the plaintiff had been intoxicated at the time of his injury. The commissioner believed that the testimony provided by the plaintiff was inconsistent and concluded that the plaintiff “was not truthful in his testimony to this commission as to his intoxication at the time of the injury . . . .” He further found that none of the plaintiffs testimony was credible or persuasive and, therefore, concluded that the plaintiff “was not employed by Robert Mankus on the date of injury.” In addition to disbelieving the plaintiffs testimony that he had been working at the site at the direction of Robert Mankus at the time of the injury, the commissioner specifically credited the testimony of Robert Mankus.

We have frequently stated that the commissioner is the sole trier of fact and that the conclusions drawn by the commissioner from those facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s finding and award. Similarly, in our review of the actions of the board, our role is to determine whether the board’s decision resulted from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Marandino v. Prometheus Pharmacy, 105 Conn. App. 669, 677, 939 A.2d 591, cert. granted on other grounds, 286 Conn. 916, 917, 945 A.2d 977 (2008).

At the hearing on the motion to open the original finding and award, the commissioner heard conflicting evidence. The commissioner determined that the testimony of Robert Mankus was credible and that the testimony of the plaintiff was not. This clearly was a determination for the commissioner to make. Further, the commissioner found that the plaintiff had lied during his testimony about other facts; the commissioner reasonably could have considered these other inconsistencies when evaluating the plaintiffs testimony regarding his employment status. See Gibbons v. United Technologies Corp., 63 Conn. App. 482, 486, 777 A.2d 688, cert. denied, 257 Conn. 905, 777 A.2d 193 (2001). Neither the alleged contract, which does not mention the plaintiff, nor the plaintiffs mere presence at the job site is sufficient evidence to compel a finding that the plaintiff was employed by Robert Mankus at the time of the injury.

We agree with the board that the commissioner’s determination that the plaintiff failed to demonstrate that he was employed by Robert Mankus at the time of the injury was supported by the record.

Ill

Finally, the plaintiff claims that the board improperly interpreted his motion to submit additional evidence, directed to the board, as being a motion directed to the commissioner and, as a result, conducted an incorrect review. We conclude that the plaintiff has failed to demonstrate that any error committed by the board was harmful.

The following facts are relevant to the plaintiffs claim. The commissioner rendered his decision dismissing the plaintiffs claim on June 7, 2005. The plaintiff filed a detailed motion to correct on June 21, 2005, which was denied in its entirety on September 12, 2005, and a petition for review by the board on June 24, 2005. On November 8, 2006, the plaintiff filed a motion to submit additional evidence to the board. In the motion, the plaintiff alleged that the state had initiated criminal proceedings against him and that the charges included workers’ compensation fraud pursuant to General Statutes § 31-290c. According to the plaintiff, trial on these charges commenced on October 20, 2005, and continued until October 27, 2005. The plaintiff alleged that three of the witnesses at the criminal proceeding also testified at the compensation proceeding. These witnesses were Robert Mankus, Strong and James Eatherton. The plaintiff asserted in his motion that the board should consider the transcripts of the testimony of Robert Mankus, Strong and Eatherton at the criminal trial because their testimony was “materially different” from their testimony to the commissioner. The plaintiff stated: “These material differences should constitute new evidence, which the . . . [b]oard should hear.” The plaintiff further alleged that an eyewitness to the 1995 injury had testified at the criminal trial and that this witness was out of state at the time of the compensation hearing and argued that the board should consider his testimony as new evidence as well.

The board did not rule on the plaintiffs motion before the time of the hearing, and the plaintiff raised the issue during argument. He stated to the board: “In the criminal case, the defendant [Robert] Mankus testified, and that is one of the transcripts that we propose to submit ... in accordance with our motion. We believe that the testimony, which was materially different than what was heard before the commissioner, would be helpful in making your determination.” Near the end of his argument, the plaintiff again raised the issue of the transcripts, stating: “To sum up, it is clear in this case that the testimony before the criminal court in terms of our motion to add . . . that the standard has been met for you to see the additional evidence. That additional evidence provides testimony from the defendant, Mr. [Robert Mankus], from Mrs. Strong, the property owner, and from an independent witness that was living in Maine that came down, and I think that that information would be helpful to you and as new evidence.”

When the board issued its opinion affirming the commissioner’s dismissal of the claim, it addressed the plaintiffs motion in a footnote, stating: “The [plaintiff] claims error by the failure of the trial commissioner to admit additional evidence, i.e., the [plaintiffs] acquittal on criminal workers’ compensation fraud charges after the closure of the formal hearing. We find no error. This evidence fails to comport to the requirements enumerated in Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001). Acquittal in a criminal proceeding lacks relevance as to whether the commission ever had subject matter jurisdiction over the claim.”

The plaintiff argues that the board clearly misinterpreted his motion and that, as a result, its determination must be reversed. We conclude that the plaintiff has failed to demonstrate that any error committed by the board was harmful.

The board is statutorily authorized to review additional evidence, not submitted to the commissioner, in limited circumstances. General Statutes § 31-301 (b) provides: “The appeal [from the commissioner] shall be heard by the . . . [b]oard as provided in [General Statutes §] 31-280b. The . . . [b]oard shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the . . . [b]oard may hear additional evidence or testimony.” The procedure that parties must employ in order to request the board to review additional evidence is provided in § 31-301-9 of the Regulations of Connecticut State Agencies, which provides: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.”

Thus, in order to request the board to review additional evidence, the movant must include in the motion (1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner. See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45 n.6, 668 A.2d 1346 (1996); Vetre v. Dept. of Children & Families, No. 4848 CRB-6-04-8 (August 19, 2005); see also 1 A. Sevarino, Connecticut Workers’ Compensation After Reforms (3d Ed. 2006) § 10.86, p. 1800 (“[i]t is always necessary to provide specific reasons for wanting the new evidence to be admitted”). “A material fact is one that will affect the outcome of the case.” (Internal quotation marks omitted.) Shepard v. Wethersfield Offset, Inc., 98 Conn. App. 682, 686, 910 A.2d 993 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007).

The plaintiff failed, both in his motion and at oral argument before the board, to explain why he believed that his proffered new evidence was material to his case and therefore has failed to comply with the second requirement that he must include in his motion the basis of the claim that the evidence is material. Although he asserted that the evidence would be helpful to the board’s review, the plaintiff did not explain how the evidence would be helpful. As to the allegedly inconsistent testimony of Robert Mankus, Strong and Eatherton, the plaintiff never described how the testimony was inconsistent or demonstrated that any such inconsistency was material to his case. The plaintiff did not indicate whether he intended to introduce the evidence to impeach the testimony that Robert Mankus, Strong and Eatherton provided at the compensation proceeding, or whether he believed that their testimony at the criminal trial provided substantive evidence that he was employed by Robert Mankus at the time of the injrny. Similarly, the plaintiff does not indicate for what purpose he thought the out-of-state witness’ testimony was material to his case. The motion is devoid of any description of the nature of this testimony provided at the criminal trial.

Therefore, even were we to agree with the plaintiff that the board misconstrued his motion and employed an improper standard to review it, or failed to review it, we conclude that he has not demonstrated harm because he has failed to show that his motion was drafted adequately such that the board might have granted it.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Although the plaintiff asserts, in a caption in his appellate brief, that he is also challenging the commissioner’s granting of the fund’s motion to open the decision to award benefits, he provides no analysis challenging the propriety of the commissioner’s granting of that motion. Therefore, we conclude that the plaintiff has abandoned this claim and presume for the purposes of this appeal that the motion to open was granted properly. See State v. Sawyer, 279 Conn. 331, 342 n.11, 904 A.2d 101 (2006) (claims on appeal inadequately briefed are deemed abandoned).

       The plaintiff also asserts that in his opinion the commissioner improperly failed to discuss the contract. The plaintiff has not provided any authority, however, to suggest that the commissioner is bound to discuss every piece of evidence, no matter how indirectly related to a claim, in his finding. Because the plaintiff has failed to provide legal analysis, we decline to review the issue.

       In his appellate brief, the plaintiff again genericaily asserts that “[t]he change in testimony regarding the same set of issues and the same set of facts regarding the same parties absolutely could have and would have changed the result of the . . . [b]oard’s decision.”


author: DiPENTIMA, J.

text:
    STATE OF CONNECTICUT v. ALLEN ISABELLE
    (AC 28228)
    DiPentima, McLachlan and West, Js.

      Argued February 5
    officially released May 13, 2008

      Douglas J. Lewis, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, was Stephen J. Sedensky III, state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, J.

The defendant, Allen Isabelle, appeals from the judgments of conviction of reckless driving, failure to display number plates, failure to carry an insurance card and interfering with an officer. The reckless driving and interfering with an officer counts were tried to the jury, and the infractions of failure to display number plates and failure to carry an insurance card were tried to the court. On appeal, the defendant claims that the court abused its discretion by denying his motion in limine to introduce certain evidence. We conclude that the court did not abuse its discretion and, accordingly, affirm the judgments of the trial court.

The court and the jury reasonably could have found the following facts. On March 14, 2006, Bethel police Officers James Christos and Stephen Pugner were patrolling the streets of Bethel in a marked patrol car. At approximately 2:30 p.m., as they drove southwest on Plumtrees Road, they observed a dump truck towing a wood chipper on a trailer heading in the opposite direction. The dump truck appeared to be speeding and, as they drove past it, the officers could not determine whether it was displaying proper license plates. Christos turned his patrol car around, and the officers pursued the dump truck. The officers ordered the dump truck to stop near the intersection of Walnut Hill Road and Hoyt Road. Upon further observation, the officers determined that both the dump truck and trailer, in fact, were displaying license plates but that the trailer was obscuring the dump truck’s plates and that a metal object and dirt were obscuring the trailer’s plates.

Pugner exited the patrol car and approached the driver’s side door of the truck. As he approached the truck, Pugner observed a wire dangling from the rear of the trailer. Pugner asked the defendant, who was in the driver’s seat, for his operator’s license, vehicle registrations and insurance card. The defendant complied; however, the insurance card that he surrendered to Pugner had expired. Pugner also asked the defendant to shut off the truck’s engine and surrender the keys because he believed that the defendant had attempted to drive away from another Bethel police officer, Officer Michael Conroy, during a prior traffic stop. The defendant became agitated and refused to comply with Pugner’s request. Pugner then returned to the patrol car to check the validity and the history of the defendant’s license and registrations.

After the initial exchange between Pugner and the defendant, the officers conducted an inspection of the trailer. The officers observed the wire that Pugner had. noticed earlier, and it appeared to Pugner that the wire had been disconnected from the trailer’s independent brake system. They further observed that the wire was not connected to the dump truck or to any other source that could have provided power to the trailer’s brakes. In addition, the officers discovered that the trailer’s factory installed brake lights were inoperable, but the defendant had mounted on the trailer temporary brake lights that were functioning properly.

Following his inspection of the trailer, Pugner returned to the driver’s side door of the truck. Pugner asked the defendant to demonstrate whether the trailer’s brakes were operational. The defendant again refused to comply. Subsequently, Pugner informed the defendant that he intended to issue the defendant a citation and summons for reckless driving, driving with obstructed license plates and failing to carry a valid insurance card. Pugner, however, offered to drop the citation for reckless driving if the defendant could demonstrate that the trailer’s brakes functioned properly. The defendant declined Pugner’s invitation after unsuccessfully negotiating for a withdrawal of all the charges. Upon presentation of the citation and summons by Pugner, the defendant refused to divulge his social security number and, instead of signing his name, signed the summons with an “X.”

The officers called a tow truck to remove the defendant’s truck and trailer from the scene. The defendant finally relinquished the keys to his truck once the tow truck arrived, but he remained combative. At some point, he had exited his truck and repeatedly walked into the path of traffic, ignoring the officers’ instructions to stay off the road. Before the officers released him at the scene, the defendant warned the tow truck driver: “There’s still no brakes [on the trailer] with you towing it.”

The state filed an amended long form information charging the defendant with reckless driving in violation of General Statutes § 14-222 (a), failure to display numberplates in violation of General Statutes § 14-18 (a) (1) and (c),* 1* failure to carry an insurance card in violation of General Statutes § 14-13 (a) and interfering with an officer in violation of General Statutes § 53a-167a (a). After a trial on October 31 and November 1, 2006, the jury returned a verdict of guilty on the charges of reckless driving and interfering with an officer, and the court found the defendant guilty on the charges of failure to display number plates and failure to carry an insurance card. The court imposed a total effective sentence of thirty days imprisonment, execution suspended, and one year of probation with special conditions. The court also imposed a total fine of $440, plus fees and costs. This appeal followed.

The defendant claims that the court improperly precluded certain evidence as irrelevant. Pursuant to Practice Book § 42-15, the defendant filed a motion in limine dated November 1, 2006, seeking to introduce evidence that (1) the police officers lacked the authority to inspect the brakes on his trailer and (2) certain Bethel police officers harbored a bias against him that affected the credibility of the officers who testified. After a hearing, the court denied the defendant’s motion in limine, concluding that the proffered evidence was irrelevant.

Our standard of review for evidentiary rulings is well established. “[T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . [E]videntiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Arroyo, 284 Conn. 597, 637, 935 A.2d 975 (2007). “We will make every reasonable presumption in favor of upholding the trial court’s ruling . . . .” (Internal quotation marks omitted.) State v. St. John, 282 Conn. 260, 270, 919 A.2d 452 (2007).

“ [E]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Internal quotation marks omitted.) State v. Ervin, 105 Conn. App. 34, 37-38, 936 A.2d 290 (2007), cert. denied, 285 Conn. 918, 943 A.2d 475 (2008). “Moreover, [t]he proffering party bears the burden of establishing the relevance of the offered testimony. Unless a proper foundation is established, the evidence is irrelevant.” (Internal quotation marks omitted.) State v. Skidd, 104 Conn. App. 46, 63, 932 A.2d 416 (2007).

I

At the hearing on his motion in limine, the defendant proffered evidence that the police officers lacked the authority to inspect the brakes on his trailer. Specifically, he attempted to introduce the text of various sections of the General Statutes and the Regulations of Connecticut State Agencies. He argues that the statutes and regulations in question did not authorize the officers to conduct an inspection of the trailer and, therefore, the officers exceeded the scope of their authority by performing the inspection. He further argues that the officers exceeded the scope of their authority by issuing the citation for reckless driving because the defective mechanism that served as the basis of the citation was revealed through their unauthorized inspection.

Normally, the test of whether a police officer is acting within the scope of his or her duties or is engaging in a personal frolic is a factual question for the jury to determine on the basis of all the circumstances of the case. State v. Casanova, 255 Conn. 581, 593, 767 A.2d 1189 (2001). In this case, however, the defendant’s motion in limine sought a legal determination of the officers’ statutory authority rather than a factual determination as to the officers’ conduct. Thus, our review of the court’s interpretation of the statutes cited by the defendant is plenary. See State v. Bletsch, 281 Conn. 5, 16, 912 A.2d 992 (2007).

Our review of the statutes in question reveals that the officers clearly and unequivocally were authorized to perform the inspection of the defendant’s trailer. “[A] police officer has the duty to enforce the laws and to preserve the peace. Whether he is acting in the performance of his duty . . . must be determined in the light of that purpose and duty. If he is acting under a good faith belief that he is carrying out that duty, and if his actions are reasonably designed to that end, he is acting in the performance of his duties. . . . Although from time to time a police officer may have a duty to make an arrest, his duties are not coextensive with his power to arrest. [His] official duties may cover many functions which have nothing whatever to do with making arrests. . . . The phrase in the performance of his official duties means that the police officer is simply acting within the scope of what [he] is employed to do.” (Internal quotation marks omitted.) State v. Casanova, supra, 255 Conn. 592-93.

The defendant does not dispute the officers’ authority to enforce the statute that prohibits reckless driving, and we are not persuaded that the statutes and regulations cited by the defendant preempted or limited the officers’ authority to enforce that statute by limiting their authority to inspect the defendant’s trailer for a defective mechanism. Moreover, he has failed to articulate any logical connection between the legal question of the officers’ authority to inspect motor vehicles and the factual question of whether the defendant knowingly operated a motor vehicle with a defective mechanism. Accordingly, the defendant’s claim that the court improperly precluded the statutes and regulations from evidence is entirely without merit. We conclude that the court’s preclusion of the statutes and regulations from evidence was not an abuse of discretion.

II

The defendant also attempted to introduce evidence that certain Bethel police officers held a bias against him that affected the credibility of the officers who testified at trial. Specifically, the defendant proffered the testimony of Jeffrey Finch, Bethel chief of police, that, according to Finch, the defendant “is often at odds with the law.” The defendant also proffered an investigation report by Richard Dickinson, a Bethel police lieutenant, that suggested that Conroy had used profane language during an encounter with the defendant prior to March 14, 2006. The defendant concedes that Finch, Dickinson and Conroy were not present at the scene of the March 14, 2006 traffic stop of the defendant’s truck and trailer. He claims, however, that the proffered evidence demonstrated a sense of bias against the defendant among those officers that had filtered throughout the Bethel police department and affected the credibility of the officers who were at the scene and who testified during the state’s case-in-chief.

“The credibility of a witness may be impeached by evidence showing bias for, prejudice against, or interest in any person or matter that might cause the witness to testify falsely.” Conn. Code Evid. § 6-5. “The range of matters potentially giving rise to bias, prejudice or interest is virtually endless. . . . Because evidence tending to show a witness’ bias, prejudice or interest is never collateral . . . impeachment of a witness on these matters may be accomplished through the introduction of extrinsic evidence, in addition to examining the witness directly. . . . The scope and extent of proof through the use of extrinsic evidence is subject to the court’s discretion, however . . . and whether extrinsic evidence may be admitted to show bias, prejudice or interest without a foundation is also within the court’s discretion. . . .

“The offering party must establish the relevancy of impeachment evidence by laying a proper foundation . . . which may be established in one of three ways:

(1) by making an offer of proof; (2) the record independently may establish the relevance of the proffered evidence; or (3) stating a good faith belief that there is an adequate factual basis for [the] inquiry. . . . However, otherwise [r]elevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Brown, 273 Conn. 330, 341-42, 869 A.2d 1224 (2005). “It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case.” (Internal quotation marks omitted.) State v. Sanchez, 75 Conn. App. 223, 251, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003).

The defendant again has failed to articulate any logical connection between the proffered evidence and the fact he claims that evidence tends to support, namely, the lack of credibility of the officers who were at the scene on March 14, 2006, and who testified at the trial. The defendant correctly asserts that Pugner’s testimony laid a possible foundation for his inquiry into the potential bias of certain Bethel police officers who were not present during the March 14, 2006 traffic stop. The defendant failed, however, to demonstrate that any bias held by Finch, Dickinson or Conroy had tainted the testimony of the officers who were present at the March 14, 2006 traffic stop. None of the evidence in the defendant’s proffer, or in the record as a whole, provided a factual basis to conclude that a departmentwide bias against the defendant had existed among the Bethel police, and the defendant failed to state a good faith belief that such bias had existed. See State v. Brown, supra, 273 Conn. 341. His claim that a sense of bias had permeated the Bethel police department was purely speculative. “[I]t is entirely proper for a court to deny a request to present certain testimony that will further nothing more than a fishing expedition ... or result in a wild goose chase.” (Internal quotation marks omitted.) State v. Irizarry, 95 Conn. App. 224, 246, 896 A.2d 828, cert. denied, 279 Conn. 902, 901 A.2d 1224 (2006). The court correctly barred the defendant from “trying to put the whole police department on trial.” Accordingly, the court did not abuse its discretion by precluding the proffered evidence.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant further claims that the court abused its discretion in denying his motion to consolidate the charges in these two cases with a separate information that was pending before the court. At oral argument before this court, the defendant’s counsel conceded that during the pendency of this appeal, the defendant had pleaded guilty to the charges in the separate information and had paid the fines imposed by the court. Because those fines have been paid, the court may no longer open that judgment. See State v. Arpi, 75 Conn. App. 749, 752-53, 818 A.2d 48 (2003). Thus, no separate charges remain with which this case may be consolidated. Accordingly, there is no practical relief that the defendant may be afforded as to this claim, and, therefore, we decline to review it, as it is moot. See Gerlt v. South Windsor, 284 Conn. 178, 189, 931 A.2d 907 (2007).

       General Statutes § 14-222 (a) provides in relevant part: “No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks . . . recklessly .... [T]he operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section. . . .”

       General Statutes § 14-18 provides in relevant part: “(a) (1) Each motor vehicle for which one number plate has been issued shall, while in use or operation upon any public highway, display in a conspicuous place at the rear of such vehicle the number plate. . . .
      “(c) Such number plates when displayed upon motor vehicles shall be entirely unobscured and the numerals and letters thereon shall be plainly legible at all times. . . .”

         General Statutes § 14-13 (a) provides in relevant part: “The certificate of registration and any automobile insurance identification card for the vehicle issued pursuant to section 38a-364 shall be carried in the motor vehicle at all times when it is being operated on a public highway, except as otherwise provided by statute. . . .”

       General Statutes § 53a-167a (a) provides in relevant part: “A person is guilty of interfering with an officer when such person obstructs, resists, hinders or endangers any peace officer ... in the performance of such peace officer’s . . . duties.”

       As part of the defendant’s probation, the court required the defendant to have all his commercial vehicles fully insured and properly equipped for safety and to submit his commercial vehicles to random inspections.

       Specifically, the defendant sought to introduce General Statutes §§14-103,14-162 and 14-163c, and § 14-163c-9 (a) of the Regulations of Connecticut State Agencies.