author: BEAR, J.

text:
    DOLLY ROMPREY ET AL. v. SAFECO INSURANCE COMPANY OF AMERICA
    (AC 31962)
    Beach, Bear and West, Js.

      Argued January 3
    officially released June 21, 2011

      Lisa J. Mainolfi, for the appellants (plaintiffs).

      Andrew S. Turret, with whom was Cara D. Joyce, for the appellee (defendant).
   Opinion

BEAR, J.

The plaintiffs, Dolly Romprey and Peter Romprey, appeal from the summary judgment rendered by the trial court in favor of the defendant, Safeco Insurance Company of America, in their action against the defendant for underinsured motorist benefits. On appeal, the plaintiffs claim that the trial court improperly granted the defendant’s motion for summary judgment (1) after finding that the plaintiffs did not toll the three year statute of limitations period in accordance with General Statutes § 38a-336 (g) (1), (2) because the provisions of the applicable insurance policy are invalid and unenforceable, (3) because the defendant breached its contract with the plaintiffs, and (4) because the defendant is estopped from enforcing the terms of its policy. We affirm the judgment of the trial court.

The plaintiffs commenced this action on February 26,2008. The plaintiffs’ complaint alleges the following. On November 16, 2004, Dolly Romprey was involved in a motor vehicle accident in which the vehicle she was driving collided with a vehicle driven by Donna Kempton. The collision was caused by Kempton’s negligence. At the time of the accident, Dolly Romprey was insured under an automobile insurance policy issued by the defendant.

The plaintiffs sought to recover from the defendant under the uninsured/underinsured motorist provisions of the automobile insurance policy issued by the defendant to the plaintiffs. In count one of the complaint, Dolly Romprey sought compensation for her own alleged injuries, and, in count two of the complaint, Peter Romprey sought compensation for loss of spousal consortium.

The defendant filed an answer and special defenses in which it asserted, inter alia, that the plaintiffs’ cause of action was time barred pursuant to § 38a-336 (g) (l). On September 24, 2008, the defendant filed a motion for summary judgment. The plaintiffs responded by objecting to the motion for summary judgment but, in the alternative, requested that the court compel arbitration in accordance with the policy of insurance. In support of their objection, the plaintiffs submitted two unauthenticated copies of letters to the defendant, which were signed by a paralegal from the office of the plaintiffs’ attorney. The first letter, which is dated December 12, 2005, states: “In connection with the above referenced file, enclosed please find all reports and medical bills thus far. Please be advised that Ms. Romprey is having surgery and all other medical documentation will be forwarded upon receipt. Also, enclosed please find the Declaration page for Donna Kempton. Please be advised that we have exhausted Ms. Kempton’s policy.” The second letter, dated February 24, 2006, states: “Pursuant to Connecticut General Statute Section 38a-336 (g) (1), if applicable, consider this a formal demand for arbitration in the above-referenced matter. Furthermore, kindly provide this office with a copy of Ms. Romprey’s automobile policy, which was in effect on the date of accident.” The plaintiffs also submitted an unauthenticated document entitled “SETTLEMENT STATEMENT,” which indicates that the plaintiffs received a $25,000 settlement from Kempton.

On December 4, 2009, the court granted the defendant’s motion for summary judgment. In the trial court, the defendant asserted that it was entitled to summary judgment because the plaintiffs did not commence their action within three years of the date of the accident as required by the policy. The plaintiffs responded in relevant part that (1) the defendant had notice of the plaintiffs’ claim within the three year limitations period, (2) the plaintiffs tolled the three year limitations period by making a written demand for arbitration within 180 days of exhausting the limits of the tortfeasor’s liability policy, (3) the defendant breached the insurance contract by failing to respond to the plaintiffs’ demand for arbitration and by failing to provide the plaintiffs with a copy of their insurance policy, and, therefore, the three year contractual limitations period was inapplicable, and (4) there was a genuine issue of material fact as to whether the defendant advised the plaintiffs that the three year period applied.

With respect to the three year limitations period, the court determined that there was no genuine issue of fact that the plaintiffs commenced their action more than three years after the date of the accident. It found that the defendant was entitled to judgment as a matter of law unless there was evidence to support the application of the tolling provision. The court then stated that, under the plain language of the policy, the tolling provision applied only in the case of a claim involving an underinsured, as opposed to an uninsured, motor vehicle. It determined that for the plaintiffs to come within the policy’s tolling provision, they must establish that the sum of the limits of all bodily injury liability policies applicable to Kempton’s vehicle at the time of the accident was less than the limit of liability for the underinsured motorist coverage under their policy. The court noted that “[t]he plaintiffs have submitted an unauthenticated copy of a document entitled ‘SETTLEMENT STATEMENT,’ which appears to indicate that the plaintiffs received a $25,000 settlement from Kempton. There is no indication, however, whether this amount was paid by an insurer or, if it was, whether it represents the full amount of Kempton’s liability policy limits. Without any evidence indicating whether Kempton was insured and, if so, whether her bodily injury liability limits were less than $500,000, it is impossible for the court to determine that the present claim is one ‘involving an underinsured motor vehicle’ and, in turn, that the policy’s tolling provision applies.” In a footnote, the court stated that “[t]he plaintiffs have submitted as their exhibit A an unauthenticated letter from a paralegal in their attorney’s office indicating that ‘we have exhausted Ms. Kempton’s policy.’ As an out-of-court statement, however, this constitutes hearsay inadmissible to prove that Kempton had an insurance policy or, if so, whether it was exhausted.”

Although the court determined that the plaintiffs had not proven that their claim involved an underinsured vehicle, and therefore summary judgment in favor of the defendant should be granted, the court then “assume[d] that the present claim involve[d] an underinsured motor vehicle” and determined “that the plaintiff[s] ha[d] failed to submit evidence to establish that the two prongs of the tolling provision [had] been satisfied. As the language [of the plaintiffs’ insurance policy] quoted [previously] indicates, in order to toll the three year limitations period, the plaintiffs would first have to have notified the defendant ‘prior to expiration of the three year period, in writing, of any claim the [plaintiffs] may have for [u]nderinsured [m]otorists [c]overage.’ ” After analyzing this court’s opinion in Dorchinsky v. Windsor Ins. Co., 90 Conn. App. 557, 877 A.2d 821 (2005), the trial court concluded as to the first prong of the tolling statute that “none of the documents submitted by the plaintiffs [made] any reference to an underinsured motorist claim, or any other information indicating what type of claim the claim number refers to. Like the plaintiff in Dorchinsky, therefore, the plaintiffs in the present action have failed to produce any evidence indicating that, within three years of the accident, they provided notice in writing of any claim for underinsured motorist coverage.”

With respect to the second prong of the tolling provision, the court found that the documents offered by the plaintiffs did not establish that the settlement with Kempton exhausted the limits of her policy. “Accordingly, the plaintiffs have provided no evidentiary basis from which the court could conclude that a demand for arbitration was made within 180 days of exhaustion. Because the plaintiffs have failed to submit evidence indicating that they satisfied either prong of the policy’s tolling provision or that Kempton’s vehicle was underinsured, there is no basis for the court to conclude that the three year contractual limitations period was tolled.”

Additionally, the court found that the plaintiffs did not provide evidentiary support for their argument that the defendant had breached the insurance contract by failing to respond to the plaintiffs’ demand for arbitration and by failing to provide the plaintiffs with a copy of the insurance policy. The court further found that there was no genuine issue of material fact as to whether the defendant had advised the plaintiffs that the three year statute of limitations applied. Accordingly, the court rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

“The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. • • • The test is whether a party would be entitled to a directed verdict on the same facts.” (Citation omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 252 Conn. 193, 201, 746 A.2d 730 (2000). “A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as a trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.” (Internal quotation marks omitted.) Coss v. Steward, 126 Conn. App. 30, 40, 10 A.3d 539 (2011).

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; emphasis added; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996). “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact . . . .” (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). “Summary judgment may be granted where the claim is barred by the statute of limitations.” Doty v. Mucci, supra, 806. “Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

In the present case, the relevant language of the insurance policy states: “All claims or suits under [the uninsured and underinsured motorist provisions] of this policy must be brought within three years of the date of the accident. However, in the case of a claim involving an underinsured motor vehicle, the insured may toll any applicable limitation period by:

“1. Notifying us prior to expiration of the three year period, in writing, of any claim the insured may have for Underinsured Motorists Coverage; and
“2. Commencing suit or arbitration proceedings not more than 180 days from the date of exhaustion of the limits of liability under all automobile bodily injury bonds or policies applicable at the time of the accident by settlements or final judgments after any appeals.” (Emphasis in original.)

The motor vehicle accident involving Kempton and Dolly Romprey occurred on November 16, 2004, and this action was filed more than three years after the date of the accident. The plaintiffs had not commenced any arbitration proceedings.

I

The plaintiffs first claim that the court improperly granted the defendant’s motion for summary judgment by finding that the plaintiffs had not tolled the three year statute of limitations period allowed by § 38a-336 (g) (1) and set forth in the policy. After reviewing the record in this case, we agree with the court that the plaintiffs did not demonstrate that the claim is one involving an underinsured motor vehicle.

The plain language of the policy provides that any action for underinsured motorist benefits commenced more than three years after the underlying accident is time barred, unless the two tolling provisions are satisfied. Under the language of the policy, an “underinsured motor vehicle” is defined as “a land motor vehicle or trailer of any type for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the limit of liability for this coverage.”

Therefore, in order for the policy’s tolling provision to apply, the plaintiffs must first demonstrate that Kempton had an insurance policy with a certain coverage and that the limits of Kempton’s coverage were exhausted by payment to the plaintiffs. “[E]xhaustion of the liability limits of the tortfeasor’s policy is a necessary precondition to the recovery of underinsured motorist benefits . . . .” (Citations omitted.) Serrano v. Aetna Ins. Co., 233 Conn. 437, 452, 664 A.2d 279 (1995), We agree with the trial court that the plaintiffs did not submit any competent evidence establishing that Kempton had an insurance policy, that it provided for coverage in a certain amount and that such coverage was exhausted by the settlement.

The “Settlement Statement” submitted by the plaintiffs, which was unauthenticated but which the trial court examined, does not specify whether the $25,000 paid to the plaintiffs was paid by Kempton’s insurer and, if so, whether it represents the extent of Kempton’s policy limits. Without evidence that Kempton had a policy that was exhausted by payment to the plaintiffs, it was impossible for the court to determine whether the plaintiffs’ claims involved an underinsured motor vehicle. Therefore, it was impossible for the court to determine whether the plaintiffs raised a genuine issue of material fact about whether the contractual tolling provisions were applicable and were satisfied by the plaintiffs.

Furthermore, in an effort to prove that Kempton was insured and her policy of insurance was exhausted, the plaintiffs cite the December 12, 2005 letter to the defendant from a paralegal in their attorney’s office that states, in relevant part: “Please be advised that we have exhausted Ms. Kempton’s policy.” The court described this letter as “unauthenticated” and as “inadmissible” hearsay. The plaintiffs argue that the court’s rejection of the letter was improper.

“[0]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these 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. ... In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) State v. Hart, 118 Conn. App. 763, 786, 986 A.2d 1058, cert. denied, 295 Conn. 908, 989 A.2d 604 (2010).

Practice Book § 17-45 provides in relevant part: “A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .” “A party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Emphasis in original.) Barlow v. Palmer, 96 Conn. App. 88, 92, 898 A.2d 835 (2006). “Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.” Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-203, 663 A.2d 1001 (1995).

“Practice Book § 380 [now § 17-45], although containing the phrase ‘including but not limited to,’ contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable. Practice Book §§ 380 through 382 [now §§17-45 through 17-47] set forth detailed requirements to ensure that affidavits in support of summary judgment are proper. Those rules would be meaningless if they could be circumvented by filing unsworn letters written to an attorney for a party in support of or in opposition to summary judgment.” United Services Automobile Assn. v. Marburg, 46 Conn. App. 99, 107-108, 698 A.2d 914 (1997).

Consequently, before a document may be considered by the court in support of a motion for summary judgment, “there must be a preliminary showing of [the document’s] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . .” Conn. Code Evid. § 9-1 (a), commentary. “Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.” New Haven v. Pantani, 89 Conn. App. 675, 679, 874 A.2d 849 (2005).

Because our rules of practice and case law require, inter alia, that any opposition to a motion for summary judgment shall be based on authenticated documents and evidence provided in sworn affidavits, we cannot agree with the plaintiffs that the court abused its discretion in rejecting the unauthenticated documents offered by the plaintiffs. See Barlow v. Palmer, supra, 96 Conn. App. 92. Without any competent evidence indicating that Kempton’s policy had been exhausted and that the tolling provision of the policy was applicable, we decide that the court properly concluded that it was impossible to determine that the plaintiffs’ claims involved an “underinsured motor vehicle” and, consequently, that the provision concerning notification of an underinsured motorist claim was tolled.

II

The plaintiffs argue that the defendant’s policy of insurance does not conform to § 38a-336 (g) (1) and, therefore, is invalid. The plaintiffs further argue that, because the policy is invalid, the applicable statute of limitations period is six years as prescribed by General Statutes § 52-576. We are not persuaded.

As permitted by § 38a-336 (g) (1), the plain language of the policy provides that any action for underinsured motorist benefits commenced more than three years after the underlying accident is time barred, unless the accident involves an underinsured motor vehicle and the tolling provisions are satisfied.

The plaintiffs contest the validity of the second prong of the policy’s tolling provision. The plaintiffs note that the defendant’s policy requires that a plaintiff must commence suit or arbitration proceedings not more than 180 days from the date of exhaustion, whereas § 38a-336 (g) (1) requires that aplaintiff must commence suit or demand arbitration under the terms of the policy not more than 180 days from the date of exhaustion. The plaintiffs argue that the policy requirement that an underinsured policyholder must “commence arbitration” is invalid because it is more restrictive than the provision in § 38a-336 (g) (1) that an underinsured policyholder may toll any applicable limitations period “by commencing suit or demanding arbitration under the terms of the policy . . . .” They further argue that because the contract provision is invalid, the three year limitation period that they failed to satisfy is not applicable, and the general contract six year limitation period thus applies to their claims. See Tracy v. Allstate Ins. Co., 76 Conn. App. 329, 336, 819 A.2d 859 (2003), aff'd, 268 Conn. 281, 842 A.2d 1123 (2004). We are not persuaded by this argument, however, because, as we explained in part I of this opinion, the plaintiffs failed to present any competent evidence to establish that Kempton had a policy, that the policy limits existed in a specific amount, that the settlement exhausted that coverage and, therefore, that the claim was one involving an underinsured motor vehicle. Because the plaintiffs have failed to establish this threshold requirement, the tolling provision of the policy has not been implicated, and we need not address its validity or whether the plaintiffs properly demanded arbitration.

Ill

The plaintiffs additionally argue that the defendant breached its contract with the plaintiffs by failing to respond to the plaintiffs’ initial demand for arbitration and by failing to provide the plaintiffs’ counsel with a copy of the insurance policy. The plaintiffs assert that, because of the breach, the three year contractual limitations period is inapplicable and the six year limitations period set forth in § 52-576 applies. We disagree.

First, we note, as did the trial court, that nowhere in the policy is there any provision that a six year limitations period shall apply if the defendant fails to respond to a demand for arbitration or to provide a copy of the applicable insurance policy. Second, the plaintiffs offered only assertions of fact to support their argument that the defendant failed to respond to their demand for arbitration and request for a copy of the policy. To support these assertions, the plaintiffs offered the unauthenticated February 24, 2006 letter to the defendant from a paralegal in the office of the plaintiffs’ attorney. While it is true that, in considering a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party, without competent evidence to support the claims, however, the plaintiffs had not raised a genuine issue of material fact. See Zielinski v. Kotsoris, supra, 279 Conn. 319. “To establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue. . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.” (Citations omitted.) Trotta v. Branford, 26 Conn. App. 407, 412, 601 A.2d 1036 (1992). The plaintiffs did not submit any sworn affidavits or certified or otherwise authenticated documents to establish any genuine issue of material fact. Accordingly, the court properly concluded that there was no evidentiary basis to support the argument that the defendant breached its contract with the plaintiffs.

IV

Finally, the plaintiffs argue that there is a genuine issue of material fact as to whether the defendant should be estopped from raising the defense of the time limit on suit in the policy because, on the basis of the defendant’s conduct, the plaintiffs reasonably believed that the defendant had waived its right to rely on that provision. We are not persuaded.

“Estoppel has its roots in equity and stems from the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse. . . . The modem estoppel in pais is of equitable origin, though of equal application in courts of law. It is much more than a rule of evidence. It establishes rights; it determines remedies. An equitable estoppel does not so much shut out the tmth as let in the tmth, and the whole tmth. Its office is ... to show what equity and good conscience require, under the particular circumstances of the case . . . .”

“It would be unjust to foreclose an insured’s ability to assert an estoppel theory because the insured has not obtained a written waiver when other actions of the insurance carrier lead the insured reasonably to believe that the statutory limitation on suit provision or any other provision of an insurance policy will not be enforced.” (Citations omitted; internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 383-84, 673 A.2d 77 (1996).

“[E]stoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . . Moreover, it is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Citations omitted; internal quotation marks omitted.) Id., 385-86.

As an exhibit to the plaintiffs’ supplemental objection to the defendant’s motion for summary judgment on August 7, 2009, the plaintiffs submitted an affidavit of their attorney, stating that, in 2007, she made numerous attempts to contact the insurance adjuster assigned to handle the case. She further averred that she spoke with the insurance adjuster in December, 2007, when she was not advised that the claim was being denied “for failure to prosecute according to the policy, but value was in dispute.”

We conclude that the mere fact that the plaintiffs’ counsel spoke with the insurance adjuster following the expiration of the three year limitations period and was not advised that the claim would be denied is insufficient to sustain a claim of estoppel, as “silence will not operate as [an] estoppel absent a duty to speak.” (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., supra, 236 Conn. 387. Viewing the evidence in the light most favorable to the plaintiffs, we conclude that the plaintiffs failed to offer any evidence to demonstrate any misleading conduct by the defendant within the limitations period on which the plaintiffs reasonably could have relied to support their belief that the limitations provision would not be enforced. Furthermore, the plaintiffs have offered no evidence that they changed their position in reliance on those facts, thereby incurring some injury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs claim that the action was commenced on February 15, 2008. The trial court found that the marshal’s return indicates that process was served on the defendant on February 26, 2008, but “because the result of the present motion is the same regardless of which of the two dates is correct, the court need not resolve the conflict between the parties’ statements and the marshal’s return.”

       The plaintiffs’ complaint alleges that Dolly Romprey had insurance coverage from the defendant only under the uninsured motorist provisions of the policy. However, the relevant provision of the insurance policy contains references both to uninsured and underinsured motorist coverage. There is no dispute that the tortfeasor had insurance coverage on her motor vehicle, and the plaintiffs alleged in pleadings other than the complaint the payment to them of some or all of the tortfeasor’s policy coverage amounts in a settlement. Thus, the plaintiffs’ cause of action against the defendant must be based on the underinsured motorist coverage provided in the policy from the defendant. The trial court analyzed the plaintiffs’ claims pursuant to such underinsured coverage. In this opinion, therefore, we also refer solely to the underinsured, and not to the uninsured, coverage provided in the policy.

       General Statutes § 38a-336 (g) (1) provides: “No insurance company doing business in this state may limit the time within which any suit may be brought against it or any demand for arbitration on a claim may be made on the uninsured or undermsured motorist provisions of an automobile liability insurance policy to a period of less than three years from the date of accident, provided, in the case of an underinsured motorist claim the insured may toll any applicable limitation period (A) by notifying such insurer prior to the expiration of the applicable limitation period, in writing, of any claim which the insured may have for underinsured motorist benefits and (B) by commencing suit or demanding arbitration under the terms of the policy not more than one hundred eighty days from the date of exhaustion of the limits of liability under all automobile bodily injury liability bonds or automobile insurance policies applicable at the time of the accident by settlements or final judgments after any appeals.”

       Dolly Eomprey’s uninsured-underinsured motorist limit was $500,000 per person and per accident.

       Because we have determined that the plaintiffs have offered no competent evidence to establish that the claim is one involving an underinsured motor vehicle, we need not address whether the plaintiffs have submitted evidence to establish whether the two prongs of the tolling provision have been satisfied.

       In Barlow, this court stated that unsworn deposition testimony “could have been admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where, as here, both parties submitted uncertified deposition transcripts. Therefore, a court properly could consider such a submission without objection.” Barlow v. Palmer, supra, 96 Conn. App. 92. The plaintiffs cite this case for the proposition that a court may consider unauthenticated evidence in ruling on a motion for summary judgment. This court, however, ultimately affirmed the trial court’s granting of the motion for summary judgment, stating that “we are reluctant to find that the trial court incorrectly insisted on certified transcripts to support an evidentiary finding when the rule provides that such documentation shall be supplied.” Id. The plaintiffs have not cited any authority suggesting that a failure of a trial court to consider unauthenticated evidence constitutes an abuse of discretion.

       We note that in DiPietro v. Farmington Sports Arena, LLC, 123 Conn. App. 583, 2 A.3d 963, cert. granted, 299 Conn. 920, 10 A.3d 1053 (2010), this court concluded that, in the course of a summary judgment proceeding, plenary review applies to a trial court’s ruling concerning the admissibility of expert testimony. Id., 610-12. Following our decision, the defendants in that case requested and were granted certification to appeal to our Supreme Court on that issue. See DiPietro v. Farmington Sports Arena, LLC, 299 Conn. 920, 10 A.3d 1053 (2010).

       Additionally, the plaintiffs did not demonstrate the existence of any genuine issue of material fact about whether suit or arbitration proceedings were commenced not more than 180 days after the alleged exhaustion of Kempton’s coverage and that they had satisfied the second tolling provision.

       General Statutes § 52-576 (a) provides in relevant part: “No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues . .

       The accident occurred on November 16,2004, and the plaintiffs’ counsel avers that she spoke with the insurance adjuster in December, 2007.


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KEVIN MYERS
    (AC 32823)
    Bishop, Alvord and Bear, Js.

      Argued March 11
    officially released June 21, 2011

      Raymond L. Durelli, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robin D. Krawczyk, senior assistant state’s attorney, for the appellee (state).
   Opinion

ALVORD, J.

The defendant, Kevin Myers, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l) and two counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). On appeal, the defendant claims that (1) the trial court improperly instructed the jury on (a) the legal definition of abduction and (b) the specific intent necessary to convict the defendant of kidnapping, and (2) the evidence was insufficient to support the defendant’s conviction of two counts of kidnapping in the first degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 a.m. on July 8, 2007, the victims, DL and AW, returned to DL’s apartment in East Hartford after spending the day attending Fourth of July barbeques. They intended to retrieve money for gasoline before attending an after-hours club. While inside the apartment building, they heard banging at the back door, and DL saw a person outside dressed in dark clothing and wearing a black mask. With the exception of the individual kicking the door, AW saw no other individuals in the neighborhood. After the banging stopped, the victims exited the building via the front door.

DL walked to her car in front of AW but saw “somebody creep up behind [AW] with a knife [wearing] all black, saying, [g]et the fuck in the car.” The masked defendant held AW, with the knife at her neck. AW had possession of the keys, but was unable to open the car from the passenger side, so she “threw the keys on top of the car,” and DL opened the doors. At the defendant’s command, DL got into the car because she “felt like [she] had no choice” and because she “was driving, [AW] threw [her] the keys, and he had a knife . . . .” DL entered the driver’s side of the car, and the defendant and AW got into the backseat of the car. AW gave the defendant the contents of her pocket, $6, and asked what he wanted. He told DL to drive, and directed her to an abandoned parking lot. During this time, DL saw AW performing oral sex on the defendant through the rearview mirror, which the defendant “made [her]” do and which she did because she was “scared [and] didn’t know what to do.” AW testified that she “was in fear for [her] life, and [she] did what he wanted . . . .”

When the car reached the lot, the defendant told DL to pull over, turn off the engine and the headlights, and get into the backseat. She climbed over the front seat to enter the backseat, while the defendant held the knife up in one of his hands. At this time, the defendant demanded anal sex. As the defendant subjected AW to vaginal intercourse, she screamed, which prompted DL to attack the defendant. AW was able to escape from the car and run to a house with its lights on, but “there was nobody home . . . .” She testified that aside from this house, the neighborhood was “pitch black” and that at the second house the resident said that it “wasn’t [his or her] problem . . . .” AW continued until she found a house in which the occupants were willing to allow her to enter and to call 911. The defendant also fled, allowing DL to close the doors, lock the car, call 911 and drive away from the scene.

Meanwhile, East Hartford police Sergeant Edward Perkins was driving in the neighborhood and noticed a male in dark clothing sprinting across the street, the male increasing his speed upon seeing the marked police car. With the help of another officer, Perkins apprehended the male, who was identified as the defendant. Simultaneously, Perkins was notified of a sexual assault in the vicinity, reported by AW, and he met with AW, whose description of the perpetrator matched that of the defendant. As the defendant was being arrested, the police dispatcher received DL’s call. The dispatcher convinced DL to travel to the police station to make a statement.

AW was taken to a hospital, but DL was not. A sexual assault evidence kit was administered on AW. The police investigated the crime scene and found a gold earring with DL’s name on it, as well as “a couple of box cutter type knives” close to the scene. Although none of the latent prints taken from the car were matched to the defendant, a sample from AW’s vaginal swab showed results “consistent with [the defendant] or another member of the same paternal lineage being the source . . . .”

The defendant was charged with two counts of sexual assault in the first degree and two counts of kidnapping in the first degree. Both victims testified, as did the officers and crime scene investigators involved in the case. At the close of the state’s case and after the jury’s verdict, the defendant moved for a judgment of acquittal, which was denied. The defendant was convicted of one count of sexual assault in the first degree and two counts of kidnapping in the first degree and was sentenced to eighteen years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

On appeal, the defendant first claims that the court improperly instructed the jury on (1) the legal definition of abduction and (2) the specific intent necessary to convict the defendant of kidnapping. We conclude that the defendant waived the claim with respect to the definition of abduction and that it is not reasonably possible that the specific intent instruction misled the jury.

The following additional facts are relevant to the defendant’s claims of instructional error. Prior to finalizing the jury charge, the court gave the state and the defense a copy of the first half of the charge on February 17, 2009, which included the entire charge absent the specific offenses, and provided counsel the balance of the instructions regarding the specific offenses on February 18, 2009. On February 19, 2009, both the state and the defendant participated in a charge conference, after which a second draft was produced. Neither party took exception to the final charge. The jury was provided instructions from the court in three instances: (1) the court read aloud, verbatim, the approved, written jury charge; (2) the jurors were provided a copy of the jury charge to which they could refer during deliberations; and (3) the court responded to jury inquiries made during deliberations. The relevant portion of the charge, relating to the kidnapping charges, cited § 53a-92, providing in relevant part that “[a] person is guilty of kidnapping in the first degree when he abducts another person and restrains the person abducted with intent to violate or abuse her sexually.” See footnote 2 of this opinion. The charge included the statutory definition of “[a]bduct [which] means to restrain a person with the intent to prevent her liberation by using or threatening to use physical force or intimidation.” See General Statutes § 53a-91 (2). Both “physical force” and “intimidation” were defined as holding their “everyday meaning,” and, thus, the charge provided that intimidation “requires that the defendant’s words or actions place the complainant in a state of fear.”

The element of intent again was emphasized, the charge providing that “the defendant [must have] abducted the complainant with the specific intent to violate or abuse her sexually. ... It is not necessary [in a kidnapping charge] that any actual sexual violation or abuse be proved, as long as you determine that the defendant intended to violate or abuse the complainant sexually, and abducted and restrained the complainant with that specific intent. Please refer back to the instruction on specific intent.” Immediately after this instruction stating explicitly the simultaneous nature of the intent and the abduction, the charge provided in summary that “the [s]tate must prove beyond a reasonable doubt that the defendant: (1) restrained the complainant; (2) did so without her consent; (3) specifically intended to prevent her liberation; (4) did so by using or threatening to use physical force or intimidation; and (5) that he intended to violate or abuse the complainant sexually.” After the court read the jury charge, it again asked if counsel had any exceptions to the charge, and the defense counsel answered, “No, Your Honor.”

During deliberations, the jury posed three questions. With regard to what constituted “the use or threat of physical force or intimidation,” the jury asked, “the use of force or the threat of the use of force, is [that] threat of the use of force on—if one complainant is influenced by the threat of the use of force on another complainant as opposed to the threat of the use of force on him or herself, does that qualify” (intimidation question)? The jury also inquired: “[t]he degree to which intent exists, is it reasonable that the intent could have turned from general intent to commit a crime to the intent to commit a sexual assault during the process? So, my specific hypothetical is, if there was no intent to assault [DL] until the car was stopped, and then if the ordering of [DL] to move from the front seat to the backseat was with the intent to cause a sexual assault, would that movement . . . constitute the movement required for the kidnapping charge? . . . [D]id it have to be planned out the whole time or could it have been a somewhat spontaneous change in intent during the event” (specific intent question)?

The court dismissed the jurors after they related their questions and discussed the answers with the attorneys for both parties. In discussion with the attorneys, the court stated that, in response to the intimidation question, “we’re universally agreed that the answer to that is no ... .” The defense responded in the affirmative and stated that “it’s in the instruction. As long as we’re giving them information which is already in the instruction, I’m okay with that. I think if we start supplementing it with additional explanation, I think that’s when we could get into problems.” Further, the court stated to both attorneys that it would provide the following answer to the specific intent question: “the answer is, essentially, yes, there’s no minimum time.” Neither attorney responded directly to this statement.

The jurors returned, and the court stated that “one [question posed by the jury] involves the use of force or threat on another complainant, if it influenced the complainant not threatened. The short answer to that is no. ... I would again refer you to the [written charge defining the use or threat of use of force or intimidation]. . . . The state must prove the defendant prevented the liberation of the complainant by using or threatening to use physical force or intimidation. . . . And that would be force against the complainant or acts that caused the complainant to be intimidated.” The foreperson indicated that the jury, in fact, was following along with the written charge as instructed by the court.

The court also stated that “there is no time limit to the formation of specific intent; it may be instantaneous. Whether it comes from nowhere, or, you know, it’s just a spontaneous idea . . . whether one is engaging in a general intent offense or whether one is just walking down the street. You can have instantaneous specific intent.” The foreperson indicated affirmative understanding of the explanation. The court then dismissed the jury and asked both the defendant and the state if there were “[a]ny exceptions, criticisms [of the court’s answers to the jury’s questions]?” The defense counsel stated, “[n]o.”

A

The defendant’s first claim, which is that the trial court improperly instructed the jury on the legal definition of abduction, arises from the court’s response to one of the jury questions. The defendant claims that, inter alia, “[t]here is a reasonable possibility that [the court’s answer to the intimidation question] misled the jurors into believing that, if the defendant’s words or acts directed at AW influenced or intimidated DL, then the state had met its burden . . . .” The state argues that the defendant waived any claim regarding the adequacy of this instruction. In response, the defendant contends that his counsel did not participate meaningfully in crafting the supplemental instruction and that “the defendant expressly alerted the court of the danger of supplementing the language of § 53a-91.” We agree with the state, as we believe that the additional comments made by the court “essentially repeated” the instructions that the court had already given and to which the defendant had agreed.

Our Supreme Court recently held in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), that “when the trial court provides counsel with a copy of the proposed instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.” Id., 482-83. Accordingly, in this case, any challenge to the written charge or the reading thereof was waived because (1) the defendant was provided with a copy of the draft jury charge, (2) the defendant had a meaningful opportunity to review it, (3) there was a conference with the court during which the court solicited comments, (4) the parties made suggestions and modifications resulted, and (5) the defendant affirmatively accepted the charge. See id.

Thus, we must assess only whether the defendant waived a claim challenging the supplemental answer provided in response to the jury’s intimidation question. We are not persuaded that stating that “[t]he short answer to that is no,” in addition to the court’s brief explanation, departed with any significance from the original charge as written, which had been approved by the defendant under circumstances previously discussed. We conclude, therefore, under the facts of this case, that the defendant waived the claims of instructional error with respect to the jury instructions on the definition of abduction.

B

The defendant also argues, inter alia, that the trial court improperly instructed the jury on the specific intent necessary to find him guilty of kidnapping because the court’s answer to a jury question blurred the distinction between the different intents associated with kidnapping. He also contends that when “summarizing the charge, the trial court ‘dropped’ the requirement that the state must prove that the defendant had the intent to violate or abuse the [victims] sexually at the time of the abduction.” We conclude that it is not reasonably possible that the specific intent instruction misled the jury.

The defendant acknowledges that he took no exception to the portions of the charge challenged on appeal. The defendant requests review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved constitutional claim under Golding “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. We conclude that the claims are reviewable because the record is adequate for review and the claims are of constitutional magnitude. See State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002) (“[a]n improper instruction on an element of an offense ... is of constitutional dimension” [internal quotation marks omitted]). We further conclude, however, that the defendant’s claims fail under Golding's third prong.

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Internal quotation marks omitted.) State v. Nelson, 118 Conn. App. 831, 858, 986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010).

The supplemental explanation as to the formation of specific intent is a correct statement of the law and must be read in context with the entirety of the jury charge. The court described twice in its charge that the defendant had to abduct the victims with concurrent intent to abuse the victims sexually. We are not persuaded that, by summarizing the elements of the offense or answering the question as it did, the court undermined its previous instructions as to required timing, and, thus, it is not reasonably possible that the jury was misled. Our Supreme Court has stated previously that “[a]s long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... [a reviewing court] will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Kitchens, supra, 299 Conn. 455.

In this case, the totality of the court’s jury charge, considered in conjunction with the fact that the jurors could consult the written copy of the court’s charge, eliminated the possibility that any reasonable juror could have interpreted the instructions as not requiring the specific intent at the time of the abduction. Our reasoning applies whether the jury construed the abduction as having occurred at the time the victims were forced into the car or at the time DL moved within the car. Accordingly, this claim fails under the third prong of Golding.

II

The defendant next claims that the evidence was insufficient to support his conviction of two counts of kidnapping in the first degree. Specifically, the defendant claims that (1) there was insufficient evidence to prove beyond a reasonable doubt that he restrained DL with the intent to prevent her liberation by using or threatening to use physical force or intimidation and (2) there was insufficient evidence to prove beyond a reasonable doubt that he abducted either victim with the intent to sexually assault them at the time of the abduction.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. McGee, 124 Conn. App. 261, 272, 4 A.3d 837, cert. denied, 299 Conn. 911, 10 A.3d 529 (2010).

A

The defendant claims that there is insufficient evidence to sustain his conviction of first degree kidnapping because the state did not present sufficient evidence for the jury to conclude that he restrained DL with the intent to prevent her liberation by using or threatening to use physical force or intimidation. We disagree.

To find the defendant guilty of kidnapping in the first degree in violation of § 53a-92, it was necessary for the jury to find, beyond a reasonable doubt, that the defendant had abducted the victim and restrained her with the intent to abuse her sexually. See footnote 2 of this opinion. Section 53a-91 (2) defines “abduct” as “to restrain a person with intent to prevent his liberation by . . . (B) using or threatening to use physical force or intimidation.” The defendant claims that the evidence was insufficient to show that DL got into the car because of the use or threat of force or intimidation. The defendant emphasizes that DL never testified that he threatened to use force on her.

In the present case, DL testified that at approximately 2 a.m. the masked defendant, while wielding a knife, told her and AW to “[g]et the fuck in the car,” and that she did so because she “felt like [she] had no choice [because] ... he had a knife and it was both of us.” The defendant was between DL and the apartment building she had just exited, and AW testified that the neighborhood was “pitch black” and that there were no other parties in the locale. Consequently, DL’s testimony alone is sufficient for the jury reasonably to have concluded that she was abducted at the time she entered the car.

B

The defendant also claims that there was insufficient evidence to prove beyond a reasonable doubt that he abducted either victim with the intent to sexually assault them.

As to the question of intent, “[i]t is well established that [t]he question of intent is purely a question of fact. . . . 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. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994).

As described in part II A of this opinion, the jury had before it evidence that at almost 2 a.m. the knife-wielding defendant approached DL and AW and held the knife to AW’s neck. AW provided the defendant with the contents of her pockets, but that did not satisfy him, and the victims were compelled to enter the car. DL testified that “[AW] gave him money, [and] he didn’t want money.” They were forced into a car almost immediately upon the defendant’s approach. Both victims testified that AW was forced to perform oral sex within moments of entering the car. The defendant used the car to move the two victims to a dark, abandoned parking lot. At no time did the defendant demand anything aside from sex. The jury was not required to conclude that he did not have the requisite intent at the time of the abduction, simply because the defendant did not demand sex until he entered the car.

It is not the role of this court to second-guess the jury’s conclusion that the defendant had the requisite intent to sexually assault the victims at the time they were abducted. The defendant’s conduct was sufficient to allow the jury reasonably to find that he intended to abduct the victims for the purpose of sexual assault.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually . . . .”

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

       AW testified that she did not know whether the metal item pressed to her neck was a gun or a knife before she entered the car.

       It is unclear exactly where the victims were when AW asked the defendant what he wanted and gave him her money. DL testified that this occurred upon entering the car. AW testified first that “before we got in the car, I’m, like, what do you want? What do you want? Like, do you want money or whatever ... so, I went in my pocket. I only had, like, six singles in my pocket, so I just gave it to him cause I didn’t know what he wanted.” But she also testified to asking him what he wanted repeatedly throughout the offense.

       Both AW and DL testified that when DL moved into the backseat, she also was forced to give the defendant oral sex at knifepoint. The jury, however, found the defendant not guilty of the sexual assault charge as to DL.

       The operative information was filed with the court on February 19,2009.

       The second draft was changed at the request of the defendant as to the instruction regarding identification, which is not at issue in this appeal.

       The state argues that the three questions posed by the jury were interrelated, based on a single hypothetical. Because we conclude that the supplemental instructions did not mislead the jury when read in isolation, it is unnecessary to consider this interpretation.

       The court did not address directly the specific hypothetical posed in this question.

       During oral argument in this court, the defense counsel acknowledged that this is, “in the abstract, a valid answer.”

       The defendant contends in his principal brief that instead of “that would be force against the complainant or acts that caused the complainant to be intimidated,” the court was required to state that “that would be force against the complainant or acts against the complainant that caused the complainant to be intimidated”; (emphasis in original; internal quotation marks omitted); in order to clarify that the intimidation must be directed toward the victim who was being abducted.

       See State v. Foster, 293 Conn. 327, 341, 977 A.2d 199 (2009) (defendant waived objection to supplemental instruction in part because it “essentially repeated” portion of initial instruction defendant had approved), cited in State v. Akande, 299 Conn. 551, 560, 11 A.3d 140 (2011), released simultaneously with State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011).

       This court and our Supreme Court have found implied waiver of challenges to supplemental jury instructions. See, e.g., State v. Akande, 299 Conn. 551, 562, 11 A.3d 140 (2011) (defense waived claim of improper instruction when “defense counsel had a meaningful opportunity to review the supplemental instructional language and because the jury’s specific request was sufficient to focus defense counsel’s attention on the [portion of the instructions regarding the elements of the crime that the defendant challenges]”); State v. Foster, 293 Conn. 327, 339-42, 977 A.2d 199 (2009) (defense waived claim of improper instruction on alibi defense by expressing satisfaction with initial alibi instruction, asking court to remind jury that it must determine if defendant was present at scene of crime, and failing to object to court’s supplemental instruction essentially repeating part of initial alibi instruction requested by counsel); State v. Hankerson, 118 Conn. App. 380, 388-89, 983 A.2d 898 (2009) (defense waived claim of improper instruction when, following jury’s written inquiry, court discussed portion of initial charge with counsel, counsel acquiesced to substance of instruction, and defense did not object when court delivered supplemental instruction essentially repeating portion of initial charge challenged on appeal), cert. denied, 298 Conn. 932, 10 A.3d 518 (2010).

       In the original charge, the court stated that the state must prove that the defendant prevented “the liberation of the complainant by using or threatening to use physical force or intimidation. ” It further defined intimidation as having its “everyday meaning and requires that the defendant’s words or actions place the complainant in a state of fear.” In the supplemental charge, the court stated that “ [t]he state must prove the defendant prevented the liberation of the complainant by using or threatening to use physical force or intimidation. . . . And that would be force against the complainant or acts that caused the complainant to be intimidated.”

       This court previously has stated that a jury reasonably could have concluded that an unarmed defendant abducted a victim based on intimidation not related directly to the presence of a weapon. See State v. Cotton, 77 Conn. App. 749, 777-78, 825 A.2d 189, cert. denied, 265 Conn. 911, 831 A.2d 251 (2003).

       The defendant also claimed that there was insufficient evidence to support a finding that he kidnapped DL at the time she was ordered into the backseat, or at the time she was in the backseat, citing State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), for the second argument. It is unnecessary to reach these claims because we construe the evidence in the light most favorable to sustaining the verdict; State v. McGee, supra, 124 Conn. App. 272; and conclude that the evidence is sufficient to support the kidnapping verdict based solely on the events occurring at the time both victims entered the car.


text:
    STATE OF CONNECTICUT v. JEFFREY PIERCE
    (AC 32022)
    Robinson, Bear and Flynn, Js.

      Argued April 11
    officially released June 21, 2011

      James B. Streeto, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, was Scott J. Murphy, state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Jeffrey Pierce, appeals from the judgment of the trial court dismissing his motion to correct an illegal sentence. The substance of the defendant’s contention is that the sentencing court improperly considered a presentence investigation report (1999 report) that relied, in part, on confidential information contained in an earlier presentence investigation report (1996 report) submitted in an unrelated case. On appeal, the defendant, claims that the court improperly concluded that it did not have subject matter jurisdiction over his motion to correct an illegal sentence. He further claims that the court improperly concluded in the alternative that the defendant waived a challenge to the court’s consideration of the 1999 report and that the motion failed on its merits because the defendant failed to prove harm. We conclude that the court properly determined that it was without subject matter jurisdiction. We therefore affirm the judgment of the trial court. , .

The following facts are relevant to our resolution of the defendant’s appeal.. On May 7, 1999, following the defendant’s conviction on the charges of kidnapping in the second degree in violation of General Statutes § 53a-94 and burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), the court sentenced the defendant to a total effective sentence of thirty years incarceration, execution suspended after twenty-five years, with five years probation. In preparation for the sentencing hearing, the court received the 1999 report from the probation department. See General Statutes (Rev. to 1999) § 54-91a; Practice Book (1999) §§ 43-3 through 43-9. Both the 1996 and 1999 reports were prepared by Probation Officer Maureen Klinkert. In preparing the 1999 report for the court, Klinkert asked the defendant to sign a consent form to obtain his treatment records, but the defendant refused. Klinkert then used information contained in the 1996 report that she had prepared when the defendant was awaiting sentencing in an unrelated case, wherein he had signed written waivers permitting her to obtain his treatment records. These records included a prognosis that the defendant was at high risk of committing sexual and aggressive offenses, that he had been sexually abusing children since he was nine years old, that he had been diagnosed as a developing pedophile and sexual sadist and that he had borderline antisocial personality traits. During the defendant’s sentencing in 1996, this information was discussed at length on the record in open court.

During the May 7, 1999 sentencing hearing in the present case, the court stated that it had ordered, and the probation department had prepared, the 1999 report and that the court had reviewed it thoroughly. See Practice Book § 43-3 (a). The court asked the state and the defendant if they had reviewed the 1999 report as well. The defendant’s attorney stated that he had reviewed it and gone over it “briefly” with the defendant. The court then asked the defendant if he needed more time to go over the 1999 report, and the defendant nodded his head. The court then called a recess to give the defendant and his attorney time to go over the 1999 report in more detail. See Practice Book § 43-7. When the sentencing hearing resumed approximately fifty minutes later, defense counsel stated on the record that he and the defendant had reviewed the 1999 report fully and that they were ready to proceed.

After statements by the prosecutor, the victim, defense counsel, the defendant and the defendant’s mother, the court proceeded to discuss the seriousness of the defendant’s crimes. See Practice Book § 43-10. The court found that the defendant was a sexual deviant, whose objective on the day of the kidnapping was to sexually assault the victim. It also discussed the defendant’s background, including other convictions, his antisocial behavior and his unwillingness to seek the help that he needed. The court then sentenced the defendant to a total effective sentence of thirty years incarceration, execution suspended after twenty-five years, with five years probation. Following its imposition of this sentence, the court considered the state’s motion that it make a finding pursuant to General Statutes § 54-254 that the kidnapping was a crime committed for sexual purposes, which would require, among other things, that the defendant register as a sexual offender. The court granted the motion, making such a finding. The defendant’s conviction was upheld on direct appeal; see State v. Pierce, 69 Conn. App. 516, 794 A.2d 1123 (2002), rev’d in part, 269 Conn. 442, 849 A.2d 375 (2004) (reversed and remanded with direction to reinstate sexual offender registry requirement imposed by trial court); and his subsequent appeal from the habeas court’s dismissal of his habeas petition, alleging ineffective assistance of appellate counsel and his first habeas counsel, was dismissed. See Pierce v. Commissioner of Correction, 100 Conn. App. 1, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

In February, 2009, the defendant filed a motion to correct an illegal sentence on the ground that his sentence had been imposed in an illegal manner. He argued that the court’s consideration of the 1999 report, which contained information from the 1996 report that was based on confidential treatment records, should not legally have been before the court because the defendant had refused to sign a new release. The court, Espinosa, J., concluded that it did not have subject matter jurisdiction over the defendant’s motion because the allegations contained therein did not fit within the illegal sentence criteria. In the alternative, the court concluded that the defendant had waived this claim by failing to object to the inclusion of this information at the time of sentencing. The court also determined as an alternate holding that even if it were to conclude that it had been error for the sentencing court to have considered this information, the error was harmless. This appeal followed.

The defendant claims that the court improperly concluded that it did not have subject matter jurisdiction over the motion to correct an illegal sentence. We disagree.

“It is axiomatic that, in a criminal case, the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun and a court may no longer take any action affecting a sentence unless it expressly has been authorized to act.” (Internal quotation marks omitted.) State v. Olson, 115 Conn. App. 806, 810, 973 A.2d 1284 (2009). Pursuant to Practice Book § 43-22: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

“An illegal sentence is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is inherently contradictory.” (Internal quotation marks omitted.) State v. Olson, supra, 115 Conn. App. 811. “Sentences imposed in an illegal manner have been defined as being within the relevant statutory limits but . . . imposed in a way which violates [the] defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises . . . .” (Internal quotation marks omitted.) State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). “A defendant properly may challenge his criminal sentence on the ground that it was imposed in an illegal manner by filing with the trial court a motion pursuant to Practice Book § 43-22.” (Internal quotation marks omitted.) State v. Olson, supra, 811. “[T]hese enumerated examples [however] would not encompass rights or procedures subsequently recognized as mandated by federal due process. . . . Nor would those examples encompass procedures mandated by state law that are intended to ensure fundamental fairness in sentencing, which, if not followed, could render a sentence invalid. Therefore, the examples cited in McNellis, are not exhaustive and the parameters of an invalid sentence will evolve.” (Citations omitted.) State v. Parker, 295 Conn. 825, 839-40, 992 A.2d 1103 (2010). Because we are concerned with a matter of jurisdiction, our review of this claim is plenary. Id.

We conclude that the present case is controlled by our Supreme Court’s recent decision in Parker. In Parker, our Supreme Court upheld the judgment of the trial court dismissing a motion to correct an illegal sentence on the ground that the trial court lacked subject matter jurisdiction. Id., 841. The defendant had claimed that he had been deprived of an opportunity to review a presentence report and to address the inaccuracies that were contained in the report; he also claimed that his attorney had failed to go over the report with him or to bring to the sentencing court’s attention the inaccuracies contained in the report. Id., 840. The Supreme Court explained that the defendant had not claimed that the court refused to consider a motion or a request made by him to contest facts in the report, to obtain a copy of the report, to be given time to go over the report or to address the court. Id., 847. This, the court explained, was because the defendant never had filed such a motion nor made such a request. Id. Our Supreme Court concluded, therefore, that the defendant actually was complaining about counsel’s failures, rather than the sentencing court’s failures. The court then concluded that the sentencing court had not violated the defendant’s rights at sentencing—there having been no attempt by the defendant or his counsel to alert the court to any potential problem with the report—and the trial court, therefore, properly concluded that it did not have jurisdiction under Practice Book § 43-22 to consider the defendant’s claim. Id., 852.

In the present case, the defendant does not challenge the trial court’s conclusion that he did not meet any of the examples enumerated in McNellis. He argues, rather, that Parker specifically expanded the enumerated examples established by McNellis to include, inter alia, procedures mandated by state law that are intended to ensure fundamental fairness in sentencing. See id., 840. He argues that the confidentiality of his treatment records pursuant to General Statutes § 52-146e qualifies as just such a procedure. He further argues that his sentence, therefore, was imposed in an illegal manner because the sentencing court should not have considered information in the 1999 report that was derived from confidential and, thus, privileged information contained in the 1996 report because he did not sign a new release for that information to be reused. We are not persuaded by this argument.

The essence of the defendant’s claim is that the probation department had no authority to include in the 1999 report the privileged information it had received when preparing the 1996 report, for which the defendant had signed written waivers. He asserts that the privileged information could not be reused by the probation department in preparing a new report. Similar to the Parker case, the defendant is not complaining about the actions of the sentencing court. Clearly, in order to comply with our General Statutes and our rules of practice, the court was required to order and to review the report prepared by the probation department. See General Statutes (Rev. to 1999) § 54-91a; Practice Book (1999) §§ 43-3 through 43-9. Rather, the defendant is complaining about the actions of the probation department in its preparation of the 1999 report. However, there was no attempt by counsel or by the defendant to alert the court that the defendant had a problem with the report, there was no attempt by counsel or the defendant to request that the alleged improper information be stricken from the report, and there was no denial by the court of any request made by the defendant related to the report. Quite to the contrary, when the defendant indicated that he had not had sufficient time to go over the report with counsel, the court called a recess and gave the defendant the time he needed. After the proceedings were reconvened, neither the defendant nor counsel said a word about any problem with the contents of the 1999 report. We conclude, therefore, guided by our Supreme Court’s analysis in Parker, that the trial court properly determined that it did not have jurisdiction over the defendant’s claim pursuant to Practice Book § 43-22. We further conclude that the alleged confidentiality of the defendant’s treatment records pursuant to § 52-146e has no bearing on our analysis.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we conclude that the court did not have subject matter jurisdiction, we need not consider the defendant’s other claims.

       General Statutes (Rev. to 1999) § 54-91a provides in relevant part: “(a) No defendant convicted of a crime, other than a capital felony, the punishment for which may include imprisonment for more than one year, may be sentenced . . . until a written report of investigation by a probation officer has been presented to and considered by the court ....
      “(c) Whenever an investigation is required, the probation officer shall promptly inquire into the circumstances of the offense, the attitude of the complainant or victim, or of the immediate family where possible in cases of homicide, and the criminal record, social history and present condition of the defendant. Such investigation shall include an inquiry into any damages suffered by the victim, including medical expenses, loss of earnings and property loss. All local and state police agencies shall furnish to the probation officer such criminal records as the probation officer may request. When in the opinion of the court or the investigating authority it is desirable, such investigation shall include a physical and mental examination of the defendant. If the defendant is committed to any institution, the investigating agency shall send the reports of such investigation to the institution at the time of commitment. ...
      “(d) Any information contained in the files or report of an investigation pursuant to this section shall be available to the Office of the Bail Commission for the purpose of performing the duties contained in section 54-63d.”

       Practice Book § 43-3 (a) provides in relevant part: “If the defendant is convicted of a crime other than a capital felony, the punishment for which may include imprisonment for more than one year, the judicial authority shall order a presentence investigation, or the supplementation of any existing presentence investigation report. . . .”

       Practice Book § 43-7 provides in relevant part: “The presentence investigation . . . report . . . shall be provided to the judicial authority, and copies thereof shall be provided to the prosecuting authority and to the defendant or his or her counsel in sufficient time for them to prepare adequately for the sentencing hearing .... Upon request of the defendant, the sentencing hearing shall be continued for a reasonable time if the judicial authority finds that the defendant or his or her counsel did not receive the presentence investigation . . . report . . . within such time.”

       Practice Book § 43-10 provides in relevant part: “Before imposing a sentence . . . the judicial authority shall . . . conduct a sentencing hearing as follows:
      “(1) The judicial authority shall afford the parties an opportunity to be heard and, in its discretion, to present evidence on any matter relevant to the disposition, and to explain or controvert the presentence investigation report .... When the judicial authority finds that any significant information contained in the presentence report ... is inaccurate, it shall order the office of adult probation to amend all copies of any such report in its possession and in the clerk’s file, and to provide both parties with an amendment containing the corrected information.
      “(2) The judicial authority shall allow the victim and any other person directly harmed by the commission of the crime a reasonable opportunity to make, orally or in writing, a statement with regard to the sentence to be imposed.
      “(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. ...” (Emphasis added.)

       In the defendant’s first habeas trial, the court, White, J., in an oral decision, reinstated the defendant’s right to sentence review but dismissed his claim of ineffective assistance of trial counsel. Pierce v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-05-4000609-S (November 24, 2010) {Nazzaro, J.). The sentence review division of the Superior Court affirmed the defendant’s sentence, concluding that it was neither inappropriate nor disproportionate. State v. Pierce, Superior Court, judicial district of New Britain, Docket No. CR-98-177629 (June 29, 2005) (Holden, Miaño and Iannotti, Js.).

         Parker was decided after the trial court ruled in the present case.

       General Statutes § 52-146e provides: “(a) All communications and records as defined in section 52-146d shall be confidential and shall be subject to the provisions of sections 52-146d to 52-146J, inclusive. Except as provided in sections 52-146Í to 52-146Í, inclusive, no person may disclose or transmit any communications and records or the substance or any part or any resume thereof which identify a patient to any person, corporation or governmental agency without the consent of the patient or his authorized representative.

        “(b) Any consent given to waive the confidentiality shall specify to what person or agency the information is to be disclosed and to what use it will be put. Each patient shall be informed that his refusal to grant consent will not jeopardize his right to obtain present or future treatment except where disclosure of the communications and records is necessary for the treatment.
      “(c) The patient or his authorized representative may withdraw any consent given under the provisions of this section at any time in a writing addressed to the person or office in which the original consent was filed. Withdrawal of consent shall not affect communications or records disclosed prior to notice of the withdrawal.” (Emphasis added.)

       We note that Practice Book (1999) § 43-9 provides in relevant part: “The presentence investigation . . . reports shall not be public records and shall not be accessible to the public. They shall be available initially to the parties designated in Section 43-7 for use in the sentencing hearing and in any subsequent proceedings wherein the same conviction may be involved, and they shall be available at all times to the following:
      “(1) The office of adult probation ....
      “(7) Any court of proper jurisdiction where it is relevant to any proceeding before such court. Such court may also order that the report be made available to counsel for the parties for the purpose of such proceeding . . . .” (Emphasis added.)
      We also note that Practice Book § 7-14 (a) provides in relevant part: “The office of adult probation shall maintain one copy of each presentence investigation report for twenty-five years. . . .”

       Practice Book § 43-14 provides in relevant part: “Defense counsel shall bring to the attention of the judicial authority any inaccuracy in the presentence . . . report of which he or she is aware or which the defendant claims to exist.”