author: DiPENTIMA, J.

text:
    PAUL BOYNE v. TOWN OF GLASTONBURY
    (AC 29150)
    Bishop, DiPentima and Mihalakos, Js.

      Argued May 20
    officially released September 30, 2008

      Ronald F. Ochsner, for the appellant (plaintiff).

      Scott D. Camassar, with whom was Ryan McKain, for the appellee (defendant).
   Opinion

DiPENTIMA, J.

The plaintiff, Paul Boyne, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendant, the town of Glastonbury. The plaintiff filed a five count complaint against the defendant, primarily seeking injunctive relief, and the court rendered summaiy judgment as to all five counts. The plaintiff now claims that the court improperly granted the defendant’s motion for summary judgment because (1) its legal conclusions were improper with respect to four of the five counts and (2) certain material facts remain in dispute. We affirm the judgment of the trial court.

The following facts are not in dispute. On or about September 27, 1972, the defendant installed a storm water drainage system along Robin Road in Glastonbury. Since its installation in 1972, the drainage system has collected and discharged surface storm water into and through a ditch that runs along the northern portion of residential property located at 7 Sulky Lane in Glastonbury. The ditch is twelve feet in depth at its deepest point, with steep sidewall embankments, and is twenty-five to thirty-five feet wide at its widest point. There is no evidence that storm water flowing through the ditch ever has breached the sidewall embankments and flooded the higher elevations of the property, and no such breach is likely to occur.

A sidewalk runs parallel to Robin Road, and a split rail fence separates the sidewalk from the ditch. In addition, dense vegetation, including evergreen trees and deciduous shrubs, covers the edges of the ditch. The fence and the overgrown vegetation provide a barrier to inhibit public access to the ditch from Robin Road. The storm water, however, causes the embankments to erode, which, in turn, leads to the infrequent toppling of small trees and other vegetation growing nearby.

In September, 1997, the plaintiff and his former spouse purchased the property located at 7 Sulky Lane. As a result of a court order in a dissolution action between the plaintiff and his former spouse, the plaintiff currently is not in possession of the property but retains title interest in the property.

On July 17, 2006, the plaintiff filed a five count complaint against the defendant, seeking monetary damages and injunctive relief as a result of the defendant’s discharge of surface storm water through the ditch on his property. In count one, the plaintiff alleged that the defendant’s use of the ditch to discharge storm water violated General Statutes § 13a-138 (b). In count two, the defendant alleged that the defendant had created a private nuisance on his property by removing some of the vegetation that had grown at and around the point where storm water is discharged into the ditch. Counts three, four, and five alleged that the defendant’s discharge of storm water onto the plaintiffs property constituted a trespass to his land, a private nuisance and a public nuisance, respectively. At the time he filed his complaint, the plaintiff also filed an application for a temporary injunction. After a hearing, the court denied the application.

The defendant filed a motion for summary judgment as to all five counts of the plaintiffs complaint. On August 10, 2007, the court granted the defendant’s motion. With respect to count one, the court ruled that the plaintiffs claim was time barred by General Statutes § 13a-138a. With respect to counts two, three and four, the court ruled that the defendant was entitled to judgment as a matter of law because the plaintiff no longer was in possession of the property. The court further concluded, with respect to counts two and four, that the plaintiff could not establish that any interference with his use and enjoyment of the property was unreasonable. Finally, the court concluded, as to count five, that the plaintiff could not establish that the defendant’s conduct interfered with a public right. This appeal followed. Additional facts will be set forth as necessary.

We apply a well settled standard of review to the plaintiffs claim that the court improperly rendered summary judgment. “Practice Book § 17-49 provides that summaiy judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 4-5, 942 A.2d 334 (2008).

“[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough ... 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 [an issue of] material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) Cadlerock Joint Venture II, L.P. v. Milazzo, 287 Conn. 379, 390, 949 A.2d 450 (2008).

“On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, supra, 286 Conn. 5.

I

The plaintiff first claims that the court improperly construed § 13a-138a and, on the basis of that construction, improperly concluded that § 13a-138a barred his claim under § 13a-138 (b), count one of his complaint. The plaintiff argues that § 13a-138a limits only actions brought pursuant to subsection (a) of § 13a-138 but does not limit actions brought under subsection (b). We disagree.

The plaintiffs claim requires us to construe the statute at issue, § 13a-138a. “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.” (Internal quotation marks omitted.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 109, 942 A.2d 396 (2008).

“It is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions. . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. . . . Because [e]very word and phrase [of a statute] is presumed to have meaning [a statute] must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant.” (Citations omitted; emphasis added; internal quotation marks omitted.) American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008).

Section 13a-138a provides: “No action shall be brought by the owner of land adjoining a public highway . . . for recovery of damage to such property ... by reason of any draining of water into or through such land by any town . . . pursuant to subsection (a) of section 13a-138, but within fifteen years next after the first occurrence of such drainage, except that if such drainage first occurred prior to October 1, 1981, no such action shall be brought after October 1, 1986.” (Emphasis added.) The plaintiff argues that the plain language of the statute evinces the legislature’s intent to apply the fifteen year limitation period only to subsection (a) of § 13a-138 and not to subsection (b). To hold otherwise, he argues, would render a portion of the statute meaningless. Although we agree that the plaintiffs argument gives effect to every word in the statute, we conclude nonetheless that such an interpretation would yield an unworkable result.

If we follow the plaintiffs argument to its logical conclusion, as elucidated at oral argument before this court, there would be no limitation period applicable to § 13a-138 (b). Our Supreme Court recently reminded us, however, that public policy favors limitation periods for causes of action to grant some degree of certainty to litigants. Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007). The court concluded that “when a statute includes no express statute of limitations, we should not simply assume that there is no limitation period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon.” Id.

In the present case, even if we assume that § 13a-138a does not limit expressly a cause of action under § 13a-138 (b), the most suitable limitation period is the fifteen year period provided by § 13a-138a. Section 13a-138, in general, authorizes municipalities to drain water from public highways into or through the land of another under certain circumstances. A cause of action for a violation of § 13a-138 does not change significantly by pleading circumstances that violate subsection (b) rather than circumstances that violate subsection (a). Accordingly, we conclude that the court properly determined that § 13a-138a applied to count one of the plaintiffs complaint, which alleged a violation of § 13a-138 (b). We further conclude, on the basis of the undisputed facts, that the court properly rendered summary judgment with respect to count one of the complaint because the plaintiffs action was initiated beyond the fifteen year limitation period set forth in § 13a-138a.

II

The plaintiff next claims that the court improperly rendered summary judgment as to counts three and four, trespass and private nuisance, respectively. Specifically, he argues that the court improperly concluded that as a matter of law, he could not prevail on those claims because he is not in actual possession of the property. We disagree with the plaintiff as to the third count but agree as to the fourth count. The court, however, properly granted the defendant’s motion for summary judgment as to count four on the additional ground that interference with the plaintiffs use and enjoyment of the property was not unreasonable.

We begin our analysis with a brief discussion of the difference between trespass and nuisance claims. Historically, trespass and nuisance were two distinct common-law classes of injury involving real property. 9 R. Powell, Real Property (1999) § 64.01 [1], p. 64-5; 4 Restatement (Second), Torts § 821D, comment (a) (1979). A defendant who invaded a plaintiff s possession was a trespasser; a defendant who interfered with a plaintiffs use and enjoyment of his property by acts done elsewhere than on the plaintiffs land was subject to a claim of nuisance. 9 R. Powell, supra, § 64.01 [1], p. 64-5; 4 Restatement (Second), supra, § 821D, comment (a).

This ancient distinction between trespass and nuisance, on the basis of whether an invasion of a plaintiffs land was direct or indirect, is not followed by more recent cases. 9 R. Powell, supra, § 64.01 [2]; see 4 Restatement (Second), supra, § 821D. Instead, recent case law treats trespass cases as involving acts that interfere with a plaintiffs exclusive possession of real property and nuisance cases as involving acts interfering with a plaintiffs use and enjoyment of real property. 9 R. Powell, supra, § 64.01 [2]; 4 Restatement (Second), supra, § 821D, comment (d). In other words, the distinction no longer rests on the means by which the invasion is effected but, instead, on the nature of the right with which the tortfeasor interferes. When viewed in this way, claims of nuisance may include an instance of trespass in that a physical entry onto land possessed exclusively by another also may affect, in the abstract, the possessor’s use and enjoyment of the land. 9 R. Powell, supra, § 64.01 [2]; 4 Restatement (Second), supra, § 821D, comment (e) (invasion of possession of land normally involves some degree of interference with use and enjoyment, particularly when some harm inflicted on land itself). “Thus the flooding of [a] plaintiffs land, which is a trespass, is also a nuisance if it is repeated or of long duration .... The two actions, trespass and private nuisance, are thus not entirely exclusive or inconsistent, and in a proper case in which the elements of both actions are fully present, the plaintiff may have his choice of one or the other, or may proceed upon both.” 4 Restatement (Second), supra, § 82 ID, comment (e). Connecticut courts have followed this trend. See Hillman v. Greenwich, 217 Conn. 520, 522, 528, 587 A.2d 99 (1991) (private nuisance existed when catch basins and storm drains built and maintained by defendant municipality collected and drained surface storm water over plaintiffs properly, causing erosion); Day v. Gabriele, 101 Conn. App. 335, 345, 921 A.2d 692 (trespass and nuisance existed when defendants diverted water away from newly constructed dwelling, resulting in excess water flowing onto plaintiffs property and destruction of pipe in right-of-way prevented water from flowing from plaintiffs property), cert. denied, 284 Conn. 902, 931 A.2d 262 (2007); Gregorio v. Naugatuck, 89 Conn. App. 147, 157, 871 A.2d 1087 (2005) (evidence of incursion of wastewater sufficient to prove private nuisance claim).

Accordingly, in Connecticut, “[t]he essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiffs exclusive possessory interest; (3) done intentionally; and (4) causing direct injury. . . . [Bjecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land.” (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007). Further, “[sjince trespass is a possessory action, it is incumbent on the plaintiff to prove possession, actual or constructive, in order to prevail.” Wadsworth Realty Co. v. Sundberg, 165 Conn. 457, 461, 338 A.2d 470 (1973). Actual possession requires the plaintiff to demonstrate his exclusive possession and control of the land; constructive possession requires proof that the plaintiff was the owner of the land and that no one else had possession. Lin v. National Railroad Passenger Corp., 277 Conn. 1, 20, 889 A.2d 798 (2006).

When damages are sought for a trespass that causes injury to the property, possession is measured at the time of the invasion, intrusion or entry. See 1 Restatement (Second), Torts § 162, comments (d) and (e) (1965); 75 Am. Jur. 2d, Trespass § 29 (2007). When a plaintiff seeks injunctive relief from continuing or repeated trespasses, however, the plaintiff must demonstrate his continuing possession of the property at the time the injunction is issued. See Roy v. Moore, 85 Conn. 159, 166, 82 A. 233 (1912) (function of injunction is to afford preventive relief, not to redress alleged wrongs committed already); see also McCullough v. Waterfront Park Assn., Inc., 32 Conn. App. 746, 749, 630 A.2d 1372 (although plaintiff held title to subj ect property, plaintiff not entitled to injunctive relief when she did not prove exclusive possession), cert. denied, 227 Conn. 933, 632 A.2d 707 (1993); 1 Restatement (Second), supra, § 162, comment (d); 42 Am. Jur. 2d, Injunctions § 101 (2000).

With these principles in mind, we conclude that the court properly determined that, as a matter of law, the plaintiff could not prevail on his trespass claim. The plaintiff sought only injunctive relief as to his trespass claim and did not dispute that he is no longer in possession of the property. Accordingly, no genuine issue exists as to whether the defendant’s conduct interferes with the plaintiffs exclusive possession of the property located at 7 Sulky Lane. See Roy v. Moore, supra, 85 Conn. 166; see also Connecticut Light & Power Co. v. Fleetwood, 124 Conn. 386, 390-91, 200 A. 334 (1938); McCullough v. Waterfront Park Assn., Inc., supra, 32 Conn. App. 749. We conclude therefore that the court properly granted the defendant’s motion for summary judgment as to count three, trespass.

With respect to count four, the court determined that because he is not in actual possession of the property the plaintiff also could not prevail on his private nuisance claim. A common-law private nuisance claim requires that “the defendant’s conduct was the proximate cause of an unreasonable interference with the plaintiffs use and enjoyment of his or her property. The interference may be either intentional ... or the result of the defendant’s negligence. . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case” and “should be [determined] in light of the fact that some level of interference is inherent in modem society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable.” (Citations omitted.) Pestey v. Cushman, 259 Conn. 345, 361, 788 A.2d 496 (2002) (adopting basic principles of 4 Restatement [Second], Torts § 822 [1979]).

“The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. . . . [I]n determining unreasonableness, [consideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole.” (Citations omitted; internal quotation marks omitted.) Id., 352. “Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.” Id., 362. Whether an interference is unreasonable is a question of fact for the fact finder. Berube v. Nagle, 81 Conn. App. 681, 696, 841 A.2d 724 (2004); see also Pestey v. Cushman, supra, 361.

Because a private nuisance claim does not require proof of possession, the court improperly concluded that the plaintiffs lack of exclusive possession of the property precluded his private nuisance claim. Although, pursuant to a court order, the plaintiff is not in possession of the property, he still maintains a nonpossessory interest in and a right to future use and enjoyment of the property. See 4 Restatement (Second), Torts § 821E, comment (f) (1979). The plaintiff therefore could prevail on his private nuisance claim if he could prove that by discharging storm water into the ditch, the defendant had interfered unreasonably with his right to future use and enjoyment of his property.

We conclude nonetheless that the court properly granted the defendant’s motion for summary judgment with respect to count four because the plaintiff failed to offer any evidence that the defendant’s interference with his future use and enjoyment of his property was unreasonable. In reaching our conclusion, we note that there is no dispute that the drainage ditch never has flooded and likely never will flood the higher elevations of the plaintiffs property. The only damage to the property alleged by the plaintiff is “erosion of the soil,” which is caused by the discharge of the storm water through the ditch. The plaintiff further asserts that the erosion of the embankment has led to the toppling of some trees.

The court found, and we agree, that the ditch “serves the obvious purpose of serving the community’s need to divert and drain storm water safely and appropriately.” As we observed previously, some level of interference is inherent in this activity. Pestey v. Cushman, supra, 259 Conn. 361. The issue, therefore, is whether the extent of the erosion and other damage to the plaintiffs land is beyond that which the plaintiff should bear, under all of the circumstances of this case, without being compensated. See id. On the basis of the record in this case, we conclude that it was not.

The evidence submitted by both parties demonstrates that the ditch typically has a very small amount of water trickling through it, except during storms. The defendant submitted further evidence that the ditch capably handles significant storm events and essentially has maintained its same shape and configuration for at least one decade. In response, the plaintiff submitted no evidence as to the degree of the erosion that occurs other than his testimony that the erosion was extensive enough to cause an occasional tree to topple during periods of increased wind. Furthermore, the defendant submitted evidence, which the plaintiff has not disputed, that the plaintiff exacerbates any erosion that occurs by routinely dumping yard waste into the ditch. Given this state of the evidence, we conclude that the interference with the plaintiffs interest in the property, as a matter of law, is not so substantial as to be unreasonable. No reasonable finder of fact could conclude otherwise. See Gupta v. New Britain General Hospital, 239 Conn. 574, 597, 687 A.2d 111 (1996). Accordingly, the court properly granted the defendant’s motion for summary judgment as to count four.

III

The plaintiffs next claim is that the court improperly rendered summary judgment as to count five, public nuisance. Specifically, he argues that a factual dispute exists regarding whether the ditch interferes with a public right. In support of his argument, he claims that the split rail fence and vegetation do not provide a sufficient barrier between the sidewalk and the ditch to prevent the public from accessing the ditch and befalling some harm therein. We are not persuaded.

To prove that a public nuisance exists, the plaintiff must prove, inter alia, that “the condition or conduct complained of interferes with a right common to the general public.” Keeney v. Old Saybrook, 237 Conn. 135, 163, 676 A.2d 795 (1996). “Nuisances are public where they . . . produce a common injury .... The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.” (Internal quotation marks omitted.) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001). “Whether an interference is unreasonable in the public nuisance context depends ... on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] .... 4 Restatement (Second), [Torts] § 82 IB [1979]. The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake. Id., § 82ID comment (c).” (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 356 n.5.

In this case, the plaintiff does not dispute that the ditch, at least the section of the ditch that he claims is creating a public nuisance, is located on his property and is not located on public land or in a public right-of-way. Thus, access to the ditch is not a right that is common to the general public. Accordingly, we conclude, as a matter of law, that the plaintiff cannot prevail on his public nuisance claim.

IV

The plaintiff’s final claim is that the court improperly concluded that no material facts remain in dispute. Specifically, he claims that the following facts remain in dispute: (1) whether the ditch posed a hazard to public safety, (2) whether the defendant had easement rights to drain storm water through the ditch and (3) whether the property had suffered any damage due to the storm water drainage. We disagree.

In light of our conclusion in part III, no factual dispute remains as to the danger that the ditch poses to public safety. See also footnote 8. Furthermore, the defendant’s right to drain storm water through the ditch is derived from statute; see parts I and II; and does not turn on whether the defendant has easement rights to the ditch. The existence of an easement is therefore not material. Finally, the amount of damage caused to the property by the drainage of storm water is not in dispute. The only issue in dispute is whether the amount of damage is beyond that which the plaintiff should bear. In part II, we answered this question in the negative. Accordingly, no genuine issues remain as to the material facts in this case, and the court properly granted the defendant’s motion for summary judgment as to all counts of the plaintiffs complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs brief does not raise any claim with respect to the court’s legal conclusions as to count two of his complaint for creation of a private nuisance. Accordingly, we do not review that aspect of the judgment.

       The plaintiffs former spouse is not a party to this action.

       Pursuant to the judgment in the dissolution action, the defendant has been ordered to quitclaim his interest in the property to his former wife. That judgment is the subject of a separate appeal, which is currently pending before this court. In the event that the plaintiff is successful in his appeal from the judgment of dissolution in the separate action, the trial court may reconsider its financial orders, including its order that the plaintiff quitclaim his interest in the property to his former wife. See Morris v. Morris, 262 Conn. 299, 307, 811 A.2d 1283 (2003).

       General Statutes § 13a-138 provides: “(a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person’s land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person’s land for the purpose named in this section, it shall be done in such way as to do the least damage to such land.
      “(b) Nothing in this section shall be so construed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise.”

       The plaintiff argues that because he is seeking injunctive relief and not monetary damages, exclusive possession is not a necessary element of his claim. We disagree.
      In McCullough v.Waterfront Park Assn., Inc., supra, 32 Conn. App. 746, this court stated: “An action for damages for trespass is a possessory action ... for which title is only incidentally relevant. . . . When an injunction is sought to restrain a trespass, however, title is an essential element in a plaintiffs case. . . . Consequently, where both damages for trespass and an injunction are sought, both title to and possession of the disputed area must be proved . . . and the burden of proving them is on the plaintiff.” (Citations omitted.) Id., 749. We concluded that the plaintiff in McCullough held title to the subject property. Id., 753. We further concluded, however, that “[bjecause . . . the plaintiff did not prove the absence of actual possession in another, or her exclusive possession, she [was] not entitled to damages for trespass and [was] not entitled to injunctive relief . . . .” Id. Accordingly, we conclude that possession is a necessary element of a trespass claim irrespective of the relief sought.

       In some cases, an interference may be so permanent and severe that it unreasonably affects not only the rights of one who is in possession of property, but also the right to future use and epjoyment by the owner of a nonpossessory estate. 4 Restatement (Second), Torts § 821E, comment (f) (1979). For example, a landlord may bring an action in nuisance for damage to his land at the hands of a neighbor, even though his tenant maintains possession of the land. Id.

       The parties do not dispute that the installation and maintenance of the storm water drainage system were intentional and that the defendant’s conduct was the proximate cause of the discharge of storm water into the ditch on the plaintiffs property.

       In Pestey v. Cushman, supra, 259 Conn. 358 n.6, our Supreme Court, in distinguishing private nuisance from public nuisance, observed that a four factor analysis may not prescribe adequately the proper inquiry in public nuisance cases. In deciding Pestey, however, the court declined to resolve this specific question. Id. The court simply noted that Keeney v. Old Saybrook, supra, 237 Conn. 162-63, and State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987), set forth slightly different tests for determining whether a public nuisance exists. Those differences do not affect the determination of the issue before us. Both Keeney and Tippetts-Abbett-McCarthy-Stratton hold that interference with a right common to the general public is an indispensable element of a public nuisance claim. See also Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001); Doe v. Manheimer, 212 Conn. 748, 755 n.4, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995); Gregorio v. Naugatuck, 89 Conn. App. 147, 150 n.4, 871 A.2d 1087 (2005); 4 Restatement (Second), Torts § 821B (1979). Because this holding is dispositive of the plaintiff’s appeal, we also decline to address the broader question left open by Pestey as to the remaining essential elements of a public nuisance claim.

       To the extent that the ditch poses a danger to trespassers, our review of the record in this case leads us to agree with the conclusion of the court that “[g]iven the degree to which there are natural and man-made barriers to the ditch, only a determined individual seeking access to the ditch would ultimately encounter an inherently dangerous area.” In light of this conclusion, we further conclude, as a matter of law, that the ditch does not significantly or unreasonably interfere with the health and safety of trespassers.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. RICHARD POMMER
    (AC 27171)
    Flynn, C. J., and DiPentima and Pellegrino, Js.

      Argued March 13
    officially released September 30, 2008

      Laila M. G. Haswell, assistant public defender, for the appellant (defendant).

      Susan C. Marks, supervisory assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Kevin Doyle, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Richard Pommer, appeals from the judgment of conviction, rendered after a jury trial, of one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), one count of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) and one count of tampering with a witness in violation of General Statutes § 53a-151 (a). The defendant claims that the evidence was insufficient to sustain his conviction of tampering with a witness. Specifically, the defendant first claims that the defendant’s alleged interference with a witness must relate to his interference with the witness’ testimony, not to discussions with the police. In his reply brief, he later refines this insufficiency argument by stating that the intent required must be an intent to prevent a witness from testifying at trial and possibly assisting the state in obtaining a conviction. Second, the defendant claims there was no evidence that when the alleged threat was made, he believed that an official proceeding was pending or about to be instituted. Finally, he contends that the testimony with which he allegedly had interfered must have been testimony given under oath because General Statutes § 53a-146 (1) defines “official proceeding” by limiting it to a proceeding in which evidence may be taken under oath, and there was insufficient evidence to establish this. We affirm the judgment of the trial court.

The defendant pleaded not guilty and, after a jury trial, he was convicted of all charges, including the one count of tampering with a witness, which is the subject of this appeal. The defendant was sentenced to eighteen years incarceration, execution suspended after twelve years, and three years probation. This appeal followed.

The following facts, which might reasonably have been found by the jury, are relevant to our disposition of the defendant’s appeal. On October 19, 2003, two individuals were robbed in New Haven by the defendant, Chaz Poole and James Draughn. Melissa Fragola, the girlfriend of Poole, drove the getaway car. New Haven police were able to obtain Fragola’s photograph from a videotape showing her using one of the victim’s stolen credit cards at a gasoline station and disseminated copies to local television news bureaus. When Fragola saw her photograph on a news broadcast, she informed Poole and indicated that she would turn herself in to the police. When Fragola went to the Hamden police station with Poole, she was sent back home. The following day, New Haven police officers came to her residence and brought her to their station where she provided a taped statement. On her second and third visit to the police station, Fragola selected the defendant’s and Draughn’s photographs, identifying them as participants in the robbery.

After Fragola’s photograph had been broadcast, the defendant telephoned Poole and informed him of the broadcasting and that Fragola had turned herself in to the police and implicated the participants in the robbery. The defendant inquired of Poole as to whether he also would go to the police. When Poole replied in the affirmative, the defendant was not happy and indicated to Poole that he loved him like a brother, but if Poole went to the police, it would be “[Poole’s] ass.”

I

We first discuss reviewability of the claims. At the close of the state’s case, the defendant moved for a judgment of acquittal on the tampering charge on the ground that his statement to Poole did not constitute a threat. The court denied the defendant’s motion. At the close of his case, the defendant renewed his motion for a judgment of acquittal on the tampering count. On appeal, the defendant abandons discussion of whether his statement was a threat and, inter alia, raises an issue not raised at the trial level, which is whether he had the required intent.

The defendant contends that his unpreserved claim of insufficiency of the evidence is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree to review the defendant’s claim because any defendant who is found guilty on the basis of insufficient evidence has been deprived of a constitutional right and is entitled to review whether or not the claim was preserved at trial. See Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Padua, 73 Conn. App. 386, 392, 808 A.2d 361 (2002), rev’d in part on other grounds, 273 Conn. 138, 869 A.2d 192 (2005).

II

We next turn to all of the defendant’s claims that there was insufficient evidence to permit the jury to find beyond a reasonable doubt that he tampered with a witness. At the outset, we observe that the defendant’s arguments in his reply brief have shifted from those in his main brief. The defendant maintained in his principal brief that a “defendant’s interference with the witness must relate to his or her testimony, not to discussions with the police.” He also maintained that there was “no evidence on the record” that he believed that “ ‘an official proceeding was pending or about to be instituted.’ ” In his reply brief, the defendant, for the first time, refers to intent and argues that a defendant’s “intent must be to prevent a witness from testifying at trial and possibly assisting the state in obtaining a conviction.” He goes on to state that “[t]he intent to prevent a witness from speaking to the police is not sufficient under the statute. This is because of the use of the words “ ‘testify’ ” or “ ‘testimony’ ” in the second element of the statute.”

Review of any claim of insufficiency of the evidence introduced to prove a violation of a criminal statute must necessarily begin with the skeletal requirements of what necessary elements the charged statute requires to be proved. Such a review necessarily involves statutory construction. “Statutory construction is a question of law and therefore our review is plenary.” (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996).

Once analysis is complete as to what the particular statute requires to be proved, we then review the evidence in light of those statutory requirements. Our review standard is well settled. “In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Foreshaw, 214 Conn. 540, 550, 572 A.2d 1006 (1990).

We begin by addressing the defendant’s claims about what the statute requires to be proved by examining the language of the witness tampering statute. Section 53a-151 (a) provides: “A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning Mm to testify or absent himself from any official proceeding.” (Emphasis added.)

We hold that as applied to the evidence in tMs case, the first necessary element of the crime is that the defendant believed that an official proceeding was pending or about to be instituted and that the person tampered with was likely to be a witness. An official proceeding includes any proceeding held or that may be held before any judicial official authorized to take evidence under oath. The second element is that the defendant induced or attempted to induce a witness to withhold testimony. We set forth our analysis supporting tMs holding. “It is a basic tenet of statutory construction that the legislature does not intend to enact meaningless provisions. . . . Every word and phrase [in a statute] is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases suiplusage.” (Citation omitted; internal quotation marks omitted.) Remax Right Choice v. Aryeh, 100 Conn. App. 373, 382, 918 A.2d 976 (2007).

“[W]e keep in mind that the legislature is presumed to have intended a reasonable, just and constitutional result.” (Internal quotation marks omitted.) Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852, 856, 911 A.2d 1149 (2006), cert. granted on other grounds, 282 Conn. 901, 918 A.2d 888 (2007) (appeal withdrawn October 24, 2007). “[W]e presume that the legislature intends sensible results from the statutes it enacts. . . . Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results. . . . Words in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended.” (Internal quotation marks omitted.) Id.

General Statutes § 1-1 (a) provides: “In the construction of the statutes, words and phrases shall be construed according to the commonly approved usage of the language; and technical words and phrases, and such as have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly.” Pursuant to the plain meaning rule, General Statutes § l-2z, “the meaning of a statute shall, in the first instance, be ascertained from 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, extra-textual evidence of the meaning of the statute shall not be considered.” “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . [W]e seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case . . . .” (Internal quotation marks omitted.) State v. Winer, 286 Conn. 666, 676, 945 A.2d 430 (2008).

The text of § 53a-151 (a) prohibits tampering with a witness not just when a person believes that “an official proceeding is pending” but also when such a proceeding is “about to be instituted . . . .” General Statutes § 53a-151 (a). General Statutes § 53a-146, which defines terms in General Statutes §§ 53a-151 (a) and 53a-155 (a), defines “official proceeding” to include any proceeding “held or which may be held before any . . . judicial . . . agency or official authorized to take evidence under oath . . . .” General Statutes § 53a-146 (1). Our Supreme Court has stated that the statute applies to “any conduct that is intended to prompt a witness to testily falsely or refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent.” State v. Cavallo, 200 Conn. 664, 668, 513 A.2d 646 (1986). The defendant argues in effect that a court case actually had to be pending and that the statute’s reference to testimony refers necessarily only to testimony under oath at a trial or other official proceeding and that importuning a witness to withhold statements to police prior to trial is not within the prohibition of the statute. We reject such an interpretation.

In construing § 53a-151 (a)’s plain language, we first observe that no official proceeding actually has to exist; the statutory language requires only that the person tampers, “believing that an official proceeding is pending, or about to be instituted . . . .” General Statutes § 53a-151 (a). Because “the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results,” we need not refer to “extratextual evidence of the meaning of the statute . . . .” General Statutes § l-2z. Presuming that the legislature intends sensible results from its statutes and following the rubric that no statutory word or phrase should be deemed insignificant, we conclude that the defendant’s claim would render the statutory language “about to be instituted” meaningless surplusage and would be contrary to our Supreme Court’s holding in Cavallo. See State v. Cavallo, supra, 200 Conn. 668.

“The rule of construction that words in a statute must be construed according to their plain and ordinary meaning [is informed by] the doctrine of [in pari] materia, under which statutes relating to the same subject matter may be looked to for guidance in reaching an understanding of the meaning of a statutory term. . . . [T]he words of a statute are to be construed with common sense.” (Internal quotation marks omitted.) R. Williams Jr., “Statutory Construction in Connecticut: An Overview and Analysis,” 62 Conn. B.J. 313-14 (1988). “If a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to bizarre results destructive of that purpose, the former should prevail.” (Internal quotation marks omitted.) State v. Burns, supra, 236 Conn. 23.

Using the rules of in pari materia, we review State v. Foreshaw, supra, 214 Conn. 540, for our Supreme Court’s construction of the phrase, “official proceeding is pending, or about to be instituted,” as used in § 53a-155 (a), a statute prohibiting tampering with physical evidence. Foreshaw is persuasive because our Supreme Court was confronted with a distinct but similar statute. See id., 547. Section 53a-155 (a) contains identical language to § 53a-151 (a), namely, a “belie[f] that an official proceeding is pending, or about to be instituted . . . .” (Internal quotation marks omitted.) Id. Both sections were enacted at the same time, are to be found in part XI of our Penal Code, share a common purpose: “punish[ing] those who interfere with the courts and our system of justice” and have identical definitions. State v. Servello, 80 Conn. App. 313, 323, 835 A.2d 102 (2003), cert. denied, 267 Conn. 914, 841 A.2d 220 (2004).

In Foreshaw, a defendant fired a gunshot, killing a victim and, while fleeing the scene in her automobile, threw the gun she had used in the killing out of the car window so that she would not be caught with it. At the time she threw the murder weapon out of the window, she had no contact with the police or the judicial system in connection with her crime and there had been no arrest, much less a trial. Our Supreme Court held that the evidence was sufficient to permit the jury to find that an official proceeding was “about to be instituted.” The court rejected the defendant’s claims that the tampering with evidence statute required a temporal proximity between the alleged act and the official proceeding, and merely making evidence “unavailable” was not enough.

Justice Hull, writing for the Foreshaw court, opined: “It is true that at the time the defendant discarded the gun, no official proceeding had in fact been instituted. The statute, however, speaks to that which is readily apt to come into existence or be contemplated and thus plainly applies to the official proceeding arising out of such an incident. The crucial role police involvement would play in that process cannot be disputed.” State v. Foreshaw, supra, 214 Conn. 551. Thus, the Supreme Court concluded that the “official proceeding is pending, or about to be instituted” element of § 53a-155 (a) could be satisfied when the facts support the inference that the defendant reasonably could have contemplated that an official proceeding was likely to arise. See id. We conclude that this interpretation of similar language in State v. Foreshaw, supra, 551, is persuasive. We conclude that it is enough under the tampering with a witness statute to satisfy the required belief that an official proceeding is “about to be instituted” and is therefore imminent if a defendant, knowing he has been implicated as a participant in a crime, threatens a likely witness to that crime, to withhold evidence from the police, who, as the Foreshaw court noted, play a crucial role in the commencement of criminal prosecutions.

The defendant next argues that his “intent must [have been] to prevent a witness from testifying at trial and possibly assisting the state in obtaining a conviction. The intent to prevent a witness from speaking to the police is not sufficient under the statute.” We reject the contention that discouraging the witness from speaking to the police could not suffice when there was evidence that the defendant believed an official proceeding was imminent.

“Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Emphasis in original; internal quotation marks omitted.) State v. Bennett-Gibson, 84 Conn. App. 48, 53, 851 A.2d 1214 (2004), cert. denied, 271 Conn. 916, 859 A.2d 570 (2004).

In Bennett-Gibson, this court explained that to prove inducement or an attempt thereof pursuant to § 53a-151, the evidence before the jury must be sufficient to conclude that the defendant’s conduct was intended to prompt the witness to be absent from official proceedings that the defendant believed were pending or about to be instituted or to testify falsely or to refrain from testifying at those proceedings. Id., 53 n.4; see State v. Cavallo, supra, 200 Conn. 668.

In Cavallo, our Supreme Court held that “[t]he language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely or to refrain from testifying in an official proceeding that the perpetrator believes to be pending or imminent. The legislature’s unqualified use of the word ‘induce’ clearly informs persons of ordinary intelligence that any conduct, whether it be physical or verbal, can potentially give rise to criminal liability. Although the statute does not expressly mandate that the perpetrator intend to cause the witness to alter or withhold his testimony, this implicit requirement is apparent when the statute is read as a whole.” State v. Cavallo, supra, 200 Conn. 668. For reasons that follow, we conclude that the evidence sufficed to supply the required factual predicate for the elements of the crime, including intent.

In the present case, the state presented the following relevant evidence. The defendant knew that the police were aware of the identities of the participants in the robbery. The defendant knew that Fragola had turned herself in to the police and had implicated Draughn, Poole and the defendant in the robbery. From this evidence, the jury reasonably could have inferred that the defendant believed that an official proceeding was about to be instituted. When Poole relayed to the defendant that he, too, likely would go to the police, the defendant became “unhappy” and, in a threatening tone, told Poole that although he loved Poole like a brother, if Poole went to the police, it would be “his ass.” The jury reasonably could have inferred that this slang expression was a threat, designed to prevent Poole, a witness to the events, from giving information to the police and, thus, to withhold evidence which would implicate the defendant in an official proceeding that was imminent, namely, an arrest followed by a criminal prosecution resulting in a trial in which testimony would be taken under oath.

“[I]t is our function to review the evidence and construe it as favorably as possible with a view toward sustaining the conviction, and then [to] determine whether, in light of the evidence, the trier of fact could reasonably have reached the conclusion it did reach.” (Internal quotation marks omitted.) State v. Foreshaw, supra, 214 Conn. 551. From the evidence presented, the jury reasonably could have concluded beyond a reasonable doubt that the defendant was guilty of tampering with Poole, a witness to the crime, by threatening him in an effort to get him to withhold information from the police when the defendant believed an official prosecution of him was about to be instituted. Therefore, we affirm the judgment of the trial court.

Last, the defendant, recognizing that we are bound by Supreme Court precedent, states that if we find State v. Foreshaw, supra, 214 Conn. 540, to be binding authority for our interpretation of whether an “official proceeding was about to be instituted,” he will seek certification from our Supreme Court with a request that Foreshaw be overruled. We leave him to that remedy.

The judgment is affirmed.

In this opinion the other judges concurred.

       On the tampering charge, the court had instructed the jury without objection that it was necessary for the state to prove that “the defendant believed an official proceeding was pending or about to be instituted. An official proceeding is any proceeding [that is] held or may be held before any judicial official authorized to take evidence under oath. A criminal case in court is one example of an official proceeding.” The jury was present at the defendant’s trial, heard Poole’s testimony concerning the defendant’s warning to him to refrain from talking to the police and personally observed that Poole and all witnesses were administered an oath and gave sworn testimony on the very charges for which the defendant was convicted.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. RHONDELL BONNER
    (AC 28538)
    DiPentima, Harper and West, Js.

      Argued May 21
    officially released September 30, 2008

      Christopher Y. Duby, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior 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

HARPER, J.

The defendant, Rhondell Bonner, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 2 la-279 (d). The defendant claims that the trial court improperly (1) failed to hold an evidentiary hearing related to his motion to suppress evidence, (2) denied his motion to suppress evidence and (3) denied his motion for a judgment of acquittal. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. In the early afternoon of January 7,2003, Andrew Jacobson, a Hartford police officer, was on patrol duty in his police cruiser. A police dispatcher provided information to Jacobson via his police radio that the defendant, who was wanted for questioning, was a passenger in a red Ford Probe, bearing out-of-state license plates, which was being operated on Albany Avenue. Soon thereafter, Jacobson observed an automobile matching this description enter the driveway of a gasoline station and stop alongside a gasoline pump. The station was located on Albany Avenue, within 1500 feet of a middle school at which the defendant was not enrolled as a student.

Jacobson drove his cruiser into the driveway of the station and observed a person, whom he suspected was the defendant, in the front passenger seat of the automobile. Jacobson parked his cruiser, and as he exited the cruiser, the defendant extended his hands from the automobile and stated, “I’m Rhondell.” The defendant complied with Jacobson’s request to exit the automobile. Jacobson placed handcuffs on the defendant and conducted a patdown search of the defendant that yielded a cellular telephone, $126.25 and several small pieces of paper that bore the word “Cream,” which is a nickname used by the defendant, as well as a telephone number.

After additional officers arrived and the driver, as well as two other passengers, had exited the automobile, Jacobson searched the automobile. On the floor of the automobile in the vicinity of the front passenger seat, Jacobson discovered and seized a clear plastic bag containing a white, rock like substance similar in appearance to crack cocaine. The defendant was transported to the Hartford police department, where he was interviewed by police detectives. Prior to being interviewed, the defendant, complying with a request to give the police any items on his person, removed from his rear waistband a small plastic bag that contained a white, rock like substance. Subsequent testing revealed that one of the bags seized by the police contained a substance that included 1.31 grams of cocaine and that the other bag contained 1.23 grams of nicotinamide, a vitamin that is sometimes used as a “cutting agent” in the cocaine trade. During the course of a police interview, the defendant stated that he had been “picked up with some cocaine earlier in the day” and that he had sold cocaine in the vicinity of Albany Avenue just days earlier. Additional facts will be set forth as necessary.

I

First, the defendant claims that the court violated his right to due process, under the federal and state constitutions, when it declined to hold an evidentiary hearing related to his motion to suppress evidence. We disagree.

On July 5, 2006, the defendant filed a motion to suppress evidence that he alleged was obtained illegally by the police following his arrest on January 7, 2003. The motion stated: “The evidence in this case was obtained as a result of a warrantless arrest of the [defendant, and the subsequent warrantless search of his person and the automobile which he was allegedly operating. The arrest and subsequent search were done without probable cause to believe that the [defendant had committed any crime.”

On November 15, 2006, during jury selection, the defendant’s attorney reminded the court that he had filed a motion to suppress the drugs seized by police from the automobile and the defendant. The defendant’s attorney requested a hearing related to that motion. The defendant’s attorney also informed the court that in a separate proceeding in which the defendant stood trial for murder, the defendant’s attorney had filed a motion to suppress statements made by the defendant to the police following his arrest on January 7, 2003, and that the court in that proceeding, Espinosa, J., had denied the motion to suppress. The court noted that because of the denial of the motion to suppress in the earlier proceeding, the defendant’s motion could present an issue of collateral estoppel. The court stated that it would consider the issue after reviewing the file from the earlier proceeding, including Judge Espinosa’s ruling.

The following day, November 16, 2006, the court informed the parties that it had reviewed Judge Espinosa’s decision and that it appeared that Judge Espinosa had made factual findings on which she determined that the defendant’s arrest on January 7, 2003, was lawful. The defendant’s attorney disagreed that the earlier ruling had any preclusive effect on the present motion to suppress. He argued that the issue before Judge Espinosa was whether the defendant’s statement to police following his arrest should be suppressed because the statement was the result of improper police coercion and that in the present case, the motion to suppress focused on the legality of the defendant’s arrest. The defendant’s attorney argued that to the extent that Judge Espinosa made any determinations concerning the legality of the arrest, they were unnecessary to a resolution of the issue before the court. The court disagreed with this characterization of Judge Espinosa’s ruling, noting that the defendant’s trial attorney in the earlier proceeding had, in fact, argued that the arrest was illegal. The court stated that on the following day, it would permit the defendant to present evidence “to make a record to show that Judge Espinosa’s findings were not necessarily decided.”

On November 17, 2006, the court revisited the issue. The defendant’s attorney claimed that the defendant’s arrest was illegal because it occurred without probable cause. The defendant’s attorney argued that the discovery of drugs in the passenger area of the automobile did not give rise to probable cause to suspect that the defendant possessed the drugs. He argued: “There were a number of people in the car. The officer had . . . not kept an eye on the people in the car while he was taking [the defendant] out of the car.” The defendant’s attorney argued that for these reasons, the drugs and “everything that follows” should be suppressed as the fruit of police illegality.

The court read aloud from Judge Espinosa’s ruling, reciting factual findings that related directly to the circumstances of the defendant’s arrest at the gasoline station on January 7, 2003. The court noted that on the basis of these detailed findings, Judge Espinosa concluded that “the cocaine that was found in the foot area of the car where the defendant was seated was in plain view [of the police], and there was probable cause to arrest him. Consequently, the search of the defendant’s person at the scene and at the police station were justified as incident to his arrest.”

The. court stated: “[I]t’s clear to me that Judge Espinosa has found the very things which you’re arguing. [W]hat today was for, as I understood it, was to give you a chance to show me why the findings as to the legality of the arrest were not necessarily decided, were not necessarily included in what Judge Espinosa had to decide. I think we’re all in agreement that if a decision about the legality of [the defendant’s] arrest has been made by Judge Espinosa in another trial of [the defendant], then you’re estopped from raising it at this trial because it’s already decided.”

The defendant’s attorney stated that another hearing concerning the legality of the arrest was warranted because Judge Espinosa’s findings were not binding on the court. The defendant’s attorney argued that the drugs at issue in the present case were not evidence in the murder trial. He argued that the subject of the earlier motion to suppress, before Judge Espinosa, was the defendant’s statement to the police. He argued that it was not necessary for Judge Espinosa to determine whether the defendant’s arrest was lawful because the motion to suppress “could very well” have been denied on a finding that the defendant’s statement to the police was knowing and voluntary.

The court ruled as follows: “I have gone through the transcripts, and it’s clear to me what occurred at [the defendant’s] previous hearing on the motion to suppress his statement in his previous trial. . . . [A]n issue is actually litigated if it is properly raised in the pleadings or otherwise submitted for determination and, in fact, determined. . . . [T]he issue of the legality of the arrest was raised by the defense in the murder trial of [the defendant]. It was actually litigated, it was submitted for determination and, in fact, determined by Judge Espinosa. For that reason, the doctrine of collateral estoppel does apply or perhaps even res judicata. But . . . whether it’s issue preclusion or claim preclusion, the defense is not entitled to a hearing on that very same factual issue. And so the request for a hearing on the motion to suppress is denied. The motion to suppress is also denied.”

The defendant claims that his due process rights, under the state and federal constitutions, were violated by the court’s denial of his request for an evidentiary hearing related to his motion to suppress evidence. He argues: “Without a hearing, there was no way to determine if the evidence used against him was obtained illegally and in contravention of his federal or state constitutional right to be free of having the state use illegal evidence against him. . . . The defendant was without an opportunity to present any facts to the trial court—which could have been used by this tribunal in assessing the trial court’s decision to deny the defendant’s motion to suppress, had any been found by the court—and therefore without an opportunity to even attempt to establish a record of facts in this case.”

The defendant argues that material differences existed between the evidence considered by Judge Espinosa and that considered by the jury during the trial in the present case. On the basis of these differences, he posits that had the court considered the evidence presented at trial at a hearing on his motion to suppress, it may have found a factual basis on which to grant his motion, one that was not presented to Judge Espinosa. The defendant also argues that the court lacked discretion to deny his request for a hearing because General Statutes § 54-33f afforded him an absolute right to present evidence in support of his motion. Additionally, the defendant claims that the court improperly applied the doctrine of collateral estoppel because, in contrast with the present case, the trial before Judge Espinosa concerned unrelated criminal charges, and the subject of the suppression hearing was his statements to the police, not the drugs seized from the automobile or his person. The defendant also claims that the doctrine of collateral estoppel cannot be applied properly in the context of this case, in the state’s favor, because, in the criminal law context, the doctrine properly may be invoked only to protect a defendant’s right against double jeopardy.

In denying the defendant’s request for a hearing, the court relied on the doctrine of collateral estoppel. “The principle of collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. . . . [Collateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. . . . For collateral estoppel to apply, the issue concerning which relitigation is sought to be estopped must be identical to the issue decided in the prior proceeding. . . .

“An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. ... An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. . . . We review collateral estoppel claims de novo.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Joyner, 255 Conn. 477, 489-90, 774 A.2d 927 (2001).

First, we reject the defendant’s general assertion that in a criminal prosecution, a court may not apply the doctrine of collateral estoppel in the state’s favor but only to protect a defendant’s right against double jeopardy. The defendant has not cited any relevant authority in support of this assertion, and we are not aware of any such authority. Surely, in criminal cases, the doctrine has a constitutionally protected application in that “collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy.” (Internal quotation marks omitted.) State v. Santiago, 275 Conn. 192, 201, 881 A.2d 222 (2005). This court has observed that collateral estoppel is based on “the public policy that a party should not be able to relitigate a matter which it already had an opportunity to litigate” and the principle that “once a matter has been fully and fairly litigated, and finally decided, it comes to rest.” (Internal quotation marks omitted.) State v. Jones, 98 Conn. App. 695, 700-701, 911 A.2d 353 (2006), cert. denied, 281 Conn. 916, 917 A.2d 1000 (2007). This court further observed: “It is well settled that the principles of collateral estoppel and res judicata apply to criminal as well as to civil cases.” Id., 701. Similarly, our Supreme Court has stated: “[Collateral estoppel] is that aspect of the doctrine of res judicata which serves to estop the relitigation by parties and their privies of any right, fact or legal matter which is put in issue and has been once determined by a valid and final judgment of a court of competent jurisdiction. ... In principle, the doctrine of collateral estoppel applies to criminal as well as civil proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Fritz, 204 Conn. 156, 172, 527 A.2d 1157 (1987), overruled in part on other grounds by State v. Crawford, 257 Conn. 769, 779-80 & n.6, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985 (2002).

Second, we conclude that the court properly applied the doctrine in light of the particular facts of this case. Our careful review of both the proceedings before Judge Espinosa and the matters before the court in the present case reveals that the issue of whether the police acted with probable cause in arresting the defendant on January 7, 2003, was determined by a valid and final judgment in the proceeding before Judge Espinosa. The issue was actually litigated in the prior proceeding: the defendant raised the issue and submitted the issue for determination in his motion to suppress, and the court resolved the issue on its merits. The issue was necessarily litigated in the prior proceeding: in support of his motion to suppress his statement to police, the defendant claimed that the statement should be suppressed as the fruit of an illegal arrest and that his statement was not knowing and voluntary. The court could not have denied the defendant’s motion to suppress without rejecting the defendant’s claim that the statements were the fruit of police illegality related to his arrest.

It does not affect our analysis that the prior proceeding concerned criminal charges different from those at issue in the present case or that the evidence at issue in the prior suppression hearing was the defendant’s statements to the police, rather than the drugs seized by the police. The identical and integral issue in ruling on the motion to suppress in both cases was whether the police acted with probable cause in arresting the defendant. The issue was decided in the first proceeding under the same legal principles that applied in the present proceeding, regardless of the crimes with which the defendant stood charged. The motions at issue concerned different fruits of police activity, but the same police activity was the subject of both motions to suppress. Thus, we conclude that the issue was identical in both proceedings and actually and necessarily determined.

Additionally, our conclusion that collateral estoppel applied alleviates the constitutional concerns raised by the defendant. Contrary to the defendant’s claim, he was not deprived of his statutory right to present evidence in support of his motion to suppress and, thereby, to challenge the constitutionality of his arrest. The record before us reflects that he availed himself of this right before Judge Espinosa. When afforded a full and fair opportunity in the present case to persuade the court that the factual issues related to his motion to suppress were not necessarily decided before Judge Espinosa, the defendant failed to demonstrate that this was the case. Accordingly, we conclude that the court properly determined that collateral estoppel applied and denied the request for a hearing.

II

The defendant next claims that the court improperly denied his motion to suppress. We disagree.

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. ... On appeal, we apply a familiar standard of review to a trial court’s findings and conclusions in connection with a motion to suppress. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. . . . Whether the trial court properly found that facts submitted were enough to support a finding of probable cause is a question of law. . . . Because a trial court’s determination of the validity of a . . . search [or seizure] implicates a defendant’s constitutional rights, however, we engage in a careful examination of the record to ensure that the court’s decision was supported by substantial evidence. . . . However, [w]e . . . give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) State v. Garcia, 108 Conn. App. 533, 543-44, 949 A.2d 499 (2008).

In part I, we rejected the defendant’s claim that the court improperly denied his request for a hearing. We concluded that the court properly determined that the defendant was collaterally estopped from rehtigating the issue raised in his motion to suppress and properly declined to hold an evidentiary hearing related to that issue. Having concluded that collateral estoppel applied and barred the relitigation of this issue, which was resolved during the prior trial, we likewise conclude that the court properly denied the defendant’s motion to suppress. Judge Espinosa unambiguously rejected the defendant’s claim that his arrest was illegal. In the present case, the court declined to revisit the issue and, accordingly, did not make any factual findings related to it. The court’s reliance on Judge Espinosa’s ruling in denying the defendant’s motion to suppress was legally and logically correct; the prior ruling was dispositive of the issue raised in the defendant’s motion.

Ill

Next, the defendant claims that the court improperly denied his motion for a judgment of acquittal. We disagree.

At the close of the evidentiary phase of the trial, the defendant moved for a judgment of acquittal as to all of the charges of which he stood accused. As relevant to the claims raised on appeal, the defendant’s attorney argued that there was no evidence to support a finding that the defendant possessed the rock like substance found in the automobile. Further, he argued that the state did not present evidence as to whether the substance found in the automobile or the substance that the defendant turned over to the police prior to questioning contained cocaine, only that one of those substances contained cocaine. The defendant’s attorney argued that on these facts, the jury could reach a guilty verdict only by speculating that the substance the defendant turned over to police was the substance containing cocaine.

The court noted that because the state did not present evidence from which the jury reasonably could determine which of the two substances at issue contained cocaine, it likely would instruct the jury that it could return a guilty verdict only if it found that the defendant possessed both of the substances. Thereafter, the court denied the defendant’s motion.

On appeal, the defendant reiterates the arguments he raised before the trial court. The defendant does not argue that the evidence did not support a finding that he possessed the substance that he turned over to the police prior to questioning or that one of the two substances seized by the police contained cocaine. Instead, he argues that the state did not prove beyond a reasonable doubt that he possessed the substance found by police on the floor of the automobile. In this regard, he argues that the evidence reflected that the substance was found in a “common area” within the automobile, he was merely a passenger in the automobile, there were other passengers in the automobile, the substance was not found among his personal possessions, he had not made any “furtive movements” as the officer approached him, he had not uttered any “incriminating statements” to the officer who approached him, he “made no admissions that he was in possession of any illegal substance on the day of his arrest,” and no other incriminating facts supported an inference that he was in possession of the substance. The defendant argues that because there also was no evidentiary basis to conclude that the substance he turned over to the police contained cocaine, there was no evidentiary basis to support a finding that he possessed cocaine.

“The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt .... The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. ... It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test. We first review the evidence . . . in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn . . . the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citation omitted; internal quotation marks omitted.) State v. Hamlett, 105 Conn. App. 862, 866, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

Possession is an essential element common to both crimes with which the defendant stands convicted. See General Statutes § 21a-279 (a) and (d). The defendant’s claim may be resolved by determining whether the state proved beyond a reasonable doubt that the defendant possessed both the substance that he turned over to the police prior to his interview and the substance found by the police on the floor of the automobile near the passenger’s seat. If the evidence reasonably permitted such findings, the jury reasonably could have concluded that the defendant possessed cocaine at the place and time of his arrest on January 7, 2003.

“[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where . . . the [narcotics were] not found on the defendant’s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the defendant to dominion and control, the [finder of fact is] entitled to consider the fact of [the defendant’s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime.” (Citation omitted; internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 149-50, 939 A.2d 524 (2008).

The state presented testimony from Jacobson that when he came upon the automobile in the gasoline station parking lot, he observed four occupants: the defendant in the front passenger’s seat, a female in the driver’s seat and a female and a male in the backseat of the automobile. Jacobson testified that the defendant complied with his commands and that after all of the occupants had exited the automobile and the police had secured the automobile, he found “a clear plastic bag with some small white rocks in it,” similar in appearance to crack cocaine, on the floor of the automobile “where [the defendant] was sitting.” Jacobson further testified that a patdown search of the defendant yielded a cellular telephone, $126.25 and a number of pieces of paper which bore the name “Cream” and a telephone number. Jacobson testified that to his knowledge, “Cream” was the defendant’s nickname.

The state also presented testimony from Winston Brooks, who was a detective with the Hartford police department in January, 2003. Brooks testified that he escorted the defendant to an interview room following his arrest and arrival at police headquarters. He testified that he asked the defendant to remove any items or contraband that he possessed and that the defendant removed from his rear waistband a plastic bag containing a white, rock like substance.

The state also presented testimony from Mark Fowler, a detective with the Hartford police department, who interviewed the defendant following the arrest. Fowler testified that the defendant made several incriminating statements. As relevant, Fowler testified that the defendant stated that he had been “picked up with some cocaine earlier in the day.” Fowler also testified: “[The defendant] told me during the course of the interview that on December 29, 2002, several days prior, that he was on Cabot Street selling cocaine.” Fowler testified that Cabot Street intersects with Albany Avenue at the gasoline station where the defendant was arrested.

As set forth previously, the state presented evidence that one small plastic bag was discovered on the floor of the automobile and that the defendant removed a second small plastic bag from his clothing prior to his interview. The state presented evidence that one of these bags contained a substance that included cocaine, and the other contained a substance that is used as a cutting agent in the cocaine trade. As we have already observed, the defendant does not claim that the evidence did not permit a finding that he possessed the substance that he turned over to police at the police department or that one of the two substances seized by police contained cocaine.

On the basis of the evidence presented to the jury, we conclude that the jury reasonably could have found that the defendant constructively possessed the substance found in the automobile, as well. It is not disputed that the defendant was not in exclusive possession of the automobile. The evidence, however, included incriminating statements and circumstances that buttressed an inference that whether the substance was the cocaine or the cutting agent, the defendant knew the character of the substance found in the automobile, knew of its presence and that he exercised dominion and control over it. It was reasonable for the jury to find that police discovered items consistent with drug dealing in the defendant’s possession, the most incriminating being the numerous slips of paper inscribed with the defendant’s nickname and a telephone number. It was also reasonable for the jury to infer from the evidence that the defendant had an opportunity to place the substance on the floor of the automobile when he observed Jacobson approaching the automobile prior to his arrest. The defendant’s statements concerning his possession of cocaine earlier in the day, as well as his statements concerning his activities, just days earlier, in the area of his arrest, strongly buttressed an inference that the defendant possessed the substance found in the automobile.

Finally, the fact that the defendant gave the police another white, rock like substance, one that he stored in his rear waistband, before his interview is significant in evaluating whether he possessed a substance of similar appearance, similarly packaged, that was found in the automobile. The evidence established that of the two substances at issue, one contained cocaine and the other contained a cutting agent used in the preparation of cocaine for distribution. The jury reasonably could have found, and it is not in dispute, that the defendant possessed either the cocaine or the cutting agent at the police department. This finding made it entirely more likely that the defendant also possessed the substance found in the automobile.

The evidence, viewed as a whole, supported a finding that the defendant constructively possessed both bags containing rock like substances. A finding of constructive possession of the substance found in the automobile is amply supported by incriminating statements and circumstances and not merely by the temporal and spatial nexus between the defendant and the substance found in the automobile. Additionally, the evidence demonstrated that one of the substances in the bags seized by the police contained cocaine. We conclude, therefore, that the evidence necessarily permitted a finding that the defendant possessed cocaine.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-279 (a) sets forth penalties for the illegal possession of any quantity of any narcotic substance. Section 21a-279 (d) provides in relevant part: “Any person who violates subsection (a) . . . of this section in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school . . . shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a) . . . of this section.”
      The court imposed a total effective sentence of six years imprisonment. The jury found the defendant not guilty of two additional counts, namely, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).

       In his principal brief, the defendant also claims that the court improperly permitted the state to introduce portions of a statement he made to the police. During argument before this court, the defendant withdrew this claim.

       Additionally, the police discovered a plastic bag that contained a white, rock like substance on the floor of the automobile in the vicinity of the driver’s seat. The police attributed this substance to the female driver of the automobile. In yet another area of the automobile’s interior, the police discovered a white, rock like substance and a pipe, both of which were attributed to a male passenger other than the defendant.

       The court revisited this issue the next day, during its charging conference. Later, during the jury charge, the court instructed the jury with regard to the element of possession. As part of this instruction, it instructed the jury in relevant part: “You have testimony about two quantities of substance that some of the evidence indicates were found. One substance that was handed, so the evidence says if you accept it, by [the defendant] to the detective before entering the interrogation room at the police station. And the second quantity that was found, according to the testimony, in the car where [the defendant] was [a] passenger before being removed from the car by the police officer.
      “You heard all the testimony, and remember you’re free to disregard my comments about the evidence. The point I wish to make, though, is because only one of those packets, as the testimony indicates, contained cocaine, again, if you accept that testimony, you must find beyond a reasonable doubt that the defendant possessed both the packet that was taken from the passenger seat floor of the car, as the evidence shows, and the packet that he handed to the detective before going into the interrogation room at the Hartford police station. Otherwise, you’d be unable to toll which was the real substance."