author: HENNESSY, J.

text:
    IN RE AMY H.

    (AC 17889)
    Hennessy, Vertefeuille and Daly, Js.
    Argued September 30
    officially released December 14, 1999

      Raymond J. Rigat, for the appellant (respondent father).

      Susan Quinn Cobb, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Carolyn K. Querijero, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

HENNESSY, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his child, Amy H. On appeal, the respondent claims that the court improperly (1) terminated his parental rights on the statutory grounds of failure to achieve personal rehabilitation, abandonment and denial by acts of omission or commission of the care, guidance or control necessary for the child’s welfare, (2) drew a negative inference from his refusal to participate in a court-ordered psychological examination, (3) relied on Yontef v. Yontef, 185 Conn. 275, 440 A.2d 899 (1981), for authority in entering sua sponte protective orders regarding visitation and (4) ordered the foster parents to append the court’s memorandum of decision to any requests for a protective order to restrain the respondent from contacting them. We vacate the judgment of the trial court in part.

The following facts and procedural history are relevant to this appeal. The respondent and JoAnn B. are the parents of Amy H. The department of children and families (department) became involved early in Amy’s life when it found, shortly after her birth, that she was at risk due to JoAnn’s addiction to heroin and alcohol. In 1995, when Amy was fifteen months old, JoAnn was arrested after police observed her and her brother dealing drugs. The arrest was effected after JoAnn and her brother led the police on a motor vehicle chase with Amy in the car. The police found cocaine and drug paraphernalia in the car in clear view and reach of Amy. Thereafter, the police contacted the department, which placed Amy in foster care. At the time of JoAnn’s arrest, the respondent was incarcerated. The juvenile court adjudicated the child neglected on February 15, 1995. Amy has since remained in foster care with the respondent’s sister and husband. On January 22, 1997, the commissioner of children and families (commissioner) filed the petition to terminate parental rights.

The respondent has an extensive criminal record and has been in prison for most of Amy’s life. The court noted that he had been arrested thirty-three times as an adult, including arrests made after the petition for termination of parental rights was filed by the commissioner. Despite the availability of parenting programs and anger and stress management classes in prison, the respondent refused to attend any of them. He also refused substance abuse counseling despite the fact that he was found to have the highest level of drug dependency.

The respondent refused to cooperate with department social workers or the court-appointed evaluator, who attempted to assess his parenting abilities and to compile his social history. In addition, the respondent was belligerent and rude and used profanity during the termination of parental rights hearing.

After the termination hearing, the court determined that the respondent “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time . . . [he] could assume a responsible position in the life of the child,” that the respondent committed acts of omission and commission that “denied [the child] the care, guidance or control necessary for [her] physical, educational, moral or emotional well-being,” and that Amy had been abandoned by the respondent in the sense that he failed to maintain a reasonable degree of responsibility as to her welfare. After making those factual findings, the court concluded that it was in the best interest of the child to terminate the respondent’s parental rights.

“ ‘The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. See Practice Book § 1042.1 et seq. [now § 33-1 et seq.]. In the adjudicatory phase, the trial court determines whether the statutory ground for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether the termination of parental rights is in the best interests of the child. In re Maximina V., 44 Conn. App. 80, 82-83, 686 A.2d 1005 (1997).’ In re Drew R., 47 Conn. App. 124, 127, 702 A.2d 647 (1997).” In re Pascacio R., 52 Conn. App. 106, 109, 726 A.2d 114 (1999).

“ ‘The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995).’ ... ‘On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached .... Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.’ ” (Citation omitted.) In re Pascacio R., supra, 52 Conn. App. 109-10.

I

The respondent claims that there was insufficient evidence to terminate his parental rights on the ground of failure to achieve personal rehabilitation pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B). “Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent.” (Internal quotation marks omitted.) In re Christina V., supra, 38 Conn. App. 220. “[Section 17a-112 (c) (3) (B)] requires parental rights to be terminated if by clear and convincing evidence it is established that the respondent’s level of rehabilitation falls short of the level which would encourage the belief that within a reasonable time, considering the age and needs of the child, the parent could assume a responsible position [in the life of the child]. . . . Thus, the statute requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Internal quotation marks omitted.) In re Hector L., 53 Conn. App. 359, 366-67, 730 A.2d 106 (1999).

The court found by clear and convincing evidence that the respondent failed to achieve sufficient personal rehabilitation as required by the statute. In its memorandum of decision, the court noted that the respondent had been in jail for most of Amy’s life. Furthermore, the respondent did not take advantage of any substance abuse and parenting programs available to him to achieve personal rehabilitation. Although the respondent did demand visitation with Amy, the court found that the visitation was “decidedly one-sided in favor of [the respondent]” as the respondent would want to spend most of the time arguing with the department worker who attended each visit instead of paying attention to Amy. In light of these findings, we conclude that the trial court’s determination that the respondent failed to achieve a level of rehabilitation that would encourage the belief that within a reasonable time he could assume a responsible position in Amy’s life was not clearly erroneous.

In addition, when considering whether the termination was in the best interest of Amy, the court found that since the filing of the petition, the respondent had committed sixteen discipline infractions of the highest order and ten lower class infractions during his most recent incarceration. As a consequence, the respondent had been denied early release from prison, thus precluding himself from parenting Amy. The court also noted that the respondent demonstrated an absence of concern for Amy’s welfare and had not been available to provide her a “permanent, nurturing and safe environment.” We hold that the court’s conclusion that the termination of parental rights was in the best interest of Amy was not clearly erroneous.

II

The respondent next claims that the trial court had no authority to enter, sua sponte, protective orders regarding visitation between Amy and the respondent under Yontef v. Yontef, supra, 185 Conn. 275. Specifically, the court ordered that no visitation would be granted pending appellate resolution of the case and subsequent retrial if ordered. We hold that the respondent cannot successfully challenge the visitation order because he did not move for a stay of execution.

Practice Book § 61-11 provides in relevant part that “proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause .... This section shall not apply ... to juvenile matters brought pursuant to chapters 26 through 35 [of the Practice Book, which govern procedure in juvenile matters] . . . .”

In the present case, the respondent did not move for a stay of execution. Hence, his visitation rights were extinguished when his parental rights were terminated. See Practice Book § 61-11. Accordingly, we hold that the respondent cannot successfully challenge the court’s visitation order because the order terminating his parental rights was not stayed.

III

The respondent’s final claim is that the trial court improperly directed that a copy of its memorandum of decision be attached to any request by the foster parents for a restraining order preventing the respondent from contacting the foster parents, their children or Amy. We agree.

General Statutes § 46b-124 (a) provides in relevant part that “[a]ll records of cases of juvenile matters, as defined in section 46b-121 ... or any part thereof . . . shall be confidential and for the use of the court in juvenile matters, and open to inspection or disclosure to any third party . . . only upon order of the Superior Court . . . .” Our Supreme Court has held that “only a showing of compelling need could justify nonconsensual disclosure of any information contained in juvenile records for the purposes of civil litigation involving an adult who was formerly the subject of adjudications in the Superior Court for Juvenile Matters.” In re Sheldon G., 216 Conn. 563, 584, 583 A.2d 112 (1990). Although In re Sheldon G. involved a delinquency proceeding, the principles of confidentiality embodied in § 46b-124 and discussed in In re Sheldon G. are analogous and applicable to the present case. Thus, only a showing of compelling need can justify the disclosure of the confidential materials in a parental termination proceeding.

The court noted in In re Sheldon G., supra, 216 Conn. 580-81, that “[t]he Superior Court for Juvenile Matters has broad authority ... to order not only the juvenile but also his parent or guardian to submit to extensive physical and mental examinations. Prior to the disposition of any delinquency case, the court is required to order an investigation of the ‘home conditions, habits and character’ of the parents or guardian of an affected juvenile. General Statutes § 46b-134. The records of these investigations and examinations become part of the ‘records of cases of juvenile matters’ and are protected from public disclosure only by the confidentiality provisions of § 46b-124.” Similarly, in parental termination hearings, the court has broad authority to order the child and the child’s parents to submit to mental examinations. See General Statutes § 45a-717 (d). The court also has broad authority to request that the department investigate the parents and the child to gather information that may be relevant to the court’s determination as to whether to terminate parental rights. See General Statutes § 45a-717 (e) (1). Similar to the information gathered in delinquency proceedings, the examinations and investigations gathered for a termination proceeding are protected only by the confidentiality provisions of § 46b-124.

Although the court has discretion to order disclosure of records, “its discretion must be informed by the policies that the statute is intended to advance.” In re Sheldon G., supra, 216 Conn. 584. While § 46b-124 does not create “a statutory privilege against disclosure of juvenile records for family members of the child who is the subject of proceedings in juvenile matters,” it is, however, “appropriate to consider the nature of the information generally contained in the juvenile records” to decide whether the records should remain confidential. Id., 582.

In the present case, the court’s memorandum of decision provides detailed analysis of the history, psychological evaluations and studies by the department concerning Amy, JoAnn and the respondent. Strong public policy concerns exist for maintaining the confidentiality of the highly personal information in this memorandum of decision. See, e.g., id.; State v. Storlazzi, 191 Conn. 453, 458, 464 A.2d 829 (1983) (regarding disclosure of psychiatric records). Considering the nature of the information in the memorandum of decision, we hold that without a showing of compelling need, the court’s decision cannot be released in the manner ordered by the court. There are certainly alternative means of obtaining information for any such restraining order that would be readily available. We hold, therefore, that it was an abuse of discretion for the court to have ordered the release of the memorandum of decision on the basis of the anticipation that the respondent would attempt to contact the foster parents, their children or Amy in a manner that would require the foster parents to seek a restraining order. Accordingly, we vacate the court’s order authorizing and directing the publication of the memorandum of decision.

The judgment is vacated in part and the case is remanded with direction to render judgment as on file except as modified to eliminate the order authorizing the release of the trial court’s memorandum of decision.

In this opinion the other judges concurred.

       Although her parental rights also were terminated, Amy’s mother did not appeal the judgment of the trial court. We refer in this opinion to the respondent father as the respondent.

       The respondent also claims that the court improperly terminated his parental rights on the grounds of abandonment and having committed acts of commission or omission that denied the child the care, guidance or control necessary for her well-being pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (A) and (C), respectively. “To prevail, the [respondent] must successfully challenge all three of the bases of the judgment terminating [his] parental right s. If any of the grounds relied on by the trial court are upheld on appeal, the termination of parental rights must stand.” In re Kezia M., 33 Conn. App. 12, 17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); see also In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984). We conclude that the ground of failure to achieve rehabilitation has been proven by clear and convincing evidence. Accordingly, we need not address the other claims involving abandonment and denial of necessary care, guidance or control.
      Furthermore, the claim by the respondent that the court drew a negative inference from the fact that he did not participate in a court-ordered psychological examination is not supported by the record.

       General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence (1) that the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... (2) that termination is in the best interest of the child, and (3) that over an extended period of time, which . . . shall not be less than one year . . . (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child

       General Statutes § 45a-717 (d) provides in relevant part: “Upon finding at the hearing or at any time during the pendency of the petition that reasonable cause exists to warrant an examination, the court, on its own motion or on motion by any party, may order the child to be examined at a suitable place by a physician, psychiatrist or licensed clinical psychologist appointed by the court. The court may also order examination of a parent or custodian whose competency or ability to care for a child before the court is at issue. . . .”

       General Statutes § 45a-717 (e) (1) provides in relevant part: “The court may, and in any contested case shall, request the Commissioner of Children and Families or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to the court’s determination of whether the proposed termination of parental rights will be in the best interests of the child, including the physical, mental, social and financial condition of the biological parents, and any other factors which the commissioner or such child-placing agency finds relevant to the court’s determination of whether the proposed termination will be in the best interests of the child. . .

       Under the current policy of the judicial branch, decisions in juvenile matters are released for publication, but redacted to maintain the confidentiality of those involved in the case. Under the order of the court in this case to attach the memorandum of decision to a request for a restraining order, the names and addresses of the parties involved in the restraining order would necessarily be identified as those in the memorandum of decision, thereby breaching the confidentiality required by § 46b-124 (a).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOSE L. ABRAHANTE
    (AC 18611)
    Foti, Landau and Dupont, Js.

      Argued September 24
    officially released December 14, 1999

      Jerald S. Barber, for the appellant (defendant).

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Jose L. Abrahante, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A), and six counts of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court abused its discretion in (1) allowing certain witnesses to testify as to the victim’s prior consistent statements, (2) admitting evidence regarding the defendant’s uncharged misconduct and (3) refusing to charge as requested on the credibility of child witnesses. The defendant also claims that he was deprived of a fan-trial because of prosecutorial misconduct committed during summation, and that the court improperly charged the jury. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1994, the victim, E, a ten year old girl, was a participant in a preschool day care program where the defendant was employed as a teaching assistant. During a school vacation in April, 1994, the students and teachers involved in the program went to a park. At some time during a hike up to a tower in the park, the defendant and E were alone on the trail. E asked the defendant how many times he had had sex, and the defendant replied, “[fifty] to [100] times.” She then asked him how many times he had had a “blow job,” and he told her, “About [fifteen] times.” The defendant asked her “if [she] knew different sexual positions.” E said that she did not and tried to change the subject because she felt “stupid.”

A few days later, one of the teachers in the program found a pocketbook that E had left behind when she went to class. Inside the pocketbook was a diary in which E discussed her conversation with the defendant at the park. The teacher gave the diary to Judy Kenney, the director of the day care program, who called E’s mother and arranged to meet with her the next day. At that meeting, Kenney told E’s mother about the diary entry. When her mother confronted her, E admitted that the conversation had taken place. In addition, E’s mother learned from Kenney that the defendant had admitted answering E’s questions. She therefore asked Kenney to “keep a close eye on the situation” and to make sure that E and the defendant were kept apart.

On March 28, 1995, the defendant and E were alone again in a storage closet that was also used as an office and a kitchen area for the day care program. The defendant told E that he had a “secret” that had happened five minutes ago. He said that his secret was that E had bent over and he had seen down her shirt. The defendant then asked E to pull the top of her shirt down, but she refused. He then fondled E’s breasts through her clothes.

After this first incident of sexual contact, the defendant’s relationship with E intensified. He continued to meet E in the storage closet and devised a system for meeting E in a stairwell near the gymnasium, where the day care program was held. The defendant would tell E to get permission to use the girls’ bathroom, which was off the hallway outside the gym. He would then walk by the bathroom and jingle his keys. From this signal, E knew to meet the defendant in the stairwell at the end of the hallway.

On the stairs and in the closet, they engaged in a variety of sexual activities three to four times a week. The defendant lifted up E’s shirt and bra and kissed and rubbed her breasts. He also put his hands inside E’s pants and underpants, touching her private area and putting his fingers inside her. He also asked E to touch and “lick his dick.” At first, E refused to perform oral sex, but she subsequently complied. Although the defendant did not ejaculate during oral sex, he sometimes ejaculated into a tissue when E was touching him.

During this time, the defendant made repeated comments to E about her developing breasts. On one such occasion, the defendant was whispering to his cousin, who also worked at the day care program. E asked the defendant what he was whispering about, and he told her that he had asked his cousin whether he thought that she was wearing a bra. The defendant also told E that other staff members had asked him if he knew whether she “stuffed her bra.” He repeatedly asked E what color her bra was.

On June 12, 1995, the defendant met E in the closet and told her to wear loose clothing or sweatpants the next day so that he could have vaginal intercourse with her. When E got home later that day, however, she was confronted by her parents, who had learned that she had been telling her friends about her relationship with the defendant. Although E denied that anything had happened and said that her friends were lying, E’s mother immediately removed her from the day care program, and she had no further contact with the defendant.

A few days later, E was interviewed by Peggy Hartman, a social worker from the department of children and families (department). E denied that she had had sexual relations with the defendant. She repeated this denial a third time to Nancy Frieberg, a psychologist who also interviewed her.

In February, 1996, E was brought to the police station by her parents. There, E met with Pam Kudla, a crisis inteivention specialist working primarily with victims of sexual abuse. E told her some of the details of her relationship with the defendant. She refused, however, to give a formal written statement. Kudla told E that she could come back when she was ready “to talk about it again” and gave her the telephone number for a crisis hot line.

Later that month, E and her friend, J, called the hot line and spoke with Trishia Orozco. E told Orozco some of the specifics of what the defendant had done to her and said that she could not decide whether to give a statement against the defendant to the police. Orozco spoke with E for about one hour, after which she immediately contacted the department.

On October 16,1996, E gave Kudla and police officer Terry Smyth a written statement describing what the defendant had done to her.

I

The defendant claims that the trial court improperly allowed three witnesses to present testimony as to the victim’s prior consistent statements.

Certain additional facts are necessary for the resolution of this issue. During the cross-examination of E, defense counsel inquired about apparent inconsistencies between E’s trial testimony and her prior statements setting forth specifics regarding what she had told both Kudla and Orozco. He suggested that perhaps she had fantasized the allegation to make herself look more mature.

Thereafter, the state sought to introduce testimony from Kudla, Orozco and J, who was with E during her telephone call to Orozco, detailing E’s prior statements. The defendant objected when Kudla’s testimony was offered. The trial court overruled the defendant’s objection, stating that because the thrust of the defendant’s cross-examination of E was inconsistency and fabrication, Kudla’s testimony was admissible “for a limited purpose, just so [the jury] can compare the details of this complaint with all the other instances or versions of it to see if it is inconsistent or consistent.”

Accordingly, the trial court instructed the jury that Kudla’s testimony could be used to “compare the testimony on the stand by [E] to what [E] said, whenever she said it, to see if the stories are consistent and in that way you can judge the credibility of the complaining witness here, are the stories consistent or inconsistent and then by using the testimony in that way you can decide if the witness is credible.” The court further instructed as follows: “So, you use it, you use this testimony for evaluating the credibility of the complaining witness. It is not like the witness is up here testifying. The witness did testify in this case and on direct examination testified about what happened. That’s direct evidence of her complaint. This witness could not give you direct evidence of this event because she was not there. She is telling you details that were repeated to her so that you can compare the details with the testimony that was produced [from E].”

Following Kudla’s testimony, Orozco and J testified, without objection by the defendant, regarding E’s statements.

In its final instructions, the trial court reminded the jury that it could use evidence of E’s prior statements “to corroborate her testimony in court. It is to be considered by you only in determining the weight and credibility of [E’s] testimony. The fact that [E] made these statements is not being offered to prove that it happened. It is for a different reason. It is being offered to corroborate her testimony here in court. In determining the extent of such corroboration in her statements out of court you will carefully consider all the circumstances under which they were made, and particularly you should consider whether she has been constant and consistent in what she has said.”

The court further instructed the juiy that, “[i]n addition to the purpose of corroborating her testimony, [E’s] out-of-court statements may be used for the purpose of impeaching her testimony and both sides argued each way in this regard. Therefore, you may rely on any contradictions and inconsistencies or falsities which you find in the complainant’s out-of-court statements. You can use those in assessing the weight and credibility of her testimony.”

Our Supreme Court in modifying the constancy of accusation doctrine limited the testimony of a person to whom a sexual assault victim had reported such a crime “to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.” State v. Troupe, 237 Conn. 284, 304, 677 A.2d 917 (1996). “The trial court, in its discretion, may admit into evidence a prior consistent statement of a witness who has been impeached by a prior inconsistent statement for the purpose of rehabilitating the witness. State v. Valentine, 240 Conn. 395, 413, 692 A.2d 727 (1997).” State v. Mitchell, 54 Conn. App. 361, 370-71, 738 A.2d 188, cert. denied, 251 Conn. 910, 739 A.2d 1250 (1999). In adopting the rule in Troupe, our Supreme Court stated that “the rule that we adopt today does not affect those cases in which the details of a sexual assault complaint are otherwise admissible, as, for example, in the case of a spontaneous utterance or in the case of a prior consistent statement admitted to rebut a claim of recent fabrication.” State v. Troupe, supra, 304 n.19.

The defendant’s cross-examination of E brought forward apparent inconsistencies between her prior statements and her testimony on direct examination. Kudla’s testimony was offered by the state as necessary for rehabilitation purposes to show the inconsistent statements in “context and to prevent the jury from being misled.” State v. Hines, 243 Conn. 796, 808, 709 A.2d 522 (1998).

The defendant has failed to demonstrate that the trial court abused its broad discretion in admitting Kudla’s testimony for purposes of showing E’s prior consistent statements.

II

The defendant next claims that the trial court improperly admitted evidence of prior uncharged misconduct through the testimony of two children, K and C, sisters who were enrolled in the day care program with E.

Additional facts necessary for the disposition of this claim are as follows. In the present case, the trial court held a hearing, out of the presence of the jury, after it had heard the state’s offer of proof.

The state’s proffered testimony of K showed that the defendant was “real touchy feely” and often played with K’s hair and asked her to kiss him. K did kiss the defendant once or twice on the cheek. At one time, the defendant asked K what color her bra was. When K called him a pervert and said that he should not be asking little girls questions like that, he replied that it was none of her business. Sometime later, K saw a sketch of someone who looked like E that the defendant had drawn, unclothed showing her breasts and private parts. E admitted to K that she was “doing things” of a sexual nature with the defendant. Sometime thereafter, the defendant asked K if she wanted to “do the same stuff with him that he was doing with E.”

The state’s proffered testimony of C showed that the defendant was “very touchy feely” and would ask the girls to sit on his lap, play with their hair and kiss them on the cheek. He asked C to kiss him on the lips and when she did he asked for “more” which C understood to mean “tongue kiss” which she refused to do. C testified that the defendant telephoned her at home several times. On one occasion he asked her what she was wearing underneath her outer clothes, and when she said a bra and underpants she felt uncomfortable and ended the conversation.

A hearing followed the offer of proof, after which the trial court ruled that only a limited portion of K and C’s testimony would be allowed before the jury. The court disallowed most of K’s testimony except as to the defendant’s seeking to “do the same stuff with him that he was doing with E.” The court found such evidence relevant and more probative than prejudicial, similar to the offense and involving a person similar to the witness. The court allowed it as an admission.

As to C’s testimony, the court limited the evidence to her testimony only as to the kiss on the lips and request to go further, as falling into the exception on intent. The court also allowed C to testify as to her telephone conversation with the defendant.

Following the testimony of K, the trial court instructed as follows: “When a person admits complicity or responsibility for an act, it is called an admission and that can be shown. A person’s statement acknowledging responsibility for a criminal act can be shown. You have to be satisfied that the statement was a true admission, and to reach that conclusion in this case I think it is fair to say you would have to conclude, based on the evidence and your evaluation of the testimony and evaluation of credibility . . . that [K] and the defendant were talking about the same thing. That’s your job to decide that. The same thing, what I mean by that is the stuff that was referred to, you’re the ones that have to decide what that meant and whether they both were talking about the same thing. That’s what jurors do.

“If you decide that they were both talking about the same thing, then you might consider that an admission on his part. But only for that purpose. Normally testimony about other conduct of the defendant is not allowed. Other conduct other than what he’s charged with is not allowed unless it is relevant on some point in the case. If you believe the testimony was a request on the part of the defendant to engage in the same type of activities that he’s charged with engaging in with [E], then you could use this testimony ... as evidence not of his bad character or propensity to commit a crime but only for evidence on whether or not he intended to commit the acts with which he’s charged in the information.”

Following C’s testimony, the court instructed: “This is testimony admitted for a limited purpose, not to show bad character or propensity to commit a crime, but the testimony about the conversation about kissing and the actual kissing is admitted on the issue of the intent, the defendant’s intent to commit the crimes charged. The testimony . . . with regard to the phone conversation about the bra and the underwear, if you believe that conversation took place, then you might use that to determine well, if a person did this, does it reflect on the question of whether they did the crime charged, is there a common scheme here . . . that’s what the state is attempting to show here. It is only if you believe this testimony. The credibility of witnesses is completely up to you.”

At the completion of the trial, the court in its final charge to the jury instructed that the testimony of K and C, if believed, could be used only to show intent or common scheme. The court instructed on “intent” and “common scheme” and specifically admonished the juiy not to use K and C’s testimony as evidence that the defendant is a “bad person.”

“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” (Citations omitted.) State v. Kulmac, 230 Conn. 43, 60, 644 A.2d 887 (1994). Exceptions to the general rule exist, however, “if the purpose for which the evidence is offered is to prove intent, identity, malice, motive, a system of criminal activity or the elements of a crime.” (Internal quotation marks omitted.) State v. Adorno, 45 Conn. App. 187, 191-92, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997); State v. Figueroa, 235 Conn. 145, 162, 665 A.2d 63 (1995). “We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect.” (Internal quotation marks omitted.) State v. Kulmac, supra, 61; State v. Figueroa, supra, 162.

“The primary responsibility for making these determinations rests with the trial court. We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” State v. Kulmac, supra, 230 Conn. 61; see State v. Figueroa, supra, 235 Conn. 162; State v. Mooney, 218 Conn. 85, 126, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).

A

The trial court properly allowed the state to present testimony from K regarding the defendant’s asking to do “the same stuff’ with her what he was doing with E. We agree that the evidence was admissible as an exception to the general rule either as an admission or as evidence of a common scheme, plan or pattern of conduct.

The jury could reasonably infer that the defendant’s proposition to K was an admission that the “stuff’ he was doing with E was sexual in nature. It was therefore relevant and material.

Evidence of prior misconduct with persons other than the prosecuting witness is admissible to show a common design or plan where the prior offenses (1) are not too remote in time, (2) are similar to the offense charged and (3) are committed upon persons similar to the presenting witness. State v. Esposito, 192 Conn. 166, 169-70, 471 A.2d 949 (1984); State v. Walsh, 52 Conn. App. 708, 717-18, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). The trial court must determine whether the probative value of such evidence outweighs its prejudicial effect and, if admitted, give an appropriate limiting instruction. State v. Tirado, 21 Conn. App. 449, 452, 574 A.2d 252, cert. denied, 215 Conn. 816, 576 A.2d 546 (1990).

Our review of the record discloses that the time and similarity to person and to offense can be seen as highly probative of the defendant’s continued course of sexual misconduct. The court did not abuse its discretion by finding that the probative value of the evidence outweighed the prejudicial effect. The court also gave an appropriate instruction. The court did not abuse its discretion in allowing K’s testimony.

B

The challenged testimony of C regarding a “kiss on the lips” and “more” was properly admitted for the purpose of establishing intent.

“Evidence of other misconduct . . . may be allowed for the purpose of proving many different things, such as intent . . . .” (Internal quotation marks omitted.) State v. Middlebrook, 51 Conn. App. 711, 715-16, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). While this evidence is prejudicial to the defendant, he has failed to convince us that the prejudice outweighed the probative value.

“Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon.” State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993). When a trial court determines whether it will allow such evidence, it needs to examine the similarities between the prior conduct and the current crime. State v. Henry, 41 Conn. App. 169, 178, 674 A.2d 862 (1996).

In any event, the evidence offered also was admissible under another approved exception to the general rule, namely to show a common scheme, plan or design. See State v. Madore, 45 Conn. App. 512, 517-22, 696 A.2d 1293 (1997). “It is well settled that evidence of prior misconduct is admissible for the limited purposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design.” State v. Taylor, 239 Conn. 481, 501, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). The courts of this state “are more liberal in admitting evidence of [prior uncharged misconduct] to show a common scheme or pattern in sex related crimes than other crimes.” State v. Kulmac, supra, 230 Conn. 62.

The defendant’s conduct toward C was similar in nature to his actions involving E. The age of both, his access to each through his employment, and the time period involved along with other similarities lead us to conclude that the trial court did not abuse its discretion in allowing C’s testimony. Exercising every reasonable presumption in favor of sustaining the trial court’s decision, we cannot say that abuse of discretion is manifest.

III

The defendant alleges that the trial court abused its discretion in failing to instruct the jury as requested on the credibility of child witnesses. In charging the jury, the court instructed generally on the credibility of witnesses. The defendant argues that under the circumstances of this case, with four of the state’s witnesses being children, he was entitled to such a charge. We disagree.

At the time of the trial, the four, E, J, K and C, were either thirteen or fourteen years old. Prior to 1989, a special cautionary charge on the credibility of a child witness had to be given when requested. State v. Anderson, 152 Conn. 196, 198, 205 A.2d 488 (1964). Anderson was expressly overruled when our Supreme Court adopted the prevailing view that allows the trial judge to exercise his or her discretion in determining whether the jury should receive such a special instruction, and, if so, its nature. State v. James, 211 Conn. 555, 570-71, 560 A.2d 426 (1989).

No abuse of discretion was found in such matters where the victim was twelve years old at the time of trial. Id., 571; see State v. Hayes, 20 Conn. App. 737, 748, 570 A.2d 716, cert. denied, 215 Conn. 802, 574 A.2d 218 (1990). Nor was an abuse of discretion concluded where the witness or victim was between eleven and thirteen years old. State v. Angell, 237 Conn. 321, 330-31, 677 A.2d 912 (1996) (twelve years old); State v. Osborn, 41 Conn. App. 287, 290, 676 A.2d 399 (1996) (eleven and thirteen years old).

The defendant does not claim that the instruction on the credibility of witnesses in general was per se improper, and he cannot demonstrate that the trial court abused its broad discretion in refusing to instruct as requested.

IV

The defendant next argues that he was deprived of a fair trial because of prosecutorial misconduct during summation. Specifically, he claims that the prosecutor appealed to the jurors’ emotions in his closing argument when he described the role of children in the courtroom.

The defendant did not object at trial; he raises this claim for the first time on appeal. Although he does not seek review by invoking the guidelines of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), we review the defendant’s claim because there is an adequate record and the claim is of constitutional dimension. After a thorough review of the closing arguments of the defendant and the state, we conclude that the descriptions of the child witnesses by the state were based on the evidence and made in response to the defendant’s argument, were not improper and did not deprive the defendant of a fair trial.

V

The defendant’s final claim is that the trial court improperly instructed the jury when it predicated the defendant’s conviction of four of the counts of risk of injury to a child on the sexual assault charges. We find no merit to the claim and deem it unnecessary to set forth in any detail the court’s instruction. Our review of the instruction shows that the court merely informed the jury that certain charges were based on identical factual allegations for the purpose of ensuring that the jurors clearly understood the charges being submitted to them for their consideration. The jury was instructed that each charge should be considered separately. At no time did the court expressly or implicitly state that if the jury found the defendant guilty of any count of sexual assault it had to find him guilty of the factually related risk of injury charge. The primary purpose of a charge is to assist the jury in applying the law correctly to the facts that it has found proven, and to call the attention to the members of the jury, unfamiliar with legal distinctions, of whatever is necessary and proper to guide them to a correct decision in the case. State v. Sanchez, 50 Conn. App. 145, 153-54, 718 A.2d 52, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). We conclude that the court’s jury instructions achieved their .purpose of assisting the jury in applying the law. We also conclude that it was not reasonably possible that the jury was misled; no injustice to the defendant resulted by reason of the court’s instruction.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because the defendant failed to object, his claims as to Orozco’s testimony and J’s testimony are unpreserved. Because these unpreserved claims are evidentiary and not constitutional in nature, we will not review them. State v. Middlebrook, 51 Conn. App. 711, 721, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999).

       K was the same age and in the same grade as E; C was one year older and one grade ahead.

       The defendant does not challenge the court’s ruling regarding the telephone conversation.

       The defendant filed the following request to charge: “In weighing the testimony of a child, you should also take into consideration her youth. In certain respects, a child is more apt to err than an older person; she is apt to be more amenable to any influence or suggestion which may be made to her by an older person and particularly persons closely related to her, and may try to avoid causing such persons to be angry with her. [Their] imaginations often also mislead them; its product may take on all the semblance of actual fact and they will relate them as such. The sanctity of the oath and the solemnity of legal proceedings may appeal to them less than to an adult. On the other hand, motives of interest and ultimate design or purpose often sway her less than they do an adult. Perhaps these suggestions by me are sufficient to indicate to you that in weighing the testimony of a child, her youth is a factor you should not overlook, and to make clear that you should apply your own experience and knowledge of childhood. . . .
      “The capacity and intelligence of a child, her understanding of the difference between truth and falsehood, and her appreciation of the duty to tell the truth and, in a general way, belief that failure to perform that obligation will result in punishment, are ingredients which you should consider in assessing the testimony of a child."

       The trial court instructed as follows: “In deciding what the facts are, you must consider all the evidence. In doing this you must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness’ testimony. In making that decision you may take into account a number of factors including the following: (1) was the witness able to see or hear or know the things about which that witness testified; (2) how well was the witness able to recall and describe those things; (3) what was the witness’ manner while testifying; (4) did the witness have an interest in the outcome of this case or any bias or prejudice concerning any part of any matter involved in this case; (5) how reasonable was the witness’ testimony considered in light of all the other evidence in the case; and (6) was the witness’ testimony contradicted by what that witness has said or done at another time or by the testimony of other witnesses or by other evidence.
      “If you think that a witness on the stand has deliberately testified falsely in some respect, you should carefully consider whether you should rely upon any of that witness’ testimony. In deciding whether or not to believe a wit ness keep in mind people sometimes forget things. You need to consider therefore whether a contradiction is an innocent lapse of memory or an intentional falsehood and that may depend on whether it has to do with an important fact or with only a small detail. These are some of the factors you may consider in deciding whether to believe testimony.”


author: SPEAR, J.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. GREGORY A. THOMPSON ET AL.
    (AC 19118)
    Foti, Spear and Healey, Js.
    Argued September 14
    officially released December 14, 1999

      John L. Laudati, with whom, on the brief, was P. Jo Anne Burgh, for the appellants (named defendant et al.).

      DavidS. Hoopes, with whom, on the brief, was James B. Streeio, for the appellee (substitute plaintiff).
   Opinion

SPEAR, J.

In this foreclosure action, the defendants Gregory A. Thompson and Rosemary G. Thompson appeal from the judgment of the trial court finding a deficiency against them in the amount of $126,945.20. The defendants claim that the trial court improperly (1) rendered a deficiency judgment where the substitute plaintiff and its predecessors improperly caused a delay of more than two years between the foreclosure judgment and the deficiency judgment, (2) awarded interest for the entire time period between the foreclosure and deficiency judgments, (3) found that the defendants had not and could not have offered a deed in lieu of foreclosure and (4) denied the defendants’ motion for reconsideration of the deficiency judgment. We disagree and affirm the judgment of the trial court.

The relevant and undisputed facts are as follows. On December 18, 1995, the original plaintiff, Federal Deposit Insurance Corporation (FDIC), obtained a judgment of strict foreclosure of the defendants’ interest in a five unit apartment building. At the time of the foreclosure judgment, the trial court determined that the defendants’ debt was $229,838.26. The trial court then set the defendants’ law day for April 26, 1996.

On April 11, 1996, the trial court opened the foreclosure judgment, upon the defendants’ motion, and reset the law day. Thereafter, between July, 1996, and March, 1997, the trial court reopened the judgment and reset the law day on four other occasions—once upon motion by the defendants, twice upon motions by FDIC and once by stipulation of the parties. Neither party objected to the openings of the judgment because the parties were trying to settle the case.

After settlement negotiations failed, FDIC assigned its interest in the note and mortgage to BTD-1996 NPC 1, LLC (BTD), and, on FDIC’s motion, the trial court substituted BTD as the plaintiff. BTD also attempted to negotiate a settlement of the debt and on July 9, 1997, moved to open the foreclosure judgment and reset the law day. The defendants did not object. The trial court granted BTD’s motion and reset the law day for September 9, 1997.

After BTD’s settlement negotiations also failed, it assigned its interest in the note and mortgage to LR2-A Limited Partnership (LR2-A). Subsequently, the September 9 law day passed and on September 11, 1997, title in the defendants’ property vested in BTD, which was the plaintiff at the time. On October 8, 1997, LR2-A filed both a motion to substitute itself as the plaintiff and a motion'for a deficiency judgment.

On October 20, 1997, the trial court granted the motion to substitute LR2-A as the plaintiff. Before the trial court ruled on the deficiency judgment motion, however, the defendants filed both an objection to that motion and their own motion requesting an extension so they could obtain a new appraisal of the subject property. The trial court granted the defendants’ motion for an extension.

At the July 15, 1998 deficiency judgment hearing, the trial court found that the property had a fair market value of $160,000 at the time title vested. The trial court then found that the interest from the date of the foreclosure judgment to the deficiency judgment was $52,928.32. The trial court also found that the total deficiency, which included the interest, debt, attorney’s fees and appraiser’s fees, was $286,945.20. The defendants challenged the trial court’s deficiency finding, but the court ruled that the defendants’ challenge was untimely.

The trial court also rejected the defendants’ claim that LR2-A unreasonably delayed seeking the deficiency judgment. The court then found that the defendants did not offer and could not have offered a deed in lieu of sale to stop their debt from accumulating. The court then subtracted the value of the property, $160,000, from the total deficiency, $286,945.20, and rendered a judgment against the defendants in the amount of $126,945.20. Thereafter, the defendants filed a motion for reconsideration. The trial court denied the defendants’ motion, and the defendants appealed.

I

The defendants claim that (1) the trial court improperly found a deficiency because LR2-A and its predecessors improperly delayed obtaining the deficiency judgment, and (2) even if a deficiency judgment is proper, the improper delays precluded an award of interest for the time period between the foreclosure and deficiency judgments. Because the defendants advance the same argument in support of each claim, we will discuss them together.

The defendants’ claims rely on the fact that the trial court incorrectly viewed their challenges to the deficiency and the award of interest, raised at the deficiency judgment hearing, as an untimely attack on the debt, which was established at the time of the foreclosure judgment. The defendants assert that the trial court misconceived their challenge, and that its misconception rendered its conclusions as to the existence and amount of a deficiency clearly erroneous. Moreover, because of that misconception, the defendants assert that the trial court failed to address properly their claim that no interest, or a reduced amount of interest, should be awarded for the time period between the foreclosure and deficiency judgments.

At oral argument, however, the defendants conceded that, at the deficiency judgment hearing, they had attacked the debt that was established at the time of the foreclosure judgment. This concession eliminates a key component of their argument. The trial court, therefore, correctly rejected the defendants’ challenge because that claim should have been made prior to the foreclosure judgment. “ ‘Any claims by the defendant that . . . could have been made in the foreclosure proceeding cannot be relitigated at the deficiency hearing.’ ” Vignot v. Bank of Mystic, 32 Conn. App. 309, 313, 628 A.2d 1339 (1993).

We now turn to the defendants’ claim that the trial court’s fact-finding was clearly erroneous. “Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses.” (Internal quotation marks omitted.) Champagne v. Champagne, 54 Conn. App. 321, 324, 734 A.2d 1048 (1999).

Although the trial court couched its discussion in terms of the laches doctrine, it fully addressed and disposed of the defendants’ claim that no deficiency judgment should have been rendered or, alternatively, that the interest should have been reduced or excluded because of the delay. The trial court discussed the causes of the delay between the foreclosure and deficiency judgments and concluded that the evidence did not establish inexcusable delay by LR2-A or its predecessors.

The court noted that the defendants never objected to any of the extensions of the law days because the parties were attempting to negotiate a settlement. Moreover, the defendants offer no analysis of the evidence in support of their claim that the trial court’s factual conclusions were improper. After reviewing the evidence, we conclude that the court’s factual findings were not clearly erroneous.

II

The defendants next assert that the trial court improperly found that the defendants had not and could not have offered a deed in lieu of foreclosure. This claim is also subject to a clearly erroneous standard of review. See id.

The defendants’ claim is based on the trial court’s findings that “these property owners never offered a deed in lieu of sale to stop the debt from accumulating. Nor could they, given the existence of the second mortgage.” At best, the testimony to which the defendants refer in support of their claim shows that they attempted to negotiate a surrender of the deed. There was no evidence of an actual offer of the deed. Moreover, even if there had been an offer, the defendants tender no authority in support of the proposition that the plaintiff would have been required to accept such an offer. We hold that the trial court’s finding that no deed was offered is not clearly erroneous. In light of this conclusion, it is not necessary to engage in an academic discussion of whether the defendants could have offered such a deed. See DeCarlo v. Kolnaski, 13 Conn. App. 325, 330, 536 A.2d 598 (1988).

Ill

The defendants finally contend that the trial court improperly denied their motion for reconsideration. We disagree.

Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion. See Biro v. Hill, 231 Conn. 462, 468, 650 A.2d 541 (1994) (analyzing denial of plaintiffs motion for reconsideration under abuse of discretion standard). The trial court’s memorandum of decision fully stated and met the arguments raised by the defendants at the deficiency judgment hearing. We, therefore, conclude that the trial court’s decision is sufficiently supported by the evidence and that the court did not abuse its discretion in denying the defendants’ motion for reconsideration.

The judgment is affirmed.

In this opinion the other judges concurred.

       A subsequent encumbrancer, the Bank of Southington, also was named as a defendant. We refer in this opinion to the Thompsons as the defendants.

       The trial court also awarded FDIC attorney’s fees of $2000, appraiser’s fees of $2500 and a title search fee of $150.

       The record does not reflect the exact date BTD assigned its interest to LR2-A.

       In its memorandum of decision, the trial court stated: “ ‘Laches consists of an inexcusable delay which prejudices the defendant. . . . Laches consists of two elements. First, there must have been a delay that, was inexcusable, and, second, that delay must have prejudiced the defendant. . . . Absent prejudice to the defendant, the mere lapse of time does not constitute laches.’ (Citations omitted; internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Voll, [38 Conn. App. 198, 210, 660 A.2d 358, cert. denied, 235 Conn. 903, 665 A.2d 901 (1995)]. But the evidence does not establish such an inexcusable delay by [LR2-A] and its predecessors in interest.”

       The following colloquy occurred between the court, the named defendant and the defendants’ counsel:
      “The Court: I have one question. Did you ever just flat out offer to give the property back, or were your discussions always in [the] context of restructuring the loan?
      “[The Named Defendant]: The Bank of Hartford in—we met with . . . the then principals. The first effort was to renegotiate the terms. They renegotiated on the basis of saying that I had to hold back or reduce the amount of money to the second mortgage holder. Thereafter, I indicated that I wanted to get rid of the whole property and I couldn’t do it. I had heard—this was not my field as a lawyer, nor I had been a prior investor in real estate, but I had heard of a deed in lieu of foreclosure, and that is what I was attempting to do, and it—it didn’t fly. * ** *
      “The Court: I just want to be clear, Mr. Thompson, were your discussions and attempted discussions that you had always about restructuring the loan or were they about just giving the key to the premises to the first?
      “[The Named Defendant]: In the initial discussion with the initial holder, the Bank of Hartford—
      “The Court: All right. . . .
      “[The Named Defendant]: They would only entertain thoughts of restructuring.
      “The Court: All right, so was the only—my question, just so I’m clear, the only discussion you had about turning the px'operty back to a financial entity was the initial discussion with the Bank of Hartford. Is that correct?
      “[The Named Defendant]: No, it—except for the last one, with Shelly Bernson. * * *
      “The Court: I’m asking because this has x’elevance to the claimed precedent, which is a Superior Court case. And the—and the only time that it was discussed giving the property back was—was just before the foreclosxxre, is that correct?
      “[The Named Defendant]: Yes, but Judge, I didn’t have anybody to talk to. Every time I wanted to have somebody to talk to, there was a transfer, and we were going through financials and financials and financials. So it— it became very frustrating not having someone, a live body to say, let’s talk. I mean when I had conversations with my attorney, a major accomplishment was—hey, we’ve got somebody to talk to. A major accomplishment at that point, and then before I know it, there was somebody else that we had to find to talk to. “[Defense Counsel]: Just an important clarification. I think you testified that there were two times you discussed turning the property over, once in the beginning with Bank of Hartford, and once in the end—
      “ [The Named Defendant]: With this lady from Boston, from Massachusetts.
      “[Defense Counsel]: Just those two times, and in between there was no— in your testimony, there was no one to discuss it with?
      “[The Named Defendant]: Right.”


text:
    SYLVIA FRANCIS v. STATE OF CONNECTICUT, CONNECTICUT VALLEY HOSPITAL
    (AC 18547)
    Foti, Lavery and Landau, Js.
    Argued September 13
    officially released December 14, 1999

      Matthew I. Levine, assistant attorney general, with whom, on the brief were, Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant).

      Joseph P. Quinn, Jr., for the appellee (plaintiff).
   Opinion

FOTI, J.

The defendant appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s decision granting the plaintiffs claim for workers’ compensation benefits. On appeal, the defendant claims that the board improperly (1) characterized the plaintiffs injury, (2) assumed the commissioner’s role of fact finder and (3) failed to remand the case to the commissioner to address the defendant’s jurisdictional argument that the plaintiffs claim was not timely filed. We affirm the decision of the board.

The commissioner found the following facts. The plaintiff, Sylvia Francis, was employed by the defendant, the Connecticut Valley Hospital, for approximately seventeen years. On February 10, 1987, the plaintiff sustained a compensable work-related injury as the result of her exposure to chemicals in the workplace. On that date, the plaintiff left work complaining of a severe cough, hoarseness, wheezing, a burning sensation in her throat and eyes, nausea and shortness of breath. At the time of the accident, the plaintiff was working in the defendant’s housekeeping department where she was using chemical solvents and cleaning detergents. Her last date of exposure to the chemicals, and her last day of work, was February 10, 1987. On May 11,1987, the plaintiff filed a claim for compensation benefits. In response, the defendant contested the plaintiffs claim.

The commissioner found that the plaintiffs notice of claim was timely filed and, on March 14, 1997, issued an award in favor of the plaintiff. The defendant appealed to the board and requested that the board remand the case to the commissioner with a specific order for further fact-finding in regard to the defendant’s position that the plaintiffs claim was not timely filed pursuant to General Statutes (Rev. to 1987) § 31-294. The board, however, affirmed the commissioner’s decision. The defendant appealed.

We begin by addressing the appropriate standard of review. “[T]he [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the [board] may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Six v. Thomas O’Connor & Co., [235 Conn. 790, 798-99, 669 A.2d 1214 (1996)].” (Internal quotation marks omitted.) Williams v. Best Cleaners, Inc., 237 Conn. 490, 500-501, 677 A.2d 1356 (1996). This court has usually granted “great deference to the construction given to § 31-294 by the commissioner and the review [board] because they are both charged with its enforcement.” Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993).

I

The defendant first claims that the commissioner improperly characterized the plaintiffs injury. We disagree that the board acted improperly. The crux of the defendant’s contention is that the commissioner failed to articulate whether the plaintiffs injury was the result of repetitive trauma, and then failed to determine whether the injury more closely resembled an occupational disease or a distinct injury. The defendant argues that because the commissioner failed to determine whether the plaintiffs injury was repetitive trauma, it is not possible to determine whether the plaintiffs claim was timely filed. The plaintiff responds that the commissioner made factual findings from which the board could make reasonable inferences that the plaintiff sustained an accidental injury, and possibly repetitive trauma. It is, therefore, the plaintiffs position, based on those factual findings and inferences, that she satisfied the operative requirements of § 31-294.

“The workers’ compensation scheme explicitly provides for three categories of compensable injury: (1) accidental injury; (2) repetitive trauma injury; and (3) occupational disease. See General Statutes (Rev. to 1981) § 31-275 (8) [now § 31-275 (16)]; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 109, 527 A.2d 664 (1987); Grady v. St. Mary’s Hospital, 179 Conn. 662, 668, 427 A.2d 842 (1980). The mere fact that an injury is of a type that is compensable, however, does not of itself mean that the commissioner properly may consider a claim based on that injury. The notice and filing prerequisites of § 31-294, which are jurisdictional; Rossi v. Jackson Co., 120 Conn. 456, 457, 181 A. 539 (1935); must also be satisfied. See, e.g., Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996).” Discuillo v. Stone & Webster, 242 Conn. 570, 574-75, 698 A.2d 873 (1997). Compensation claims based on accidental injury must be filed within one year from the date of the accident, whereas claims based on occupational disease must be filed within three years from the first manifestation of a symptom of the occupational disease.

“[Although § 31-294 specifically addresses the jurisdictional filing prerequisites that must be satisfied in order to bring an accidental injury or occupational disease claim, the statute is silent both as to the duration of the filing period for repetitive trauma claims and as to when that period begins to run.” Id., 575. Our Supreme Court, therefore, has concluded that “for a commissioner to have jurisdiction over a claim, that claim must fit within the existing jurisdictional provisions of § 31-294. In other words, for purposes of jurisdiction, every cognizable claim must be considered as stemming from either an ‘accident’ or an ‘occupational disease’ as those terms are used in § 31-294. We acknowledge, however, that § 31-275 (8) [now § 31-275 (16)], which includes repetitive trauma claims in the definition of compensable injury, evinces a definite legislative intent to allow compensation for that class of harm. In order to reconcile these competing mandates, we conclude that the terms ‘accident’ and ‘occupational disease’ as they are used in § 31-294 must be read broadly enough so that even an injury that is defined as stemming from repetitive trauma pursuant to § 31-275 (8) may nonetheless be deemed to fall into one of the two extant jurisdictional categories, as appropriate to the specific facts of each particular claim.” Id., 577-78.

In the present case, the commissioner determined that the plaintiff did not suffer from an occupational disease. The commissioner did not agree with the defendant that there was a causal connection between the duties of the plaintiffs employment and the disease contracted. See Hansen v. Gordon, 221 Conn. 29, 35, 602 A.2d 560 (1992). The conclusion that the commissioner reached and the board affirmed, that the plaintiff suffered a compensable work-related injury on February 10, 1987, due to occupational exposure, is well supported by the factual findings in the commissioner’s finding and award. The commissioner found, inter alia, that the plaintiff left work on February 10, 1987, that she filed a notice of claim on May 11, 1987, which alleged lung and throat injuries from chemical agents, and that she never returned to the employment of the defendant. On the basis of these factual findings, the commissioner did not act improperly in determining that the plaintiff suffered from an accidental injury.

The commissioner, therefore, was correct in finding that the plaintiff filed a timely claim. It is undisputed that the defendant could not prevail if the commissioner found that the plaintiff suffered an accidental injury, even if caused by repetitive trauma. Compensation claims based on accidental injury must be filed within one year from the date of the accident. The plaintiffs injury occurred on February 10, 1987, and she filed her claim on May 11, 1987, well within one year. Even if the plaintiff suffered repetitive trauma, because that trauma resulted in accidental injury rather than occupational disease, the statute of limitations runs one year from the date of the last injurious exposure. See Discuillo v. Stone & Webster, supra, 242 Conn. 570. Here, the date of the last injurious exposure would also be February 10, 1987. Therefore, to prevail on its appeal, the defendant requires findings both that the plaintiffs injury was an occupational disease and that she did not file notice of the claim “within three years from the first manifestation of a symptom of the occupational disease . . . .” General Statutes (Rev. to 1987) § 31-294, now § 31-294c (a). Our Supreme Court have consistently stated that “[n]o reviewing court can . . . set aside [an inference of the commissioner] because the opposite [inference] is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable.” (Internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539-40, 542 A.2d 1118 (1988).

The commissioner had before her medical reports and other evidence from which she could properly determine whether the plaintiffs injury was the result of accidental injury or an occupational disease. The board could not go back and draw different inferences from the facts presented to the commissioner, nor can we. We conclude that the board properly determined that the commissioner’s findings were reasonable, supported by the evidence and not contrary to law. The board properly affirmed the commissioner’s decision.

II

The defendant next claims that the board improperly assumed the commissioner’s role of fact finder. Our role is to determine whether the board’s decision results from an incorrect application of the law to the subordinate facts or from an inference unreasonably drawn from them. See Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986). We conclude that the board did not unreasonably affirm the commissioner’s decision.

The commissioner made findings of fact that led to the conclusion that the plaintiff had suffered an accidental injuiy. The board agreed with the commissioner’s finding and also inferred that the injury might have resulted from repetitive trauma. As stated previously, whether the board found that the plaintiff suffered repetitive trauma is irrelevant as long as sufficient evidence was found that the plaintiff suffered an accidental injuiy. Because we find that the board’s decision did not result from an incorrect application of the law to the subordinate facts or from an inference unreasonably drawn from them, we disagree with the defendant that the board acted improperly.

Ill

The defendant finally claims that the board improperly failed to remand the case to the commissioner to make findings of fact and conclusions of law based on those facts, in regard to the defendant’s jurisdictional defense that the plaintiffs claim was not timely filed. In light of our finding as to the defendant’s first claim, we need not reach this issue. There was sufficient evidence for the commissioner to find that the plaintiffs claim was timely filed.

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

In this opinion the other judges concurred.

       At the time of the plaintiffs injury, General Statutes (Rev. to 1987) § 31-294 provided in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. . . . For the purposes of this section, ‘manifestation of a symptom’ means its manifestation to the employee claiming compensation, or to some other person standing in such relation to him that the knowledge of such a person would be imputed to him, in such manner as is or ought to be recognized by him as symptomatic of the occupational disease for which compensation is claimed. . . .”
      All references herein to § 31-294 are to the 1987 revision of the statute. The preceding language is presently codified, with minor technical changes, at General Statutes § 31-294c (a).

       The commissioner made findings that indicated that the plaintiff suffered an accidental injury and not an occupational disease. The board, however, inferred from the factual findings of the commissioner that the plaintiff’s injury may have resulted from repetitive trauma. Because the statute of limitations period in the present case would be the same for a repetitive trauma injury or an accidental injury, we need not decide whether the plaintiff suffered repetitive trauma. Even if we were to decide, however, that the plaintiff’s lung injury is by definition one of repetitive trauma, her specific injury would still be deemed an “accident” for the jurisdictional puiposes of § 31-294.

       At the time of the plaintiffs injury, General Statutes (Rev. to 1987) § 31-275 (11) provided: “ ‘Occupational disease’ includes any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
      The preceding language is presently codified, with minor technical changes, at General Statutes § 31-275 (15).

       The commissioner was well aware of the defendant’s jurisdictional defense that the plaintiffs claim was untimely. In support of this argument, the defendant filed a motion for articulation and a motion to correct. Both motions, however, were denied.

       Section 31-275 does not specifically define the term “accidental injury.” At the time of the plaintiffs ipjury, however, General Statutes (Rev. to 1987) § 31-275 (8) provided: “ ‘Personal injury’, or ‘injury’, as the same is used in this chapter, shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined.”
      All references herein to § 31-275 (8) are to the 1987 revision of the statute. The preceding language is presently codified, with minor technical changes, at General Statutes § 31-275 (16).


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. GLEN MARTIN
    (AC 17514)
    Laveiy, SchaUer and Vertefeuille, Js.

      Argued September 20
    officially released December 14, 1999

      Michael L. Moscowilz, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Glen Martin, appeals from the judgments of conviction, rendered after a jury trial, of disorderly conduct in violation of General Statutes § 53a-182 and criminal violation of a protective order in violation of General Statutes § 53a-110b (a). The defendant claims that (1) the trial court improperly denied his motion to dismiss for failure to grant him a speedy trial and (2) the evidence presented was not sufficient to support the jury’s verdict that he was guilty of disorderly conduct. We affirm the judgments of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The defendant was charged in three separate files with two counts of threatening in violation of General Statutes § 53a-62 (a) (1) and (2), and one count each of stalking in the first degree in violation of General Statutes § 53a-181c (a) (2) , disorderly conduct in violation of § 53a-182 (a) (2) and criminal violation of a protective order in violation of § 53a-110b (a). Those charges were based on actions by the defendant allegedly committed between August and December, 1995. On June 27, 1996, while incarcerated for a prior conviction, the defendant filed a request for a trial or final disposition of the pending charges against him pursuant to General Statutes § 54-82c.* On November 26, 1996, 152 days after the defendant’s request, he filed a motion to dismiss the charges in all three files pursuant to General Statutes § 54-82d, arguing that dismissal was warranted under statutory and constitutional mandates.

After a hearing, the trial court denied the defendant’s motion to dismiss in a written memorandum of decision, concluding that the unavailability of a jury panel for a period of thirty-nine days constituted an exceptional circumstance for which a continuance was both reasonable and necessary. The trial court further concluded that the defendant’s constitutional right to a speedy trial was not so impaired as to warrant the dismissal of the charges against him. On June 3, 1997, the jury returned verdicts of guilty with respect to the charges of disorderly conduct, stalking in the first degree and criminal violation of a protective order and not guilty as to the remaining charges. The defendant subsequently withdrew his appeal from the stalking conviction. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims first that the trial court’s denial of his motion to dismiss was improper. In support of this claim, the defendant relies on both his statutory and constitutional rights to a speedy trial. Regarding the former, the defendant claims that the denial was improper because the state neither moved for nor was it granted a continuance in open court for good cause shown as required by § 54-82c (a). We disagree.

“When reviewing the grant of continuances which toll the statutory [120 day] period within which to bring a criminal case to trial, [an appellate] court will find error only if a clear abuse is shown of the trial court’s discretion in finding that a continuance is necessary or reasonable.” State v. Antrum, 185 Conn. 118, 123, 440 A.2d 839 (1981). The trial court’s memorandum of decision specifically recites its finding that there was no jury panel available for a period of thirty-nine days, that that was an exceptional circumstance, and “that a continuance was both reasonable and necessary.” We conclude that the trial court’s granting a continuance for the reason stated was reasonable and that the trial court did not clearly abuse its discretion in so concluding.

The state’s failure to move for a continuance is of no help to the defendant. In State v. King, 40 Conn. App. 757, 761, 673 A.2d 124, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996), we held that the lack of a request for a continuance does not render either the trial court’s granting of a continuance, or the subsequent application thereof, improper. Similarly, in the present case, the state did not move for a continuance during the 120 day period, but the trial court later ruled that a continuance was reasonable. Under the rationale of King, the continuance was proper. Accordingly, the defendant’s statutory claim fails.

The defendant also asserts that the trial court’s denial of his motion to dismiss violated his right to a speedy trial under both the federal and state constitutions. We are not persuaded.

“The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of the defendant’s constitutional right to speedy adjudication: ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 591-92.” State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983).

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, supra, 407 U.S. 530; see also Pelletier v. Warden, 32 Conn. App. 38, 47, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993). The defendant argues that because he was a sentenced prisoner whose 120 day period had run, he suffered prejudice, which requires us to analyze the remaining Barker factors. He does not, however, give any basis for his conclusion.

Our courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors of Barker. See, e.g., State v. Gasparro, 194 Conn. 96, 100, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985) (three and one-half years); State v. Davis, 192 Conn. 739, 740-41, 474 A.2d 776 (1984) (twenty-six months); State v. Cleary, 3 Conn. App. 349, 350-51, 488 A.2d 831 (1985) (thirty-eight months). There is “no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months.” Barker v. Wingo, supra, 407 U.S. 523. Although no exact length of time has been established to be sufficient to presume prejudice, a delay of over two years is sufficient to cause investigation into the other factors of Barker. State v. Almgren, 12 Conn. App. 364, 369, 530 A.2d 1089 (1987).

In the present case, the delay was significantly less than two years, the defendant was incarcerated for a prior conviction, the defendant has given no basis for his claim of prejudice to his defense, and the delay was not a purposeful action by the state, but was due to the unavailability of a jury panel. Even if the relatively short duration of delay present in this case is the catalyst for further inquiry, that inquiry, which includes the weighing of the other Barker factors, as well as the fact that the continuance granted was reasonable, leads us to conclude that the defendant was not denied his constitutional right to a speedy trial.

II

The defendant claims next that there is insufficient evidence in the record to support the jury’s verdict that he is guilty of disorderly conduct. In support of this claim, the defendant advances two arguments: (1) the only way the jury could have convicted him on the basis of the evidence presented was to resort to speculation and conjecture; and (2) the evidence is insufficient in light of the specificity of the charging document. We disagree.

Because this claim is unpreserved, the defendant has asked that it be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim since unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993); State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

“In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . Moreover, [t]his court will construe the evidence in the light most favorable to sustaining the trial court’s [judgment] and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). “We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . [An appellate] court; cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Citation omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 258, 681 A.2d 922 (1996). Moreover, “[i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132-33, 646 A.2d 169 (1994).

In addressing the defendant’s first argument, we note that under § 53a-182 (a) (2), the state was required to prove, beyond a reasonable doubt, that the defendant (1) acted with the intent to cause inconvenience, annoyance or alarm and (2) by offensive or disorderly conduct, annoyed or interfered with the victim. On the basis of the testimony of the victim, Dawn Olsen, and Officer Joseph Ferreira of the Wallingford police department, the jury reasonably could have found that the defendant and Olsen had lived together for approximately four years and were romantically involved. When the relationship ended, Olsen moved to 174 Quinnipiac Street in Wallingford. On August 12, 1995, the defendant entered Olsen’s house without knocking, telling her that he was going to take a shower. Olsen told the defendant that she wanted him to leave. He called Olsen names and blamed his problems on her. The defendant slammed his hand down on the table, yelled at her, grabbed her and pushed her. The defendant then took a shower and, while he was doing so, Olsen retrieved a microcassette tape recorder that she had borrowed from the Wallingford police. During the conversation that ensued after the defendant’s shower, Olsen agreed to meet the defendant at a nearby park.

When Olsen met the defendant in the park, another argument took place. Olsen attempted to leave and the defendant grabbed her arm. Olsen got away from the defendant and called the police, and, as a result of the defendant’s conduct, a protective order was issued. Still, the defendant came to Olsen’s apartment on occasion. On September 20, 1995, the defendant went to Olsen’s window and argued with her. The defendant would also drive by Olsen’s apartment early in the moming and honk his horn. On September 22, 1995, her electricity and cable television service were shut off. In addition, on October 19, the water in her apartment was shut off. The police were called and the defendant was arrested. Another protective order was issued.

In a recorded conversation on August 12, 1995, the defendant said to Olsen that “you took my life away from me and you deserve to die. I don’t want to do that Dawn. I don’t want to hurt you. I want to work things out, stop being such a rotten bitch to me.”

Viewing the testimony in the light most favorable to sustaining the verdict, we conclude that the facts and reasonable inferences drawn therefrom sufficiently support a finding of guilt of disorderly conduct beyond a reasonable doubt and that the jury did not need to resort to speculation and conjecture in reaching its verdict. There is ample testimony in the record to allow a jury to conclude that the defendant intended to inconvenience, annoy or alarm Olsen and that the defendant did, in fact, do so.

The defendant also asserts that the evidence was insufficient in light of the specificity of the charging document. The charging document states in relevant part: “And the Attorney . . . accuses [the defendant] of disorderly conduct and charges that at the Town of Wallingford in the vicinity of 174 Quinnipiac Street on or about the 12th day of August, 1995, the said [defendant], with the intent to cause inconvenience, annoyance or alarm by offensive or disorderly conduct, did annoy or interfere with another person, to wit: Dawn Olsen in violation of Section 53a-182 (a) (2) of the Connecticut General Statutes.” The crux of the defendant’s argument is that because the information states Olsen’s address, the jury could consider only the evidence relating to the events that occurred there and that such evidence is insufficient to support his conviction. His argument is without merit.

“There is no question that the state is limited to proving that the defendant has committed the offense in substantially the manner described in the information. . . . The inclusion in the state’s pleading of additional details . . . does not make [those additional details] essential elements of the crime . . . .” (Citation omitted; internal quotation marks omitted.) State v. Evans, 44 Conn. App. 307, 313, 689 A.2d 494, cert. denied, 240 Conn. 924, 692 A.2d 819 (1997). That rule of law, combined with our conclusion that the evidence supports the finding that the elements of the crime charged were proved beyond a reasonable doubt, defeats the defendant’s argument. Even if we were to limit the evidence as the defendant requests, sufficient evidence still exists to support the jury’s verdict. The alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial. See State v. Golding, supra, 213 Conn. 239-40. Accordingly, the defendant’s insufficient evidence claim fails.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-182 (a) provides: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse.”

       General Statutes § 54-82c provides in relevant part: “(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state’s attorney or assistant state’s attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. . . .”

       General Statutes § 54-82d provides: "If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.”

       Because § 54-82c allows for either “necessary” or “reasonable” continuances, we need not determine whether the continuance was “necessary.”

       Although the defendant cites to both the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution, he offers no adequate and independent analysis of his state constitutional claim. We therefore consider only his federal constitutional claim. See, e.g., State v. Dyson, 238 Conn. 784, 794, 680 A.2d 1306 (1996).

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial 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. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.