author: Schaller, J.

text:
    State of Connecticut v. Ray Boyd
    (13077)
    Dupont, C. J., and Schaller and Spear, Js.

      Argued September 26, 1994
    decision released January 3, 1995

      Richard Emanuel, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David P. Gold, assistant state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. The defendant claims that the trial court improperly (1) instructed the jury that prior inconsistent statements could not be used for substantive purposes, but could be used only to assess credibility, (2) instructed the jury on reasonable doubt, and (3) permitted the prosecutor’s remarks in violation of the defendant’s rights to an impartial jury and a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 23, 1989, Tony O’Neal died of multiple gunshot wounds after he was shot near the intersection of Howard Avenue and Putnam Street in New Haven. Earlier that day, there had been an argument concerning drug sales on that street. The dispute involved Gerald Robinson and David Robinson, on one side, and Tony O’Neal and Keith Batchelor, on the other. The Robinsons were complaining about O’Neal and Batchelor’s selling “beat” or “dummy” bags, that is, bags that contained flour or sugar rather than cocaine, which the Robinsons claimed affected their business. On the night of the murder, several young men, including the Robinsons, their friend Lonnie Jackson, Christopher Shaw, O’Neal and the defendant arrived at the same location. Almost immediately, Jackson and O’Neal began to argue. The defendant approached the two, “nudged” Jackson aside and, with a pistol that he had obtained from Gerald Robinson, fired several bullets into O’Neal. O’Neal died as a result of his injuries.

The following additional facts are necessary for the resolution of this appeal. The day after the shooting, when Gerald Robinson was questioned at his home by the New Haven police, he said he knew nothing about the murder. Three days later, the police brought him to the police station and informed him that a witness had told them that she had seen him with a handgun near the scene of the crime. He then changed his story and told police that the defendant was the one who shot O’Neal.

Gerald Robinson’s statements caused police officers to go to the home of the defendant. Initially, the defendant told them that he had been home at the time of the shooting. Three days later, the police brought the defendant to the police station. There, the defendant identified Shaw as the person who had shot O’Neal. Shaw initially denied having been at the scene of the crime and said that the defendant was not present either. As they had done previously with Gerald Robinson and the defendant, the police took Shaw to the police station to confirm his statement. At the station, the police informed Shaw that he was a prime suspect in the murder of O’Neal. Upon hearing this, Shaw admitted that he had been at the scene of the crime and said that he had seen a “brown skinned guy” wearing a college “Starter” jacket shoot O’Neal.

After their initial investigation, the police had three different versions of the shooting. Gerald Robinson had implicated the defendant. The defendant had implicated Shaw. Shaw said that a “brown skinned guy” had shot O’Neal. The police arrested Shaw for the murder. Immediately after his arrest, Shaw related a new version of the incident. He said that, not only was the defendant present at the scene of the crime, but that the defendant had fired the gun. Thereafter, the police arrested the defendant.

At trial, Gerald Robinson, Shaw, and the defendant provided their versions of what had happened on the night O’Neal was murdered. In their testimony, Robinson and Shaw implicated the defendant. In response, the defendant insisted that Shaw had shot O’Neal. On September 30,1992, the jury found the defendant guilty of murder.

I

The defendant claims, and the state agrees, that the trial court improperly instructed the jury on the use of prior inconsistent statements. The jury should have been charged that the prior inconsistent statements of the witnesses should have been considered for their truth and not merely for impeachment purposes. State v. Whelan, 200 Conn. 743, 756-57, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).

At trial, the defendant requested the following instruction: “The earlier contradictory statements are admissible only to impeach the credibility of the witness and not to establish the truth of these statements.” In response to that request, the court gave a limiting instruction that “[tjhose prior inconsistent statements are not admitted to prove the facts contained in those prior inconsistent statements but merely to show evidence of conduct inconsistent with the testimony here on the stand in front of you. It goes to the credibility of the witness.” A reasonable interpretation of the defendant’s request to charge and the court’s instruction indicates that the court granted the defendant the limiting instruction that he requested.

We first note that the defendant has not properly preserved this claim for appellate review pursuant to Practice Book § 852, and seeks review of an instruction that he requested and now claims was improper. Ordinarily, action induced by an appellant cannot be ground for error. In State v. Walton, 227 Conn. 32, 630 A.2d 990 (1993), where one of the defendants requested and was granted an erroneous pre-Whelan charge, the court determined that no review was warranted because he induced the error. In State v. Scognamiglio, 202 Conn. 18, 25, 519 A.2d 607 (1987), the court said, “It seems a bit disingenuous for the defendant to claim the trial court committed error by instructing the jury on [prior inconsistent statements] when he requested an instruction on that very issue.”

Although it is the general rule that a party cannot be heard to complain about such an instruction when he has requested it; State v. Walton, supra, 227 Conn. 32; State v. Shipman, 195 Conn. 160, 165, 486 A.2d 1130 (1985); unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Cf. State v. Hinckley, 198 Conn. 77, 81 n.2, 502 A.2d 388 (1985). “[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.” State v. Golding, supra, 239-40; see also State v. Evans, supra, 61. The defendant claims review under those cases.

In State v. Hinckley, supra, 198 Conn. 77, which our Supreme Court relied on in Walton, the defendant conceded in his brief that he requested most of the challenged instruction, and the court held that the defendant’s claim was not reviewable as an “exceptional circumstance” under State v. Evans, supra, 165 Conn. 70. Applying the Supreme Court’s conclusion in Hinckley to the present case, we conclude that the defendant has failed to satisfy the second condition of Evans-Golding that the claim is an “exceptional circumstance” of constitutional magnitude. Our Supreme Court has held that an incorrect Whelan instruction is “an evidentiary error that did not involve the violation of a constitutional right.” State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991); State v. Wooten, 227 Conn. 677, 701, 631 A.2d 271 (1993). The defendant, therefore, is not entitled to extraordinary review under Evans-Golding.

The defendant claims, in the alternative, that his claim is reviewable under the plain error doctrine. “[I]t is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of the public confidence in the judicial proceedings. ...” (Citations omitted; internal quotation marks omitted.) State v. Jackson, 34 Conn. App. 599, 608, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 145 (1994); State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Hinckley, supra, 198 Conn. 87-88.

In Walton, our Supreme Court addressed the issue of whether an erroneous preWhelan charge rises to the level of plain error. State v. Walton, supra, 227 Conn. 67-68. In Walton, the Supreme Court held that an erroneous ^veWhelan charge “does not rise to the level of ‘plain error,’ as that term of art is generally understood . . . .” Id. The defendant’s claim that the instruction constitutes plain error must fail.

II

The defendant next claims that the trial court improperly instructed the jury on “reasonable doubt” in violation of the due process clauses of the state and federal constitutions. Specifically, the defendant challenges the trial court’s definition of reasonable doubt. The trial court defined reasonable doubt as “a doubt for which a reasonable man or woman can give a valid reason.” We find that definition to.be proper.

“The challenged instructions are similar or identical to jury instructions that have previously been approved by our Supreme Court. State v. DePastino, 228 Conn. 552, 572, 638 A.2d 578 (1994) (‘a doubt for which a valid reason can be assigned’); State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993) (‘a doubt for which a reasonable man or woman can give a valid reason’); State v. Adams, 225 Conn. 270, 290, 623 A.2d 42 (1993) (‘a doubt for which a valid reason can be assigned’); State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 499 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980) (‘one for which you can, in your own mind, conscientiously give a reason’); State v. Johnson, 29 Conn. App. 584, 590, 617 A.2d 174 (1992) (‘a doubt for which a valid reason may be assigned’), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993) (certification improvidently granted).” State v. Goodman, 35 Conn. App. 438, 441-42, 646 A.2d 879 (1994). The defendant’s claim, therefore, has no merit.

Ill

The defendant’s final assertion is that the prosecutor’s misconduct during the state’s rebuttal argument violated his federal and state constitutional rights to a fair trial and an impartial jury. The defendant’s claim of misconduct related to the state’s remarks during closing argument urging the jury to care, not only for the victim, but “for all the other people who live near that intersection” as well as other “potential victims” who were “endangered” by stray bullets.

We note, again, that the defendant did not properly preserve this claim for appellate review. Our Supreme Court has held that the failure of counsel for the defendant to take exception to the remarks of the state’s attorney, either at the time they were made or at the close of the state’s attorney’s argument, was a waiver of the right of the accused to press this as error. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985).

Conceding his failure to preserve this claim, the defendant, relying on State v. Williams, 204 Conn. 523, 529 A.2d 653 (1987), seeks review of the claim under State v. Evans, supra, 165 Conn. 61, and State v. Golding, supra, 213 Conn. 233. The defendant asserts, alternatively, that the claim is reviewable as plain error under Practice Book § 4185, which provides that the “court may in the interest of justice notice plain error not brought to the attention of the trial court.”

We will examine the defendant’s claim to determine whether the alleged constitutional violation clearly exists and whether it deprived the defendant of a fair trial. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985).

Our Supreme Court has held that although “prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself; State v. Williams, [supra, 204 Conn. 539]; State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985) . . . Evans review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial.” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990).

Our review of the record discloses that the remarks now challenged represented isolated instances of alleged misconduct, unrepresentative of a pattern of conduct repeated throughout the trial. Because the defendant’s claim of alleged misconduct challenges two isolated comments made during closing argument, he cannot establish the clear existence of a violation of his constitutional rights or his right to a fair trial. Because the unpreserved claim of prosecutorial misconduct was not either blatantly egregious or part of a pattern of misconduct repeated throughout the trial; see State v. Whitfield, 21 Conn. App. 622, 628-29, 575 A.2d 1046, cert. denied, 216 Conn. 808, 580 A.2d 66 (1990); we decline to review this claim. See State v. Castonguay, 218 Conn. 486, 508, 590 A.2d 901 (1991); see also State v. Williams, supra, 204 Conn. 537.

Concerning the defendant’s claim of plain error, “[i]t is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ...” (Citations omitted; internal quotation marks omitted.) State v. Jackson, supra, 34 Conn. App. 608. “[W]e do not find, as is necessary to merit plain error review, that those limited instances of improper conduct so pervaded the defendant’s trial as to have impaired the effectiveness or integrity of the judicial process.” State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991). Consequently, the defendant cannot succeed on this claim of impropriety.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a provides in pertinent part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       Practice Book § 852 provides in pertinent part: “The [appellate] court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .”

       Conn. Const., art. I, § 8; U.S. Const., amends. V, XIV.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Leo Thomas Butler
    (12382)
    Landau, Heiman and Spear, Js.

      Argued October 31, 1994
    decision released January 3, 1995

      Louis S. Avitabile, with whom was Meryl Anne Spat, for the appellee (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Robin Lipsky, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21. On appeal, the defendant claims that the trial court improperly (1) permitted a hospital social worker to testify as to her opinion of whether the victim was truthful regarding the claims of sexual abuse, (2) permitted an expert to testify as to (a) behavioral pattern profile responses of victims of sexual abuse, (b) consistencies in the behavior of the victim with sexually abused children in general, and (c) his opinion with regard to the number of children he had treated for sexual abuse who had fabricated their stories, and (3) charged the jury with respect to the meaning of the term reasonable doubt.

The jury could reasonably have found the following facts. The victim was born on April 27, 1977. When she was about five years of age, her parents divorced. As a result, the victim, along with her mother and younger brother, moved to Wolcott to live with the victim’s grandmother and grandfather, the defendant. For the first several years that she lived with her grandparents, the victim shared a room with her mother and her aunt. When she reached the age of seven or eight, however, she was given a room of her own. Throughout the time that she lived in Wolcott, her grandparents occupied separate bedrooms.

At the time that the victim began sleeping in her own bedroom, the defendant began to come into her room late at night. The victim was awakened on several occasions by the defendant standing over her bed masturbating. Often the defendant was completely naked, while at other times he wore only underwear. On several occasions, the defendant touched the victim on the breast and vaginal areas. In addition, there were incidents when the defendant placed the victim’s hand on his penis.

Each time that the defendant came into the victim’s bedroom, the victim pretended to be asleep. Often, the victim, who slept in sweatpants and a tee-shirt, awoke to find that her clothing had been removed during the night. Moreover, on a number of occasions, the defendant called to the victim to come into his bedroom. At these times, the victim saw the defendant lying naked on his bed masturbating and refused to enter the room.

The defendant warned the victim not to tell anyone of his actions if she still wanted to see her mother and brother. When the victim was about twelve years of age, she received classroom instruction concerning what should be done if someone touches another person inappropriately or acts inappropriately. She was taught that it is not the fault of the victim and that the child should report such actions to a responsible adult. After hearing the lecture, the victim reported the defendant’s conduct to her mother and grandmother. From that time on, the victim shared a bedroom with her grandmother and the problems with her grandfather ceased.

In May, 1991, the victim was hospitalized at the Waterbury Hospital Health Center as a result of a suicide attempt involving the ingestion of an overdose of pills. She remained in the hospital for several weeks. While there, the Wolcott police department was notified that the victim may have been sexually abused. Detective Roger Picard interviewed the victim and the defendant was thereafter arrested.

I

The defendant first claims that the trial court improperly permitted a hospital social worker to testify as to her opinion of whether the victim was truthful regarding the claims of sexual abuse. We agree.

The following additional facts are necessary to the resolution of this issue. Carol L. Cestaro, a social worker with the Waterbury Hospital Health Center, was called as a witness by the state. At the time of the victim’s hospitalization, Cestaro worked in the adolescent inpatient psychiatric unit. While working in that unit, Cestaro had an opportunity to treat a number of adolescents with a history of sexual abuse, including the victim.

Cestaro testified as to the circumstances surrounding the victim’s suicide attempt, as told to her by the victim. She also testified to what the victim had told her regarding sexual abuse by the victim’s grandfather, the defendant. Cestaro was then asked questions by the state’s attorney regarding whether Cestaro had formed an opinion as to whether the victim’s story was truthful or a fabrication. The defendant objected to that questioning, but his objections were overruled.

The defendant asserts that it was improper for the trial court to permit this testimony to stand because the truthfulness of the victim’s claims were the ultimate issue to be determined in the case. We agree.

A

“ ‘Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.’ ” State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993), quoting State v. Spigarolo, 210 Conn. 359, 376, 566 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). However, “ ‘[a]n expert witness ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by a trier of fact.’ ” State v. Smith, 35 Conn. App. 51, 70, 644 A.2d 923 (1994), quoting State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988).

The determination of the credibility of a witness is solely the function of the jury. State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986); State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881, cert. granted on other grounds, 231 Conn. 917, 648 A.2d 166 (1994). “It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony.” State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness’ claims. See State v. Freeney, 228 Conn. 582, 592, 637 A.2d 1088 (1994), citing State v. Borrelli, supra, 227 Conn. 174; State v. Spigarolo, supra, 210 Conn. 379-80.

In cases that involve allegations of sexual abuse of children, our Supreme Court has held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. State v. Spigarolo, supra, 210 Conn. 380. Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. Id., 378. It is not permissible, however, for an expert to testify further to her opinion of whether a victim in a particular case is credible or that a particular victim’s claims are truthful. Id., 379; In re Noel M., supra, 23 Conn. App. 410, 423, 580 A.2d 996 (1990).

Here, Cestaro was permitted to testify that she “never got the sense that [the victim] was fabricating or making up the story,” and that she “felt that what [the victim] was saying was true.” Clearly, such testimony involves an assertion by an expert witness that validates the truthfulness of the purported victim. We thus conclude that the trial court abused its discretion in permitting this testimony to stand.

B

Our conclusion that the trial court abused its discretion in admitting the improper evidence does not, however, end our inquiry. Where an evidentiary ruling has been found to be incorrect, but the improper ruling, as here, does not implicate a constitutional right of the defendant, the burden rests on the defendant to establish the harmfulness of the claimed impropriety. State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994); State v. Merritt, 36 Conn. App. 76, 92, 647 A.2d 1021, cert. granted on other grounds, 231 Conn. 926, 648 A.2d 165 (1994).

In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. State v. Chapman, supra, 229 Conn. 544. “The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); see also State v. DePastino, 228 Conn. 552, 567, 638 A.2d 578 (1994).

We conclude that the improper action of the trial court was likely to have affected the result and, therefore, was harmful to the right of the defendant to a fair trial. There was no physical or medical evidence linking the defendant with the alleged crime. The entire case offered by the state consisted of the testimony of the victim, testimony of other witnesses offered only under the theory of constancy of accusation, and testimony of a psychologist as to the general behavioral characteristics of victims of child sexual abuse under State v. Spigarolo, supra, 210 Conn. 380. Against this array was the testimony of the defendant, denying the victim’s claims of sexual abuse. The entire fabric of the state’s case against the defendant turned, therefore, on the credibility of the victim and on which version of the facts the jury chose to believe.

We thus conclude that since the entire case turned on the issue of the credibility of the victim, Cestaro’s testimony vouching for the truthfulness of the victim affected the outcome of the trial and denied the defendant his right to a fair trial. State v. Brown, supra, 199 Conn. 25. Thus, the defendant’s conviction cannot stand.

II

The defendant next claims that the trial court improperly permitted an expert to testify as to (1) behavioral pattern profile responses of victims of sexual abuse, (2) consistencies in the behavior of the victim with sexually abused children in general, and (3) his opinion as to how many children he had treated for sexual abuse had fabricated their stories.

The following facts are necessary to the resolution of this issue. Sidney Horowitz, a child psychologist, was called to testify on behalf of the state. Horowitz testified that victims of sexual abuse often exhibit such characteristics as depression, moodiness, sleep and appetite problems, bedwetting, difficulty concentrating, and low self-esteem. The defendant objected, asserting that the state’s line of questioning was irrelevant because the characteristics testified to could apply equally to children who have suffered other kinds of trauma, such as physical or psychological abuse, and did not relate only to victims of sexual abuse. After an offer of proof, the defendant’s objection was overruled and Horowitz was permitted to testify. The psychologist was precluded, however, from testifying that the existence of some or all of these characteristics necessitated a finding that a child was the victim of sexual abuse. The continued direct examination also revealed to the jury that the characteristics listed were often present in children who suffered other abuse or trauma, and were not limited to victims of sexual abuse.

Horowitz was then asked whether his review of the police report and arrest warrant in this case disclosed information that was characteristically common to many victims of sexual abuse. The defendant objected that the line of questioning was highly prejudicial as it allowed an expert to give an opinion as to the ultimate fact to be determined. The objection was overruled and Horowitz testified that there were three elements in this case that were consistent with reactions of child victims of sexual abuse: (1) the victim revealed the abuse after a personal safety course given at school; (2) the victim was involved in self-injurious behavior such as the suicide attempt; and (3) the victim had difficulty describing the details of what had happened to her.

At another point in the direct examination, the state’s attorney asked Horowitz how many of the victims he treated did he think had fabricated their claims. The defendant objected that a response to such a question would involve a personal survey by Horowitz without the jury’s having access to the methods that he used to make such a determination. This objection was also overruled. Horowitz testified that he believed that fewer than ten of the hundreds of children he had treated had fabricated their claims of sexual abuse. He further testified that fabricated claims usually appeared rehearsed and were related by the child without emotion.

A

The defendant’s first claim with respect to Horowitz’ testimony is that his testimony of common behavioral responses of victims of sexual abuse was irrelevant. The defendant rests his claim on the fact that the characteristics testified to by Horowitz are also found in children who have not suffered sexual abuse, but who have suffered other forms of trauma. We do not agree that the testimony was irrelevant.

“ ‘The trial court has broad discretion to determine the relevancy of evidence, and we will not disturb a trial court’s ruling on the admissibility of evidence in the absence of a clear abuse of discretion.’ ” State v. Gant, 231 Conn. 43, 58, 646 A.2d 835 (1994). “Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue.” (Internal quotation marks omitted.) State v. Ulen, 31 Conn. App. 20, 28, 623 A.2d 70, cert. denied, 226 Conn. 905, 625 A.2d 1378 (1993), quoting State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985).

Horowitz’ testimony regarding common behavioral responses of child victims of sexual abuse was relevant to the jury’s determination of whether the victim was sexually abused. See State v. Freeney, supra, 228 Conn. 592; State v. Spigarolo, supra, 210 Conn. 378-79. Such testimony can aid a jury in assessing the claims of a witness who has alleged a sexual assault by calling to the jury’s attention typical reactions to such abuse. See State v. Freeney, supra, 592; State v. Spigarolo, supra, 378-79.

The fact that many of the behavioral characteristics exhibited by victims of sexual abuse are also exhibited by children who have suffered other types of trauma does not render such evidence any less relevant. “[T]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Internal quotation marks omitted.) State v. Sauris, 227 Conn. 389, 406-407, 631 A.2d 238 (1993).

The defendant contends further that even if this testimony was relevant, it should have been excluded because its probative value was outweighed by its prejudicial effect. “The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury.” State v. Crafts, 226 Conn. 237, 255, 627 A.2d 877 (1993). A trial court’s determination of the admissibility of such evidence will not be overturned on appeal unless there is a clear abuse of discretion. State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993); State v. Grant, 33 Conn. App. 133, 142, 634 A.2d 1181 (1993).

The defendant has not shown how the psychologist’s testimony would elicit an emotional response from the jury. Horowitz merely listed various characteristics that his studies had shown were typical of children who had suffered sexual abuse. In addition, Horowitz made clear, both on direct and on cross-examination, that the characteristics listed were also exhibited by children who suffered other forms of abuse. We cannot say that the trial court abused its discretion when it determined that the probative value of Horowitz’ testimony was not outweighed by any prejudicial effect.

The trial court did not abuse its discretion by admitting the testimony of Horowitz concerning common behavioral characteristics of child victims of sexual abuse.

B

The defendant next claims that the trial court improperly allowed Horowitz to testify to consistencies in the behavior of the victim with sexually abused children in general. In support of this claim, the defendant posits that Horowitz’ testimony interfered with the jury’s duty to assess the credibility of the victim and went to an ultimate issue of fact to be determined by the jury. We disagree.

In Freeney, our Supreme Court upheld the admission of expert testimony that the victim’s behavior was consistent with that of victims of sexual assault. In so doing, the court reiterated the language of State v. Borrelli, supra, 227 Conn. 174, that the “expert testimony was properly admitted to assist the jury in understanding, not whether [the victim] was a credible witness on the witness stand, but whether her conduct . . . was consistent with the pattern and profile of [an abused person]. . . . [T]he expert testimony did not invade the province of the jury in determining the credibility of witnesses. . . .” (Citations omitted; internal quotation marks omitted.) State v. Freeney, supra, 228 Conn. 592.

The testimony of Horowitz that the victim exhibited three responses that were typical of victims of sexual abuse was, therefore, properly admitted.

C

The defendant’s final claim regarding the testimony of Horowitz is that the trial court improperly admitted his testimony that very few of the children he had treated had fabricated their claims of sexual abuse. The defendant objected to the admissibility of this testimony on the basis of a claim that the jury could not evaluate the reliability of Horowitz’ survey. We decline to afford review because the defendant did not state any legal basis for the objection.

At trial, the defendant stated only that the testimony constituted a personal survey by the witness and that it was not clear how that survey was conducted. We note also that the defendant has failed to cite any Connecticut law in his brief to support this contention.

We will not review a claim that is not distinctly raised at trial. Practice Book §§ 288, 4185; State v. Anderson, 28 Conn. App. 833, 844, 614 A.2d 438 (1992). The defendant’s failure to state the legal grounds on which he based his objection deprived the trial court of the opportunity to address adequately the issue while there was time to correct it and denied this court an adequate record to review the claim. Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 385-86, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988).

We, therefore, decline to review the defendant’s claim that the trial court improperly admitted the psychologist’s testimony regarding the number of children who fabricate claims of sexual abuse.

Ill

The defendant also claims that the trial court improperly charged the jury on the meaning of reasonable doubt. In light of our disposition of the case in part I of this opinion, we need not and do not address this issue.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides; “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be [punished].”

       The following are the questions and answers at issue:
      “Q. [By Assistant State’s Attorney] Based on your treatment of her, do you have any indication that her story of the sexual abuse was any type of a fantasy or fabrication on her part?
      “A. None
      “Q. Can you explain this to me?
      “[Defense Counsel]: Objection.
      “The Court: I’m going to overrule the objection.
      “[Defense Counsel]: May I have an exception?
      “The Court: Exception may be noted.
      “Q. You can answer the question.
      “A. I never got the sense from her that she was fabricating or making up the story. One, because she was so consistent, I think. Two, because of her reluctance to disclose actual details and her humiliation and shame and embarrassment around even talking about having been sexually abused. I felt that what she was saying was true. [Emphasis added.]
      “[Defense Counsel]: I move that be stricken. Again, you are getting an opinion. Its the ultimate question of fact in this case.
      “The Court: She had asked her whether she had formed an opinion relative to that. I’m going to overrule your objection and you may have an exception. It’s not going to be stricken from the record.
      “[Defense Counsel]: May I have an exception?
      “The Court: Exception may be noted.
      “Q. You indicated one of the reasons that you did not believe that it was a fabrication or fantasy was her inability to disclose a lot of the specifics. What do you mean by that?
      “A. Well, I think that if she had been fabricating, she would have talked about the details. I mean, she is old enough to know the different parts of the body. I think that she is old enough in her early teenage years to be able to talk about masturbation or penis and vagina. I would think that if she were fabricating, she may have been able to embellish, so to speak, her story, but again her reluctance to talk about details and her shame and embarrassment around it again indicated to me that was being truthful in what she was saying.
      “[Defense Counsel]: Again, I would object to this line of questioning. I would move to have it stricken.
      “The Court: All right, your objection is overruled.
      “[Defense Counsel]: May I have an exception?
      “The Court: Exception may be noted.”

       Although our decision in part I requires reversal, we address the portion of this claim that is properly preserved and likely to arise again on remand. See State v. Skipper, 228 Conn. 610, 624-25, 637 A.2d 1101 (1994).

       In Ms brief, the defendant also claims that the characteristics listed by Horowitz constitute child sexual abuse syndrome and that such testimony has been found unreliable in other jurisdictions. This objection was not made at trial. “ ‘This court reviews rulings solely on the ground on which the party’s objection is based [at trial].’ ” State v. Robinson, 227 Conn. 711, 740, 631 A.2d 288 (1993), quoting State v. Manning, 162 Conn. 112, 118, 291 A.2d 750 (1971); see Practice Book § 288. We, therefore, review this claim only on the grounds of relevancy.

       The defendant’s objection follows:
      “[Assistant State’s Attorney]: [0]ut of the hundreds of victims that you indicated you had treated or spoken with, [with] approximately how many of these victims did you feel there might be an issue of fabrication?
      “[Defense Counsel]: Objection, Your Honor, goes into a personal survey of him. We don’t know what tools he used in order to make a determination, Your Honor.
      “The Court: I am going to overrule the objection to the extent it reflects his own personal experience and analytical practice of child abuse and child neglect where there is an indication that there may be a fabrication. I think that’s an appropriate area to explore in light of defense counsel’s cross-examining the witness relative to that particular issue.
      “[Defense Counsel]: May I have an exception?”


author: Foti, J.

text:
    Gerber and Hurley, Inc. v. CCC Corporation et al.
    (12545)
    Foti, Heiman and Spear, Js.
    Argued September 30, 1994
    decision released January 3, 1995

      Marc P. Mercier, for the appellant-appellee (defendant CCC Corporation).

      Elias A. Alexiades, for the appellee-appellant (plaintiff).
   Foti, J.

The defendant CCC Corporation (CCC) appeals from a judgment rendered in favor of the plaintiff, after a trial to the court, for the amount of $111,612.08 together with interest and costs. The defendant claims that the trial court (1) improperly-concluded on the basis of the facts found that a ratification had occurred, (2) applied an improper legal standard for ratification, (3) improperly concluded on the basis of the facts found that apparent authority existed, (4) applied an improper legal standard in determining the existence of apparent authority, and (5) improperly concluded on the basis of the facts found that the plaintiff had acted in good faith. The plaintiff has cross appealed, alleging that the trial court improperly calculated damages. We affirm the judgment of trial court on the appeal and reverse the judgment, in part, on the cross appeal.

This is an action brought in separate counts against CCC and Hector Cyr, alleging payment due and owing for goods sold and delivered on an open account pursuant to a credit agreement. On March 27, 1991, Cyr entered into a credit agreement with the plaintiff. Cyr signed that agreement twice, once as president of CCC and once individually as a personal guarantor of payment on the account. Neither defendant disputed the amount of the debt.

The record discloses the following facts. The plaintiff, a Connecticut corporation engaged in the business of selling roofing materials, had been selling goods to General Roofing and Sheet Metal, Inc. (General), on credit. In 1991, sales on credit to General ceased and the plaintiff entered into a credit agreement with CCC, knowing that Cyr, president of CCC, was also president of General. Thereafter, goods were supplied to CCC and the plaintiff issued corresponding invoices to CCC. The credit agreement provided for the payment of interest on the outstanding balance. The outstanding balance at the time of trial was $133,512.82 and the outstanding interest was $32,131.54, totaling $165,644.36. At some point during the transactions, the plaintiff had received three checks totaling $30,000, which were drawn on General’s bank account and applied to CCC’s outstanding balance pursuant to instructions from Cyr. The plaintiffs complaint sought payment of the amount remaining after deducting the $30,000 payment.

CCC does business as a real estate company. It is authorized, under its certificate of incorporation and bylaws, to transact any lawful business. General is a tenant of CCC, leases equipment from CCC and uses a CCC truck to transport roofing materials. The materials sold to CCC through the credit agreement were used by General.

By its pleading, CCC denied that it owed a debt to the plaintiff, and set forth five special defenses. Two of these special defenses stated the following: (1) “The defendant, Hector Cyr, had no authority to bind CCC Corp. to any credit agreement or make purchases on behalf of CCC Corp. which the plaintiff was aware of at the time the goods described in the complaint were purchased and the credit application was signed”; and (2) “The defendant, CCC Corp., is not a partnership but a corporation and Hector Cyr had no authority to make the purchases described in the complaint or bind the corporation to such a credit agreement.”

I

The Appeal

We begin our analysis with the trial court’s finding that CCC ratified the credit agreement and is estopped from denying ratification.

Our Supreme Court has frequently held that ratification is defined as “the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account . . . [requiring an] acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances. ...” (Citations omitted; internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986). In its memorandum of decision, the trial court stated that ‘‘[notwithstanding Cyr’s argument that the materials were ordered for the benefit of General Roofing, the court finds that CCC, with knowledge of the facts, accepted and retained the benefits of the goods and supplies provided by the unauthorized act; it thereby ratified the credit agreement and will be estopped to deny ratification.” The trial court relied on Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520 (1871), as authority for its conclusion that CCC is estopped from denying ratification.

The defendant argues that the facts found by the court in its memorandum of decision do not support a finding of ratification. The defendant also claims that the trial court made factual errors in finding that CCC knew of Cyr’s conduct or had full and complete knowledge of all material facts connected with the sales agreement, and that CCC retained the benefit of the contract.

“An appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found.” Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn. App. 396, 401, 541 A.2d 519 (1988). The duty of providing us with a record adequate to review claims, including those of a factual nature, rests with the appellant. Practice Book § 4061. We cannot guess as to the existence of a factual predicate. State v. Hoeplinger, 27 Conn. App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

The trial court did not set forth any facts or reasons to support its conclusion that CCC had ratified -the credit agreement. The defendant did not seek an articulation, nor did it seek to correct any finding in the trial court’s memorandum of decision. While it is the duty of the judge who tried the case to set forth the basis of that decision; Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981); if the defendant, as appellant, claims that the court’s memorandum of decision lacks a sufficient factual basis or is unclear or incorrect, it is that party’s burden to have corrected or perfected that record. It is incumbent on the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Without an adequate record, we can only speculate as to the basis for the trial court’s decision. Our role “is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.” (Internal quotation marks omitted.) State v. Hoeplinger, supra, 27 Conn. App. 647.

Because the defendant has not provided us with an adequate record on which to review its claim, its claim must fail.

II

The Cross Appeal

The plaintiff has cross appealed, alleging that the trial court improperly calculated damages. It was established at trial that the outstanding balance owed by the defendant, excluding interest, was $133,512.82. The amount of outstanding interest was $32,131.54. The total debt was determined to be $165,644.36. The trial court awarded the plaintiff $111,612.08, with interest from the time of judgment. The plaintiff claims that the trial court (1) should not have deducted $30,000 from its calculation of the plaintiff’s damages and (2) improperly calculated the amount of interest owed. We reverse the judgment in part and affirm it in part.

The plaintiff points out that it had received three checks totaling $30,000 drawn on General’s bank account and applied to CCC’s outstanding balance pursuant to instructions from Cyr. The outstanding balance claimed by the plaintiff was the amount remaining after deducting the $30,000 payment. Despite the fact that the plaintiff had already deducted the $30,000 from the amount owed by CCC, the trial court deducted $30,000 in its calculation of damages. The trial court held, “However, the General Roofing Co. submitted three checks to [the plaintiff]. . . . The checks were issued by General Roofing to [the plaintiff] without any marking indicating where the checks should be applied. The plaintiff claims he was issued an oral order to apply the checks to CCC. The court cannot find any valid argument to justify that claim. Therefore, the court gives CCC credit of $30,000 against the outstanding debt. Therefore, utilizing the balance as shown on the plaintiffs balance sheet, which amounts to $141,612.08, deducting the $30,000 received and applied erroneously to the CCC Corporation, the court finds for the plaintiff in the amount of $111,612.08 with interest and costs, interest from the time of this judgment only, as the interest has been factored in by the plaintiff in his demand.”

A

The plaintiff first claims that the trial court improperly calculated damages by deducting the $30,000 from the outstanding balance owed by the defendant. We agree.

As a general rule, the determination of damages involves a question of fact that will not be overturned unless it is clearly erroneous. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 309-10, 460 A.2d 488 (1983); Amwax Corp. v. Chadwick, 28 Conn. App. 739, 745, 612 A.2d 127 (1992). On the basis of our review of the record, we conclude that the trial court’s determination of damages in this case was clearly erroneous. The amount of the plaintiff’s claim reflected outstanding amounts only, after crediting all payments, and the amount of the claim was not disputed by the defendant. After the trial court noted that the $30,000 had been applied to the balance owed by CCC, the court improperly proceeded to deduct $30,000 from the balance claimed by the plaintiff. This resulted in the $30,000 being subtracted twice from CCC’s balance, first by the plaintiff upon receipt and then by the court. The action of the trial court in deducting this money from the plaintiff’s claim was clearly erroneous.

B

The plaintiff also claims that the trial court improperly omitted a substantial amount of interest from the damage award. The court calculated the amount of interest awarded on the basis of the outstanding balance reflected in an attachment to the plaintiffs original complaint. The court found that interest was included by the plaintiff in this amount and, therefore, awarded interest only from the time of judgment. The plaintiff claims that the trial court should have included interest from the commencement of the action to the time of judgment. We find this claim to be without merit. The plaintiff has not demonstrated that the court’s determination of interest was clearly erroneous.

The judgment is affirmed on the defendant’s appeal. The judgment is reversed in part on the plaintiff’s cross appeal and the case is remanded with direction to render judgment for the plaintiff in the amount of $141,612.08 with interest from the date of judgment and costs.

In this opinion the other judges concurred.

       In addition to the named defendant, Hector Cyr is a defendant. He has not appealed. Thus, when we refer to the defendant, we refer only to CCC Corporation.

       The trial court found that the plaintiff sustained its burden of proof that Cyr had apparent authority as CCC had invested him with unfettered managerial control. The court found that Cyr, a corporate officer, was authorized to act on behalf of CCC, that Cyr signed the credit agreement on behalf of CCC, and that the plaintiff acted in good faith in reliance on that agreement with CCC. The court also accepted the alternative argument that CCC had ratified the agreement and was estopped from denying ratification. Because of our disposition of this claim, we find it unnecessary to address the defendant’s other claims.

       The holding in Perry v. Simpson Waterproof Mfg. Co., supra, 37 Conn. 534, states: “A corporation will also be bound by the unauthorized acts of its president if it subsequently ratifies those acts, or so conducts itself with reference to them as that it ought to be estopped from denying his authority; and generally, the doctrine of estoppel will apply whenever the corporation receives and retains the benefit of the contract.”

       The defendant acknowledges that the memorandum of decision is not very clear as to whether the knowledge was found to be actual or imputed and whether it was of some or all of the facts connected with the agreement. The defendant also points out that the court never spelled out the benefit to CCC.

       The plaintiff filed a motion to correct that was denied by the court.

       The plaintiff’s original complaint, dated July 16, 1992, showed the amount due as $141,612.08.


text:
    State of Connecticut v. Edward Nieves
    (12755)
    Schaller, Spear and Hennessy, Js.

      Argued October 27, 1994
    decision released January 10, 1995

      Linda P. Stambovsky, with whom, on the brief, was Patricia Buck Wolf, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Elena Ricci and Robin Lipsky, assistant state’s attorneys, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sale of a narcotic substance in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court (1) improperly refused to give a separate instruction on testimony by police officers, (2) allowed an improper in-court demonstration, (3) permitted the prosecutor to engage in misconduct during the trial and closing argument, and (4) improperly denied the motion for judgment of acquittal, which the defendant based on insufficient evidence of his identity. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 24, 1992, police officers Michael DiMaria and Randy Velez of the tactical narcotics team of the Waterbury police department were on a stakeout. At approximately 4 p.m. in front of 18 West Liberty Street in Waterbury, the officers witnessed the defendant and Javier Roman exchange money for two small plastic vials. Later, these vials were found to contain “crack” cocaine.

Immediately after witnessing the exchange, the officers followed and apprehended Roman, the buyer, on River Street. Two other officers, Michael Ricci and John Kennelly, joined DiMaria and Velez in search of the defendant. Velez and Ricci proceeded to scan the area in a police car. During their search, they spotted the defendant, a Hispanic male wearing grey sweatpants, a blue coat and a baseball cap, on West Liberty Street. The officers immediately apprehended the defendant and waited for DiMaria and Kennelly to arrive. When DiMaria arrived, he confirmed that this was the Hispanic man whom he had observed earlier handing Roman a small object in exchange for money. The officers found a beeper and $370 in the defendant’s possession. The defendant was arrested and taken into police custody.

At trial, the state called six Waterbury police officers and a toxicologist from the Connecticut department of health. The toxicologist and one officer testified as expert witnesses. The defendant presented the testimony of two witnesses, William Deming and Rosalie Nieves, the defendant’s mother, in addition to his own testimony.

I

The defendant claims that the trial court improperly refused to give the jury a separate instruction on testimony by police officers. We do not agree.

At the close of the evidence, the defendant filed a request to charge on police testimony. The relevant portion of the requested instruction is as follows: “As you will remember there was testimony here from police officers. The testimony of a police officer is entitled to no special or exclusive sanctity merely because it comes from a police officer. A police officer who takes the witness stand subjects his testimony to the same examination and the same tests that any other witness does. And in cases of police officers, you should not believe them merely because they are police officers. You should recall their demeanor here on the stand, consider the training, if any, in the field in which they gave evidence, their manner of testimony, the substance of their testimony, their capacity for observing facts and relating them to you accurately. And you should weigh and balance that testimony just as carefully as you would weigh the testimony of any other witness.” This instruction is routinely given in criminal cases involving police testimony. See 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 3.11, p. 94.

The court, however, did not charge separately on police testimony as requested by the defendant. Instead, the court combined that instruction with instructions on several types of witnesses. In the general portion of its instruction, the trial court directed the jury to consider each witness’ appearance, interests, and ability to relate the facts accurately and truthfully. Regarding police officers, the court charged as follows: “Now there were some witnesses who testified here, a doctor, toxicologist, the police expert, and police officers. The testimony of such witnesses is entitled to no special or exclusive sanctity merely because of their occupation. Each witness subjects his testimony to the same examination, the same test as other witnesses that you’ve heard during this trial. . . . The mere fact that a witness is of a particular occupation should not mitigate for or against that witness’ credibility. It’s entirely up to you whether you credit their testimony and their expertise, bearing in mind the instructions I have given you concerning sizing up witnesses on the stand.”

The defendant claims that because the instruction on police officers was combined with the instructions on other types of witnesses, i.e., the toxicologist and the police expert, the charge failed to caution the jury adequately not to grant the police officers special and exclusive sanctity merely because of their status as police officers, thereby denying him a fair trial.

Practice Book § 852 requires that the defendant either file a written request to charge or take exception to the charge as given to preserve the issue for appeal. There is no dispute that the defendant satisfied the requirements set forth in § 852. The defendant both filed a written request to charge and took exception to the charge given at trial.

The trial court is under no duty to charge the jury in the exact language requested by the defendant as long as its instructions are adapted to the issues involved in the case and are sufficient for the guidance of the jury. Coble v. Maloney, 34 Conn. App. 655, 672, 642 A.2d 277 (1994); see also State v. Harrell, 199 Conn. 255, 268-71, 506 A.2d 1041 (1986); State v. Frazier, 7 Conn. App. 27, 37 n.3, 507 A.2d 509 (1986). It is well established that a refusal to charge in the exact words requested will not constitute error if the substance of the requested charge is given. State v. Arena, 33 Conn. App. 468, 488-89, 636 A.2d 398, cert. granted, 229 Conn. 918, 644 A.2d 914 (1994). The test is whether the charge as given, when compared to the charge requested, is comparable in its probable effect on jurors in guiding them to a correct verdict on the case. State v. Dickerson, 28 Conn. App. 290, 293-94, 612 A.2d 769 (1992).

In the present case, reviewing the charge as a whole, we cannot say the instruction given was improper. The court was careful to instruct the jury that the testimony of the police officers, toxicologist, and expert police witness was to be weighed and balanced as carefully as that of any other witnesses. While it is preferable to give appropriate emphasis to the instruction on police testimony by devoting a separate instruction to that subject, we cannot say that in this case the charge was deficient merely because it was not given separately.

II

The defendant next claims that the court abused its discretion in allowing DiMaria to demonstrate in court the manner in which the buyer allegedly handed money to the defendant in the course of the transaction. We do not agree.

Further facts are necessary to resolve this issue. At trial, the state asked DiMaria to perform an in-court demonstration of a transfer of currency that he testified he had observed between Roman and the defendant. The defendant objected to this demonstration claiming that, because of the inconsistencies in distance and conditions, the in-court demonstration would be so dissimilar to the original alleged transaction that it would be highly prejudicial and misleading. The trial court overruled the objection, but indicated to the defendant that it would instruct the jury that the demonstration was not being offered to show the distance between DiMaria’s position and the location of the transaction. Specifically, counsel for the defendant insisted that “I would like to ask for an instruction to the jury that this is dissimilar .... I think it’s prejudicial and misleading.” The court responded, after confirming with the prosecutor that she was “not offering [the demonstration to prove] that the distance is the same” that “I’ll tell the jury that.” After observing the demonstration outside of the jury’s presence, the court allowed the demonstration to be repeated in the jury’s presence. The court gave no limiting instruction at that time, nor did the defendant request any such instruction.

In the jury charge, the court did not refer to the in-court demonstration of DiMaria. At the close of jury instructions, the court asked either party if they had any exceptions to the charge as given. Counsel for the defendant said, “I have no exceptions . . . except that I would request that you read the proper charge on police testimony that was given in the defendant’s request to charge.” Further, counsel for the defendant did not submit any written request to the court for a charge on the in-court demonstration.

Although the court neglected to instruct the jury on the in-court demonstration as it indicated it would, the defendant failed both to file a written request to charge on the issue and to take an exception at the close of jury instructions.

“Practice Book § 852 requires that a party either file a written request to charge or take exception to the charge as given in order to preserve the issue for appeal.” State v. Jackson, 34 Conn. App. 599, 603-604, 642 A.2d 1223, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994). In State v. Ramirez, 16 Conn. App. 284, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988), we stated that we were not persuaded by the defendant’s claim that an in-court discussion of whether a charge was warranted, held immediately before the jury charge, was an acceptable alternative to the requirements of the rules of practice. We reasoned that the purpose of § 852 is not well served by oral argument alone since the court is pressured to make an immediate decision on the issue without the benefit of time and effort spent scrutinizing the relevant law on the issue. Our Supreme Court has held that “[t]he failure of the defendant to state distinctly the matter being objected to immediately after the conclusion of the charge ordinarily renders the claim of error unreviewable on appeal.” State v. Utz, 201 Conn. 190, 208, 513 A.2d 1191 (1986).

We conclude that the failure of the defendant to file a written request to charge and to take exception to the charge as given renders this issue unpreserved for appeal. Accordingly, we decline to review this claim.

Ill

The defendant next claims that the state engaged in misconduct during the trial and the closing argument, thereby violating his right to a fair trial. This claim is without merit.

The defendant claims that the state presented a misleading demonstration, asked misleading questions based on false information, influenced a witness called by the state to change his testimony and, in its closing argument, argued a new theory of guilt unsupported by the evidence.

The threshold issue is whether the claim is reviewable. The defendant did not properly preserve this claim for appellate review. The defendant argues, however, that although no objection was made at the time of the closing argument, it was sufficient that he presented the objection to the trial court in his second motion for judgment of acquittal.

Our Supreme Court has held that the failure of counsel for the defendant to take exception to remarks of the state’s attorney either at the time they were made or at the close of the state’s attorney’s argument was a waiver of the right of the accused to press this claim as error. State v. Lubesky, 195 Conn. 475, 484, 488 A.2d 1239 (1985). Section 4185 of the Practice Book provides in relevant part that we are not “bound to consider a claim unless it was distinctly raised at trial . . . .”We have noted that “[t]he purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” State v. Utz, supra, 201 Conn. 207.

Because the defendant failed to make a timely objection to the challenged remarks and misconduct, he seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Our review of the record discloses that the remarks and conduct now challenged were isolated instances of alleged misconduct, unrepresentative of a pattern of conduct repeated throughout the trial. Under those circumstances, it is appropriate that we decline to review their propriety. State v. Castonguay, 218 Conn. 486, 507-508, 590 A.2d 901 (1991); see State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987).

IV

The defendant’s remaining claim challenges the trial court’s denial of the defendant’s motion for judgment of acquittal in which the defendant challenged the sufficiency of the identification evidence. The defendant claims that there was insufficient evidence to support his conviction because the record does not contain proof beyond a reasonable doubt of his identity as the man who sold Roman the narcotics. We disagree.

“In reviewing a sufficiency 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).

In this case, on the basis of the evidence and the inferences reasonably drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant was the man who sold Roman the narcotics. DiMaria was the only witness who testified that he observed the defendant engaging in the sale of narcotics. Although DiMaria viewed the defendant for only a few minutes and from a considerable distance, he did have an unobstructed view both when the defendant and Roman first met, and when the exchange took place. When he arrived at the location where the defendant was being detained by other officers, DiMaria immediately identified the defendant as the person who had sold the narcotics to Roman. The United States Supreme Court, in discussing a challenge to an identification made by an undercover narcotics officer, said that “as a specifically trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.” Manson v. Brathwaite, 432 U.S. 98, 115, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Although DiMaria was an observer rather than a buyer, the same rationale would apply.

We conclude that there was sufficient evidence of identification for the jury to have concluded beyond a reasonable doubt that the defendant was the person who sold the narcotics to Roman.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 provides in pertinent part: “(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned . . . .”

       There was evidence that DiMaria had special training in the vice squad and special classes in identification of narcotics and that, in undercover work, he had made more than 700 narcotic arrests.