author: Spallone, J.

text:
    Carol Jane F. Perkins v. Roy S. Perkins
    (2855)
    Dupont, C.P.J., Borden and Spallone, Js.
    Argued December 7, 1984
    decision released February 26, 1985

      Harold R. Cummings, with whom, on the brief, was Harry D. Weller, for the appellant (defendant).

      Julie A. Harris, with whom, on the brief, was Lawrence L. Connelli, for the appellee (plaintiff).

      Paul J. Bakulski, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (state).
   Spallone, J.

In this appeal from the denial of a motion to modify a dissolution judgment, the defendant claims that the trial court erred in finding that it lacked jurisdiction to open and modify the judgment on the issue of paternity.

The parties were married on August 7,1971. Difficulties arose over a period of time and the plaintiff moved out of the marital home in April of 1976. That summer, the plaintiff informed the defendant that she was pregnant and that he might not be the father. Because of the plaintiffs emotional instability and in an effort not to alarm her parents, the defendant acted as though the child were his. Shortly after the child was bom, the plaintiff brought an action for dissolution. The defendant did not contest the action in any way.

In rendering judgment on February 15,1978, the trial court ordered, inter alia, that the plaintiff would have custody of the child and that the defendant would pay child support of $30 per week. On May 23, 1980, the court ordered, on motion by the plaintiff, that the child support be increased to $40 per week. The issue of the paternity of the child was not denied by the defendant during the original dissolution action or raised in the subsequent modification proceeding.

On October 6,1981, the defendant filed a motion for modification alleging that he had been led to believe during his marriage to the plaintiff that he was the father of the child and that, subsequent to the judgment of dissolution, he was advised by the plaintiff that this was not so. He also claimed that in the spring of 1981 blood tests were conducted which indicated that the child was not his. He alleged that if he had known this fact at the time of the dissolution, he would not have agreed to an uncontested finding that he was the father of the child. He thus requested that the court “reopen and modify” the judgment of dissolution and vacate all orders for the support of the child for which he was liable. After a hearing, the trial court denied the motion on the ground that it had no jurisdiction to open the judgment on the issue of paternity.

On appeal, the defendant argues that General Statutes §§ 46b-86 and 46b-174 provide jurisdiction for the court to open the judgment, and relies on Stone v. Maher, 527 F. Sup. 10 (D. Conn. 1980), to support his position. He claims that he, like the plaintiff in Stone v. Maher, supra, never actually litigated the question of paternity and that the denial of his motion for modification consequently violated his due process rights.

In Stone v. Maher, supra, the plaintiff (hereinafter Stone) challenged the constitutionality of General Statutes § 46b-172, which provides a procedure by which paternity may be acknowledged by filing. The acknowledgment which Stone signed and filed was a printed form supplied by the Connecticut family relations office containing blank spaces for the names and addresses of the mother, child and acknowledging person. The form provided neither information regarding the acknowledging person’s right to counsel or to a hearing on the issue of paternity, nor any language expressing a waiver of such rights. When Stone signed the form, he had no attorney present. The court found that General Statutes § 46b-172 was “fundamentally deficient because it fails to provide for informing a putative father of the legal ramifications of signing a written acknowledgement of paternity.” Id., 17. It thus permitted “the plaintiff and his class to contest, and litigate for the first time in a judicial proceeding, the issue of paternity by seeking a modification in state court of prior support orders or agreements”; id.; and, in such proceedings, “to assert his nonpaternity as a basis for modifying or vacating a prior support order or agreement . . . .” Id., 18.

The class to which the ruling of Stone v. Maher, supra, applies is clearly that of putative fathers who executed a written acknowledgment of paternity pursuant to General Statutes § 46b-172 and were never given an opportunity to litigate the issue of paternity. We therefore find that Stone v. Maher, supra, is inapplicable to this case, where the defendant, who was represented by counsel, appeared and participated in a judicial proceeding in which his status as father of the minor child was raised and adjudicated. He could have litigated the question of his paternity, but he chose not to. Since the defendant was represented by counsel and elected not to contest the issue of paternity, we may reasonably assume that he, unlike the plaintiff in Stone v. Maher, supra, was aware of the consequences of his decision. See Vogel v. Vogel, 178 Conn. 358, 363, 422 A.2d 271 (1979).

“If the paternity of a child is placed in issue in an action for a divorce and is adjudicated, the matter is res judicata as between the husband and wife in any subsequent action or proceeding . . . .”24 Am. Jur. 2d 1084, Divorce and Separation § 1099. Whether the issue “was actually litigated is immaterial in view of the necessary conclusion that there was full opportunity to litigate it and that it was adjudicated by the decree.” Jackson v. Irving Trust Co., 311 U.S. 494, 503, 61 S. Ct. 326, 85 L. Ed. 297 (1941). The continuing jurisdiction of the superior court to set aside, alter or modify support orders pursuant to General Statutes § 46b-86 does not deprive the underlying adjudication of finality for purposes of res judicata. See 1 Restatement (Second), Judgments § 13.

The underlying adjudication that the child was the issue of the marriage between the parties triggered the application of General Statutes § 46b-84 (formerly Sec. 46-57), which authorizes the court to determine the parents’ obligation for maintenance of that child. It is the degree and extent of this obligation that may be modified under the continuing jurisdiction of the court, not the factual finding that the child is the issue of the marriage. The trial court was correct in finding that the underlying issue of the defendant’s paternity fell beyond its continuing jurisdiction to modify orders of support.

We note that Practice Book § 326 provides that a civil judgment may be opened or set aside where a motion to do so is filed within four months from the date of its rendition, “[ujnless otherwise provided by law and except in such cases in which the court has continuing jurisdiction . . . .” Since the portion of the judgment which the defendant sought to alter was not one over which the court had continuing jurisdiction, the defendant’s motion was subject to the four month limitation for filing motions to open. Practice Book § 326; Bunche v. Bunche, 180 Conn. 285, 288, 249 A.2d 874 (1980).

“Under § 326, the parties may waive the time requirements or otherwise submit themselves to the jurisdiction of the court. Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of the term of the court in which it was rendered; Snow v. Calise, 174 Conn. 567, 571, 392 A.2d 440 (1978); or the term provided in Practice Book, 1978, § 326.” Id. The defendant’s motion to modify was not filed within the applicable period for opening judgments and the parties did not submit themselves to the jurisdiction of the court by waiver, consent or otherwise.

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       In her substituted complaint, the plaintiff alleged in paragraph four that “[t]here is one minor child issue of that marriage, Seth Ryan Perkins, bom March 7, 1977.”

       General Statutes § 46b-86 provides in part that “(a) [ujnless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”

       General Statutes § 46b-174 provides that “[tjhe superior court shall have jurisdiction to enforce and modify all paternity orders and paternity support agreements issued by or filed with the court of common pleas or circuit court prior to or after October 1,1963, and existing on July 1,1978.”

       At the time Stone v. Maher, 527 F. Sup. 10 (D. Conn. 1980), arose, General Statutes (Rev. to 1979) § 46b-172 provided as follows: “(a) In lieu of or in conclusion of proceedings under section 46b-160, the written acknowledgment of paternity executed by the putative father of the child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the child and filed with the superior court for the geographical area in which the mother of the child or the putative father resides shall have the same force and effect as a judgment of that court; and an agreement to support the child by payment of a weekly sum until the child attains the age of eighteen years, together with provisions for reimbursement for lying-in expense, accrued maintenance and reasonable expense of prosecution of the petition, when filed with, and approved by a judge of, said court, at any time, shall have the same force and effect, retroactively or prospectively in accordance with the terms of said agreement, as an order of support entered by that court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. Payments under such agreement shall be made through the family relations office of the superior court. Such written affirmations, acknowledgments and agreements to support shall be sworn to, and shall be binding on the person executing the same whether he is an adult or a minor. Such mother shall not be excused from making such affirmation on the ground that it may tend to disgrace or incriminate her; nor shall she thereafter be prosecuted for any criminal act involved in the conception of the child as to whose paternity she makes affirmation.
      “(b) At any time after the filing with the court of any acknowledgment of paternity, upon the application of any interested party, the court or any judge thereof shall cause a summons, signed by him or by the clerk or assistant clerk of said court, to be issued, requiring the putative father to appear in court at a time and place named therein, to show cause, if any he has, why the court should not enter judgment for support of the child by payment of a weekly sum until the child attains the age of eighteen years, together with provision for reimbursement for lying-in expense, accrued maintenance and reasonable expense of the action under this subsection on the acknowledgement of paternity previously filed with said court. The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court. All such payments shall be made through the family relations office of the superior court.”
      Subsection (b) of General Statutes § 46b-172 was subsequently amended to provide that “[t]he prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court, unless the person seeking review of the acknowledgment petitions the superior court for the geographical area having venue for a hearing on the issue of paternity within three years of such judgment or within three years of [October 1, 1982], whichever is later.” Public Acts 1982, No. 82-6.

       In State v. Carter, 3 Conn. App. 235, 486 A.2d 1138 (1984), we held that the granting of a petition for a hearing under General Statutes § 46b-172 (b), as amended, is not an appealable final judgment. In examining the legislative history of the amendment, we found that such a petition is intended to provide “ ‘a hearing on the issue of paternity alone . . . [to] give this particular defendant his day in court.’ ” State v. Carter, supra, 238. Implicitly, any defendant who would so petition never had his day in court on that issue in the first place.

       General Statutes § 46b-84 provides: “(a) Upon or subsequent to the annulment or dissolution of any marriage or the entry of a decree of legal separation or divorce, the parents of a minor child of the marriage, shall maintain the child according to their respective abilities, if the child is in need of maintenance, (b) In determining whether a child is in need of maintenance and, if in need, the respective abilities of the parents to provide such maintenance and the amount thereof, the court shall consider the age, health, station, occupation, earning capacity, amount and sources of income, estate, vocational skills and employability of each of the parents, and the age, health, station, occupation, educational status and expectation, amount and sources of income, vocational skills, employability, estate and needs of the child. . . . (d) After the granting of a decree annulling or dissolving the marriage or ordering a legal separation, and upon complaint or motion with order and summons made to the superior court by either parent or by the commissioner of administrative services in any case arising under subsection (a) of this section, the court shall inquire into the child’s need of maintenance and the respective abilities of the parents to supply maintenance. The court shall make and enforce the decree for the maintenance of the child as it considers just, and may direct security to be given therefor . . . .”

       We further note that the defendant could have petitioned for a new trial; General Statutes § 52-270; within three years after the rendition of the dissolution decree. General Statutes § 52-582. He did not.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Sorenson Transportation Company, Inc. v. State of Connecticut Floyd Hunter et al. v. State of Connecticut
    (2639)
    (2641)
    Borden, Spallone and Daly, Js.
    Argued November 16, 1984
    decision released March 5, 1985

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (state).

      Jane W. Freeman, for the appellees (plaintiffs).
   Daly, J.

The plaintiffs own land in Guilford that can be reached only by crossing the railroad tracks at a crossing known as Sawpit Road, a dirt road. In January, 1983, the defendant state of Connecticut extinguished the plaintiffs’ rights to cross and assessed the damages of the plaintiffs Floyd and Florence Hunter at $31,200 and the damages of the plaintiff Sorenson Transportation Company (hereinafter Sorenson) at $2200. The plaintiffs, claiming they had not been awarded just damages, appealed to the Superior Court from the statements of compensation. The matters were referred to a state trial referee for a reassessment hearing. The referee awarded $249,000 to the Hunters and $68,750 to Sorenson, plus interest. Also, a total of $14,801 was awarded for appraisal fees and fees for expert witnesses in both cases. From these judgments, the state has appealed.

The trial referee found the following facts: On the basis of the testimony of the plaintiffs’ engineer, the Sorenson property was worth $68,750 and the Hunter property was worth $459,000 for industrial use. An access road and water main, however, would have to be constructed on the Hunter property at a cost of $187,812. After deducting that cost, the referee reached the conclusion that $270,000 was the fair market value of the land before the taking, and $20,000 the value thereafter. Subtracting these figures netted damages in the amount of $249,000. The state claimed that the cost of the access road would be considerably higher. Furthermore, the state argues, the road could not be built because a permit would have to be obtained from the state department of environmental protection, and a variance from the town would be required. Testimony was adduced indicating Guilford’s policy was to cooperate with developers.

On both appeals, the state claims that the court erred (1) in valuing the subject property on the basis of the existence of an access road that could not have been built, (2) in accepting the cost of an access road as presented in the written report of the plaintiffs’ expert when the expert himself testified there would be additional costs for which he had not provided, (3) in accepting the exact value given the industrial land by the plaintiffs’ appraiser when his appraisal was based upon mistaken assumptions of fact and improper appraisal theory, (4) in permitting the town assessor to testify concerning the assessed value of the premises, and (5) in awarding engineering fees to the plaintiff. The state’s final contention is that the decisions are so clearly erroneous in view of the evidence in the whole record that a reversal is required under Practice Book § 3060D.

The first three issues relate to the referee’s reliance on the testimony of the plaintiffs’ experts concerning the building of the access road and the appraisal of the properties.

We believe that the evidence presented before the referee supports a finding that there was a reasonable probability that the required permits and variances would have been granted. See Russo v. East Hartford, 179 Conn. 250, 256, 425 A.2d 1282 (1979), cert. denied, 445 U.S. 940, 100 S. Ct. 1334, 63 L. Ed. 2d 773 (1980).

As has been stated, it is for the court to decide in its discretion whether an expert has qualified, and to determine what credence should be extended to him if he be qualified. The court has every right to lean more heavily upon the testimony of one expert than upon the testimony of another. Sibley v. Middlefield, 143 Conn. 100, 108, 120 A.2d 77 (1956). In the case of a conflict in the opinions of experts, the court’s duty is to accept that testimony which appears to be more credible. Humphrys v. Beach, 149 Conn. 14, 20, 175 A.2d 363 (1961); Ball v. Branford, 142 Conn. 13, 17, 110 A.2d 459 (1954); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 118 (c). The acceptance or rejection of the opinion of the expert witness is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court. Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981).

It was not error for the trial referee to rely upon the plaintiffs’ experts as opposed to the state’s.

With respect to the admission of the town assessor’s testimony, the general rule is that assessed valuations made without the participation of the owner, as is the case in Connecticut, are not usually admissible on the issue of the value of property taken by eminent domain. Connecticut Printers, Inc. v. Redevelopment Agency, 159 Conn. 407, 415, 270 A.2d 549 (1970). In order to constitute reversible error, however, the ruling must be both erroneous and harmful. The burden of proving harmful error rests on the party asserting it and the ultimate question is whether the erroneous action would likely affect the result. Manning v. Michael, 188 Conn. 607, 611, 452 A.2d 1157 (1982).

There is no indication that the trial referee was influenced by the assessor’s testimony, so we hold that its admission was not reversible error.

In its next claim of error, the state maintains that the referee should not have awarded the plaintiffs $3000 in engineering fees for the plaintiffs’ engineer’s report, since that was not expert testimony but was prepared before trial. While General Statutes § 48-17a, which pertains to cases of abandoned or unsuccessful condemnation proceedings, and § 48-17b, which pertains to cases of inverse condemnations, both provide that the owner shall be entitled to “his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees,” General Statutes § 48-26, which applies to condemnation proceedings such as these, provides for “reasonable appraisal fees and reasonable fees for expert testimony incurred by the property owner . . . . ”

It would appear that if the legislature intended that an expenditure for an engineer’s report would be reimbursed, it would have used the term “engineering fees” as it did in §§ 48-17a and 48-17b. Hence, we find that the referee was in error in awarding $3000 for the engineer’s report.

The state’s final claim is that the decisions are clearly erroneous. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book, 1978, § 3060D. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court was presented with conflicting evidence and it is apparent that credibility was a crucial factor. We cannot retry the facts or pass upon the credibility of witnesses. The trial court, moreover, examined the property involved in this condemnation. Our Supreme Court has consistently held that the visual observations made by the trier on a visit to the property are as much evidence as the evidence presented for his consideration by the witnesses under oath. Id., 220. In determining the value of the property taken, the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and its own general knowledge of the elements going to establish value, and then employs the most appropriate method to determine the damages that result from the taking. Id., 220-21. The trial court has the right to accept as much of the testimony of the experts and the recognized appraisal methods which they employed as it finds applicable; its determination is reviewable only if it misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was obligated to regard. Id., 221. An examination of the record indicates no such action.

There is error in part, the judgments are set aside and the cases are remanded with direction to render judgments as on file except that the $3000 for the engineer’s report should not be awarded.

In this opinion the other judges concurred.

       A motion to combine these appeals was granted on June 8, 1984.

       Although we would have expected a figure of $250,000, the Hunters do not complain on appeal of the $1000 difference.


author: Per Curiam.

text:
    Joseph H. Dauphinais v. William Stevens et al.
    (2482)
    Hull, Borden and Daly, Js.
    Argued January 8
    decision released March 5, 1985

      Brian P. Borghesi, for the appellant (plaintiff).

      F. Patrick Zailckas, for the appellees (defendants).
   Per Curiam.

The trial court did not abuse its discretion in permitting the amendment of the answer during the trial, and its factual findings are not clearly erroneous.

There is no error.


text:
    Albert Kevorkian v. Peter Paul, Inc., et al.
    (2210)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued January 8
    decision released March 5, 1985

      Robert E. Beach, Jr., for the appellants (defendants).

      Jeremiah Keefe, with whom, on the brief, was James E. Kernan, for the appellee (plaintiff).
   Per Curiam.

We have carefully reviewed the record in this case and we find that the decision of the compensation review division is correct in law. General Statutes § 31-301b. The finding did not include facts found without evidence nor did it fail to include material facts which are admitted or undisputed. Grady v. St. Mary’s Hospital, 179 Conn. 662, 666, 427 A.2d 842 (1980); Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968).

There is no error.


author: Dupont, C.P. J.

text:
    Ann McDonnell v. Edward Maher, Commissioner of the Department of Income Maintenance
    (2194)
    Dupont, C.P.J., Hull and Borden, Js.
    Argued December 4, 1984
    decision released March 5, 1985
    Robert A. Nagy, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellant (defendant).

      Gregory Read, for the appellee (plaintiff).
   Dupont, C.P. J.

This is an appeal by the defendant commissioner of income maintenance from a judgment which sustained the plaintiff caretaker’s appeal from a denial of her application for public assistance benefits for her grandchildren. The plaintiff originally applied for public assistance benefits under the Aid to Families with Dependent Children (AFDC) program on behalf of her two minor grandchildren who reside with her. The application was denied because it was found that the minors were beneficiaries of two trust accounts held by a New Jersey probate court, that the funds could be invaded and that the funds were available for the minors’ support.

The trial court sustained the plaintiff’s appeal, holding that the minors, under their grandmother’s care, were eligible for public assistance. The court found that the trust funds were not available to the children and that securing the release of the trust funds under New Jersey law would present a significant economic hardship to the plaintiff who was not then the children’s legal guardian.

The issues raised on appeal to this court need not be reached since the case is moot. The essence of this appeal, and the practical relief sought by the plaintiff on behalf of her two grandchildren, is to establish their eligibility for public assistance. At oral argument in this court, it was disclosed that for more than two years, since June, 1982, this relief has been afforded to the plaintiff, and that the grandchildren have been receiving AFDC assistance. When the actions of the parties themselves cause a settling of their differences, a case becomes moot. See, e.g., Heitmuller v. Stokes, 256 U.S. 359, 362-63, 41 S. Ct. 522, 65 L. Ed. 990 (1921); Nader v. Altermatt, 166 Conn. 43, 56, 347 A.2d 89 (1974); Groesbeck v. Sotire, 1 Conn. App. 66, 68, 467 A.2d 1245 (1983). The intervening circumstance, here of awarding the relief requested, nullifies the controversy between the parties. The defendant had not, as of the date of oral argument, made any attempt to revoke the AFDC benefits.

The United States Supreme Court has aptly stated: “This Court will not proceed to a determination when its judgment would be wholly ineffectual for want of a subject matter on which it could operate. An affirmance would ostensibly require something to be done which had already taken place. A reversal would ostensibly avoid an event which had already passed beyond recall. One would be as vain as the other. To adjudicate a cause which no longer exists is a proceeding which this Court uniformly has declined to entertain.” Brownlow v. Schwartz, 261 U.S. 216, 217-18, 43 S. Ct. 263, 67 L. Ed. 620 (1923); see Waterbury Hospital v. Connecticut Health Care Associates, 186 Conn. 247, 252, 440 A.2d 310 (1982).

The commissioner insists that this court’s decision will determine whether the children will remain on assistance in the future or will be obligated to reimburse the state for assistance that has already been improperly issued. No claim, however, has been made by the defendant that, if an appellate decision is adverse to the plaintiff’s interests, the children will be taken off AFDC benefits. Inversely, no claim has been made that, if appellate review requires eligibility, the children would receive retroactive payments. “To maintain the appeal, the [defendant] must (1) have a specific, personal and legal interest in the subject matter of the appeal; Sheridan v. Planning Board, 159 Conn. 1, 13, 266 A.2d 396 [1969]; (2) sustain that interest throughout the course of the appeal; Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 454, 352 A.2d 291 [1974]; and (3) be able to obtain some practical benefit or relief. Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 [1973].” Craig v. Maher, 174 Conn. 8, 9-10, 381 A.2d 531 (1977).

At oral argument, the defendant suggested that an unidentifiable administrative error possibly contributed to the children being placed on public assistance. The “why” of the receipt of benefits is an academic question. The fact of the receipt of benefits is uncontrovertible, rendering the conflict of the parties moot.

The defendant seeks an advisory decision from this court to gain statutory interpretation of “eligibility” and “available resources” as those words apply to putative recipients of public benefits. Without an actual controversy, the case is a hypothetical tempest in an appellate teapot.

The appeal is dismissed.

In this opinion the other judges concurred.


text:
    State of Connecticut v. Leroy Hilliard
    (2702)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued December 11, 1984
    decision released March 5, 1985

      Robert Johnson, with whom was Joette Katz, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was charged with two counts of selling methadone in violation of General Statutes (Rev. to 1979) § 19-480 (a) and with one count of selling marihuana in violation of General Statutes (Rev. to 1979) § 19-480 (b). After a jury trial, the defendant was found guilty as charged and the trial court rendered judgment in accordance with the verdict. On appeal, the defendant claims that the conviction should be overturned because the trial court erred in instructing the jury on the essential elements of the crimes with which he was charged.

In its charge, the trial court instructed the jury on the elements of the crime of selling a controlled substance. The court, however, also instructed as to the crime of possession of a controlled substance with intent to sell. The parties do not dispute that the charge was misleading, and both sides joined in pointing out that the instruction encompassed possession with intent to sell when, in fact, the defendant had not been charged with that offense. In response, the court reconvened the jury and acknowledged that it may have confused them. The court then emphasized that the defendant was charged with “selling a controlled substance” and called the jury’s attention to the definition of “sale” which was included in its initial charge. The defendant did not reassert his exception to the original charge or object to the supplemental charge as insufficient to cure the initial error.

Requiring counsel to except “serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial. . . . [W]hen viewed in the context of defense counsel’s participation in fashioning the supplementary charge, the failure to except supports the trial court’s conclusion that the defendant accepted the supplemented charge as correct.” State v. Jones, 193 Conn. 70, 88-89, 475 A.2d 1087 (1984); State v. Taxiltaridis, 2 Conn. App. 617, 618-19, 481 A.2d 98 (1984).

Only in most exceptional circumstances will this court review a claim which was not distinctly raised at trial. State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973); State v. Taxiltaridis, supra, 619. “Claims of error not brought to the attention of the trial court will be reviewed only if either a new constitutional right not readily foreseeable has arisen between the time of trial and appeal or if the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70.” State v. Taxiltaridis, supra. The defendant argues, under State v. Evans, that he was denied a fundamental constitutional right and a fair trial.

Where no exception to the court’s instructions has been taken, “to warrant reversal the error must consist of a failure to submit to the jury the essential ingredients of the offense on which the conviction rests; Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); see State v. Reardon, [172 Conn. 593, 602, 376 A.2d 65 (1977)]; or the case must involve plain error requiring such result in the interest of justice. Practice Book § 3063; State v. Gelinas, 160 Conn. 366, 279 A.2d 552 (1971); cf. Fed. R. Crim. Proc. 52 (b); United States v. Clark, [475 F.2d 240, 250 (2d Cir. 1973)].” State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). Our review of the record reveals that neither of those circumstances exist in this case. While both the initial charge and the curative instruction were not beyond improvement, upon examining the instructions in their entirety as part of the whole trial; United States v. Park, 421 U.S. 658, 674-75, 95 S. Ct. 1903, 44 L. Ed. 2d 489 (1975); State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983); we do not find that the claim of error raised by the defendant violated any right guaranteed to him under the fourteenth amendment to the United States constitution or article first, § 8, of the Connecticut constitution. State v. Kurvin, supra, 565.

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1979) § 19-480 provides in 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 marihuana, 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 three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.
      “(b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a hallucinogenic substance other than marihuana, or a narcotic substance except as authorized in this chapter, may, for the first offense, be fined not more than one thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than five thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”
      General Statutes § 19-480 was transferred to § 21a-277 in 1983.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       We note that the defendant also argues that the trial court erred in not defining “sale” as that term is defined in General Statutes (Rev. to 1979) § 19-443 (50) (now General Statutes § 21a-240 [50]). We see no merit in this claim. “[W]hen a word contained in an essential element [of a crime] carries its ordinary meaning, failure to give the statutory definition will not constitute error. State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977) (‘intentionally’).” State v. Kurvin, 186 Conn. 555, 562, 442 A.2d 1327 (1982).


text:
    John Drisdelle v. City of Hartford et al.
    (2721)
    Borden, Spallone and Daly, Js.
    Argued December 14, 1984
    decision released March 5, 1985

      JohnD. Liberator, with whom was Jack Rubin, for the appellant (plaintiff).

      Robert E. Beach, Jr., for the appellees (defendants).
   Daly, J.

The plaintiff instituted a three count complaint alleging negligence and nuisance against the defendants arising out of a trail bike accident in a park owned by the defendant city of Hartford. The plaintiff has appealed from the judgment rendered following the granting of the defendants’ motion to strike.

The plaintiff alleged that on August 1,1982, he was riding a trail bike, conceded to be a minibike, on a path located in a park owned by the city. As the plaintiff proceeded along the path, he struck a wire entwined with broken fence posts strewn across the path. As a result of his contact with the objects, the plaintiff suffered serious injuries. The first two counts allege negligence on the part of the city and the defendant Victor Jarm, the director of the department of parks and recreation of the city. The third count alleges nuisance against the city.

The defendants moved to strike the complaint, claiming that there was no allegation of “wilful or malicious conduct” on the part of the defendants as required by General Statutes § 52-557j. The trial court granted the motion to strike and the plaintiff appealed from the judgment rendered on that motion.

In this appeal, we are called upon to interpret General Statutes § 52-557j, which shields a landowner from liability for injuries to operators or passengers arising from the operation of certain vehicles, including minibikes, on his or her land unless a fee is charged by the landowner or the injury is caused by the wilful or malicious conduct of the landowner.

The plaintiff contends that it was not the legislative intent to encompass municipalities within the scope of § 52-557j, but that this section was limited to affording relief to rural property owners who suffered potential liability from trespassers. Furthermore, the plaintiff argues, there was no legislative intent to impinge upon General Statutes § 7-465 (a), by which a municipality assumes liability for damage caused by an employee under certain circumstances.

The salient question, then, is whether the city is a “landowner” within the ambit of § 52-557j. The word “landowner,” within the context of § 52-557j, has been defined by our Supreme Court to mean one who holds title. Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 137, 479 A.2d 231 (1984).“ ‘When we say, a man has the title to . . . [property], we mean, he is the owner of it; and vice versa.’ . . . ‘In the construction of statutes, words and phrases shall be construed according to the commonly approved usage of the language . . . .’ General Statutes § 1-1 (a). The commonly approved use of the word ‘owner’ indicates ‘one that owns: one that has the legal or rightful title whether the possessor or not . . . .’ Webster, Third New International Dictionary.” Id. It is not disputed that the accident occurred in a city-owned park.

“The presumption is that the legislature, in adopting an act, does so in view of existing relevant enactments and with the intention that the act be read with them so as to make one consistent body of law.” Wilson v. West Haven, 142 Conn. 646, 654, 116 A.2d 420 (1955); Holden & Daly, Connecticut Evidence (1966 & Sup. 1983) § 50. The legislature could readily have excluded municipalities from § 52-557j had it so desired.

The defendants’ motion to strike the complaint was based on the claim that there was no allegation of “wilful or malicious conduct.” “It is well established that causes of action for negligence and ‘wilful or malicious conduct’ are separate and distinct causes of action. There is a substantial difference between negligence and wilful or malicious conduct, and a complaint should employ language explicit enough to inform the court and opposing counsel clearly that wilful or malicious conduct is being asserted.” Warner v. Leslie-Elliott Constructors, Inc., supra, 138. The plaintiff must clearly plead that the accident was caused by the wilful or malicious conduct of the defendants in order to raise an allegation of wilful conduct. We find that the trial court, accordingly, did not err in granting the defendants’ motion to strike.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-557j provides: “No landowner may be held liable for any injury sustained by any person operating a snowmobile, all-terrain vehicle, as defined in section 14-379, motorcycle or minibike or minicycle, as defined in section 14-1, upon the landowner’s property or by any passenger in the snowmobile, all-terrain vehicle or motorcycle, minibike or minicycle, whether or not the landowner had given permission, written or oral, for the operation upon his land unless the landowner charged a fee for the operation, or unless the injury is caused by the wilful or malicious conduct of the landowner.”

       General Statutes § 7-465 (a) provides in pertinent part: “Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality .. . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . .”

       Townships were considered “landowners” in Lantz v. Caraway, 180 Ind. 484, 489, 103 N.E. 335 (1913), and in Zumbro v. Parnin, 141 Ind. 430, 434-35, 40 N.E. 1085 (1895).


text:
    Michael W. Holland et al. v. Reiko Crickard et al.
    (2907)
    Hull, Borden and Daly, Js.
    Argued December 12, 1984
    decision released March 12, 1985

      William C. Franklin, for the appellants (plaintiffs).

      Alan A. Rosa, for the appellees (defendants).
   Per Curiam.

This is an appeal from a judgment excusing the defendants’ obligation to the plaintiffs on a note secured by a second mortgage. The case stems from a conveyance by warranty deed of a hotel and its grounds in Maine. The issue on appeal revolves around a Maine statute, Me. Rev. Stat. Ann., tit. 14, § 151, which the Maine courts themselves have not construed. It would be of no practical use to describe the facts of the case more fully, or to explicate this Maine statute without guidance from the Maine courts. Suffice it to say that we find error because the trial court impermissibly shifted the burden of proving the affirmative defense embodied in § 151 from the defendants to the plaintiffs. See Me. R. Civ. P., rule 8.

The basis of the court’s decision was that a defect found in the title to the property rendered the title unmarketable; 8A Thompson, Real Property (1963 & Sup. 1981) § 4484; 77 Am. Jur. 2d, Vendor and Purchaser § 131; 92 C.J.S., Vendor and Purchaser §§ 191, 195; and breached the covenant in the deed warranting a good and marketable title. 8A Thompson, Real Property § 4487; 92 C.J.S., Vendor and Purchaser § 575. This breach of warranty constituted a failure of consideration. 11 Am. Jur. 2d, Bills and Notes § 248; see Judkins v. Chase, 121 Me. 230, 232, 116 A.2d 582 (1922).

The court, however, impermissibly shifted the burden of proving whether this was a partial or total failure of consideration from the defendants to the plaintiffs, once it determined there was a failure of consideration. Me. Rev. Stat. Ann., tit. 14, § 151; Me. R. Civ. P., rule 8; see Getchell v. Kirkby, 113 Me. 91, 92 A. 1007 (1915). Our review of the evidence indicates that there was not a total failure of consideration, which occurs when “nothing valuable passes by the . . . conveyance.” Jenness v. Parker, 24 Me. 289, 296 (1844). Rather, the undisputed facts show something of value was conveyed: The hotel was used to accommodate a convention for a month; the defendants lived on the property for a period of time; and the property was the subject of an $80,000 purchase money mortgage which was prior in right to the plaintiffs’ mortgage.

The burden rested on the defendants to prove the reduction in value or damages sustained due to the defect. Me. Rev. Stat. Ann., tit. 14, § 151; Me. R. Civ. P., rule 8; see Getchell v. Kirkby, supra; 8A Thompson, Real Property § 4487; 92 C.J.S., Vendor and Purchaser §§ 264, 575. Such a showing could offset what was owed on the note but, without a showing that the depreciation or damages equaled the total amount of the note, the defendants could not properly be excused from their liability on the note. A new trial is required to determine the amount of depreciation or damages sustained by the defendants due to the defect in the title and to ascertain the extent of their liability. Getchell v. Kirkby, supra; see 8A Thompson, Real Property § 4487; 11 Am. Jur. 2d, Bills and Notes § 658; 92 C.J.S., Vendor and Purchaser § 575; see also Hathorn v. Wheelwright, 99 Me. 351, 59 A. 517 (1904); Crummett v. Littlefield, 98 Me. 317, 56 A. 1053 (1903).

There is error, the judgment is set aside and a new trial is ordered.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The parties do not dispute that Maine law governs this case.

       The parties do not dispute the existence of a title defect under Maine law.

       We cannot imply, in the absence of any evidence, that because the court found for the defendants, it found the depreciation in value due to the defect to be exactly the amount owed on the note.


author: Dupont, C.P.J.

text:
    State of Connecticut v. Robert W. Cleary
    (3305)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued November 8, 1984
    decision released March 12, 1985

      Donald A. Browne, state’s attorney, for the appellant (state).

      Milo J. Altschuler, for the appellee (defendant).
   Dupont, C.P.J.

The issue of this appeal is whether the trial court erred in granting the defendant’s oral motion to dismiss criminal charges pending against him. It is unclear whether the dismissal was grounded upon a violation of the defendant’s constitutional right to a speedy trial or upon the state’s lack of diligence in preparing for trial.

The defendant was arrested on March 16,1981, and charged with robbery in the first degree and with taking a motor vehicle without the owner’s permission. The arrest warrant described a gunpoint robbery of a victim who subsequently identified the defendant as the perpetrator from a police photograph. The defendant notified the state that he intended to present an alibi defense, and, in June of 1982, the matter was placed on the trial list. The case was first reached for trial in the fall of 1983 but the trial did not take place because the victim was abroad serving in the military service. The matter subsequently came up for trial four different times, in December, 1983, March and April, 1984, and finally on May 21, 1984. On the first three occasions, the victim was unavailable for the same reason, and the court granted a continuance each time. On the April date, the defendant objected to the continuance, moving for a dismissal. The court then allowed another continuance, without prejudice to the defendant’s right to move again for a dismissal on the next scheduled trial date which was May 21, 1984. On that date, the victim was again absent from court although he had notified the court of his presence back in the United States. In addition, counsel for the state was not yet ready to proceed nor had he investigated the defendant’s alibi defense. The court then granted the defendant’s motion and dismissed the charges against the defendant.

The state’s first claim is that the delay in the defendant’s criminal prosecution was not a violation of his constitutional right to a speedy trial and, consequently, that the court should not have dismissed the matter.

Under the sixth amendment to the United States constitution, criminal defendants are guaranteed the right to a speedy trial which fundamental right applies to state prosecutions through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right is also guaranteed by the Connecticut constitution, article first, § 8. The Supreme Court of the United States and the Connecticut Supreme Court have stated that there are four factors which should be considered in assessing an accused’s constitutional right to speedy adjudication. They are the “[ljength 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. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983). “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. Johnson, supra, 545.

In this case, the defendant was not incarcerated and the delay between arrest and dismissal was thirty-eight months. A delay of twenty-six months does not by itself warrant dismissal on speedy trial grounds but is a period “sufficiently long to trigger an examination of the other ingredients of the speedy trial mix . . . .” State v. Davis, 192 Conn. 739, 741, 474 A.2d 776 (1984).

The defendant had no reason to countenance the delay, such as awaiting actions of co-defendants, and the defendant neither caused nor acquiesced in the delay. See State v. Davis, supra, 744-45; State v. Brown, 172 Conn. 531, 540, 375 A.2d 1024, cert. denied, 434 U.S. 847, 98 S. Ct. 153, 54 L. Ed. 2d 114 (1977).

The state claims that the defendant failed to assert his right to a speedy trial. Apparently no written motion was filed by the defendant pursuant to Practice Book § 812 and the record does not contain a reference to a request for a dismissal until the April 11, 1984 trial date. Practice Book § 812 allows oral pretrial motions for good cause shown, in the discretion of the trial judge. The trial court did not abuse its discretion in acting upon the defendant’s oral motion.

Finally, the state asserts that the defendant was not prejudiced in any way by the pretrial delay. Prejudice must be determined in light of the interests of the defendant which the speedy trial right was designed to protect. Those interests are the prevention of oppressive pre-trial incarceration, the minimizing of anxiety and concern of the accused, and the protection of any impairment in the defense. Barker v. Wingo, supra, 532; State v. Gasparro, 194 Conn. 96, 480 A.2d 509 (1984); State v. Toler, 192 Conn. 321, 326, 471 A.2d 643 (1984). The first does not apply as the defendant was not incarcerated. The defendant made no specific claim of having experienced undue concern, although “even an accused on bond is still disadvantaged by restraint on his liberty and by living under a cloud of anxiety, suspicion and often hostility.” Barker v. Wingo, supra, 533.

Of the three interests, “ ‘the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.’ ” State v. McCarthy, 179 Conn. 1, 9, 425 A.2d 924 (1979). The major evidence against the defendant in the present case was the photographic identification by the victim. As time passes, a jury would be increasingly less influenced by the victim’s failure to identify the defendant in the courtroom, but correspondingly, after a substantial hiatus, a jury would accord greater weight to photographic identification. The photographic identification of the defendant was crucial evidence and its potential prejudicial effect could have materially aided the state’s case. State v. Troynack, 174 Conn. 89, 384 A.2d 326 (1977). Additionally, the state had not fully investigated the defendant’s alibi. His witnesses had only had contact with the defendant on the night of the alleged incident, and their testimony would become increasingly less persuasive as time passed.

This case was to be disposed of by May 21,1984. Prior to entering the dismissal order, the court gave the state the alternative of entering a nolle, pursuant to Practice Book § 724, which the state rejected. Finally, from the record it is apparent that the state was not ready to proceed with prosecution, that it had not investigated the potential testimony of the alibi witnesses, and that there was no evidence that the victim was available to testify in the immediate future.

It is unnecessary to decide whether the facts of this case warrant the conclusion that the defendant was deprived of his constitutional right to a speedy trial. It is only necessary to decide whether the state failed to prepare diligently for trial. Thirty-six months after arrest, and five scheduled trial dates, spanning a period of six months, later, the state was still not ready to proceed with a trial. The facts speak for themselves. The trial court properly granted the defendant’s motion to dismiss the charges against him.

There is no error.

In this opinion the other judges concurred.

         Effective July 1, 1983, trials of defendants charged with criminal offenses shall commence within a maximum of eighteen months from the date of the filing of the information or the arrest, whichever is later. General Statutes § 54-821; Practice Book §§ 956B, 956C.


author: Borden, J.

text:
    State of Connecticut v. James A. Cunningham
    (2703)
    Dupont, C.P.J., Borden and Daly, Js.
    Argued December 12, 1984
    decision released March 12, 1985

      Preston Tisdale, for the appellant (defendant).

      Steven M. Sellers, deputy assistant state’s attorney, with whom, on the brief, was John M. Massameno, assistant state’s attorney, for the appellee (state).
   Borden, J.

After a jury trial the defendant was convicted of assault of a peace officer, in violation of General Statutes § 538.-167C. In this appeal he claims that the court erred (1) in unduly restricting his cross-examination of the police officer involved, (2) in permitting the state to amend its bill of particulars during the trial, and (3) in its supplemental charge to the jury. We find no error.

The jury could have reasonably found the following facts: Officer Ted Meekins of the Bridgeport police department was on patrol in his cruiser. While issuing a parking ticket to the operator of an illegally parked car, he saw the defendant and two others, Terry Langdon and David Kalanick, standing at a partially opened window of the defendant’s house. One of the three passed money to someone inside the house, who surreptitiously gave Langdon a small item which Langdon put in his pocket. Meekins approached them and requested that they empty their pockets. They did not comply, and the defendant told Meekins that no one had been buying drugs. Langdon, however, began to run. Meekins tripped him and, after a struggle, subdued him face-down on the ground. While the officer straddled Langdon, he formally placed him under arrest and began to handcuff him. Kalanick then kicked Meekins’ feet from the left side and, from the right side, the defendant grabbed him around his neck, yanked him backwards and hit him in the head. Meekins was also kicked in the lower back, but could not say who had kicked him. Meekins arose and discharged a cannister of mace at Kalanick and the defendant. The defendant continued to resist and knocked the cannister from Meekins’ hand. After a further fight with the defendant, Meekins subdued and arrested him. The defendant’s assault on Meekins resulted in contusions to the left side of Meekins head, which required hospital treatment, and in pain to his shoulder and his upper back.

After this assault by the defendant, Meekins was involved in a scuffle with William Bayerle, whom he had seen near the illegally parked car, and in a further scuffle with the defendant. These scuffles did not result in any injury to Meekins.

The defendant first argues that the court violated his constitutional right of confrontation by restricting his cross-examination of Meekins regarding the source of Meekins’ injuries. This argument is without merit.

The defendant sought by his cross-examination to show that Meekins’ injuries stemmed, not from the assault by the defendant, but from his scuffles with Langdon, Kalanick and Bayerle, and from the subsequent scuffle with the defendant. The appendix to the defendant’s brief, containing the cross-examination on which he bases his claim, discloses only two rulings to which he took exception. Nor does he claim to come within the Evans by-pass; see State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973); as to any of the other rulings. We therefore confine our inquiry to those two rulings. See State v. Jackson, 3 Conn. App. 132, 134-35, 485 A.2d 934 (1985).

The first ruling involves the defendant’s attempt, on cross-examination of Meekins, to elicit from him whether his struggle with the defendant was the most violent of those he had that night. The court sustained the state’s objection, to which the defendant excepted.

The trial court’s traditional discretion to restrict the scope of cross-examination only comes into play after the defendant has been permitted sufficient cross-examination to satisfy the sixth amendment. The standard for the defendant’s constitutional right of confrontation, as expressed through cross-examination, is met when he is “ ‘permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ” State v. Heinz, 3 Conn. App. 80, 86, 485 A.2d 1321 (1984). “Thus, a claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: whether the constitutional standard has been met, and, if so, whether the court nonetheless abused its discretion.” Id.

The defendant was permitted to elicit from Meekins that his lower back was injured from the kick he received, that his shoulder and upper back were in pain from a wrenching of his neck, and that this pain was from the defendant’s reaching around his neck and yanking him backwards. In the same interchange, after Meekins testified that his pain came from the defendant’s yanking him backwards, the defendant asked without objection: “Is that because that [scuffle] was most violent of the four?” Meekins answered: “That’s when I received the injury.” Moreover, in his cross-examination, Meekins was repeatedly asked about the source of these injuries, and repeatedly responded that his injuries came only from his struggle with the defendant and not from his encounters with the others. The defendant also asked about the other scuffles, and Meekins described them sufficiently to allow the jury to make its own comparison of this struggle with the others in which Meekins engaged that night. Neither the constitution nor the sound exercise of judicial discretion required that the defendant also be permitted to elicit from Meekins his opinion as to whether his struggle with the defendant was the most violent of those he had. The constitutional standard was met, and the court did not abuse its discretion.

The same can be said of the second ruling to which the defendant excepted. The defendant asked Meekins if he had to use force in his scuffle with Bayerle. The court sustained the state’s objection. Meekins had already testified, however, on cross-examination that he had a scuffle with Bayerle, that he was not injured at all in that scuffle, that Bayerle did not strike him, and that the injury to his upper back came from the defendant’s yanking of him from behind. Neither the constitution nor sound judicial discretion required that the defendant be permitted to travel the same ground which his earlier cross-examination had already covered.

The defendant next argues that the court erred by permitting the state to amend its bill of particulars by deleting the word “kick” from the allegation of the specific ways in which the defendant committed the crime charged. This argument is utterly without merit.

Neither the record nor the the defendant’s appendix contain the original or amended bill of particulars. Thus, the defendant has failed to discharge his responsibility to supply us with an adequate record on which to review his claim. Spera v. Audiotape Corporation, 1 Conn. App. 629, 632, 474 A.2d 481 (1984). Moreover, the state represents in its brief that it was unable to locate either document in its file, in the file of defense counsel or in the trial court file. The state has, however, with professional candor reproduced for us in its brief the trial court’s recitation of the amended bill of particulars in its charge to the jury. We thus review the defendant’s claim on that limited basis.

Apparently, during the cross-examination of Meekins, the court permitted the state to amend the bill of particulars so that the pertinent portion of it read as follows: “The defendant did intentionally jump on and strike Officer Meekins preventing him from performing his duties and causing physical injury to said officer.” This was done because it became apparent that Meekins could not identify the defendant as the one who had kicked him while he was subduing Langdon. We fail to see how the defendant was prejudiced by this elimination of one specific factual claim against which he was required to defend. The court was well within its discretion under Practice Book § 624 in permitting the amendment, because good cause was shown, no additional or different offense was charged and no substantive rights of the defendant were prejudiced.

The defendant’s final claim is that the court erred in giving certain supplemental instructions to the jury. The defendant, however, did not take exception to these instructions. Indeed, the court specifically asked: “Are there any exceptions to the additional charge?” His counsel replied: “No, your Honor.” He does not claim the benefit either of the Evans by-pass, or the plain error doctrine. We therefore decline to review this claim. Practice Book § 3063; State v. Jackson, supra.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-167c provides in pertinent part: “(a) A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, (1) he causes physical injury to such peace officer . ... ” General Statutes § 53a-3 (3) provides: “ ‘Physical injury’ means impairment of physical condition or pain . . . .”

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       The defendant at this point repeated the question concerning the violence of the struggles to get a more responsive answer. The prosecution thereupon objected and the court sustained the objection. To this, the defendant excepted. It is this ruling which is the basis of the defendant’s claim.


text:
    State of Connecticut v. Edward Davis
    (2785)
    Dupont, C.P.J., Spallone and Daly, Js.
    Argued November 16, 1984
    decision released March 12, 1985

      Susan M. Hankins, assistant public defender, for the appellant (defendant).

      Roland D. Fasano, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Spallone, J.

After a jury trial, the defendant was found guilty of larceny in the first degree in violation of General Statutes (Rev. to 1979) § 53a-122 (a) (2). On appeal, he claims that the trial court erred (1) in denying his motion to suppress testimony concerning items seen in his car during an investigatory stop, (2) in denying his motion for judgment of acquittal on the charge of larceny in the first degree and in failing to instruct the jury to consider only the charge of larceny in the fourth degree, and (3) in failing to instruct the jury that the state was required to prove every essential element of the offense beyond a reasonable doubt and in failing to instruct on the element of value.

The factual background of this case is as follows: On February 12,1980, Lieutenant Richard Rollinson of the Woodbridge police department, acting upon two complaints of suspicious activity, stopped a motor vehicle driven by the defendant. The complaints indicated that a black man, driving a yellow car with a license plate reading JUEDON or JAUDON, had appeared at private homes in an affluent Woodbridge neighborhood and solicited painting or carpentry work. One complainant maintained that the man backed his vehicle up to the complainant’s garage and attempted to open his front door. The complainants lived within one-half mile of each other and gave similar descriptions of the man, the vehicle, the license number and the work solic-' itation: The vehicle and the defendant matched those descriptions. By the time Rollinson stopped the vehicle, he had received a third complaint that an individual had “rattled the door” and solicited painting work. Rollinson knew when he made the stop that no solicitation permits, as required by local ordinance, had been issued by the town of Woodbridge within the past six months. He also knew that the area in which the complainants lived was subject to a high incidence of burglaries.

Upon stopping the vehicle approximately one and one-half miles from the second complainant’s residence, Rollinson asked the defendant for his license and registration. The defendant produced his driver’s license but could not produce proper registration. In response to the officer’s queries, the defendant explained that the owner of the car had recently received a new vanity plate, and that an expired registration certificate in the car related to the old license plate. During the ten minutes they spent discussing the registration, Rollinson noticed several pieces of stereo equipment and a rug partially covering some walnut cabinets in the back of the car. Rollinson asked if he could see the items, and the defendant responded that he could not without a warrant.

Rollinson then questioned the defendant about soliciting in the neighborhood and explained that a permit is required for house-to-house solicitation. The defendant stated that he did not have a solicitation permit and that he was unemployed and looking for work. Rollinson told him that there had been numerous burglaries in the area and again requested permission to look at the items in the car. At this point, the defendant readily agreed and assisted Rollinson by getting out of the car and unlocking the back of the vehicle. In the car, in addition to the stereo equipment, the officer found an oriental-type rug, an ornate brass clock and two silver candlestick holders. Rollinson testified that he also saw what appeared to be a box of silverware. A second officer who was present noticed a wine cooler or wine holder. After Rollinson ran a computer check on several of the items with negative results, the defendant was allowed to leave. The entire stop lasted about twenty minutes.

That evening, a burglary was reported in the same neighborhood at the home of Louis Dupre. Among the items Dupre listed as missing were seven sets of sterling silver place settings, nine sets of silver-plated place settings, two silver candlestick holders, a silver-plated wine cooler, an oriental rug, an antique clock and some stereo equipment. Upon application and affidavit of Rollinson, an arrest warrant was issued, the defendant was arrested and charged with burglary in the third degree in violation of General Statutes § 53a-103 and with larceny in the first degree in violation of General Statutes (Rev. to 1979) § 53a-122. The defendant was convicted, on a substitute information, of larceny in the first degree.

I

The defendant first claims that the stop of his vehicle exceeded the permissible scope of an investigative stop in violation of the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). He argues that because the stop was unjustifiably prolonged, any consent to the search which he may have given was invalid.

There is no question that the police may detain an individual for investigative purposes on less than probable cause to arrest or seize. Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); State v. Januszewski, 182 Conn. 142, 147-48, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). Such a stop may be the officer’s most reasonable course of conduct where it is intended to maintain the status quo while obtaining more information. State v. Januszewski, supra, 150; State v. McMullen, 2 Conn. App. 537, 540, 480 A.2d 594 (1984). If the results of the initial stop confirm or arouse further suspicion in the officer’s mind, the stop may be prolonged and its scope enlarged as required by the circumstances. State v. Carter, 189 Conn. 611, 618, 458, A.2d 369 (1983); State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973).

In determining whether an investigative stop is reasonable, the circumstances surrounding the officer’s actions must be assessed under an objective standard. Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); State v. Martin, 2 Conn. App. 605, 612, 482 A.2d 70 (1984). Under the circumstances of this case, it would have been less than reasonable if Rollinson had not taken adequate time to establish the defendant’s identity, to ascertain the ownership of the vehicle and the status of its registration, and to investigate the apparent violation of the local ordinance prohibiting the solicitation of work without a permit. Furthermore, having seen certain items in plain view in the back of the car, his request to search was not an unreasonable enlargement of the scope of the stop. State v. Januszewski, supra. Rollinson acted upon a reasonable and articulable suspicion, which, though insufficient to constitute probable cause for arrest, was based upon facts that, objectively viewed, provided sufficient reason to stop the defendant initially and to enlarge the scope of the stop thereafter.

The validity of the defendant’s consent to the search must similarly be determined by viewing the totality of the circumstances. “A warrantless search is not unreasonable under either the fourth amendment to the constitution of the United States or article first, § 7, of the constitution of Connecticut if a person with authority to do so has freely consented to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Dotson v. Warden, 175 Conn. 614, 618, 402 A.2d 790 (1978). The state bears the burden of proving that the consent was free and voluntary and that the person who purported to consent had the authority to do so. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968); Dotson v. Warden, supra, 618-19.” State v. Jones, 193 Conn. 70, 78-79, 475 A.2d 1087 (1984). “The question whether consent to a search has in fact been freely and voluntarily given, or was the product of coercion, express or implied, is ‘a question of fact to be determined from the totality of all the circumstances.’ Schneckloth v. Bustamonte, [412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973)]. As a question of fact, it is normally to be decided by the trial court upon the evidence before that court together with the reasonable inferences to be drawn from that evidence. State v. Hanna, [150 Conn. 457, 471-72,191 A.2d 124 (1963)]. Such conclusions must be upheld unless they are legally or logically inconsistent with the facts found or unless they involve application of an erroneous rule of law material to the case. Velsmid v. Nelson, 175 Conn. 221, 225, 397 A.2d 113 (1978); McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 323-24, 321 A.2d 456 (1973); F. & AK, Inc. v. Sleeper, 161 Conn. 505, 510, 289 A.2d 905 (1971).” Dotson v. Warden, 175 Conn. 614, 619, 402 A.2d 790 (1978).

In this case, no force was used; the defendant was not in custody or under arrest and he showed no signs of being intoxicated or under the influence of drugs. See State v. Reddick, 189 Conn. 461, 470, 456 A.2d 1191 (1983). The totality of the circumstances in this situation encompasses the defendant’s clear familiarity with the law which was evidenced when he initially refused Rollinson permission to inspect the back of the car because the officer had no warrant. The defendant’s subsequent change of mind and assistance in the search, in the context of his awareness of his rights, support the trial court’s finding of informed consent. The material difference between the testimony of the defendant and that of Rollinson as to the conditions surrounding his consent raised a question of credibility and fact within the province of the court. Id., 470 n.8. We hold that, on the basis of the facts before it, the trial court did not err in denying the defendant’s motion to suppress.

II

The defendant’s second claim on appeal is that the court erred in denying his motion for judgment of acquittal on the charge of larceny in the first degree and in refusing to instruct the jury to consider only larceny in the fourth degree. His argument focuses upon the value of the property he was convicted of taking.

The defendant argues that the judgment of conviction should be set aside because of the possibility that the jury based its verdict on evidence of value which was improperly before it. He first argues that the jury should not have been allowed to consider testimony concerning the value of items which were not proved to have been received by him, that is, the sterling and silver-plated place settings which were reported missing, but were not specifically seen in his car. The defendant claims that because the state failed to prove beyond a reasonable doubt that he ever possessed the flatware, the court impermissibly allowed the jury to base its verdict upon its value.

The defendant relies on State v. Saracino, 178 Conn. 416, 423 A.2d 102 (1979), in support of his claim. In State v. Saracino, supra, the only evidence introduced to prove the value of the stolen merchandise was testimony by a store manager who stated that merchandise valued at over $12,000 was found missing from the store while the defendant was employed there. Id., 420. Although the jury could reasonably have found that the defendant received stolen property, the court held that the state had failed to sustain its burden as to the value of that property. Id., 419. In this case, almost all of the items reported missing were seen in the defendant’s vehicle. Dupre testified that the place settings had been kept in boxes located in a dining room bureau. Rollinson had noticed “a box of some sort” in the car. Further, the dining room bureau was one of the areas from which other items seen in the defendant’s vehicle had been taken, and the drawers of the bureau had been found open on the evening the items were discovered missing.

Under the circumstances, we find that the trial court did not abuse its discretion when it admitted testimony relating to the flatware even though the flatware was not specifically seen in the defendant’s possession. Whether the jury, by inference, concluded that the defendant at some point possessed the flatware was a question of fact solely within their ambit. “[I]t is the jury’s right to consider evidence, draw logical deductions and make reasonable inferences from facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); Dacey v. Connecticut Bar Assn., 170 Conn. 520, 540, 368 A.2d 125 (1976). The jury decides questions of fact. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 127, 412 A.2d 311 (1979). It may accept or reject the testimony of any witness; Zarembski v. Three Lakes Park, Inc., 177 Conn. 603, 608, 419 A.2d 339 (1979); and determine the weight to be given the evidence. Angelica v. Fernandez, 174 Conn. 534, 535, 391 A.2d 167 (1978).” Eagar v. Barron, 2 Conn. App. 468, 471, 480 A.2d 576 (1984). We will not delve into the minds of the jurors in order to ascertain the basis and the rationale underlying their decision. Eagar v. Barron, supra, 472.

The defendant also claims that the court erred in allowing Dupre to testify as to the value of the missing items. The law in Connecticut is well settled as to the competency of the owner of property to testify as to its value. “Our cases have ruled that the competence of a witness to testify to the value of property may be established by demonstrating that the witness owns the property in question. . . . The rule establishing an owner’s competence to testify reflects both the difficulty of producing other witnesses having any knowledge upon which to base an opinion especially where the stolen items are never recovered . . . and the common experience that an owner is familiar with her property and knows what it is worth. . . . This rule is applicable in criminal as well as civil cases.” (Citations omitted.) State v. Baker, 182 Conn. 52, 60-61, 437 A.2d 843 (1980); State v. Gabriel, 192 Conn. 405, 424, 473 A.2d 300 (1984).

The defendant contends that Dupre’s testimony as to the value of the items was improper because it was in large part based on information obtained from other sources. It is difficult, however, to conceive of an owner having an innate concept of value simply by virtue of ownership. An owner must of necessity rely on other sources for his knowledge of value. Thus, “[t]he owner of an article, whether he is generally familiar with such values or not, ought certainly to be allowed to estimate its worth; the weight of his testimony (which often would be trifling) may be left to the jury; and courts have usually made no objections to this policy.” (Emphasis in original.) 3 Wigmore, Evidence (Chadbourn Rev.) § 716. We consequently hold that any objection the defendant had to Dupre’s testimony went to its weight rather than its admissibility. See State v. Baker, supra; Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 (1940).

The trial court’s admission of expert testimony as to value of the missing sterling flatware was proper even though the particular flatware pattern was no longer marketed. “Where the expert is asked to evaluate personal property, customarily he bases his evaluation on a personal examination of the property to be evaluated. If, however, the items of personal property are not available, indirect evidence of value is permissible. . . . ‘From the very nature of the circumstances, the amount of the loss could not be proven with exactitude and all that is required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.’ ” State v. Wilson, 188 Conn. 715, 722-23, 453 A.2d 765 (1982).

We also see no merit in the defendant’s claim that expert testimony regarding the replacement cost of the flatware was improper in the absence of a showing that its market value could not be satisfactorily ascertained. Here, where the items were not present to be examined by the expert, testimony as to replacement costs was an essential factor in determining market value. The value of goods or personalty can be proven by the price at which the same or similar goods are bought and sold. State v. Gyuro, 156 Conn. 391, 398, 242 A.2d 734 (1968); Stoll v. Judd Co., 106 Conn. 551, 561, 138 A. 479 (1927); Goralnik Hat Co. v. Delohery Hat Co., 98 Conn. 560, 563-64, 120 A. 283. (1923).

The test employed in determining whether the evidence is sufficient to sustain a verdict is whether the trier could reasonably have concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983). In applying this test, the evidence presented at trial is to be given a construction most favorable to sustaining the jury’s verdict. Id. We find that the evidence, viewed in that light, was sufficient to prove beyond a reasonable doubt that the value of the items wrongfully taken exceeded the statutory limit of $2000. The court did not err in denying the defendant’s motion for acquittal or in refusing to instruct the jury to consider only the charge of larceny in the fourth degree.

Ill

The defendant last claims that the court erred in failing to charge that the state bore the burden of proving each and every element of the crime beyond a reasonable doubt and that the court erred in failing to define the term “replacement cost” for the jury. A review of the charge fails to convince us that the court erred in either respect.

In regard to the state’s burden of proof, the court addressed precisely what the defendant claims was missing when it stated that “[t]he presumption of innocence however, does not have the effect of evidence itself. The only effect it has is to place upon the state the burden of establishing the element or elements necessary to prove guilt beyond a reasonable doubt.” The court emphasized this concept of proof in its explanation of the elements of the crime: “It is essential, therefore, that the State prove beyond a reasonable doubt that the defendant had this unlawful purpose or intention in his mind at the time he took the property or committed the acts which are the basis for the larceny charge. . . . Unless you are satisfied beyond a reasonable doubt that the property described by the police officers was the same property described by Mr. Dupre as having been taken from his house, you may not find the defendant guilty.” Where the charge in its entirety presents the case to the jury so that no injustice results, then no error will be found. State v. Braswell, 194 Conn. 297, 311, 481 A.2d 413 (1984); State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978). In considering a charge, critical dissection is not required. The charge as a whole must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Reid, 193 Conn. 646, 660, 480 A.2d 463 (1984). We hold that the charge, when read in its entirety, fairly and adequately presented the case to the jury.

We decline to consider whether the court erred in not defining “replacement cost” because the defendant neither submitted a request to charge to that effect nor objected or took exception to the charge as given. State v. Kurvin, 186 Conn. 555, 563-64, 442 A.2d 1327 (1982).

There is no error.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       At the time of the offense, General Statutes (Rev. to 1979) § 53a-122 provided in part: “(a) A person is guilty of larceny in the first degree when . . . (2) the value of the property or service exceeds two thousand dollars.”

       At the time of the offense, General Statutes (Rev. to 1979) § 53a-125 provided in part: “(a) A person is guilty of larceny in the fourth degree when the value of the property or services is fifty dollars or less.”


author: Hull, J.

text:
    Michael Bushey v. Iseli Company et al.
    (2134)
    Hull, Borden and Spallone, Js.
    Argued December 11, 1984
    decision released March 12, 1985

      Edward T. Dodd, Jr., for the appellant (plaintiff).

      Richard T. Stabnick, for the appellees (defendants).
   Hull, J.

This case raises the issue of whether injuries caused to the plaintiff employee when he skidded on his motorcycle from the public highway into the defendant company’s employee parking lot and struck a parked car arose out of and in the course of his employment so that he is entitled to workers’ compensation benefits. We conclude that such injuries are not compensable.

On June 21,1979, the plaintiff, Michael Bushey, was employed by the defendant Iseli Company at its establishment on Greystone Road in Terryville. He was scheduled to work the 4 p.m. to 2 a.m. shift. The employees’ parking lot was on the west side of Greystone Road across from the plant. At 4:30 p.m., while Bushey was driving to work on his motorcycle on Greystone Road, he skidded, lost control and thereafter continued to skid approximately one hundred and eighty feet into the employees’ parking lot where he struck another employee’s parked vehicle, suffering the injuries involved in this case.

The workers’ compensation commissioner found in favor of the employer, concluding that “this accidental loss of control did not arise out of or in the course of his employment, nor did the injury resulting therefrom.” The plaintiff appealed to the compensation review division, which affirmed the commissioner’s decision. The plaintiff appeals from the decision of the review division.

The plaintiff’s argument is that, although the motorcycle began to skid on the public road, it came to rest in the parking lot and his injuries occurred therein. Thus, he asserts, his injuries occurred on his employer’s premises and are compensable. We conclude, however, that Bushey did not satisfy the test enunciated in McNamara v. Hamden, 176 Conn. 547, 556, 398 A.2d 1161 (1979), which states that “[i]n order to be compensable, an injury must (1) arise out of the employment; and (2) occur in the course of the employment. To occur in the course of the employment, the injury must take place (a) within the period of the employment, (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.”

While a parking lot maintained for the convenience of employees is an extension of the employment premises; Hughes v. American Brass Co., 141 Conn. 231, 234-35, 104 A.2d 896 (1954); this accident occurred on a public road which is neither part of the employer’s premises nor a reasonable extension thereof within sub-part (b) of part (2) of the test in McNamara v. Hamden, supra. Further, Bushey was not fulfilling the duties of his employment or doing anything incidental to them within sub-part (c) of that test.

An “accidental injury” is defined by General Statutes § 31-275 (8) as an injury “which may be definitely located as to the time when and the place where the accident occurred . . . .” (Emphasis added.) That Bushey eventually came to rest against a car in the parking lot is not relevant in view of the unchallenged finding of the commissioner, as affirmed by the review division,* ** that the accident occurred on the highway.

The decision of the review division can be sustained on the above ground alone. The plaintiff, however, insists that we make an exception to the employer premises rule by adopting the rule enunciated in a New York case, Husted v. Seneca Steel Service, Inc., 41 N.Y.2d 140, 359 N.E.2d 673, 391 N.Y.S.2d 78 (1976). There the employee was required to make a left turn into the employee parking lot. While making the turn, he was struck by an oncoming car and was propelled into the lot where he struck another car. The court upheld the decision of the workers’ compensation board that the employee’s injuries were compensable, pointing out that “[tjhis turn was made to effect an entry upon employer’s premises for work purposes and was thus an incident of the employment.” Id., 145.

We do not reach the question of whether a case similar to Husted would entitle an employee to benefits in this state. It may be plausibly argued that when the claimant, as in Husted, was required to make a left turn into the employer’s parking lot and was struck by another car, this was a risk incident to the employment, which justified a narrowly drawn exception to the employer’s premises rule and an award of workers’ compensation. That, however, is a far cry from the facts of this case. It defies both logic and common sense to conclude that the out-of-control skid involved here can reasonably be considered a risk incident to the employment. It was necessary for the claimant in Husted to make the particular turn on the highway in order to enter the employee parking lot. By no stretch of the imagination was it necessary for Bushey to make the spectacular entrance on to the company’s property that he did. We decline to stretch so unreasonably the concept of risk incident to the employment.

There is no error.

In this opinion the other judges concurred.

       Aetna Casualty and Surety Company, the employer’s insurer, is the other defendant in this case.

       This appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c).

       It should be noted that counsel conceded, at oral argument, that this is not a “going and coming” case. Rather, it is a case where the plaintiff claims to have been injured on the employer’s premises. See McNamara v. Hamden, 176 Conn. 547, 553, 398 A.2d 1161 (1979). Thus, Bushey’s reliance upon three Connecticut cases; Taylor v. M. A. Gammino Construction Co., 127 Conn. 528, 18 A.2d 400 (1941); Stakonis v. United Advertising Corporation, 110 Conn. 384, 148 A. 334 (1930); and McDonald v. Gulf Refining Co., 98 Conn. 286, 119 A. 222 (1922); is misplaced since all of those cases involved injuries occuring off of the employee’s premises but in the course of the employment.

       The review division’s decision concerned itself, primarily, with the “in the course of the employment” aspect of this test. Our decision affirming the review division’s decision on that aspect of the test necessarily results in the same conclusion as to the review division’s similar decision that the “out of the employment” aspect of the test was not met.

       In fact, the review division went further than the commission by finding that “[t]he June 21,1979 accidental injury ... did not occur on the employment premises and is not an injury arising out of and in the course of the employment.”

       Even if this finding were challenged by the plaintiff, this court’s limited review would prevent our consideration of that challenge. General Statutes § 31-301b provides: “Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review division to the appellate court.” (Emphasis added.) “So far as it discloses facts, [the commissioner’s] finding cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968).