author: McLACHLAN, J.

text:
    STATE OF CONNECTICUT v. JOSEPH KELLY
    (AC 26738)
    Bishop, McLachlan and Lavine, Js.

      Argued November 28, 2007
    officially released March 18, 2008

      Cynthia M. Barlow, assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, Robin Lipsky, former senior assistant state’s attorney, and Proloy K. Das, former assistant state’s attorney, for the appellee (state).
   Opinion

McLACHLAN, J.

The defendant, Joseph Kelly, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). On appeal, the defendant claims that (1) the trial court improperly admitted hearsay statements through the testimony of the victim’s mother, (2) the court improperly admitted constancy of accusation testimony from two witnesses before the victim had testified, (3) the court improperly admitted a letter the victim had written to her mother as constancy of accusation evidence and (4) the state’s prosecutorial improprieties during closing arguments deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1993, the victim, A, and her brother, Joe, Jr., lived in an apartment in Waterbury with their mother, G, and father, Joe, Sr. In the early morning hours of Thanksgiving Day, Joe, Sr., died in an automobile accident. At the time of their father’s death, A was five years old and Joe, Jr., was seven years old. G and her children continued to reside in the Waterbury apartment.

The defendant had been a close friend of Joe, Sr., and G for a number of years. Shortly after Joe, Sr., died, the defendant began to spend more time with the family at the apartment and eventually occupied a room in the basement. G did not work outside of the home for a period of time after her husband’s death. Sometime in 1994 or 1995, when A was about seven years old, G decided to return to employment. The defendant offered to supervise A and Joe, Jr., for an hour or two each weekday, from the time they returned home from school until G returned home from work. That arrangement lasted for almost one year. During those months, A often was alone in the apartment with the defendant, and she claimed that he sexually assaulted her on numerous occasions at that time. She told no one of the abuse.

Sometime in 1995, after A had completed the third grade, G and her family moved from Waterbury to Rhode Island. The defendant left the Waterbury apartment shortly before the move. A testified that all of the sexual assaults took place when she lived in the Waterbury apartment and that she did not see the defendant at any time after the family moved to Rhode Island. G remained friends with the defendant and continued to see him occasionally, the last time being at his wedding several years before the trial.

In September, 2003, after watching a movie involving sexual abuse, A decided that she wanted to tell her mother about the defendant’s actions. A wrote G a letter, in which she disclosed that the defendant had sexually abused her seven years earlier, and left it in an envelope on the kitchen table. When G returned home from work that day, she read the letter and discussed its contents with A. G then called the Waterbury police department and made arrangements to meet with Detective Anthony Rickevicius. Rickevicius, who was assigned to the sexual assault unit, met with G and A in October, 2003. As a result of that meeting, an investigation was commenced, and the defendant was arrested and charged with sexual assault in the first degree and risk of injury to a child.

On March 23, 2005, the defendant filed a motion in limine requesting that the court limit the admissibility of the letter A wrote to G in September, 2003, by ordering the redaction of any portions that could “ ‘arouse the emotions and sympathies of the jury’ ” in favor of A. On the first day of trial, prior to the testimony of any witness, the court heard argument from counsel as to proposed redactions and granted the defendant’s motion in part. The case was then tried before the jury on March 30 and April 4, 2005.

The jury heard testimony from G, Rickevicius, A and Howard Krieger, an expert in the treatment of sexual abuse victims, who were all witnesses for the state. The defendant called no witnesses of his own, although he cross-examined the state’s witnesses. He submitted a photograph of the Waterbury apartment as his only exhibit. On April 5, 2005, the jury returned a verdict finding the defendant guilty of the crimes charged. The court accepted the verdict and sentenced the defendant to a total effective term of eighteen years incarceration. This appeal followed.

I

The defendant first claims that the court improperly admitted hearsay statements of A and Joe, Jr., through the testimony of G on redirect examination. Specifically, the defendant challenges the court’s finding that he “opened the door” to that testimony and argues that the evidence was irrelevant and prejudicial.

After direct examination by the state, G was cross-examined by defense counsel about her family’s relationship with the defendant when he stayed at the Waterbuiy apartment. Two inquiries were made concerning her belief as to the defendant’s trustworthiness during that period of time. At one point, defense counsel asked G: “[The defendant] was a trusted friend, and there was never any, in your observation looking back, any reason for you to think anything unusual ever happened in your household when you weren’t there?” G responded, “No.” Immediately prior to the conclusion of his cross-examination, defense counsel asked G the following question: “Back when [the defendant] was living—well, coming to stay with your family back in the 90s, 93, 94, did you think that [he] would harm your children in any way?” G responded, “No, I didn’t think he would, no.”

The first question the prosecutor asked G on redirect examination was as follows: “[Defense counsel] asked you if back in 1993 to [19]97 you thought . . . the defendant would harm your children, correct? You said no. Knowing what you know now, would your opinion be different?” After G said, “yes,” the prosecutor asked her the reason for that change in opinion. Defense counsel objected on the ground that the testimony would violate the constancy of accusation doctrine. The court responded: “You opened that door.” G then proceeded to explain why her opinion had changed.

G testified that Joe, Jr., subsequently told her that the defendant had thrown him into a table and occasionally struck him. G also testified that A, while pointing to her vaginal area, told her that something was wrong “down there.” A made that comment several times during the time that the defendant was staying at the apartment. G testified that A also told her that she wanted to see a psychiatrist. G explained that A never was very specific in her complaints and would not give a clear reason for her requests.

Additionally, in response to the inquiries concerning the change in her opinion about the defendant, G said that there were occasions when she would find five or more pairs of A’s underpants all layered together as if they had been pulled on and taken off as one unit. She indicated that when she found them in A’s bedroom, she assumed that her daughter was concerned about having an accident because she sometimes waited too long to use the bathroom facilities. She was told by A, years later, at the time they were discussing the contents of her letter to G, that she layered her underwear “to make it harder for [the defendant].” For those reasons, G indicated that she would not have left the defendant with her children if she knew then what she knew at the time of trial.

The court gave limiting instructions to the jury in connection with the hearsay statements related by G during her testimony. In fact, the court interrupted G during her testimony and admonished the jury: “You are hearing certain information that relates to a question asked by counsel. The question asked by counsel was has her opinion changed. She is testifying that her opinion has changed and why it has changed, but the underlying facts about why her opinion has changed are not in evidence. She can testify as to why her opinion has changed, but you haven’t heard anyone testify, for example, from her son, that the defendant hit [him]. So, this testimony is limited solely for the purposes of her explaining why her opinion has changed, something the defense counsel put at issue. So, I want you to listen to this testimony with that understanding, that these underlying facts are not in evidence, what counsel is exploring as to why her opinion is different.”

The standard of review for the defendant’s challenge to the court’s evidentiary ruling is well settled. “Unless an evidentiary ruling involves a clear misconception of the law, [t]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling .... Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Powell, 93 Conn. App. 592, 599, 889 A.2d 885, cert. denied, 277 Conn. 924, 895 A.2d 797 (2006).

“Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence. . . .

“In determining whether otherwise inadmissible evidence should be admitted to rebut evidence offered by an opposing party, the court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 599-600.

Here, the state does not challenge the defendant’s claim that the statements of A and Joe, Jr., were hearsay. The state argues that the court properly exercised its discretion in admitting G’s testimony because the defendant elicited her subjective opinion about his capacity for harming her children at the time that he was staying at the apartment. The defendant specifically limited his questioning to the knowledge she had at the time A claimed that the abuse had occurred. The state claims that in order to place that opinion in context, the court properly allowed G to modify her opinion of the defendant by considering additional information that came to her attention years later.

We conclude that the court did not abuse its discretion in admitting the hearsay statements of A and Joe, Jr., through G’s testimony on redirect examination. G was allowed to explain why her present opinion of the defendant differed from her past opinion, which had been based on limited information. “[T]here is no reason to limit the right of a party to place in context testimony adduced by an opposing party and, consequently, appellate courts have not done so.” State v. Gonzalez, 272 Conn. 515, 544, 864 A.2d 847 (2005). Moreover, the court gave the jury a limiting instruction and carefully explained the sole purpose for which the testimony could be considered, i.e., the reason why G’s opinion of the defendant had changed. We presume, because nothing indicates otherwise, that the jury followed those instructions. See State v. Senquiz, 68 Conn. App. 571, 579, 793 A.2d 1095, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002).

II

The defendant’s next claim is that the court improperly admitted constancy of accusation testimony from G and Rickevicius. Specifically, the defendant argues that their testimony was not admissible under State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), because G and Rickevicius testified before A testified. This claim is without merit.

The state called G as its first witness. During the direct examination of G, defense counsel objected to a number of questions asked by the state on the ground that the testimony would constitute impermissible constancy evidence. The court overruled two of those objections. The state asked G what she did after she discussed the contents of the September, 2003 letter with A. After defense counsel’s objection was overruled, G testified that she telephoned the Waterbuiy police department. Another line of inquiry by the state, objected to by defense counsel and overruled by the court, concerned G’s observations when she cleaned A’s bedroom during the period of time that the defendant was staying at the apartment. G was permitted to testify that she picked up A’s clothing from the floor and noticed several pairs of underpants layered together, indicating that they had been put on or taken off as one unit.

The state called Rickevicius as its next witness. Rickevicius testified that he met with G and A in October, 2003. He indicated that the purpose of the meeting was “[t]o ascertain the complaint and launch an investigation.” Without discussing the contents of A’s complaint, Rickevicius stated that he took a statement from A and attempted to corroborate the information contained in that statement. Following the meeting, he attempted to locate the defendant. Several times during the testimony of Rickevicius, defense counsel objected on the ground that he was improperly testifying as a constancy witness because A had not yet testified.

As properly noted by the court, G and Rickevicius were not testifying as constancy witnesses. They were not allowed to testify as to the nature of A’s accusations against the defendant. They were providing background information for the jury. The court did not abuse its discretion in admitting the challenged testimony of G and Rickevicius because it concerned the various observations of the witnesses, the investigative efforts of the police and the sequence of events leading to the defendant’s arrest. See State v. Vidro, 71 Conn. App. 89, 93-95, 800 A.2d 661, cert. denied, 261 Conn. 935, 806 A.2d 1070 (2002). “The omission of this information would have left important gaps in the chronology of the case and left the jury to speculate about the investigative efforts undertaken by the police.” Id., 95.

Ill

The defendant’s next claim is that the court improperly admitted A’s letter to G as constancy of accusation evidence. The defendant argues that the letter contained irrelevant and highly prejudicial language and that its admission violated the limiting strictures set forth in State v. Troupe, supra, 237 Conn. 284.

The defendant filed a pretrial motion in limine seeking to limit the admissibility of the letter. He requested that the court order the redaction of “[a]ny portions of the letter that could arouse the emotions and sympathies of the jury in favor of the victim, and . . . bring contempt and opprobrium on the defendant as well as any statements that would have the natural effect of arousing pity and sympathy for the victim . . . .” (Internal quotation marks omitted.) At a pretrial hearing held on March 24,2005, the court requested that counsel meet to discuss a possible agreement as to the portions of the letter to be redacted. The court indicated that if counsel could not reach an agreement, the state and the defendant were to submit copies of the letter with their proposed redactions and that the court would hear argument before evidence commenced.

On the first day of trial, before any of the witnesses testified, counsel appeared before the court, and a lengthy colloquy ensued as to the proposed redactions. The court noted: “We have had discussions both on the record and in chambers regarding redacting this letter so that it complies with the requirements of State v. Troupe, [supra, 237 Conn. 284].” The court requested that defense counsel submit a copy of the letter with the defendant’s proposed redactions and that the prosecutor indicate which of those redactions were contested. Counsel and the court then proceeded to review each page of the nine page letter.

It is undisputed that the only basis for the admission of the redacted letter was to corroborate A’s testimony pursuant to the constancy of accusation doctrine. The court stated that the limitations of Troupe were very narrow and that the proposed redactions of defense counsel, upon preliminary review, were “not extensive enough.” From a review of the transcript, it is apparent that both the state and the defendant wanted to retain certain portions of the letter that exceeded the Troupe strictures. At one point, the court addressed defense counsel: “I’m not as interested in flow as I am in meeting the requirements of Troupe. And it seems to me that you can’t have it both ways. If you want this document limited for purposes of constancy information, we’re not going to include a lot of extraneous information.” After considerable give-and-take among the court, defense counsel and the prosecutor, it appeared that an agreement had been reached with respect to the portions to be redacted. At no point did defense counsel object on the record to the inclusion of particular statements in the letter after the court made its various rulings.

The defendant now claims that most of the contents of the letter should not have been admitted because the unredacted statements went far beyond the fact and timing of the complaint. There are two specific portions of the letter that the defendant argues were “extraordinarily prejudicial.” A wrote that she was “scarred [for] life” because of the defendant’s actions, and she concluded the letter with the request, “please help me mom, you’re my only hope.”

The defendant claims that he preserved this issue when he filed his motion in limine requesting the redaction of any language in the letter that would arouse the emotions or sympathies of the jury. He argues that Practice Book § 60-5 provides that it is not necessary to voice any further objection once an adverse ruling is made by the court.

The defendant filed his motion in limine on March 23, 2005. On March 24, 2005, the court asked counsel to meet and to discuss a possible agreement as to the redacted portions of the letter. On March 30, 2005, defense counsel presented the court with a copy of the letter containing the defendant’s proposed redactions. After considerable discussion on the record, it appeared that the defendant and the state had reached a compromise. The defendant did not object at that time to any unredacted statement. The redacted version of the letter was submitted as state’s exhibit six during the direct examination of A. At that time, defense counsel indicated that she had no objection to its admission, and it was admitted as a full exhibit.

The court reasonably could have concluded that defense counsel had abandoned any previous claims regarding the admissibility of certain portions of the letter and agreed with the redactions as discussed immediately prior to the start of evidence. The defendant never specifically requested that the “scarred [for] life” language or A’s entreaty to G to “please help me mom, you’re my only hope” be redacted from that exhibit. Moreover, the defendant stated that he had no objection to state’s exhibit six when it was offered as a full exhibit. “For this court to . . . consider [a] claim on the basis of a specific legal ground not raised during trial would amount to trial by ambuscade, unfair both to the [court] and to the opposing party.” (Internal quotation marks omitted.) Gilbert v. Beaver Dam Assn. of Stratford, Inc., 85 Conn. App. 663, 680, 858 A.2d 860 (2004), cert. denied, 272 Conn. 912, 866 A.2d 1283 (2005) .

We conclude that defense counsel’s conduct represented acquiescence to the court’s rulings with respect to the admissibility of the redacted version of A’s letter. He has, therefore, waived any claim that its admission violated the limiting strictures set forth in State v. Troupe, supra, 237 Conn. 284.

IV

The defendant’s final claim is that the state’s prosecutorial improprieties during closing arguments deprived him of his due process right to a fair trial. He argues that the prosecutor improperly (1) expressed her personal opinion regarding the evidence presented at trial and (2) appealed to the emotions and sympathies of the jury. The defendant contends that the cumulative effect of those improprieties deprived him of a fair trial. Despite the defendant’s failure to object to the challenged statements at trial, his claim is reviewable in light of State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007). “Once prosecutorial impropriety has been alleged ... it is unnecessary for a defendant to seek to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and it is unnecessary for an appellate court to review the defendant’s claim under Golding.” State v. Fauci, supra, 33.

“[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question .... As we have indicated, our determination of whether any improper conduct by the state’s attorney violated the defendant’s fair trial rights is predicated on the factors set forth in State v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)], with due consideration of whether that [impropriety] was objected to at trial.” (Internal quotation marks omitted.) State v. Warholic, 278 Conn. 354, 361-62, 897 A.2d 569 (2006).

Because the alleged impropriety occurred during closing argument, we set forth the applicable legal principles. “[P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. . . . [B]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument. [I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Nevertheless, [w]hile a prosecutor may argue the state’s case forcefully, such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Necaise, 97 Conn. App. 214, 229-30, 904 A.2d 245, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).

A

The defendant claims that the prosecutor improperly vouched for her view of the evidence in a statement made during her rebuttal argument to the jury. The defendant argues that by using the phrase, “because that’s what happened,” the prosecutor interjected her personal opinion or beliefs into the summation of the trial.

“[A] prosecutor may not express his own opinion, directly or indirectly, as to the credibility of the witnesses. ... Nor should a prosecutor express his opinion, directly or indirectly, as to the guilt of the defendant. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position. . . . Moreover, because the jury is aware that the prosecutor has prepared and presented the case and consequently, may have access to matters not in evidence ... it is likely to infer that such matters precipitated the personal opinions. ... It is not, however, improper for the prosecutor to comment upon the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Citation omitted; internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 435, 902 A.2d 636 (2006).

We conclude that the comment of the prosecutor was not improper. When the isolated comment challenged by the defendant is placed in context with the remainder of the remarks of the prosecutor during the rebuttal argument, it is clear that she was responding to the defendant’s suggestion that A may have been making the accusations against him in order to gain the attention of her mother or that A was confused as to the identity of the individual who sexually assaulted her. The comments of the prosecutor invited the jurors to consider the different, motives of A to lie or to tell the truth and invited them to use common sense and experience in evaluating the testimony of the witnesses. See State v. Jose G., 102 Conn. App. 748, 761-62, 929 A.2d 324, cert. granted on other grounds, 284 Conn. 916, 931 A.2d 937 (2007). Taken in context, the comment did not constitute the personal opinion of the prosecutor.

B

The defendant next claims that the prosecutor improperly appealed to the emotions and sympathies of the jury when she began her closing argument by referencing certain impassioned statements from A’s letter to G. Specifically, the defendant argues that the state’s thrice repeated plea, “please help me,” followed by the statement that those were “the words of a fifteen year old girl begging for someone to finally listen,” invited the jury to make its decision on the basis of emotional rather than evidential factors. We agree that the comments of the prosecutor were improper.

“It is well established that, a prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . We have stated that such appeals should be avoided because they have the effect of diverting the jury’s attention from [its] duty to decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irrelevant factors which are likely to skew that appraisal.” (Internal quotation marks omitted.) State v. Bermudez, 274 Conn. 581, 595-96, 876 A.2d 1162 (2005), aff'd after remand, 95 Conn. App. 577, 897 A.2d 61 (2006).

The letter from A to G was admitted as constancy of accusation evidence. Accordingly, the court gave a limiting instruction to the jury at the time of its admission. The prosecutor, however, in her closing argument, made no reference to that fact when she read the emotional excerpts from the letter. “As a general matter, a prosecutor may use any evidence properly admitted at trial. Properly admitted evidence, however, may not be used for a purpose for which it was not admitted.” State v. Camacho, 282 Conn. 328, 377, 924 A.2d 99, cert. denied, 552 U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007). The letter, admitted for the limited purpose of corroborating A’s testimony pursuant to the constancy of accusation doctrine, was not used by the prosecutor for that purpose. Further, the sole purpose for repeating three times A’s pleas for help could only have been to encourage the jury to sympathize with A and to decide the case on the basis of passion and emotion. See State v. Warholic, supra, 278 Conn. 377.

Having concluded that those comments of the prosecutor amounted to an improper emotional appeal, we must now ascertain whether the trial as a whole was fundamentally unfair and whether the impropriety so infected the trial with unfairness as to make the defendant’s conviction a denial of due process. “In order to make this determination, we consider the factors [set forth in State v. Williams, supra, 204 Conn. 540], specifically: the extent to which the impropriety was invited by the defendant’s conduct or argument, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the strength of the curative measures adopted and the strength of the state’s case.” State v. Camacho, supra, 282 Conn. 382. After examination of all of the factors, we conclude that the defendant was not deprived of his right to a fair trial by the prosecutorial impropriety in this case.

We do not discern any conduct by the defendant as having invited these improper appeals to the emotions of the jurors. The prosecutor began her closing argument by thrice repeating A’s pleas from the letter. Further, the state’s case was not particularly strong because the credibility of A was the central issue in the case, and there was no physical evidence to corroborate her testimony. See State v. Warholic, supra, 278 Conn. 397. Those factors weigh in favor of the defendant.

The improper comments, however, occurred only during closing argument, where we typically allow some latitude, and they represented a small portion of that argument. The improper comments were isolated and sporadic rather than frequent and pervasive. See State v. Camacho, supra, 282 Conn. 383. We do not view the statements made as “grossly egregious . . . [and] severe enough to mandate reversal.” (Internal quotation marks omitted.) Id. Moreover, in determining whether prosecutorial impropriety was severe, we consider it highly significant that defense counsel failed to object to the remarks when made or to request curative instructions or to move for a mistrial. State v. Fauci, supra, 282 Conn. 51. Additionally, the comments were unrelated to the critical issues in the case. Indeed, the absence of a connection to any evidentiary matter in the case made them improper.

Finally, with respect to curative instructions, the court gave no specific instruction directed to the improper remarks because the defendant did not object to the prosecutorial impropriety. Although this does not preclude us from reviewing the defendant’s claim, the failure to object is important. The defendant “bears a significant degree of responsibility for the fact that this impropriety went uncured. ... In addition, we note that a failure to object demonstrates that defense counsel presumably [did] not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Luster, supra, 279 Conn. 445-46.

Accordingly, we conclude that, in the context of the entire trial, the improper comments of the prosecutor did not deprive the defendant of his due process right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

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

       There were other questions to which defense counsel objected, claiming impermissible constancy testimony, which were sustained by the court. At one point, defense counsel requested that an answer be stricken. The court granted that request and told the jury that it had to disregard G’s response.

       In his brief on appeal, the defendant emphasized that Rickevicius often referred to A as the “victim” during his testimony. The court, however, during the testimony of Rickevicius, cautioned the jury: “When he uses the term ‘victim,’ that, of course, is—there’s only alleged in this case to be a victim, and you should understand that his characterization of the individual does not control what facts you need to find.”

       In Troupe, our Supreme Court held that a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint. Any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. Such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. State v. Troupe, supra, 237 Conn. 304.

       Although the state also argued that the letter was admissible under the residual or catch-all exception to the hearsay rule, the court denied its admissibility under that exception.

       Practice Book § 60-5 provides in relevant part: “The [reviewing] court shall not be bound to consider a claim unless it was distinctly raised at the trial ....
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same. . . .”

       We note that the defendant’s copy of the letter with his proposed redactions was not marked as an exhibit and is not part of the record on appeal. The transcript clearly indicates that the parties and the court were using the defendant’s proposed redactions as the starting point for the discussion on the admissibility of the various portions of the letter.
      The “scarred [for] life” language was on page seven of A’s letter. When the parties discussed that page, the prosecutor indicated that she had no issue with the proposed redactions, which suggests that defense counsel had not proposed that that language be redacted. When they reached the last page of the letter, defense counsel did not make any comment about A’s plea for help. Again, it is not possible to determine on this record whether the defendant had proposed the redaction of that language.
      It is the defendant’s burden to provide this court with an adequate record for our review.

       The court gave a limiting instruction to the jury, indicating that the contents of the letter could be used only for the purpose of corroborating A’s in-court testimony and not for substantive purposes, at the time the letter was admitted as an exhibit and in its instructions to the jury after the closing arguments of counsel. See State v. Troupe, supra, 237 Conn. 304.

       The defendant challenges a portion of the following comment made by the prosecutor: “Counsel said to you, well, now that her mother has somebody new, if that were the reason for her suddenly deciding to say that she was sexually assaulted, why suddenly bring up someone from so long ago? The defendant is no longer in their lives. How would that make her relationship with her mother any better? If that were the case, then why not just say that the mother’s fiance was the one that was doing it? Why, just out of thin air, pull [the defendant’s] name?
      “Counsel is right, there were lots of other friends in the family that were around, so why choose [the defendant] as the individual? Why? Because that’s what happened.” (Emphasis added.)

       Because we conclude that there was no impropriety, we need not reach the second prong of the inquiry, which is whether the defendant was harmed by the alleged impropriety. State v. Necaise, supra, 97 Conn. App. 232 n.14.

       In his brief on appeal, the defendant also mentions that the prosecutor characterized certain comments made by the defense in closing as “preposterous.” The defendant did not provide any argument or analysis addressed to the impropriety of that comment or how it caused or contributed to a due process violation.
      A review of the transcript reveals that the comment was made in the following context: “So, while counsel says, well, there were a lot of Joes that were prominent in her life. First of all, I asked that directly. Any doubt that this is the man, [the defendant], any doubt that that is the man who sexually abused you when you were a child? No doubt. No doubt at all. Is the argument really that maybe she confused her father whose name was Joe, her brother whose name was Joe, with the defendant who happens to be Joe as well? That’s preposterous.” (Emphasis added.)
      We conclude that the comment of the prosecutor was not improper. “Remarks that are nothing more than a permissible appeal to the jurors’ common sense do not constitute prosecutorial [impropriety]. . . . The state also is entitled to comment on the weaknesses in the defendant’s case and on the strength of its case.” (Citation omitted.) State v. Lindo, 75 Conn. App. 408, 416, 816 A.2d 641, cert. denied, 263 Conn. 917, 821 A.2d 771 (2003).

       The prosecutor began her closing argument with the following comments: “It took me over seven years to tell someone, my own mom, that I was raped by her friend. I don’t know what to do anymore. Please help me, mom. You are my only hope. Please help me. Help me from what? From the years and years of thinking that something was wrong with her. Physically and emotionally. From the years of knowing that she was a victim of sexual abuse.

        “Please help me, mom. The words of a fifteen year old girl begging for someone to finally listen to what had happened to h&r all those years before. It is now the part of the case where you, the jury, will go back, be able to talk among yourselves and deliberate and decide the case.” (Emphasis added.)

       The court instructed the jury: “The other thing that I am going to tell you is that the parts of the letter that you can read are admissible only for a limited purpose. They are not admissible for the truth of the matter contained in the letter. What that letter says.
      “Let me say it another way. You may use what is said in the letter, what is written in the letter only to corroborate or not corroborate, as the case may be, [A’s] in-court testimony. Again, you cannot use it to prove the truth of what is said in that letter, only to corroborate or not corroborate what she is saying in court.”
      The court also gave a limiting instruction with respect to the letter in its jury instructions following closing arguments.

       Additionally, even though the court gave no specific curative instructions, the court reminded the jurors in its general instructions following closing arguments that they were not allowed to make their decision on the basis of sympathy and that the statements of counsel during those arguments were not evidence: “You must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. You must perform your duty with strict regard to the law as given to you by me because I alone am responsible for stating the law and the legal principles involved. Also, your verdict must be based absolutely and solely upon the evidence presented to you in the trial of this case. You should not be swayed or influenced by any sympathy or prejudice for or against anyone.”
      The court also instructed the jury: “You should keep in mind the arguments and statements by the attorneys in final argument or during the course of the case are not evidence. You should not consider as evidence their recollection of the facts, nor their personal belief as to any facts or as to the credibility of any witness, nor any facts that any attorney may have presented to you in arguments from the attorney’s knowledge that was not presented to you as evidence during the course of the trial.”
      “[T]he jury [is] presumed to follow the court’s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Russell, 101 Conn. App. 298, 326, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    LEONARD J. ABBOTTS v. PACE MOTOR LINES, INC., ET AL.
    (AC 27964)
    Harper, Robinson and Borden, Js.
    Argued January 9
    officially released March 18, 2008

      Kevin M. Blake, with whom were Steven H. Cousins and, on the brief, Rebekah L. Sprano, for the appellant (plaintiff).

      Jason M. Dodge, for the appellees (defendants).
   Opinion

BORDEN, J.

The plaintiff, Leonard J. Abbotts, appeals from the decision of the workers’ compensation review board (board), which affirmed the decision of the workers’ compensation commissioner (commissioner), dismissing his claim for disability compensation from the defendant Pace Motor Lines, Inc. (Pace). The plaintiff provides an extensive list of claimed errors on the part of the commissioner and the board. In substance, however, the plaintiff raises two main claims. He claims that the board improperly affirmed the commissioner’s (1) decision to prevent him from asserting a repetitive trauma theory of work-related back injury and (2) finding that he failed to provide sufficient evidence to demonstrate that his back injury was caused while he was at work on March 25, 2003. We affirm the decision of workers’ compensation review board.

The commissioner found the following facts. The plaintiff commenced employment as a truck driver with Pace on November 12, 2002. On March 25, 2003, the plaintiff had driven merchandise to Taunton, Massachusetts, to deliver it to the Graybar Electric Company. The merchandise was packaged in various sized boxes, and the boxes were placed on several skids, or pallets, and secured with shrink wrap. When the plaintiff attempted to deliver the merchandise, he discovered that much of the shrink wrap had tom and that the boxes were scattered. David Kinzer, an employee of Graybar Electric Company, indicated that he was unwilling to accept the merchandise unless the plaintiff restacked the boxes. While restacking the boxes, the plaintiff complained to Kinzer that his back was sore. The plaintiff continued to work his regular hours for Pace until April, 2003. On April 9, 2003, the plaintiff did not go to work. The commissioner found that the cause of the plaintiffs absence was that he had slipped on ice and had fallen, injuring himself. On April 10, 2003, the plaintiff sought medical attention for his back pain. He told his treating physician that the pain was not the result of any specific injury. On April 26, 2003, a magnetic resonance image of the plaintiff revealed that he had a herniated disk in his lower back. Kenneth I. Lipow, a physician, also examined the plaintiff and drafted a medical report of the plaintiffs back pain on June 3, 2003. The report did not mention either the March 25, 2003 incident or the April fall. The plaintiff underwent back surgery for the herniated disk on June 6, 2003. He underwent a second surgery on December 4, 2003. Lipow drafted a causation report of the plaintiffs back injury on February 2, 2004. The causation report indicated that the injury was likely the result of “work-related activities, specifically his long-standing truck driving occupation,” and identified the March incident as a “substantial contributing factor to the pathology of the spine that ultimately led to [the plaintiffs] surgery.” The causation report did not mention the April fall on ice. At the time that Lipow drafted the report, the plaintiffs fiancee was employed as a secretary in his office.

The plaintiff filed a claim, seeking, among other things, compensation for his back injury. A three day formal hearing was held before the commissioner. The primary issue at the hearing was whether the plaintiff had provided adequate evidence to demonstrate that his back injury “arose out of and in the course of his employment.” The plaintiff presented Lipow’s causation report as evidence that his back injury was work-related and therefore compensable.

The defendants produced evidence that the plaintiff had reported slipping and falling on ice and injuring his back on or about April 9, 2003. The commissioner credited this evidence. While reviewing the medical evidence that the plaintiff proffered supporting his claim, the commissioner noted that it did not mention the April fall. The commissioner further noted that the plaintiff had previously filed a compensation claim for aback injury against a previous employer, which he also apparently failed to disclose to his examining physician. Finally, she noted that the plaintiffs fiancee was employed by Lipow at the time he drafted the causation report. For those reasons, the commissioner concluded that the medical report was unreliable. The commissioner subsequently denied the claim for compensation on the ground that the plaintiff had failed to provide sufficient credible evidence demonstrating that the injury for which he sought compensation was work-related.

The plaintiff appealed from the decision of the commissioner to the board. The board affirmed the decision of the commissioner. This appeal followed.

I

The plaintiff first claims that the commissioner improperly failed to consider a repetitive trauma theory of injury when determining that he did not demonstrate that his herniated disk was the result of a work-related injury. Specifically, the plaintiff states in his appellate brief: “At the hearing, the . . . commissioner refused to permit [the plaintiff] to include a repetitive trauma theory as part of his case, indicating that this would create a deprivation of due process to the [defendants] and that [the plaintiffs] form 30C did not indicate a repetitive trauma claim.” We disagree that the commissioner prevented the plaintiff from pursuing this theory.

The following additional facts are relevant to the plaintiffs claim. Dining the first day of the hearing, after stating the issues before the commissioner, the plaintiff requested that he be allowed to amend his statement of the issues. The following colloquy ensued:

“[The Commissioner]: Which issue are you amending? .. .

“[The Plaintiffs Counsel]: Compensability. . . . [I]t could be found that a specific injury occurred on March 25,2003; it could also be found that that was a culminating repetitive trauma. In other words, that is a medical decision or a medical-legal decision, and we’re not limiting that to being a specific incident .... [I]t could be considered a repetitive trauma as well. . . .

“[The Commissioner]: . . . [T]he form 30C was filed in this matter as a single date of injury. . . . There’s no indication it was filed as a repetitive trauma. . . . You could have amended your form 30C at some point along the way here to have changed your—the premise of your claim, but to now make your claim a repetitive trauma claim at the inception of the formal hearing is ... in no small part a deprivation of due process to the [defendants] and that [it] may or may not have prepared [its] case based upon a repetitive trauma theory.”

The plaintiffs counsel provided various reasons why he should be allowed to amend his statement of the issues, and the defendants were allowed to give counterarguments. The commissioner then stated: “I’m going to take administrative notice of all forms that were filed in this case, including the form 30C and any form 43s and other legal documents that were filed, and I’ll read the medicals and we’ll make a decision from there.” To which the defendants’ counsel replied, “[flair enough.” The plaintiffs counsel did not pursue the matter further.

The plaintiffs claim on appeal is based on the assumption that the commissioner, during the previously mentioned discussion, prohibited the plaintiff from arguing that his injury was the result of repetitive, job related trauma. A review of the record reveals, however, that the commissioner did not prohibit the plaintiff from pursuing such a theory. The commissioner indicated that she would make a determination about the proposed amendment at a later date. The record does not indicate that she returned to the request or that the plaintiff asked her to do so. Because the plaintiff has failed to demonstrate that the commissioner prevented him from pursuing his repetitive trauma theory, the plaintiffs first claim must fail.

II

We next address the plaintiffs claim that the commissioner improperly concluded that he had failed to provide sufficient evidence demonstrating that his injury was compensable. In substance, the plaintiff argues that the commissioner improperly found that (1) he had slipped and had fallen on ice on or about April 9, 2003, and (2) Lipow’s opinion that the claimed injury was caused by the March 25,2003 incident was not credible. We disagree.

“The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment.” (Internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 382, 727 A.2d 1253 (1999). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Deschenes v. Transco, Inc., 284 Conn. 479, 487, 935 A.2d 625 (2007). This principle applies as well to reports of experts. See Gillis v. White Oak Corp., 49 Conn. App. 630, 636-38, 716 A.2d 115, cert. denied, 247 Conn. 919, 722 A.2d 806 (1998).

A

The plaintiff first argues, in substance, that the commissioner’s finding that he had slipped and had fallen on ice on or about April 9, 2003, was clearly erroneous. We disagree. There was more than ample evidence to support the commissioner’s finding.

The commissioner credited the testimony of three of the defendants’ witnesses, Robert Schultz, John Tetreau and Patrick Pacelli. These witnesses each testified that the plaintiff had reported to them that he had slipped on ice and injured his back in April, 2003.

Schultz was an employee of Pace, a nighttime dispatcher, in April, 2003, although he had ended that employment at the time of the hearing. Schultz testified that the plaintiff called him on April 9, 2003, and stated that he had slipped on ice, was in pain, and would not be coming into work. Schultz also testified that he filled out an absentee report for Pace on the basis of the information the plaintiff had provided over the telephone.

Pacelli, Pace’s operations manager, also testified about the April fall. Pacelli testified that the plaintiff and his fiancee went to Pace’s building on April 10, 2003, at lunchtime, bringing lasagna for the employees. Pacelli testified that he and the plaintiff discussed the plaintiffs back problems and that the plaintiff had told him that he had slipped and fallen outside of his house. He further testified that the plaintiffs fiancee then stated that the plaintiff had been in excruciating pain following the fall.

Tetreau, Pace’s operations manager in charge of dispatch, also testified. He stated that the plaintiff was absent from work on April 9, 2003. Tetreau further stated that the plaintiff had called him that day and explained that he had fallen on ice at his home. Further, Tetreau testified that the plaintiff stated that he had hurt his back as a result of the fall.

The plaintiff raises several arguments concerning the commissioner’s finding that he had slipped on ice on April 9, 2003, and injured his back. He does not, however, provide any reason why the court was not free to rely on the testimony of Tetreau, Pacelli and Schultz to find that the plaintiff had slipped on ice and injured his back. On the basis of their testimony, the commissioner was justified in finding that the plaintiff had slipped on ice on or about April 9, 2003.

B

The substance of the plaintiffs next argument is that the commissioner committed clear error when she determined that he had not produced sufficient evidence to demonstrate that his back injury was caused during the course of his employment. The plaintiff also challenges a number of the commissioner’s subsidiary findings, labeling them “contradictory” findings. We disagree.

Specifically, the plaintiff argues that the commissioner’s determination that Lipow’s conclusion was not credible was clearly erroneous because the commissioner based this finding on the absence of any mention of the April fall in the causation report and the fact that the plaintiffs fiancee worked for Lipow at the time Lipow drafted the causation report. This is improper, the plaintiff argues, because Lipow did not testify that his causation determination was influenced by either of these factors.

The plaintiff had the burden in this case to demonstrate that the injury for which he claimed compensation arose out of and in the course of his employment. He offered a causation report drafted by Lipow. The defendants cast doubt on the reliability of this report based on the absence of what could have been important information, namely, the April fall, and also suggested that the report may have been biased because of the employment relationship between Lipow and the plaintiffs fiancee. Because the plaintiff had the burden of proof, it was his burden to show that, despite these facts, the report was nevertheless reliable. The commissioner was free to find that the plaintiff had failed to do this.

Only one other of the plaintiffs claimed “contradictory” findings is relevant to the commissioner’s causation determination. The plaintiff asserts that it was contradictory for the commissioner to find that he did not suffer a compensable injury despite finding that he had a sore back from stacking boxes on March 25,2003. We are not convinced that there is a contradiction in the findings that the plaintiff suffered from a sore back on March 25, 2003, but that he nevertheless failed to demonstrate that the injury for which he sought compensation was related to the soreness of that day.

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

In this opinion the other judges concurred.

       In addition to Pace, its workers’ compensation insurer, AIG Claim Services, Inc., is also a defendant in this case.

       The plaintiff also asserts that many of the errors he alleges also deprived him of his right to due process. The plaintiff did not bring his asserted due process concerns to the attention of the commissioner; therefore, he did not preserve his due process arguments. Recognizing this, the plaintiff, in his reply brief, seeks to prevail under Golding on his constitutional assertion related to his repetitive trauma theory. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because of our determination that the commissioner did not prevent the plaintiff from raising a repetitive trauma theory, this claim must fail. The plaintiff does not seek to prevail under Golding on his other asserted due process violations, and, therefore, we decline to review them as being unpreserved.

       The plaintiff, in Ms reply brief, argues that he did raise the issue again when he proposed findings of facts. The record reveals, however, that he did not. The plaintiffs proposed conclusions suggest only that the commissioner “find that [the plaintiff] sustained a work-related injury while in the employ of [the defendants] on March 25, 2003.”

       Furthermore, the only expert evidence supporting the plaintiffs repetitive trauma theory was Lipow’s report, wMch concerned both that theory and the March incident as contributing factors to the plaintiffs spinal pathology. The commissioner specifically found the report not to be credible. This finding is at least consistent with a conclusion that the commissioner considered and rejected the plaintiffs repetitive trauma theory.

       The plaintiff also argues that the commissioner improperly found that he maintained two driver log books, one reflecting his actual driving time and one recording a driving time that conformed to state and federal law. The plaintiff argues that the evidence showed that there was a single log book but that this log book was not always accurate. We agree with the board that the plaintiff has failed to demonstrate that the number of log books is relevant to his claim of compensability. Therefore, any error on the part of the commissioner in this regard is harmless.

       The plaintiffs other claims of contradictory findings are really arguments challenging the evidentiary support for various findings. We have reviewed them and conclude that they are without merit.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. JOHN RAGIN
    (AC 27341)
    Bishop, DiPentima and Haiper, Js.
    Argued January 18
    officially released March 18, 2008

      Kent Drager, senior assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were David I. Cohen, state’s attorney, and Tiffany M. Lockshier, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, John Ragin, appeals from the judgment of conviction, rendered after a trial to the court, of interfering with an officer in violation of General Statutes § 53a-167a and breach of the peace in the second degree in violation of General Statutes § 53a-181. On appeal, the defendant claims that the evidence was insufficient to support his conviction. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. In the early morning of August 6, 2004, Officer Sean Wonwong was on duty in his police cruiser in the parking lot of 50 Washington Street in Norwalk. He was there to provide a police presence during bar closing time. While he watched, a crowd of thirty to forty people gathered and started moving quickly toward a nearby alleyway. Wonwong alerted police headquarters of a possible fight and then entered the crowd and tried to separate three fighting women who were being encouraged by the crowd with chants of, “fight, fight, fight!” At this point, Officers William Vetare and Jason Scanlon arrived at the chaotic scene. Knowing that Wonwong was in the melee alone, but unable to see him, both officers entered the crowd with the primary objectives of ensuring Wonwong’s safety and dispersing the crowd. Upon finding Wonwong, Vetare used his baton to push away one of the women who was trying to climb over Wonwong’s back to continue the fight with the other women. Meanwhile, Scanlon was shouting at people to leave. When the defendant, who was standing near the fighting women, approached Vetare, Vetare pushed him back with his baton. The defendant came back at Vetare in an aggressive manner with his fists clenched, shoulders back and chest out. As the defendant did not disperse when pushed and Vetare believed that he was in danger, he struck the defendant on the back of the legs two times. Once again, the defendant came back at Vetare. Seeing this, Scanlon fired his Taser gun at the defendant. Thereafter, the officers were able to handcuff the defendant without further incident. Some of the members of the crowd dispersed but others remained and started yelling racial epithets and slurs at the officers. Eventually, the officers left.

After a trial to the court, the defendant was found guilty on both counts. The court sentenced the defendant on the conviction of interfering with an officer to six months incarceration, execution suspended, and eighteen months probation. In addition, the court sentenced the defendant on his breach of the peace conviction to three months of imprisonment, execution suspended, and a concurrent term of eighteen months of probation. This appeal followed.

The defendant claims on appeal that the evidence presented by the state was insufficient to support his conviction of interfering with an officer and breach of the peace. “In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the [finder of fact] must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the [finder of fact] to conclude that a basic fact or an inferred fact is true, the [finder of fact] is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence that it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

I

We first analyze the sufficiency of the evidence in support of the defendant’s conviction of interfering with an officer. The defendant claims that the state failed to prove that an officer ever ordered the defendant to leave, and, therefore, the defendant could not have violated § 53a-167a because he was lawfully standing in a public area. The defendant also argues that his behavior did not amount to interfering and that his conviction rests on his failure to fall when struck. Furthermore, he claims that because his intention was to break up the fight, not interfere with the officers, he lacked the specific intent for culpability under § 53a-167a. We are unpersuaded.

In order to support a conviction for interfering with an officer, the state must prove beyond a reasonable doubt that the defendant obstructed, resisted, hindered or endangered an officer in the performance of his or her duties. General Statutes § 53a-167a. Additionally, the state must prove that the defendant had the specific intent to interfere with an officer. State v. Nita, 27 Conn. App. 103, 111-12, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992). The language of § 53a-167a is intended to be broad. “By using those words it is apparent that the legislature intended [§ 53a-167a] to prohibit any act which would amount to meddling in or hampering the activities of the police in the performance of their duties. . . . The [defendant’s] act, however, does not have to be wholly or partially successful . . . [nor must it] be such as to defeat or delay the performance of a duty in which the officer is then engaged. The purpose of the statute, which had its origin in the common law, is to enforce orderly behavior in the important mission of preserving the peace; and any act that is intended to thwart that purpose is violative of the statute. . . . Thus, [t]he broad intent of § 53a-167a is to prohibit conduct that hampers the activities of the police in the performance of their duties . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 833, 911 A.2d 1086 (2007).

The defendant argues that he did not hear the officers ordering people to disperse and, therefore, could not have had the requisite intent to interfere. His argument ignores the evidence that he was given a clear, nonverbal order to get back when Vetare pushed him with the baton. Additionally, even if we accept the defendant’s claim that he did not know that the police officers were trying to disperse the crowd at first, the moment he “came back” at them after being pushed away with Vetare’s baton, his conduct was evidence of his intent to interfere with their duty to disperse the unruly crowd.

Contrary to the defendant’s claim that the officers hit him for no reason, Vetare testified that the defendant came at him aggressively on three separate occasions, forcing him to divert his attention from securing Wonwong’s safety and dispersing the crowd. Scanlon corroborated Vetare’s testimony. “In conducting our review, we are mindful that the finding of facts, the gauging of witness credibility and the choosing among competing inferences are functions within the exclusive province of the [finder of fact], and, therefore, we must afford those determinations great deference.” (Internal quotation marks omitted.) State v. Nelson, 105 Conn. App. 393, 399, 937 A. 2d 1249 (2008). For the foregoing reasons, the court reasonably could have concluded that the defendant intended to hinder, delay or impede the police.

II

The defendant also claims that the evidence was insufficient to support his conviction of breach of the peace in the second degree. Pursuant to § 53a-181, the state must prove that (1) the defendant engaged in fighting or in violent, tumultuous or threatening behavior, (2) this conduct occurred in a public place and (3) the defendant acted with the intent to cause inconvenience, annoyance or alarm, or that he recklessly created a risk thereof. See also In re Jeremy M., 100 Conn. App. 436, 447, 918 A.2d 944, cert. denied, 282 Conn. 927, 926 A.2d 666 (2007).

The incident in the present case occurred against the backdrop of a frenzied crowd. Vetare testified that the defendant came at him three times and assumed an aggressive stance with clenched fists, shoulders back and chest out. If credited, this testimony reveals that the defendant’s actions caused the officers to fear physical violence and to take more drastic measures in order to subdue him. As the trier of fact, the court was entitled to credit this testimony. After reviewing the evidence in the light most favorable to sustaining the court’s judgment, we conclude that the court reasonably could have found that the defendant intentionally breached the peace by engaging in threatening behavior.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that although the defendant has apparently fulfilled his sentence, his appeal is not moot. “[C]ompletion of the sentence does not render the defendant’s appeal moot because the defendant may be subject to collateral legal consequences as a result of the conviction. See Sibron v. New York, 392 U.S. 40, 53-55, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); see also Barlow v. Lopes, 201 Conn. 103, 112, 513 A.2d 132 (1986) (‘[i]t is well established that since collateral legal disabilities are imposed as a matter of law because of a criminal conviction, a case will not be declared moot even where the sentence has been fully served’); State v. Falcon, 84 Conn. App. 429, 431 n.3, 853 A.2d 607 (2004) (same); see also State v. Scott, 83 Conn. App. 724, 727, 851 A.2d 353 (2004) (same).” State v. Briggs, 94 Conn. App. 722, 725 n.4, 894 A.2d 1008, cert. denied, 278 Conn. 912, 899 A.2d 39 (2006).

       We note that despite the defendant’s failure to preserve his claims by filing a motion for a judgment of acquittal, we will review them. “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 239-40, 567 A.2d 823 (1989)]. . . . [N] o practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim . . . .” (Citation omitted; internal quotation marks omitted.) State v. Singleton, 97 Conn. App. 679, 684 n.7, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006).

       “It is well established that the question of intent is purely a question of fact [and] may be . . . inferred from the defendant’s verbal or physical conduct [or] from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Salaman, 97 Conn. App. 670, 677, 905 A.2d 739, cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. FERNANDO BOSQUE
    (AC 27991)
    Bishop, Harper and Beach, Js.

      Submitted on briefs January 4
    officially released March 18, 2008

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

      Jonathan C. Benedict, state’s attorney, Adam E. Mattei, special deputy assistant state’s attorney, and Joseph T. Corradino, senior assistant state’s attorney, filed a brief for the appellee (state).
   Opinion

HARPER, J.

The defendant, Fernando Bosque, appeals from the judgment of conviction, rendered following a jury trial, of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4), burglary in the first degree in violation of General Statutes § 53a-101 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and five counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the court improperly instructed the jury with regard to the presumption of innocence. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. At approximately 1:30 a.m. on November 5, 2004, the defendant, his brother, Benjamin Bosque, and Roberto Figueroa went to a Bridgeport apartment, a residence shared by three males and a female, all of whom were college students. The defendant and his accomplices forcibly gained entry to the apartment after ringing the doorbell. The defendant and his brother wore masks and brandished BB guns. Initially, three of the residents were at the apartment along with another male visitor. Thereafter, the fourth resident arrived home from work. At gunpoint, the intruders verbally disparaged, threatened and physically assaulted the occupants of the apartment and forced them into one room. The intruders ransacked the apartment for valuables, taking items such as home electronics, jewelry, mobile phones, cash and automatic teller machine cards. The intruders also forced the victims to reveal their personal identification numbers. During the invasion, the defendant participated in a sexual assault of the female victim. Following their departure from the apartment, the defendant and his accomplices took the stolen items to the home of the defendant’s mother and proceeded to a bank where they withdrew money from the victims’ bank accounts.

During its charge, the court instructed the jury with regard to the presumption of innocence, in part, as follows: “Let me repeat something you have previously been told, something that is a fundamental principle of our system. In this case, as in all criminal prosecutions, the defendant is presumed to be innocent of the charges against him unless and until proven guilty beyond a reasonable doubt. This presumption of innocence was with this defendant when he was first presented for trial in this case. It continues with him throughout the trial unless and until such time as the evidence produced in the orderly conduct of the case, considered in the light of these instructions on law and deliberated upon you in the jury room, satisfies you beyond a reasonable doubt that he has been proven guilty of one or more of the charges.”

The defendant claims that the court’s instruction deprived him of his right to a fair trial under the federal constitution in that it infringed on his right to be presumed innocent of each and every charge and diluted the state’s burden of proof. The defendant argues that the probable interpretation of the court’s instruction by the jury was that the jury should not presume him to be innocent on any count after finding him to be guilty as to any of the nine counts of the substitute information.

The defendant illustrates his claim as follows: “Assuming the jurors followed the instructions as given by the trial court, they deliberated [his] guilt on a count by count basis. There is no way of knowing which charge the jurors considered first but, in any case, it is irrelevant. So, for purposes of argument, assume the jurors first deliberated count one, conspiracy to commit robbery. [As to count one], the jurors gave [him] the presumption of innocence he was constitutionally entitled to and, after assessing the credibility of the alleged victims and the self-confessed accomplice, found [him] guilty [as to that count]. The jurors then began deliberations on count two, burglary in the first degree. Once again, the jurors followed the instructions as given by the trial court. However, when deliberating this count, the trial court’s instruction permitted the jurors to disregard [his] presumption of innocence. And, if the jurors disregarded [his] presumption of innocence, the very standard by which they were required to determine guilt beyond a reasonable doubt was absent from the jurors’ deliberations.”

As a preliminary matter, we note that the defendant did not preserve his claim of instructional error for our review in that he neither filed a written request to charge nor took exception to the charge on this ground at trial. See Practice Book § 16-20. The defendant seeks review of his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The claim is reviewable because the record provides an adequate basis for review, and the claim of instructional impropriety concerning the presumption of innocence and the burden of proof is of constitutional magnitude. See State v. Lawrence, 282 Conn. 141, 178 n.22, 920 A.2d 236 (2007), and cases cited therein.

“The standard of review for claims of instructional impropriety is well established, [individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Citation omitted; internal quotation marks omitted.) State v. Holley, 90 Conn. App. 350, 358-59, 877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d 1249 (2005).

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 39 L. Ed. 481 (1895). “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976).

The United States Supreme Court has observed that the reasonable doubt standard “provides concrete substance for the presumption of innocence . . . " In re Winship, 397 U.S. 358, 363, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The presumption of innocence embodies the principle that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial. . . . And it has long been recognized that an instruction on the presumption is one way of impressing upon the jury the importance of that right. . . . The ‘purging’ effect of an instruction on the presumption of innocence . . . simply represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.” (Citations omitted.) Taylor v. Kentucky, 436 U.S. 478, 485-86, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).

Consistent with our obligation to consider the charge as a whole, we note several other parts of the instructions that are relevant to our analysis. In the very beginning of its charge, the court emphasized the jury’s obligation to consider separately each count. The court stated: “Whatever your verdict is, it must be unanimous and arrived at separately as to each count.” Discussing the concepts of direct and circumstantial evidence, the court stated: “You should keep in mind that regardless of whether direct evidence, circumstantial evidence or a combination of both is relied on for a conviction, all of the elements of the crime must be proven beyond a reasonable doubt before you find the defendant guilty.”

Immediately after the court delivered the presumption of innocence instruction at issue, the court emphasized that the state’s burden of proof applied to every element of every crime. The court stated: “As I have previously told you, the burden of proof to prove the defendant guilty of any of the crimes for which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the crime charged. . . . The state bears the burden of proof as to each charge. Therefore, you must decide whether the state has borne its burden of proving beyond a reasonable doubt each and every element necessary to prove the crime charged.” After discussing the elements of each crime at issue, the court reiterated that it was the jury’s duty “to safeguard the rights of the persons charged with a crime by respecting the presumption of innocence, which the law has imputed to each person charged and by making the state meet its burden of proving guilt beyond a reasonable doubt.” The court then stated: “If and when the presumption of innocence has been overcome by the evidence and you found beyond a reasonable doubt that the accused is guilty of the crime charged, then it is your sworn duty to enforce the law and render a verdict of guilty. I remind you that whatever your verdict is, it must be unanimous. I also remind you that you must consider each count of the information separately.” Later, after reminding the jurors that they could deliberate only when all jurors are present, the court stated: “[Y]our verdict as to each count must be unanimous and must be considered separately.”

Recently, in State v. Gerald W., 103 Conn. App. 784, 931 A.2d 383, cert. denied, 284 Conn. 933, 935 A.2d 152 (2007), this court rejected a claim strikingly similar to the one presently before us. In that case, the trial court instructed the jury that “the presumption of innocence remains with [the defendant] unless and until the state proves beyond a reasonable doubt that he is guilty of one or more of those charges” and that “the presumption of innocence remains with the defendant unless and until the evidence . . . persuades you beyond a reasonable doubt that the defendant is guilty of one or more charges.” (Internal quotation marks omitted.) Id., 787. The defendant in Gerald W. “claim[ed] that it was reasonably possible that the jury was misled and could have believed that the presumption of innocence disappeared after finding him guilty of one of the charged crimes.” Id. After reviewing the trial court’s charge as a whole, this court concluded that “the court’s instructions communicated to the jury that the presumption of innocence applies individually to each charged crime and that it may be overcome as to each specific charge only after the state introduces evidence that establishes the defendant’s guilt as to each crime beyond a reasonable doubt.” Id., 790.

In the present case, our review of the charge as a whole, including the court’s numerous instructions directing the jury to consider each count separately, to hold the state to its proper burden of proof as to each count and to reach a separate decision as to each count, leads us to conclude that it is not reasonably possible that the court misled the jury as the defendant claims. The instructions at issue in this case are materially similar to those at issue in Gerald, W. Gerald W., thus, is controlling, and, in reliance thereupon, we conclude that the defendant’s claim fails under Golding's third prong.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a term of incarceration of seventy years, suspended after fifty years, followed by thirty-five years of probation.

       Following his arrest, the defendant provided a written statement to the police in which he admitted that he and his brother were present in the apartment at the time in question but stated that he had not sexually assaulted the female victim.

       Apart from his primary claim, which we have addressed, the defendant also argues as follows: “The trial court never instructed the jurors as to the meaning of the presumption of innocence, i.e., the defendant, at the time of trial, stood before the jurors free of any bias, prejudice or burden arising from his position as the accused and begins trial with a clean slate with no evidence against him.” The court’s instructions belie this claim; we conclude that the court adequately and unambiguously conveyed to the jury the meaning of “presumption of innocence.” The court instructed the jury that the defendant was “presumed to be innocent of the charges against him unless and until proven guilty beyond a reasonable doubt.” We already have discussed in this opinion the relationship between the presumption of innocence and the reasonable doubt standard of proof. The court clearly and correctly instructed the jury that the state bore the burden of proving each and every element of the crimes at issue beyond a reasonable doubt, that the jury must base its verdict on the evidence adduced during trial and that the jury wasprohibited from drawing any inference from the defendant’s status as an accused person. In discussing the information brought by the state, the court stated: “You must not consider the information as any evidence whatsoever of the guilt of the defendant or draw any inference of guilt because he has been charged with a crime.”


author: PER CURIAM.

text:
    AMERICAN SAVINGS BANK v. WILLIAM LUKAS III ET AL.
    (AC 28335)
    Bishop, Harper and Beach, Js.
    Submitted on briefs January 4
    officially released March 18, 2008

      JoAnn Paul, for the appellant (named defendant).

      Keith K. Fuller, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant William Lukas III appeals from the judgment of the trial court approving the sale of certain real property after a judgment of foreclosure by sale. The defendant claims that the court improperly approved the sale on the motion of the committee of sale because, at the sale, the foreclosing lender, the plaintiff, American Savings Bank, now known as Banknorth, N.A., “offerfed] a bid that was substantially below the debt owed to it and the appraised value of the property, and the successful bid [was], likewise, substantially lower than the debt owed and the appraised value of the property.” We affirm the judgment of the trial court.

The record reflects that following judgment of foreclosure by sale, a committee sale occurred on October 21, 2006. On October 24, 2006, the committee filed a motion to approve the committee report, the committee deed and the fee and costs of the committee. The committee also filed a motion to grant the purchaser possession of the subject property. On November 8, 2006, before a hearing on the pending motions, the defendant, acting pro se, filed a motion for a continuance and extension of time to permit him to respond to the motions filed by the committee. The court denied the defendant’s motion and approved the committee’s motions. This appeal followed the court’s denial of the defendant’s motion for reargument and reconsideration.

“It is well settled that [t]his court is not bound to consider claimed errors unless it appears on the record that the question was distinctly raised . . . and was ruled upon and decided by the [trial] court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Bragdon v. Sweet, 102 Conn. App. 600, 605, 925 A.2d 1226 (2007). On the basis of the record that the defendant submitted for our review, it does not appear that the court considered or resolved the objection at issue in this appeal. In fact, the defendant does not appear to dispute that at the time the court considered the propriety of the sale and ruled on the committee’s motions, he had not objected on any ground to the terms of the sale. As this court has observed, “[i]f there is any objection to the terms of the sale, said objection should be made at the time the motion to confirm is considered.” National City Mortgage Co. v. Stoecker, 92 Conn. App. 787, 800, 888 A.2d 95, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). The defendant did not raise this objection at an appropriate time in the proceedings, and the court did not afford it consideration. Under these circumstances, we decline to review this claim.

The judgment is affirmed.

       Mary E. Lukas and Capital One were also named as defendants in this action. Mary Lukas did not enter an appearance, and Capital One, after entering an appearance, was defaulted after failing to disclose a defense. As William Lukas III is the only defendant to have participated substantially in the underlying proceedings and the only defendant to have participated in this appeal, we shall refer to him as the defendant.

       The defendant does not challenge the court’s denial of that motion in this appeal. It appears that, after the filing of that motion, the defendant was represented by counsel during the remainder of the proceedings before the trial court and on appeal.

       The record reflects that the court acted on the committee’s motions on November 13, 2006, and that the court issued notice of the rulings on November 14, 2006. On November 29, 2006, the defendant filed a motion requesting the court to permit reargument and to reconsider its approval of the sale. Therein, for the first time, the defendant complained that the plaintiffs bid on the property was less than the property’s appraised value and that this subjected him “to a substantial deficiency judgment.” On these grounds, the defendant requested that the court set a new sale date to permit the plaintiff an opportunity to purchase the subject property and to resell it “at [a] private sale for an amount approaching its fair market value, thereby reducing or eliminating [his] exposure to a deficiency.”
      The court summarily denied the motion for reargument and reconsideration without explaining the reasons for its ruling. The defendant did not ask the court to articulate its reasons for denying the motion and does not challenge the correctness of that ruling in this appeal. Thus, we do not review that ruling here. See State v. Dalzell, 282 Conn. 709, 715, 924 A.2d 809 (2007) (discussing general rule that Appellate Court limited to deciding issues raised and briefed by parties to appeal).

       The defendant, who bore the burden of providing this court with a record adequate for review; see Practice Book § 61-10; did not file any transcripts in this appeal. Consequently, we are left without any record to review what transpired during the hearing at which the court approved the sale of the subject property. See, e.g., New Haven Savings Bank v. Mongillo, 67 Conn. App. 799, 801-802, 789 A.2d 547 (2002). The representations of the parties before this court, however, afford us a basis on which to determine that the defendant did not raise any specific objections to the committee’s sale of the property prior to the court’s approval of the sale. The plaintiff filed a motion to dismiss this appeal, which, obviously, was denied. In reciting the history of the case in that motion, the plaintiff represented that the defendant had not raised any objection to the approval of the sale at any time prior to the court’s approval of the sale. The plaintiff also argued that the defendant’s failure to preserve any objection to the subject sale prior to its confirmation precluded this court from reviewing the issue raised in this appeal. In his memorandum of law in opposition to the motion, the defendant adopted the general recitation of the history of the case as set out in the plaintiffs motion and did not dispute the accuracy of the plaintiffs representations in this regard. Instead, the defendant claimed that he “diligently participated in these proceedings” and that the court had denied his request for additional time to respond to the committee’s pending motions.


text:
    ANTHONY CARTER v. COMMISSIONER OF CORRECTION
    (AC 27912)
    DiPentima, McLachlan and Gruendel, Js.
    Argued January 22
    officially released March 18, 2008

      Anthony Carter, pro se, the appellant (petitioner).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, James E. Thomas, former state’s attorney, and Jo Anne Sulik, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

The pro se petitioner, Anthony Carter, appeals following the denial of his petition for certification to appeal from the judgment denying his petition for a writ of habeas corpus. We dismiss the appeal.

In 2002, the jury found the petitioner guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5), risk of injury to a child in violation of General Statutes § 53-21 (a) (1) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1). The trial court rendered judgment accordingly and sentenced the petitioner to a total effective term of twenty-seven years incarceration. This court affirmed that judgment in State v. Carter, 84 Conn. App. 263, 853 A.2d 565, cert. denied, 271 Conn. 932, 859 A.2d 931 (2004), cert. denied, 544 U.S. 1066, 125 S. Ct. 2529, 161 L. Ed. 2d 1120 (2005).

The petitioner subsequently filed a petition for a writ of habeas corpus in which he raised fourteen claims. In her return, the respondent, the commissioner of correction, denied those allegations and submitted that the petitioner was proceduraily defaulted as to ten of those claims. The habeas court held a trial over two days in January, 2006. Following that trial, the court agreed with the respondent that the petitioner was proceduraily defaulted as to ten of the claims raised in his petition, determining in each instance that the petitioner failed to demonstrate either good cause for his failure to raise the claim at trial or on direct appeal or actual prejudice resulting from the claimed impropriety. It further concluded that the petitioner had not satisfied his burden of proving deficient performance on the part of trial and appellate counsel or prejudice resulting therefrom. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As to the petitioner’s claim that the prosecution knowingly elicited perjured testimony dining his criminal trial, the court noted that the petitioner had provided no testimony or exhibits in support thereof, thereby precluding meaningful review. Finally, the court concluded that the petitioner failed to meet his burden of proving actual innocence with clear and convincing evidence that no reasonable fact finder would conclude that the petitioner was guilty of the crime of assault in the first degree. Accordingly, the court denied the petition for a writ of habeas corpus. The court subsequently denied the petition for certification to appeal.

Before we may reach the merits of the petitioner’s claim that the court improperly decided the issues raised in his petition for a writ of habeas corpus, he first must establish that the court abused its discretion in denying the petition for certification to appeal. See Sadler v. Commissioner of Correction, 90 Conn. App. 702, 703, 880 A.2d 902, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005). To do so, a petitioner must demonstrate “that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994). After a careful review of the record and briefs, we conclude that the petitioner has not met that substantial burden. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 616.

The appeal is dismissed.

       In his fourth amended petition for a writ of habeas corpus, the petitioner claimed that (1) there was insufficient evidence to prove beyond a reasonable doubt the element of intent for assault in the first degree; (2) the prosecution knowingly elicited perjured testimony during the criminal trial; (3) prosecutorial impropriety transpired; (4) his arrest warrant contained false statements and material omissions in violation of Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978); (5) the trial court impermissibly amended the information on the charge of assault in the first degree during its instruction to the jury; (6) his arrest was illegal on the charge of attempt to commit assault in the first degree; (7) the trial court improperly instructed the jury on the element of intent; (8) the conviction of assault in the first degree and risk of injury to a child is legally inconsistent; (9) the conviction of assault in the first degree and attempt to commit assault in the first degree violates the constitutional protection against double jeopardy; (10) General Statutes § 53a-59 is unconstitutionally vague; (11) General Statutes § 53-21 is unconstitutionally vague; (12) he received ineffective assistance of trial counsel; (13) he received ineffective assistance of appellate counsel; and (14) he was actually innocent of the crime of assault in the first degree. Although his petition originally contained a fifteenth claim in which he sought independent review of four claims presented in his direct appeal, the petitioner withdrew that claim during the habeas trial.