author: DUPONT, J.

text:
    NANCY MORALES v. PENTEC, INC., ET AL.
    (AC 18653)
    Schaller, Hennessy and Dupont, Js.

      Argued December 16, 1999
    officially released April 18, 2000

      Cynthia W. Sheppard, with whom, on the brief, was Robert I. Reardon, Jr., for the appellant (plaintiff).

      Edward Maum Sheehy, with whom, on the brief, was Michael R. Brandt, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiff, Nancy Morales, brought this action in a three count complaint against the defendants, PenTec, Inc., and Michael E. Callahan, for breach of an employment contract with regard to a pension and profit sharing plan in the first count, medical benefits in the second count and failure to pay wages pursuant to General Statutes § 31-72 in the third count. The trial court directed a verdict in favor of the defendants as to the latter claim. The jury returned a verdict in favor of the plaintiff in the amount of $26,500 on the first count and $2670 on the second count. On appeal, the plaintiff claims that the court improperly (1) directed the verdict in favor of the defendants on count three, (2) ordered a remittitur in the amount of $17,220 on count one and (3) instructed the jury as to the plaintiffs claim for medical benefits.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiff and her husband were the original owners of PenTec, Inc., which provided pension consulting for small businesses. The two started the company in 1983 and were its only full-time employees. They established two pension plans through the company to provide benefits to themselves. Under the money purchase plan, the company would contribute to the pension plan 10 percent of what a 1'ull-time employee earned during one plan year. A key employee such as the plaintiff could waive her compensation, meaning that she could elect to have some or all of her salary exempted from the calculation of the company’s required 10 percent contribution. The second plan was the profit sharing plan and trust, under which the company could contribute up to 15 percent of an employee’s salary to the plan at its option, depending on whether it had profits for that year.

The company also adopted a medical reimbursement plan. Under this plan, the company was required to reimburse all full-time employees for medical expenses actually incurred, including those for routine medical, dental, vision and hearing care. The company also purchased a major medical policy. Thus, all of the plaintiff’s health care costs were covered under either the major medical plan or the self-insured portion of the company’s medical plan while she and her husband were the company’s full-time employees.

In 1987, the plaintiffs husband died. Thereafter, the plaintiff decided to sell the company to the defendant Michael E. Callahan. Callahan also bought the name PenTec, Inc., and started a new corporation named PenTec, Inc., the other defendant in this action. As part of the purchase and sale of the company, the plaintiff and Callahan executed an employment agreement. The agreement provided that the plaintiff was to render consulting and advisory services to PenTec, Inc., for a period commencing with the date of the agreement, June 19, 1987, through March 31, 1991. The plaintiff was to receive a salary of $82,500 from April through March 31 of each year, except that for the partial year 1987-88, the salary was to be $52,500.

The agreement also provided in relevant part: “Company shall take over and administer the pension and welfare programs in which [the plaintiff] participated while employed by her corporation, PENTEC, INC., provided that [the plaintiff] shall continue as a Trustee under such plans. [The plaintiff] shall continue to be eligible to participate in all pension, profit sharing and similar plans of Company for the benefit of its employees and executives. Any employer contributions made to these plans on behalf of [the plaintiff] shall be considered to be part of her salary referred to above. . . . [The plaintiff] shall be provided with the same level of medical benefits as previously provided by PENTEC, INC., at no cost to her. Reimbursement for or insurance premiums for medical benefits shall be in addition to the compensation referred to above.”

In addition to what she was required to do under the employment agreement, the plaintiff worked in the office of PenTec, Inc., until June, 1988. For this work, she was paid a salary of $40,000 in addition to the payments made to her under the employment agreement.

At an annual meeting of the board of directors of Pentec, Inc., on May 27,1988, the plaintiff and the defendants agreed that no contributions would be made by either PenTec, Inc., or the plaintiff to the money purchase pension plan or the profit sharing plan and trust for the year ending March 31, 1988. For the plan year ending March 31, 1989, the plaintiff elected to waive that part of her salary paid under the employment agreement in connection with both pension plans. She made no contributions to either plan for the plan year ending March 31, 1989.

In 1989, the defendants terminated the pension plans while the employment agreement was still in effect. As a result, the plaintiff could not participate in either pension plan for 1990 or 1991. The plaintiff thereafter rolled all of her assets in the pension plans into an individual retirement account (IRA).

Subsequent to the parties’ execution of the employment agreement, the defendants amended the medical reimbursement plan. First, the defendants amended the plan to place a cap on the amount PenTec, Inc., would reimburse an employee for a claim and, second, the plan was amended to limit its covered expenses. The plaintiff incurred dental and medical expenses in the amount of $19,737.51, which she submitted to the defendants. The defendants denied reimbursement, claiming that the bills were not covered by the medical plan.

The plaintiff brought the present action in three counts against the defendants by way of an amended complaint dated June 4, 1993. In the first count, the plaintiff alleged a breach of the employment agreement because the defendants failed to maintain a profit sharing and money purchase plan in which she was entitled to participate. In count two, the plaintiff also alleged a breach of the employment agreement because the defendants failed to provide the same level of medical benefits that she was entitled to prior to the sale of the company as required by the agreement. In count three, the plaintiff alleged that because of the defendants’ failure to pay medical benefits and to make or allow the plaintiff to contribute to the pension plans, the defendants violated § 31-72.

The court directed a verdict in favor of the defendants on count three. The jury returned a verdict in favor of the plaintiff on count one in the amount of $26,500 and on count two in the amount of $2670. Thereafter, the court granted the defendants’ motion for remittitur, finding that the verdict on count one was excessive and ordering the plaintiff to remit the amount of $21,220. After hearing reargument, the court reduced the order of remittitur to $17,220, and ordered that the verdict be set aside and that there be a new trial if the plaintiff failed to comply with the order of remittitur. This appeal followed.

I

The plaintiff first claims that the court improperly directed a verdict in favor of the defendants on count three. Count three alleges a cause of action pursuant to § 31-72 on the basis of the facts set forth in counts one and two. The first two counts allege a breach of an employment agreement, which the plaintiff claimed entitled her to certain pension, profit sharing and medical benefits. We conclude that the court properly directed the verdict.

“The rules controlling appellate review of a directed verdict are well settled. Directed verdicts are not generally favored. A trial court’s decision to direct a verdict can be upheld only when the jury could not reasonably and legally have reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendant by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff.” (Internal quotation marks omitted.) Phinney v. Casale, 40 Conn. App. 495, 499, 671 A.2d 851 (1996). A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict. Id.

The parties, in their briefs and at oral argument in this court, claim that the court directed a verdict on count three because it concluded that the plaintiffs pension and medical benefits did not constitute wages within the meaning of § 31-72. The defendants’ oral motion for a directed verdict was based on this same claim. Our review of the transcript reveals that when the court directed the jury to render a verdict for the defendants, the court’s only statement was that “there was insufficient evidence to find for the plaintiff on this claim.” No memorandum of decision, pursuant to Practice Book § 64-1 (a) (6), was written by the court, and we do not know its reasoning. We review the claim of the plaintiff on the premise that the reason for the court’s direction of the verdict is as stated by the parties and as requested by the defendants. See Lombardi v. J. A. Bergren Dairy Farms, Inc., 153 Conn. 19, 21, 213 A.2d 449 (1965).

Our consideration of whether the term “wages” in § 31-72 includes pension and medical benefits is guided by well established principles of statutory construction. “[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 226, 720 A.2d 235 (1998); State v. Albert, 50 Conn. App. 715, 719, 719 A.2d 1183 (1998), cert. granted on other grounds, 247 Conn. 954, 723 A.2d 810 (1999). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).” (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 52 Conn. App. 69, 78-79, 726 A.2d 604 (1999).

We begin our analysis with a review of the pertinent statutory language. Section 31-72 provides that “[w]hen any employer fails to pay an employee wages in accordance with the provisions of sections 31-71a to 31-7Ü, inclusive, or fails to compensate an employee in accordance with section 31-76k . . . such employee . . . may recover, in a civil action, twice the lull amount of such wages, with costs and such reasonable attorney’s fees as may be allowed by the court . . . .” General Statutes § 31-71a (3) defines wages as “compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis of calculation . . . .”

The appellate courts of this state have not yet considered whether the term “wages” in § 31-72 includes pension and medical benefits. Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993), however, is instructive in our analysis of this claim. In Fulco, we determined whether an amendment to § 31-72, effective on July 1, 1990, should apply retrospectively to a plaintiff who was discharged in 1989 and, if not, whether the term “wages” in § 31-72 was broad enough to include vacation pay. Id., 804-805. The court held that the trial court properly refused to apply the amendment retrospectively, reasoning that “it is significant that the legislature chose not to amend the statutory definition of ‘wages’ set forth in § 31-71a (3). Instead, it altered the text of § 31-72, which delineates the breadth of statutory liability, by authorizing double damages when an employer fails to pay an employee wages or fails to compensate an employee in accordance with [General Statutes §] 31-76k .... The use of the disjunctive ‘or’ clearly indicates that compensation in accordance with § 31-76k is distinct from wages. See State v. Dennis, 150 Conn. 245, 248, 188 A.2d 65 (1963).” (Internal quotation marks omitted.) Fulco v. Norwich Roman Catholic Diocesan Corp., supra, 804-805. Although we are not here concerned with § 31-76k, we accept Fulco’s reasoning that the legislature intended that § 31-76k and the statutory definition of wages in § 31-71a (3) concern different types of remuneration. Section 31-76k addresses payment for accrued fringe benefits upon termination of employment, including certain fringe benefits, whereas § 31-72 relates to “wages” as defined in § 31-71a (3).

After determining that the amendment should not be applied retrospectively, the court in Fulco held that vacation pay was not included in “wages.” Id., 804. In construing the plain language of the statute, we stated that “the definition of wages is limited to remuneration for labor or services rendered, and does not include vacation pay, which is compensation for loss of wages.” Id.

In another context, Luce v. United Technologies Corp., supra, 247 Conn. 126, also is instructive. The court in Luce determined that General Statutes § 31-310, a section of the Workers’ Compensation Act, which uses the term “average weekly wage,” does not include medical, dental, life insurance, pension, vacation or sick pay payments. “Wages” are not defined in the act or in § 31-310. The court concluded that the term “wages” as used in § 31-310 does not include income. Income is defined under another section of the act to include all forms of remuneration from employment, including wages and other benefits. In other words, the court determined that when the term “wages” is used, it is limited, unless otherwise defined, to periodic payment for services and does not include other forms of remuneration.

“Wages” are defined in the statutes applicable to the present case, and the definition conforms to the classic or dictionary definition. Wages are payment for services on a weekly, daily or hourly basis or by the piece. The American Heritage Dictionary (2d Ed. 1991).

“The principal canon of statutory construction is that where the statutory language is clear and unambiguous, we interpret the statute to mean what it says. Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 310, 592 A.2d 953 (1991).” (Internal quotation marks omitted.) Fulco v. Norwich Roman Catholic Diocesan Corp., supra, 27 Conn. App. 804. The statutory definition of “wages” as used in § 31-72 is limited on its face and makes no mention of fringe benefits such as pension or medical benefits. “It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated.” (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer, supra, 52 Conn. App. 79. We conclude that the plain language of §§ 31-72 and 31-71a (3) indicates that the term “wages” in § 31-72 does not include pension and medical benefits.

We see no reason to treat pension and medical benefits differently than Fulco treated vacation pay. If the legislature in enacting § 31-72 did not intend to include benefits such as vacation pay within the meaning of “wages” as used in the statute, then it would be illogical to conclude that the legislature intended that other benefits such as pension and medical benefits be included without so specifying.

This, however, does not end our inquiry. The plaintiff relies on General Statutes § 31-89a to support her claim that pension and medical benefits qualify as “wages” under § 31-72. We therefore proceed to analyze § 31-89a, mindful of the principles of statutory construction.

Section 31-89a (a) provides: “Payments to employee welfare funds, as defined in subsection (h) of section 31-53, which are past due under the terms of a written contract or rules and regulations adopted by the trustees of such funds shall be considered as wages for the purpose of section 31-72.” General Statutes § 31-53 (h) defines an employee welfare fund as “any trust fund established by one or more employers and one or more labor organizations or one or more other third parties not affiliated with the employers to provide from moneys in the fund, whether through the purchase of insurance or annuity contracts or otherwise, benefits under an employee welfare plan . . . ‘benefits under an employee welfare plan’ means one or more benefits or services under any plan established or maintained for employees or their families or dependents, or for both, including, but not limited to, medical, surgical or hospital care benefits; benefits in the event of sickness, accident, disability or death; benefits in the event of unemployment, or retirement benefits.”

The plaintiff claims that according to the plain language of § 31-89a, pension and medical benefits are considered wages for the purpose of § 31-72. She claims that there is nothing in the statute that limits its application and, therefore, it applies here. The defendants claim that § 31-89a applies only to situations involving labor organizations and collective bargaining agreements.

Section 31-53 (h), which defines an employee welfare fund as that term is used in § 31-89a, provides that an employee welfare fund is “any trust fund established by one or more employers and one or more labor organizations or one or more other third parties not affiliated with the employers . . . .” The plaintiff claims, without reference to any authority, that she constitutes “one or more third parties not affiliated with the employers.” We are not persuaded. If the legislature had intended that an employee welfare fund means a trust fund established between an employer and its employee by a contract solely between them, it could have so stated. Instead, it chose the language at issue here.

Furthermore, it appears from the legislative history surrounding the enactment of § 31-89a, that the statute was intended to apply to situations involving labor organizations. The discussion at the hearing before the Joint Standing Committee on Labor of the General Assembly is replete with references to labor organizations and collective bargaining agreements. For example, Norman Zolot, of the Connecticut State Labor Council, explained the reasons for the bill’s enactment: “In the building trades, in the bakery industry, in the trucking industry, moving, oil and others, where there are collective bargaining agreements, the agreements provide that the employer shall contribute 10 cents, either 7 cents or 10 cents per hour for each hour worked to the Trust Fund so that the Trustees of that Fund can provide health and welfare benefits or pension benefits or the like. These contributions ar e usually negotiated in lieu of a wage increase. . . . Pension fund contributions and health and welfare fund contributions, however, are not treated as wages.” Conn. Joint Standing Committee Hearings, Labor, 1961 Sess., p. 234.

R. L. Goodman, fund manager of Plumbers’ Local 76 Pension Fund, also commented on the bill, stating: “We feel that pension fund, welfare fund contributions should be treated exactly as wages. Those people who were present during the negotiations of the collective bargaining agreements which provided these fringe benefits are well aware that the fringes were accepted and the contributions in lieu of wages. The men themselves feel that these fringe benefits are theirs in the form of wages and we feel that anything that treats them other than wages is an injustice.” Conn. Joint Standing Committee Hearings, supra, p. 240.

Section 31-89a applies to “employee welfare funds” and is included in chapter 559 of the General Statutes, which is titled, “Labor Organizations.” While an employee welfare fund is a trust fund established to provide benefits under an employee welfare plan, and such benefits include pension and medical benefits, such funds are clearly limited to those established between an employer and a labor organization or other third party not affiliated with the employer. An employee is usually represented by a labor organization. Even if the employee is not represented by a labor organization, as is true here, it is not logical to treat the employee as being a third party “not affiliated with the [employer] . . . .” (Emphasis added.) General Statutes § 31-53 (h). “Affiliated” is a word that implies an association in a subordinate position. The employee here is affiliated with the employer.

“There is no question that the legislature may, by the language it uses in a statute or a section of a statute, demonstrate its intent that it be limited or restricted.” Taravella v. Stanley, 52 Conn. App. 431, 440, 727 A.2d 727 (1999). The fact that the legislature, instead of simply amending the definition of wages under § 31-72 to include pension and medical benefits, enacted § 31-89a in connection with other statutes involving labor organizations and limited its application to “employee welfare funds” connotes a legislative intent that pension and medical benefits qualify as wages under § 31-72 in limited circumstances only.

Section 31-89a applies to payments to employee welfare funds as they are defined in § 31-53 (h) and, if they are such payments, they shall be considered as wages for purposes of § 31-72. Because we do not believe that the plaintiffs private contractual agreement with her employer constitutes “an employee welfare fund” for purposes of § 31-89a, that statute is inapplicable to the present case.

In light of the legislative history surrounding the enactment of § 31-89a, its placement in the chapter titled, “Labor Organizations,” and because of the limiting language in the statute defining an employee welfare fund, we are not convinced that the legislature intended that all pension and medical benefits constitute “wages” for purposes of § 31-72. We hold that the plaintiffs pension and medical benefits do not qualify as “wages” pursuant to § 31-72 and, therefore, the court properly directed a verdict for the defendants on this claim.

II

The plaintiff claims next that the court improperly ordered a remittitur in the amount of $17,220. We do not agree.

The following additional facts are necessary to our resolution of this claim. The plaintiff testified that her claim for damages in count one arose because of her inability to participate in the money purchase pension plan and the profit sharing plan for the plan year’s 1989-90 and 1990-91. Specifically, she testified that if the plans had not been terminated, she would have been able to contribute up to 25 percent of her salary under the employment agreement for a maximum possible contribution of $16,500 for each year or $33,000 total. The $33,000 that should have been contributed to her plans for those two years would have been rolled over into her IRA, and she would have had tax free growth on it until she retired. She further testified that by receiving the money as direct compensation rather than making a pension contribution in that amount, she had to pay $2640 in federal income taxes in each of the two plan years for a total of $5280. Finally, the plaintiff testified that for the plan year 1987-88, she received a salary of $40,000 for her work for the defendants in addition to the salary provided for in the employment agreement, and that the defendants failed to make a 10 percent mandatory contribution to the money purchase pension plan on the basis of that $40,000. The plaintiff did not testify as to the amount that she would have received in interest if the $33,000 had actually been contributed to the pension plan.

The jury returned a verdict in favor of the plaintiff on count one of the complaint in the amount of $26,500, representing damages for the defendants’ wrongful termination of the pension plans. Thereafter, the defendants filed a motion for remittitur, claiming that the verdict on count one was excessive as a matter of law. The court agreed that the verdict was excessive and ordered a remittitur of $21,220. In its memorandum of decision, the court stated that “[i]n this case, the only damages which the jury could have found is the sum of $5280 in payment of federal taxes resulting from the defendants’ breach of the agreement. The plaintiffs claim that the money she could have invested had the plans not been terminated would have reaped additional profits, was speculative, insufficient and not substantiated.”

After reargument, the court reduced the order of remittitur to $17,220. The court found that in addition to the $5280 damages for payment of federal taxes, the jury reasonably could have awarded the plaintiff the sum of $4000, representing the amount equal to 10 percent of the plaintiffs $40,000 salary that the defendants were obligated to contribute to the money purchase pension plan in 1988. The court, however, reaffirmed its conclusion that the jury award was excessive, stating that “there was no credible evidence of damages resulting from the defendants’ failure to fund the pension and profit sharing plans on the theory that had the plans not been terminated, the plaintiff would have reaped additional profits.” Because of the absence of such evidence, the court concluded that the amount of $26,500 was excessive.

“When a verdict is excessive as a matter of law, the amount of the remittitur, which the statutes, General Statutes §§ 52-216a and 52-228b, require to be ordered before a new trial may be had, rests largely within the discretion of the trial court. ‘Its action is entitled to full support unless it abused its discretion.’ Allen v. Giuliano, 144 Conn. 573, 578, 135 A.2d 904 (1957). ‘In determining whether the trial court abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.’ Brooks v. Singer, 147 Conn. 719, 720, 158 A.2d 745 (1960).” Alfano v. Insurance Center of Torrington, 203 Conn. 607, 614, 525 A.2d 1338 (1987); Preston v. Phelps Dodge Copper Products Co., 35 Conn. App. 850, 864, 647 A.2d 364 (1994). “[A] jury’s determination of damages should be set aside only when the verdict is clearly exorbitant and excessive; Wochek v. Foley, [193 Conn. 582, 586, 477 A.2d 1015 (1984)]; or the size of the verdict is so shocking to a sense of justice that it leads us to the conclusion that the jury was influenced by prejudice, partiality, mistake or corruption.” Sciola v. Shernow, 22 Conn. App. 351, 357, 577 A.2d 1081, cert. denied, 216 Conn. 815, 580 A.2d 60 (1990).

The crux of the plaintiffs claim is that the court improperly determined that her claim for damages was speculative and unsubstantiated. She claims that she presented sufficient evidence to show that there would have been growth on the $33,000 that should have been contributed to the plans.

After a thorough review of the transcripts and exhibits, we conclude that the plaintiff presented no proof as to the amount of return the $33,000 would have produced had the plaintiff been able to contribute it to the plans and subsequently roll it into her IRA. A review of the transcripts shows that on two occasions when the plaintiff attempted to introduce testimony as to how much the $33,000 would have increased in her IRA account along with the rolled over funds, the court sustained defense counsel’s objections to this testimony on grounds that it was speculative. The plaintiff did not object to the rulings. Thus, there is nothing in the record to substantiate the plaintiffs claim. On the basis of this record, we conclude that the court correctly determined that the damages were excessive as a matter of law and ordered the remittitur.

Ill

The plaintiffs final claim is that the court improperly instructed the jury as to her claim for medical benefits. We disagree.

The plaintiffs complaint alleged in count two that the defendants agreed to provide the plaintiff with the same level of medical benefits as were provided to her prior to the execution of her agreement with the defendants, and that prior to that agreement she had comprehensive, full coverage for all maladies, illnesses and injuries without exception. The plaintiff claims that medical and dental bills of $19,737.51 should have been paid by the defendants. The jury awarded the plaintiff $2670, which she claims is the result of a confusing charge to the jury that led to a reduced verdict.

The plaintiff sought payment of $6825 for dental bills that included fillings, bonding, prophylaxis, X rays, two crowns and removal of impacted wisdom teeth. She also sought payment of $12,912.51 for a mammography, breast reduction surgery, removal of a mole from one of her breasts and a biopsy following the surgery. The total amount claimed was $19,737.51.

The agreement of the parties states that the “[the plaintiff] shall be provided with the same level of medical benefits as previously provided by PENTEC, INC., at no cost to her. Reimbursement for or insurance premiums for medical benefits shall be in addition to the compensation” provided by the agreement. At the time the agreement was signed, PenTec, Inc., had a medical reimbursement plan dating from 1982, allowing the corporation the option to change the benefits covered by the plan. In 1983, the plan was amended to provide a $500 cap on reimbursements. In 1986, the plan was amended so that there was no limitation on the maximum amount of reimbursable benefits for that year, but reserving the right to the board of directors to further amend the plan. The resolution containing this amendment was signed by the plaintiff as secretary. Effective April 1, 1989, the plan was again amended to provide for a maximum reimbursement for medical expenses of $5000. On June 15, 1990, another amendment excluded orthodontic expenses, root canals and cosmetic, experimental or other nonrequired medical expenses. The medical insurance provided for by PenTec, Inc., as of 1997 excepted reconstructive cosmetic surgery. The defendants’ special defense was that the medical reimbursement plan, as of the time the plaintiff incurred the expenses, had been properly amended and that the plaintiff had been paid for the claims to which she was entitled.

The plaintiff, as secretary of the former and the new PenTec, Inc., both before and after signing the agreement with the defendants, signed two of the minutes of special meetings of the board of directors that made clear that both the new and the former PenTec, Inc., retained “the option to change the amount of benefits payable each year to participants and the benefits covered by the Plan.”

The interpretation of the employment agreement, including whether the subsequent amendments to the plan were intended to be incorporated by reference into the plan is a question of law. When the intent of the parties can be determined within the four comers of a contract, a question of law arises. Amodio v. Amodio, 56 Conn. App. 459, 470, 743 A.2d 1135 (2000); see also Issler v. Issler, 250 Conn. 226, 235, 737 A.2d 383 (1999). “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Issler v. Issler, supra, 235, quoting Pesino v. Atlantic Bank of New York, 244 Conn. 85, 91, 709 A.2d 540 (1998).

“Generally, incorporation by reference of existing documents produces a single contract which includes the contents of the incorporated papers.” Randolph Construction Co. v. Kings East Corp., 165 Conn. 269, 275, 334 A.2d 464 (1973). When parties execute a contract that clearly refers to another document, there is an intent to make the terms and conditions of the other document a part of their agreement, as long as both parties are aware of the terms and conditions of the second document. Id., 275-76.

The agreement clearly incorporates the medical plans that were in existence prior to the date of the agreement. Those plans all provided that the corporation could amend the medical reimbursement plan. We conclude that the plaintiffs benefits were governed by the provisions of the plan as amended and in existence at the time she incurred the bills for cosmetic surgery and dental work. The proper questions for the jury, therefore, were whether the plaintiff followed the proper procedure for submission of the bills and what bills should be paid in accordance with the plan in effect at the time.

The court charged the jury, allowing it to determine whether the right to amend the plan was part of the agreement. We have concluded that as a matter of law, the right to amend was part of the agreement and that the jury should not have decided the issue.

Although the jury should not have decided the issue, its verdict accords with our conclusion, namely, that the plaintiffs agreement entitled her to the benefits as provided in the amended plan at the time the medical and dental services were rendered, rather than the benefits in the plan in existence at the time the agreement was signed.* **** The jury determined that the plaintiff should receive reimbursement in the amount of $2670, and there was evidence to support a verdict in that amount.

Although the charge was not as clear as it could have been, it allowed the jury to find that the defendants did fail to pay medical bills. The possibility of confusion arises, the plaintiff claims, because the charge stated that “if you find that the defendants have proven by a preponderance of the evidence that . . . the dental bills were not for routine dental work or that the plaintiffs breast reduction surgery was cosmetic, then you should find for the defendants on this issue.” The charge preceding the quoted statement allowed the jury to first find whether the defendants had failed to pay appropriate medical bills. The quoted words could be construed to come into play only if the jury found that the defendants need not pay some of the bills, namely, those for nonroutine dental work and cosmetic surgery. The jury, by awarding the plaintiff reimbursement for the bills exclusive of nonroutine dental work and exclusive of cosmetic surgery, did not find for the defendants on this issue, as feared by the plaintiff.

A charge to a jury must be considered in its entirety, and the test is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under established rules of law. Blanchette v. Barrett, 229 Conn. 256, 280, 640 A.2d 74 (1994). We find no injustice here when the charge is read as a whole.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the order of remittitur presented the plaintiff with alternatives. “The plaintiff is not compelled to remit the sum suggested by the trial court, but may elect either to submit to a new trial, or to seek, by an appeal to this court ... to have the order of new trial reversed and judgment rendered for the full amount of the verdict.” (Internal quotation marks omitted.) Doroszka v. Lavine, 111 Conn. 575, 579, 150 A. 692 (1930); see Civiello v. Owens-Corning Fiberglass Corp., 208 Conn. 82, 85-86, 544 A.2d 158 (1988); General Statutes § 52-228a. Thus, the order is a final judgment for purposes of appeal.

       The same factual occurrence can give rise to both a violation of statutory rights and contractual rights. Shortt v. New Milford Police Dept., 212 Conn. 294, 307, 562 A.2d 7 (1989).

       General Statutes § 31-76k provides: “If an employer policy or collective bargaining agreement provides for the payment of accrued fringe benefits upon termination, including but not limited to paid vacations, holidays, sick days and earned leave, and an employee is terminated without having received such accrued fringe benefits, such employee shall be compensated for such accrued fringe benefits exclusive of normal pension benefits in the form of wages in accordance with such agreement or policy but in no case less than the earned average rate for the accrual period pursuant to sections 31-71a to 31-711, inclusive.”
      The plaintiff does not claim that the defendants failed to compensate her in accordance with § 31-76k, and she specifically disclaimed any reliance on this section in her argument to the trial court in which she objected to the direction of a verdict on count three.

       Practice Book § 10-3 (a) provides that when any claim made in a complaint is grounded on a statute, the statute shall be specifically identified by its number. The plaintiffs complaint identifies § 31-72 as her source for relief. Section 31-89a, however, specifically refers to § 31-72, and the defendants were aware of the plaintiffs reliance on § 31-89a.

       The court's charge was as follows: “With respect to the medical reimbursement plan, the plaintiff claims that she is entitled to payment of all claims for medical expenses without exception under the plan in existence prior to the employment agreement. This, she contends, includes all dental work and her breast reduction surgery. As to this allegation, the defendants have filed a pleading called a special defense. A special defense is a pleading that alleges facts that show that a plaintiff has no cause of ad ion. In regard to special defenses, the [defendants bear] the burden of proof. They have the burden of proving every essential element of their special [defense] by a preponderance of the evidence. In this case, the defendants contend pursuant to the special defense that the medical plan was properly amended to exclude all but routine medical and dental work and all cosmetic surgery, claiming, therefore, that the plaintiff has been paid all claims to which she was entitled. It is for you to determine whether the intention of the parties was that the right to amend the medical reimbursement plan was included as a part of the employment agreement. The defendants have the burden of proving the allegations of their special defense. Therefore, if you find that the defendants have proven by a preponderance of the evidence that they did not wrongfully amend the medical plan, that is, that the dental bills were not—excuse me. Let me back up. Therefore, if you find that the defendants have proven by a preponderance of the evidence that they did not fail to pay the plaintiffs medical bills under the medical reimbursement plan or that the dental bills were not for routine work or that the plaintiffs breast reduction surgery was cosmetic, then you should find for the defendants on this issue.
      “Let me read that again, if I can. Therefore, if you find that the defendants have proven by a preponderance of the evidence that they did not fail to pay proper claims of the plaintiff under the medical reimbursement plan— of the plaintiff under the medical reimbursement plan or that the dental bills were not for routine dental work or that the plaintiffs breast reduction surgery was cosmetic, then you should find for the defendants on this issue.”

       There was evidence from which the jury could conclude that the plaintiff followed the proper procedure for submission of all of the bills and that the plaintiff used the same procedure for submitting all of the bills. If the jury had concluded that the plaintiff had not followed the proper procedure for submission of the bills, it would not have awarded her any reimbursement, and if it had concluded that her benefits entitled her to the reimbursement allowed by the plan in existence at the time she signed the agreement, it would have awarded her payment in full.

       It is unclear from the transcript whether the plaintiff excepted to the charge as given. It is clear, however, that the portion of the charge claimed to be misleading was reread to counsel at the request of the defendants’ counsel, not the plaintiffs counsel.


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    IN RE SARAH ANN K.

    (AC 19371)
    Spear, Vertefenille and Stoughton, Js.
    Argued October 26, 1999
    officially released April 25, 2000

      Michael R. Hasse, with whom, on the brief, was Richard Hustad Miller, for the appellant (respondent father).

      Carmel A. Motherway, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

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

   Opinion

STOUGHTON, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor daughter. On appeal, the respondent claims that the court improperly (1) interpreted and applied General Statutes § 17a-112 (c) (3) (B), (2) found that he had failed to achieve sufficient personal rehabilitation within the meaning of § 17a-112 (c) (3) (B) and (3) found that there was sufficient evidence to find that he had abandoned his minor child. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. On November 6, 1994, the child was bom. Soon thereafter, the unmarried mother, after being interviewed by a department of children and families (department) caseworker, agreed with the caseworker that she was unable to care for the child and placed her in foster care. At that time, the respondent was incarcerated.

As a result of a petition brought by the commissioner of children and families (commissioner) on September 21, 1995, the child was adjudicated neglected and uncared for, and committed to the custody of the commissioner. On February 13,1996, the commissioner filed a petition to terminate both parents’ parental rights. After a trial, the court on January 28, 1997, found that there was clear and convincing evidence to terminate the parental rights of the mother on the ground that she had failed to achieve sufficient personal rehabilitation, but made no determination as to the respondent. The court entered an adjudication but reserved disposition of the mother’s case. The court also declined to terminate the respondent’s parental rights because the department had not made reasonable efforts to help reunify him with his child. It then dismissed, without prejudice, the petition as to the respondent and continued the dispositional issues as to the mother. As preliminary expectations, the court ordered the respondent to pay $45 per week as nominal child support toward foster care maintenance payments and to maintain medical insurance for the child if it was available through his employment. Furthermore, the court directed the parties to establish specific expectations for the respondent within thirty days of the decision.

On June 26, 1998, the commissioner filed a second termination petition as to both parents, alleging abandonment and failure to achieve rehabilitation. On January 28, 1999, the court found by clear and convincing evidence that the child had previously been adjudicated neglected and uncared for and, citing General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B), that the parents had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, the parents could assume responsible positions in the life of the child. The court determined that terminating the parental rights of both the mother and the respondent was in the best interest of the child. Subsequently, the respondent filed this appeal. Additional facts will be discussed where relevant to the issues in this case.

I

The respondent claims that the court interpreted and applied § 17a-112 (c) (3) (B), as amended by § 8 of Public Acts 1998, No. 98-241 (P.A. 98-241). Specifically, he claims that the court improperly terminated his parental rights because the evidence did not show that he had actually been provided with specific steps to take to facilitate the return of the child. We disagree.

In 1998, the legislature amended § 17a-112 (c) (3) (B) in P.A. 98-241, § 8. 6The amendment became effective on July 1, 1998. P.A. 98-241, § 18. The record in this case reveals that the commissioner filed the termination petition on June 26, 1998, before the amendment went into effect. Although the trial in this case was conducted on July 8, 1998, after the effective date of the amendment, the operative date for determining which statutory revision governs this case is June 26,1998, the date the petition was filed. See In re Migdalia M., 6 Conn. App. 194, 200, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986); see also In re Eden F., 250 Conn. 674, 687 n.6, 741 A.2d 873 (1999). Therefore, at the time the petition was filed, the statute in effect was General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B).

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: “The Superior Court . . . may grant a [termination] petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that over an extended period of time, which . . . shall not he less than one year . . . [inter alia] (B) the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” (Emphasis added.) Specific steps the parent may take to facilitate the return of the child were required to have been provided to the respondent in the prior neglect proceeding pursuant to General Statutes (Rev. to 1997) § 46b-129 (b). See In re Shyliesh H., 56 Conn. App. 167, 179, 743 A.2d 165 (1999). That statute, however, does not require that the parent again be provided specific steps to take to facilitate the return of the child before a termination petition may be granted.

On appeal, the respondent claims that he was not actually provided with the expectations that the court required the department to set within thirty days of the first termination proceeding. We disagree.

“Our analysis begins with the appropriate standard of review. We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made. . . . Simply put, we give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Citations omitted; internal quotation marks omitted.) Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 345-46, 736 A.2d 824 (1999).

On September 21, 1995, the court adjudicated the child neglected and uncared for. Thereafter, in the first termination proceeding, in January, 1997, the court determined that the respondent’s parental rights should not be terminated because the department had not made reasonable efforts to reunify him with his child. To remedy the situation, the court set forth preliminary orders and then directed the parties to establish specific expectations for the respondent within thirty days. The court found that the department drafted the proposed expectations within thirty days, yet on two separate occasions the respondent failed to appear in court to receive them.

In light of the respondent’s failure to attend two separate proceedings aimed at setting forth expectations, the court found that his claim that the court never provided him with specific steps was “rather disingenuous.” Moreover, his claim is inaccurate. In March, 1997, a department social worker mailed a copy of the proposed expectations to the respondent, and on November 13, 1997, he signed the copy. Therefore, the trial court’s factual findings that the department prepared expectations within thirty days and that the respondent signed them were not clearly erroneous.

II

The respondent’s second claim is that even if the court did provide him with specific steps to take to bring about reunification with the child, pursuant to § 17a-112 (c) (3) (B), it improperly found by clear and convincing evidence that he had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time he could assume a responsible position with respect to the care of his child. We disagree with the respondent’s contention.

“On appeal, we review a trial court’s finding that a parent has failed to rehabilitate [himself] in accordance with the rules that apply generally to a trier’s finding of fact. We will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [0]n review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) In re Eden F., supra, 250 Conn. 705-706. The function of this court on appeal is to determine whether the conclusions of the trial court were legally correct and factually supported. In re Roshawn R., 51 Conn. App. 44, 51, 720 A.2d 1112 (1998).

In regard to the failure to achieve personal rehabilitation, General Statutes (Rev. to 1997) § 17a-112 (c) (3) (B) provides for the termination of parental rights when “the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child’s life.” (Citations omitted; internal quotation marks omitted.) In re Eden F., supra, 250 Conn. 706. “This court recently explained that in assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Shyliesh H., supra, 56 Conn. App. 180.

The inquiry for the trial court was whether the respondent achieved “such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” General Statutes (Rev. to 1997) § 17a-112 (c). This inquiry required the court to obtain a historical perspective of the respondent’s child caring and parenting abilities. See In re Galen F., 54 Conn. App. 590, 594, 737 A.2d 499 (1999).

There was little or no evidence to suggest that the respondent had ever played a constructive and useful role as a parent. The court found that the respondent had a long history of criminal activity dating back to 1977. He was arrested ten times between 1988 and 1997. In June, 1994, the respondent was given a three year sentence for possession of narcotics and ultimately was released in August, 1996. He also was arrested in June, 1997, for assault, and again in July, 1997, for possession of narcotics and tampering with evidence. The July, 1997 arrest resulted in a one year sentence in May, 1998. This last arrest and sentence occurred after it had been suggested to the respondent that avoiding the criminal justice system might be a required expectation.

The court further found that during his incarceration and during the time he was not incarcerated, the respondent had few visits with his daughter. The respondent claimed that he had his daughter’s best interests in mind by not allowing her to visit him in prison. His reason was that he did not want to expose her to the “trauma” of prison life. He, however, had no explanation for his lack of visits when he was out of prison. He was released from prison in August, 1996, and then was incarcerated again in May, 1998. After the court’s decision to dismiss the prior termination petition on January 28, 1997, the respondent visited his daughter only eight times, the last being in April, 1998, immediately before he was sent back to prison. The court found that he demonstrated no bond with the child. Furthermore, when they did see each other, he and the child had little interaction.

Moreover, the February 13,1996 petition for termination resulted in the court’s ordering the parties to set forth expectations for the respondent within thirty days. Testimony during the hearing on the second petition indicated that the department had made efforts to draft proposed expectations in a timely manner, but that on two occasions the respondent failed to appear in court to receive them. Following the respondent’s failure to appear on March 21, 1997, and again on February 24, 1998, the trial court found, in two extension of commitment hearings, that continuing efforts to reunify the respondent with his child were not appropriate. In its memorandum of decision, the present termination court noted that the likely reasoning for finding continuing efforts to be inappropriate was the respondent’s failure to appear at the hearings that were scheduled to develop a plan of expectations to assist in reunification of the respondent with his daughter. The termination court further stated in its memorandum of decision that the prior courts had found continuing efforts to be inappropriate because the respondent had failed to act with the devotion and dedication of a parent genuinely interested in reunification.

Testimony at the trial from Martha Barnes, an outpatient counselor, revealed that she evaluated the respondent on January 28, 1998. Although during her evaluation the respondent denied having any problem with alcohol or substance abuse, she concluded that he continued to have an alcohol problem that he was unwilling to treat. Furthermore, testimony at trial by Mary Dunion, a caseworker for the department, revealed that the respondent expressed to her at a January 26,1999 meeting that he was not attending Alcoholics Anonymous meetings, Narcotics Anonymous meetings or individual counseling, as required under the court’s expectations, because he claimed he did not need to do so. Dunion further testified that the child was fully attached to the foster family that she had been with since birth and that this family would adopt her if possible.

At the healing on the June, 1998 termination petition, Richard Sadler, a psychiatrist, testified that in January and October, 1996, he evaluated the respondent and concluded that there was no hope that he would be able to develop an ability to minimally and adequately care for the child. In October, 1998, Sadler wrote that the child’s best interest would be served by a termination of parental rights. As further evidence that the respondent had not achieved rehabilitation and lacks responsibility, Sadler stated that the respondent failed to appear for another evaluation in December, 1998.

We cannot say that the court was clearly erroneous in concluding that there was clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time he could assume a responsible position in the life of his child.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court also terminated the mother’s parental rights; she, however, has not appealed. We refer in this opinion to the father as the respondent.

       We do not address the third claim because, as the respondent conceded at oral argument, the court never made a finding that the child had been abandoned.

       The court found that this ground had existed for more than one year and went on to make the dispositional findings required by General Statutes (Rev. to 1997) § 17a-112 (e).

       The respondent asserts that he never actually was provided with specific steps to take and that the court, therefore, lacked jurisdiction to entertain the petition.

       Public Acts 1998, No. 98-241, § 8 (amendments are shown by capital letters) provides in relevant part: “(c) The Superior Court . . . may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, OR (2) IS FOUND TO BE NEGLECTED OR UNCARED FOR AND HAS BEEN IN THE CUSTODY OF THE COMMISSIONER FOR AT LEAST FIFTEEN MONTHS AND SUCH PARENT HAS BEEN PROVIDED SPECIFIC STEPS TO TAKE TO FACILITATE THE RETURN OF THE CHILD TO THE PARENT PURSUANT TO SECTION 46b-129, AS AMENDED BY THIS ACT, AND has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       Clearly, the trial court applied the 1997 revision of § 17a-112 (c) (3) (B) because it found that the ground for termination existed for more than one year, and the one year provision is not a requirement of the current revision of the statute.

       The court ordered the respondent to make support payments and to provide medical insurance, if available, through his employment.

       On February 25, 1997, and on March 11, 1997, the department was prepared to present the respondent with specific expectations in an attempt to reunify him with his daughter; the respondent, however, faded to appear in court both times.

       The expectations proposed by the department and signed by the respondent and his attorney were that he (1) keep all appointments set by or with the department and keep his whereabouts known to the department or his attorney, (2) visit the child as often as the department permits, (3) participate in parenting and individual counseling and drug and alcohol counseling as recommended, (4) secure and maintain adequate housing and income, (5) no substance abuse, (6) no involvement with the criminal justice system and (7) pay child support as ordered or modified by a court of competent jurisdiction and maintain medical insurance for the child’s benefit if it is available through his employer.

       His complete record shows charges that include assault, larceny and possession of controlled substances.

       Barnes testified that the respondent had been drinking the night before the evaluation.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. MICHAEL CRAMER
    (AC 18443)
    SchaHer, Hennessy and Dupont, Js.
    Argued December 16, 1999
    officially released April 25, 2000

      Hubert J. Santos, with whom were Patrick S. Bristol and, on the brief, Hope C. Seeley, for the appellant (defendant).

      Carolyn K. Longstretk, senior assistant state’s attorney, with whom were Kimberley N. Perrelli, assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Michael Cramer, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in violation of General Statutes § 53-21 and making a false statement in the second degree in violation of General Statutes § 53a-157b. On appeal, the defendant claims that the trial court (1) made improper evidentiary rulings concerning hearsay and the foundation for a piece of evidence, (2) improperly instructed the jury and (3) improperly sentenced him. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In May or June, 1996, the fourteen year old victim and a friend were at a restaurant where they encountered the defendant and a friend of the defendant. The defendant had been the victim’s boyfriend for about two weeks. The defendant said he was staying at a motel and wanted to get something from his room. The four then proceeded to the motel, where, after a few minutes, the defendant and the victim went into the bathroom and, according to the victim, had nonconsensual sex. Neither of the friends heard any noise in the bathroom except one loud thump on the wall of the bathroom. Other facts will be discussed where relevant to the issues in this case.

I

The defendant claims first that the court made improper evidentiary rulings. He claims that the court (1) improperly allowed the statement of the victim’s friend into evidence, (2) abused its discretion by allowing the victim’s mother to testify as to a statement made by the victim and (3) improperly allowed the jury to inspect the contents of a bag the state offered into evidence.

“Our standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there is an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Cole, 50 Conn. App. 312, 330-31, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998). It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.’ . . . Wright v. Hutt, 50 Conn. App. 439, 445, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998).” (Internal quotation marks omitted.) State v. Orhan, 52 Conn. App. 231, 237-38, 726 A.2d 629 (1999).

A

The defendant’s first evidentiary claim is that the court improperly allowed the written statement of the victim’s friend into evidence for substantive use under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), because the declarant lacked personal knowledge of the facts contained in the statement. We disagree.

The following additional facts are necessary to our resolution of this claim. The victim’s Mend gave a written statement to the police in which she stated that shortly after leaving the motel on the night of the incident, the victim said that she had been raped. During the trial, the friend was called as a witness by the state and testified that the victim told her that she had been raped “but she did not mind.” The state then introduced into evidence the written statement as a prior inconsistent statement because it did not contain any mention of the victim saying that she did not mind having been raped.

The defendant claims that this statement was admitted as a Whelan statement and that its admission was improper because the declarant lacked personal knowledge of the facts relayed in the statement. The state responds that this claim should be rejected because the statement was admitted only for impeachment purposes. Prior inconsistent statements may be introduced either to impeach a witness; State v. Otto, 50 Conn. App. 1, 8, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998); or for substantive use where the statement is in writing, the witness is subject to cross-examination and has personal knowledge of the facts stated. State v. Whelan, supra, 200 Conn. 743. “Absent a limiting instruction, evidence presented at trial is taken for its truth.” State v. Correia, 33 Conn. App. 457, 462, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208, cert. denied, 513 U.S. 898, 115 S. Ct. 253, 130 L. Ed. 2d 174 (1994).

A review of the record reveals that there is no indication that the written statement was admitted for substantive purposes. The prosecutor offered the statement only as an inconsistent statement to impeach the testimony of the witness, and the court stated that all prior out-of-court statements made by the victim were to be considered only in determining the credibility of the victim. In addition, the court instructed the jury that the out-of-court statement was not to be considered to prove the truth of the matter asserted in the statement.

The defendant argues that the court never instructed the jury that the statement of the victim’s friend had been admitted for impeachment purposes only. The defendant cites State v. Correia, supra, 33 Conn. App. 462, for the proposition that without such an instruction, the jury was free to accept the statement as substantive evidence. In Correia, the victim’s prior inconsistent statement was heard by the jury, and the court gave absolutely no limiting instruction on its use. Id. We concluded, therefore, that “[a]bsent a limiting instruction, evidence presented at trial is taken for its truth.” Id. In the present case, however, the court did give a limiting instruction to the jury on the statement, namely, that the statement was to be considered only to gauge the credibility of the victim and not for the truth of the matter asserted. Although the court did not give a specific instruction that the statement was to be used only to impeach the testimony of the victim’s friend, the court did give a limiting instruction on the use of all the victim’s prior statements, and the defendant can point to no evidence that the friend’s written statement was admitted for the truth of the matter it asserted. Accordingly, we conclude that the court did not abuse its discretion in admitting into evidence the prior inconsistent statement of the victim’s friend.

Moreover, the difference between the testimony that the victim “did not mind” the rape and the prior statement, which contained no comment to that effect, went to the issue of force. Because the defendant was acquitted of the charge of sexual assault in the first degree, the issue of force was resolved in his favor, and he cannot claim that he was harmed by the admission of the prior inconsistent statement.

B

The defendant’s next evidentiary claim is that the court abused its discretion by allowing the victim’s mother to testify as to a statement made by the victim. We disagree.

The victim’s mother testified that she had seen a change in her daughter’s personality in the months following the incident in the motel. When asked to describe the change, the mother stated that she noticed that “[the victim] was having nightmares at night. Her room was right next to my bedroom at that time, and I noticed she would, in the middle of the night, say, ‘No. Stop it.’ I would go in there to see what was wrong with her and she would be mumbling.” The defendant claims that the victim’s statement of, “No. Stop it,” is hearsay and does not fall within any of the recognized exceptions for the introduction of hearsay evidence.

“Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement. . . . State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967), and Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). A statement may or may not be hearsay, depending upon the purpose for which it is offered. When declarations are offered . . . for the purpose of showing that such statements were made and not that what was declared was true, they do not come within the rule. . . . McDermott v. McDermott, 97 Conn. 31, 37-38, 115 A. 638 (1921); Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905).” (Internal quotation marks omitted.) State v. Williams, 48 Conn. App. 361, 367, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998).

In this case, the statement was offered to show that the victim was having nightmares. It was not offered to prove that the defendant raped the victim. The defendant claims that the inference to be drawn from this statement was that the victim was having nightmares about her assault and was begging the defendant not to engage in sexual intercourse with her. We conclude, however, that the context in which the statement was presented indicates that the statement was not offered for its truth, but rather to show that the victim was having nightmares and mumbling in her sleep. Accordingly, we conclude that the court did not abuse its discretion in allowing the victim’s mother to testify as to the nightmares the victim was having.

C

The defendant’s final evidentiary claim is that the court improperly allowed the jury to inspect the contents of a brown bag that the state offered into evidence. We disagree.

The state presented the testimony of Detective Walter Peidl, who testified that during the investigation of this case, the victim provided him with the boxer shorts that she had worn, which had been tom during the incident. Peidl brought the boxer shorts with him to court in a brown bag. The boxer shorts were never taken out of the bag and shown to the jury. After voir dire of Peidl by the defendant’s counsel, the court admitted the bag into evidence. The jury looked at the contents of the bag during deliberations. The defendant contends on appeal that the court improperly allowed the jury to inspect the boxer shorts because it was the bag itself that was admitted into evidence and not the boxer shorts.

The defendant correctly asserts that “[c]onsideration [by the jury] of extrinsic evidence is presumptively prejudicial because it implicates the defendant’s constitutional right to a fair trial before an impartial jury.” (Internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 523, 688 A.2d 1288 (1995). We do not conclude, however, that the jury in the present case viewed extrinsic evidence. It is clear from the record that Piedl’s testimony established that the boxer shorts were given to him by the victim during the investigation of this case, that he placed them in the bag, stapled it closed, labeled the bag and locked it in his evidence locker. Once the state attempted to offer what Piedl had brought with him to court, the defendant’s counsel conducted a voir dire of Piedl to inquire as to the condition of the “item” between June and October, 1996. The defendant’s counsel then stated that he had no objection to the admission of the “item” as a full exhibit. It is clear from the parties’ and the court’s references to the exhibit that it was understood that the state was offering the boxer shorts rather than the bag alone. It was not until a court clerk raised the issue of whether the boxer shorts were in evidence that the defendant’s counsel first raised the objection that the bag was in evidence, but the boxer shorts were not.

A trial court must decide under a test of reasonable probability whether the identification and nature of the contents of an item is sufficient to warrant the item’s reception in evidence. State v. Brown, 163 Conn. 52, 57, 301 A.2d 547 (1972). In the present case, there was no showing that the bag containing the boxer shorts had been tampered with or that there was insufficient proof as to the contents of the bag so as to warrant the defendant’s claim that he was denied a fair trial on the ground that the juxy viewed an item that was not in evidence. Accordingly, we conclude that the court did not abuse its discretion in allowing the jury to view the boxer shorts.

II

The defendant claims next that the court failed to instruct the jury properly. The defendant claims that the court (1) failed to instruct the jury that the verdict regarding making a false statement in violation of § 53a-157b must be unanimous and (2) diluted the state’s burden of proof by instructing the jury improperly on the definition of reasonable doubt.

“ ‘When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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. ... 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.’ . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).” State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

A

The defendant claims that the court failed to instruct the jury that the verdict regarding the violation of § 53a-157b must be unanimous. The defendant failed to preserve this claim and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), claiming that he was deprived of a fair trial.

“In recent years, our Supreme Court has delineated a test for determining the necessity of a unanimity charge. State v. Reddick, 224 Conn. 445, 453-54, 619 A.2d 453 (1993); State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991); State v. Anderson, 211 Conn. 18, 35, 557 A.2d 917 (1989). ‘We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter.’ ” State v. Nixon, 32 Conn. App. 224, 244, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995), quoting State v. Famiglietti, supra, 619-20.

“[T]he absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test.” State v. Reddick, supra, 224 Conn. 454. Our review of the record fails to reveal a jury instruction that expressly sanctioned a nonunanimous verdict. The court, to the contrary, provided specific unanimity instructions with the other charges against the defendant and also provided a general unanimity instruction to the jurors during their deliberations.

“Having determined that the court never expressly sanctioned a nommanimous verdict, our analysis of the defendant’s claim does not proceed further. . . . We conclude that the trial court’s instructions were not fundamentally unfair to the defendant and that the defendant accordingly cannot prevail under the bypass of State v. Golding, supra [213 Conn. 239-40].” State v. Nixon, supra, 32 Conn. App. 245. Further analysis of this claim is not warranted.

B

The defendant claims that the court improperly instructed the jury that a reasonable doubt is a “real doubt, honest doubt.” The defendant failed to preserve his claim and, in his brief, seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40. Our resolution of this claim is governed by State v. Hines, 243 Conn. 796, 818, 709 A.2d 522 (1998), and State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997), in which our Supreme Court held that an instruction containing virtually identical language was not constitutional in nature and, therefore, not reviewable under Golding. Accordingly, we decline to review the defendant’s unpreserved claim.

Ill

The defendant finally claims that he was improperly sentenced. He argues that the court, when imposing the sentence, impermissibly penalized him for having exercised his right to a jury trial, and improperly considered other charges pending against the defendant in another court and imposed sex offender registration as a condition of probation. As all of these claims are unpreserved, we decline to review them.

“Ordinarily, we will not review a claim that was not distinctly raised before the trial court. Practice Book § 4185 [now § 60-5]; State v. Reddick, 33 Conn. App. 311, 331, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994).” State v. Crump, 43 Conn. App. 252, 261, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996). The defendant, in his reply brief, now seeks review under the plain error doctrine.

It is well established that “plain error ‘review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ . . . State v. Wright, 207 Conn. 276, 288-89, 542 A.2d 299 (1988); State v. Miller, 202 Conn. 463, 469, 522 A.2d 249 (1987).” State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Crump, supra, 43 Conn. App. 261. In this case, there was no court action resulting in any manifest injustice. We therefore decline review on this basis.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court instructed the jury: “The state also offered evidence of out-of-court statements made by the complainant to other persons that the defendant sexually assaulted her. Those persons to whom she made such statements to are her mother and then girlfriend .... Each of these people testified as to the statements the complainant made to each of them regarding the defendant sexually assaulting her. This evidence by each of these witnesses is admitted solely to corroborate or not corroborate her . . , testimony in court, to be considered by you only in determining the weight and credibility you will accord her testimony given here in this court. This evidence of out-of-court statements by her of the sexual assault against her by the defendant is not to be considered by you to prove the matter, the truth of the matter asserted in those out-of-court statements.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       During deliberations, the jury sent the court a note cont aining a question. After the court addressed the question, the court informed the jury that “[a] couple of things I didn't tell you before is, obviously, each of the counts has to be unanimous.”

       The defendant asserts that when the state addressed the court at the sentencing proceeding, it remarked on the fact that a previous judge had offered the defendant a plea bargain on the charge of sexual assault in the second degree, which entailed a sentence of ten years incarceration, suspended after three years, with ten years of probation. After pointing out that the defendant had elected a jury trial and had been convicted of serious charges, the state urged the court to impose a more serious sentence. According to the defendant, the court’s eventual sentence, which was less than what the state suggested, but more than the plea bargain, is an indication that the defendant was improperly punished for exercising his constitutional right to a jury trial.


author: DALY, J.

text:
    STATE OF CONNECTICUT v. ROBERT LAVIGNE
    (AC 17997)
    Foti, Landau and Daly, Js.

      Argued October 27, 1999
    officially released April 25, 2000

      Jeremiah Donovan, special public defender, with whom, on the brief, was Alix Biel, law student intern, for the appellant (defendant).

      Robert J. Scheinblum, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Robert Lavigne, appeals from the judgment of conviction, rendered after a trial to the court, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-70 and 53U-49, and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21.* The defendant claims that the court improperly (1) found that there was sufficient evidence to sustain the conviction of attempt to commit sexual assault in the first degree and (2) failed to find that the defendant was not guilty by reason of insanity. We affirm the judgment of the trial court.

The following facts reasonably could have been found by the court. The defendant had been residing for several years with friends, W and I, and their two daughters. During that time, the defendant slept on the couch in the living room of W’s and I’s one bedroom apartment. On Friday, May 14, 1993, W and I went to Danbury for a weekend fishing tournament, leaving their twenty-one month old daughter and their five month old daughter in the apartment with W’s sister, L (the aunt), and the defendant, who was thirty-two years of age.

That same day, the defendant, the aunt and the two children went grocery shopping. When they returned, the aunt put the five month old to sleep in a crib in the bedroom. The twenty-one month old victim turned on the television and began watching cartoons in the living room. The defendant also was in the living room. Soon thereafter, the aunt realized that she did not know how to cook the roast that they had purchased for dinner, so the defendant suggested that she go across the street to a neighbor for help while he watched the children.

Upon the aunt’s return, she heard the victim crying “at the top of her lungs.” When she did not see the victim in the living room, the aunt looked into the bedroom and saw the victim lying naked on the bed with her legs and feet hanging off of it. The victim’s diaper was on the floor and her stomach, side and vagina were covered with semen. The aunt noticed also that the victim’s vagina appeared red and irritated, unlike when she had changed the victim’s diaper earlier. The defendant was standing one inch or two inches away from the victim’s legs and feet. His pants and underwear were around his ankles and his penis was semierect. Upon becoming aware of the aunt’s presence, the defendant quickly pulled up his pants and offered as an explanation that he was changing the victim’s diaper. The aunt then demanded to know why the defendant’s pants had been lowered, to which the defendant insisted again that he was just changing the victim’s diaper. Thereafter, the aunt demanded that the defendant leave the premises. When he refused to leave, the aunt locked herself and the children in the bedroom. Approximately one-half hour later, the aunt took both children into the bathroom and washed the victim.

That night, the aunt slept with the children in the bedroom and locked the door. The aunt testified later that she did not telephone the police since there was no telephone in the apartment and, furthermore, she wanted to discuss the matter with her brother first. While changing the victim’s diaper the next morning, the child kept pointing to her vaginal area while uttering, “hurt, hurt.” That afternoon, W returned briefly from the fishing tournament and took the children to Danbury before the aunt could relate what had transpired.

Upon W’s return on Sunday, the aunt informed him about Friday’s occurrence. W then told I, and they both confronted the defendant, who initially stated that “nothing had happened.” The defendant then stated that he carried the victim to the bedroom, was attempting to change her diaper and had drooled on the victim when the aunt entered the room. The defendant ultimately admitted to W, however, that “[he] did molest [the victim].” W and I then ordered the defendant out of the apartment, notified the Meriden police department and the department of children and families, and took the victim to Veteran’s Memorial Hospital for an examination.

Meanwhile, the defendant went to the home of W’s other sister, J. J already had spoken with her brother and was aware of what had transpired. The defendant told J that he was fearful that W would find him and “beat him up.” When asked by J why he had molested the victim, he stated that “his mind just kept on telling him to do it,” and that he removed her diaper and “stuck his penis in [the victim’s] butt,” but when the victim’s aunt caught him, he claimed that he was changing the victim’s diaper. He then proceeded to consume a whole bottle of gin and threatened to commit suicide by cutting his wrist with a steak knife. J’s husband intervened and grabbed the knife without incident. Thereafter, J called for an ambulance, and the defendant was taken to the Veteran’s Memorial Hospital emergency room.

Gary Brandi, a detective with the Meriden police department, interviewed the defendant and obtained a written statement from him at the hospital on May 17, 1993. The defendant stated that he heard “voices” telling him to have sex with the victim and that he had “pictures in his mind” of himself “putting his penis inside the child.” He stated also that after having these pictures in his mind, “he immediately obtained an erection and immediately began intercourse with the [victim].”

I

The defendant claims first that the court improperly found that there was sufficient evidence from which the court could have concluded beyond a reasonable doubt that the defendant acted with the requisite specific intent to commit the crime of attempt to commit sexual assault in the first degree. We disagree.

“When reviewing a claim of insufficiency of evidence, our task is twofold: ‘We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).

“Every element of the crime charged must be established by proof beyond a reasonable doubt. The basic facts underlying the elements of the crime charged, however, may be reasonably inferred by the [fact finder]. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). ‘If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury 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.’ State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992); State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991).” State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993).

To convict the defendant of attempt to commit sexual assault in the first degree in violation of §§ 53a-70 and 53a-49 (a) (2), the state must prove beyond a reasonable doubt that the defendant acted with the specific intent to commit sexual assault in the first degree, which, in turn, included the intent to have sexual intercourse and that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime. Intent may be inferred from the conduct of the accused and is a determination for the trier of fact. State v. Osborn, 41 Conn. App. 287, 296, 676 A.2d 399 (1996). That the evidence is circumstantial rather than direct does not diminish the force of that evidence. State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995). “The state must prove every essential element of the crime beyond a reasonable doubt and, while the jury may draw reasonable and logical inferences, it may not resort to speculation. State v. Tucker, [181 Conn. 406, 417-18, 435 A.2d 986 (1980)]; State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979).” State v. Green, 194 Conn. 258, 274, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985).

Likewise, “[w]hat constitutes a substantial step in any given case is a matter of degree and a question of fact for the [trier]. . . . The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime . . . .” (Citations omitted; internal quotation marks omitted.) State v. Osborn, supra, 41 Conn. App. 294.

Here, the court heard evidence that the defendant, believing that he was alone in the house with the victim, took her into the bedroom, removed her diaper, lowered his pants and underwear, had sexual contact with her and ejaculated on her. The trier could reasonably have found from this evidence that the defendant intended to compel the victim to engage in sexual intercourse had he not been interrupted by the victim’s aunt soon after the assault had begun. Evidence was presented that the victim’s aunt had observed “redness” of the victim’s labia majora. There was also evidence presented by Gregory Acampora, the physician who had examined the victim at the hospital, that although there was no evidence of vaginal or anal penetration and the victim’s vulva appeared “atraumatic,” that was not inconsistent with slight penetration to that area. Acampora opined further that a sexually aroused male could achieve climax by rubbing his penis against a child’s labia majora. The court reasonably could have found therefrom that the defendant had taken a substantial step toward the commission of the crime of sexual assault in the first degree and that the substantial step evinced the defendant’s specific intent to commit the crime. We conclude that there was sufficient evidence for the court to have found proven beyond a reasonable doubt that the defendant had the requisite intent to commit attempt to commit sexual assault in the first degree.

II

The defendant claims finally that the court improperly failed to find him not guilty by reason of insanity. He claims that since he was shown to be unable to resist voices in his mind commanding him to molest the victim, the state failed to present sufficient evidence that he was sane beyond a reasonable doubt. We disagree.

In any prosecution for an offense, it shall be an affirmative defense that the defendant, at the time he committed the proscribed act or acts, lacked substantial capacity, as a result of mental disease or defect, either to appreciate the wrongfulness of his conduct or to control his conduct within the requirements of the law. General Statutes § 53a-13 (a). “[S]anity . . . is an independent fact and not an element of any existing criminal offense. As to such an independent fact, as with regard to other affirmative defenses, the legislature has the constitutional authority to allocate the burden of proof to the defendant rather than to the state.” (Citations omitted.) State v. Joyner, 225 Conn. 450, 464-65, 625 A.2d 791 (1993).

“The credibility of expert witnesses and the weight to be given to their testimony and to that of lay witnesses on the issue of sanity is determined by the trier of fact. ... In its consideration of the testimony of an expert witness, the trial court might weigh, as it sees fit, the expert’s expertise, his opportunity to obseive the defendant and to form an opinion, and his thoroughness. It might consider also the reasonableness of his judgments about the underlying facts and of the conclusions which he drew from them.” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 201, 672 A.2d 488 (1996).

Here, evidence was presented that Maria Tupper, a licensed and certified social worker, opined that at the time of the offense, the defendant had a psychotic disorder, was under the instructions of command hallucinations and, while he recognized the wrongfulness of his actions, was unable to control himself and unable to resist the voices commanding him to kill himself. Further testimony was provided, however, by Catherine Lewis, a forensic psychiatrist, who concluded that the defendant was able to appreciate the wrongfulness of his conduct and did have the capacity to conform his conduct to the requirements of the law.

The record provides adequate support for the court’s conclusion that the defendant had failed to establish, by a preponderance of the evidence, that he lacked the substantial capacity, as a result of a mental disease or defect, to control his conduct within the requirements of the law. Consequently, the court reasonably could have concluded that the defendant had failed to satisfy his statutory obligations to prove insanity by a preponderance of the evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”
      General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       W testified that he thought it was “odd” that the defendant, who was usually friendly, did not say “hello” when he had returned to retrieve the children.

         We note at the outset that the court orally rendered its decision after hearing evidence on the matter. The court neither issued a written memorandum nor signed a transcript of its oral decision on this issue. Although not fully complying with Practice Book § 4059, now § 64-1, the court did issue a detailed statement of its findings and conclusions in connection with its decision. Because the court’s decision is sufficiently detailed and concise, we will review the defendant’s claims so as not to exalt form over substance. Connecticut National Bank v. Browder, 30 Conn. App. 776, 778-79, 622 A.2d 588 (1993).

       With regard to the determination of the issue of insanity, a signed transcript of the oral conclusions of the court was filed on November 18, 1999.