text:
    CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY v. JOHN A. SAKON ET AL.
    (AC 32109)
    DiPentima, C. X, and Bishop and Dupont, Js.

      Argued September 8
    officially released December 6, 2011

      John A. Sakon, pro se, the appellant (named defendant).

      Laura E. Wattman, with whom were Frank H. Santoro and, on the brief, Sean T. King, for the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

The defendant John A. Sakon appeals from the summary judgment rendered by the trial court in favor of the plaintiff, Cambridge Mutual Fire Insurance Company. On appeal, the defendant argues that the court erroneously determined that the plaintiff owed no duty to defend or to indemnify the defendant by concluding that (1) the business exclusion of the homeowner’s insurance policy issued by the plaintiff applied and (2) the plaintiff was not estopped from asserting the business exclusion. We affirm the judgment of the trial court.

The record reveals the following facts. Between February 1, 2004, and February 1, 2005, the defendant was a named insured on a homeowner’s insurance policy issued by the plaintiff, covering his residence in Avon, Connecticut. In December, 2004, the defendant filed an amended complaint against Joyce A. Manager and others, alleging that they breached a prior settlement agreement by speaking at public hearings in opposition to the defendant’s proposed development of property in Glastonbury, Connecticut. See Sakon v. Manager, Superior Court, judicial district of Hartford, Docket No. CV-04-4004816 (May 16, 2007). In February, 2007, Manager filed a five count counterclaim, alleging abuse of process, unintentional infliction of emotional distress, intentional infliction of emotional distress and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

In January, 2008, the plaintiff initiated this declaratory judgment action, seeking a determination of whether it owed the defendant a duty to defend or to indemnify him against Manager’s counterclaim. In October, 2008, the plaintiff filed a motion for summary judgment on the ground that the business exclusion in the insurance policy precluded coverage of the counterclaim. In the plaintiffs motion for summary judgment, it argued that the underlying litigation between Manager and the defendant arose out of the defendant’s business activities and, therefore, fell under the business exclusion of the insurance policy. The plaintiff appended copies of the following supporting documents to its complaint: (1) the underlying complaint in the lawsuit between Manager and the defendant, (2) the parties’ signed settlement agreement, (3) Manager’s answers, special defenses and counterclaim, and (4) the homeowner’s and umbrella insurance policies issued by the plaintiff to the defendant. The defendant filed an objection, memorandum of law and affidavit in opposition to the plaintiffs motion for summary judgment. The court rendered summary judgment in favor of the plaintiff on November 12, 2009. Thereafter, the defendant filed a motion to reargue or reconsider, which was denied on February 9, 2010. This appeal followed.

Before addressing the plaintiffs arguments, we set forth the applicable standard of review. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003). In this case, the court rendered judgment for the plaintiff as a matter of law; therefore, our review is plenary.

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 550, 791 A.2d 489 (2002). “Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Internal quotation marks omitted.) United Services Automobile Assn. v. Marburg, 46 Conn. App. 99, 110, 698 A.2d 914 (1997). With these principles in mind, we address each of the defendant’s claims in turn.

I

The defendant first claims that the court improperly concluded that the allegations in Manager’s counterclaim triggered the business exclusion of the insurance policy, thereby ehminating the plaintiffs duty to defend or to indemnify him. We disagree.

We first set forth the applicable legal principles governing an insurer’s duty to defend or to indemnify its insured. The duty to defend “does not depend on whether the injured party will successfully maintain a cause of action against the insured but on whether he has, in his complaint, stated facts which bring the injury within the coverage. If the latter situation prevails, the policy requires the insurer to defend, irrespective of the insured’s ultimate liability. ... It necessarily follows that the insurer's duty to defend is measured by the allegations of the complaint. . . . Hence, if the complaint sets forth a cause of action within the coverage of the policy, the insurer must defend.” (Emphasis added; internal quotation marks omitted.) Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., 274 Conn. 457, 463, 876 A.2d 1139 (2005). “Because the duty to defend is significantly broader than the duty to indemnify, where there is no duty to defend, there is no duty to indemnify . . . .” (Internal quotation marks omitted.) DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 688, 846 A.2d 849 (2004).

Our analysis of whether the plaintiff owed a duty to defend or to indemnify the defendant begins with an examination of the language of the policies, and the allegations of the counterclaim. In examining the language of the policies, our standard of review is well settled. “[Cjonstruction of a contract of insurance presents a question of law for the court which this court reviews de novo.” (Internal quotation marks omitted.) Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1, 5, 942 A.2d 334 (2008). The “rule of construction favorable to the insured extends to exclusion clauses.” (Internal quotation marks omitted.) Liberty Mutual Ins. Co. v. Lone Star Industries, Inc., 290 Conn. 767, 796, 967 A.2d 1 (2009). In Connecticut, the court “must conclude that the language should be construed in favor of the insured unless it has a high degree of certainty that the policy language clearly and unambiguously excludes the claim.” (Internal quotation marks omitted.) Id. Here, the homeowner’s insurance policy excludes personal liability coverage for matters “[a]rising out of or in connection with a business engaged in by an insured.” (Internal quotation marks omitted.) The business exclusion “applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business . . . .” (Internal quotation marks omitted.) The policy also provides that “[b]usiness includes trade, profession or occupation.” (Internal quotation marks omitted.) Similarly, the umbrella policy excludes from coverage “business pursuits or business property of an insured . . . .” The umbrella policy defines “business pursuits” as “any employment, trade, occupation, profession or enterprise in which an insured has any financial interest.”

We now turn to the allegations in Manager’s counterclaim. In the counterclaim, Manager alleged that “Expressway Associates IV is or at one time was a business organization that Sakonchick formed, using his elementary school aged child as his business partner.” In her third allegation, Manager stated that “Sakonchick formed Expressway Associates IV to acquire certain property located on Main Street in Glastonbury, Connecticut (hereafter ‘The Property’) for the purpose of building a shopping center (hereafter ‘The Project’).” In essence, Manager alleged that the defendant unlawfully attempted to deter her from speaking at public hearings in opposition to his commercial development plans by filing the underlying complaint.

In Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 26, 688 A.2d 319 (1997), our Supreme Court defined the term “business pursuit” in the context of an insurance policy exclusion. Our Supreme Court concluded that the term “contemplates a continuous or regular activity engaged in by the insured for the purpose of earning a profit or a livelihood.” Id., 33. The business engaged in by the insured “need not necessarily be limited to his sole occupation or employment . . . .” (Emphasis in original; internal quotation marks omitted.) Id., 30-31. Part-time or supplemental income activities may constitute business pursuits. Id., 32. “The determination of whether a particular activity constitutes a business pursuit is to be made by a flexible fact-specific inquiry.” Id., 33. Whether an insurer owes a duty to defend, however, is a pure question of law, which we review de novo. Flint v. Universal Machine Co., 238 Conn. 637, 643, 679 A.2d 929 (1996). Thus, our analysis of whether the business exclusion applies follows the two part test of continuity and profit motive, as set forth by our Supreme Court in Pacific Indemnity Ins. Co.

First, the allegations of the counterclaim lead to the reasonable inference that the business activities of the defendant were continuous. The continuity element requires that the insured engage in a “customary engagement or a stated occupation”; (internal quotation marks omitted) Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., 240 Conn. 30; and that the insured undertake the activity in question “not as an isolated instance but as a regular or continuous practice . . . .” (Internal quotation marks omitted.) Id., 33; see also Grechika v. Liberty Mutual Fire Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-00-159540 (July 5, 2001) (business exclusion applied where underlying complaint alleged that tortious conduct occurred while insured was acting as employee).

Here, the counterclaim repeatedly referred to “The Project,” a development plan initiated by the defendant to build a shopping center. For example, the counterclaim alleged that “[o]ne significant purpose of the lawsuit by [the defendant] and Expressway Associates IV against Joyce Manager was to punish and intimidate Joyce Manager so that she would not continue to oppose [the defendant’s] undesirable development plans referred to above as ‘The Project.’ ” Although the specific activity of bringing lawsuits may not fall within the ordinary scope of the defendant’s commercial development business, that does not mean that the continuity element is not satisfied. Rather, the material inquiry is whether the counterclaim alleged that the defendant acted in furtherance of his regular and ongoing business interests by bringing the lawsuit. See Pacific Indemnity Ins. Co. v. Aetna Casualty & Surety Co., supra, 240 Conn. 30 (defining continuity as a customary engagement or stated occupation). We may infer that the defendant’s customary engagement and stated occupation is that of a commercial developer on the basis of the counterclaim’s allegations regarding “The Project.” For example, the counterclaim alleged that “Sakonchick and Expressway Associates IV believed that opposition to ‘The Project’ was funded by a competitor of the shopping center they sought to develop.”

The defendant argues that a “reasonable inference from the facts is that this was a personal dispute between [the defendant] and [Manager], and that dispute had nothing to do with a business.” The court determined, however, that no genuine issue of material fact existed as to whether the counterclaim arose from the defendant’s business activities, and that the defendant did not put forth evidence to the contrary. See Schilberg Integrated Metals Corp. v. Continental Casualty Co., supra, 263 Conn. 265-66 (insurer owed no duty to defend where insured’s hypothetical explanation of events in complaint contained no reasonable basis). After our review of the counterclaim, we conclude that the continuity element of the business pursuits definition is satisfied.

Second, the defendant’s activities, as alleged in the counterclaim, contained a profit motive. The profit motive element requires that the activity in question be shown to be such activity as a “means of livelihood; gainful employment; means of earning a living; procuring subsistence or profit; commercial transactions or engagements.” (Internal quotation marks omitted.) Pacific Indemnity Ins. Co. v. Aetna Casualty Co., supra, 240 Conn. 30. In Pacific Indemnity Ins. Co., the insureds were sued by their independent contractor for personal injuries she sustained while boarding horses on the insureds’ property. Id., 27. Their insurance company refused to defend them or to provide coverage, claiming that the insureds were engaged in a “business pursuit” within the meaning of an exclusion in its policy. Id. Our Supreme Court concluded: “Although the [insureds] did not board horses as their sole means of livelihood, they nevertheless conducted the activity for the purpose of earning a profit. It is of no moment that . . . the [insureds] incurred net losses from this activity.” Id., 34.

Here, Manager’s counterclaim alleged that the defendant brought suit against her to impede public discourse in opposition to his commercial development plan. The counterclaim made many allegations relating to the defendant’s commercial development business. For example, the counterclaim alleged that “Sakonchick and Expressway Associates IV engaged in unfair methods of competition and unfair or deceptive acts or practices in the conduct of their trade or commerce in that . . . they attempted to extort payment from Joyce Manager for business losses they suffered that were not caused by Joyce Manager . . . .” (Emphasis added.) It is clear from these allegations that, even if the lawsuit against Manager was not the defendant’s sole means of protecting his commercial development plan, it was certainly one of those means.

Moreover, the policy excludes coverage for events “[a]rising out of or in connection with a business engaged in by an insured.” (Emphasis added; internal quotation marks omitted.) The term “arising out of’ indicates that a causal connection between the alleged injury and the excluded activity must exist, and that connection must not be “based . . . [upon] a reading of the complaint that is . . . conceivable but tortured and unreasonable.” (Internal quotation marks omitted.) QSP, Inc. v. Aetna Casualty & Surety Co., 256 Conn. 343, 374, 773 A.2d 906 (2001). The term is interpreted broadly, and “it is sufficient to show only that the accident or injury ‘was connected with,’ ‘had its origins in,’ ‘grew out of,’ ‘flowed from,’ or ‘was incident to’ ” the excluded activity. Hogle v. Hogle, 167 Conn. 572, 577, 356 A.2d 172 (1975). Our review of the counterclaim leads us to conclude that the causal connection between the defendant’s commercial development activities and the allegations in the counterclaim is not only conceivable, but is clearly established. The underlying civil action and the ensuing counterclaim would not have occurred in the absence of the defendant’s commercial development plan. See Arbella Mutual Ins. Co. v. Gloth, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-97-0569145 (April 2, 1998) (business exclusion applied where allegations of complaint were narrowly directed to insured’s actions while he was engaged in real estate business). Thus, we conclude that the profit motive element of the business pursuits exclusion is satisfied.

We conclude that the court correctly determined that the plaintiff met its burden of proving that no genuine issue of material fact existed as to whether the business exclusion applied, and that the defendant failed to provide evidence of a genuine issue of material fact. Accordingly, the court properly determined that the business exclusion applied in favor of the plaintiff.

II

Next, the defendant claims that the court improperly concluded that the plaintiff was not estopped from asserting the business exclusion to the insurance policy. Specifically, he argues that genuine issues of material fact exist as to whether the plaintiff (1) provided him with a defense without a reservation of rights and (2) otherwise waived the business exclusion. We disagree.

“We [have] recognized that estoppel always requires proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury.” (Internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 385, 673 A.2d 77 (1996). In addition, “[i]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” (Internal quotation marks omitted.) Prudential Property & Casualty Ins. Co. v. Anderson, 101 Conn. App. 438, 447, 922 A.2d 236, cert. denied, 283 Conn. 911, 928 A.2d 537 (2007).

First, the defendant argues that a genuine issue of material fact exists as to whether the plaintiff provided him with a defense against Manager’s counterclaim without asserting a reservation of rights. We disagree. “It is generally held that if an insurer conducts an investigation or defense under a notice of reservation of rights, it will not thereby be estopped to set up any policy defenses that may be available to it.” West Haven v. Hartford Ins. Co., 221 Conn. 149, 165, 602 A.2d 988 (1992); see Basta v. United States F. & G. Co., 107 Conn. 446, 450, 140 A. 816 (1928); compare Hartford Casualty Ins. Co. v. Litchfield Mutual Fire Ins. Co., supra, 274 Conn. 469-70 (insurer owed duty to defend where it did not make a reservation of rights). Here, the court stated that “[t]he plaintiff attached four documents to support its assertion that the plaintiff and the defendant timely reserved their respective rights regarding whether the defendant was entitled to defense and/or indemnity under the homeowner policy, including an affidavit that denied that the plaintiff defended the defendant in the previous lawsuit.” The court concluded that “[t]he plaintiffs documents clearly establish that the defendant’s expectation of the plaintiffs obligation to defend and/or indemnify him in the counterclaim against him was unreasonable.” At trial, the defendant’s counsel stated, “the claim has actually been actively defended for more than a year, Your Honor. . . . They’ve done it under a reservation of rights.” “The knowledge and admissions of an attorney are imputed to his client.” Lafayette Bank & Trust Co. v. Aetna Casualty & Surety Co., 177 Conn. 137, 140, 411 A.2d 937 (1979). Thus, the record supports the court’s conclusion that no genuine issue of material fact exists as to whether the plaintiff asserted a reservation of rights.

The defendant next argues that, because the plaintiff represented him in a previous lawsuit, a genuine issue of material fact exists as to whether the plaintiff could assert the business exclusion. We are not persuaded. Even where an insurer defends pursuant to a valid reservation of rights, “[i]f, however, the insurer conducts itself in a manner inconsistent with the reservation of rights or makes assurances to the insured that the claim will be taken care of, the reservation of rights may be waived.” West Haven v. Hartford Ins. Co., supra, 221 Conn. 165. “Waiver is the intentional relinquishment of a known right. ... To constitute waiver, there must be both knowledge of the existence of the right and intention to relinquish it.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561-62, 316 A.2d 394 (1972).

“In the insurance context ... it has been recognized that a contract, under the guise of waiver, [may not] be reformed to create a liability for a condition specifically excluded by the specific terms of the policy. . . . This limitation on the applicability of waiver to an insurance contract recognizes that because waiver requires the relinquishment of a known, and therefore existing, right within the insurance contract, a party cannot create through waiver coverage for a claim that the parties expressly had excluded from that contract.” (Citation omitted; internal quotation marks omitted.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 777, 653 A.2d 122 (1995). Nevertheless, an insurer may still waive the assertion that it owes no duty to defend its insured by engaging in conduct inconsistent with a valid reservation of rights. See West Haven v. Hartford Ins. Co., supra, 221 Conn. 165.

Here, the court stated that “[t]he defendant has offered no evidence or documents to show that [the] plaintiff did or said anything to induce him to believe that in the lawsuit underlying this action that the business exclusion would not apply.” The defendant argues that the plaintiff should be estopped from asserting the business exclusion because it provided him with a defense in an earlier lawsuit. The court concluded that this argument was without merit because the prior lawsuit referred to by the defendant was entirely unrelated to the underlying civil action. Assuming that the plaintiff did in fact provide the defendant with a defense in the prior lawsuit, he has not put forth any evidence that this defense was intended to induce him to believe that he would be defended in the underlying counterclaim. The defendant also has not put forth any evidence that the plaintiffs conduct caused him any prejudice in the underlying litigation. “[T]here must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as amounts to constructive fraud, by which another has been misled to his injury . . . .” (Citation omitted; internal quotation marks omitted.) Brzezinek v. Covenant Ins. Co., 74 Conn. App. 1, 8, 810 A.2d 306 (2002), cert. denied, 262 Conn. 946, 815 A.2d 674 (2003); see also Heyse v. Case, 114 Conn. App. 640, 655, 971 A. 2d 699 (implied covenant of good faith and fair dealing did not require insurer to waive policy exclusions, even if insurer were found to have exercised a contrary option with respect to another policyholder with comparable insurance policy), cert. denied, 293 Conn. 905, 976 A.2d 705 (2009).

The record supports the court’s determination that the defendant did not meet his burden of proving that a genuine issue of material fact existed with respect to his claim of equitable estoppel. Thus, the court properly concluded that the plaintiff was not estopped from asserting the business exclusion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also named the following persons as defendants in its complaint: (1) Expressway Associates, IV., C/0 John Sakon, (2) Manager, Pearl, Individually, (3) Manager, Pearl, Executrix, (4) Manager, Thomas Jr., (5) Manager, Edward, (6) Manager, Joyce, (7) Manager, Jean, and (8) Manager, Sandra. The only named defendant who filed an appeal was John Sakon; accordingly, we refer to John Sakon as the defendant.

       The defendant also argues that the court failed to review the allegations in the counterclaim filed by Joyce A. Manager after the defendant filed an amended complaint in December, 2004. We decline to consider this argument because it is inadequately briefed. “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Baranowski v. Safeco Ins. Co. of America, 119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010). Further, the defendant argues that the court improperly shifted the burden of proof to the defendant. We will respond to this argument through our analysis of whether the court improperly rendered summary judgment in favor of the plaintiff. In addition, the defendant argues that the court improperly failed to address whether the property at issue was an insured location under the policy. Because our conclusion that the business exclusion applies to all insured properties of the defendant is dispositive, we need not review this claim.

       The parties do not dispute that John Sakon, referred to as John Sakonchick in Manager’s counterclaim, is the defendant.

       The defendant, in the conclusion to his brief, raises the issue of laches in addition to equitable estoppel. We decline to consider this argument because it is inadequately briefed. See Baranowski v. Safeco Ins. Co. of America, 119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010).

       The defendant argues that the court improperly applied the “sophisticated businessman” standard, rather than the “reasonable layman” standard, to his claim of estoppel. The court stated that “the defendant is a sophisticated business person . . . and he would be expected to understand that his homeowner’s insurance policy clearly enunciates the business activities exclusion.” The court made this statement in passing, however, and did not rely on it in determining that the business exclusion applied. Thus, we conclude that the court complied with the “basic principle of insurance law that policy language will be construed as laymen would understand it and not according to the interpretation of sophisticated underwriters . . . .” Cody v. Remington Electric Shavers, 179 Conn. 494, 497, 427 A.2d 810 (1980).

       The defendant, in his brief, incorporates by reference the arguments set forth in his memorandum of law in opposition to the plaintiffs motion for summary judgment. The defendant, however, provides no analysis in support of his claim that the court improperly rejected these arguments. See Baranowski v. Safeco Ins. Co. of America, 119 Conn. App. 85, 89 n.4, 986 A.2d 334 (2010). Accordingly, we conclude that these arguments are inadequately briefed. See, e.g., Lin v. National Railroad Passenger Corp., 277 Conn. 1, 15-16 n.9, 889 A.2d 798 (2006).


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JOHN INGRAM
    (AC 31396)
    Beach, Alvord and Borden, Js.

      Argued September 14
    officially released December 6, 2011

      Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

      Robert J. Scheinblum, senior assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Edward Narus, senior assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, John Ingram, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant claims that (1) there was insufficient evidence to sustain his conviction, (2) the court erroneously admitted dog scout and dog bite evidence without a proper foundation, (3) the court erred by failing to instruct the jury regarding dog tracking evidence and (4) prosecutorial impropriety deprived him of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of August 3, 2007, the defendant left Houlihan’s in Glastonbury, a restaurant where he was employed as a fry cook, at approximately 5 p.m. He was wearing dark clothing and was carrying a red backpack. At approximately 10 p.m., Zaka Uddin, who had been working alone at the Getty Mart at 611 Main Street in East Hartford, closed the Getty Mart and went to his car. As he began to enter his car, the defendant, who was wearing black clothing and a black nylon mask, grabbed Uddin by the neck and pushed Uddin into his car. The defendant held a large knife to Uddin’s throat, threatened to kill him and demanded money. In attempting to push the knife away from his throat, Uddin cut his fingers. After Uddin gave the defendant his wallet, which contained approximately $54, the defendant demanded more money. Uddin explained that he was not the owner of the Getty Mart and that he did not have additional money. The defendant demanded Uddin open the trunk of his car, and, after Uddin complied, the defendant put Uddin in the trunk of the car and closed the trunk. Uddin was able to open the trunk and went into the Getty Mart to dial 911.

Once the police arrived, Uddin provided the officers with a description of the peipetrator. Among other observations, Uddin said the perpetrator was carrying a large knife with a black handle and was wearing dark clothing, a mask and a backpack. The police found a nylon cap behind the Getty Mart, and Uddin identified it as the one worn by the perpetrator. After hearing a radio transmission describing the perpetrator, James O’Connor, an officer with the East Hartford police department, saw a man dressed in dark clothing and carrying a red backpack walk behind Kahoots bar. The man began “weaving in and out of’ vehicles in the Kahoots parking lot and crossed Main Street. O’Connor drove his car over the median onto Main Street, got out of his car and requested the man to stop. The man dropped the backpack and ran. O’Connor and another officer chased after him. The man climbed a metal fence and disappeared into a wooded area. O’Connor did not climb over the fence because he knew that Todd Mona, a police officer with the East Hartford police department, and his police K-9, Primo, were responding and O’Connor did not want to “disturb the scent.”

Shortly thereafter Mona and Primo arrived on the scene. After determining that it was an “ideal situation” for a “scout,” Mona gave the perpetrator three verbal announcements to “surrender or I’ll send in the dog, and you will be bit.” After hearing no response, Mona and another officer lifted Primo over the fence. Primo had been trained, in situations such as this, to use his nose to find the person and either to bite or if Primo could not reach the person, to bark. After giving Primo several minutes to work, Mona and other officers scaled the fence and searched for Primo and/or the suspect. After approximately twenty minutes, Mona yelled “Primo, come” several times, and Primo returned to the area of the fence where he began the scout. Based on Primo’s behavior, Mona was “[v]ery confident” that Primo had located and bitten the perpetrator, as commanded.

John Dupont, an officer with the East Hartford police department, was on patrol in the Main Street area when he received a radio transmission describing the Getty Mart robbery and the suspect. Dupont proceeded down Main Street, passed a highway exit ramp, parked his car and waited. Dupont noticed the defendant walking eastbound on the highway. The defendant was shirtless and was wearing light colored pants and socks but no shoes. He appeared “physically drained,” his pants and socks were muddy and his ankle was bleeding. After the defendant removed his sock, Dupont noticed puncture wounds on the defendant’s ankle that appeared to be a dog bite. When Dupont asked the defendant how he obtained the dog bite, the defendant replied that it was not a dog bite, but, rather, he had been stabbed. The defendant received treatment for his ankle wound later that evening at a nearby hospital.

The nylon cap and several items from the discarded red backpack were submitted to a state laboratory for analysis. A DNA sample taken from the knife, which was found in the backpack, was consistent with the victim’s DNA, but no DNA that was consistent with the defendant’s was found on the knife. A DNA sample retrieved from a Houlihan’s baseball cap, which was also found in the backpack, was consistent with that of the defendant. A DNA sample that was taken from the nylon stocking, which Uddin identified as the one worn by the perpetrator at the time of the robbery, was consistent with that of the defendant.

The defendant was arrested and charged with, inter alia, robbery in the first degree. Following a jury trial, the defendant was found guilty of robbery in the first degree and sentenced to twenty years incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because his robbery conviction was based on insufficient evidence. He argues that there was insufficient evidence to prove beyond a reasonable doubt that he was the perpetrator of the robbery. We are not persuaded.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Green, 261 Conn. 653, 667, 804 A.2d 810 (2002).

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970 (2010).

The evidence was sufficient to establish the defendant’s identity as the perpetrator of the robbery. Uddin said that the perpetrator carried a backpack, wore dark clothing and sported a black nylon cap over his face as a mask. On the evening in question, when the defendant left Houlihan’s, he was wearing black pants and carrying a red backpack. The defendant points to the fact that the perpetrator was wearing dark clothing during the commission of the robbery and the defendant was wearing light colored pants when Dupont found him on the highway. He argues that there was no evidence that he removed his dark clothes in the woods. Although the police did not find dark clothes in the woods, there was evidence that, in order to protect themselves from bums, some fry cooks at Houlihan’s customarily wore a second set of pants under their standard uniform black pants. The jury reasonably could have determined that the defendant was wearing two sets of pants and removed or otherwise lost his black pants as well as his shoes and shirt while running through the woods. Further, Uddin could have been mistaken as to the color of the pants. In any event, a possible discrepancy in the evidence does not necessarily outweigh the evidence tending to show guilt.

Further, the police located a black nylon cap near the Getty Mart, which Uddin identified as that worn by the perpetrator. A DNA sample taken from the cap was consistent with that of the defendant. The defendant argues, however, that the cap contained a mixture of DNA. That does not negate the fact that DNA consistent with the defendant’s was found on the cap. Additionally, the police found the red backpack that had also been discarded by the peipetrator. The defendant was seen leaving Houlihan’s on the night in question carrying a red backpack, and the backpack discarded by the perpetrator contained, inter alia, the following items: a kitchen knife, recipes from Houlihan’s restaurant, a “Houlihan’s baseball style cap,” a meat thermometer, a chefs jacket in the defendant’s size that was the same kind that Houlihan’s required as part of its cooks’ uniforms, and a black permanent marker similar to the type that cooks frequently bring to work to label the expiration date on food. A DNA sample taken from the Houlihan’s baseball cap was consistent with the defendant’s DNA. Although, as the defendant argues, neither the defendant’s DNA nor his fingerprints were found on the knife, the victim’s DNA was found on the knife.

In further support of his claim, the defendant argues that his wounded ankle could not be the basis for a reasonable inference that he was the perpetrator, because no expert identified the wound as a bite by Primo. The jury, however, reasonably could have inferred that the wound was a dog bite by Primo. Mona testified that although he did not see Primo bite the perpetrator, he was “[v]ery confident” that Primo located and bit the perpetrator as commanded. Because of Primo’s “excessive breathing,” “body language” and by the fact that Primo returned to Mona, he “knew” that Primo had completed the task that Primo was commanded to do.

Additionally, upon locating the defendant, Dupont observed that the defendant’s left ankle was bleeding through his sock, and after the defendant removed his sock, Dupont observed what “looked like a dog bite” on the defendant’s ankle. When Dupont asked the defendant how he obtained a dog bite, the defendant replied that it was not a dog bite but that he had been stabbed. Dupont then asked if he was stabbed by a hook knife. The defendant laughed and replied that he had been stabbed by a hook knife when “two drunk guys” attempted to rob him earlier that evening by the library. When asked “basic questions” about his explanation of the wound, the defendant was “deceptive.” Dupont testified that he was familiar with dog bites through his work as a police officer and as a paramedic and that the defendant’s injury was consistent with a dog bite and inconsistent with a hook knife wound.

Furthermore, after the defendant was transported to a nearby hospital, Michael Iozzo, a board certified physician’s assistant, treated the defendant for a dog bite injury. The defendant argues that Iozzo admitted that the injury could have been caused by a knife. Although Iozzo admitted as much, he treated the wound as a dog bite, and Dupont testified that the wound appeared to him to be a dog bite.

Although, as the defendant argues, no expert testimony was presented on the question of whether the configuration of the teeth marks on the defendant’s ankle matched Primo’s dentation, the jury reasonably could have concluded that the defendant was bitten by Primo based on Mona’s testimony that he was confident that Primo had completed the task and Dupont’s testimony that the defendant was found walking on the highway near the wooded area and that he had a dog bite on his ankle. The aggregation of evidence, including the persuasive DNA evidence and the connection to Houlihan’s, was more than sufficient for the jury to reasonably conclude that the defendant was the perpetrator of the robbery. See, e.g., State v. Testa, 123 Conn. App. 764, 769, 3 A.3d 142 (although victim unable to identify defendant as perpetrator and no fingerprints were recovered from stolen items, evidence as whole supported jury’s finding of defendant’s identity as perpetrator), cert. denied, 298 Conn. 934, 10 A.3d 518 (2010).

II

The defendant next claims that the court erroneously admitted dog “scouting” and dog bite evidence without a proper foundation. We disagree.

“It is axiomatic that [t]he trial court’s ruling on the admissibility of evidence is entitled to great deference. In this regard, the trial court is vested with wide discretion in determining the admissibility of evidence. . . . Accordingly, [t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Because a trial court’s ruling under Porter involves the admissibility of evidence, we review that ruling on appeal for an abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. Sorabella, 277 Conn. 155, 214, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006).

The following additional facts are relevant. Prior to trial, the defendant filed a motion in limine to exclude dog scouting and dog bite evidence on the ground that such evidence was overly subjective and not based on a reliable scientific methodology. The court conducted a preliminary hearing to determine whether a Porter hearing was necessary. The court found credible the testimony of Mona, Primo’s handler, and Iozzo, the physician’s assistant who treated the defendant’s ankle wound, and determined that they qualified as expert witnesses in the specific areas in which they were tendered. The court further determined that the dog scout and dog bite evidence was not evidence that required scrutiny under Porter for scientific reliability. The court determined that the state satisfied the four foundational requirements set forth in State v. Wilson, 180 Conn. 481, 489, 429 A.2d 931 (1980), but reserved its decision on the admissibility of the evidence until relevancy had been established, that is, until the state showed a nexus between the robbery at the Getty Mart and the defendant.

During the testimony of O’Connor, the defendant objected to a question by the state regarding the actions of Mona and Primo on the ground of relevancy, arguing that at that point in the trial, the state had not shown a nexus between the defendant and the robbery. In response, the state described the evidence it planned to present to connect the defendant to the robbery, such as evidence linking the defendant’s and victim’s DNA to items in the red backpack, and evidence connecting the defendant’s DNA to the nylon cap. The court found the dog scouting testimony and dog bite testimony of O’Connor, Mona and Iozzo to be relevant, subject to the state’s presenting requisite foundational testimony.

A

The defendant argues that Mona’s testimony relating to dog scouting should have been subject to a Porter analysis. We disagree.

“In [Porter], we adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., [509 U.S. 579, 589-92, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)]. We noted therein two requirements established under Daubert. First, [we noted] that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation. . . . This requirement establishes a standard of evidentiary reliability ... as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity. . . . Second, [we noted that] the scientific evidence must fit the case in which it is presented. ... In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract. ... In Porter [our Supreme Court] recognized that Daubert’s vagueness as to how and when to apply the factors of the test was necessary. ... In order to maintain flexibility in applying the test, [our Supreme Court] did not define what constitutes scientific evidence. . . . Consequently, our initial inquiry is whether the [evidence] at issue ... is the type of evidence contemplated by Porter.'” (Citation omitted; internal quotation marks omitted.) State v. Sorabella, supra, 277 Conn. 215.

The court found that it did not have to conduct a Porter hearing because dog scout evidence is not of a scientific nature. The court concluded that the reliability of such evidence is not usefully informed by scientific understanding of canine olfaction but, instead, turns on ensuring that the dog and its handler are properly trained and on ensuring that the perpetrator’s scent trail can be tracked reliably. The court analyzed the admissibility of the dog scout evidence under State v. Wilson, supra, 180 Conn. 488-90, and determined that the evidence was admissible.

The court did not abuse its discretion in determining that a Porter analysis was not necessary. There is nothing scientifically novel about the use of police dogs to track criminal suspects; it is the type of evidence that readily may be understood and evaluated by a fact finder on the basis of common knowledge that dogs have an exceptional sense of smell.

The defendant argues that Wilson does not apply because that case involved dog tracking evidence and the present case involves dog scouting evidence. He argues that, because Primo was not tethered, Mona observed Primo only before and after the scout and not during the scout and, therefore, was not in a position to give an opinion as to whether Primo correctly tracked the suspect’s scent.

The court did not abuse its discretion in applying the factors in Wilson to determine the admissibility of dog scout evidence. In Wilson, our Supreme Court concluded that dog tracking evidence is admissible to prove the identity of the accused in a criminal prosecution provided that the party offering the evidence shows that: “(1) the handler was qualified to use the dog; (2) the dog was trained and accurate in tracking humans; (3) the dog was placed on the trail where circumstances indicate the alleged guilty party to have been; and, (4) the trail had not become so stale or contaminated as to be beyond the dog’s competency to follow it.” (Internal quotation marks omitted.) Id., 489; see also State v. St. John, 282 Conn. 260, 271, 919 A.2d 452 (2007) (trial court did not abuse its discretion in permitting witness to testify as expert concerning dog tracking evidence because state satisfied Wilson).

Although Wilson and its progeny, St. John, both involve dog tracking evidence, and the present case involves dog scouting evidence, dog tracking and dog scouting are similar enough so that the Wilson factors properly apply in the present case. Mona testified as to the similarities and differences between dog tracking and dog scouting evidence. He testified that in dog tracking, a dog that is trained to track specific scents is targeted to a scent. For example, if someone runs from a car, the dog can be targeted to track the scent left on the seat. For the safety of the dog, the dog is tethered on a fifteen foot leash, and the handler follows along as the dog follows the scent. Mona differentiated a “scout”: “If a person were to run into the woods . . . [y]ou give your announcements, the dog runs around and will locate the person who is out in those woods by using his nose . ...” On a scout, a “dog is sent out on a task on his own without a leash and sent to do a job.” The dog can pick up the scent of a person from an environment where the person recently was located, and then follow the scent on his own. The absence of a tether in dog scout evidence does not remove it from the ambit of Wilson. The reliability of dog scout evidence logically relies on the training and experience of the dog and its handler and the freshness and lack of undue contamination on the trail. The principles underlying dog scouting are the same as those underlying dog tracking; dog scouting, then, is not more subject to scrutiny under Porter than dog tracking.

B

The defendant alternatively argues that the court erred in determining that the state had met the second and fourth prongs of Wilson. We disagree.

The defendant argues that the state failed to meet the second prong of Wilson — that Primo was trained and accurate in tracking humans — because Mona testified that the scout at issue was Primo’s first outside scout, and, therefore, the state failed to establish an accuracy rate for scouting. The fact that this was Primo’s first outside scout does not pertain to admissibility but, rather, to the weight of the evidence. The second prong of Wilson “merely requires evidence that the dog was trained and accurate in tracking humans.” State v. John, supra, 282 Conn. 272. Mona’s testimony demonstrated that Primo was trained in and was accurate in scouting. He and Primo participated in a sixteen week program for forty hours per week at a state police training facility. During the program, Mona and Primo received training in, inter alia, scouting, and during training, Primo never failed to participate in or to succeed in a scout. Mona and Primo both passed the training and were certified. This testimony alone satisfies the second prong. See id.

The defendant argues that the state failed to meet the fourth prong of Wilson — that the trail had not become so stale or contaminated as to be beyond Primo’s competency to follow it — because the state offered no evidence that the trail had not become contaminated. He argues that because Primo was not tethered, Mona was unable to observe Primo’s behavior on the scout; Primo may have been distracted by other scents, and, therefore, the fourth prong could not be satisfied. Mona testified that the perpetrator recently had jumped over a fence and the only human scents in the area of the fence to which Primo was targeted were those of O’Connor and the perpetrator. Mona observed that the area into which the perpetrator fled was wooded and free of contamination from other humans and determined that it was an ideal situation for a scout. Based on Mona’s testimony, the court reasonably could have concluded that the fourth prong of Wilson had been satisfied. We stress, again, that the Wilson factors are designed to serve a gatekeeping function, and the finder of fact can accord the evidence whatever weight it finds warranted.

C

The defendant also seems to argue that the court erred in admitting dog bite testimony from Mona, Dupont and Iozzo because they were not qualified as scientific or medical experts in dog bite identification under § 7-2 of the Connecticut Code of Evidence. He contends that the state presented no evidence that Primo was the source of the defendant’s wound, but the effect of Mona’s, Dupont’s and Iozzo’s testimony amounted to identification evidence. As a result, he contends, the jury was misled to infer that Primo was the source of the defendant’s wound and that, therefore, the defendant was the robbery suspect. We do not agree.

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. . . . The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law. . . . Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Citation omitted; internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 550, 757 A.2d 482 (2000); see also Conn. Code Evid. § 7-2.

With respect to dog bite evidence, the witnesses at issue testified as follows. Mona testified that, based on his training and experience, he was confident that Primo had located and bitten the perpetrator as commanded. Dupont, a police officer who had been an emergency medical technician for approximately fifteen years and a paramedic for ten years, testified that he observed puncture wounds on the defendant’s ankle that “lookfed] like a dog bite.” Iozzo, a board certified physician’s assistant, testified that the triage nurse, who evaluated the defendant when he arrived at the hospital, noted in a report that the defendant presented with what appeared to be a dog bite but that the defendant stated that he had been stabbed. Iozzo testified that his diagnosis was a puncture wound laceration. He observed multiple puncture wounds to the defendant’s left ankle and two small lacerations on the inside and outside of the ankle. He also testified that, in general, dog bites appear near the lower leg and ankle while stab wounds typically appear on the torso and upper extremities. He noted that dog bites typically are not as deep as stab wounds and that he treated the defendant’s wound with a skin closure method typically used for relatively superficial wounds. He further noted that he typically does not give antibiotics for dog wounds and that he treated the wound as a dog bite and did not give antibiotics to the defendant. He stated that the wound was consistent with both a knife wound and a dog bite.

The court did not abuse its discretion in admitting the foregoing dog bite testimony. Mona, Dupont and Iozzo all had training and experience related to the matters about which they testified. The court could reasonably have determined that their testimony was not within the common knowledge of the jury and therefore would be helpful to the jury in considering the issues. Neither Mona, Dupont nor Iozzo testified that the bite mark on the defendant’s ankle came from Primo, testimony for which possibly additional training and experience would be required. Mona, however, testified as to the success of the scout based on cues he witnessed from Primo, and Dupont and Iozzo, based on their training and experience, described the wound they observed. Although the evidence was circumstantial, it was relevant, as it tended to prove identity. It was not necessary, for purposes of admissibility, to offer expert testimony matching the bite marks on the defendant’s ankle with Primo’s teeth.

Ill

The defendant next claims that the court erroneously failed to instruct the jury “in accordance with his request for a cautionary instruction regarding dog tracking evidence.” We disagree.

“[A] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request [however] will not constitute error if the requested charge is given in substance. . . . [Wjhen reviewing the 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.” (Citation omitted; internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 234-35, 733 A.2d 156 (1999).

The defendant filed a written request to charge regarding “evidence of dog tracking and/or scouting” in which he requested the following instruction: “You have heard evidence of dog tracking and/or scouting in this matter from Officer Mona. Dog tracking evidence must be viewed with the utmost caution. Such evidence is of slight probative value. Such evidence must be considered, if found reliable, not separately but in conjunction with all the other testimony in the case. Such evidence in the absence of some other direct evidence of guilt would not warrant a conviction. While such evidence is evidence which may be considered by you in your deliberations, it is not in and of itself evidence that a crime was actually committed.”

In its final instructions to the jury, the court instructed the jury as follows regarding dog scouting evidence: “You have heard testimony on the use of a police dog in this case. The testimony was offered primarily by Officer Mona. In evaluating this evidence and determining its reliability, if you can, you are to consider: (1) the qualifications of the handler to use the dog; (2) whether the dog was trained and accurate in the tracking of humans; (3) whether the dog was placed on the trail where certain circumstances indicate the alleged guilty party to have been; and (4) whether the trail had become so stale or contaminated as to be beyond the dog’s competency to follow it. Such evidence must be considered by you if found reliable in conjunction with other testimony in the case. While such evidence is evidence which may be considered by you in your deliberations, it is not in and of itself evidence that a crime was actually committed. It must be considered by you in conjunction with other evidence. The weight to be given to this testimony is for you as jurors to determine.”

The court gave the substance of the request, except it omitted the language suggesting that the evidence was highly suspect. The defendant acknowledges that there is no Connecticut authority on point holding that the defendant is entitled to a dog tracking/scouting instruction if requested. We know of no binding authority requiring an instruction that the evidence be regarded with utmost caution. At least in the context of this case, where a great deal of other evidence implicated the defendant, such a charge was not necessary.

IV

The defendant last claims that prosecutorial impropriety dining the state’s closing and rebuttal arguments deprived him of a fair trial. We disagree.

“We begin our analysis by setting forth the applicable law regarding claims of prosecutorial impropriety. In analyzing claims of prosecutorial impropriety, we engage in a two step analytical process. . . . The two steps are separate and distinct. . . . We first examine whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether it deprived the defendant of his due process right to a fair trial. ... In other words, an impropriety is an impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful and thus caused or contributed to a due process violation involves a separate and distinct inquiry.” (Citations omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978 (2007).

“A prosecutor may invite the jury to draw reasonable inferences from the evidence; however, he or she may not invite sheer speculation unconnected to evidence. . . . Moreover, when a prosecutor suggests a fact not in evidence, there is a risk that the jury may conclude that he or she has independent knowledge of facts that could not be presented to the jury.” (Citations omitted.) State v. Singh, 259 Conn. 693, 718, 793 A.2d 226 (2002).

The defendant argues that the prosecutor committed impropriety when he directed the jury to speculate on facts not in evidence. First, the defendant argues that the prosecutor improperly discussed the white sneakers found in the red backpack even though the jury heard no evidence that the sneakers belonged to the defendant. When discussing the contents of the red backpack, the prosecutor commented that “ [t]here’s some white shoes you could change into when you leave work because you can’t wear those there” and “again, where are the dark nonskid shoes that he’s wearing when he leaves work? Okay. He’s got nice clean ones in the bag, but those aren’t the kind that you can wear there.” These comments were not improper but, rather, were based on inferences from evidence admitted at trial. “[A] prosecutor is permitted to comment [on] the evidence presented at trial and to argue the inferences that the jurors might draw therefrom . . . .” (Internal quotation marks omitted.) State v. Moore, 293 Conn. 781, 815, 981 A.2d 1030 (2009), cert. denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010). The jury heard evidence linking the defendant to items in the red backpack. The defendant was seen leaving work carrying a red backpack, and the backpack contained multiple items that could be used by a fry cook, such as a Houlihan’s cap that contained the defendant’s DNA. The jury also heard evidence that while working at Houlihan’s, the defendant was required to wear dark shoes as part of his uniform.

Second, the defendant takes issue with comments made by the prosecutor regarding the clothing that the defendant was wearing when apprehended. The prosecutor noted that when the defendant left work he was wearing dark shoes and dark pants, but when apprehended, he was wearing lightly colored pants. He remarked that the dark clothing was not in the backpack, and the jury could infer that the defendant did not change his clothes at home because he still had his backpack with items from work. The prosecutor noted that the evidence showed that fry cooks wear multiple layers of clothing and remarked that it could be inferred that the defendant was wearing dark clothes and dark shoes during the commission of the robbery but that he later disrobed. He remarked that when apprehended, the defendant was not wearing shoes and his pants were covered in mud. Due to the muddy conditions, the prosecutor suggested that the defendant’s shoes were “sucked off his feet” as he ran through the woods.

The prosecutor’s explanation for why the defendant left work wearing dark clothes but was apprehended wearing light pants and no shoes was based on inferences from the evidence. The jury heard evidence that some fry cooks at Houlihan’s would wear a second set of pants under their standard uniform black pants to protect them from bums. The prosecutor’s statements that the jury could infer that the defendant had taken off his dark clothes while in the woods to reveal the lighter clothes he donned when apprehended is an inference based on that evidence. There was also evidence that when apprehended, the defendant appeared physically drained and that his pants and socks were wet and covered in mud, leaves and grass. The prosecutor’s comments regarding the loss of the defendant’s shoes in the woods was an inference based on facts in evidence.

The defendant next argues that the prosecutor improperly commented on the defendant’s motive to commit the robbery. In the comments at issue, the prosecutor remarked: “His check didn’t come that Friday. Remember? He got paid every Friday. He didn’t get one that Friday. That was when they went into the two week plan. He’s not going to get it for another week. So that’s a motive to commit that robbery to get money that he wouldn’t have for at least another week. He didn’t get money for the previous week.” Jeffrey Forlastro, the general manager of Houlihan’s, testified that Houlihan’s had paid its employees weekly but that a change of policy had been implemented wherein employees would be paid biweekly. Forlastro stated that August 3, 2007, was the first Friday that an employee would not receive a paycheck and that an employee would not receive a paycheck until the following Friday. Accordingly, the prosecutor’s suggestion regarding the defendant’s motive to commit the robbery was based on facts in evidence.

The defendant last argues that the prosecutor improperly injected personal opinion regarding the defendant’s truthfulness. The prosecutor remarked that when apprehended, the defendant, shirtless and shoeless, was walking on the highway. The prosecutor noted that the defendant commented that he was “going home” to 22 Colt Street but that the defendant was walking in the opposite direction of Colt Street. The prosecutor remarked: “I suggest the defendant was not being truthful saying he’s going home.”

The prosecutor also noted that the defendant stated that he was attacked at the library. He questioned why the defendant would run into the woods after the alleged attack and why he would tell the police that he was going to Colt Street when he never lived on Colt Street. The prosecutor remarked: “It makes no sense. It’s not truthful. His story is not truthful.”

“[A] prosecutor is . . . not permitted to vouch personally for the truth or veracity of . . . witnesses. . . . Such expressions of personal opinion are a form of unsworn and unchecked testimony, and are particularly difficult for the jury to ignore because of the prosecutor’s special position.” (Internal quotation marks omitted.) State v. Dawes, 122 Conn. App. 303, 311-12, 999 A.2d 794, cert. denied, 298 Conn. 912, 4 A.3d 834 (2010).

The prosecutor’s comments, however, were based on evidence admitted at trial and reflect an effort by the prosecutor to invite the jury to draw a reasonable inference that the defendant’s version of events that he was “going home” to Colt Street when he was found clad in mud covered pants and socks walking on a highway in the opposite direction lacked credibility. See id.; see also State v. Luster, 279 Conn. 414, 438, 902 A.2d 636 (2006) (when comment based on reasonable inference from evidence prosecutor may properly comment on witness’ credibility). Although the prosecutor used the pronoun “I,” his comments clearly related to the strength of the evidence, rather than his personal belief as to the defendant’s credibility. See State v. Moody, 77 Conn. App. 197, 217, 822 A.2d 990 (use of pronoun “I” in argument increases chances that arguments will deteriorate into expressions of personal opinion, but mere use of the pronoun “I” does not constitute improper argument), cert. denied, 264 Conn. 918, 827 A.2d 707, cert. denied, 540 U.S. 1058, 124 S. Ct. 831, 157 L. Ed. 2d 714 (2003).

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), but was found not guilty on that charge.

       Mona testified that in a “scout,” a dog is sent, on his own without a leash, to follow a specific scent.

       Our “sufficiency review does not require initial consideration of the merits of [the defendant’s evidentiary claims] .... Claims of evidentiary insufficiency in criminal cases are always addressed independently of claims of evidentiary error.” (Internal quotation marks omitted.) State v. Coyne, 118 Conn. App. 818, 826, 985 A.2d 1091 (2010).

         Police officers discontinued their search in the woods for the dark clothing when they stepped on an “underground wasps nest.”

       See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       Primo graduated “in the top two” of his class of eighteen.

       The defendant does not challenge the court’s ruling that a Porter analysis is not applicable but, rather, argues that the court erred in allowing the state to offer dog bite evidence.


author: BEAR, J.

text:
    STATE OF CONNECTICUT v. JUSTIN M. PACELLI
    (AC 33266)
    DiPentima, C. J., and Bear and Schaller, Js.

      Argued October 12
    officially released December 6, 2011

      John R. Williams, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, and Maria E. Sous, assistant state’s attorney, for the appellee (state).
   Opinion

BEAR, J.

The defendant, Justin M. Pacelli, appeals from the judgment of the trial court denying his motion for return of seized property. The defendant claims that the court deprived him of his rights under the state and federal constitutions in arbitrarily refusing to return his property to him. Because the defendant did not preserve his constitutional claims at trial or in his main brief affirmatively assert his entitlement to appellate review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), we are unable to review his appeal.

The following facts and procedural history are relevant to this appeal. The defendant was arrested on June 19,2010, and subsequently charged with disorderly conduct in violation of General Statutes § 53a-182 and threatening in the second degree in violation of General Statutes § 53a-62. The charges stemmed from a domestic violence complaint. A number of firearms, including a Kel-Tec .380 caliber pistol and a Saiga-12 shotgun, were seized from the defendant’s residence at that time. The defendant possessed a Connecticut pistol permit, which subsequently was surrendered to the department of public safety. In addition, a protective order was issued, along with a restraining order.

On November 23, 2010, after the defendant successfully had completed family violence counseling, the state nolled both charges. On February 3, 2011, the restraining order against the defendant expired. On February 10, 2011, the defendant’s pistol permit was returned to him. On February 23, 2011, the defendant, citing General Statutes § 54-36a, filed a motion for return of the Kel-Tec .380 caliber pistol and the Saiga12 shotgun. On March 4, 2011, after hearing argument, the court denied the motion. This appeal followed.

On appeal, the defendant claims that the court erred in denying his motion for return of seized property. Specifically, the defendant claims that the court deprived him “of rights secured to him by the constitution of the United States, the constitution of the state of Connecticut, and the Connecticut General Statutes when it arbitrarily refused to return his lawful property to him.” The defendant argues that he has a right to own firearms pursuant to the state and federal constitutions, subject only to reasonable state regulation. The defendant contends that the court’s refusal to return his property was not authorized by any Connecticut statute or regulation and, furthermore, that its decision was arbitrary, “based solely on its personal value judgments respecting firearms.”

The state argues that the defendant’s claims are unreviewable because they were not raised before the trial court and, therefore, are unpreserved. Furthermore, the state contends that the defendant has failed to establish his entitlement to review of his constitutional claims under State v. Golding, supra, 213 Conn. 233, because he failed to request Golding review in his main brief. The defendant concedes that his present claims were not raised before the trial court. Accordingly, we confine our analysis to whether he is entitled to review of his claims pursuant to Golding.

“It is a bedrock principle of appellate jurisprudence that, generally, claims of error not raised before the trial court will not be considered by a reviewing court. The principle is rooted in considerations of fairness as well as judicial economy.” State v. Elson, 125 Conn. App. 328, 340-41, 9 A.3d 731 (2010) (en banc), cert. granted, 300 Conn. 904, 12 A.3d 572 (2011). Nonetheless, “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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, supra, 213 Conn. 239-40.

“[A]s a prerequisite to Golding review, a party must affirmatively request review pursuant to Golding in its main brief.” State v. Elson, supra, 125 Conn. App. 346. In Elson, we defined “an affirmative request for review pursuant to Golding as nothing less than an explicit assertion and analysis in a party’s main brief that explains that, if the reviewing court deems a particular claim to be unpreserved, that claim nonetheless is reviewable on appeal because the record is adequate to review the claim and it is a claim of constitutional magnitude.” Id., 354-55. “It is inappropriate for a party to request review under Golding for the first time in its reply brief. See, e.g., Lebron v. Commissioner of Correction, [274 Conn. 507, 532, 876 A.2d 1178 (2005)] (declining to review claim under Golding when request appears for first time in reply brief); State v. Garvin, 242 Conn. 296, 312, 699 A.2d 921 (1997) (‘[t]he reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis’ . . .); State v. Rosario, 113 Conn. App. 79, 93, 966 A.2d 249 (declining to review claim under Golding because request for such review made for first time in reply brief), cert. denied, 291 Conn. 912, 969 A.2d 176 (2009); State v. Spiegelmann, 81 Conn. App. 441, 447, 840 A.2d 69 (same), cert. denied, 268 Conn. 921, 846 A.2d 882 (2004); Daniels v. Alander, 75 Conn. App. 864, 882-83, 818 A.2d 106 (2003) (same), aff'd, 268 Conn. 320, 844 A.2d 182 (2004); State v. Wright, 62 Conn. App. 743, 756, 774 A.2d 1015 (same), cert. denied, 256 Conn. 919, 774 A.2d 142 (2001); State v. Rodriguez, 60 Conn. App. 398, 399 n.1, 759 A.2d 123 (2000) (same), cert. denied, 255 Conn. 928, 767 A.2d 103 (2001); State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355 (same), cert. denied, 231 Conn. 909, 648 A.2d 158 (1994).” State v. Elson, supra, 125 Conn. App. 347-48.

In the present matter, in his reply brief the defendant for the first time explicitly states that his claims satisfy the requirements for review pursuant to Golding. The defendant’s main brief, however, is devoid of any reference to Golding, fails to request an extraordinary level of review, fails to address the adequacy of the record and fails to address the reviewability of his claim. Rather, the defendant’s main brief analyzes the merits of his claims under both the federal and state constitutions as though they were preserved properly. See id., 356 (declining review under Golding where main brief failed to address reviewability of claim).

The defendant’s invocation of Golding in his reply brief is unavailing. See id.; see also Lebron v. Commissioner of Correction, supra, 274 Conn. 532; State v. Rosario, supra, 113 Conn. App. 93. Moreover, to the extent that the defendant raises an argument with respect to the General Statutes, it is solely in connection with his constitutional claims and it is not raised as an independent basis for appeal.

The defendant has failed to properly request review of his unpreserved constitutional claims pursuant to Golding in his main brief. Accordingly, as we are bound by the precedents of this court and of the Supreme Court, including its very recent holding in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 32, 12 A.3d 865 (2011) (“the plaintiffs request, made for the first time in his reply brief, runs afoul of the well settled rule that a party may not seek Golding review for the first time in a reply brief’), we are unable to review his unpreserved claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the defendant argues that the only limitations Connecticut places on ownership of firearms are those codified in General Statutes § 53a-217c, which the defendant contends is inapplicable to the present matter. In addition, the defendant argues that General Statutes § 29-38c is inapplicable to the present matter.