author: LANDAU, J.

text:
    DENNIS STEIGER ET AL. v. J. S. BUILDERS, INC., ET AL.
    (13514)
    O’Connell, Landau and Schaller, Js.
    Submitted on briefs April 21
    decision released August 29, 1995

      Paul M. Geraghty filed a brief for the appellants (plaintiffs).

      Nicholas J. Gorra filed a brief for the appellee (named defendant).
   LANDAU, J.

The plaintiffs, Dennis Steiger and Carol Steiger, appeal from the judgment of the trial court, rendered after a bench trial, in their favor. They claim that (1) the trial court’s award of damages is against the weight of evidence and contrary to law, and (2) the trial court applied the incorrect standard in calculating the award of attorney’s fees pursuant to the contract and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We reverse the judgment in part.

This matter pertains to a contract entered into by the plaintiffs for the purchase of land and construction of a house. In September, 1987, the plaintiffs filed an eleven count complaint against J. S. Builders, Inc., Blue Spruce Developers, Inc., Tradewind Developers, Inc., John I. Slezak, Louisette Slezak and Susan Moreau. In their complaint, the plaintiffs alleged breach of contract, breach of warranties and a violation of CUTPA and asked the court, inter alia, to pierce the coiporate veil and to award damages and attorney’s fees pursuant to CUTPA.

Subsequently, the trial court entered defaults against each defendant. The court conducted a hearing in damages, at the conclusion of which it found the defendants to be liable for damages suffered by the plaintiffs in the amount of $26,142.83. The court also found that John I. Slezak had violated CUTPA and awarded $7500 in attorney’s fees.

I

The plaintiffs’ first claim, although partially couched in a challenge to the trial court’s conclusions of law, is no more than an attack on the factual findings of the court. They argue that the evidence presented at the hearing overwhelmingly established that the award of damages should have been greater.

“Our role in reviewing an appeal based on the sufficiency of the evidence is well defined. Where the claim is that the evidence produced did not satisfy the burden of proof factually, the duty of an appellate court is well established. An appeal based on the sufficiency of evidence to support a factual finding carries a legal and practical restriction to review. The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. ... It is, however, not our function to retry the case or to pass upon the credibility of witnesses. . . . Kelman v. McDonald, 24 Conn. App. 398, 400-401, 588 A.2d 667 (1991). Naughton v. Hager, 29 Conn. App. 181, 184-85, 614 A.2d 852, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992).” (Internal quotation marks omitted.) Clement v. Clement, 34 Conn. App. 641, 650, 643 A.2d 874 (1994). “ ‘Where there is conflicting evidence, as claimed by the [plaintiffs], we do not retry the facts or pass on the credibility of the witnesses.’ ” Emhart Industries, Inc. v. Amalgamated Local Union 376, U.A.W., 190 Conn. 371, 404, 461 A.2d 422 (1983). The probative force of conflicting evidence is for the trier to determine. Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 257, 524 A.2d 610 (1987). “In a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).

The trial court was presented with conflicting evidence in the form of various expert testimony as to the resultant cost of remedying the construction defects. The court heard the witnesses, judged their credibility and, in its memorandum of decision, set out a full and thorough finding of facts, upon which it based its award of damages. After a careful review of the whole record, we are satisfied that the trial court had sufficient evidence to support its factual findings and, therefore, was not clearly erroneous in its determination of damages.

II

The plaintiffs next claim that the trial court applied the wrong standard in calculating the award of attorney’s fees pursuant to both the contract and CUTPA. We agree.

In its memorandum of decision, the trial court found that “the conduct of the defendant John Slezak clearly was contrary to public policy and was deceptive re: using an unlicensed plumber and that CUTPA has been violated. The plaintiffs’ claim for attorney’s fees against the corporate and individual defendants Slezak and Moreau was for $22,000 plus costs. On the basis of the cases noted above [Hernandez v. Monterey Village Associates Ltd. Partnership, 24 Conn. App. 514, 517 n.3, 589 A.2d 888 (1991), and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974)], this is clearly not warranted and would equal the damages the court is allowing [$26,142.83]. There must be some reasonable relationship to the end result and the attorney’s fees. The court allows $7500 for attorney’s fees as against these defendants.” (Emphasis added.)

The trial court has discretion whether to award attorney’s fees under CUTPA and “ ‘the exercise of such discretion will not ordinarily be interfered with on appeal unless the abuse is manifest or injustice appears to have been done.’ ” Nielsen v. Wisniewski, 32 Conn. App. 133, 138, 628 A.2d 25 (1993), quoting Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987); see General Statutes § 42-110g. The issue here, however, is not whether attorney’s fees and costs could be or should have been awarded within the discretion of the trial court, but rather, whether the court applied the correct standard in setting the amount of attorney’s fees. After determining that John Slezak had violated CUTPA, the trial court found evidence of attorney’s fees against “the corporate and individual defendants Slezak and Moreau” in the amount of $22,000 plus costs. It awarded only $7500, however, clearly disallowing the remainder on the rationale that the larger award “would equal the damages the court is allowing” and that “[t]here must be some reasonable relationship to the end result and the attorney’s fees.” In support of this rationale, the court cited Hernandez v. Monterey Village Associates Ltd. Partnership, supra, 24 Conn. App. 517 n.3.

Hernandez involved a class action brought under CUTPA, in which the plaintiff tenants alleged that the defendant owner and operator of an apartment complex was attempting to evict members of the class in violation of state and local law, the United States Housing Act of 1937, and an agreement between the defendant and the housing authority of the city of Norwalk pursuant to § 8, of the Moderate Rehabilitation Housing Assistance Payments Program, 42 U.S.C. § 1437f (e) (2). Id., 515-16. After the trial court rendered judgment in accordance with a stipulation, the plaintiffs filed a motion for attorney’s fees and costs pursuant to § 42-110g (d). Id., 516. We concluded that the trial court had improperly denied the motion and remanded the case for an evidentiary hearing to determine whether the plaintiffs should receive attorney’s fees and costs and, if so, what amount they should receive. Id., 517. We then noted that “Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717-19, sets forth the factors to be considered by the trial court if it determines that the plaintiffs are entitled to attorney’s fees and costs.” Id., 517 n.3.

In Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 715, the question before the Fifth Circuit Court of Appeals concerned the adequacy of attorney’s fees awarded by the District Court in an “ ‘across-the-board’ action to remedy employment discrimination” pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Circuit Court of Appeals set out twelve guidelines for the District Court to consider on remand in setting reasonable attorney’s fees: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee for similar work in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson v. Georgia Highway Express, Inc., supra, 717-19.

As under CUTPA, a District Court has discretion under Title VII to award the prevailing party reasonable attorney’s fees. 42 U.S.C. § 2000e-5 (k). Mindful that the purpose of Title VII “is to effectuate the congressional policy against racial discrimination”; Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 716; the Court of Appeals in Johnson noted that the guidelines are an attempt “to enable litigants to obtain competent counsel worthy of a contest with the caliber of counsel available to their opposition and to fairly place the economical burden of Title VII litigation.” Id., 719.

The guidelines set forth in Johnson for calculating reasonable attorney’s fees are appropriate in CUTPA litigation because, similar to Title VII, “CUTPA seeks to create a climate in which private litigants help to enforce the ban on unfair or deceptive trade practices or acts.” Hinchliffe v. American Motors Corp., 184 Conn. 607, 618, 440 A.2d 810 (1981). Our review of whether the trial court correctly applied the guidelines and set a reasonable award of attorney’s fees is limited to a consideration of whether the court abused its discretion. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717.

In this case, the trial court focused on only one of the twelve enunciated guidelines—the reasonableness of the relationship between the award of attorney’s fees and the award of damages. We conclude that the trial court abused its discretion in seizing from the full panoply merely one guideline, to the exclusion and disregard of the others. To interpret the attorney’s fees provision of CUTPA so narrowly would render insignificant the legislative intent—it would neither enhance the private CUTPA remedy, nor serve to encourage private CUTPA litigation. See Hinchliffe v. American Motors Corp., supra, 184 Conn. 617.

The judgment is reversed only as to the award of attorney’s fees and costs and the case is remanded for a hearing to determine, consistent with this opinion, the amount of attorney’s fees and costs that the plaintiffs may recover.

In this opinion the other judges concurred.

       See footnote 2.

       Because our ruling under CUTPA principles is dispositive, we need not consider the plaintiffs’ claim pursuant to contract theory.

       The trial court’s finding that John Slezak violated CUTPA raises an issue as to the court’s scope of authority at the hearing in damages. In this case, the court entered defaults as to each defendant, causing the case to proceed to a hearing in damages. Subsequent to the defaults, which were never opened, the defendants did not provide written notice of their intent to contradict the allegations in the complaint pursuant to Practice Book § 367. Section 367 provides in part that “[i]n any hearing in damages upon default suffered . . . the defendant shall not be permitted to offer evidence to contradict any allegations in the plaintiffs complaint, except such as relate to the amount of damages, unless he has given notice to the plaintiff of his intention to contradict such allegations and of the subject matter which he intends to contradict . . . .” In the absence of such notice, “[a] default in an action for legal and equitable relief admits the material facts constituting a cause of action.” (Internal quotation marks omitted.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 445, 551 A.2d 1220 (1988). Thus, because of the defaults, the defendants admitted the plaintiffs’ allegation that all the defendants had violated CUTPA. Nonetheless, the trial court found that only John Slezak was liable under CUTPA. Although the court was incorrect in limiting its finding of a CUTPA violation, after determining that attorney’s fees should be permitted, it correctly assessed the amount against all the defendants. A “judgment will be affirmed, though based on erroneous grounds, if the same result is required by law.” (Internal quotation marks omitted.) Smith v. Zoning Board of Appeals, 227 Conn. 71, 88, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994).

       General Statutes § 42-110g provides in pertinent part: “(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. . . . The court may, in its discretion; award punitive damages and may provide such equitable relief as it deems necessary or proper. . . .

        “(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. . . .”

       But see Clark v. American Marine Corp., 320 F. Sup. 709, 711 (E.D. La. 1970), aff'd, 437 F.2d 959 (5th Cir. 1971).

       The Court of Appeals in Johnson also noted that, in applying the guidelines, the goal of enabling Title VII litigants to afford competent counsel should be balanced against the caveat that courts do not have a mandate under Title VII to make the prevailing counsel rich. Johnson v. Georgia Highway Express, Inc., supra, 488 F.2d 717.

       In remanding this case, we express no observation as to the correctness of the original amount awarded.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. .2 ACRES KNOWN AS 319 JACKSON STREET, WILLIMANTIC
    (12879)
    Landau, Schaller and Spear, Js.
    Argued May 22
    decision released August 29, 1995

      Roger L. LeClair, pro se, the appellant (defendant owner).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Mark S. Solak, state’s attorney, and Richard Preston, assistant state’s attorney, for the appellee (plaintiff).

      Richard S. Cody, for the town of Windham.
   LANDAU, J.

The issues in this case arise from a stipulation entered into by the parties in an in rem action brought by the state against the defendant, .2 Acres known as 319 Jackson Street, Willimantic. The subject property is owned by Roger LeClair (defendant).

The facts relevant to our resolution of this matter are not in dispute. In 1992, the plaintiff state instituted a criminal prosecution against the defendant for intentional violations of the building and health codes in connection with his ownership of 319 Jackson Street. The state simultaneously commenced a civil in rem action against the Jackson Street real property. In the in rem action, the state alleged that the property constituted a nuisance and was subject to forfeiture and disposition pursuant to General Statutes § 54-33g.

Subsequently, on April 2, 1993, the trial court found that the state and the defendant had entered into a stipulation, pursuant to which the defendant agreed (1) to demolish the structure at 319 Jackson Street in accordance with an obtained permit, (2) to remove and stump all shrubbery, trees and brush from the premises, (3) to obtain a written opinion from a licensed engineer determining whether the remaining foundation was structurally sound, (4) if the foundation was deemed unsound, to demolish it and fill and grade the hole, and (5) if the foundation was deemed sound, to cap or roof it in accordance with an obtained permit.

On September 15, 1993, the trial court found that the defendant had failed to comply with the stipulation and granted the state’s pending motion for judgment, resulting in the forfeiture of the property. The defendant subsequently filed a “Repudiation of Judgment,” which the trial court treated as a motion to set aside the judgment and which it denied. This appeal followed.

The defendant, appearing pro se, claims that the trial court improperly granted the state’s motion for judgment of forfeiture and denied his motion to set aside the judgment. At the April 2, 1993 proceeding, after the stipulation was read into the record, the defendant indicated that he approved of the terms of the agreement. The state argues that it is clear from the record that the defendant understood the substance of the stipulation and the consequence that would result from noncompliance with its terms, i.e., that the trial court would grant the state’s pending motion for judgment of forfeiture. For this reason, the state asserts that the defendant agreed to a “conditional stipulated judgment,” pursuant to which a judgment of forfeiture in favor of the state was the penalty for noncompliance with the terms of the stipulation.

“ ‘A stipulated judgment has been defined by our Supreme Court as a contract of the parties acknowledged in open court and ordered to be recorded by a court of competent jurisdiction. Gillis v. Gillis, 214 Conn. 336, 339, 572 A.2d 323 (1990); Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). The essence of the judgment is that the parties to the litigation have voluntarily entered into an agreement setting their dispute at rest and that, upon this agreement, the court has entered judgment conforming to the terms of the agreement. Gillis v. Gillis, supra, 339-40.’ Bank of Boston Connecticut v. DeGroff, 31 Conn. App. 253, 255, 624 A.2d 904 (1993).” Woodside Village-Stratford Assn. v. Hertzmark, 36 Conn. App. 73, 75, 647 A.2d 759 (1994).

Because we consider a stipulation a contract between the parties approved by the court, its terms “may not be extended beyond the agreement entered into.” Owsiejko v. American Hardware Corp., 137 Conn. 185, 187-88, 75 A.2d 404 (1950). While “[t]he court has the power to issue orders necessary to protect the integrity of the stipulated judgment . . . it may not enlarge or lessen the scope of the judgment. ... If there is a lack of conformity between stipulation and judgment, an appeal may properly be taken from the refusal of the court to grant a motion to correct the judgment. ...” (Citations omitted.) Bank of Boston Connecticut v. DeGroff, supra, 31 Conn. App. 256. It also necessarily follows from the nature of a stipulated judgment “that if the judgment conforms to the stipulation it cannot be [opened] or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake. . . . Gillis v. Gillis, supra, 214 Conn. 340; Bank of Boston Connecticut v. DeGroff supra [256].” (Internal quotation marks omitted.) Woodside Village-Stratford Assn. v. Hertzmark, supra, 36 Conn. App. 75.

Our initial consideration, then, is whether the judgment in this case was rendered in conformance with the stipulation, such that it constitutes a stipulated judgment. To do so, we must determine the true scope of the stipulation and then compare it with the nature of the judgment. In our analysis, we must keep in mind that the defendant in this case appears pro se, as well as that the judgment entailed forfeiture.The appellate courts of this state consistently have been solicitous of the rights of pro se litigants. Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519-20, 370 A.2d 1306 (1976). Thus, in ascertaining the true scope of the stipulation, we must be mindful that the defendant might have understood only the explicit provisions. Second, as a general rule, forfeiture is not favored. See State v. One 1981 BMW Automobile, 5 Conn. App. 540, 543, 500 A.2d 961 (1985).

Our review of the transcript of the April 2, 1993 proceeding reveals that neither the parties nor the trial court stated that the defendant’s noncompliance with the stipulation would result in a judgment of forfeiture. Also, the terms of the stipulation itself do not provide a penalty for noncompliance. The defendant agreed only to perform the remedial actions delineated previously, within a certain amount of time and at his expense. Thus, when it granted the state’s motion for judgment of forfeiture on the ground that forfeiture was the penalty for noncompliance pursuant to the stipulation, the trial court extended the terms of the stipulation beyond those agreed on. See Owsiejko v. American Hardware Corp., supra, 137 Conn. 187-88. For this reason, we conclude that the trial court improperly rendered the judgment of forfeiture and, consequently, improperly denied the defendant’s motion to set aside the judgment.

The judgment, is reversed and the case is remanded with direction to grant the defendant’s motion to set aside the judgment.

In this opinion the other judges concurred.

       Although technically the in rem proceeding was against the real property, we will refer to LeClair as the defendant because General Statutes § 54-33g (b) provides that, if the property owner appears, “he shall be made a party defendant in such case.”

       General Statutes § 54-33g provides in pertinent part: “(a) When any property believed to be possessed, controlled, designed or intended for use or which is or has been used or which may be used as a means of committing any criminal offense . . . has been seized as a result of a lawful arrest or lawful search, which the state claims to be a nuisance and desires to have destroyed or disposed of in accordance with the provisions of this section, the judge or court issuing the warrant . . . shall, within ten days after such seizure, cause to be left with the owner of ... a summons notifying the owner ... to appear before such judge or court, at aplace and time named in such notice, which shall be not less than six nor more than twelve days after the service thereof. . . .
      “(c) If the judge or court finds the allegations made in such complaint 1o be true and that the property has been possessed, controlled or designed for use, or is or has been or is intended to be used, with intent to violate or in violation of any of the criminal laws of this state ... he shall render judgment that such property is a nuisance and order the same to be destroyed or disposed of to a charitable or educational institution or to a governmental agency or institution . . . .”

        On the same day, the trial court dismissed with prejudice the criminal charges against the defendant.

         The defendant raises a number of other claims, none of which we need address in our disposition of this appeal. In turn, the state claims that we should refrain from granting appellate review because the defendant failed to brief his claims adequately, to preserve his claims and to provide an adequate record. “It is well established that our courts will allow great latitude to pro se litigants like the defendant. Mechanics Savings Bank v. Tucker, 178 Conn. 640, [643] 425 A.2d 124 (1979); Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929).” Maresca v. Allen, 181 Conn. 521, 521 n.1, 436 A.2d 14 (1980). We have read the defendant’s brief in that spirit. Also, with respect to the claim that we address, we conclude that the defendant properly preserved the issue by filing his motion to set aside the judgment and that the record is adequate for review.


author: LAVERY, J. FOTI, J.,

text:
    STATE OF CONNECTICUT v. RONALD OWENS
    (12777)
    Foti, Lavery and Landau, Js.
    Argued February 9
    decision released August 29, 1995

      Brigid Donohue, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Herbert E. Carlson, Jr., supervisory assistant state’s attorney, and Kimberly A. Graham, assistant state’s attorney, for the appellee (state).
   LAVERY, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of, inter alia, burglary in the first degree in violation of General Statutes § 53a-101 (a) (1) and robbeiy in the first degree in violation of General Statutes § 53a-134 (a) (3). The defendant has not challenged his conviction of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The defendant claims on appeal that he is entitled to a new trial on the charges of (1) burglary in the first degree because the trial court instructed the jury on a theory of culpability that was unsupported by the evidence, and because the trial court instructed the jury that it could convict the defendant for engaging in conduct that did not constitute that crime, and (2) robbery in the first degree because the trial court instructed the jury that it could convict the defendant for engaging in conduct that did not constitute that crime.

The jury could reasonably have found the following facts. On June 9, 1992, at approximately 2:30 a.m., the victim was awakened by the buzzer to her Hartford apartment. The victim looked out a window and saw the defendant, who was her godfather and a friend of her family. The defendant said that he wanted to talk to her and to give her some money for her mother. The victim pushed the buzzer in her apartment to unlock the front door to the apartment building.

The defendant entered the building and came up the stairs. When the victim unlocked the door to her apartment, he pushed his way in and asked the victim whether she was alone. The victim replied that she was not alone. The defendant than asked if he could have some water. The victim told the defendant to get the water himself and she went to her bedroom to put on sweatpants.

The defendant came up behind the victim in her bedroom saying that he knew that she was alone and that he intended to rape her. He choked her with one hand and held a knife in the other. The victim recognized the knife as one of her steak knives. Despite the victim’s protests, the defendant forced the victim onto the bed, removed her clothing and sexually assaulted her.

After the sexual assault, the defendant asked the victim for money. The victim went to the hall closet, with the defendant still choking her, and gave him “a dollar and something” from her coat pocket. The defendant then asked the victim if she had any more money. The victim replied that she might have some money in her wallet. The defendant then brought the victim back into her bedroom where she took $10 from her pocketbook and handed it to the defendant. At that time, the defendant was still holding the knife in his hand. The entire incident lasted approximately fifteen to twenty minutes.

I

The defendant first claims that he is entitled to a new trial on the charge of burglary in the first degree because the trial court instructed the jury on a theory of culpability for which there was no evidence. We disagree.

There are two theories under which the defendant could have been convicted of burglary in the first degree. The state charged that the defendant committed burglary in the first degree when he committed all the elements of simple burglary and “entered and remained unlawfully . . . and was armed with a dangerous instrument, a knife.” The defendant could therefore have been convicted under the theory that he was armed with a dangerous instrument when he entered unlawfully or under the theory that he was armed with a dangerous instrument when he remained unlawfully. The state presented evidence at the trial that established that the defendant obtained the knife used in the incident from the victim’s kitchen after he was already inside the apartment. The state presented no evidence from which a jury could have reasonably concluded that the defendant had the knife in his possession when he entered the apartment.

The trial court then instructed the jury that it could convict the defendant if it found that he was armed with a dangerous instrument while entering the building unlawfully or armed with a dangerous weapon while remaining unlawfully in the building. The trial court made this instruction despite the lack of evidence that the defendant was armed with the knife when he entered the apartment. The trial court, in effect, instructed the jury that it could convict the defendant on a theory of culpability for which no evidence was presented.

The state claims that this issue should not be reviewed as this claim was not preserved at trial. The defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). As the defendant’s claim does not meet the second prong of Golding, that the claim must be of constitutional magnitude alleging the violation of a fundamental right, this claim should not be reviewed.

The defendant argues that the Supreme Court has concluded that an unpreserved claim in which the jury was instructed on an alternative theory of culpability for which there was insufficient evidence is reviewable because that claim implicated a constitutional right. See State v. Allen, 216 Conn. 367, 388, 579 A.2d 1066 (1990); State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987). Recently, however, our Supreme Court held that such claims do not implicate a constitutional right. State v. Chapman, 229 Conn. 529, 539-44, 643 A.2d 1213 (1994).

In Chapman, the trial court instructed the jury that it could convict the defendant of sexual assault in the first degree if it found that he had forced the victim to engage in sexual intercourse while he either used force or threatened to use force against her. Id., 536. No evidence was presented at trial to prove that the defendant had threatened the use of force, although evidence was presented that the defendant had used force. Id., 536 n.5. In this case, our Supreme Court concluded that the instruction was not a federal due process violation, but was merely an instructional error. Id., 539.

In Chapman, the Supreme Court relied on Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), noting: “When . . . jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence . . . .” (Internal quotation marks omitted.) State v. Chapman, supra, 229 Conn. 539. The court further noted: “It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance— remote, it seems to us—that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient.” (Internal quotation marks omitted.) Id., 540.

Our Supreme Court found that the claim that the jury was instructed on an alternative theory of liability for which there was insufficient evidence did not implicate the defendant’s federal due process rights. The present claim, therefore, is not of constitutional magnitude and fails the second prong of Golding. We will not review this claim.

II

The defendant next claims that he is entitled to a new trial on the charge of burglary in the first degree because the trial court instructed the jury that it could convict the defendant for engaging in conduct that did not constitute that crime. He asserts that the balance of the trial court’s charge failed to cure this misstatement of law. We agree and reverse the judgment of the trial court.

Although the defendant did not preserve this claim at trial, we will review it on appeal. It is a fundamental constitutional right to be convicted of a crime only upon proof beyond a reasonable doubt of all the essential elements of the crime. U.S. Const., amend. XIV; Conn. Const., art. I, § 8; In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Our Supreme Court has held that a claim that the trial judge improperly instructed the jury on the elements of an offense is reviewable even if not raised at trial. State v. Williams, supra, 202 Conn. 363; State v. Hill, 201 Conn. 505, 512-13, 518 A.2d 388 (1986); State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985). We will therefore review this claim.

General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and . . . [h]e is armed with ... [a] dangerous instrument . . . .” After the trial court gave its instruction on the elements of simple burglary, it gave the following instruction on the elements constituting first degree burglary. “Additionally, since this is a charge of burglary in the first degree, you must find that the defendant, at the time of the acts charged, was armed with a dangerous instrument. This means that at some point of entering or remaining in the building, or in immediate flight from it, had actual physical possession of a dangerous instrument.” (Emphasis added.)

The trial court’s instruction thus allowed the jury to convict the defendant of first degree burglary if it found that he was armed with a dangerous instrument: (1) while entering the building unlawfully, (2) while remaining in the building unlawfully, or (3) while in immediate flight from the building. The instruction is problematic as the third part of the instruction does not describe conduct that constitutes the crime of first degree burglary. The language of the first degree burglary statute does not proscribe such conduct. In other words, a person who commits all the essential elements of simple burglary and is armed with a dangerous instrument when in immediate flight from the building has not committed burglary in the first degree.

In a case very similar to the one at hand, our Supreme Court found the jury instruction improper. In State v. Belton, 190 Conn. 496, 509-10, 461 A.2d 973 (1983), the court held: “By instructing the jury that they could find the requisite aggravating circumstance within the meaning of § 53a-101 (a) (1) if they concluded that the defendant has actual physical possession of a dangerous instrument while in immediate flight from the building, the trial court impermissibly enlarged an essential element of the crime as charged within the information.” (Emphasis added.)

Even if we conclude that the charge was improper, our analysis does not end there. The test we apply is whether it is reasonably possible that the jury was misled. State v. Johnson, 188 Conn. 515, 527, 450 A.2d 361 (1982). “In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. State v. Estep, 186 Conn. 648, 651-52, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Farlow v. Connecticut Co., 147 Conn. 644, 648, 166 A.2d 202 (1960); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); State v. Holmquist, 173 Conn. 140, 151, 376 A.2d 1111, cert. denied, 434 U.S. 906, 98 S. Ct. 306, 54 L. Ed. 2d 193 (1977). The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. State v. Roy, 173 Conn. 35, 40, 376 A.2d 391 (1977); State v. Mullings, 166 Conn. 268, 274-75, 348 A.2d 645 (1974). State v. Estep, [supra, 652]. State v. Maturo, 188 Conn. 591, 599, 452 A.2d 642 (1982). State v. Jasper, 200 Conn. 30, 37, 508 A.2d 1387 (1986). . . . State v. Dyson, 217 Conn. 498, 501-502, 586 A.2d 610 (1991). The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict. State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). State v. Fuller, [199 Conn. 273, 279, 506 A.2d 556 (1986)]. . . . State v. Anderson, [227 Conn. 518, 532, 631 A.2d 1149 (1993)].” (Internal quotation marks omitted.) State v. Ash, 231 Conn. 484, 493-94, 651 A.2d 247 (1994).

The chance that the jury was misled by the instruction on “immediate flight” is very possible in the case at hand because of the evidence submitted and arguments presented on that point. The state presented testimony that the knife was never recovered from the victim’s apartment, justifying an inference that the defendant fled the apartment with the knife. The state admitted into evidence a knife from the same set because the actual knife was not available. Defense counsel stated in closing that the proof of the crimes was minimal, citing the fact that no knife had been recovered. The state in closing stated that, “relating to no knife and no money, well, you know, that’s because the defendant took them with him.” After hearing the evidence and closing statements, the jury was then instructed that a finding that the accused had fled the building with the knife was sufficient evidence for conviction of first degree burglary.

By instructing the jury that it could convict the defendant of first degree burglary if it found that he was armed with a dangerous instrument while in immediate flight from the building, the trial court permitted the jurors to convict the defendant of first degree burglary for conduct that did not constitute that crime. Thus, this first degree burglary conviction might have been based on the jury’s finding of circumstances clearly not punishable as first degree burglary.

Ill

The defendant next claims that he is entitled to a new trial on the charge of robbery in the first degree because the trial court instructed the jurors that they could convict the defendant for engaging in conduct that did not constitute that crime. We agree and reverse the judgment. Although this claim is unpreserved, for the reasons set forth in the previous claim, we will review this claim as well.

General Statutes § 53a-134 (a) sets forth several distinct ways of committing first degree robbery. The state charged the defendant under subdivision (3), “uses or threatens the use of a dangerous instrument . . . .” Subdivision (2) of the statute, under which the defendant was not charged, forbids being “armed with a deadly weapon . . . .”

The trial judge instructed the jurors that they could find the defendant guilty of first degree robbery if they found, in addition to elements of simple robbery, that the defendant was “armed with a dangerous instrument.” This instruction allowed the jury to convict the defendant of first degree robbery without proof that the defendant had used or threatened to use a dangerous instrument, as required by the statute.

The terms “armed” and “uses or threatens the use of’ are not synonymous. Our Supreme Court interpreted “armed” to mean “ ‘furnished with weapons of offense or defense: fortified, equipped.’ ” State v. Anderson, 178 Conn. 287, 293-94, 422 A.2d 323 (1979), quoting Webster’s Third New International Dictionary. The court noted that to be armed simply requires that a weapon be in one’s possession. State v. Anderson, supra, 294. “[I]t is not necessary for a weapon to be exhibited, displayed, utilized or referred to in order for one to be considered ‘armed.’ ” Id. The court found that it was possible to be armed without threatening the use of a weapon. Id.; see also State v. Dolphin, 203 Conn. 506, 518, 525 A.2d 509 (1987) (second degree robbery not lesser included offense of first degree robbery because possible to be “armed” without displaying or threatening to use weapon).

Elementary statutory construction as well as the cases comparing the terms “armed” and “used or threatened use” make it clear that the court was incorrect in telling the jury it could convict of first degree robbery on a finding that the defendant was “armed with a dangerous instrument.”

In viewing the charge as a whole, it is possible that the jury was misled by the court’s erroneous instruction. The court did state the charge accurately when it read the fourth count of the information aloud at the beginning of the instruction on the crime, yet the court then went on to instruct the jury that all that was required was that the defendant be “armed with a dangerous instrument.” The court repeated the improper charge again when summarizing the elements of the crime. The court misstated this element at the conclusion of its instruction on first degree robbery. Because it was at the end of the robbery instructions and because the robbery instruction was itself the last of all the instruction on the four crimes charged, the jury may have remembered it especially well or placed particular emphasis on it. See State v. Rose, 19 Conn. App. 423, 427, 562 A.2d 583 (1989).

This instructional error was harmful because the jury was improperly instructed that mere possession of the dangerous instrument was sufficient for conviction of first degree robbery.

The judgment is reversed only as to the charges of burglary in the first degree and robbery in the first degree and the case is remanded for a new trial on those charges.

In this opinion LANDAU, J., concurred.

FOTI, J.,

dissenting. I concur with parts I and III of the majority opinion, but I respectfully disagree with part II, where the majority concludes that it is reasonably possible that the jury was misled. While I agree that the portion of the charge, in isolation, injected an incorrect element into the offense of burglary in the first degree, I must also conclude that when viewed as a whole, the charge could not reasonably have misled the jury.

“ ‘The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.’ . . .” (Citations omitted.) State v. Ash, 231 Conn. 484, 494, 651 A.2d 247 (1994). My review of the entire charge leads me to conclude that the improper instruction was harmless beyond a reasonable doubt. The question of “harmlessness of a jury instruction is properly gauged by reference to both the language of the entire charge and the evidence in the case . . . .’’Id., 496. The evidence of the knife, as presented by the state, is more than adequately set forth in the majority opinion. Given the factual circumstances of this case, I do not believe that the jury could have found the defendant guilty without first making the proper factual finding that the defendant remained unlawfully in the victim’s apartment with the knife, a dangerous instrument. See State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990). The single, isolated misstatement, in the context of an otherwise appropriate charge, did not reasonably mislead the jury. The trial court, on a number of occasions while instructing on the law of burglary in the first degree, correctly charged the jury that an element of that offense is that a person enters or remains unlawfully in a building, while armed with a dangerous instrument. The single inconsistent phrase in this otherwise proper charge, to which the defendant failed to note an exception, did not deprive him of a fair trial, and did not reasonably mislead the jury. For this reason I would affirm the judgment of conviction as to the charge of burglary in the first degree.

Accordingly, I respectfully dissent.

       The trial court also read the substitute long form information to the jury, which correctly set forth the elements on the charge of burglary in the first degree. The jury had that information during deliberations.


author: HEIMAN, J.

text:
    DARIEN K. SERGEANT v. GARY P. SERGEANT
    (13562)
    O’Connell, Landau and Heiman, Js.
    Argued May 23
    decision released August 29, 1995

      David P. Ball, for the appellant (defendant).

      Joy Kony Peshkin, with whom, on the brief, was Bruce A. Foodman, for the appellee (plaintiff).
   HEIMAN, J.

In this dissolution action, the defendant appeals from the judgment of the trial court ordering the distribution of proceeds from the sale of various antiques co-owned by the parties. On appeal, the defendant claims that the trial court improperly distributed the proceeds of that sale pendente lite without holding an evidentiary hearing and without considering the factors enumerated in General Statutes § 46b-81 (c). We dismiss the defendant’s appeal as untimely filed.

The following facts are necessary for the resolution of this appeal. The plaintiff and the defendant were married in 1983 and became partners in an antiques dealership known as Sergeant Antiques. The parties operated their antiques business out of two shops in New Preston and used their marital residence as a third location where their inventoiy of antiques could be stored, displayed and sold.

On January 11, 1993, the plaintiff instituted an action seeking a dissolution of her marriage to the defendant. Pending the dissolution, the defendant voluntarily left the marital residence and the parties entered into a stipulation that granted the plaintiff exclusive possession of the marital home. The defendant unilaterally dissolved Sergeant Antiques and the parties began to maintain the two shops in New Preston separately. Both the plaintiff and the defendant maintained records of the items sold and made regular accountings to each other of their sales.

On May 28, 1993, a hearing was held on each parties’ motion to enjoin the other from disposing of the inventory of Sergeant Antiques. The defendant testified to his concern that the plaintiff was removing inventory from the marital residence and selling it without his input as to price. The defendant alleged that the plaintiff might have been selling items at a price lower than the item’s value and sought an order of the court that any items for which the parties could not agree on a price would not be sold. In response, the plaintiff argued that such an order would allow the defendant to prohibit the sale of all of the antiques stored in the marital residence by refusing to agree with the plaintiff as to price. The plaintiff suggested that, in the event of disagreement as to price, a third party appraiser could be used and the parties could be bound by that appraisal. The trial court urged the parties to come to an agreement on the issue and declared a recess to give the parties an opportunity for further discussion.

During the recess, the parties came to an agreement, which they reported to the court. In the agreement, the parties stipulated that they would try to agree on the value of as many items as possible and that an expert appraiser, Ron Bourgeault, would appraise and value any items on which the parties could not agree. Until the items were valued, the parties stipulated that they would be held at the marital home and would not be sold. Items for which the parties had agreed on a price could, however, be sold by the parties. The parties further stipulated that the proceeds of the sale of these items would be distributed as follows: each party would receive one half of the proceeds of any items selling for more than $5000; the proceeds of items selling for less than $5000 could be kept and used by the party selling the item, but monthly accountings would be made to the other party. The trial court accepted the agreement of the parties and entered it as an order of the court. No appeal was taken within twenty days of the issuance of this order nor were any motions filed within the appeal period that would have extended the time to appeal. See Practice Book §§ 4009 and 4040.

Nearly ten months later, no appraisal had been conducted and the parties had not agreed on the price of any of the antiques held for resale in the marital residence. On March 16, 1994, the defendant filed a motion for a further restraining order seeking to enjoin the plaintiff from selling any of the items located in the marital residence until “written agreement of the parties or further order of the court.” The defendant interpreted the May 28 order to allow only for the sale of those items for which the parties could agree on the price. The defendant alleged that the plaintiff had threatened to sell the items located in the marital residence once they had been appraised and a value established. In opposition, the plaintiff alleged that the defendant had refused to cooperate in the pricing of the items located in the marital residence and had interfered with efforts to obtain the third party appraisal by Bourgeault. After hearing arguments, the trial court ordered that Sotheby’s be substituted to appraise the items and, upon appraisal, they could then be sold by the plaintiff for not less than the appraised value. The order further provided that the proceeds of those items would be distributed as provided in the original order that was entered by stipulation of the parties.

On April 29,1994, the defendant appealed, raising only the issue of whether the trial court properly ordered distribution of the proceeds of the sale of the co-owned assets. The plaintiff timely moved to dismiss the defendant’s appeal as untimely filed and for lack of a final judgment. We denied the plaintiffs motion without prejudice to his right to raise the issues at the time of full hearing. We now dismiss the defendant’s appeal as untimely filed.

“The right of appeal is purely statutory and is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. . . . Practice Book [§ 4009] sets forth a clear and specific timetable for the filing of an appeal from a judgment of the trial court.” (Citations omitted; internal quotation marks omitted.) DeTeves v. DeTeves, 202 Conn. 292, 295, 520 A.2d 608 (1987). “Pursuant to Practice Book § 4009, a party appealing shall file an appeal within twenty days from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken.” Matka Corp. v. Automated Material Handling, Inc., 34 Conn. App. 723, 725, 643 A.2d 276 (1994). The period in which to file an appeal may be extended by filing a motion for extension of time to appeal; Practice Book § 4040; or by filing a motion “which, if granted, would render the judgment or decision [appealed from] ineffective . . . .” Practice Book § 4009.

Here, the defendant appealed only from the trial court’s order regarding the distribution of the proceeds of the sale of the parties’ antiques. This order was entered, by stipulation of the parties, on May 28, 1993. The defendant did not file an appeal from this judgment within the twenty day appeal period, and did not file any motion during the appeal period which, if granted, would have rendered the judgment or decision ineffective. See Practice Book § 4009. Nor did the defendant file a motion for extension of time to file an appeal within the time provided by Practice Book § 4040. The trial court’s orders dated April 18, 1994, did nothing to affect the manner in which the proceeds were distributed, but ordered only that the sale of the items appraised by Sotheby’s would become part of the original order. We, therefore, dismiss the defendant’s appeal, which attacks only the order of distribution, as untimely filed.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 4(ib-81 provides in pertinent part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. The court may pass title to real property to either party or to a third person or may order the sale of such real property, without any act by either the husband or the wife, when in the judgment of the court it is the proper mode to carry the decree into effect. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       All of the antiques in this dispute were purchased by the parties with a Connecticut resale tax number.

       Practice Book § 4056 provides in pertinent part: “Any claim that an appeal or writ of error should be dismissed, whether based on lack of jurisdiction, failure to file papers within the time allowed or other defect, shall be made by a motion to dismiss the appeal or writ. Any such motion must be filed in accordance with Secs. 4041 and 4042 within ten days after the filing of the appeal or the return day of the writ, or if the ground alleged subsequently occurs, within ten days after it has arisen, provided that a motion based on lack of jurisdiction may be filed at any time. . .
      The defendant’s appeal was filed on April 29, 1994. The plaintiffs motion to dismiss was filed on May 9, 1994, within the ten day limit enumerated in Practice Book § 4056.

       The plaintiff again raised the issue of timeliness of the defendant’s appeal in her brief filed with this court.

       Because we dismiss the defendant’s appeal as untimely, we need not address the plaintiffs additional grounds for dismissal that the decision from which the defendant appealed is not a final judgment.

       Practice Book § 4009 provides in pertinent part: “The party appealing shall, within twenty days, except where a different period is provided by statute, from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal in the manner prescribed by Sec. 4012; but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment or to set aside the verdict or for judgment notwithstanding the verdict, the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion or the expiration of the time within which a remittitur is ordered filed. . . .”

       Practice Book § 4040 provides in pertinent part: “(a) If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal, except as may be otherwise provided in these rules. In no event shall the trial judge extend the time for filing the appeal to a date which is more than twenty days from the expiration date of the original appeal period. Where a motion for extension of the period of time within which to appeal has been filed at least ten days before expiration of the time limit sought to be extended, the party seeking to appeal shall have no less than ten days from issuance of notice of denial of the motion to file the appeal. . . .
      “(4) A motion for extension of time shall be filed at least ten days before the expiration of the time limit sought to be extended or, if the cause for such extension arises during the ten day period, as soon as reasonably possible after such cause has arisen. No motion under this rule shall be granted unless it is filed before the time limit sought to be extended by such motion has expired. ...”

       See footnote 6.

       We note that even if the defendant’s appeal were timely filed, we would still be required to dismiss it because the judgment appealed from was entered pursuant to a stipulation. “[A stipulated judgment] cannot be [opened] or set aside without the consent of all the parties, unless it is shown that the stipulation was obtained by fraud, accident or mistake. . . . A party seeking to open or set aside a judgment must do so by motion to the trial court.” (Citations omitted; internal quotation marks omitted.) Woodside Village-Stratford Assn. v. Hertzmark, 36 Conn. App. 73, 75, 647 A.2d 759 (1994), citing Gillis v. Gillis, 214 Conn. 336, 339-40, 572 A.2d 323 (1990). The failure of the defendant to challenge the judgment properly in the trial court would require us to dismiss the appeal. See Woodside Village-Stratford Assn. v. Hertzmark, supra, 76.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. JAMIE PETTWAY
    (12386)
    O’Connell, Foti and Heiman, Js.
    Argued May 26
    decision released August 29, 1995

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Nicholas J. Bove, Jr., assistant state’s attorney, for the appellee (state).
   FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes (Rev. to 1991) § 53a-134 (a) (4) and General Statutes § 53a-133. The defendant claims that the trial court improperly (1) denied his motion to suppress identification evidence, (2) failed to grant a mistrial, (3) refused to allow evidence offered by him, and (4) instructed the juiy on the issues of identification, flight and reasonable doubt. The defendant also claims that the evidence was insufficient to support a conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 22, 1992, at approximately 10:05 p.m., the victim, Henry Forte, drove to a gas station on North Main Street in Bridgeport and began pumping gas at a self-service pump. At that time, he noticed the defendant and a second man watching people at the cashier’s booth. The two men approached the victim. The defendant took the gas pump from the victim’s hands and dropped it on the ground, saying, “My friend has a gun, we want your money, hand over your wallet.” The second man motioned with his hand under his jacket as if he had a gun. The victim then gave the wallet to the defendant, who removed $260 from it, and the two men then ran from the scene. The robbery was committed in approximately two minutes. The victim called 911 and gave a description of the two men. The police arrived at the scene within ten minutes and, approximately ten minutes later, another police car arrived. When the defendant was removed from the backseat of the second car stating that he had not committed the crime, the victim identified him as the person who had robbed him and also stated that he recognized the defendant’s voice. The victim also identified the shirt the defendant was wearing as being the same type of shirt worn by the robber. The defendant was placed under arrest. He had $110 in his possession, consisting of one $50 bill and three $20 bills. The money taken from the victim consisted of one $50 bill, several $20 bills, one $10, one $5 and some $1 bills.

I

A

The defendant first argues that the trial court improperly denied his motion to suppress the out-of-court identification in violation of his constitutional right to due process. He claims that the identification should have been suppressed because the procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification in violation of the fifth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The trial court denied the defendant’s motion to suppress the victim’s out-of-court identification after a full evidentiary hearing. We agree with the determination of the trial court.

“It is well settled that [in] determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 206, 544 A.2d 1199 (1988). It is the defendant’s burden, as the party moving to suppress identification evidence, to establish that the identification resulted from the use of an unconstitutional procedure by the police. State v. Carswell, 36 Conn. App. 336, 341, 650 A.2d 924 (1994). Our review of the record leads us to conclude that the trial court acted properly in denying the defendant’s motion to suppress.

The facts presented at the hearing and relevant to this issue are as follows. The victim was approached by two men. One man stood directly in front of him and the other, the defendant, stood at the victim’s side. The victim looked directly at the defendant’s face. The gas station was very well lit, and the defendant was approximately two to three feet away from the victim during the robbery. The defendant was wearing a red flannel shirt, which was unbuttoned, over a white T-shirt, and sneakers. The victim believed that the defendant’s pants were jeans. The other man wore a khaki or dark blue-green parka, jeans, and a fur hat. After the two men ran, the victim called the police and gave a description of both of them.

Bridgeport police officer Victor Diaz was patrolling with Sergeant Mathew Cuminotto in the Beardsely Terrace-Trumbull Avenue area, and they responded to a report of an armed robbery at Main and Overland Streets. The broadcast included a description of two black males, one wearing a hat and the other wearing a red shirt. The two men ran down Overland Street toward Beardsely Terrace. Diaz and Cuminotto drove toward the location of the robbery, stopping at the comer of Chopsey Hill and Trumbull Avenue because they observed two men who matched the description walking across the street. One of the men had a fur hat. When the officers approached the two men, the one wearing the hat ran into the woods and the other, the defendant, kept walking toward the police car. The officers pulled alongside the defendant and stopped to talk with him. Cuminotto asked the defendant to go back to the robbery scene with them. The defendant was cooperative and accompanied the police without any resistance. The defendant was frisked for weapons, but was neither handcuffed nor under arrest at that time, and he was wearing a white shirt with a reddish tinge. It had been raining and the defendant appeared to be perspiring.

The officers brought the defendant to the scene in a police car within twenty minutes of the robbery. At that time, the defendant was wearing only a T-shirt and jeans. The police told the victim that they had apprehended a suspect and asked the victim to identify him. When the defendant exited the police car, the victim walked past him and heard him speaking. Once he saw the defendant and recognized his voice, the victim knew that he was the robber. The victim testified that he was positive that the defendant was the robber.

The sole purpose of the suppression hearing was to determine the validity of the one-on-one identification. The defendant’s counsel argued that the identification procedure was both unnecessarily suggestive and unreliable. The court denied suppression, ruling that the identification procedure did not result in a substantial likelihood of irreparable misidentification. The defendant sought an articulation of that ruling and also asked the court to decide whether the defendant’s detention had been illegal. The articulation reviewed the evidence adduced at the hearing and stated the principles of law relevant to the suppression of identification procedures. The court articulated that the show-up identification was suggestive but not unnecessarily so because it “was necessary to eliminate possible innocent parties and to provide Forte with an opportunity to identify his assailants while his memory was fresh.” The court further found on the basis of the totality of the circumstances that the identification was reliable. The court made no findings concerning either the factual basis for, or the legality of, the defendant’s return to the scene for the identification.

A one-on-one identification is inherently suggestive; State v. Mitchell, 204 Conn. 187, 201, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); it conveys the message that the police have reason to believe the suspect is guilty. State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982). While such a show-up, or one-on-one confrontation, may be suggestive, it does not necessarily follow that such a procedure is impermissibly or unnecessarily suggestive. State v. King, 35 Conn. App. 781, 786, 647 A.2d 25, cert. granted, 231 Conn. 937, 650 A.2d 174 (1994); see State v. Mitchell, supra, 201.

In the present case, the defendant was brought to be viewed by the victim after the victim was told by the police that “we caught the. person, we’re going to have you identify him.” This could possibly have led the victim to conclude that the police believed the suspect to be the robber. See State v. Tatum, 219 Conn. 721, 727, 595 A.2d 322 (1991). Thus, we disagree with the trial court that the initial identification procedure was not imper-missibly suggestive.

The next inquiry under the two-pronged approach is whether the identification, in the context of the totality of the circumstances, was nevertheless reliable. “In determining whether an identification is reliable in the totality of circumstances, the corruptive influence of the suggestive procedure is weighed against the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation.” (Internal quotation marks omitted.) State v. Pollitt, 205 Conn. 132, 164, 531 A.2d 125 (1987). This inquiry is fact-bound, made on an ad hoc basis, and the court’s decision is not to be reversed unless there is clear and manifest error. State v. King, supra, 35 Conn. App. 788.

We are satisfied, after our review of the record, that the trial court correctly concluded that the identification was reliable under the totality of circumstances. The court considered the victim’s opportunity to view the criminal at the time of the crime, the distance between the victim and the defendant, the lighting at the scene of the crime, the certainty of the identification, the length of time between the incident and the one-on-one confrontation, and the voice recognition, along with the victim’s description of the defendant’s clothing and general appearance. Under these circumstances, we must conclude that the trial court properly denied the defendant’s motion to suppress.

B

The defendant also argues on appeal that he was seized without reasonable and articulable suspicion, and the resulting identification was the product of the illegal seizure. Our review of the record, however, discloses that the only issue raised by the defendant as part of his motion to suppress was the validity of the identification procedure. The defendant concedes that the issue of illegal seizure was not raised in his motion to suppress, and the trial court was not alerted as to this issue during the evidentiary hearing. The defendant does not concede that this claim was not properly preserved. In the alternative, however, he argues that if the preservation is deemed insufficient, we should review pursuant to Evans-Golding. State v. Golding, 213 Conn. 233,567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We decline to review this claim because the defendant has not satisfied the first prong of Golding, namely, that the record is adequate to review the alleged claim of error. State v. Golding, supra, 239-40.

Whether a person in an individual case has been “seized” so as to invoke the protection of the fourth amendment is a question of fact. State v. Ostroski, 186 Conn. 287, 292, 440 A.2d 984, cert. denied, 459 U.S. 878, 103 S. Ct. 173, 74 L. Ed. 2d 142 (1982); State v. Ostroski, 184 Conn. 455, 458, 440 A.2d 166 (1981). The defendant argues that he was seized and that the seizure was not based upon a reasonable and articulable basis of suspicion. Whether there exists a reasonable and articulable suspicion depends on the totality of the circumstances. State v. Ober, 24 Conn. App. 347, 353, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 26 (1991). Review of a trial court’s determination of whether a reasonable and articulable suspicion exists “involves a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). The trial court must consider whether, in light of the totality of the circumstances, the police had a particularized and objective basis for suspecting that person of criminal activity. State v. Harrison, 30 Conn. App. 108, 112, 618 A.2d 1381 (1993). The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts found. State v. Pierog, 33 Conn. App. 107, 112, 634 A.2d 301 (1993). The trial court found no facts and made no conclusions in this regard. The record is not adequate to review this claim. Because the defendant cannot satisfy the first prong of Golding, we decline to review this claim.

II

The defendant next claims that the trial court improperly denied his motion for a mistrial. We disagree.

On the second day of trial, the trial judge heard the telephone ringing in his chambers. Thereafter, he told the jury that he assumed it had been his wife calling because he had asked her to call at that time. He expressed his concern that she might be worried at his failure to answer the telephone at the appointed time, and stated to the jury “I’m sure she thinks someone is here spraying me with machine-gun fire, so I’m going to go call her and assure, you know ... so for that reason, I am going to take a short recess for that purpose.”

When court resumed after the weekend, the defendant’s counsel moved for a mistrial. The court denied the motion, but agreed to give a curative instruction, prepared by the defendant, even though the court expressed its belief that there had not been any prejudice from the remark. In its final instruction, the court stated to the jury: “Now it occurs to me that at one point in the trial I said something to you before one of our breaks that I should briefly comment upon. I believe that I mentioned I was waiting for a call from my wife, and words to the effect she may be concerned for me because I was sitting in Bridgeport. I want to assure you ladies and gentlemen, as I’m sure you know, that my comment had absolutely nothing to do with the facts of this case; the state’s position, the defendant’s position, the presumption of innocence that a defendant is entitled to, or the state’s burden of proving the defendant guilty beyond a reasonable doubt.” The defendant did not object to the instruction.

“[A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial . . . and the whole proceedings are vitiated. ... On appeal, the defendant bears the burden of establishing that the occurrence was so prejudicial, in the context of the trial as a whole, that it denied him a fair trial. . . . The decision to grant or deny a motion for a mistrial is within the sound discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Traficonda, 223 Conn. 273, 282, 612 A.2d 45 (1992). The trial court also has broad discretion in determining whether the defendant was prejudiced. See Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Leonard, 31 Conn. App. 178, 195, 623 A.2d 1052, cert. granted, 226 Conn. 912, 628 A.2d 985 (1993).

The defendant argues that “it is impossible to imagine the machine gun comment would not impact upon the jury and taint the proceedings.” We do not agree. The defendant has failed to sustain his burden of demonstrating that the comment so prejudiced the jury as to deny him a fair trial. While the comment was not appropriate, particularly given the fact that it was made during a robbery trial, the court’s misplaced attempt at levity does not warrant the extreme measure of a mistrial. Further, the court’s instructions were curative on the point.

Ill

Next, the defendant claims that the trial court improperly violated his state and federal constitutional rights to present a defense by refusing to allow evidence in the form of testimony about the clothing the defendant was wearing when he entered the jail after his arraignment on November 23, 1992, the day after the crime. The defendant attempted to elicit testimony from three witnesses that the clothing worn by the defendant the day after the crime differed from the clothing described by the victim as worn by the robber. The trial court sustained the state’s objection to this testimony on the basis of relevancy. The court stated that, unless it could be shown that the defendant had not changed his clothes from the time of the arrest to the time of his arrival at the jail the next day, the testimony would be excluded.

Questions concerning the relevance of evidence are left to the discretion of the trial court and will not be disturbed unless the court has clearly abused that discretion in its resolution. State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987). It is the court’s right, and its duty, to exclude irrelevant evidence. State v. Daniels, 8 Conn. App. 190, 194, 512 A.2d 936 (1986). We agree that when evidence is excluded on evidentiary grounds, that exclusion may give rise to a claim of denial of the right to present a defense. State v. Riddle, 36 Conn. App. 821, 828, 654 A.2d 784 (1995). However, “[t]he right to present a defense is subject to appropriate supervision by the trial court in accordance with established rules of procedure and evidence. State v. Carter, 228 Conn. 412, 426-27, 636 A.2d 821 (1994).” Id. The right to present a defense includes the right to present witnesses, and in exercising this right, the defendant is still bound by the rules of evidence. State v. Kelly, 208 Conn. 365, 375-76, 545 A.2d 1048 (1988).

Evidence is admissible when it either tends to establish a fact in issue or to corroborate other direct evidence in the case. State v. Alvarez, 216 Conn. 301, 304, 579 A.2d 515 (1990). One fact is relevant to another when, “according to the common course of events, the existence of one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable.” Id. The defendant argued that the evidence of what he wore the day following his arrest was relevant to the victim’s credibility. He argued that the evidence would lead the jury to question the victim’s description of the clothing worn by the defendant on the day of the crime. The existence of one fact, what the defendant wore the day following his arrest, does not make certain or more probable the existence of the other fact, that the clothes worn the previous day were different, absent some evidence to connect the two such as testimony that the clothes had not been changed in the meantime. The evidence was properly excluded as not relevant.

IV

It is the defendant’s contention that the trial court improperly instructed the jury on the issues of identification, reasonable doubt and flight as consciousness of guilt. The defendant argues that by failing to charge as requested, the trial court violated the defendant’s right to due process. We disagree.

A

The defendant, through counsel, submitted a thirteen page request to charge. He sought specific language on the issue of identification. On appeal, the defendant argues that the charge as given was inadequate in that it failed to include his requested language that the state must prove identity beyond a reasonable doubt.

“In a criminal proceeding, there is no duty to charge the jury in the identical language requested as long as the charge is accurate, adequate and its substance properly includes material portions of the defendant’s request.” State v. Suarez, 23 Conn. App. 705, 710, 584 A.2d 1194 (1991). Our review of the charge that was given in the present case demonstrates that it meets these standards. Throughout the charge, the court emphasized that the state’s burden was to prove the defendant guilty beyond a reasonable doubt, that they should acquit him unless they were satisfied beyond a reasonable doubt of his guilt, and that the defendant was presumed to be innocent and did not have to put on any evidence or prove anything. In charging on the elements of each crime, the court told the jury that they must first determine whether the defendant committed the crime, or whether the accused was the one guilty of the crime charged. The court finally instructed the jury that “[w]hen you go into the jury room to deliberate on the evidence in this case you should ask yourself this question: Am I convinced beyond a reasonable doubt of the guilt of the particular accused charged in this information?”

The court also instructed at length as to the jury’s function when dealing with the credibility of the witnesses and the weight to be given their testimony. The court specifically charged: “On the issue of identification, you should take into account the following: You should consider whether or not the victim had the opportunity to observe the features which he described in court, the conditions under which he made those observations, the time he had to view the perpetrator of the crime, and the distance between him and the perpetrator of the crime, whether the witness knew the person before the identification. You should also consider the description which he gave to the police, and the length of time between the giving of that description and the incident in question.

“You should also take into account the circumstances under which he first viewed and identified the defendant, the suggestibility or lack of suggestibility of that procedure used in viewing, and all other facts which you find relating to the reliability or lack of reliability of the identification of the accused.”

While the court did not refer to the witnesses by name or review the testimony of each, the substance of the defendant’s request as it related to identification was conveyed to the jury, thereby fulfilling the court’s obligation. See State v. Delgado, 13 Conn. App. 139, 145, 535 A.2d 371 (1987).

B

The defendant submitted a request to charge dealing with flight as evidence of consciousness of guilt. The defendant requested that the jury be reminded that he had not fled when the officers approached him and that they could consider that fact as evidence consistent with consciousness of innocence. The defendant’s requested instructions were given, along with other instructions. On appeal, the defendant claims that the instruction on flight was confusing in that it referred to both flight from the scene of the crime and flight from the police officers at the time of the apprehension.

We find that the defendant’s claim is without merit. The trial court was not obligated to give the defendant’s requested instruction. This court has previously upheld the trial court’s refusal to give a similar instruction, finding no support in law for such a request. See State v. Jennings, 19 Conn. App. 265, 273, 562 A.2d 545, cert. denied, 212 Conn. 815, 565 A.2d 537 (1989). Here, the trial court chose to give the instruction as requested by the defendant. In fact, the instruction included language identical to language contained in the defendant’s request. The remainder of the instruction on flight conformed to our case law. On the basis of our review of the entire instruction, we find that the instruction was not confusing to the jury.

C

The defendant requested an extensive charge on reasonable doubt. He added that he objected to any language that described reasonable doubt as one for which a jury can assign a reason or one that a person would act upon or would be willing to act upon or pay heed and attention to. The trial court’s charge on reasonable doubt, while it did not contain the “assign” language, contained the description of a reasonable doubt as one “which in the serious affairs which concern you in everyday life, you would pay some heed or attention to.” The defendant alleges that this instruction diluted the state’s burden of proof.

When reviewing the challenged jury instruction, we must “determine whether, taken as a whole, [the charge] fairly and adequately presents] the case to [the] jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) State v. Taylor, 37 Conn. App. 464, 469, 657 A.2d 659 (1995). The court’s instructions concerning reasonable doubt are the same or similar to jury instructions that have been consistently approved by this court and by our Supreme Court. State v. Goodman, 35 Conn. App. 438, 442, 646 A.2d 879, cert. denied, 231 Conn. 940, 653 A.2d 824 (1994). When viewed in the context of the entire charge, the challenged instructions did not lessen the state’s burden to prove the defendant guilty beyond a reasonable doubt. See State v. Crosby, 36 Conn. App. 805, 815, 654 A.2d 371, cert. denied, 232 Conn. 921, 656 A.2d 669 (1995); State v. Leonard, supra, 31 Conn. App. 178.

V

The defendant’s final claim is that the evidence was insufficient to support a conviction for robbery in the first degree. We disagree.

The charging document in this case alleged that the defendant, in the course of the robbery, “displayed what he represented by his words or conduct to be a firearm.” Following the presentation of evidence, the defendant moved for a judgment of acquittal. The defendant argued that it had not been proven that he displayed a firearm. Following the denial of the defendant’s motion, the state filed a supplemental request to charge that added the statutory language “he or another participant in the crime . . . displays or threatens the use of what he represents by his words or conduct to be a . . . firearm.”

On appeal, the defendant argues that the state charged the commission of the crime in a limited manner in both the information and the bill of particulars. He argues that, therefore, the state was limited to proving that the defendant committed the robbery “in substantially the manner described,” and that the state failed to prove that the defendant “displayed what he represented by his words or conduct to be a firearm.” He further argues that he was prejudiced in his defense as a result of a material variance between the allegations in the bill of particulars and the proof at trial.

Under the United States constitution and the Connecticut constitution, a criminal defendant has “the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Internal quotation marks omitted.) State v. Scognamiglio, 202 Conn. 18, 22, 519 A.2d 607 (1987). Displaying or threatening the use of what a defendant represents to be a firearm are two methods of committing the same crime. See State v. Franko, 199 Conn. 481, 488, 508 A.2d 22 (1986). The defendant’s conviction under either theory would bar a subsequent prosecution for the same offense. Therefore, for the defendant to establish an infringement of his constitutional rights, he must demonstrate that he was unfairly surprised or prejudiced in the preparation of his defense. Id., 490. We conclude that the defendant has failed to demonstrate either in this case.

During the preliminary instructions to the jury the court read the information, which accused the defendant of robbery in the first degree and gave the statutory citation. The court thereafter read the statute, which contains the words “he or another participant . . . displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver ... or other firearm . . . .” (Emphasis added.) In describing the elements of the crime, the court again indicated that the defendant had to have “displayed or threatened the use of what he represented to be a firearm.” (Emphasis added.)

During its final instructions, the court explained that the charge under the statute meant that “[the defendant] or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a [firearm].” Thereafter, the court instructed that the state was required to prove, under the information, that “the defendant . . . displayed or threatened the use of what the defendant represented by his words or conduct to be a pistol, revolver ... or other firearm. . . . The statute requires only that he or another participant displayed or threatened the use of what he represented to be a firearm. . . . ‘Represented’ means that he indicated without necessarily displaying it that he had a firearm.” The defendant did not object to these instructions. Also, the defendant did not object to the introduction of evidence that he had threatened the use of what he represented to be a firearm in the possession of his accomplice. The trial court’s instructions, along with the defendant’s failure to object to the evidence, negates any claim of unfair surprise.

Although the information alleged that the defendant had violated § 53a-134 (a) (4) by the display of what he represented to be a firearm, it is clear that the state presented evidence sufficient to support a conviction under the alternate statutory theory, i.e., that he threatened the use of what he represented by his words or conduct to be a firearm. See State v. Franko, supra, 199 Conn. 492. We view this as a variance between the pleadings and the proof. There was sufficient evidence to convict on the uncharged theory with no lack of proper notice nor prejudice to the defendant. Id., 493. “The state could properly have moved during trial for permission to amend the information to conform with this . . . proof [regarding the threatened use of what the defendant represented to be a firearm]. Practice Book § 624. In the absence of prejudice to the defendant, the trial court would have been justified in permitting such an amendment . . . .” Id., 492.

We conclude that the evidence was not insufficient to convict the defendant of the crime charged.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s motion for judgment of acquittal was granted as to one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a), 53a-133 and 53a-134 (a) (4).

       General Statutes (Rev. to 1991) § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.”
      General Statutes § 53a-133 provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       There was no objection made to an in-court identification of the defendant by the victim. The defendant argues, however, that if the out-of-court identification was inadmissible, then the in-court identification must also be inadmissible.

       The defendant’s motion to suppress, while alluding to the fourth amendment to the United States constitution, asks for the suppression of identification evidence “as fruits of improper, unreliable, and unnecessarily suggestive identification procedures.”

       The defendant’s claim is under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution.

       The defendant’s request to charge on the issue of identification provided: “Ladies and Gentlemen, you have heard testimony from Mr. Henry Forte in this case. The vagaries of eyewitness identification are well known and you should receive with caution any identification testimony from an eyewitness and consider carefully whether or not that witness is accurate in his belief and his testimony. You should scrutinize with care all such eyewitness identification. You should consider what opportunity Mr. Forte had to make an observation, whether or not he had seen the defendant before and all of the other circumstances surrounding such observation. Eyewitness identification is sometimes unreliable but its weight like the weight of any testimony is ultimately for you to decide.
      “Therefore, Ladies and Gentlemen, the State has the burden of proving identity beyond a reasonable doubt. You the jury must be satisfied beyond a reasonable doubt of the accuracy of the identification of an accused before you can convict him. If you are not convinced beyond a reasonable doubt that the defendant, Jamie Pettway, was the person who committed the offense, then you must find him not guilty. In this case, Ladies and Gentlemen, you have heard testimony from Mr. Forte concerning the fact that he was really tired the evening of the incident. [Mr. Forte] also stated that this incident was a very stressful and frightening experience. You also heard him say that he received certain information from one of the arresting officers before he made his identification. In addition, you heard several conflicts in his testimony with regard to the clothing worn by the people who robbed him. I will instruct you Ladies and Gentlemen that it is proper for you to consider these or any other factors and circumstances that could affect Mr. Forte’s identification of Mr. Pettway. As I have already charged you, it is for you alone to determine the [weight] of such testimony in your determination whether the State has met its burden of proving the identity of Mr. Pettway beyond a reasonable doubt.”

       The defendant’s request to charge provided: “In cases where a suspect has fled from the scene of a crime, such flight may be considered as evidence of a consciousness of guilt in the mind of the suspect. In this case there has been evidence presented that [the defendant] did not flee when police officers approached him on November 22, 1992. You may consider this evidence of absence of flight as evidence which is consistent with [the defendant’s] consciousness of innocence.”

       The trial court instructed the jury as follows: “Flight when unexplained tends to prove a consciousness of guilt. The flight of an accused from a crime is a circumstance which, when considered together with all of the facts of the case, may justify a finding of the defendant’s guilt. ... If you find that the defendant was fleeing from the scene of a robbery, you may consider it as evidence of his consciousness of guilt. . . . It is up to you to give the evidence the weight to which you think it is entitled.
      “Now in cases where a suspect had fled from the scene of a crime, such flight may be considered as evidence of consciousness of guilt in the mind of the suspect. In this case, there has been evidence that [the defendant] did not flee when the police officers approached him after the alleged robbery .... You may consider this evidence of absence of flight from the police officers as evidence which is consistent with [the defendant’s] consciousness of innocence.”

       The state’s supplemental request to charge provided: “Robbery in the first degree is defined as follows in [§] 53a-134 (a) (4): ‘A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.’ ”

       The relevant constitutional provisions are the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

      Although the preliminary instructions cannot take the place of the detailed final instructions, we cite these only to demonstrate that the defendant may not claim surprise by the final instructions or that his defense was prejudiced by the evidence being on a slightly different theory than as charged in the information.