author: BEACH, J.

text:
    STATE OF CONNECTICUT v. KYLE COLLINS
    (AC 30127)
    DiPentima, Beach and Stoughton, Js.

      Argued March 11
    officially released October 5, 2010

      Deborah G. Stevenson, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Roger S. Dobris, senior assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

BEACH, J.

The defendant, Kyle Collins, appeals from the judgments of the trial court finding him in violation of probation pursuant to General Statutes § 53a-32. The defendant claims that (1) the court acted improperly by applying the preponderance of the evidence standard to determine his identity, (2) the pretrial identification procedure was unnecessarily suggestive, thereby tainting an in-court identification of him, (3) the court abused its discretion when it admitted certain documentary evidence pertaining to Kyle Collins, (4) the state adduced insufficient evidence to prove the identity of the defendant and (5) the court erred when, dining an allegedly critical stage of the proceeding and in the absence of the defendant, it made a determination regarding competence. We affirm the judgments of the trial court.

The following facts and procedural history are relevant. In connection with conduct occurring in 1996, the defendant was charged in two separate informations with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21. In June, 1999, the defendant pleaded guilty under the Alford doctrine to the charges in both files. The court, Fasano, J., imposed in each file a total effective sentence of twenty years incarceration, execution suspended after nine years, with ten years probation, and ordered the sentences to run concurrently with one another.

On September 15, 2006, the defendant was released from custody and his probation commenced. A condition of the defendant’s probation required him to report to Matthew Boyhen, a probation officer. When the defendant failed to report to Boyhen, a warrant for his arrest was issued. The defendant subsequently was arrested and charged with violation of probation.

On November 28, 2007, the court, Damiani, J., granted the defendant’s motion for a competency evaluation. On December 14, 2007, after a letter had been written to the court, reporting that the defendant had refused to attend a competency evaluation, the court presumed that the defendant was competent to stand trial.

At the probation revocation hearing before the court, Holden, J., the defendant maintained that he was not Kyle Collins, but was, in fact, Alex Morales. After the presentation of evidence, the court, in its oral decision, found that Kyle Collins and Alex Morales were the same individual and subsequently found the defendant to be in violation of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court acted improperly by applying the preponderance of the evidence standard to determine his identity. We are not persuaded.

This issue was not raised at trial, and the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s claim is reviewable under Golding because the record is adequate for review, and, for purposes of this case, we treat the question regarding the state’s burden of proof as being of constitutional magnitude.

During the violation of probation proceeding, the defendant’s position was that he was not Kyle Collins, but was, in fact, Alex Morales. Only Kyle Collins was subject to conditions of probation. Following the presentation of evidence, the court found that Kyle Collins and Alex Morales were the same individual. The defendant argues that the court improperly applied the preponderance of the evidence standard when making this finding, when the proper standard to be used is that of beyond a reasonable doubt.

In probation revocation proceedings, the state must prove by a fair preponderance of the evidence that the defendant has violated probation. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994). The question of whether the state must prove the defendant’s identity, if raised, beyond a reasonable doubt is a tantalizing one. We have been unable to find much guidance from case law on this issue; the question of identity in the context of a violation of probation hearing likely is rarely raised. We need not resolve this issue today, however, because the court, in resolving the issue of identity, stated that it was even more certain of the defendant’s identity than required by the reasonable doubt standard. In its oral decision, the court found that “by [a] fair preponderance of the evidence, the state has sustained its burden of proof in the violation of probation matter. As a fair preponderance of the evidence . . . the court believes that . . . Kyle Collins and [Alex] Morales are one and the same individual.” The court, then, initially mentioned the preponderance of the evidence standard as it ordinarily applies. It went on to state, however, that it “ha[d] no doubt that the person sitting there next to [defense counsel] is named Kyle Collins. . . . This court has no doubt that this person’s one and the same who’s convicted of sexual assault in the first degree and . . . risk of injury to a minor.” (Emphasis added.) Whether the appropriate standard in a probation revocation proceeding regarding the defendant’s identity is preponderance of the evidence or beyond a reasonable doubt, the court’s statement that it had “no doubt” as to the defendant’s identity demonstrated that it believed that both standards had been more than satisfied. As a result, the defendant’s argument fails under the third prong of Golding because the claimed error—that the court found the defendant’s identity only by a preponderance of the evidence—did not occur.

II

The defendant next claims that a pretrial identification procedure was unnecessarily suggestive, thereby tainting an in-court identification of him. We decline to review this claim.

Eduardo Palmieri, a chief probation officer, testified that he had supervised a probationer named Kyle Collins in 1993 for a period of six months, during which time he met with Collins approximately forty times. Palmieri testified that “I was informed that Kyle Collins was downstairs [in lockup] for a violation of probation and was denying that he was, in fact, Kyle Collins. I walked down to the lockup ... to clear that up for the state’s attorney . . . .” Palmieri testified that during the encounter, the defendant told him that “he wasn’t Kyle Collins.” Palmieri then made an in-court identification of the defendant as Kyle Collins.

The defendant argues that the pretrial identification procedure, which occurred when Palmieri spoke with him in the lockup, was unnecessarily suggestive. He argues that, as a result, Paimieri’s in-court identification of him as Kyle Collins was tainted. The defendant seeks review of his unpreserved claim pursuant to Golding.

Although there is some question whether the defendant provided analysis of this unpreserved claim under Golding or the plain error doctrine; see Practice Book § 60-5; the claim nevertheless fails because there is an inadequate record. Defense counsel did not make a motion to suppress the identification or object to the admission of Paimieri’s identification, and no evidentiary hearing was held regarding the evidence. Consequently, the court did not make any factual findings or legal conclusions concerning the suggestiveness of the procedures employed or the reliability of Palmieri’s in-court identification. Without such findings, the record is inadequate for our review. See State v. Necaise, 97 Conn. App. 214, 219, 904 A.2d 245 (resolution of whether pretrial identification procedure violates defendant’s due process rights requires fact-finding function of trial court), cert. denied, 280 Conn. 942, 912 A.2d 478 (2006); State v. Sargent, 87 Conn. App. 24, 30, 864 A.2d 20, cert. denied, 273 Conn. 912, 870 A.2d 1082 (2005). Accordingly, there is an inadequate record from which to review the defendant’s claim.

Ill

The defendant next claims that the state adduced insufficient evidence to prove his identity. He argues that the only evidence in this regard was Palmieri’s in-court identification of the defendant, which was tainted by an unnecessarily suggestive pretrial identification procedure. We disagree.

There was sufficient evidence from which the court could have found that the defendant is Kyle Collins. Palmieri identified the defendant as Kyle Collins. As explained in part II of this opinion, the record is inadequate for us to review the defendant’s claim that Palmieri’s in-court identification of the defendant was unreliable. Palmieri testified that he was “a hundred percent positive” that the person seated next to the defense counsel is Kyle Collins. It was solely within the province of the finder of fact to determine what weight to afford this identification. See State v. Fleming, 111 Conn. App. 337, 345, 958 A.2d 1271 (2008), cert. denied, 290 Conn. 903, 962 A.2d 794 (2009).

Although “in-court identifications . . . [are] sufficient evidence by themselves to allow the trier of fact to conclude that it was the defendant who committed the crimes charged”; State v. Morgan, 274 Conn. 790, 802, 877 A.2d 739 (2005); the state produced additional evidence that the defendant is Kyle Collins. The state introduced a booking photograph of the defendant taken on July 21, 2007, the date that the defendant admitted that he was arrested for violation of probation. The state also introduced earlier booking photographs bearing the same New Haven police department identification number of an individual whom Palmieri identified as Kyle Collins. The court reasonably could have noted the similarity in facial features of the person in each of the photographs.

Additionally, the defendant’s responses during his testimony reasonably could have indicated to the court that he was not familiar with what supposedly was his name. After being duly sworn, the defendant was at first unable to spell “Alex.” Additionally, the defendant immediately responded to the first question posed by the prosecutor to “Mr. Collins.” The defendant’s claim that the evidence regarding his identity was insufficient fails.

IV

The defendant next claims that the court abused its discretion when it admitted certain documentary evidence pertaining to Kyle Collins. We disagree.

During the hearing, the state entered into evidence various documentary exhibits pertaining to Kyle Collins. Boyhen testified regarding the procedural history of the defendant’s case. He stated that Kyle Collins was on probation for two counts each of sexual assault in the first degree and risk of injury to a child and that he had signed the conditions of probation. The state thereafter entered, as full exhibits, Kyle Collins’ criminal informations and conditions of probation. Following the testimony of John Dziekan, an assistant clerk at the Superior Court in New Haven, regarding the transcripts of the underlying criminal proceedings of Kyle Collins, three transcripts of those proceedings were admitted as full exhibits. The state introduced three booking photographs taken by the New Haven police department of Kyle Collins after Palmieri testified that the subject of the photographs was Kyle Collins. Each photograph bore the offender identification number “62720.” The photographs were taken, respectively, on January 27 and February 2, 1986, and July 21, 2007, the day that the defendant was arrested for violation of probation. Defense counsel objected to the admission of the documentary evidence on each occasion, claiming that it was irrelevant because the defendant was not Kyle Collins. The trial court overruled the objections.

The defendant argues that the evidence was irrelevant because it pertains to Kyle Collins and does not pertain to the defendant because he is Alex Morales. The court did not abuse its discretion in admitting the evidence because, as explained in part III of this opinion, the state adduced sufficient evidence to prove that the defendant is Kyle Collins. Accordingly, the documentary evidence was relevant to show the defendant’s prior convictions and the conditions of his probation. The booking photographs were admitted further to prove that the defendant is Kyle Collins.

The defendant also argues that the documentary evidence pertaining to Kyle Collins was admitted improperly because it was admitted before the question of identity was proven. The defendant cannot prevail on this claim. Connecticut Code of Evidence § 1-3 (b) provides: “When the admissibility of evidence depends upon connecting facts, the court may admit the evidence upon proof of the connecting facts or subject to later proof of the connecting facts.” “It is not unusual to admit an exhibit into evidence before its relationship to the issues of a case has been established. . . . This procedure may expedite the trial, and it is ordinarily not prejudicial because the exhibit may be stricken if the necessary evidentiary foundation is not eventually laid. It would be extraordinary to find any prejudice in such a situation, especially in a nonjury trial .... A fortiori, there can be no prejudice where, as we subsequently conclude, the necessary foundation is finally established.” (Citations omitted.) State v. Anonymous (83-FG), 190 Conn. 715, 724-25, 463 A.2d 533 (1983). Palmieri eventually testified that he was positive that the defendant is Kyle Collins; see part III of this opinion; thereby providing sufficient evidence of the defendant’s identity. Accordingly, we cannot say that the court abused its discretion in admitting the exhibits in question.

V

The defendant next claims that the court erred when it “denied [him] the right to attend a critical stage of the proceedings in which the trial court made a determination as to [his] competency” and in failing to hold a hearing on the issue of competency. We decline to review this claim.

On November 28, 2007, defense counsel requested that the court order a competency evaluation. The court ordered the evaluation and continued the matter until December 14,2007. On December 14,2007, the prosecutor, but not defense counsel, appeared before the court. The prosecutor represented to the court that the director of the evaluation clinic had written a letter to the court, reporting that the defendant had “refused to meet with her for his evaluation . . . .” The court instructed the prosecutor to tell defense counsel and the defendant that “pursuant to General Statutes § 54-56d (b), a defendant is presumed to be competent—the burden of proving he is not [competent] by a preponderance of the evidence is upon the party raising the issue. If in fact [the defendant] has refused to cooperate, he is presumed to be competent . . . .”

Although there is some question whether the defendant provided analysis of this unpreserved claim under Golding, the claim fails because the claimed error did not occur. The defendant claims that the court improperly made a determination regarding competency without holding a hearing mandated by § 54-56d. The court did not make such a determination. The defendant refused to meet with the director, and, thus, a § 54-56d evaluation was not made. Because the evaluation did not occur, the court made no determination regarding the defendant’s competency, and there was no basis on which to hold a hearing. The court did not make a determination of the defendant’s competency and simply noted that in the absence of a showing by the defendant of incompetence, pursuant to § 54-56d (b), the defendant is presumed to be competent. Nothing prevented the defendant from making a later showing of incompetence.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant claims that he is not Kyle Collins. See part I of this opinion.

       See North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)
      The defendant also seeks review of his claim under the plain error doctrine. “[T]he plain error doctrine ... is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. ... In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . [W]e recently clarified the two step framework under which we review claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discemable on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . We made clear . . . that this inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.” (Citation omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 204-205, 982 A.2d 620 (2009). The defendant cannot prevail under the plain error doctrine. The claimed error did not occur; additionally, his claims are simply not of the truly extraordinary nature that the plain error doctrine is intended to remedy.
      In addition, the defendant asks us to exercise our supervisory powers over this claim. “Appellate courts possess an inherent supervisory authority over the administration of justice. . . . Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.” (Internal quotation marks omitted.) State v. Ouellette, 271 Conn. 740, 762 n.28, 859 A.2d 907 (2004). We decline the defendant’s invitation.

       The state does not contest that the claim is of constitutional magnitude. See State v. Davis, 229 Conn. 285, 291 n.6, 641 A.2d 370 (1994).

       To the extent that the defendant also invites us to review his claim under our inherent supervisory authority over the administration of justice and the plain error doctrine; see Practice Book § 60-5; we decline to do so. The plain error doctrine and our supervisory powers are reserved for extraordinary circumstances that do not appear in the present case. See footnote 3 of this opinion.

       The booking photographs were admitted after Palmieri positively identified the defendant in court as Kyle Collins.

       General Statutes § 54-56d (b) provides in relevant part: “A defendant is presumed to be competent. The burden of proving that the defendant is not competent by a preponderance of the evidence and the burden of going forward with the evidence are on the party raising the issue. . . .”

       To the extent that the defendant also invites us to review his claim under our inherent supervisory authority over the administration of justice and the plain error doctrine, we decline to do so.


source: Caselaw Access Project

author: DiPENTIMA, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. FRANK MCGEE
    (AC 30329)
    DiPentima, C. J., and Bear and Schaller, Js.

      Argued June 1
    officially released October 5, 2010

      Mary Beattie Schairer, special public defender, for the appellant (defendant).

      Ronald G. Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cynthia Serafini, senior assistant state’s attorney, for the appellee (state).
   Opinion

DiPENTIMA, C. J.

The defendant, Frank McGee, appeals from the judgment of conviction, following a jury trial, of two counts of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1) and (2) , respectively, conspiracy to commit robbery in the second degree in violation of General Statutes §§ 53a-48 (a) and 53a-135 (a) (2), sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2) and breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (3). He claims on appeal that the trial court improperly (1) rendered judgment of conviction on two counts of robbery in the second degree that is legally inconsistent with his acquittal on the underlying charge of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and should be vacated, (2) failed to instruct the jury on specific intent for the charges of robbery and conspiracy, and (3) rendered judgment against him on the charge of sexual assault, although there was insufficient evidence to prove all of the required elements of that crime. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 1 a.m. on March 23, 2007, the victims, D and T, were on Pine Street in Waterbury, where they purchased a small amount of cocaine from an unidentified individual. Soon thereafter, a silver Lexus, driven by the defendant, pulled up to the victims. When the victims started to drive away in D’s car, the defendant continued to follow them closely until D pulled over and the victims got out of the car. The defendant began asking D and T if they wanted to “get shot.” The defendant reached into his car, took out a case and told D and T that he had something for them. D and T both testified that they assumed that there was a gun in the black case. The defendant started going through D’s pockets and found $6, which he took from him. The defendant then searched T for cocaine by placing his hands on different parts of her body. He lifted up her shirt and began touching T’s breasts roughly under her bra, which later caused bruising to that area. D went to his home, two houses away, and called 911. Police officers arrived and found a car matching the description given by D on Congress Avenue. D and T went to Congress Avenue and positively identified the defendant and the other occupants of his car, who were arrested. Additional facts will be set forth as necessary.

I

The defendant first claims that the conviction of two counts of robbery in the second degree is legally inconsistent with the acquittal on the underlying larceny charge, and he asks that the conviction of the two robbery charges be vacated. The defendant, however, acknowledged at oral argument before this court that State v. Arroyo, 292 Conn. 558, 585-86, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S. Ct. 1296, 175 L. Ed. 2d 1086 (2010), decided after the filing of the defendant’s brief, controls most of this claim. He argues, however, that Arroyo does not control the portion of his claim that alleges that under the doctrine of collateral estoppel, the inconsistent verdicts as to the robbery charges must be vacated. We disagree.

In Arroyo, our Supreme Court determined that a claim of legally inconsistent verdicts is not reviewable on appeal. Id. The court was guided by its own precedent and the United States Supreme Court case of United States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). The court in Arroyo stated that “[t]he court [in Powell] reasoned that inconsistent verdicts . . . should not necessarily be interpreted as a windfall to the [g]ovemment at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the [g]ovemment has no recourse if it wishes to correct the jury’s error; the [government is precluded from appealing or otherwise upsetting such an acquittal by the [constitution's [double [j]eopardy [c]lause. . . . The fact that the inconsistency may be the result of lenity, coupled with the [g]ovemment’s inability to invoke review, suggests that inconsistent verdicts should not be reviewable. . . .

“The court in Powell also noted that an individualized assessment of the reason for the inconsistency would be based either on pme speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake. . . . Finally, the court recognized that a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” (Citations omitted; internal quotation marks omitted.) State v. Arroyo, supra, 292 Conn. 585. After a thorough discussion of the state and federal precedent, the court in Arroyo determined that “[bjecause [the] reasoning [in Powell] is consistent with our decisions in [State v. Whiteside, 148 Conn. 208, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961), and State v. Rosado, 178 Conn. 704, 425 A.2d 108 (1979)], we find it persuasive. . . . Accordingly, we conclude that claims of legal inconsistency between a conviction and an acquittal are not reviewable.” (Citations omitted.) State v. Arroyo, supra, 585-86. The defendant’s similar claim in the present case is likewise not reviewable.

The defendant alternatively argues that the doctrine of collateral estoppel requires vacating the verdict as to the two counts of robbery. He claims that the reasoning behind collateral estoppel, “in conjunction with basic concepts of ‘realism and rationality,’ ” applies to a case in which the jury finds the defendant not guilty of an underlying offense. With no analysis, he asserts that this court’s statement in State v. Ortiz, 29 Conn. App. 825, 618 A.2d 547 (1993), that collateral estoppel principles do not apply as against different charges brought in the same trial; id., 836 n.6; is distinguishable. We are not persuaded. This claim, however interpreted, cannot stand in the face of Arroyo. Accordingly, the defendant’s claim that collateral estoppel requires that his conviction of two counts of robbery in the second degree be vacated is likewise controlled by Arroyo and is not reviewable.

n

The defendant next claims that the court improperly failed to instruct the jury on specific intent for the charges of robbery and conspiracy. Specifically, the defendant asserts that the court set out the definition of general intent during its instructions related to the larceny charge and then only referred back to that charge when instructing the jury on the robbery and conspiracy charges. The defendant claims that the jury was misled and that he was deprived of a fair trial. We do not agree.

We first set forth our well settled standard of review. “The standard of review for claims of instructional impropriety is well established. [Individual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the trial court’s instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury. ... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury.” (Emphasis in original; internal quotation marks omitted.) State v. Castillo, 121 Conn. App. 699, 707, 998 A.2d 177, cert. denied, 297 Conn. 929, 998 A.2d 1196 (2010).

Because the defendant filed a request to charge on specific intent, this issue is preserved for appellate review. See Practice Book § 16-20. The following undisputed facts and procedural history are important to the resolution of this claim. On February 28, 2008, before the start of evidence, the court engaged in a discussion with both counsel, on the record, about the various crimes being charged and the elements of those crimes. The court said that to prove the charge of larceny, the state would need to prove that the defendant had the “intent to deprive another of property and to appropriate the same to himself,” with which the defendant agreed. The court went on to discuss the charges of robbery and conspiracy, and the defendant offered no comments at that time requesting a specific intent charge on those counts. Following the close of evidence, the defendant filed a request to charge with the court. On March 6, 2008, the court held a charge conference in chambers with both attorneys present. Following that conference, the court provided both counsel with a copy of the proposed charge. On March 10, 2008, the court discussed with both counsel the proposed jury instructions. On that same date, the court instructed the jury on the law of the case.

The court began with an instruction on the charge of larceny in the second degree, during which the court gave an instruction on general intent. The court next instructed the jury on the substantive elements of the crimes of robbery in the second degree and conspiracy. The court instructed the jury on the intent required for each crime. The court did refer back to its previous intent instruction, stating, within its instruction on robbery in the second degree, that “you [the jury] are to consider the definition of larceny and intent you were provided with earlier in these instructions.”

The defendant claims that by defining general intent during its instruction on larceny and then referring back to that definition in its instructions on robbery and conspiracy, the court improperly misled the jury. He claims that the jury could have concluded that he only had to intend to engage in the conduct and not to intend the result. The court defined general intent and then referred to that instruction in connection with additional instructions on each charge that made clear the state of mind required to find the defendant guilty of those crimes. During the instructions on the charge of larceny, the court stated that the state must prove that “[a]t the time the defendant obtained such property, he intended to deprive the owner of his property or to appropriate such property to himself (Emphasis added.) In its instruction to the jury on the counts of robbery, the court referred back to its instructions on larceny, stating that “[r]obbery is simply a larceny, plus with force or threat of force.” In the conclusion of its instruction for the crime of robbery in the second degree, the court stated that “in order for you to find the defendant guilty of this charge, the state must prove beyond a reasonable doubt that the defendant, one, in the course of committing a larceny, two, used or threatened the immediate use of physical force upon another person for the purpose of preventing or overcoming resistance to the taking of the property, or to the retention thereof immediately after the taking, and, three, he was aided by another person actually present . . . .” (Emphasis added.) The court instructed the jury as to the crime of conspiracy and stated that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct and that any one of them commits an overt act in pursuance of such conspiracy.” During the instruction to the jury on the charge of conspiracy, the court also stated that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct and that any one of them commits an overt act in pursuance of such conspiracy.” (Emphasis added.) Finally, the court stated that to be found guilty on the charge of conspiracy, the state must prove that the defendant had “the specific intent to violate the law . . . .” (Emphasis added.)

“Although a trial court may elect to do so, it is not necessary for it to repeatedly instruct the jury on the same element ... for different crimes charged. As long as the jury has been fully instructed once, it is not reasonably possible that a jury is misled because it was not repeatedly instructed on that same element.” State v. Hampton, 293 Conn. 435, 453, 978 A.2d 1089 (2009); see also State v. Millan, 290 Conn. 816, 824-25 n.7, 966 A.2d 699 (2009) (trial court’s incorporation by reference of earlier instruction regarding element of crime, as well as highlighting of similarity of elements between counts, reasonably would have led jury to conclude element applied to both counts).

Upon a review of the jury instruction as a whole, it is clear that the court gave a thorough instruction on the specific intent that was required to constitute the crimes of larceny, robbery and conspiracy. The court thoroughly explained each charged crime, and repeatedly stated and explained the specific intent required as elements of each of the contested charges. The court also provided each juror with a written copy of the instructions, which enabled each juror to quickly and easily refer back to the court’s instructions regarding each element and apply the instructions to each crime charged. The state concedes that in charging on larceny the court also should have provided the jury with the statutory definition of specific intent because the charge of larceny has a specific intent component, but it contends that when the charge is viewed as a whole, this omission could not reasonably have misled the jury. Because the court’s instructions to the jury included language that defined the specific intent necessary to find the defendant guilty of each crime, we agree with the state. In view of the specific intent instructions, the mistake that the trial court made in referring back to the definition of general intent does not result in reversible error.

Ill

Last, the defendant claims that the court improperly rendered judgment against him on the charge of sexual assault in the fourth degree, although there was insufficient evidence to prove all of the required elements of that crime. Specifically, the defendant asserts that there was no evidence to show that his act of “frisking” T for cocaine was performed “for the purpose of sexual gratification ... or for the purpose of degrading or humiliating” the victim, as required by General Statutes § 53a-65 (3). We do not agree.

Following the close of the state’s evidence, the defendant moved for judgment of acquittal on counts one through six. He argued that the state did not present evidence that he had acted with a sexual purpose. The court denied the defendant’s motion.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Citation omitted; internal quotation marks omitted.) State v. Arthurs, 121 Conn. App. 520, 523-24, 997 A.2d 568 (2010).

Section 53a-73a (a) provides in relevant part that “[a] person is guilty of sexual assault in the fourth degree when ... (2) such person subjects another person to sexual contact without such other person’s consent . . . .” ‘“Sexual contact’ ” is defined as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (3). The statutory definition of “ ‘[i]ntimate parts’ ” includes breasts. General Statutes § 53a-65 (8). In order to obtain a conviction for sexual assault in the fourth degree, the state must have proven all of these elements beyond a reasonable doubt. The defendant claims that there was insufficient evidence to prove that he acted with a sexual purpose or with the purpose of degrading and humiliating T. We disagree.

The state presented testimony from the victim of the sexual assault, T, as well as D and Mark Refalo, two witnesses to the crime. They each testified that the defendant touched T’s breasts. There was testimony that the defendant roughly “twisted,” grabbed and searched T. “It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Pickel, 121 Conn. App. 443, 447-48, 995 A.2d 125, cert. denied, 297 Conn. 924, 998 A.2d 169 (2010). We conclude that the evidence presented was sufficient to conclude, beyond a reasonable doubt, that the defendant touched T’s intimate parts for the purpose of degrading or humiliating her.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury returned a verdict of not guilty with respect to the charges of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A).

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

       The court specifically stated: “Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statute, a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. What a person’s intention has been is very largely a matter of inference. No witness can be expected to come here and testify that he looked into another person’s mind and saw therein contained a certain intention. A jury can determine what a person’s intention was at any given time by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and any statements made by that person at the time, and from those things infer what his intention was. And intent may be inferred from circumstantial evidence, provided such inference is reasonable and is warranted by the facts you find proved. To draw such an inference is not only the privilege but also the proper function of a jury, provided, of course, that the inference drawn complies with the standards for [inferences] as explained in connection with my instruction on circumstantial evidence.
      “If someone took property honestly, although mistakenly believing that he had a right to do so, you cannot find that he had the required intent of this element of larceny. Also, if someone took property that he honestly believed was abandoned, for example, from a dumpster, the necessary intent is missing.”

       The court later reiterated this charge, stating that “at the time the defendant wrongfully took the property from an owner, he intended to deprive the owner of it. Intent to deprive must be found to convict a defendant of larceny." (Emphasis added.)


author: ROBINSON, J.

text:
    DOMINIC CACIOPOLI v. TODD HOWELL ET AL.
    (AC 31034)
    DiPentima, C. J., and Robinson and Hennessy, Js.

      Argued April 20
    officially released October 5, 2010

      John R. Williams, for the appellants (defendants).

      David S. Doyle, for the appellee (plaintiff).
   Opinion

ROBINSON, J.

The defendants, Todd Howell and several businesses with which he is affiliated, appeal from the order of the trial court granting the application for a prejudgment remedy filed by the plaintiff, Dominic Caciopoli, an attorney licensed to practice law in Connecticut. On appeal, the defendants claim that the court improperly (1) granted the plaintiffs application for a prejudgment remedy because the debt owed to the plaintiff was pursuant to a client fee structure that violated rule 1.5 of the Rules of Professional Conduct and, therefore, public policy, and (2) determined the amount of the prejudgment remedy. The defendants have provided an inadequate record to review their claims, and, accordingly, we affirm the judgment of the trial court.

The following facts and procedural history are necessary to the resolution of the defendants’ appeal. In 2003, Howell contacted the plaintiff regarding legal services for Howell’s numerous businesses. Howell and the plaintiff met multiple times to discuss the type of legal representation that Howell would need, how much work it would require the plaintiff to complete and what the compensation would be. After the meetings, Howell decided that he wanted the plaintiff to represent him and his businesses, and the parties came to an agreement on how many hours likely would be required and an amount for compensation. The agreement, however, was never put into writing. At that time, the parties expected that the representation would require approximately three hours of work a week. The representation commenced, but the attorney-client relationship started to unravel when Howell showed up late for meetings and forgot to provide documentation necessary for litigation. The plaintiff then terminated his attorney-client relationship with Howell.

In the spring of 2005, Howell contacted the plaintiff again to apologize for his previous behavior and because he wanted the plaintiff to resume representing him. The two reassessed Howell’s legal needs and came to an agreement that the plaintiff would have to spend approximately five hours a week working on legal matters for him at a rate of $8000 a month. Again, the parties did not create a written contract regarding the new agreement. Over the next three months, the plaintiffs legal work increased in volume and complexity, and the parties increased the monthly fee to $10,000. Howell paid the plaintiff the fee monthly for five months, but the plaintiff testified that receipt and deposit of the payments was difficult.

The legal representation continued to increase in volume, including, but not limited to, matters involving the Internal Revenue Service, unemployment, vandalized property, foreclosure and lender liability. From 2005 through January, 2009, the plaintiff worked twenty to twenty-five hours a week on Howell’s legal matters. In September, 2008, the plaintiff was negotiating two settlements for Howell that would have entitled Howell to $3.2 million. The parties reached an agreement that the plaintiff would receive 45 percent of that amount, approximately $1.4 million, which was equal to the then current debt the plaintiff alleged that he was owed. The plaintiff testified that this agreement was handwritten. It was not, however, signed or produced at the prejudgment remedy hearing.

On March 6, 2009, the plaintiff filed an application for a prejudgment remedy without a hearing and an accompanying affidavit to secure the sum of $1.4 million. On March 12, 2009, a hearing was ordered on the application for a prejudgment remedy for March 23, 2009. After a hearing on April 3, 2009, the court found that an attorney-client relationship existed between the parties and granted the prejudgment remedy in the amount of $1,065 million. This appeal followed.

I

The defendants first claim that the court improperly granted the application for a prejudgment remedy because there was no written fee agreement and the oral agreement reached by the parties violates rule 1.5 of the Rules of Professional Conduct and, consequently, public policy. Specifically, the defendants claim that a contract that violates public policy should not be enforced. The defendants argue that this oral fee agreement was “in part a contingency fee agreement, in part a monthly flat-fee agreement and in part a case specific flat fee agreement,” and that all aspects of it violate rule 1.5 (b) of the Rules of Professional Conduct.

“[A] prejudgment attachment is a provisional remedy afforded to a claimant to secure satisfaction of a judgment in the future.” Shawmut Bank v. Brooks Development Corp., 46 Conn. App. 399, 410, 699 A.2d 283 (1997). The trial court may grant a prejudgment remedy upon a finding that “there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff . . . .” General Statutes § 52-278d (a) (1). “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Internal quotation marks omitted.) TES Franchising, LLC v. Feldman, 286 Conn. 132, 137, 943 A.2d 406 (2008).

The defendants have not provided this court with an adequate record to review this claim. Our Supreme Court recently has reiterated the fundamental point that “[i]t is incumbent upon the [appellant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review. . . . Our role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the appellant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 138, 989 A.2d 588 (2010).

In the present case, we cannot determine from the record what legal theory the court applied in finding that a prejudgment remedy was appropriate due to the plaintiff’s likelihood of prevailing on the merits of his claim, nor can we determine what additional facts the court found. The plain language of rule 1.5 of the Rules of Professional Conduct allows for an exception to the requirement that a fee agreement be in writing when an attorney is charging a regularly represented client. Also, the parties dispute the legal issue of whether rule 1.5 of the Rules of Professional Conduct is a bar to the collection of debt. The plaintiff contends that a violation of rule 1.5 of the Rules of Professional Conduct, though he does not concede one exists, does not legally proscribe the collection of debt owed to an attorney. These theories present just two of the possible bases on which the trial court could have decided that there was probable cause, and without an adequate record of the court’s findings and legal reasoning, we cannot determine whether the court improperly found that the attorney-client relationship complied with rule 1.5 of the Rules of Professional Conduct or whether a fee agreement that violates rule 1.5 prevents collection of a debt incurred as a result of that agreement. We, therefore, decline to review the defendants’ claim.

II

Next, the defendants claim that the court improperly determined the amount of the prejudgment remedy. Specifically, the defendants claim that the plaintiff presented no evidence, such as time records, a retainer agreement or documentation of the legal work performed, in support of the compensation sought for the legal services rendered.

In order to grant a prejudgment remedy, the court must find probable cause as to both the likelihood that the plaintiff will prevail on the merits of his claim, as well as the amount requested to be secured. TES Franchising, LLC v. Feldman, supra, 286 Conn. 146. “[T]he amount of damages need not be determined with mathematical precision. ... A fair and reasonable estimate of the likely potential damages is sufficient to support the entry of a prejudgment attachment. . . . Nevertheless, the plaintiff bears the burden of presenting evidence which affords a reasonable basis for measuring her loss.” (Citations omitted; internal quotation marks omitted.) Rafferty v. Noto Bros. Construction, LLC, 68 Conn. App. 685, 693, 795 A.2d 1274 (2002).

In the present case, the defendants have failed to provide this court with an adequate record to review the trial court’s determination of the amount of the prejudgment remedy. A motion for articulation is appropriate, in cases like this, in which the trial court’s decision contains an ambiguity that must be clarified in order for this court to resolve a claimed error on appeal. J.K. Scanlan Co. v. Construction Group, Inc., 80 Conn. App. 345, 351-52, 835 A.2d 79 (2003). “[W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn. App. 771, 789, 804 A.2d 889 (2002). The plaintiffs application requested that $1.4 million be attached. Alternatively, the defendants argue that the plaintiff has failed to present any supporting evidence of the legal work for which he alleged he is owed compensation. The court, in its memorandum of decision, however, granted the application for a prejudgment remedy in the amount of $1,065 million without supplying any analysis of how it reached that figure. A review of this claim would require this court to speculate as to how the court calculated the ordered amount, which we decline to do.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants in this action, all businesses with which Howell is affiliated, are Winter Ridge, LLP, Construction Techniques by WRN, Inc., Majestic Mulches, Soils and Stones, LLP, DaVinci Development Properties, LLC, and DaVinci Development, LLC.

       The plaintiff testified that “[b]y difficult, I mean, I would get a check. I’d get the check and try to deposit it, wasn’t able to deposit it, had to give it back to him and then he’d go get me another check or get me a bank check, and we had a great deal of difficulty for that four or five month period.”

       Rule 1.5 (b) of the Rules of Professional Conduct provides in relevant part: “The scope of the representation, the basis or rate of the fee and expenses for which the client will be responsible, shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client in writing before the fees or expenses to be billed at higher rates are actually incurred. . . .”

       The court’s memorandum of decision provides: “The [cjourt has considered the testimony presented and concludes that an attorney-client relationship existed between the plaintiff and the defendants. The court finds that the defendants acknowledged owing the plaintiff money because of the legal services the plaintiff provided to the defendants. [The] [cjourt concludes that there is probable cause that a judgment will enter in favor [of] the plaintiff as against the defendants in the amount of $1,065,000.”


text:
    WESLEY S. SPEARS v. JOSEPH S. ELDER
    (AC 30988)
    DiPentima, C. J., and Robinson and Hennessy, Js.

      Argued April 20
    officially released October 5, 2010

      William F. Gallagher, for the appellant (defendant).

      Wesley S. Spears, pro se, the appellee (plaintiff).
   Opinion

DiPENTIMA, C. J.

This appeal arises from an unusual and unfortunate dispute between two attorneys practicing law in Connecticut. The defendant, Joseph S. Elder, appeals from the judgment of the trial court rendered in favor of the plaintiff, Wesley S. Spears, following a jury trial. On appeal, Elder claims that the court improperly (1) excluded certain evidence regarding Spears’ reputation and credibility, (2) failed to give a requested instruction on proximate and intervening cause and (3) charged the jury on three different theories of slander per se. With respect to the majority of Elder’s appellate issues, we conclude that application of the general verdict rule prohibits our review on the merits. As to the remaining claim that the court’s evidentiary ruling improperly prevented Elder from impeaching Spears’ credibility, we conclude that because it was not raised at trial, it too is unreviewable. Accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The facts underlying this appeal occurred on July 26, 2004, when two Plainville police officers, John Quilter and Michael Duval, were assigned to secure the residence of Erik Krajewski. Suspecting Krajewski of cultivating marijuana, the police had applied for a warrant to search his home. While the police awaited a determination on the warrant application, Krajewski returned to his home. Duval blocked the door and instructed Krajewski that he could not enter the residence.

Krajewski spoke on a cellular telephone with Elder and indicated that the police would not let him enter his residence. Elder indicated to Krajewski that, without a warrant, the officers could not prevent him from entering. As Krajewski attempted to place his key in the front door, Quilter warned him that he would be arrested if he entered the home. Although Krajewski appeared uncertain as to whether he should continue his efforts to get into the residence, he eventually opened the door. A struggle between the officers and Krajewski ensued, ending when Krajewski managed to gain entry into the residence and locked the door. As a result of this altercation, Duval sustained an injury to his arm.

In order to prevent the destruction of evidence, the officers forced their way into the residence and observed Krajewski flushing marijuana down the toilet. After a second struggle, the officers subdued Krajewski and placed him in custody. At this time, Dean Cyr, a Plainville police sergeant, arrived on the scene. Cyr was upset that officers had allowed Krajewski to get into the residence. Krajewski indicated to Cyr that his attorney had told him that he could enter the home. Cyr took custody of Krajewski’s cellular telephone and answered an incoming call while noting the telephone number on the caller identification. After Cyr identified himself as a member of the police department, the caller terminated the call.

Cyr believed that the altercation could have been avoided and was disturbed that Duval had sustained an injury. Thus, he wanted to determine the identity of the person who had advised Krajewski to enter the home, contrary to the express orders of the two officers. The next day, Cyr called the number that he had recorded from Krajewski’s cellular telephone and posed as a prospective client. When the call was answered and Cyr asked to whom he was speaking, Elder responded, “Wes Spears.”

On August 25, 2004, Cyr made a second call to Elder’s cellular telephone, which was recorded, and the following conversation occurred:

“Elder: Hello.

“Cyr: Attorney Spears.

“Elder: Who?

“Cyr: Attorney Spears?

“Elder: Yes.

“Cyr: Hi. It’s Sergeant Dean Cyr of the Plainville police. How are you?

“Elder: Good. How are you?

“Cyr: Good. I’m conducting an investigation which you’re involved in. I kind of need to speak to you, maybe in the next couple days or so, if you can come down [to the police station].

* * *

“Cyr: Well, it’s some of the advice you gave your client . . . and one of the cops ended up getting hint. . . . Well, I wanted to talk about, you know, your involvement that day. There was a police setup around the house and you told him to go into the house and ignore the police.”

Cyr, thinking he was speaking to Spears, stated that he intended to apply for an arrest warrant, and if unsuccessful, he would file a complaint with the statewide grievance committee. After his arrest warrant application was denied, Cyr filed a grievance against Spears. Spears learned of the telephone number used by Cyr in his investigation and called the number, reaching Deborah Pizzonia. Pizzonia informed Spears that she had just been assigned that number and had been receiving telephone calls for Elder. Later, Spears asked Elder if he had impersonated him. Elder denied doing so. As a result of this denial, Spears mistakenly believed that Cyr was attempting to “frame” him. Spears filed an action against Cyr and the town of Plainville. While conducting a deposition of Cyr in that separate action, Spears heard the recorded telephone conversation between Cyr and Elder where Elder had impersonated Spears.

On June 16, 2006, Spears commenced this action against Elder by way of a six count claim alleging impersonation, defamation, slander, libel, fraud and legal malpractice. During the trial where both parties represented themselves, Spears proceeded with two counts, defamation by way of slander and fraud. Neither party submitted interrogatories to the jury, which returned a general verdict in favor of Spears. The jury awarded Spears $32,000 in general damages and $41,000 in punitive damages. The court denied Elder’s motion to set aside the verdict, accepted the jury’s award and rendered judgment accordingly. This appeal followed.

On appeal, Elder’s claims fall within two broad categories: improper evidentiary rulings and improper jury instructions. Prior to oral argument, the appellate clerk’s office sent the parties a letter instructing them to be prepared to address whether the general verdict rule precludes review of Elder’s issues. After considering the arguments presented, we conclude that the general verdict rule precludes our review of the majority of issues raised by Elder. As to the remaining issue, we decline to afford it appellate review because Elder failed to raise it at trial. Accordingly, we affirm the judgment of the trial court.

In Dowling v. Finley Associates, Inc., 248 Conn. 364, 727 A.2d 1245 (1999), our Supreme Court summarized the general verdict rule. “Under the general verdict rule, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall. . . . The rule rests on the policy of the conservation of judicial resources, at both the appellate and trial levels. . . .

“On the appellate level, the rule relieves an appellate court from the necessity of adjudicating claims of error that may not arise from the actual source of the jury verdict that is under appellate review. In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated. Declining in such a case to afford appellate scrutiny of the appellant’s claims is consistent with the general principle of appellate jurisprudence that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. . . .

“In the trial court, the rule relieves the judicial system from the necessity of affording a second trial if the result of the first trial potentially did not depend upon the trial errors claimed by the appellant. Thus, unless an appellant can provide a record to indicate that the result the appellant wishes to reverse derives from the trial errors claimed, rather than from the other, independent issues at trial, there is no reason to spend the judicial resources to provide a second trial. . . .

“Therefore, the general verdict rule is a rule of appellate jurisprudence designed to further the general principle that it is the appellant’s responsibility to provide a record upon which reversible error may be predicated. ... A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. . . .

“This court has held that the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Citations omitted; internal quotation marks omitted.) Id., 371-72; see also Curry v. Burns, 225 Conn. 782, 789-90, 626 A.2d 719 (1993); U. B. Vehicle Leasing, Inc. v. Davis, 90 Conn. App. 206, 211-13, 876 A.2d 1222 (2005).

Here, Spears presented evidence to prove two distinct causes of action against Elder, defamation by slander and fraud. “A defamatory statement is defined as a communication that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him .... To establish a prima facie case of defamation, the plaintiff must demonstrate that: (1) the defendant published a defamatory statement; (2) the defamatory statement identified the plaintiff to a third person; (3) the defamatory statement was published to a third person; and (4) the plaintiffs reputation suffered injury as a result of the statement.” (Citations omitted; internal quotation marks omitted.) Cweklinsky v. Mobil Chemical Co., 267 Conn. 210, 217, 837 A.2d 759 (2004); see also M. Taylor & D. Krisch, Encyclopedia of Connecticut Causes of Action (2009) p. 14.

We have defined fraud as “[djeceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right. . . . Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty.” (Emphasis in original; internal quotation marks omitted.) Garrigus v. Viarengo, 112 Conn. App. 655, 669, 963 A.2d 1065 (2009). “Under the common law ... it is well settled that the essential elements of fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. . . . Also, [i]t has been repeatedly held that where a party makes false representations to another with the intent or knowledge that they be exhibited or repeated to a third party for the purpose of deceiving him, the third party, if so deceived to his injury, can maintain an action in tort against the party making the false statements . . . .” (Citations omitted; internal quotation marks omitted.) H & L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn. App. 428, 440, 955 A.2d 565 (2008); see also M. Taylor & D. Krisch, supra, pp. 19-20.

The jury heard evidence and received instructions from the court with respect to the two distinct causes of action. No interrogatories were submitted to the jury. Further, the verdict form signed by the foreperson of the jury stated in relevant part: “Use this verdict form if the jury unanimously finds the defendant liable for defamation by way of slander and/or fraud.” It is clear from the record that the jury could have reached its verdict for Spears by two independent means, either defamation by slander or fraud. Under these circumstances, application of the general verdict rule requires that Elder’s appellate claims affect both causes of action; otherwise, we do not address the merits and will affirm the judgment of the trial court. See DeGennaro v. Tandon, 89 Conn. App. 183, 199-200, 873 A.2d 191, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005). Put another way, “in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” Turturino v. Hurley, 98 Conn. App. 259, 262, 907 A.2d 1266 (2006); see also Monterose v. Cross, 60 Conn. App. 655, 661, 760 A.2d 1013 (2000) (“[t]he general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict” [internal quotation marks omitted]). Therefore, we turn to the specific claims raised by Elder on appeal to determine whether the general verdict rule prevents us from reviewing them on the merits.

We begin with Elder’s second and third claims, both pertaining to the court’s instructions to the jury. Specifically, Elder claims that the court improperly failed to give a requested instruction on proximate and intervening cause and charged the jury on three different theories of slander per se. We quickly dispose of the latter claim on the basis of the general verdict rule. Elder’s claim that the trial court committed plain error by instructing the jury on three different theories of slander per se when the evidence supported only one theory lacks any connection to the fraud cause of action. We decline to review this claim, therefore, on the basis of the general verdict rule.

Elder also claims that the court improperly failed to give a requested instruction on proximate and intervening cause. Elder had filed a request to charge seeking, inter alia, an instruction that Spears’ injury was caused by Spears himself when he filed a notice with the town of Plainville of his intention to sue the town and Cyr. A review of Elder’s brief reveals, however, that this issue is limited to the defamation by slander cause of action and is not directed toward the fraud count. Specifically, Elder argues in his brief: “[T]he trial court’s instruction on causation was little more than a pithy statement that the jury had to find that ‘the plaintiffs reputation suffered injury as a result of the [defamatory] statement.’ Absent evidence of proximate cause that Spears sustained even general damages as a result of Elder’s alleged slander, Spears was entitled to nothing more than nominal damages.” (Emphasis added.) Because Elder’s claim regarding the court’s instruction on causation does not apply to the fraud count, we conclude that review of the merits is unnecessary due to the general verdict rule.

We now turn to Elder’s claim that the court improperly excluded certain evidence regarding Spears’ reputation. Specifically, he argues that the court should have admitted evidence of Spears’ arrests for extortion and the promotion of prostitution and results from an Internet search conducted with respect to Spears’ reputation. With respect to the latter, we again conclude that a careful review of Elder’s brief makes it clear that his claim relates solely to the defamation by slander cause of action; mainly, the fourth element of the tort. See Cweklinsky v. Mobil Chemical Co., supra, 267 Conn. 217. Elder’s brief states: “In order to sustain injury to one’s reputation, the claimant must possess a relatively good reputation before a tortfeasor can defame the claimant. Whether Spears had such a relatively good reputation (as he claimed throughout [the] trial) was material to the determination of this defamation case.” There is nothing to indicate that this claim applied also to Spears’ fraud count. Accordingly, we decline to review the merits on the basis of the general verdict rule.

With respect to the admissibility of Spears’ arrest record, the following additional facts are necessary. On October 10, 2008, Spears filed a motion in limine to preclude Elder from introducing any evidence of Spears’ 1996 arrest. He also sought the redaction of any mention of this arrest from anything admitted into evidence. He argued that General Statutes § 54-142a provided the authority for granting this motion. A colloquy ensued, and Elder represented that the purpose of this evidence was to impeach Spears. The court noted that there was no evidence that Spears had been convicted of a crime, only that he had been arrested. Further, the court observed that these arrests did not pertain to Spears’ credibility. The court ruled: “They’re not—so in any event, for purposes of this—for purposes of this particular part of the case, which is . . . Spears’ case-in-chief and the kind of evidence that he indicates that he’s planning to present on his own behalf, I don’t see that this can be used. So, to that extent, to that limited extent, I’m granting that motion in limine as to this testimony.”

During cross-examination, Spears stated that he had never been arrested. Outside the presence of the jury, the court ruled, with respect to this issue, that it had rejected Spears’ argument with respect to § 54-142a and denied the motion in limine. After further cross-examination, Spears again denied having been arrested in 1996. He subsequently denied having been arrested with respect to three separate assault charges.

On appeal, Elder argues that he should have been permitted to introduce evidence of the 1996 arrest to impeach Spears’ credibility. In addition, he argues that he should have been permitted to introduce evidence relevant to the issue of whether Spears “enjoyed a good reputation before the alleged defamation by Elder.” To the extent that Elder argues that the evidence should have been admitted with respect to Spears’ reputation, an element of the tort of defamation by slander, we again decline to review it due to the application of the general verdict rule. Elder’s argument that the court should have allowed evidence to impeach Spears’ credibility applies to both causes of action, and, therefore, the general verdict rule does not apply. See, e.g., Monterose v. Cross, supra, 60 Conn. App. 661.

A review of the record reveals that the court’s ruling was directed to prohibit Elder from impeaching Spears on the basis of prior criminal activity. Although the parties did not state so explicitly,* it is clear that § 6-7 Of the Connecticut Code of Evidence was implicated. “For the purpose of impeaching the credibility of a witness, evidence that a witness has been convicted of a crime is admissible if the crime was punishable by imprisonment for more than one year. In determining whether to admit evidence of a conviction, the court shall consider: (1) the extent of the prejudice likely to arise, (2) the significance of the particular crime in indicating untruthfulness, and (3) the remoteness in time of the conviction.” Conn. Code Evid. § 6-7 (a); see also State v. Swain, 101 Conn. App. 253, 266-67, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007). We point to the court’s statements that there was only evidence of an arrest, not a conviction, and that the criminal charges did not “go to [Spears’] credibility.” Further, the court noted that a certified copy of the record could be used to establish the prior conviction, a clear reference to § 6-7 (b) (2) of the Connecticut Code of Evidence. Spears indicated that he was addressing another topic, in response to which the court ruled: “We’ll deal with that issue when we come to it, okay, because we’re not dealing with that issue at this point.” Thus, it is clear that this was the only matter addressed by the court in its ruling.

On appeal, Elder claims that the court’s ruling prevented him from introducing evidence that directly contradicted Spears’ testimony that he had never been arrested. This claim was never raised before the trial court. At no point during Elder’s cross-examination did he ever attempt to introduce such evidence. We note that Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .” Moreover, “[i]t is well settled that a trial court can be expected to rule only on those matters that are put before it.” State v. Jose G., 290 Conn. 331, 346, 963 A.2d 42 (2009). Put another way, “[t]o permit a party to raise a different ground on appeal than [that] raised during trial amounts to trial by ambuscade, unfair to both the trial court and to the opposing party. . . . Inasmuch as the defendant raises a claim on appeal different from the one that he raised at trial, he is not entitled to review of his claim.” (Citations omitted; internal quotation marks omitted.) State v. Saunders, 114 Conn. App. 493, 504, 969 A.2d 868, cert. denied, 292 Conn. 917, 973 A.2d 1277 (2009); see also Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 425, 944 A.2d 925 (2008). Accordingly, we decline to review this new evidentiary claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Cyr did not suspect that he actually had spoken to Elder until approximately seven months after the incident.

       In Spears’ written response to the grievance, he stated that Elder had indicated that Elder represented Krajewski and that Elder never had impersonated Spears.

       In his answer, Elder denied all of the allegations of Spears’ complaint and did not file any special defenses.

       We note that neither party sought permission to file supplemental briefs with respect to the general verdict issue.

       “A party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury. Alternatively, if the action is in separate counts, a party may seek separate verdicts on each of the counts.” (Internal quotation marks omitted.) Segale v. O’Connor, 91 Conn. App. 674, 679, 881 A.2d 1048 (2005).

       “When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiffs reputation. He is required neither to plead nor to prove it. . . . The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the [defamation] caused him.” (Internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn. App. 228, 234-35, 784 A.2d 376 (2001).

       The court instructed the jury as follows: “In order for the plaintiff to establish evidence that the defendant’s conduct was slanderous per se, the plaintiff must prove by a preponderance of the evidence that the defendant made the statement to a third person, which identified the plaintiff, such that it would be reasonably understood that it was about the plaintiff and either: one, the statement falsely charges someone with having committed a crime that involves moral turpitude or for which an infamous penalty is attached; two, the statement falsely charges a professional person with general incompetence; or, three, the statement falsely charges a person with conduct or characteristics that would adversely affect him in his trade or business. If you find that the defendant’s conduct was slander per se, then you may award general damages and the plaintiff need not prove actual injury.”

       General Statutes § 54-142a (a) provides: “Whenever in any criminal case, on or after October 1,1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state’s attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason of mental disease or defect.” General Statutes (Rev. to 2007) § 54^142a (e) provides in relevant part that “[a]ny person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.”

       Elder’s evidence of Spears’ arrest record appears to have been limited to materials found by searching the Internet.

       We note that Spears’ testimony strongly suggested to the jury that he, in fact, had been arrested. Specifically, Spears stated: “I was accused of two things that were completely untrue. This happened in 1996. I was accused of extortion; I was accused of promoting prostitution. The charges were completely baseless and false, just like your charges. It shows just how easy you can get arrested for the wrong things on false evidence.”

       See, e.g., State v. Banks, 117 Conn. App. 102, 110, 978 A.2d 519, cert. denied, 294 Conn. 905, 982 A.2d 1081 (2009).