source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    DELONE ROBINSON ET AL. v. CURTIS ROBINSON
    (AC 27467)
    Flynn, C. J., and McLachlan and Harper, Js.

      Argued April 24
    officially released August 7, 2007

      Carlton L. Hume, with whom was Charleen Merced, law student, for the appellants (plaintiffs).

      Greg S. Krieger, with whom was John Stephen Papa, for the appellee (defendant).
   Opinion

McLACHLAN, J.

The plaintiffs, Delone Robinson, Ray Johnson, Devone Robinson, Cullen Lomax and Herbert Martin, appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant, Curtis Robinson. The plaintiffs claim that the court improperly determined that the defendant did not tor-tiously interfere with the plaintiffs’ business expectancy. We affirm the judgment of the trial court.

From the evidence presented at trial, the court reasonably could have found the following facts. During approximately 1999 through 2002, the plaintiffs were involved in a rap musical group known as “Fort Knox.” Devone Robinson, Lomax and Martin, who were teenagers at the time, comprised the lyrical group. Devone Robinson’s father, Delone Robinson, and his wife, Wanda Robinson, comprised the management team, and Johnson was an investor.

Prior to 2002, Fort Knox worked in a studio in Atlanta, Georgia, composing music. During this time, they achieved a modicum of success, performing at concerts and events primarily in the Greenwood, South Carolina, area, including appearing as the opening act for the world renowned artist, Busta Rhymes. The group also appeared on television and on radio.

At some point in 2000 or 2001, Delone Robinson approached his brother, the defendant, and asked him if he had any contacts in the recording industry. Curtis Robinson referred Delone Robinson to an acquaintance, Darrell Miller, an entertainment lawyer in Los Angeles, California. Delone Robinson contacted Miller and sent to him some Fort Knox recordings. Soon after, the group traveled to Miller’s office in Los Angeles.

On May 23, 2002, Fort Knox performed at Miller’s office for another of Miller’s clients, Percy Miller, a rap mogul known throughout the recording industry as Master P. At that time, Master P had a ubiquitous presence in the rap music industry; he was well known as both an artist and producer, involved in the film and television industries, and he owned a clothing line. In May, 2002, Master P was part of One Up Entertainment, LLC, which was doing business as No Limit Records.

Apparently impressed with Fort Knox’ performance at Miller’s office, Master P invited the group to his Hollywood mansion for a photography shoot. He gave each member of the group several outfits from his “New No Limit Gear” clothing line, which they modeled for a magazine and were permitted to keep. The group then returned home to South Carolina to attend a high school graduation.

Sometime after his initial meeting with Fort Knox, Master P flew the group from South Carolina to New York City. In New York City, Fort Knox appeared on a show on the Black Entertainment Television network, which featured artists on the No Limit Record label. According to the testimony of Delone Robinson, Master P also took Fort Knox on a shopping spree in New York, spending more than $10,000 on apparel for the group. Upon leaving New York City, Master P indicated that he would summon the group to California in the coming week. Unfortunately for Fort Knox, its lavish experiences with Master P had come to an end.

Shortly after the group returned to South Carolina from New York, Miller and Master P delivered a series of contracts to them, which related to Miller’s legal representation of Fort Knox and a recording contract from No Limit Records. Upon receiving the contracts, Delone Robinson sent a copy of the recording contract to another attorney in Atlanta to review. On June 17, 2002, the attorney sent a draft of the contract to Miller with suggested changes. Thereafter, the negotiations stalled for several months.

During the period in which the negotiations were stalled and the group was waiting for Master P to summon them to California, Delone Robinson requested that the defendant contact Miller to check on the status of the negotiations. Delone Robinson testified that the defendant told him that during his conversations with Miller, the defendant told Miller that the contract was a “Mickey Mouse” contract because it contained no advance money. At trial, the defendant denied making any statements to Miller criticizing the contract.

Eventually, it became clear that the relationship between Fort Knox and Master P had ended and, in order to facilitate Fort Knox’ negotiations with other record companies, No Limit Records delivered a letter to Fort Knox officially revoking its offer and terminating the relationship. Although the exact reasons for No Limit Records’ change of heart were never established, in a deposition that was admitted at trial, Miller testified that around the time the relationship ended, Master P was going through a change in distribution companies, which could have been a factor. The defendant also presented testimony from Delone Robinson’s cousin, Victor Thomas, who indicated that Delone Robinson told him that it was the Atlanta lawyer who had “screwed up his deal.” Of course, Delone Robinson claimed that a business relationship between Fort Knox and No Limit Records never came to fruition because of the defendant’s statements to Miller disparaging the contract. At trial, Delone Robinson conceded, however, that he had no direct evidence that the defendant’s statements caused the relationship to fail.

On February 14, 2006, the plaintiffs filed an amended two count complaint alleging tortious interference with a business expectancy and “negligent interference with a business expectancy.” In relevant part, the complaint alleged that the defendant’s unsolicited communications with Miller regarding the contract between Fort Knox and No Limit Records caused No Limit Records not to sign the contract and to sever business dealings with Fort Knox, thereby tortiously interfering with the plaintiffs’ business expectancy. From February 22 through 24, 2006, a trial to the court was conducted, at which the court heard testimony from, inter alia, Delone Robinson, Wanda Robinson, the defendant and Thomas, as well as the recorded deposition testimony from Miller. On February 24, 2006, upon conclusion of the trial, the court rendered judgment in favor of the defendant on both counts. This appeal followed.

On appeal, the plaintiffs claim that the court made improper findings with respect to its ultimate conclusion that the defendant did not tortiously interfere with the plaintiffs’ business expectancy. Specifically, the plaintiffs claim that the court improperly determined that the plaintiffs’ cause of action failed as a matter of law because they could not establish that a contractual relationship existed between Fort Knox and No Limit Records. The plaintiffs further claim that they presented sufficient evidence to establish their cause of action, and therefore the court’s judgment in favor of the defendant was improper.

The plaintiffs’ claims are comprised of both legal and factual arguments. The plaintiffs’ arguments concerning the legal standard that the court applied are entitled to our plenary review. See American Diamond Exchange, Inc. v. Alpert, 101 Conn. App. 83, 89, 920 A.2d 357 (2007). “Under this standard, we determine whether the court’s conclusions were legally and logically correct and whether they are supported by the facts appearing in the record.” (Internal quotation marks omitted.) Id. The plaintiffs’ arguments concerning the evidence presented in support of that legal standard and their sufficiency of the evidence claim, however, are subject to our established and rigorous standard for sufficiency of the evidence claims. See id. “For such issues, [w]e must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge . . . who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the [court] could not reasonably and legally have reached [its] conclusion. . . . We apply this familiar and deferential scope of review, however, in light of the equally familiar principle that the plaintifffs] must produce sufficient evidence to remove the [court]’s function of examining inferences and finding facts from the realm of speculation.” (Internal quotation marks omitted.) Id.

The plaintiffs first argue that the court made an improper legal determination that proof of a contractual relationship was a requisite for recovery under a theory of tortious interference with a business expectancy. See Blake v. Levy, 191 Conn. 257, 259, 464 A.2d 52 (1983) (“[although this court has required privity of contract in order to sustain a claim for negligent interference with contract obligations . . . there is no such requirement in cases involving intentional interference with business relations” [citations omitted]). According to the plaintiffs, the court found in favor of the defendant on the ground that because there was no executed contract between No Limit Records and Fort Knox, the plaintiffs’ cause of action failed as a matter of law. We disagree with the plaintiffs’ interpretation of the court’s findings.

In support of their argument that the court improperly determined that the existence of a contractual relationship between Fort Knox and No Limit Records was a requisite to the plaintiffs’ cause of action, the plaintiffs rely on the court’s statement that “with respect to the second count of negligent interference with a business expectancy . . . there must be a contract, and clearly there is no contract here.” (Emphasis added.) Clearly, the court made this reference to a contractual relationship in the context of count two, which the court treated as a cause of action for negligent interference with contractual obligations. Privity of contract is a requisite for that cause of action. Blake v. Levy, supra, 191 Conn. 259. The plaintiffs have not challenged the court’s determination as to the second count of their complaint on appeal.

The plaintiffs further rely on the court’s finding that “[i]t’s clear from the evidence that there was no contract between Fort Knox and Master P and that whole relationship could have fallen by the wayside because Master P never signed the agreement.” This argument views the statement in isolation, ignoring entirely the next sentence of the court’s finding that “[t]he question is, whether or not Master P never signed the agreement because of the activities and the interference of the defendant.” This statement, and the subsequent analysis by the court, clearly demonstrates that the court properly addressed the issue by applying the law to the allegations in the plaintiffs’ complaint that the actions of the defendant “caused said contract not to be signed by ‘One-Up Entertainment, LLC, dba No Limit Records’ . . . .” Thus, although the existence of a contractual relationship is not a requisite for the plaintiffs to prove tortious interference with a business expectancy, where as here, the alleged loss incurred by the plaintiffs was the termination of the business negotiations (i.e., Master P’s decision to revoke his offer to Fort Knox), the plaintiffs had to prove that the defendant’s interference caused that loss. See Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 33, 761 A.2d 1268 (2000) (in action for tortious interference with business expectancy, plaintiff must prove, inter alia, that defendant’s interference caused plaintiff to suffer loss). Our review of the record reveals, therefore, that the court neither made nor relied on an improper legal determination in finding in favor of the defendant. Accordingly, we conclude that the plaintiffs’ claim is without merit.

The plaintiffs next claim that they presented sufficient evidence to support a finding in their favor on their claim of tortious interference with a business expectancy. “[I]n order to recover for a claim of tortious interference with business expectancies, the claimant must plead and prove that: (1) a business relationship existed between the plaintiff and another party; (2) the defendant intentionally interfered with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffered actual loss.” Id., 32-33.

In finding in favor of the defendant, the court determined that the plaintiffs’ cause of action failed on the issues of interference, intent and causation. With respect to the interference requirement of the second element of the cause of action, the court stated: “Whatever [the defendant] may have said to [Miller] about the inadequacies of the contract, having a no bonus clause, or having no advance, and that apparently being the characterization of a Mickey Mouse contract, Mr. Miller knew all along, and he certainly would not have influenced—in fact, he agreed that the contract was inadequate in the particulars that have been raised, namely, it had no bonus for signing and it didn’t have any advance. He knew that. He knew it because this was a new group, and it was rather common for, apparently, as he testified, for such a contract to be propounded. So, he could not have been influenced in the slightest way by what [the defendant] may have said about the terms of the contract.” With respect to the intent requirement of the second element of the cause of action, the court later found: “More significantly, there’s no evidence to support any . . . inference that [the defendant] acted intentionally, knowingly, with malice, wrongfully or tortiously to do anything to prevent his nephew and his brother from trying to achieve some relationship with Master P. There’s just simply no evidence to that effect.” Finally, with respect to the causation requirement of the third element of the cause of action, the court explained: “[C]ertainly, the activities and the efforts of [the defendant] did not cause the deal to fall though. The only real explanation that was given that had any semblance of truth to it was that Master P was going through a change of distribution arrangements, and that was one of—that was given as a possibility as to why they didn’t go through.”

Upon review of the record and considering the evidence, including reasonable inferences that may be drawn therefrom, in the light most favorable to the defendant, we conclude that the court’s findings were legally and logically correct and amply supported by the facts appearing in the record. In particular, we find compelling the plaintiffs’ lack of proof on the issue of causation. As Delone Robinson conceded, even if the allegations of the defendant’s statements to Miller were true, there was no direct evidence that the statements caused No Limit Records to terminate its business negotiations with Fort Knox. A logical and reasonable explanation for the termination of the relationship, as Miller testified, was that Master P was going through a change in distribution companies at the time of the negotiations, which caused the termination. An equally plausible explanation for the breakdown in negotiations was that the proposed changes made by Delone Robinson’s Atlanta lawyer caused No Limit Records simply to walk away from the deal, a conclusion that is supported by the reasonable inference drawn from the testimony at trial of statements made by Delone Robinson that his Atlanta lawyer had “screwed up his deal.”

In making its sufficiency of the evidence claim, the plaintiffs essentially request that we retry the court’s factual findings and credit the testimony of Delone Robinson and Wanda Robinson over that of the defendant and Miller. Such a request runs directly counter to our standard of review, which requires us to view the evidence in the light most favorable to sustaining the court’s finding and to accord deference to the factual findings of the trial court, which credited Miller’s testimony. It is not the province of this court to retry the facts or evaluate the credibility of witnesses. Bowman v. Williams, 5 Conn. App. 235, 238, 497 A.2d 1015 (1985), appeal dismissed, 201 Conn. 366, 516 A.2d 1351 (1986).

The judgment is affirmed.

In this opinion the other judges concurred.

       At some point, Master P changed the name of his record label from “No Limit Records” to “New No Limit Records” in an effort to create a new face and redefine himself. At trial, there was conflicting testimony as to which label Master P was acting under during the negotiations with Fort Knox. For the purposes of this opinion, the name distinction is irrelevant. We therefore refer in this opinion to the record company as “No Limit Records” for consistency.

       Despite its title, this count appears to state a cause of action for negligent interference with contractual obligations, and the record reflects that the court treated it as such. Count two of the plaintiffs’ amended complaint is not, however, the subject of this appeal, and therefore we need not address its merits.

       The defendant argues that we should decline to review the plaintiffs’ claims on appeal because the plaintiffs did not provide this court with either a memorandum of decision or a signed transcript. See Practice Book §§ 60-5, 64-1. The plaintiffs have provided an unsigned transcript of the proceedings, and the defendant indicated at oral argument before this court that there is no issue with the accuracy of that transcript. On occasion, we have entertained appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions. Tisdale v. Riverside Cemetery Assn., 78 Conn. App. 250, 254 n.5, 826 A.2d 232, cert. denied, 266 Conn. 909, 832 A.2d 74 (2003). We have reviewed the transcript of this case and conclude that it is adequate for our review.


author: GRUENDEL, J.

text:
    KATHLEEN BIRCHARD v. CITY OF NEW BRITAIN
    (AC 27831)
    DiPentima, Graendel and Harper, Js.

      Argued April 23
    officially released August 7, 2007

      Michael B. Pollack, with whom, on the brief, was Marisa A. Mascolo, for the appellant (plaintiff).

      Irena J. Urbaniak, city attorney, for the appellee (defendant).
   Opinion

GRUENDEL, J.

The plaintiff, Kathleen Birchard, appeals from the judgment of the trial court rendered after it granted the motion of the defendant, the city of New Britain, for judgment notwithstanding the verdict. She claims that the court improperly set aside the verdict in light of (1) the implied admissions contained in the defendant’s answer and (2) the evidence presented to the jury. We agree with the plaintiffs second claim and, accordingly, reverse the judgment of the trial court.

The relevant facts in this slip and fall case are as follows. On March 23, 2002, the plaintiff tripped on a cracked portion of the sidewalk in front of her residence at 55V2 Trinity Street in New Britain, sustaining injuries to her right foot and arm, her right side and both knees. By letter dated April 18, 2002, the plaintiff notified the defendant of her injuries and the alleged cause thereof pursuant to General Statutes § 13a-149. The plaintiffs complaint, filed on February 18, 2003, consisted of one count alleging that the defendant breached its statutory duty under § 13a-149. An arbitrator decided the matter on July 1, 2005, awarding the plaintiff $11,660 in damages. The defendant thereafter requested a trial de novo.

A jury trial followed. The plaintiffs case-in-chief consisted solely of her testimony, augmented by a series of medical records and photographs of the sidewalk taken by the plaintiff. At the conclusion of her testimony, the plaintiff informed the court that she had no additional witnesses. Before proceeding further, counsel for the defendant inquired as to whether “the plaintiff had rested”; counsel for the plaintiff responded, “yes, the plaintiff will rest.” The defendant then moved for a directed verdict, stating that “the plaintiff has rested, and there has been no evidence whatsoever that the area where the plaintiff allegedly fell was under the [defendant’s] jurisdiction, and that [it] had a responsibility and a duty to maintain or repair that area.” In ruling on that motion, the court stated: “I certainly understand [the defendant’s position] in terms of the elements that are necessary to proceed, and there may be, in fact, some issue in that regard; nonetheless, there were some comments that were made by the witness on the [witness] stand, the plaintiff, which, if very liberally viewed, it might address the issue of duty on the part of the city . . . .” The court therefore reserved judgment on that motion pursuant to Practice Book § 16-37.

The defendant rested without presenting any evidence, and the matter was submitted to the jury, which returned a verdict in favor of the plaintiff. The defendant subsequently filed a motion for judgment notwithstanding the verdict, reiterating its claim that the plaintiff failed to present evidence either that the defendant was in possession and control of the sidewalk or that it had a duty to maintain that area. By memorandum of decision dated June 21, 2006, the court concluded that “[i]n reviewing the totality of the evidence in the light most favorable to sustaining the verdict, including reasonable inferences therefrom, this court cannot find as a matter of law that there was sufficient evidence to enable the jury to identify the party which had the duty to maintain the property where the plaintiff fell. Any conclusion reached by the jury that the defendant had a statutory duty to maintain the property in question could only have been based on conjecture and speculation.” The court therefore granted the defendant’s motion and rendered judgment accordingly. This appeal followed.

I

We first address the plaintiff’s contention that the court improperly granted the defendant’s motion for judgment notwithstanding the verdict in light of the implied admissions allegedly contained in the defendant’s answer to the plaintiffs complaint. She claims that the defendant’s answer failed to comply with the pleading requirements of this state. “[T]he interpretation of pleadings is always a question of law for the court .... Our review of the trial court’s interpretation of the pleadings therefore is plenary.” (Citation omitted; internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., 265 Conn. 79, 104, 828 A.2d 31 (2003).

Pleadings are intended to “limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise.” (Internal quotation marks omitted.) Harris v. Shea, 79 Conn. App. 840, 842-43, 832 A.2d 97 (2003); see also 71 C.J.S. 38, Pleading § 3 (2000) (“purpose of pleadings is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial”). Practice Book § 10-46 provides in relevant part that “[t]he defendant in the answer shall specially deny such allegations of the complaint as the defendant intends to controvert, admitting the truth of the other allegations, unless the defendant intends in good faith to controvert all the allegations, in which case he or she may deny them generally. ...”

“According to the law of pleading, what is not denied is conceded.” Casey v. Galli, 94 U.S. 673, 679, 24 L. Ed. 168 (1877); 71 C.J.S. 242, supra, § 193 (“material allegations of the complaint and material matters properly pleaded which are not denied ... in the answer stand admitted”). Consistent with that principle, Practice Book § 10-19 requires that “[e]very material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief.” See also Commissioner of Social Services v. Smith, 265 Conn. 723, 736, 830 A.2d 228 (2003) (“the failure of a party to deny the material allegations contained in an adversary’s pleading operates as an implied admission of that allegation”). Paragraph three of the complaint in the present case averred that “pursuant to ... § 13a-149, the defendant . . . was under the duty to keep the public sidewalks ... in repair and free of defects,” and paragraph four alleged that the “public sidewalk hereinafter described . . . was within the territorial limits of and under the control of the defendant . ...” In its answer, the defendant stated, as to both paragraphs, that the paragraph “is neither admitted nor denied, and the defendant leaves the plaintiff to her proof.” That nonre-sponsive answer is unacceptable under our rules of practice.

In response to each allegation of a complaint, a defendant has three options. It may admit, deny, or plead that it “has not any knowledge or information thereof sufficient to form a belief.” Practice Book § 10-19; see also 1 E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 82 (c), p. 237 (“[e]very material allegation in the complaint which is not denied or answered by a plea of ‘no knowledge’ will be deemed admitted”); W. Horton & K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (4th Ed. 1998) § 10-19, authors’ comments, p. 343 (same). The defendant’s answer in the present case did not admit or deny paragraphs three and four, nor did it state that the defendant lacked sufficient information to form a belief. It was, in essence, a refusal to respond. As such, it failed to comply with Practice Book § 10-19.

Our thorough review of the record reveals that the plaintiff at no time prior to this appeal raised any issue as to the sufficiency or effect of the defendant’s answer. The question before us, then, is whether a trial court is bound by an implied admission pursuant to Practice Book § 10-19 that is not brought to its attention at any stage of the proceedings. We conclude that it is not.

A judicial admission dispenses “with the production of evidence by the opposing party as to the fact admitted, and is conclusive upon the party making it.” (Internal quotation marks omitted.) Pedersen v. Vahidy, 209 Conn. 510, 519-20, 552 A.2d419 (1989). For that reason, “itjhe statement relied on as a binding admission must be clear, deliberate and unequivocal.” National Amusements, Inc. v. East Windsor, 84 Conn. App. 473, 482, 854 A.2d 58 (2004). By their very nature, implied admissions under Practice Book § 10-19 confound that requirement. We think it is both unfair and unworkable to require the trial court, in each and every civil action before it, to scour the pleadings in search of implied admissions. In New England Merchandise Co. v. Miner, 76 Conn. 674, 58 A. 4 (1904), our Supreme Court refused to decide a similar claim largely because the “claim was not made upon the trial . . . .” Id., 676; see also Reese v. First Connecticut Small Business Investment Co., 182 Conn. 326, 328, 438 A.2d 99 (1980) (failure to file answer held not to be implied admission because party did not raise issue at trial). We therefore conclude that the burden rests with the parties to bring to the court’s attention an allegedly implied admission pursuant to Practice Book § 10-19. See, e.g., Mamudovski v. BIC Corp., 78 Conn. App. 715, 720, 829 A.2d 47 (2003) (defendant filed motion for order confirming judicial admission during pretrial hearings), appeal dismissed, 271 Conn. 297, 857 A.2d 328 (2004). Because the plaintiff failed to do so in the present case, she cannot now complain.

II

The plaintiff next claims that the court improperly granted the defendant’s motion for judgment notwithstanding the verdict in light of the evidence presented to the jury at trial. We review the action of the trial court in rendering judgment notwithstanding the verdict “in the light most favorable to the plaintiff. . . . Motions to remove the verdict from the jury are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. . . . If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence.” (Citations omitted; internal quotation marks omitted.) Gedeon v. First National Supermarkets, Inc., 21 Conn. App. 20, 23, 571 A.2d 123, cert. denied, 215 Conn. 804, 574 A.2d 220 (1990).

The plaintiffs action was brought pursuant to § 13a-149, which “provides a limited exception to the doctrine of governmental immunity, allowing recovery of damages from towns and cities for injuries due to defective roads.” Mazurek v. East Haven, 99 Conn. App. 795, 800 n.2, 916 A.2d 90, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). An action pursuant to § 13a-149 is a statutory cause of action, as distinct from one sounding in negligence. Prato v. New Haven, 246 Conn. 638, 645, 717 A.2d 1216 (1998). To trigger its application, “the party whom the plaintiff is suing must be the party bound to keep [the location where the injury was sustained] in repair.” (Internal quotation marks omitted.) Novicki v. New Ha,ven, 47 Conn. App. 734, 740, 709 A.2d 2 (1998). In Novicki, this court explained that “[o]wnership of the property does not establish liability under § 13a-149 .... Rather, it is the governmental entity charged with the duty ... to keep [the property] in repair ... or the party bound to keep [the property] in repair ... on which the [statute] impose[s] liability under certain circumstances.” (Citations omitted; internal quotation marks omitted.) Id., 742; see also Coughlin v. Waterbury, 61 Conn. App. 310, 314-15, 763 A.2d 1058 (2001).

The plaintiffs complaint alleged both that the property in question was a public sidewalk and that the defendant had a duty to maintain that sidewalk. At trial, the jury heard the plaintiffs testimony, in which she stated that on the basis of her personal knowledge, the property in question was a public sidewalk. The plaintiff also testified that the defendant had a duty to maintain that property. Significantly, the defendant did not object to any of the aforementioned testimony. When it elected to rest without submitting any evidence to the jury, the defendant left uncontroverted the plaintiffs testimony. See Savoie v. Daoud, 101 Conn. App. 27, 37-38, 919 A.2d 1080 (2007) (whether there was underlying basis for witnesses’ testimony, witnesses’ express, unchallenged statement became part of evidence, and trier of fact was free to use that testimony for whatever it deemed its worth because plaintiff did not object to testimony); State v. Jeffreys, 78 Conn. App. 659, 677-81, 829 A.2d 569 (single unchallenged, affirmative statement that subject apartment complex was public housing project sufficient to support defendant’s conviction of possession of narcotics with intent to sell within 1500 feet of public housing project where defendant failed to object to testimony, cross-examine witness on issue or request offer of proof as to witness’ qualifications to testify as to such), cert. denied, 266 Conn. 913, 833 A.2d 465 (2003); In re Jose M., 30 Conn. App. 381, 390, 620 A. 2d 804 (testimony became part of evidence and properly considered by fact finder where respondent failed to object to question or request answer be stricken), cert. denied, 225 Conn. 921, 625 A.2d 821 (1993).

After the jury returned a verdict in favor of the plaintiff, the defendant moved for judgment notwithstanding the verdict, alleging that the plaintiff had presented no evidence to support the verdict. The court agreed and set aside the jury’s verdict as being against the evidence. In its memorandum of decision, the court acknowledged the plaintiffs testimony before the jury. In a mere sentence, it nevertheless dismissed that evidence as “self-serving [statements that] constituted a legal conclusion as opposed to the presentation of factual evidence.”

It bears repeating that “[i]f, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence”; (internal quotation marks omitted) Gedeon v. First National Supermarkets, Inc., supra, 21 Conn. App. 23; a point recited by the statement of law in the court’s memorandum of decision. It also is well established that the court cannot substitute its judgment for that of the jury when there exists sufficient evidence to support the jury’s verdict. See, e.g., State v. Mejia, 233 Conn. 215, 224, 658 A.2d 571 (1995). That fundamental precept stems from the “absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Smith, 99 Conn. App. 116, 136, 912 A.2d 1080, cert. denied, 281 Conn. 917, 917 A.2d 1000 (2007).

In the present case, the jury was free to credit the plaintiffs testimony and to determine whether it was self-serving. Moreover, the jury was not presented with conflicting evidence. Rather, it was presented with uncontested evidence that the property was a public sidewalk that the defendant was bound to keep in repair. In light of that evidence, we conclude that the court improperly rendered judgment notwithstanding the verdict of the jury.

The judgment is reversed and the case is remanded with direction to render judgment in accordance with the verdict of the jury.

In this opinion the other judges concurred.

       The plaintiff also claims that the court abused its discretion in denying her motion to open the evidence. We do not consider that issue in light of our conclusion that the court improperly set aside the verdict of the jury.

       General Statutes § 13a-149 provides: “Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.”

       The plaintiff filed an amended complaint on November 20, 2003, that added a count against Leone Giannitti, her landlord. The plaintiff subsequently withdrew her action against Giannitti on August 9, 2004.

       The jury awarded the plaintiff a total of $10,211.82 in damages.

       The complaint alleged that “the public sidewalk hereinafter described . . . was within the territorial limits of and under the control of the defendant” and that “pursuant to . . . [General Statutes] § 13a-149, the defendant . . . was under the duty to keep the public sidewalks ... in repair and free of defects.”

       Specifically, the plaintiff testified in response to a question by counsel for the defendant as to why she had never complained to the defendant about the alleged defect prior to her fall: “[I]n the beginning, when I saw it, I thought it was the landlord’s responsibility, and the landlord . . . told me no, it was the city’s. So, I figured that, you know, [the defendant] would already know about it because that’s [its] responsibility . . . .”

       Although the existence of a duty is a question of law; see, e.g., Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998); the jury heard testimony that both the plaintiff and her landlord, Leone Giannitti, knew that maintenance of the sidewalk was the responsibility of the defendant. In determining whether a duty existed, the jury was entitled to rely on that evidence.


text:
    NIPMUC PROPERTIES, LLC v. PDC-EL PASO MERIDEN, LLC, ET AL.
    (AC 26895)
    Flynn, C. J., and Gruendel and Harper, Js.
    Argued April 30
    officially released August 7, 2007

      Genevieve P. Salvatore, with whom, on the brief, was Dominic J. Aprile, for the appellant (plaintiff).

      Bryan L. LeClerc, with whom were Elizabeth J. Stewart, Deborah Leigh Moore and, on the brief, Aimee L. Hoben and John H. Gorman, for the appellees (defendants).
   Opinion

GRUENDEL, J.

In this contract interpretation action, the plaintiff, Nipmuc Properties, LLC, appeals from the judgment of the trial court denying its claim for a declaratory judgment against the defendants, PDC-E1 Paso Meriden, LLC (PDC-E1 Paso), Meriden Gas Turbines, LLC (Meriden Gas Turbines), Thomas P. Cadden, trustee of the 1998 Real Estate Trust, and the city of Meriden (Meriden), for the delivery of a lease held in escrow. On appeal, the plaintiff claims that the court improperly construed the contract to include provisions not agreed to by the parties and made findings that were unsupported by the record. We affirm the judgment of the trial court.

The record reveals the following relevant facts as set forth by the court in its memorandum of decision. “The plaintiff held title to a parcel of land comprised of approximately 845 acres along the Metacomet ridgeline in . . . Meriden and Berlin. Due to the size and nature of the parcel, as well as its proximity to the Algonquin gas pipeline, the land became the subject of a proposal to build a 544 megawatt gas fired electric generation facility in the late 1990s, shortly after [the General Assembly] enacted legislation deregulating the generation of electric power. In furtherance of this proposal, the plaintiff entered into a contract with Summitwood [Development, LLC, (Summitwood)]. Pursuant to this contract, Summitwood obtained the exclusive right to purchase the property. Summitwood then entered into an agreement to sell the land to PDC-E1 Paso. PDC-E1 Paso then initiated the process to obtain permits necessary to build an electric generation facility on this property, including a certificate of environmental compatibility and public need issued by the [Connecticut siting council (siting council)], pursuant to General Statutes § 16-50g et seq. All of the parties to this action understood that the construction of such an electric generation facility involved an extensive permitting process and was ultimately subject to the approval of the [siting council].

“The original purchase and sale agreement called for the buyer, PDC-E1 Paso, to return thirty acres of the 845 acre parcel to Summitwood after the closing. The intent was for Summitwood to retain this property on behalf of, and for development by the plaintiff, the original owner of the 845 acre parcel. The precise location of the thirty acres was to be determined by the parties at a future date.

“PDC-E1 Paso was unable to perform its contract to purchase the land from Summitwood, which required closing on the title to the property no later than December 31, 2000. PDC-E1 Paso was unable to perform the contract in a timely manner primarily because its gas turbine manufacturer could not supply the necessary gas turbines to power the electric generation facility. This problem required a significant change in the design of the facility. All of the parties agreed that this design change required the further consideration and approval by the [siting council].

“With the understanding that PDC-E1 Paso would default under the contract if it failed to close by December 31, 2000, the parties negotiated an amendment to the purchase and sale agreement, dated December 21, 2000 (amendment). The parties, through their representatives, further memorialized their understanding in a letter dated December 21,2000 (letter). The interpretation of the language of these full exhibits is of critical importance to the determination of the rights and obligations of the parties to this action.

“Pursuant to the amendment, the parties generally agreed to extend the closing date to January 10, 2001. If the closing occurred on or before this date, the purchase price of $12 million would be reduced by $500,000. The amendment also provided that PDC-E1 Paso would lease approximately fifty-two acres of the 845 acre parcel back to Summitwood on behalf of the plaintiff. The lease of the fifty-two acre parcel was for a period of ninety-nine years with the possibility of extension for an additional ninety-nine years. This long-term lease of the fifty-two acres replaced the provision in the original agreement in which Summitwood had the right to retain thirty acres on behalf of the plaintiff. None of the parties dispute these provisions in the amendment to the agreement.

“This vigorously negotiated amendment further provided that the lease would be placed in escrow pending the outcome of [siting council] approval. The specific language of § 2 (a) of the amendment provides that ‘[t]he Escrow Agent shall deliver the Lease to Sum-mitwood upon the approval of the [siting council] of the Buyer’s application to amend the decision and order issued by the [siting council] for the Power Plant described in the Purchase Agreement.’ . . .

“In addition to the amendment dated December 21, 2000, the parties further memorialized their agreement in a letter, also dated December 21, 2000. The letter states that ‘notwithstanding anything contained in the agreement to the contrary, in the event of a denial by the [siting council] of PDC-E1 Paso[’s] . . . application for approval of the transactions described in Section 2 (a) of the Amendment, the undersigned shall pay to Summitwood the additional sum of Seven Hundred Sixty Thousand ($760,000) Dollars.’ Section 2 (a) of the amendment primarily describes the fifty-two acre leaseback agreement, the escrow and the permitted uses of the leasehold property by Summitwood. The letter also describes two circumstances under which the $760,000 payment would not be due to Sum-mitwood: (1) if the siting council ‘approves the transactions described in Section 2 (a) of the Amendment,’ or (2) ‘if no closing occurs.’ . . .

“On January 10, 2001, PDC-E1 Paso assigned all of its rights and obligations under the amended purchase and sale agreement to [Meriden Gas Turbines]. On the same day, [Meriden Gas Turbines] closed on the 845 acre parcel. The [Meriden Gas Turbines] deed indicates that its title is subject to the fifty-two acre lease held in escrow. The lease, however, was not recorded at that time.

“Subsequently, on September 12, 2001, the [siting council] approved the proposed changes to the electric generation facility but rejected the proposed leaseback of fifty-two acres to Summitwood. Instead, the [siting council] directed that title to the fifty-two acres be donated to Meriden. Despite several public hearings and numerous public records concerning the application for the project, covering the span of several years, the first specific request made to the [siting council] for approval of land to be retained by the plaintiff was made on September 7, 2001. This representation was made just five days prior to its rejection by the [siting council], although correspondence between PDC-E1 Paso and the plaintiff indicates that this land was identified on a map dated April 26, 2001, and presumably submitted to the [siting council].”

On April 25, 2003, the plaintiff filed an amended complaint, in which it requested that the court “[determine and enter judgment declaring that the [fifty-two acre lease] is valid and in effect . . . .’’In addition, it requested that Cadden be directed to deliver the lease, and that the court “[e]nter such further orders and relief as may be necessary and just.” On June 27, 2003, PDC-E1 Paso filed an answer to the plaintiffs amended complaint, and on July 2, 2003, Meriden Gas Turbines filed a separate answer, which included special defenses and a counterclaim. Evidence was presented at a trial to the court on December 2 and 17,2004, at the conclusion of which the court ordered the simultaneous filing of posttrial briefs. Final arguments were heard on July 15, 2005, and the court filed a memorandum of decision on August 11, 2005, denying the plaintiffs claim for a declaratory ruling. The court found in favor of the defendants on their first special defense after concluding that the condition precedent for delivery of the lease had not been met. This appeal followed.

The plaintiff contends that the factual findings on which the court relied in rejecting its declaratory judgment action were clearly erroneous. “Whether a contract has been breached ordinarily is a question of fact, subject to the clearly erroneous standard of review.” De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 431 n.5, 849 A.2d 382 (2004). Accordingly, “[t]o the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) Maharishi School of Vedic Sciences, Inc. (Connecticut) v. Connecticut Constitution Associates Ltd. Partnership, 260 Conn. 598, 605, 799 A.2d 1027 (2002).

The plaintiff claims that the court improperly construed the contract to include provisions to which the parties had not agreed. Specifically, it claims that it did not agree that the retained leasehold interest of fifty-two acres was subject to siting council approval. We are not persuaded.

“A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).

Because the parties to this action were sophisticated business entities, represented by counsel throughout the negotiating process, the court concluded that if the contract had been clearer regarding the result of a bifurcated decision by the siting council, the case would have been akin to Tallmadge Bros., Inc., in which a presumption of definitiveness of the contract was raised. The court in this case stated in its memorandum of decision: “The question here is whether the parties tied the question of the delivery of the lease to its approval by the [siting council]. In this case, the intensive negotiations of the parties led to language that could have been more clearly expressed. Neither side was successful in succinctly stating the specific result of a denial of the lease by the [siting council]. . . . Nonetheless, the court finds the letter to be most instructive on the question before the court.”

The amendment considered only the approval of the application and lease. Section 2 (a) provides in relevant part: “The Escrow Agent shall deliver the Lease to Sum-mitwood upon the approval by the [siting council] of the Buyer’s application to amend the decision and order issued by the [siting council] for the Power Plant described in the Purchase Agreement.” (Emphasis added.) Although the plaintiff argues that it never agreed that the leasehold interest was subject to siting council approval, the concurrently written letter signed by all parties belies the plaintiffs contention. The letter, “notwithstanding anything contained in the Agreement to the contrary,” directly addressed the possibility of the siting council’s denial of PDC-E1 Paso’s application. Upon such occurrence, it confirmed that the defendants “shall pay to Summitwood the additional sum of Seven Hundred Sixty Thousand ($760,000) Dollars.”

The letter continues by specifying that “[n]o additional sums shall be due to Summitwood if the [siting council] approves the transactions described in Section 2 (a) of the Amendment or if no Closing occurs.” Because the amendment specifically addressed the fifty-two acres that would be held in escrow for delivery to Summitwood, the letter’s reference to “the transactions described in Section 2 (a) of the Amendment” undoubtedly included the lease. As the court noted, “[ujnder either scenario [under which the $760,000 would not be due], Summitwood and the plaintiff would retain an ownership interest in the land in question ”

The plaintiff cites Tallmadge Bros., Inc., for the well settled principle that “[although parties might prefer to have the court decide the plain effect of their contract contrary to the agreement, it is not within its power to make a new and different agreement . . . .” (Emphasis in original; internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 506. In this case, however, the letter was signed by all parties, and the court found that “[credible evidence was presented to the court that Joseph F. Carabetta, a principal of the plaintiff and agent for Summitwood, clearly understood that the fifty-two acre lease required [siting council] approval. . . . Credible evidence was also presented to the court that Carabetta understood that Meriden’s support for the fifty-two acre lease was essential for [siting council] approval and that he personally undertook that responsibility.” We decline to revisit the court’s credibility determinations. See Mattson v. Mattson, 74 Conn. App. 242, 246, 811 A.2d 256 (2002). A thorough review of the record supports the court’s conclusion that approval by the siting council was a condition precedent to the delivery of the lease, and the court’s findings of fact in arriving at that conclusion were not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Additionally, the plaintiff claims that the court improperly applied General Statutes § 47-19, regarding leases for more than one year, to the present case. Without deciding the propriety of the statute’s application, we note that the court’s brief discussion of § 47-19, to indicate that the lease had not been recorded, did not affect its determination that a condition precedent for the lease’s delivery was not met.

       During oral argument, the plaintiffs attorney for the first time claimed that the letter was parol evidence that should not have been considered by the court in analyzing the agreement The issue was neither argued at trial nor briefed on appeal. Despite the suggestion that the plaintiff incorporated the parol evidence argument by including in its appellate brief a discussion of Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 746 A.2d 1277 (2000), we decline to address whether the letter was parol evidence. See Grimm v. Grimm, 276 Conn. 377, 393, 886 A.2d 391 (2005) (“[i]t is well settled that claims on appeal must be adequately briefed, and cannot be raised for the first time at oral argument before the reviewing court”), cert. denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815 (2006).

       In response to a question at oral argument, the plaintiffs attorney stated that it was her client’s position that the siting council did not have the authority to determine the ownership of the property. The plaintiff did not appeal from the siting council’s decision to award the fifty-two acres to Meriden, however, because it was not a party to that proceeding.

       Joseph F. Carabetta, a principal of the plaintiff, in an August 22, 2001 facsimile transmittal to Ken Roberts, a PDC-E1 Paso principal, acknowledged the inclusion of the fifty-two acres on the map: “The . . . April 26, 2001 map you provided to me last night clearly indicates that [approximately fifty-two] acres will be retained by the original owner. You also indicated that this map will be submitted to the siting committee as part of the permitting process. As you know, to retain the [fifty-two] acre parcel is very important.”

         The special defenses alleged lack of satisfaction of a condition precedent, illegality and collateral estoppel. On October 6,2004, Meriden filed a separate answer with three special defenses that essentially mirrored those filed by Meriden Gas Turbines.

       Additionally, the court ordered a schedule for briefs in which the parties were to address whether the siting council should be made a party to the action. Only Meriden argued in favor of the addition of the siting council as a party, and on April 27, 2005, the court ruled that the siting council was not a necessary party.

       The court noted that “[t]he amendment is signed by . . . Cadden, trustee of the 1998 real estate trust . . . Carabetta, agent for Summitwood and Thomas Atkins, manager of [PDC-E1 Paso]. The letter was signed by Cadden and Carabetta in their same capacities, and also by Atkins in his capacity as the ‘authorized representative’ of ‘Power Development Company LLC,” as well as by other authorized representatives of El Paso Meriden Power Companies I and II. These parties are essentially the same parties who signed the amendment. Different PDC-E1 Paso business entities were used on the letter, compared with the amendment, to ensure that there were economically viable entities tied to the obligations of the letter, since it involved the potential payment of $760,000.” (Emphasis added.)

       In its appellate brief, the plaintiff takes issue with the court’s observation in a footnote that “[t]he lease of [fifty-two] acres represents approximately 6 percent of the . . . larger 845 acre parcel. The fact that the described payment of $760,000 is also approximately 6 percent of the original purchase price of $12 million cannot easily be ignored or dismissed by the court.” The plaintiffs contention that "[apparently relying upon this speculation,” the court concluded as it did is without merit. We note that the court is at liberty to assess reasonably the evidence before it. Rocque v. Light Sources, Inc., 275 Conn. 420, 439, 881 A.2d 230 (“[i]t is well established that a trial court is permitted to draw reasonable inferences from available facts”).

       In a letter dated September 12, 2001, to Joel M. Rinebold, executive director of the siting council, Carabetta wrote: “Information available to me indicates that the [s]iting [c]ouncil is not being presented with a full disclosure of facts relating to the right of [the plaintiff] to obtain the use under a written lease of approximately [fifty-two] acres of the Meriden portion of the parcel at which the subject electric generating plant is to be erected.

        “[The plaintiffs] right to obtain the use of a portion of the Meriden part of that property was granted under the original July 15, 1998 agreement under which PDC-E1 Paso contracted for acquisition of all of the property in Meriden and Berlin. Through an inadvertent error, or by design, or by mistake, that contract interest of [the plaintiff] in and to the [fifty-two] acres was not disclosed by PDC-E1 Paso to . . . Meriden or to the [s]iting [council. In fact, a lease for that [fifty-two] acres, fully executed by all pertinent parties, is presently held in escrow awaiting the delivery to [the plaintiff] upon approval by the siting council of the modification to the planned construction now applied for by PDC-E1 Paso.
      “In view of the foregoing circumstances, it is essential that the siting council give due consideration and support for the [contract] rights of [the plaintiff] to that [fifty-two] acres.”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. EMMANUEL BLANGO
    (AC 26826)
    Schaller, DiPentima and Stoughton, Js.

      Argued April 17
    officially released August 7, 2007

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

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Elizabeth C. Learning, assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Emmanuel Blango, appeals from the judgment of conviction, rendered after a jury trial, of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (l), kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a, two counts of sexual assault in the third degree with a firearm in violation of General Statutes § 53a-72b and threatening in the second degree in violation of General Statutes § 53a-62 (a) (l). The defendant raises the following five claims on appeal: (1) the trial court improperly admitted uncharged misconduct evidence; (2) he was deprived of a fair trial as a result of prosecutorial impropriety; (3) the court’s jury instructions improperly diluted or shifted the state’s burden to prove compulsion, thereby depriving him of a fair trial; (4) the court improperly admitted constancy of accusation evidence as substantive evidence without sua sponte issuing a limiting instruction; and (5) the enhancement of his sentence under General Statutes §§ 53a-40b and 53-202k must be reversed. We affirm the judgment of the trial court.

From the evidence presented at trial, the jury reasonably could have found the following facts. At approximately 1 a.m., on April 3, 2003, the victim, who was twenty years old at the time, was walking to a local convenience store in Willimantic to purchase a soda. As she was walking, the defendant approached her in his vehicle and asked her if she wanted to smoke marijuana. She agreed and got into the defendant’s vehicle. The defendant drove to a nearby house in Mansfield, ostensibly to obtain marijuana. A few minutes after arriving at the house, the defendant told the victim that he was unable to get any marijuana. He proceeded to drive to a more secluded area and, as he was driving, asked the victim to perform oral sex on him. She refused, but the defendant insisted and repeatedly attempted to force her head into his lap as she resisted. He parked the vehicle, grabbed a gun from the backseat, pointed it at the victim’s thigh and told her that he would shoot her if she did not perform oral sex on him. At trial, the victim testified that it was dark at the time of the assault but that she thought that the gun was silver with a dark or brown handle. Upon seeing the gun, the victim began to cry and acquiesced to the defendant’s demand. The defendant returned the gun to the backseat and unzipped his pants. As the victim performed oral sex on him, the defendant forced her head down with his hand and touched her breast under her shirt and her buttocks over her jeans. The victim was crying. When the assault was over, the defendant said, “[n]ow, that wasn’t so bad, was it?” After the defendant took the victim to a location she requested in Willimantic, the victim ran to a nearby police station and reported the sexual assault.

The defendant subsequently was arrested and charged. Thereafter, the state filed a substitute part B information charging the defendant with committing a class A, B or C felony with a firearm in violation of § 53-202k and committing an offense while released on bond in violation of § 53a-40b. The jury returned a verdict of guilty on all counts. At trial, the defendant testified in his defense. He claimed that the sexual act between him and the victim was consensual and that he never threatened the victim with a gun. Following the jury verdict, the defendant pleaded nolo contendere to the part B information. The court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective term of twenty-one years imprisonment, followed by five years special parole, to run concurrently to any sentence then being served. This appeal followed. Additional facts will be set forth where necessary.

I

The defendant first claims that the court improperly admitted uncharged misconduct evidence. The defendant specifically refers to evidence of two subsequent incidents, occurring on April 18, 2003, in which he possessed a gun. We disagree that the court’s admission of this evidence was improper.

The following additional facts that reasonably could have been found by the jury are relevant to our resolution of the defendant’s claim. On April 18,2003, between 3 and 4 a.m., the defendant approached a group of female Eastern Connecticut State University students in his vehicle as they were walking on campus and held a silver and black gun outside of the vehicle’s window. That same morning, at approximately 3:30 a.m., the defendant offered a ride to Timothy Vincent, who was hitchhiking in Willimantic. The defendant drove to a nearby automatic teller machine so that Vincent could withdraw money for gasoline. Vincent gave the defendant his automatic teller machine card and personal identification number and told the defendant to withdraw $300. After completing the transaction, the defendant pulled a silver or chrome plated gun on Vincent and ordered him out of the vehicle, retaining the card and the money. The defendant subsequently was apprehended by police and identified. The police recovered a silver handgun near the scene of the robbery.

In a pretrial motion in limine, the defendant sought to preclude any evidence of the gun that he allegedly displayed during the two incidents on April 18, 2003. During the hearing on the motion, the state contended that the evidence was admissible to corroborate crucial prosecution testimony and to prove an element of two of the crimes charged. The defendant objected to the admission of this evidence, claiming that its probative value was outweighed by its prejudicial effect. The defendant specifically referred to the dissimilarity between the description of the gun used in the sexual assault and that of the gun involved in the subsequent incidents.

The court ruled that the evidence of the uncharged misconduct was relevant for the purpose of corroborating crucial prosecution testimony, namely, the victim’s testimony that the defendant was armed during the April 3,2003 offense and her description of the weapon. The court also determined that the probative value of the evidence outweighed its prejudicial effect. In issuing its ruling, the court indicated that it would minimize any prejudice to the defendant by precluding the witnesses to the April 18, 2003 incidents from testifying as to specific threats made by the defendant and by allowing only one of the three university students to testify.

Following the testimony regarding each incident of April 18, 2003, the court gave the jury a limiting instruction. The court instructed the juiy that the uncharged misconduct evidence was “not being admitted to prove bad character or propensity to commit criminal acts on the part of the defendant.” Rather, the court instructed, the evidence was being admitted for the purpose of corroborating the victim’s testimony. The court further instructed the jury not to consider the evidence as establishing a predisposition on the part of the defendant to commit any of the crimes charged or to demonstrate a criminal propensity. The court gave similar instructions in its final charge to the jury.

The defendant argues that the court improperly admitted the uncharged misconduct evidence to corroborate crucial prosecution testimony because the evidence of the other crimes did not directly corroborate the victim’s testimony. The defendant contends that the uncharged misconduct evidence was too attenuated because the descriptions of the gun used on April 18, 2003, differed from the victim’s description of the gun, the April 18, 2003 offenses were dissimilar in nature to the alleged sexual assault and the offenses involving the students and the hitchhiker occurred fifteen days after the sexual assault. As a result, the defendant asserts that the evidence merely tended to show his criminal propensity and was unfairly prejudicial. The state counters that the court properly admitted the uncharged misconduct evidence to corroborate the victim’s testimony that the defendant displayed a gun to her during the commission of the sexual assault. The state asserts that the defendant’s testimony directly challenged the victim’s testimony and argues that the uncharged misconduct evidence lent corroborative weight to the victim’s testimony insofar as it established that close in time to the sexual assault, the defendant had access to a gun. The state farther argues that the court mitigated any possible prejudicial effect by limiting the uncharged misconduct testimony. We agree with the state.

“The principles governing the admissibility of other misconduct by a defendant are codified in § 4-5 (a) and (b) of the Connecticut Code of Evidence. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. [Conn. Code Evid.] § 4-5 (a). Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of a crime, or to corroborate crucial prosecution testimony. Id., § 4-5 (b). If the evidence of other misconduct is relevant to a proper purpose, such evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice .... Id., § 4-3. Evidence of uncharged misconduct, therefore, is not per se inadmissible. We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . .

“The admission of evidence of [other] misconduct is a decision properly within the discretion of the trial court. . . . [E]very reasonable presumption should be given in favor of the trial court’s ruling. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . The problem is . . . one of balancing the actual relevancy of the other crimes evidence in light of the issues and other evidence available to the prosecution against the degree to which the jury will probably be roused by the evidence.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Bunker, 89 Conn. App. 605, 630-32, 874 A.2d 301 (2005), appeal dismissed, 280 Conn. 512, 909 A.2d 521 (2006).

In State v. Mooney, 218 Conn. 85, 129, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991), our Supreme Court established the scope of the exception allowing for the use of uncharged misconduct evidence to corroborate crucial prosecution testimony. The court explained that “[o]ther crimes evidence ... is only admissible for corroborative purposes, if the corroboration is direct and the matter corroborated is significant. . . . Direct corroborating evidence is that which is not wholly disconnected, remote, or collateral to the matter corroborated. . . . The requirement that the corroborating evidence be direct is necessary in order to ensure that the link between the corroborative evidence and the facts to be inferred therefrom is not too attenuated or nonproba-tive; otherwise, the evidence might unfairly reflect upon the defendant’s propensity to commit crimes.” (Citations omitted; internal quotation marks omitted.) Id.

We conclude that the court did not abuse its discretion by admitting evidence that the defendant displayed a gun during two separate incidents on April 18, 2003, in order to corroborate crucial prosecution testimony. The victim testified that the defendant threatened her with a gun in order to compel her to perform oral sex, an essential element of the charges against him of aggravated sexual assault in the first degree, kidnapping in the second degree with a firearm and sexual assault in the third degree with a firearm. In contrast, the defendant testified that the victim consented and that he never threatened her with a gun. The evidence regarding the April 18, 2003 incidents supported the victim’s testimony and therefore was significant to the state’s case. Furthermore, the uncharged misconduct evidence directly corroborated the victim’s testimony as it established that approximately two weeks after the sexual assault, the defendant had a gun in his possession that was similar to the gun she testified was used in the assault. “Evidence indicating that an accused possessed an article with which the particular crime charged may have been accomplished is generally relevant to show that the accused had the means to commit the crime.

. . . The state does not have to connect a weapon directly to the defendant and the crime. It is necessary only that the weapon be suitable for the commission of the offense.” (Citation omitted; internal quotation marks omitted.) State v. Sivri, 46 Conn. App. 578, 584, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997); see also State v. Stevenson, 53 Conn. App. 551, 572, 733 A.2d 253, cert. denied, 250 Conn. 917, 734 A.2d 990 (1999).

Moreover, the court carefully balanced the probative value of admitting the evidence of the April 18, 2003 incidents against the prejudicial impact the evidence would have on the defendant. To that end, the court limited the uncharged misconduct testimony to that which was necessary to support the victim’s allegation that the defendant displayed a gun on April 18, 2003. Finally, the court instructed the jury after the testimony regarding both incidents as well as in its final charge that this evidence was being admitted for the limited purpose of corroborating the victim’s testimony regarding the gun displayed by the defendant during the assault. Absent evidence to the contrary, a jury is presumed to have followed a court’s limiting instructions. State v. James G., 268 Conn. 382, 398, 844 A.2d 810 (2004). In light of the broad discretion vested in the trial court in balancing the probative value of the evidence and its prejudicial effect on the defendant, we conclude that the court did not abuse its discretion.

II

The defendant next claims that he was deprived of a fair trial as a result of prosecutorial impropriety. First, the defendant claims that the prosecutor engaged in impropriety through her questioning of Willimantic police Officer Mike Haggerty as to the victim’s character for truthfulness. Second, the defendant claims that several remarks made by the prosecutor during closing and rebuttal arguments constituted impropriety. We disagree.

The defendant concedes that he did not object at trial to any of the alleged impropriety and seeks review of his claims pursuant to State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). In Stevenson, our Supreme Court held that “following a determination that prosecutorial [impropriety] has occurred, regardless of whether it was objected to, an appellate court must apply the . . . factors [set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] to the entire trial.” State v. Stevenson, supra, 575.

Before addressing the Williams factors, we must first determine whether the prosecutor in fact engaged in impropriety. “[I]n analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. Put differently, [impropriety] is [impropriety], regardless of its ultimate effect on the fairness of the trial; whether that [impropriety] caused or contributed to a due process violation is a separate and distinct question . . . .” (Internal quotation marks omitted.) State v. Serrano, 91 Conn. App. 227, 231, 880 A.2d 183, cert. denied, 276 Conn. 908, 884 A.2d 1029 (2005). We will address the defendant’s claims in turn.

A

We begin with the defendant’s claim that the prosecutor engaged in impropriety through her questioning of Haggerty as to the victim’s character trait for truthfulness. Specifically, the defendant refers to the following questions by the prosecutor: “Did you ever have the opportunity over the years in your dealings with [the victim] to form an opinion as to her character trait for truthfulness? . . . Between your contact with [the victim] providing information [to the police] and your contact with her in the school system, contact with her when you would run into her, did you form an opinion as to her truthfulness?” We conclude that the defendant has raised an unpreserved evidentiary claim, rather than a claim of prosecutorial impropriety with constitutional implications.

The defendant raises two arguments in support of his claim. First, the defendant contends that the prosecutor elicited improper opinion testimony as to the ultimate issues of compulsion and the victim’s credibility. This raises an evidentiary issue. See Conn. Code Evid. § 7-3 (a) (“[testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact”). Second, the defendant contends that the prosecutor elicited improper vouching testimony. The defendant relies on State v. Singh, 259 Conn. 693, 793 A.2d 226 (2002), in support of his argument that it is improper to ask a witness to comment on the veracity of another witness’ testimony. His reliance, however, is misplaced. In Singh, the prosecutor challenged the defendant’s testimony on cross-examination by asking him whether the other witnesses had lied in their testimony. Id., 703-704. Our Supreme Court concluded that the prosecutor’s questions were improper, concluding that “a witness may not be asked to characterize another witness’ testimony as a lie, mistaken or wrong.” Id., 712. In the present case, by contrast, the prosecutor did not question Haggerty as to the veracity of another witness’ testimony. Rather, the prosecutor questioned Haggerty as to his opinion of the victim’s character for truthfulness on the basis of his prior interaction with her. Our rules of evidence govern the admissibility of opinion evidence to prove a witness’ character for truthfulness. See Conn. Code Evid. § 6-6 (a); see State v. Gould, 241 Conn. 1, 19, 695 A.2d 1022 (1997). The propriety of the prosecutor’s questioning, therefore, is an. evidentiary matter.

In relying on State v. Stevenson, supra, 269 Conn. 572-73, and State v. Williams, supra, 204 Conn. 540, to raise a claim of prosecutorial impropriety, the defendant has merely couched an unpreserved evidentiary claim in constitutional terms. We have previously stated that “[r]obing garden variety claims [of an evidentiary nature] in the majestic garb of constitutional claims does not make such claims constitutional in nature.” (Internal quotation marks omitted.) State v. Izzo, 82 Conn. App. 285, 291 n.2, 843 A.2d 661, cert. denied, 270 Conn. 902, 853 A.2d 521 (2004). As the defendant’s evidentiary claim is unpreserved, we decline to afford it review. See, e.g., State v. Cosby, 99 Conn. App. 164, 171, 913 A.2d 1068 (“[assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush” [internal quotation marks omitted]), cert. denied, 281 Conn. 920, 918 A.2d 273 (2007).

B

We next consider the defendant’s claim that the prosecutor engaged in impropriety during closing and rebuttal arguments. Specifically, the defendant claims that the prosecutor improperly (1) referred to the improper opinion testimony of Haggerty and (2) vouched for the credibility of the victim. We conclude that none of the challenged statements by the prosecutor was improper.

1

First, the defendant contends that the prosecutor improperly referred to Haggerty’s opinion testimony in her closing argument. Specifically, the prosecutor stated: “[Haggerty] knew [the victim] to be truthful. He formed an opinion. He had known her for years. And through his contact with her . . . believed her to be truthful.” As previously stated, the defendant did not object to the state’s questioning of Haggerty at trial as to his opinion of the victim’s character for truthfulness. In referring to this testimony in her closing argument, the prosecutor simply commented on the evidence admitted at trial. See, e.g., State v. Farr, 98 Conn. App. 93, 110, 908 A.2d 556 (2006). We therefore conclude that her remarks were not improper.

2

Second, the defendant argues that several statements by the prosecutor in closing and rebuttal arguments constituted improper vouching for the credibility of the victim. During closing argument, the prosecutor made the following remarks: “[The victim told police Detective Brian Walsh that] she was pretty sure [the gun from the April 18, 2003 incidents] was the gun [displayed by the defendant on April 3, 2003], but she wasn’t sure— she wasn’t sure about the gun. ... If she was lying, why wouldn’t she just say, ‘Yeah, that’s the gun.’ . . . Why would she admit she wasn’t sure? That goes to her credibility . . . .” In rebuttal argument, the prosecutor further stated: “[The victim] got into a car for drugs. It’s going to make her look like a prostitute. . . . That is what happened that night, and despite how it may look, she tells the truth over and over and over again. . . . What motive does this young woman have to come here two years later to take the [witness] stand—she lives out of state—and relive this event? Her motive is because she’s telling the truth. . . . She has painted herself in a really horrible light, but that is the truth.”

“As a general rule, prosecutors should not express their personal opinions about the guilt of the defendant, credibility of witnesses or evidence. ... A prosecutor, however, is permitted to argue to the jury that the evidence and the reasonable inferences to be drawn therefrom should lead the jury to a conclusion as to the credibility of witnesses. ... It is not improper for a prosecutor to comment on the credibility of a witness as long as he neither personally guarantees the witness’ credibility nor implies that he has knowledge of the witness’ credibility outside the record.” (Citation omitted; internal quotation marks omitted.) State v. Serrano, supra, 91 Conn. App. 235. In addition, “the state may properly argue that the witnesses had no apparent motive to lie.” (Internal quotation marks omitted.) State v. Luster, 279 Conn. 414, 438, 902 A.2d 636 (2006).

Contrary to the defendant’s argument, the prosecutor’s remarks in the present case did not constitute improper vouching for the victim’s credibility; the prosecutor did not personally guarantee the victim’s credibility, nor did she indicate that she had knowledge outside of the record about the victim’s credibility. Rather, the prosecutor’s remarks constituted fair comment on the evidence presented at trial and the reasonable inferences to be drawn therefrom. In arguing to the jury that the victim was telling the truth and had no motive to lie, the prosecutor properly rebutted the defendant’s testimony that the victim had consented to the sexual encounter and that he never threatened her with a gun. Accordingly, the defendant’s claim of impropriety fails.

Ill

The defendant next claims that the court’s jury instructions improperly diluted or shifted the state’s burden to prove compulsion, thereby depriving him of a fair trial. The defendant concedes that he neither filed a request to charge nor objected to the court’s instructions and therefore requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Pursuant to Golding, “[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; internal quotation marks omitted.) State v. Vasques, 66 Conn. App. 118, 123, 783 A.2d 1183, cert. denied, 258 Conn. 941, 786 A.2d 428 (2001). We decline to review the defendant’s claim under Golding because it is not of constitutional magnitude.

The defendant asserts that under State v. Smith, 210 Conn. 132, 554 A.2d 713 (1989), the jury should have been instructed that the state had to disprove his claim of consent beyond a reasonable doubt on the sexual assault charges in order to prevent the diluting or shifting of the state’s burden of proof on the element of compulsion.

In Smith, our Supreme Court stated: “It is likely that juries in considering the defense of consent in sexual assault cases, though visualizing the issue in terms of actual consent by the complainant, have reached their verdicts on the basis of inferences that a reasonable person would draw from the conduct of the complainant and the defendant under the surrounding circumstances. It is doubtful that jurors would ever convict a defendant who had in their view acted in reasonable reliance upon words or conduct of the complainant indicating consent, even though there had been some concealed reluctance on her part. If a defendant were concerned about such a possibility, however, he would be entitled, once the issue is raised, to request a jury instruction that the state must prove beyond a reasonable doubt that the conduct of the complainant would not have justified a reasonable belief that she had consented.” (Emphasis added.) Id., 141.

Although a defendant is entitled to request an instruction that the state must disprove consent beyond a reasonable doubt under Smith, our Supreme Court has not held that such an instruction is constitutionally mandated whenever the defense of consent is raised in sexual assault cases. State v. Cotton, 77 Conn. App. 749, 757-58, 825 A.2d 189, cert. denied, 265 Conn. 911, 831 A.2d 251 (2003). As a result, the defendant’s claim that the court improperly failed to issue a Smith instruction is not of constitutional magnitude and, therefore, fails under Golding's second prong.

IV

The defendant next claims that the court improperly admitted constancy of accusation evidence as substantive evidence without sua sponte issuing a limiting instruction. In support of his claim, the defendant refers to the testimony of three state’s witnesses as to statements made by the victim describing the assault as well as an emergency room report containing similar statements and argues that pursuant to the constancy of accusation doctrine, the court should have instructed the jury to consider this evidence only as corroboration of the victim’s testimony and not as substantive evidence. The defendant concedes that he did not preserve his claim for appellate review and, therefore, seeks plain error review.

“[T]he plain error doctrine, which is now codified at Practice Book § 60-5 ... is not ... a rule of review-ability. 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.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 86-87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). This court previously has stated that “[t]he failure by the trial court to give, sua sponte, an instruction that the defendant did not request, that is not of constitutional dimension and that is not mandated by statute or rule of practice is not such an obvious error that it will affect the fairness and integrity of and public confidence in the judicial proceedings.” (Emphasis added; internal quotation marks omitted.) State v. Johnson, 65 Conn. App. 470, 478, 783 A.2d 1057, cert. denied, 258 Conn. 930, 783 A.2d 1031 (2001). In the present case, the challenged evidence was not introduced or admitted for purposes of constancy of accusation or any other limited purpose. Moreover, the defendant did not object to this evidence or request a limiting instruction at trial. He also did not file a request to charge on constancy of accusation or object to the court’s charge as given. We therefore conclude that the court did not commit plain error.

V

The defendant’s final claim is that the enhancement of his sentence under §§ 53a-40b and 53-202k must be reversed pursuant to the plain error doctrine.

First, the defendant argues that he was improperly convicted under §§ 53a-40b and 53-202k and that the conviction must be reversed because these statutes are sentence enhancement provisions, not separate offenses. The defendant’s argument is without merit. Our review of the judgment file reveals that pursuant to the defendant’s pleas of nolo contendere, the court applied the sentence enhancements to the defendant’s underlying conviction. In so doing, the court properly treated the charges under §§ 53a-40b and 53-202k as sentence enhancements and not as a conviction of separate offenses.

Second, the defendant argues that the court improperly accepted his plea of nolo contendere on the part B charge under § 53-202k because the issue of whether he used a firearm during the commission of the relevant underlying offenses in violation of § 53-202k should have been submitted to the jury. The defendant relies on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in which the United States Supreme Court held that a defendant who is subject to a sentence enhancement provision has the right to a jury finding on the facts, with the exception of the fact of a prior conviction. The United States Supreme Court has stated, however, that a defendant’s rights under Apprendi are waivable. See Blakely v. Washington, 542 U.S. 296, 310, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In the present case, by knowingly and voluntarily pleading nolo contendere to the charge under § 53-202k, the defendant waived his right to a jury determination of the facts with respect to that charge. See, e.g., State v. Winer, 69 Conn. App. 738, 745, 796 A.2d 491, cert. denied, 261 Conn. 909, 806 A.2d 50 (2002).

The court therefore properly applied the sentence enhancement provisions of §§ 53a-40b and 53-202k and sentenced the defendant accordingly. Although we are mindful of the adverse collateral consequences that result from a felony conviction; see State v. John, 210 Conn. 652, 694, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); we conclude that the plain error doctrine is inapplicable to the present case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70a (a) provides in relevant part: “A person is guilty of aggravated sexual assault in the first degree when such person commits sexual assault in the first degree as provided in section 53a-70, and in the commission of such offense (1) such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a deadly weapon . . . .”

       General Statutes § 53a-94a provides in relevant part: “A person is guilty of kidnapping in the second degree with a firearm when he commits kidnapping in the second degree, as provided in section 53a-94, and in the commission of such offense he uses or is armed with and threatens the use of or uses or displays or represents by his words or conduct that he possesses a pistol, revolver, machine gun, shotgun, rifle or other firearm. ...”

       General Statutes § 53a-72b (a) provides in relevant part: “A person is guilty of sexual assault in the third degree with a firearm when such person commits sexual assault in the third degree as provided in section 53a-72a, and in the commission of such offense, such person uses or is armed with and threatens the use of or displays or represents by such person’s words or conduct that such person possesses a pistol, revolver, machine gun, rifle, shotgun or other firearm. ..."

       General Statutes § 53a-62 (a) provides in relevant part: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .”

       Although the parties briefed the defendant’s claim as one of prosecutorial misconduct, we refer to the claim as one of prosecutorial impropriety pursuant to our Supreme Court’s decision in State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007).

       General Statutes § 53a-40b provides: “A person convicted of an offense committed while released pursuant to sections 54-63a to 54-63g, inclusive, or sections 54-64ato 54-64e, inclusive, other than a violation of section 53a-222, may be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor.”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       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.

       In his brief, the defendant also argues that the court improperly admitted the uncharged misconduct evidence to prove an element of the crimes charged, specifically, that he possessed a gun. Although the state argued this as a basis for admission, the court admitted the evidence of uncharged misconduct solely for the purpose of corroborating crucial prosecution testimony. We therefore confine our review to whether the court properly admitted the uncharged misconduct evidence for this purpose.

       In State v. Stevenson, supra, 269 Conn. 572-73, our Supreme Court stated that with respect to unpreserved claims of prosecutorial impropriety, “it is unnecessary for the defendant to seek to prevail under the specific requirements of State v. Golding, 213 Conn. 239-10, 567 A.2d 823 (1989), and, similarly, it is unnecessary for a reviewing court to apply the four-pronged Golding test.” The court explained that applying Golding would result in “confusion and duplication of effort” because in reviewing claims of prosecutorial impropriety, a court must apply the factors set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987), which are identical to the third and fourth prongs of Golding. State v. Stevenson, supra, 573-74.

       In support of his argument that the prosecutor improperly vouched for the credibility of the victim during closing and rebuttal arguments, the defendant also refers to the following statement: “[The defendant] gives [the victim] his phone number in the name of Romeo. ... He believes because she’s out at that time of night, she must be a prostitute. ... He has every reason to believe that she will—who's going to believe her? If she’s a prostitute and he just sexually assaulted her, A, will she even report it, and B, who’s ever going to believe her? That’s why he gave her his name and number. He has no respect for her whatsoever.”
      The defendant, however, provides no analysis as to why this statement constitutes improper vouching for the victim’s credibility. We therefore decline to consider this argument. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” (Internal quotation marks omitted.) State v. John G., 100 Conn. App. 354, 355-56 n.2, 918 A.2d 986, cert. denied, 283 Conn. 902, 926 A.2d 670 (2007). Furthermore, even if we were to consider the defendant’s argument, we would conclude that the prosecutor’s remarks constituted permissible argument on the reasonable inferences to be drawn from the evidence and did not result in impropriety.

       The defendant also requested review pursuant to State v. Golding, supra, 213 Conn. 239-40, but did not provide any analysis of his claim under Golding’s four-pronged test. “[CJlaims on appeal that are inadequately briefed are deemed abandoned. . . . This rule applies to claims that the defendant is entitled to . . . Golding review.” (Internal quotation marks omitted.) State v. Miller, 59 Conn. App. 406, 410, 757 A.2d 69 (2000), cert. denied, 255 Conn. 942, 769 A.2d 60 (2001). Accordingly, we decline to afford the defendant’s claim Golding review.

       In his reply brief, the defendant, in light of State v. Fagan, supra, 280 Conn. 100, withdrew his claim that the court improperly accepted his plea of nolo contendere on the part B charge under General Statutes § 53a-40b because the jury should have determined whether he had been released on bond at the time of the offenses. We therefore do not address this claim.