author: PER CURIAM.

text:
    STATE OF CONNECTICUT v. VAUGHN LEE REED
    (AC 19294)
    Lavery, C. J., and Schaller and Dupont, Js.
    Submitted on briefs November 2
    officially released December 12, 2000

      Mary Anne Royle, special public defender, filed a brief for the appellant (defendant).

      James E. Thomas, state’s attorney, and Christopher T. Godialis and Thomas J. O’Brien, assistant state’s attorneys, filed a brief for the appellee (state).
   Opinion

PER CURIAM.

The defendant, Vaughn Lee Reed, appeals from the judgment of conviction, rendered after a jury trial, of prostitution in violation of General Statutes § 53a-82 (a). On appeal, the defendant claims that the court improperly charged the jury on the presumption of innocence and reasonable doubt. We affirm the judgment of the trial court.

With regard to the presumption of innocence, the defendant claims that the court improperly charged that “the law is made to protect society and persons whose guilt has not been proven beyond a reasonable doubt, and not to protect persons proven guilty beyond a reasonable doubt.” The defendant failed to object to the challenged instruction at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review this claim because the record is adequate and the claim of instructional error regarding the burden of proof and presumption of innocence is constitutional in nature. See State v. Legrande, 60 Conn. App. 408, 423 n.12, 759 A.2d 1027 (2000).

In State v. Legrande, supra, 60 Conn. App. 423-24, we upheld the court’s charge to the jury that “ ‘the law is made to protect society and persons whose guilt has not been established beyond a reasonable doubt and not to protect those whose guilt has been so established.’ ” We concluded in Legrande that the defendant was not deprived of a fair trial by the challenged language. We conclude, on the basis of the foregoing, that the defendant in this case was not deprived of a fair trial as a result of the court’s charge on the presumption of innocence. See id., 424; see also State v. Mukhtaar, 253 Conn. 280, 308-11, 750 A.2d 1059 (2000); State v. Watson, 251 Conn. 220, 225-28, 740 A.2d 832 (1999).

With regard to reasonable doubt, the defendant claims that the court improperly charged that a reasonable doubt is “a real doubt, an honest doubt.” The defendant did not object to the challenged language at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40. Although the record is adequate for review of the defendant’s claimed constitutional violation, he cannot prevail because he has not demonstrated that the challenged portion of the court’s charge was constitutionally improper.

Our Supreme Court has upheld the use of the same instructional language that a reasonable doubt is “ ‘a real doubt, an honest doubt.’ ” State v. Hines, 243 Conn. 796, 816-20, 709 A.2d 522 (1998). “It is not . . . within our province to overrule or discard the decisions of our Supreme Court.” (Internal quotation marks omitted.) State v. Markeveys, 56 Conn. App. 716, 722, 745 A.2d 212, cert. denied, 252 Conn. 953, 749 A.2d 1203 (2000).

The judgment is affirmed.

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


source: Caselaw Access Project

author: FOTI, J. O’CONNELL, J.,

license: Public Domain

text:
    DONALD D. BOWERS v. FLORENCE IRENE BOWERS
    (AC 20420)
    Lavery, C. J., and Foti and O’Connell, Js.

      Submitted on briefs September 15
    officially released December 12, 2000

      Brian M. Silver filed a brief for the appellant (plaintiff).

      Robert H. Weinstein filed a brief for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Donald D. Bowers, appeals from the postjudgment order of the trial court finding him in contempt of orders that directed him to make certain payments of child support and counsel fees to the defendant, Florence Irene Bowers, and awarding further counsel fees to her. The plaintiff claims that the court improperly (1) concluded that he wilfully violated an order of the court, (2) entered an interim order and (3) awarded attorney’s fees. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The parties’ marriage of approximately twenty years was dissolved on April 15, 1988. Thereafter, the parties presented a series of motions addressing child support and other financial orders. On June 3, 1993, the court modified previous orders and, as relevant to this appeal, ordered payments by the plaintiff against the child support arrearage suspended “until [he] receives unemployment compensation, disability insurance or finds a new job. In the event of any of the above activities, the plaintiff is to notify the court of the amount of income and to provide an affidavit supporting his income/job.”

During the hearing on the defendant’s motion for contempt relating to the plaintiffs alleged failure to comply with the court’s June 3, 1993 order, the court entered an interim order dated March 26,1996, ordering the plaintiff to seek employment and to remain employed. In a memorandum of decision filed on December 21, 1999, the court concluded that the plaintiff had failed to use an available inheritance to pay the amounts due to the defendant and had improperly diverted those funds. The court found that because the plaintiff had the ability to comply with the June 3, 1993 order, but chose not to do so, he was in contempt of that order. The court further found, in concluding as it did, that the plaintiffs mother had died on July 3, 1994, and that he subsequently was notified that he would receive a distribution from her estate of at least $18,500. The plaintiff, rather than accepting that amount, filed a formal notification of his intention to disclaim the distribution. The plaintiff claimed that he had been offered a loan from William Bowers, his brother and coexecutor of their mother’s estate. The alleged loan had been made in April, 1994, subsequent to the entry of the court’s June 3, 1993 order. The plaintiffs disclaimer was given in exchange for his brother’s consideration of forgiving a portion of the loan.

The court also found that the plaintiff was in contempt for his noncompliance with the March 26, 1996 interim order by failing to make efforts to secure employment as ordered by the court. The court awarded attorney’s fees to the defendant in the amount of $4550 for the two contempt motions on which she prevailed.

“The standard of review in family matters is that this court will not disturb the trial court’s orders unless it has abused its legal discretion or its findings have no reasonable basis in fact. ... It is within the province of the trial court to find facts and draw proper inferences from the evidence presented.” (Internal quotation marks omitted.) Werblood v. Bimbach, 41 Conn. App. 728, 730, 678 A.2d 1 (1996); see also Karen v. Parciak-Karen, 40 Conn. App. 697, 703, 673 A.2d 581 (1996); Rummel v. Rummel, 33 Conn. App. 214, 220, 635 A.2d 295 (1993); Graham v. Graham, 25 Conn. App. 41, 47, 592 A.2d 424, cert. denied, 220 Conn. 903, 593 A.2d 969 (1991).

“[T]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous. . . . This court cannot retry the facts or pass upon the credibility of the witnesses. ... 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.” (Internal quotation marks omitted.) Schult v. Schult, 40 Conn. App. 675, 682, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997). “ [W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

I

The plaintiff first claims that the court improperly concluded that he had wilfully violated the court’s June 3, 1993 order. He argues that the court’s order is clear and unambiguous, providing that the order for payment would no longer be suspended upon the occurrence of any one of three specific conditions. The plaintiff further argues that none of the conditions was met because he did not receive unemployment compensation or disability insurance and did not find a new job. Alternatively, the plaintiff argues that even if the order was ambiguous, he could not be found in wilful contempt of the order. He posits that the court abused its discretion by finding a deliberate defiance of a court order that was clearly not justified. We do not agree.

A finding of contempt is a question of fact; see State v. Jackson, 147 Conn. 167, 170, 158 A.2d 166 (1960); and our standard of review is to determine whether the court abused its discretion in finding that the actions or inactions of the party were in contempt of a court order. Bunche v. Bunche, 36 Conn. App. 322, 324, 650 A.2d 917 (1994).

The plaintiff argues that, as a matter of law, under the circumstances of this case, he could not be found to have disobeyed an order of the court. He also argues that if it can be determined that he did not comply with an order of the court, there is no adequate factual basis to find that noncompliance to be wilful. We do not agree.

Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct, and find support in the facts set out in the court’s memorandum of decision. Burrier v. Burrier, 59 Conn. App. 593, 595, 758 A.2d 373 (2000). The court’s conclusions must stand unless they involve the application of some erroneous rule of law material to the case. Cummings v. Tripp, 204 Conn. 67, 87, 527 A.2d 230 (1987).

A fair reading of the June 3, 1993 order leads us to conclude that the court properly determined that its obvious meaning was that “when the plaintiff has funds available to cover the amount due to the defendant, he should pay her that amount available and should do so with dispatch.” We agree with the court’s reasoning that a fair reading of the June 3, 1993 order shows an expectation that the plaintiff would make reasonable efforts to find employment and that he would notify the court of any income or job so that, if necessary, a wage execution could issue to secure the amounts due. We rely on the purpose of our support statutes and the public policy related thereto to conclude as we do. See, e.g., Mulholland v. Mulholland, 31 Conn. App. 214, 224, 624 A.2d 379 (1993), aff'd, 229 Conn. 643, 643 A.2d 246 (1994). The clear implication of the June 3, 1993 order gave the defendant sufficient notice of what was expected of him.

To constitute contempt, a party’s conduct must be wilful. Ford v. Ford, 52 Conn. App. 522, 529, 727 A.2d 254 (1999)q. Noncompliance alone will not support a judgment of contempt. Issler v. Issler, 50 Conn. App. 58, 64, 716 A.2d 938 (1998), rev’d on other grounds, 250 Conn. 226, 737 A.2d 383 (1999). The plaintiff had an available inheritance in the amount of $18,500 with which to comply with the court order, but intentionally and improperly diverted those funds. The court did not abuse its discretion in concluding that the plaintiff wilfully violated an order of the court.

II

The plaintiff next claims that the court abused its discretion by “modifying” the June 3, 1993 order with its interim order dated March 26,1996. There is no merit to this claim. It is clear that the interim order was entered in an effort by the court to effectuate the prior order and was not a modification. The plaintiff filed no appeal from the entering of the interim order. Because the interim order was not improperly entered, the court’s subsequent action, finding by clear and convincing evidence that the plaintiff “wilfully failed to comply with the interim [order] . . . requiring him to find and maintain employment,” was within its discretion, and we conclude that no abuse of that discretion has been demonstrated.

Ill

The plaintiff finally claims that the court improperly awarded attorney’s fees. He claims that the defendant failed to request such an award and that the court awarded attorney’s fees “to punish [the plaintiff] . . . for wilfully violating a court order.”

The healing lasted eleven days. The court awarded $4550 in attorney’s fees to the defendant. The award of attorney’s fees in contempt proceedings is within the discretion of the court. Tatro v. Tatro, 24 Conn. App. 180, 189, 587 A.2d 154 (1991). The court awarded the attorney’s fees pursuant to General Statutes § 46b-87, which allows such an award against one found in contempt. The plaintiff has failed to sustain his burden of demonstrating that the court abused its discretion.

The judgment is affirmed.

In this opinion LAVERY, C. J., concurred.

O’CONNELL, J.,

dissenting. I do not agree that the plaintiff properly was held in contempt for violating the trial court’s June 3, 1993 order. That order expressly suspended the plaintiffs obligation to make payments on his child support arrearage until he (1) received unemployment compensation, (2) received disability insurance or (3) found a new job. It is undisputed that none of those events occurred.

I am unable to stretch my imagination to construe the defendant’s possible inheritance to be the equivalent of any of the three triggering events. Because the contempt remedy is particularly harsh, it must be founded solely on a clear and expressed direction from the court. Blaydes v. Blaydes, 187 Conn. 464, 467, 446 A.2d 825 (1982). “One cannot be placed in contempt for failure to read the court’s mind. . . . Recognizing those basic tenets, most courts, in deciding whether a contempt has occurred, have refused to expand judgments by implication beyond the meaning of their terms. . . . [W]here parties under a mandatory judgment could be subjected to punishment as contemnors for violating its provisions, such punishment should not rest upon implication or conjecture, but the language declaring such rights should be clear, or imposing burdens specific and unequivocal so that the parties may not be misled thereby.” (Citations omitted; internal quotation marks omitted.) Id., 467-68.

The June 3, 1993 order met the clear and express standard so that the plaintiff could govern his conduct accordingly. The plaintiff could not be expected, however, to understand that the three express triggering events would be construed to encompass funds he might receive from any other source. This can be so construed only by implication and conjecture, which are barred when considering a contempt appeal. Id., 468.

I decline to speculate concerning any unexpressed intent of the trial court when it rendered its judgment, nor would I enlarge that judgment beyond its express terms. Likewise, I will not torture the words of the June 3, 1993 order when their meaning is clear. See Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 498, 746 A.2d 1277 (2000).

“Although . . . plenary review of civil contempt orders extends to some issues that are not truly jurisdictional, its emphasis on fundamental rights underscores the proposition that the grounds for any appeal from a contempt order are more restricted than would be the case in an ordinary plenary appeal from a civil judgment.” (Internal quotation marks omitted.) Wilson v. Wilson, 38 Conn. App. 263, 272, 661 A.2d 621 (1995). Appellate review of a finding of civil contempt “is technically limited to questions of jurisdiction such as whether the court had authority to impose the punishment inflicted and whether the act or acts for which the penalty was imposed could constitute a contempt. . . . This limitation originates because by its very nature the court’s contempt power . . . must be balanced against the contemnor’s fundamental rights and, for this reason, there exists the present mechanism for the eventual review of errors which allegedly infringe on these rights. . . . We have found a civil contempt to be improper or erroneous because . . . the findings on which it was based were ambiguous and irreconcilable . . . .” (Internal quotation marks omitted.) Id., 271.

I would reverse the trial court’s judgment that the plaintiff was in contempt of the June 3, 1993 order.

       The child support arrearage totaled $11,844 as of that date, plus attorney’s fees of $5055 and costs of $919.93.

       The court denied the defendant’s motion to open the judgment and an additional motion for contempt filed by the defendant.

       The court filed a thorough and well reasoned sixty-nine page memorandum of decision, which addressed a number of issues, including those on appeal. Although one of the defendant’s motions sought a finding of contempt on grounds other than the diversion of the available inheritance, neither party raised the issue before the trial court or on appeal. The parties were fully heard by the trial court, and the plaintiff did not seek an articulation. Moreover, the plaintiff did not file a transcript of the hearing.

         General Statutes § 46b-87 also allows the court to award a reasonable attorney’s fee to a person found not to be in contempt of a court order.

       There was no motion before the trial court seeking to have the plaintiff found in contempt as a result of the inheritance from his mother. The court was acting on the defendant’s May 16,1994 motion, which sought a contempt finding on the basis of money the plaintiff allegedly received from a bankruptcy proceeding and an alleged sale of real estate. That motion makes no reference to the inheritance. The court was acting suo moto in finding the plaintiff in contempt on the basis of this inheritance. Because the parties did not raise this issue on appeal, I will not discuss it further.


author: FOTI, J.

text:
    GLENFED MORTGAGE CORPORATION v. NANCY R. CROWLEY ET AL.
    (AC 21092)
    Foti, Landau and Pellegrino, Js.
    Considered September 27
    officially released November 16, 2000

      Michele D. Sensale, in support of the motion.

      Frederick J. Miaño, in opposition.

       November 16, 2000, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FOTI, J.

The defendants, Nancy R. Crowley and Frederick J. Miaño, appeal from the trial court’s order of execution for ejectment following the court’s supplemental judgment ratifying a mortgage foreclosure sale. The plaintiff, Glenfed Mortgage Corporation (Glenfed), now moves to dismiss the appeal as untimely and frivolous. We agree that the appeal should be dismissed as frivolous.

Glenfed commenced this foreclosure action against Miaño and Crowley on November 14,1995. On February 2, 1996, Glenfed filed a motion for a judgment of strict foreclosure and for possession. That motion was not heard, however, until April 14, 1998, because Miaño filed for chapter thirteen bankruptcy on November 1, 1996. The filing of the bankruptcy petition stayed the trial court proceedings until the bankruptcy case was dismissed by the United States Bankruptcy Court for the District of Connecticut on February 26, 1997. On April 14,1998, the court, Hon. Daniel F. Spallone, judge trial referee, denied Glenfed’s motion for a judgment of strict foreclosure and rendered a judgment of foreclosure by sale. The court set a sale date of June 27, 1998. No appeal was taken from the judgment of foreclosure.

Thereafter, Miaño again filed for bankruptcy. Glenfed then filed a motion in the Bankruptcy Court for relief from the bankruptcy stay. On August 11,1998, the Bankruptcy Court granted Glenfed’s motion for relief from stay to allow it to proceed with the foreclosure action.

On August 17, 1998, Glenfed filed a motion to open the judgment, which was granted by the court, Arena, J., on August 31,1998, and a new sale date of October 31, 1998, was set. Thereafter, Crowley filed for bankruptcy. Crowley’s case was dismissed by the Bankruptcy Court on December 9, 1998. Glenfed then filed a motion to reopen the trial court’s judgment on December 17,1998. The court, Arena, J., granted the motion on February 1, 1999, and set a new sale date of April 10, 1999.

On March 31, 1999, Miaño filed for bankruptcy for the third time in almost two and one-half years. The Bankruptcy Court modified the automatic stay on June 1,1999, to allow Glenfed to proceed with the foreclosure action. Subsequently, Glenfed filed another motion to reopen the trial court’s judgment, which was granted by the court, Arena, J., on June 29,1999, and a September 11, 1999 sale date was set.

The September 11, 1999 sale apparently did not proceed because Glenfed filed a motion to reopen on October 26,1999, claiming that Miano’s bankruptcy case had been dismissed and the stay lifted. On November 3, 1999, the court, Munro, J., granted Glenfed’s motion and set a January 29, 2000 sale date.

The sale of the property took place on January 29, 2000. On February 11, 2000, the committee for sale filed a motion for approval of the committee sale, approval of the committee deed, acceptance of the committee report, allowance of fees and expenses, and allowance of the appraiser’s fee. The court, Arena, J., granted the committee’s motion on March 13, 2000. No appeal was taken from the approval of the sale.

Thereafter, the court rendered a supplemental judgment on May 5, 2000, ratifying and confirming the sale, approving the conveyance, and ordering Miaño and Crowley to deliver the property to the purchaser. Notice of the supplemental judgment was issued to all parties of record on May 10, 2000. On May 30, 2000, during the appeal period, Miaño filed a motion to reargue the rendering of the supplemental judgment. At some point prior to June 12, 2000, however, Miaño marked off the motion to reargue. No appeal was taken from the supplemental judgment ratifying the sale.

On July 28, 2000, the court, Schuman, J., signed an order of execution for ejectment, with notice sent to all parties of record on August 3,2000. Miaño and Crowley then appealed from the ejectment order on August 11, 2000. Glenfed, on August 21, 2000, filed a motion to dismiss the appeal, to which Miaño and Crowley now object.

On appeal, Miaño and Crowley claim that an execution of ejectment order should not have issued because a motion to reargue the supplemental judgment ratifying the sale had been filed during the appeal period, and the trial court has yet to act on it. Miaño and Crowley are correct in stating that the timely filing of the motion to reargue tolled the appeal period. See Practice Book § 63-1 (c) (1). They fail to consider, however, that Miano’s marking off of the motion to reargue and then waiting until the execution of ejectment order had issued before filing an appeal resulted in the defendants’ filing of a frivolous appeal, as there is no good faith argument that can be raised on appeal in light of Miano’s marking off the motion to reargue. If we were to determine that a party could properly suspend the time to appeal indefinitely by employing that tactic, we would invite abuse of our appellate rules.

Under the facts of this case, Miaño and Crowley had several opportunities to file an appeal prior to the execution of ejectment order. The first appealable judgment was the judgment of foreclosure by sale. See Hartford National Bank & Trust Co. v. Tucker, 178 Conn. 472, 423 A.2d 141 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1079, 63 L. Ed. 2d 319 (1980); Connecticut National Bank v. Browder, 30 Conn. App. 776, 622 A.2d 588 (1993). In this case, the judgment of foreclosure by sale was rendered by the trial court on April 14, 1998, and rendered again on August 31, 1998, February 1, 1999, June 29, 1999, and November 3, 1999. Neither Miaño nor Crowley timely appealed from the initial entry of judgment or from any of the subsequent judgments that set new sale dates.

The second appealable judgment from which Miaño and Crowley could have appealed was the judgment approving the sale. See Second National Bank of New Haven v. Burtchell, 166 Conn. 388, 349 A.2d 831 (1974); Danbury Savings & Loan Assn., Inc. v. Hovi, 20 Conn. App. 638, 569 A.2d 1143 (1990). The court approved the sale of the property in this case on March 13, 2000. Neither Miaño nor Crowley took an appeal from the approval of the sale.

Another appealable judgment in this case was the supplemental judgment ratifying and confirming the sale. See City National Bank v. Traffic Engineering Associates, Inc., 166 Conn. 195, 348 A.2d 637 (1974); Bryson v. Newtown Real Estate & Development Corp., 153 Conn. 267, 216 A.2d 176 (1965); Gault v. Bacon, 142 Conn. 200, 113 A.2d 145 (1955). On May 5, 2000, the court rendered a supplemental judgment ratifying and confirming the sale, and approving the conveyance of the property. Notice of the supplemental judgment was mailed to the parties of record on May 10, 2000. Instead of taking advantage of this third opportunity to appeal, Miaño, in what appears to us to be a delay tactic, filed a motion to reargue the supplemental judgment ratifying the sale and subsequently marked off the motion.

Miaño and Crowley now appeal from the July 28, 2000 order of execution for ejectment. Through their pattern of delay tactics, Miaño and Crowley were able to postpone the sale of the property, thereby delaying Glenfed’s ability to obtain the judgment that it was awarded. They are now attempting to delay their ejectment by filing this appeal at the eleventh hour.

Because the appellants marked off their motion to reargue and had not reclaimed it as of the time the trial court issued the execution order, we hold that this appeal is frivolous and that there now is no good faith claim that can be raised on appeal. Furthermore, Miaño and Crowley cannot expect this court to allow them to benefit from their pattern of delay tactics. See Wilton v. McGovern, 33 Conn. App. 517, 521, 636 A.2d 870 (dismissing appeal because court could not envision good faith argument that defendants could have made when they failed to timely appeal from foreclosure judgment, but rather filed numerous postjudgment motions and two appeals), cert. denied, 228 Conn. 929, 640 A.2d 116 (1994).

The plaintiffs motion to dismiss the appeal is granted.

In this opinion the other judges concurred.

       Also named as defendants were the state of Connecticut energy conservation loan program, Shawmut Bank Connecticut, N.A., and the Internal Revenue Service. Furthermore, on April 14, 1998, the court granted the motion filed by Middlesex Hospital to be made a party defendant to the foreclosure action. Only Crowley and Miaño have appealed.

       The Bankruptcy Court dismissed Miano’s bankruptcy case with prejudice and ordered that Miaño not file a bankruptcy petition for a one year period following October 15, 1999.

       Handwritten on the motion to reargue, in the court file, is a notation by a court clerk that the motion was “'marked off by attorney Miaño previous to [June 12, 2000].”

       Notice of the order of execution of ejectment was sent to the parties of record on August 3, 2000.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. KEVIN COUGHLIN
    (AC 19522)
    Mihalakos, Pellegrino and Daly, Js.
    Argued September 29
    officially released December 12, 2000

      James J. Ruane, with whom, on the brief, was James O. Ruane, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephen Carney, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Kevin Coughlin, appeals from the judgment of conviction, rendered after a juiy trial, of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d,' operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (l) and operating a motor vehicle while the ratio of alcohol in his blood was ten-hundredths of 1 percent or more of alcohol in violation of General Statutes § 14-227a (a) (2). The defendant claims that the trial court improperly (1) admitted evidence of his blood alcohol content, (2) admitted a laboratory report that contained test results that showed a positive reading for a trace of cocaine in his blood, (3) denied his motion to dismiss counts two and three of the information because they were barred by the statute of limitations, and (4) admitted medical opinion testimony on the issue of intoxication. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 23,1996, a conversion van operated by the defendant crossed the center line on Route 12 near Jewett City and collided with a pickup truck that was traveling in the opposite direction. The driver and sole occupant of the pickup truck, Warren King, was seriously injured in the crash. Two of King’s coworkers, Patrice Bennet and James Bennet, were also traveling along Route 12 directly behind King’s truck. Immediately after the collision, the Bennets came upon the scene and found King’s pickup truck in pieces in the middle of the road with the defendant’s vehicle nearby. Connecticut State Police Trooper David Hayes arrived at the scene shortly thereafter.

Hayes observed the defendant lying on the floor of the van, with his head toward the rear. Hayes further saw a shoe stuck beneath the brake pedal of the van. The defendant had no shoe on his left foot. Hayes broke one of the van’s windows to gain entry and found the defendant breathing, but unresponsive. The defendant was taken by ambulance to William Backus Memorial Hospital, where blood and urine samples were taken. The defendant was diagnosed with a bruise to the left knee and released. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendant first claims that the court improperly admitted evidence of his blood alcohol content (BAC). Specifically, he claims that the collection and analysis of his blood were unreliable and did not comply with General Statutes § 14-227a (l) because the person who collected the blood could not be identified. We disagree.

The following additional facts are relevant to the resolution of this issue. The defendant’s BAC was tested while he was at the hospital. At trial, Joel Milzoff, a toxicologist and manager of the state health department’s toxicology laboratory, testified that on the night of the accident the defendant’s BAC was 0.17 percent and that this level would have been achieved by a person the defendant’s size ingesting about fifteen drinks. Vivian Weinberger, a physician, also testified that the labo-ratoiy tests reflected a BAC level of 0.17 percent. The defendant objected on the grounds that the BAC results lacked an adequate chain of custody. The record does not reflect whether the court ever ruled on that objection.

Section 14-227a (l) requires that blood drawn in cases such as the one before us be “taken by a person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a phlebotomist, a qualified laboratory technician, an emergency medical technician II or a registered nurse . . . .” General Statutes § 14-227a (£). At trial, Weinberger testified that the routine emergency room protocol at the hospital required that a registered nurse draw the defendant's blood after he was admitted to the hospital. Rhonda Quinley, a registered nurse who was on duty in the emergency room on the night that the defendant was brought in, testified that his blood had been drawn by either herself or Barbara Wollen, the other registered nurse on duty that night. We are satisfied that the hospital’s internal policy of having a registered nurse draw blood from patients who are admitted and the fact that the emergency room was staffed with two registered nurses in the early morning hours of December 23,1996, show that the requirements of § 14-227a (7) have been met.

II

The defendant next claims that court improperly admitted a laboratory report that showed a positive reading for a trace of cocaine in his blood. We disagree.

The following additional facts are relevant to the resolution of this issue. When the defendant was admitted to the hospital on December 23,1996, a urine sample was taken. The urine sample was then screened for narcotic substances in accordance with hospital procedures for trauma patients. The laboratory report that contained the results of that screening indicated that there had been a positive screen for cocaine, but that the results could not be considered to be positive for cocaine unless they were confirmed by an alternate method of testing. This laboratory report subsequently became part of the defendant’s permanent hospital record.

On March 25, 1997, the defendant returned to the hospital and insisted on looking at his file. Once given the file, the defendant ripped out the green laboratory report from the file fastener and secreted it in his jacket. The defendant returned the report only after he was confronted by the director of the records department.

At trial, the state sought to enter into evidence the entire hospital file to illustrate that the laboratory report had been ripped from its folder by the defendant and that it therefore was relevant to show his state of mind. The defendant objected, requesting that the reference to cocaine in the laboratory report be redacted. The court allowed the hospital record to be admitted into evidence without redaction. In its final charge, however, the court instructed the jury: “This is a case involving driving while under the influence of intoxicating liquor or driving with a certain blood alcohol content. It does not—this case does not involve drags. The laboratory report that is . . . exhibit N reports the results of the several tests conducted by the hospital on what has been called a standard trauma panel. This is a panel of tests automatically run on accident victims. You should draw no inference adverse to the defendant because tests for illicit drags were included in the panel. . . . There is absolutely no evidence about cocaine in this case. You must totally remove from your minds anything about drags when considering this case.”

The defendant claims to have been prejudiced by the court’s admission of the laboratory report and that the admission of that evidence, therefore, was an abuse of the court’s discretion. “[0]ur review of a trial court’s evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor if its correctness . . . .” (Internal quotation marks omitted.) State v. Correa, 57 Conn. App. 98, 107, 748 A.2d 307, cert. denied, 253 Conn. 908, 753 A.2d 941 (2000).

“Unless there is a clear indication to the contrary, a jury is presumed to follow the court’s instructions. State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). Additionally, when a claimed error does not involve a constitutional issue, the burden is on the defendant to demonstrate that it is more probable than not that improper action of the court affected the result.” State v. Sivri, 46 Conn. App. 578, 583, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997).

We conclude that the court’s limiting instruction to the jury was sufficient to negate any potentially adverse effect of the admission of the unredacted laboratory report. There was no abuse of discretion.

Ill

The defendant next claims that the court improperly denied his motion to dismiss counts two and three of the information because the statute of limitations precluded prosecution of those counts. We disagree.

The following additional facts are relevant to the resolution of this issue. On February 24,1997, an arrest warrant was issued for the defendant charging him with assault in the second degree with a motor vehicle and failure to keep to the right in connection with the motor vehicle accident that occurred on December 23, 1996. The defendant was arrested on April 4, 1997. The state filed a substitute information on December 16, 1998, charging the defendant with (1) assault in the second degree with a motor vehicle, (2) operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a) (1), and (3) a violation of § 14-227a (a) (2). On December 18, 1998, the defendant filed a motion to dismiss counts two and three, claiming that those counts were barred by the statute of limitations. The court denied the defendant’s motion.

When an issue on appeal concerns a question of law, as does the one before us, this court reviews that claim de novo. See State v. Wiggs, 60 Conn. App. 551, 554, 760 A.2d 148 (2000) (review of trial court denial of motion to dismiss).

Pursuant to General Statutes § 54-193 (b), the charged violations of § 14-227a were subject to a one year limitations period because they were not punishable by a term of imprisonment of more than one year.

“The statute of limitations is not a jurisdictional bar to prosecution; it is an affirmative defense, which must be raised and can be waived.” State v. Middlebrook, 51 Conn. App. 711, 713 n.4, 725 A.2d 351, cert. denied, 248 Conn. 910, 731 A.2d 310 (1999). We find no evidence that the defendant raised the statute of limitations as an affirmative defense at trial. We therefore find that the court did not improperly deny the defendant’s motion to dismiss.

IV

The defendant next claims that the court improperly admitted medical opinion testimony. We disagree.

The following additional facts axe necessary to the resolution of this claim. At trial, over defense counsel's objection, Weinberger testified that the defendant’s BAC was at a high level, which, in her medical opinion, meant that the defendant was intoxicated. Weinberger also testified that “intoxicated” meant that the defendant had enough alcohol in his system to impair his mind, thinking, reactions, ability to make decisions and behavior. Weinberger concluded, on the basis of the information in the defendant's medical record, that the defendant was intoxicated on the night of the accident. The defendant claims that because the jury was asked to decide the case on the basis of the legal definition of “intoxication,” Weinberger’s medical opinion testimony on the issue of intoxication was improperly admitted, as it was neither relevant nor probative. We disagree.

We state again that “[o]ur review of a trial court’s evidentiary ruling is limited. Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, [supra, 216 Conn. 306], In considering whether the trial court abused its discretion, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor if its correctness . . . . “ (Internal quotation marks omitted.) State v. Correa, supra, 57 Conn. App. 107.

We find that there was no abuse of discretion, and that the defendant failed to show substantial prejudice and injustice on the part of the trial corut.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60d (a) provides in relevant part: “A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor . . . he causes serious physical injury to another person as a consequence of the effect of such liquor . . .

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor .... A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor . . . if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor ... or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       See footnote 2.

       Count two alleged that the defendant operated a motor vehicle while under the influence of liquor in violation of § 14-227a (a) (1).

       Count three alleged that the defendant operating a motor vehicle while the ratio ofalcoholtobloodwasO.lOpercentinviolationof § 14-227a(a) (2).

       General Statutes § 14-227a(T) provides in relevant part: “Notwithstanding the provisions of subsection (c) or this section, evidence respecting the amount of alcohol ... in the blood of an operator of a motor vehicle involved in an accident who has suffered or allegedly suffered physical injury in such accident, which evidence is derived from a chemical analysis of a blood sample taken from such person after such accident at ... a hospital, shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if . . . (2) the blood sample was taken by a person licensed to practice medicine in this state, a resident physician or intern in any hospital in this state, a phlebotomist, a qualified laboratory technician, an emergency medical technician II or a registered nurse . . . .”

       General Statutes § 54-193 (b) provides: “No person may be prosecuted for any offense, except a capital felony, a class A felony or a violation of section 53a-54d, for which the punishment is or may be imprisonment in excess of one year, except within five years next after the offense has been committed. No person may be prosecuted for any other offense, except a capital felony, a class A felony or a violation of section 53a-54d, except within one year next after the offense has been committed.”


text:
    STATE OF CONNECTICUT v. GARY CAMPBELL
    (AC 19856)
    Foti, Zarella and O’Connell, Js.
    Argued October 25
    officially released December 12, 2000

      Matthew T. Gilbride, with whom, on the brief, was Raymond J. Rigat, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Gary Campbell, appeals from the judgment of the trial court revoking his probation pursuant to General Statutes § 53a-32 and committing him to the custody of the commissioner of correction for a term of four years. On appeal, the defendant claims that the court improperly (1) revoked his probation in the absence of rehable and probative evidence, (2) denied his request for a continuance and (3) violated his due process rights under the constitution of Connecticut by employing a fair preponderance of the evidence standard of proof. We affirm the judgment of the trial court.

The following facts adduced at the probation revocation hearing are relevant to this appeal. On March 5, 1996, the defendant was convicted of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The court sentenced the defendant to a term of incarceration of seven years suspended with three years of probation. One of the general conditions of this probation prohibited the defendant from violating any criminal law of this state. On November 11, 1998, police arrested the defendant in connection with an incident at the home of a neighbor. That incident led to the violation of probation proceeding at issue in this appeal.

On November 10,1998, the victim, Christina Johnson, was in her apartment in Bridgeport when the defendant rang her front doorbell. Johnson permitted the defendant to enter her apartment because he lived in the same building and she knew him. The defendant handcuffed Johnson’s hands behind her back, used duct tape to bind her mouth and feet, and tied her hands to her feet. Previously, Johnson had told the defendant that she was going to receive money as a settlement of a lawsuit in which she was involved. The defendant demanded to know where her money was, choked her until she lost consciousness and stole $8000 in cash from her apartment. After the defendant departed, Johnson managed to crawl to her sleeping daughter, wake her and summon assistance. Police freed her, and members of the fire department cut the handcuffs that bound her hands.

The court found that the defendant understood the terms of his probation. The court found Johnson’s testimony “to be credible in all significant aspects, and since that testimony constitutes direct evidence of the conduct of the defendant, it’s therefore reliable and probative evidence, and permits the court to find by a preponderance of the evidence that the defendant was in fact the perpetrator . . . [who] did physically assault [the victim] for the purpose of stealing money from [her] apartment.” The court found the defendant’s conduct violative of the criminal laws of this state and therefore violative of the terms of his probation.

I

The defendant first claims that the court “abused its discretion by giving credibility to the alleged victim’s version of events.” We disagree.

As a reviewing court, we may not retry the case or pass on the credibility of witnesses. State v. Branham, 56 Conn. App. 395, 398, 743 A.2d 635, cert. denied, 252 Conn. 937, 747 A.2d 3 (2000). Our review of factual determinations is limited to whether those findings are clearly erroneous. Practice Book § 60-5; State v. Alterisi, 47 Conn. App. 199, 204, 702 A.2d 651 (1997). We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude. State v. McClam, 44 Conn. App. 198, 208, 689 A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

The court, as the finder of fact, found that Johnson’s testimony was credible. The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact. State v. Scott, 31 Conn. App. 660, 664, 626 A.2d 817 (1993). The court performed its duty, and we will not usurp its function.

II

The defendant next claims that the court improperly denied his request for a continuance of the violation of probation hearing until thirty days after his trial concerning the underlying criminal charges. He claims that the denial “rose to a level of constitutional proportion in this case because it denied the defendant his state constitutional right to present his side of the story by testifying free from the fear that his testimony would expose him to an additional criminal conviction.” We disagree.

Our review of the record reveals, and the defendant conceded at oral argument, that the defendant indicated to the trial court only that he was innocent of the criminal charges against him arising from the November 10, 1998 incident. His claims of innocence were borne out through his pleas of not guilty to the underlying charges. In his request for a continuance, it was the defendant’s burden to provide the court with the substance of any specific testimony he desired to give in the probation violation proceeding. See State v. Hoffler, 55 Conn. App. 210, 214, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999). Given the sparse record before us, we, as a reviewing court, cannot assume that the trial court’s denial of the request for a continuance in any way affected the defendant’s decision not to testily in the probation violation proceeding. See id. We must conclude, therefore, that the defendant has not, under the circumstances of this case, demonstrated a violation of his due process rights under our state constitution. The defendant does not claim, nor does the record show, that the court abused its discretion in denying the defendant’s motion. In any event, the defendant’s sole claim in this appeal is that the court’s action violated his state constitutional rights to due process.

Ill

The defendant finally claims that due process under the state constitution required the state to establish a violation of probation by proof beyond a reasonable doubt or, in the alternative, proof by clear and convincing evidence. We disagree.

The defendant makes this argument under article first, §§ 8, 9 and 10 of the constitution of Connecticut. The defendant argues that although he failed to present this claim to the trial court, we nevertheless should review it because it implicates a fundamental due process right and the record is adequate to facilitate review. He further claims that review of unpreserved constitutional claims is available in civil cases under certain circumstances, and that a probation revocation proceeding is a “quasi-civil proceeding.”

Our Supreme Court has determined that a revocation of probation hearing is less formal than a criminal trial and requires only that the state prove its case by a preponderance of the evidence. State v. McDowell, 242 Conn. 648, 653, 699 A.2d 987 (1997); State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). In Davis, which determined the standard of proof required to establish a violation of probation, our Supreme Court noted that the defendant, in addition to presenting a statutory interpretation claim, alleged a violation of his due process rights under our state constitution. The court noted that “[b]ecause we determine, as a matter of statutory interpretation, that the trial court is required to utilize the fair preponderance standard, we need not decide the standard mandated by . . . article first, § 8, of the state constitution.” State v. Davis, supra, 291 n.6.

The defendant has failed to furnish an adequate analysis of this claim under our state constitution. The defendant’s analysis under article first, §§ 9 and 10, is clearly inapplicable to his due process claim, as the hearing clearly complied with those provisions. The defendant fails to offer a separate analysis of his due process claim under article first, § 8, other than to provide us with a vague historical approach to resolving this issue. Adequate analysis requires more than abstract assertions. State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Further, this court does not reevaluate Supreme Court decisions; we are bound by those decisions. State v. Goodman, 35 Conn. App. 438, 442, 646 A.2d 879, cert. denied, 231 Conn. 940, 653 A.2d 824 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may: (1) Continue the sentence of probation or conditional discharge; (2) modify or enlarge the conditions of probation or conditional discharge; (3) extend the period of probation or conditional discharge, provided the original period with any extensions shall not exceed the periods authorized by section 53a-29; or (4) revoke the sentence of probation or conditional discharge. If such sentence is revoked, the court shall require the defendant to serve the sentence imposed or impose any lesser sentence. Any such lesser sentence may include a term of imprisonment, all or a portion of which may be suspended entirely or after a period set by the court, followed by a period of probation with such conditions as the court may establish. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       That condition also included a prohibition against the violation of any law of the United States or any other state or territory.

       “A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation . . . rather than whether the defendant had, beyond a reasonable doubt, violated a criminal law. The proof of the conduct at the hearing need not be sufficient to sustain a violation of a criminal law. ... In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Citations omitted; internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 484, 723 A.2d 817 (1999).

       The defendant claims that the court violated his due process rights as guaranteed by article first, §§ 8,9 and 10 of the constitution of Connecticut

       The constitution of Connecticut, article first, § 8, provides in relevant part: “No person shall be . . . deprived of life, liberty or property without due process of law . . . ."
      The constitution of Connecticut, article first, § 9, provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
      The constitution of Connecticut, article first, § 10, provides: “All courts shall be open, and every person, for an ir\jury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       Although the issue was before it, the Supreme Court in Davis found it unnecessary and chose not to address the issue of whether article first, § 8, of the constitution of Connecticut required a standard other than the fair preponderance standard. State v. Davis, supra, 229 Conn. 291 n.6.


text:
    SHERRY RUSSELL v. KENNETH M. RUSSELL
    (AC 20631)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15
    officially released December 12, 2000

      Kenneth M. Russell, pro se, the appellant (defendant), filed a brief.

      Richard Blumenthal, attorney general, and Lucia Szarzanowicz Ziobro and Donald M. Longley, assistant attorneys general, filed a brief for the appellee (state).

      Rhonda M. Morra filed a brief for the minor children.
   Opinion

PER CURIAM.

The pro se defendant, Kenneth M. Russell, appeals from the judgment of the trial court affirming the decision of a family support magistrate to deny his motion for modification of a child support order. The sole issue on appeal is whether the court improperly determined that the defendant failed to demonstrate a change in circumstances that would justify modification.

The following facts are relevant to our resolution of this appeal. The court dissolved the marriage of the parties and entered a support order for the dependent children on November 9, 1990. On June 18, 1999, the plaintiff sought, and was granted, an increase in the defendant’s child support payments. The defendant later filed a motion to reduce child support payments. On October 29, 1999, the motion was argued before a magistrate, who denied the motion, finding no change in circumstances to support a modification of the order. On November 8, 1999, the defendant appealed from the denial of the motion, pursuant to General Statutes § 46b-231 (n), and the court, Caruso, J., in a memorandum of decision filed March 6, 2000, affirmed the order of the magistrate. The defendant now appeals.

The defendant’s entire ar gument supporting his claim is as follows: “Clearly, the loss of virtually all of the defendant’s income upon expiration of his unemployment compensation was a substantial change of circumstances which should have been considered by the magistrate.” The defendant provides no citation to authority or legal analysis to support that conclusion. “Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural . . . law.” (Internal quotation marks omitted.) Zanoni v. Hudon, 42 Conn. App. 70, 77, 678 A.2d 12 (1996); see also Jacobs v. Fazzano, 59 Conn. App. 716, 726, 757 A.2d 1215 (2000). “[NJothing more than [a] bare statement, without citation to legal authority, appears in his brief. Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.” (Internal quotation marks omitted.) Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).

The judgment is affirmed.

       The following issues raised on appeal by the defendant are improper attempts to reach the merits of a June 18, 1999 order by a family support magistrate that increased the defendant’s support obligation. The defendant’s subsequent motion to reduce the payments was denied by a second magistrate, whose order thereafter was affirmed by the court, Caruso, J. The issues the defendant now improperly raises to attack the June 18, 1999 order are (1) whether the magistrate improperly modified the original support order on June 18, 1999, and (2) whether the magistrate improperly refused the defendant an opportunity to rebut statements of annual income in arriving at the June 18, 1999 support order. Those issues are not properly before this court because the defendant did not appeal from the June 18, 1999 order. See Practice Book § 63-1 (a).

       General Statutes § 46b-231 (n) provides: “A person who is aggrieved by a final decision of a family support magistrate is entitled to judicial review by way of appeal under this section.”

       In any event, on the basis of the facts in the record, we would be disinclined to reverse the trial court’s judgment affirming the magistrate’s October 29, 1999 ruling. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).” (Internal quotation marks omitted.) Stewart v. Stewart, 57 Conn. App. 335, 336, 748 A.2d 376, cert. denied, 253 Conn. 918, 755 A.2d 216 (2000). The record before us does not reveal an abuse of discretion by the court in affirming the magistrate’s October 29, 1999 ruling.


text:
    MELINDA BARBER v. MICHAEL MULROONEY
    (AC 20263)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 18
    officially released December 12, 2000

      Peter Harvey filed a brief for the appellant (plaintiff).

      Michael Mulrooney, pro se, the appellee (defendant), filed a brief.
   Opinion

PER CURIAM.

The plaintiff, Melinda Barber, appeals from the judgment awarding her damages from the defendant, Michael Mulrooney, after a trial to the court in this sexual harassment action. The sole issue on appeal is whether the court abused its discretion in refusing to award punitive damages for intentional infliction of emotional distress after finding a pattern of sexual harassment by the defendant.

The following facts are relevant to our resolution of this appeal. The defendant employed the plaintiff and at one time had a sexual relationship with her. Although the plaintiff ended the relationship, the defendant continued to approach her with sexual overtures and unsolicited contact. That behavior eventually caused the plaintiff to leave her employment without having secured other employment. The plaintiff filed a complaint against the defendant, alleging violations of General Statutes § 46a-60 and intentional infliction of emotional distress. The court rendered judgment for the plaintiff and awarded compensatory damages for the time during which she was unemployed. The court did not provide any award for emotional distress.

At the outset, we note that the court rendered its decision orally and that there is neither a written memorandum of decision nor a signed transcript of that decision. Although the court’s actions in this regard fail to comply fully with Practice Book § 64-1, the court issued a detailed statement of its findings and conclusions in connection with its decision. Because the unsigned transcript sufficiently states the court’s decision, we review the plaintiffs claims. See State v. Lavigne, 57 Conn. App. 463, 468 n.4, 749 A.2d 83 (2000); see also Bank of America, FSB v. Franco, 57 Conn. App. 688, 691 n.l, 751 A.2d 394 (2000).

“[T]he trial court has broad discretion in determining whether damages are appropriate. ... Its decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Elm City Cheese Co. v. Federico, 251 Conn. 59, 90, 752 A.2d 1037 (1999). The plaintiff provides no authority or per se rule that equates a violation of § 46a-60 with intentional infliction of emotional distress. We are not inclined to create such a rule. It is evident that the court weighed the facts of the employment and personal relationship in arriving at its conclusions of law and its award of damages. We conclude that there was no clear abuse of discretion in refusing to award damages with regard to the plaintiff’s claim of intentional infliction of emotional distress.

The judgment is affirmed.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s . . . sex . . .
      “(8) For an employer, by himself or his agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. . . .”

       The court recited its decision as follows:
      “The Court: In the complaint, you asked for compensatory damages— there’s no punitive damages in this case—and I will not allow attorney’s fees in this case. . . . As far as the sexual relations—she knew she was engaging in that activity—and that certainly couldn’t be considered harassment when you say, ‘I’m having sex with someone of my own volition.’ But the other actions would constitute sexual harassment .... I’m finding it for $2118.52—for the plaintiff. There are no attorney’s fees, no punitive damages and there are no costs involved.
      “[Plaintiffs Counsel]: Your Honor, you’re making no finding for the emotional distress she suffered?
      “The Court: Pardon?
      “[Plaintiffs Counsel]: You’re making no finding of any monetary amount for the emotional distress she suffered?
      “The Court: No. The conduct she engaged in was much more strenuous and much more strenuous, mentally, in trauma, than she could have conducted . . . .”

       Practice Book § 64-1 (a) provides in relevant part: “The court shall state its decision either orally or in writing, in all of the following: (1) in rendering judgments in trials to the court in civil and criminal matters .... The court’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office . . . .”

       We note the distinction between the elements of the two claims in arriving at this conclusion. “ [A]n employer will be held liable for harassment perpetrated by its employees if the employer provided no reasonable avenue for complaint,, or . . . the employer knew (or should have known) of the harassment but unreasonably failed to stop it.” (Internal quotation marks omitted.) Brittell v. Dept. of Correction, 247 Conn. 148, 167, 717 A.2d 1254 (1998). “For the plaintiff to prevail on a claim of intentional infliction of emotional distress, four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known 1hat emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. ... All four elements must be established to prevail on a claim for intentional infliction of emotional distress.” (Citations omitted; internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 708-709, 757 A.2d 1207 (2000).


author: PETERS, J.

text:
    JOSEPH ROSENFIELD v. LEANA ROSENFIELD
    (AC 20229)
    Mihalakos, Pellegrino and Peters, Js.
    Argued October 24
    officially released December 12, 2000

      Glenn A. Canner, with whom was Anthony A. Piazza, for the appellant (plaintiff).

      Robert M. Wechsler, for the appellee (defendant).
   Opinion

PETERS, J.

The dispositive issue in this appeal is whether the denial of a motion to dismiss is immediately appealable if the movant argues that the trial court lacked subject matter jurisdiction because of alleged statutory constraints on that court’s decision-making authority. The movant does not dispute the general rule that, because such a denial does not preclude further proceedings at trial, the denial of a motion to dismiss ordinarily is not a final judgment and, therefore, not immediately appealable. See, e.g., Sasso v. Aleshin, 197 Conn. 87, 90, 495 A.2d 1066 (1985). The movant claims that his appeal is different because, by challenging the trial court’s statutory jurisdiction, he has presented at least a colorable jurisdictional claim concerning the court’s subject matter jurisdiction to proceed any further. We disagree. Accordingly, we dismiss the movant’s appeal for lack of a final judgment.

The relevant underlying facts are undisputed. In 1989, the plaintiff, Joseph Rosenfield, and the defendant, Leana Rosenfield, entered into a separation agreement as part of the dissolution of their marriage. Article III, § 3.1, of that agreement required the plaintiff to pay alimony to the defendant on the first day of each calendar month. Article III, § 3.2, permitted the defendant, after ten years, to petition the court to determine, de novo, the appropriate amount of alimony that would thereafter be owed by the plaintiff to the defendant.

Pursuant to the separation agreement, on July 26, 1999, the defendant filed a motion asking the court to “Establish and Fix Alimony, Post Judgment.” The plaintiff then filed the motion to dismiss that led to the appeal before us. The plaintiffs motion alleged that, in view of General Statutes § 46b-82, the court lacked subject matter jurisdiction to award any postjudgment alimony de novo to the defendant. At oral argument at trial, the plaintiff elaborated that his claim of lack of subject matter jurisdiction was premised on his allegation that the court did not have statutory jurisdiction to entertain the defendant’s motion. The court denied the plaintiffs motion to dismiss. Although it acknowledged the plaintiffs statutory argument, it concluded that it had subject matter jurisdiction to consider the merits of the plaintiffs statutory claim. The plaintiff has appealed.

The gravamen of the plaintiffs argument for immediate appealability of the denial of his motion to dismiss is that, having described his claim in statutory jurisdictional terms, he has raised at least a colorable claim of lack of subject matter jurisdiction. For two reasons, we disagree. First, labels aside, we conclude that the plaintiff has not raised a viable claim of lack of subject matter jurisdiction. Second, even if the plaintiff could be said to have raised a colorable claim of lack of subject matter jurisdiction, he would not be entitled to relief under that doctrine in light of the circumstances of this case.

I

The plaintiff primarily premises his claimed right to appeal immediately from the denial of his motion to dismiss on the proposition that § 46b-82 deprives any trial court of subject matter jurisdiction over a request for postjudgment alimony absent a finding of a substantial change in circumstances. To date, the court in the present case has not addressed the merits of this statutory claim.

The plaintiffs right to appeal depends, therefore, on whether an unresolved claim of lack of statutory jurisdiction is a sufficient basis for an immediate claim of lack of subject matter jurisdiction. Our Supreme Court repeatedly and unconditionally has rejected any equivalence between those claims. Recently, in Amodio v. Amodio, 247 Conn. 724, 724 A.2d 1084 (1999), that court reiterated the distinction between subject matter jurisdiction and statutory jurisdiction. “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action.” (Citation omitted; internal quotation marks omitted.) Amodio v. Amodio, supra, 727-28; see also Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987); Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Artman v. Artman, 111 Conn. 124, 129-30, 149 A. 246 (1930).

In Amodio, the court further explained that, “[although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute. ” (Internal quotation marks omitted.) Amodio v. Amodio, supra, 247 Conn. 728. That court noted that this distinction has been recognized and applied in Connecticut from the time of Terry’s Appeal from Probate, 67 Conn. 181, 185, 34 A. 1032 (1896). Amodio v. Amodio, supra, 728-29.

On its face, Amodio requires us to dismiss the plaintiffs appeal because the plaintiff has alleged only a lack of statutory jurisdiction. The plaintiff argues, however, that Amodio was modified by our Supreme Court’s subsequent decision in Smith v. Smith, 249 Conn. 265, 752 A.2d 1023 (1999), which, like the present case, involved construction of § 46b-82.

The plaintiff misreads Smith. True, the court in Smith repeatedly described the issues before it in terms of claims relating to statutory jurisdiction. The court took pains, however, expressly to distinguish those statutory issues from issues relating to subject matter jurisdiction. In footnote 4 of that decision, the court cited Amodio for the proposition that a “trial court has general subject matter jurisdiction over alimony appurtenant to family relations actions . . . .’’Id., 267 n.4. In the same footnote, the Smith court further noted that it would treat the matter before it “as if the defendant had labeled the issue as one of statutory authority and not subject matter jurisdiction.” Id., 267-68 n.4.

In light of Amodio and Smith, the plaintiff cannot succeed in his claim that he is entitled to immediate appellate review of the denial of his motion to dismiss. The plaintiffs argument of lack of statutory jurisdiction does not support his claim of lack of subject matter jurisdiction.

II

Secondarily, the plaintiff relies on Connecticut case law holding that, in some circumstances, a colorable claim of lack of subject matter jurisdiction may provide access to immediate appellate review. Even if we were persuaded that the plaintiffs claim properly could be characterized as raising a colorable claim of lack of subject matter jurisdiction, the cases that he has cited do not support his argument here.

The common feature in the cited cases is that they raise appellate issues about trial court actions that, if improper and uncorrected, arguably could cause the appellant immediate and irreparable harm. In Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418-20, 426 A.2d 1324 (1980), the trial court had set aside a judgment on the ground that it had not been rendered within the time limits established by General Statutes § 51-29, now § 51-183b. In Solomon v. Keiser, 212 Conn. 741, 744-45, 562 A.2d 524 (1989), the trial court had opened and set aside a stipulated judgment, and authorized the release of a previously ordered escrow fund. In Cardona v. Negron, 53 Conn. App. 152, 154, 728 A.2d 1150 (1999), the family support magistrate, subsequent to a final adjudication of paternity, had ordered the parties to undergo genetic testing. In the most recent cited case, Cantoni v. Xerox Corp., 251 Conn. 153, 157, 740 A.2d 796 (1999), the workers’ compensation review board had ordered a remand to a commissioner other than the one who originally had heard the case. In those cases, the trier of fact had not only rendered a decision on the merits, but also had issued an order that, if carried out, might have been harmful and irreversible to the appellant. Each of them arguably falls, therefore, within the second part of the test established in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), which permits an immediate appeal “where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Unlike the cases cited above, the plaintiffs appeal does not pass the Curdo test.

The appeal is dismissed.

In this opinion the other judges concurred.

       The separation agreement provided in relevant part: “3.1. The Husband shall, commencing on August 1, 1989, pay to the Wife during his lifetime, until her death, remarriage, cohabitation as defined in Connecticut General Statutes Section 46b-86, as alimony and separate maintenance payments, the sum of Ten Thousand ($10,000.00) Dollars per month, on the first day of each calendar month, in advance. All of said payments shall be made in cash and shall in any and all events terminate, except with respect to existing arrearages, upon the death of the Wife.
      “3.2. Should any of those contingencies set forth in Article 3.1. not occur on or prior to the payment made by Husband on July 1, 1999, the Wife shall, thereafter, be entitled to petition the court entering the judgment of dissolution of the marriage of the parties and said court, upon such petition, shall make a determination as to whether the Husband shall have a responsibility to continue making payments) of alimony to the Wife based on the respective financial circumstances of the parties as they exist at said time. The petition of the Wile shall not be by way of a Motion to Modify but shall be a de novo review at the time. The new court order shall constitute the rights and responsibilities of the parties and, in the event of a new court order, Article 3.1. hereof shall be modified accordingly. After the payment made on July 1, 1999 and until said determination, the payments herein provided for shall cease, but such cessation of payments shall not be deemed to terminate Husband’s obligations to pay alimony to the Wife, which, after July 1, 1999, shall be governed by this Article 3.2. The parties specifically acknowledge and agree that the court shall have continuing jurisdiction after July 1, 1999, to make such orders, which orders shall be retroactive to July 1, 1999.”

       General Statutes § 46b-82 provides in relevant part: “At the time of entering the decree, the Superior Court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. ... In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”


author: CALLAHAN, J.

text:
    STATE OF CONNECTICUT v. GARY MARTINO
    (AC 19176)
    Landau, Pellegrino and Callahan, Js.

      Argued September 18
    officially released December 12, 2000

      Norman A. Pattis, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Michael Dear-ington, state’s attorney, and James R. Turco tte, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

CALLAHAN, J.

The defendant, Gary Martino, appeals from the judgments of conviction, rendered after a jury trial, of multiple counts of failure to appear in the second degree in violation of General Statutes § 53a-173, criminal violation of a protective order in violation of General Statutes § 53a-110b, harassment in the second degree in violation of General Statutes § 53a-183 (a) (3), disorderly conduct in violation of General Statutes § 53a-182 (a) (1), tampering with a witness in violation of General Statutes § 53a-151 and stalking in the first degree in violation of General Statutes § 53a-181c (c) (2).

On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction on the failure to appear charges, and (2) he was subjected to double jeopardy in violation of the fifth amendment to the United States constitution by being charged with and convicted of both criminal violation of a protective order and harassment in the second degree. We affirm the judgments of the trial court.

The following facts are relevant to this appeal. On March 5, 1996, the defendant and the victim, who were cohabiting, had an argument. The altercation continued throughout the night of March 5, 1996, and into the morning of March 6, 1996, at which time the defendant physically and verbally abused the victim by slapping her, throwing furniture and calling her disparaging names. In response, the victim called the police. Although the victim feared the defendant and did not want to press charges, the police arrested the defendant pursuant to the state’s family violence law, General Statutes § 46b-38b. He was charged with disorderly conduct and interfering with a police officer, and was released on bail. Later that same day, the Superior Court issued a family violence protective order that prohibited the defendant from contacting the victim in any manner. The defendant received a copy of the protective order, and a police officer reviewed the terms of the order with him.

Almost immediately, however, the defendant began calling the victim at work and leaving malicious messages with her coworkers. On April 8, 1996, the defendant appeared at the victim’s place of employment and demanded to speak with her. After the victim refused, the defendant eventually left, only to call the victim at home and leave belligerent messages on her telephone answering machine.

Over the next few days, the defendant left numerous hostile messages for the victim, calling her degrading names and indicating that he was following her. The victim complained and gave her answering machine tapes to the police. On April 11, 1996, the defendant went to the victim’s home and demanded to speak with her. When the victim refused to allow the defendant to enter her home, he left and proceeded to call the victim constantly on the telephone throughout the day.

From March, 1996, to June, 1996, the defendant continued to leave messages on the victim’s home answering machine, stating that he knew what she was doing and with whom she was going out. In May, 1996, the defendant again began to call and leave messages for the victim while she was at work. On May 9, 1996, the victim again contacted the police to report the defendant’s harassing telephone calls.

On several occasions, the victim noticed that the defendant was following her. The defendant also left notes for the victim on the doorstep of her home and made threatening telephone calls to her family. While the victim was at work on June 13, 1996, the defendant entered her place of employment and, in front of customers and coworkers, verbally abused her. The defendant refused to leave and insulted the victim’s supervisor after the supervisor demanded that the defendant exit the building. The victim reported that incident to the police.

The defendant was arrested on April 24, 1996, and charged with stalking in the third degree, harassment in the second degree and several violations of the protective order. On May 9, 1996, the defendant was arrested and charged with harassment and criminal violation of the protective order. After each arrest, the defendant was released on bail or on a promise to appear in court.

A hearing regarding the defendant’s arrests for the various counts of disorderly conduct, harassment and violations of the protective order was scheduled for June 26, 1996, but the hearing on the numerous files was continued until the next day, June 27, 1996. The defendant’s attorney was in court on June 26, 1996. That day, the defendant continuously telephoned the victim at work and at home, calling her at work between thirty and forty times. The defendant went to the victim’s workplace, told one of her coworkers that he would not spend one minute in jail and threatened that the victim would “not get away with this.” The defendant also closed his savings account on June 26, 1996.

In his numerous messages on the victim’s home telephone answering machine on June 26, 1996, the defendant was verbally abusive to her and stated, “You think I’m going to show up in court?” and, “You think I’m going to go to jail for you?” and, “This state will never see me again.” The defendant also pleaded for the victim to cease involving the police in their personal affairs. The victim reported all of the defendant’s telephone calls to the police and again gave them the recorded messages. The telephone calls to the victim’s home continued until the morning of June 27, 1996.

On June 27, 1996, the defendant failed to appear at the scheduled hearing on his numerous charges, and the court ordered his rearrest. The defendant was arrested on June 28, 1996, on a charge of failure to appear and was rearrested on July 1, 1996, on charges of tampering with a witness, harassment in the second degree and violation of a protective order.

I

The defendant first contends that the evidence the state presented was insufficient to support his conviction on the failure to appear charges because the state failed to demonstrate that he had notice of the court date of June 27, 1996. We disagree.

“When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. . . . We then determine whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 331, 662 A.2d 1199 (1995). In the present case, we affirm the judgments of conviction because the jury reasonably could have concluded beyond a reasonable doubt that the defendant had notice of the June 27, 1996 hearing and wilfully failed to appear.

Pursuant to § 53a-173, to support a conviction for failure to appear, “the state must prove beyond a reasonable doubt either that the defendant received and deliberately ignored a notice to appear or that he intentionally embarked on a course of conduct designed to prevent him from receiving such notice.” (Internal quotation marks omitted.) State v. Laws, 39 Conn. App. 816, 819, 668 A.2d 392 (1995), cert. denied, 236 Conn. 914, 673 A.2d 1143 (1996), citing State v. Candito, 4 Conn. App. 154, 157, 493 A.2d 250 (1985). Here, the jury reasonably could have found proof of the notice to the defendant of the rescheduled hearing date and his wilful failure to appear from evidence of his actions, his increased reprehensible behavior toward the victim and statements he made between June 25, 1996, and June 27, 1996.

In the two days before the hearing and on the date of the hearing, namely, from June 25 through June 27, 1996, the defendant’s harassment escalated, and he engaged in more offensive and persistent conduct than he had previously. From June 25 until June 27, 1996, the defendant constantly called the victim at home and at work, followed her and appeared at her workplace. On June 26, 1996, the original date of the hearing, the defendant stated to one of the victim’s coworkers that he would not spend one minute in jail and that the victim “would not get away with this.” The defendant also left numerous messages on the victim’s telephone answering machine throughout the day and night of June 26,1996, exclaiming, “You think I’m going to show up in court?” and, “You think I’m going to go to jail for you?” and, “This state will never see me again.” Further, the defendant left messages on the victim’s telephone answering machine urging her not to “crucify” him and not to involve the police. Additionally, the defendant closed his savings account on June 26, 1996.

On the basis of the totality of the evidence presented, the jury reasonably could have concluded beyond a reasonable doubt that the defendant received notice that the hearing was scheduled for June 27, 1996, and that rather than face the barrage of charges against him, he intentionally failed to appear at the hearing. See State v. Candito, supra, 4 Conn. App. 157-58. Viewed in the light most favorable to sustaining the verdict, the defendant’s statements, combined with the sudden increase in the severity of his harassment and the closing of his savings account, demonstrate that he knew of the impending hearing date and deliberately failed to appear as required. See State v. Jones, 37 Conn. App. 437, 450, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995). The defendant therefore cannot prevail on his first claim.

II

The defendant next contends that he was improperly subjected to double jeopardy in violation of the fifth amendment to the United States constitution as a result of being charged with and convicted of both criminal violation of a protective order pursuant to § 53a-110b and harassment in the second degree in violation of § 53a-183 (a) (3). We disagree.

Because the defendant neglected to raise this issue before the trial court, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the issue raised implicates a fundamental right, we will review the defendant’s claim. Our review, however, reveals that the defendant cannot establish that a constitutional violation clearly exists and clearly deprived him of a fair trial. We conclude, therefore, that the defendant cannot satisfy all of Golding’s requirements and therefore cannot prevail on his double jeopardy claim.

The double jeopardy clause of the fifth amendment prohibits “not only multiple trials, but also multiple punishments for the same offense in a single trial.” State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985). “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988). We find that the defendant was not subjected to double jeopardy because the charges of which he was convicted arose out of separate transactions and, therefore, he was not convicted of the same offense.

The defendant has failed to establish that the charges of criminal violation of a protective order and harassment in the second degree arose out of the same transaction. The defendant’s arrest and conviction for criminal violation of a protective order resulted not only from his telephone harassment of the victim, but also from the numerous and separate incidents in which he physically accosted her at her home and workplace. Conversely, the defendant was convicted of harassment in the second degree solely on the basis of his telephone calls to the victim. The defendant, therefore, has failed to demonstrate that his conviction of those charges arose out of the same transaction. See State v. Snook, 210 Conn. 244, 265, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). Even if we assume that his conviction of those charges arose from the same transaction, the charge of criminal violation of a protective order is independent of and wholly distinct from the crime of harassment in the second degree.

The United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), established the criteria for determining whether multiple charges constitute the same offense for double jeopardy purposes. State v. Woodson, 227 Conn. 1, 8, 629 A.2d 386 (1993). “ ‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ ” State v. Snook, supra, 210 Conn. 264, quoting Blockburger v. United States, supra, 304. In determining whether the two offenses constitute one offense, we look only to the applicable statutes, the information and the bill of particulars. State v. Peters, 40 Conn. App. 805, 828, 673 A.2d 1158, cert. denied, 237 Conn. 925, 677 A.2d 949 (1996). Resolution of this issue, though essentially constitutional, predominantly is one of statutory construction. Id., citing State v. Woodson, supra, 8-9.

Analyzing the two charged offenses in the present situation under the Blockburger test, we conclude that criminal violation of a protective order and harassment in the second degree constitute separate offenses. The proof necessary to support a conviction for criminal violation of a protective order differs completely from that required for a conviction of harassment in the second degree. To prove a charge of criminal violation of a protective order, the state must demonstrate that a protective order was issued against the defendant in accordance with General Statutes §§ 46b-38c (e) or 54-lk, and it must demonstrate the terms of the order and the manner in which it was violated by the defendant. To prove the crime of harassment in the second degree, as alleged in the informations filed against the defendant, the state must show that the defendant, with the intent to harass, annoy or alarm another person, made a telephone call in a manner likely to cause annoyance or alarm.

The elements of those two crimes lack commonality or overlap. Moreover, it is clear from the plain language of the relevant statutes that the legislature intended them to address two completely different concerns. The state could have proven all of the elements of criminal violation of a protective order, yet still have been unable to convict the defendant of harassment in the second degree. Conversely, the state could have proven all of the elements of harassment in the second degree and still have been unable to convict the defendant of criminal violation of a protective order.

When the elements of multiple charges “are distinct and dissimilar”; State v. Peters, supra 40 Conn. App. 828; they simply are not the same offense for double jeopardy purposes. Consequently, the defendant’s conviction of both criminal violation of a protective order and harassment in the second degree do not violate the prohibition against double jeopardy. See State v. Snook, supra, 210 Conn. 266. The defendant’s double jeopardy claim is without merit.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 46b-38b (a) provides in relevant part: “Whenever a peace officer determines upon speedy information that a family violence crime, as defined in subdivision (3) of section 46b-38a, has been committed within his jurisdiction, he shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime. . .

       General Statutes § 53a-173 (a) provides: “A person is guilty of failure to appear in the second degree when (1) while charged with the commission of a misdemeanor or a motor vehicle violation for which a sentence to a term of imprisonment may be imposed and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear, or (2) while on probation for conviction of a misdemeanor or motor vehicle violation, he wilfully fails to appear when legally called for a violation of probation hearing.”

       General Statutes § 53a-110b (a) provides: “A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c or section 54-lk has been issued against such person, and such person violates such order.”

       General Statutes § 53a-183 (a) provides in relevant pari,: “A person is guilty of harassment in the second degree when: (1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile . . . or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       Under Golding, a defendant can prevail on an unpreserved constitutional claim “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.” State v. Golding, supra, 213 Conn. 239-40.