text:
    IN RE TREVON G. ET AL.

    (AC 29061)
    McLachlan, Lavine and McDonald, Js.
    Argued May 29
    officially released August 19, 2008

      Trudy Condio, for the appellant (respondent mother).

      Colleen Broderick, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVINE, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her minor children, Trevon, R and D. On appeal, the respondent claims that the trial court improperly concluded (1) that she had failed to achieve a sufficient degree of personal rehabilitation, (2) that the department of children and families (department) utilized reasonable efforts to reunify her with her children and (3) that the termination of her parental rights served the best interests of her children. We affirm the judgments of the trial court.

Our decision is informed by the following facts and procedural history. On July 24, 2003, the petitioner, the commissioner of children and families, filed a neglect petition in the interest of Trevon and R. The petition was filed in the wake of a violent incident that had occurred between the respondent and R’s father. After the father was arrested, investigative social worker Charles Larkie learned that the department had received two prior referrals for the family that included allegations of domestic violence.

On August 18, 2003, the respondent requested that Trevon, who was eight years old at the time, be removed from her home and placed in foster care because he had threatened her with a knife and cut off pieces of her hair. The petitioner, exercising a ninety-six hour administrative hold, removed Trevon from the respondent’s care. On August 21, 2003, the petitioner filed a motion seeking temporary custody of Trevon. Finding that Trevon would be in immediate physical danger from his surroundings in the respondent’s custody, the court granted the motion. On August 29, 2003, the order of temporary custody was sustained by agreement. The court also ordered that the respondent comply with specific steps, such as parenting classes and individual and family counseling, in the interest of regaining custody of Trevon. The department referred the respondent to several support services, including counseling, parent education, a parent aide worker and a court-ordered psychological evaluation with clinical psychologist David M. Mantell.

On November 20, 2003, the court adjudicated Trevon and R to be neglected. Trevon was living outside of the respondent’s custody at the time, while R was living with the respondent. The court ordered Trevon committed to the care and custody of the petitioner and postponed the dispositional orders relating to R. On March 12, 2004, the court ordered nine months of protective supervision of R. Two months later, Trevon was returned to the respondent’s custody under an order of protective supervision.

In September, 2004, the respondent attempted suicide by ingesting a concoction of rubbing alcohol, hydrogen peroxide, Benadryl and Aleve. She was admitted to the hospital, while Trevon and R were placed in temporary foster care. On December 2,2004, a second adjudication of neglect was entered for Trevon and R, and the court ordered them committed to the care and custody of the petitioner. The court again ordered the respondent to comply with specific steps, including refraining from criminal conduct. The department again offered the respondent support services. At this time, the department’s permanency plan for the children was reunification with the respondent. The respondent complied with the department’s expectations of her at the end of 2004 and in 2005. Her interactions with department social workers, however, were characterized by hostility.

On June 14, 2005, the respondent filed a motion to revoke commitment but failed to attend the hearing. As a result, the court marked off the motion. In September, 2005, the court ordered that the commitment of both children be maintained. In January, 2006, the respondent gave birth to D. In March, 2006, as the department was about to begin intensive family preservation services, the respondent was arrested at her home for receiving seven pounds of marijuana. D was removed from the respondent’s care pursuant to a ninety-six hour hold. The respondent was charged with six crimes, including possession of marijuana with intent to sell and risk of injury to a child. Thereafter, she was incarcerated.

The petitioner sought and obtained temporary custody of D and filed a neglect petition. On March 31, 2006, the order of temporary custody was sustained. In February, 2007, D was found to be neglected and was committed to the care and custody of the petitioner. On March 10, 2007, the respondent was arrested on a charge of breach of the peace after she was accused of shoplifting at the Trumbull Mall. She was incarcerated until March 21, 2007. On April 4, 2007, she was arrested again on charges relating to an assault she allegedly committed at the shopping mall at Buckland Hills in Manchester.

On June 5 and 6, 2007, a trial on the termination of the respondent’s parental rights was held. At trial, Mantell testified that on the basis of his assessment of the respondent’s life over the course of the time he had known her, she had a poor prognosis for achieving rehabilitation. According to Mantell, “there had been certain outstanding facts and, in fact, a downward spiral in her life so that she became homeless, became dependent on others for income and support because she had none of her own, was arrested for a serious charge and so she had a criminal violation for which she was convicted and incarcerated. And instead of her life improving once [the department] became involved and the Juvenile Court became involved and the children were removed from her care, her life deteriorated even further, including the loss of custody of another child that she had become pregnant with and given birth to during the time that I knew her.”

The court found that the petitioner had proven by clear and convincing evidence that the respondent’s three children had been found neglected or uncared for in a prior proceeding and that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that she could assume a responsible position in the lives of the children within a reasonable time. Concluding that the termination of the respondent’s parental rights would serve the children’s best interests, the court granted the termination petitions on July 2, 2007. The respondent now appeals.

We initially set forth the applicable law and our standard of review. General Statutes § 17a-112 (j) provides in relevant part: “The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-lllb ... (2) termination is in the best interest of the child and (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .

“A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence. . . . The question for this court ... is not whether it would have made the findings the trial court did, but whether in view of the evidence and pleadings in the whole record it is left with the definite and firm conviction that a mistake has been committed. . . .

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Citations omitted; internal quotation marks omitted.) In re Anthony H., 104 Conn. App. 744, 755-56, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).

I

The respondent first claims that the court improperly found that she had failed to achieve the degree of rehabilitation required to avoid a termination of parental rights. In light of the fact that she complied with court-ordered treatment programs during 2004 and 2005, the respondent challenges the court’s finding that she failed, by clear and convincing evidence, to achieve rehabilitation sufficiently. We are not persuaded.

“Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child’s life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child’s life.” (Internal quotation marks omitted.) Id., 757.

“The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous. . . . Clear and convincing proof is a demanding standard denoting] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false of do not exist.” (Internal quotation marks omitted.) Id., 756.

In this case, the court concluded that the respondent had failed to achieve the required degree of rehabilitation despite the many support services she was afforded over a period of at least four years. The court stated: “[The respondent] has been offered a multitude of programs and services which have not generated any significant benefit. She was offered and completed Hockanum Valley parent education. She had individual counseling in 2005, but following the birth of D, [she] appeared to be still angry and said she did not find counseling useful. [The respondent] was to begin intensive family reunification, but the services were aborted when [she] engaged in criminal activities that led to her arrest and incarceration. She has had numerous complete psychological evaluations. She had a substance abuse evaluation. She has been offered other services . . . which she has declined.”

In support of her claim, the respondent insists that because she complied with certain of the court’s orders in 2004 and 2005, the court should not have found that she had failed to achieve such a degree of rehabilitation as would encourage the belief that she could assume a responsible position in the lives of the children. She claims that her rehabilitation was sufficient because she “was making progress in treatment. During 2004-2005, [she] was being compliant, meeting all of the department’s expectations. She enrolled the children in therapy to deal with the effects of her suicide attempt. She was set to begin an intensive reunification program; however, she was arrested and sent to jail before the program got started.”

Regardless of what occurred during 2004 and 2005, we believe that the court properly concluded that the respondent had failed to achieve such a degree of rehabilitation as would encourage the belief that she could assume a responsible position in the lives of her children. The court based its conclusion on several factual findings, such as the respondent’s lack of employment, lack of income, lack of housing, refusal of anger management services, history of arrests and incarcerations and dependence on others for support. These findings are supported by the record. Additionally, Mantell opined that the respondent was a poor prospect for rehabilitation.

This court recently rejected a claim that a respondent’s substantial compliance with rehabilitative programs bars a court’s termination of her parental rights. In In re Coby C., 107 Conn. App. 395, 406, 945 A.2d 529 (2008), we stated, “Whether the respondent’s shortcomings are deemed substantial compliance or noncompliance, the evidence in the record as a whole supports the court’s conclusion that the respondent has failed to achieve rehabilitation pursuant to § 17a-112 and that it is not foreseeable that she is capable of rehabilitation within a reasonable time.” Similarly, the record here supports the court’s determination that the respondent, despite her compliance with certain court-ordered steps, had not achieved a degree of rehabilitation that would allow her to assume a responsible position in her children’s lives. “[T]he critical issue [in assessing rehabilitation] is . . . whether the parent has . . . gained the ability to care for the particular needs of the child at issue.” (Internal quotation marks omitted.) In re Shyliesh H., 56 Conn. App. 167, 743 A.2d 165 (1999).

We conclude that on the basis of the evidence before it, the court properly found that the petitioner had established, by clear- and convincing evidence, that the respondent had failed to achieve sufficient personal rehabilitation as would encourage the belief that within a reasonable time and considering the age and needs of her children, she could assume a responsible position in their lives.

II

The respondent’s second claim is that the court improperly found that the department made reasonable efforts to reunify her with her children as required by § 17a-112 (j). More particularly, the respondent argues that the department’s reunification efforts were inadequate because they did not include mental health diagnoses, treatment goals or specific therapeutic recommendations. We do not agree.

“In order to grant a petition for termination of parental rights, § 17a-112 (j) makes clear that the court must make a finding based on clear and convincing evidence that the department made reasonable efforts at reunification or, in the alternative, make a finding that the parent is unwilling or unable to benefit from reunification efforts.” (Internal quotation marks omitted.) In re Jermaine S., 86 Conn. App. 819, 837, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). “[T]he statute imposes on the department the duty ... to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [Reasonable efforts means doing everything reasonable, not everything possible. . . . The trial court’s determination of this issue will not be overturned on appeal unless, in light of all of the evidence in the record, it is clearly erroneous.” (Citation omitted; emphasis added; internal quotation marks omitted.) In re Daniel C., 63 Conn. App. 339, 361, 776 A.2d 487 (2001).

In support of her theory that the department failed to make reasonable efforts to reunify her family, the respondent cites In re Vincent B., 73 Conn. App. 637, 646, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). In that case, this court overturned the termination of a father’s parental rights because the department had made no effort at reunification. Id., 645-47. Conversely, the department in the present case made repeated efforts at reunification. For example, the department returned Trevon and R to the respondent’s custody in April, 2004. The department continued to provide the respondent support services even after the children were removed from her custody in the wake of her suicide attempt. In 2005, the department encouraged the respondent to participate in a “Delta-T” program designed specifically for family reunification. To facilitate this, “the department offered unsupervised visits with the children so to transition [them] back into the home. As recommended by [the respondent’s] therapist, it was done one child at a time to ease the burden of [the respondent’s] stress of having all the children at once.” The department was working toward unifying the family when the respondent was arrested on narcotics charges in March, 2006.

On the basis of the foregoing, we uphold the court’s finding that the department employed reasonable efforts to reunify the respondent with her children as required by § 17a-112 (j). The court properly found that the petitioner had proved, by clear and convincing evidence, that the department had made reasonable efforts to reunite the respondent with her children.

III

The respondent’s final claim is that the court’s finding that it was in the best interests of her children to terminate her parental rights was clearly erroneous because her children were strongly bonded to her and wanted to reunify with her. We do not agree.

The following additional facts are relevant to the respondent’s claim. At the time of the judgment, twelve year old Trevon had been in foster care for almost four years, five year old R had been in foster care for three years and one year old D had been in foster care for more than nine months. The court took into account the fact that Trevon harbored hopes of reunification with the respondent but noted that “the respondent continually fails to get her life stabilized and appropriately ordered. She is not even fully successful at caring for her own personal needs.” The court heard Mantell’s testimony that Trevon felt a strong desire to remain with his foster father if he could not be placed with the respondent and that D and the respondent had not spent enough time together to form a strong bond. In Mantell’s opinion, although R would experience a significant hardship if she were not to see the respondent at all, this hardship could be overcome in time. Department social worker Mayra Sanchez testified that the foster parents of all three children had expressed a willingness to adopt them.

“[Once] the court finds that the petitioner has proven by clear and convincing evidence that one of the statutory grounds for termination of parental rights exists, it must then determine whether termination is in the best interests of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being and continuity and stability of its environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings delineated in [§ 17a-112 (k)].” (Citations omitted; internal quotation marks omitted.) In re Anthony H., supra, 104 Conn. App. 763-64.

We conclude that the court, in granting the petitions to terminate the respondent’s parental rights, properly made its written findings in consideration of the factors delineated in § 17a-112 (k). The seven statutorily required findings included in the court’s memorandum of decision are supported by substantial evidence. The court explained its decision as follows. “The children are now in appropriate foster care settings where they are very well cared for by foster parents who are fully committed to them. They are safe. They are not exposed to the criminal elements. They have stable housing, regular meals, nurturance and protection. In finding that termination of [the respondent’s] parental rights would be in the children’s best interests, the court has examined multiple relevant factors, including the children’s interests in sustained growth, development, well-being and continuity of their environment; their length of stay in foster care; the nature of their relationship with foster parents and biological parents; the degree of contact maintained with their biological parents; and their genetic bond to [the respondent].

“The court has also balanced the children’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with [the respondent]. . . . Under such scrutiny, the clear and convincing evidence in this matter establishes that termination of [the respondent’s] parental rights is in the children’s best interests. The court also notes that counsel for the children recommends termination.” (Citation omitted.)

The respondent argues that her parental rights should not have been terminated because her children remained bonded to her and wanted to reunify with her. Because the existence of emotional ties between the respondent and her children fails to undermine the court’s decision, this argument is unavailing. “[0]ur courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child’s best interest to terminate parental rights.” (Internal quotation marks added.) In re Ryan R., 102 Conn. App. 608, 627, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007). The court in this case acknowledged the existence of bonds between the respondent and her children but also noted that the respondent had failed to stabilize her life and that the children had formed healthy emotional ties to their foster parents.

Contrary to the respondent’s argument, the record supports the court’s determination that the respondent failed to secure a stable living environment for her children. Over a period of at least four years, the respondent maintained neither stable housing, nor a continuous income, nor secure living conditions. She was arrested three times and incarcerated twice. “Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments.” (Internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 401, 852 A.2d 643 (2004). The importance of stability in children’s lives, coupled with the court’s amply supported finding that the respondent failed to achieve a sufficient degree of personal rehabilitation, leads us to conclude that the court properly determined, by clear and convincing evidence, that it was in the children’s best interests to terminate the respondent’s parental rights.

The judgments are affirmed.

In this opinion the other judges concurred.

       The parental rights of the children’s fathers also were terminated. The fathers have not appealed. We therefore refer in this opinion to the respondent mother as the respondent.

       See General Statutes § 17a-101g.

       See footnote 2 of this opinion.

       General Statutes § 17a-112 (k) provides in relevant part: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered ... (2) whether the [department . . . has made reasonable efforts to reunite the family ... (3) the terms of any applicable court order entered into . . . and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents . . . and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to afijust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future . . . and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child ... or by the economic circumstances of the parent.”


source: Caselaw Access Project

author: STOUGHTON, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. YOMAR FANA
    (AC 27642)
    DiPentima, Robinson and Stoughton, Js.

      Argued March 26
    officially released August 26, 2008

      Charles F. Willson, special public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Mark A. Stabile, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Yomar Fana, appeals from the judgments of conviction, rendered after a jury trial, of two counts of burglary in the third degree in violation of General Statutes § 53a-103, two counts of conspiracy to commit burglary in the third degree in violation of General Statutes §§ 53a-48 and 53a-103, two counts of criminal mischief in the first degree in violation of General Statutes § 53a-115, two counts of conspiracy to commit criminal mischief in the first degree in violation of General Statutes §§ 53a-48 and 53a-115, and one count each of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122, and attempt to commit larceny in the first degree in violation of General Statutes §§ 53a-49 and 53a-122. On appeal, the defendant claims that the trial court improperly (1) denied his motion to sever the charges related to the separate burglaries, (2) instructed the jury, (3) denied his motion to suppress evidence and (4) denied his motions for a judgment of acquittal on the charges of conspiracy to commit larceny in the first degree and attempt to commit larceny in the first degree. We agree with the defendant’s fourth claim only.

The following facts reasonably could have been found by the jury on the basis of the evidence presented. On the morning of January 26, 2004, an assistant manager of the Cumberland Farms store, located on Day Street in Brooklyn, arrived at 4 a.m. to open the store for business. When she unlocked the door, rather than hearing the familiar sound of the store’s alarm, she was confronted with silence. After noticing that some of the store’s merchandise was disturbed, she left the building and called the police. The police arrived at the store shortly thereafter.

The police investigation revealed that one or more individuals had cut a hole, measuring roughly two feet square, through the roof of the Cumberland Farms, near the area of the cash register. At least one person had entered the store. The store’s safe, containing the cash the store kept on site, had been dragged to the rear of the storeroom. The bottom drawer of the safe, which at the time held $446, had been broken into. The perpetrator or perpetrators had been unsuccessful, however, in breaking into the top drawer of the safe. In addition, an automated teller machine, located in the front of the store, was unbolted and dragged across the store to the back of the room, although it was not successfully broken into. The machine contained $7500 at the time.

The police discovered numerous items left behind by the burglars. Inside the store, the police discovered two bags containing burglar’s tools. Additionally, the police discovered a piece of paper with the defendant’s shoe print on it. Outside the store, the police discovered knit caps, a bandana and a Cumberland Farms’ grocery bag containing money. The hats and bandana were later tested for DNA, and the defendant could not be eliminated as a contributor of DNA to one of the hats.

About one month after the Cumberland Farms burglary, on February 29, 2004, Michael Robinson and Derek Halkett, both of whom are state police officers, responded to an alarm at the A & P Wines and Spirits store (A & P) in Danielson. When they arrived, they noticed a Nissan Altima speeding out of the parking lot. Robinson pursued the speeding car, while Halkett remained to investigate the alarm. Robinson soon approached the speeding vehicle and signaled for it to stop. The car was occupied by Angel Fana, who was driving, and by Jamie Garcia, Wilson Martinez and the defendant. Not having received any information confirming that there had been a burglary at the A & P, the officer permitted the vehicle to leave.

Robinson then returned to the A & P to meet a key-holder to the store so that he could enter the store and complete the investigation. Inside, he noticed that the alarm box had been tampered with, and a hole, approximately four feet by four feet, had been cut through the roof. Outside the store, Robinson discovered a duffle bag containing burglar’s tools and a red knit hat. Robinson immediately reported a suspected burglary, and Halkett, joined by another police officer, commenced pursuit of the Altima. The Massachusetts state police were also notified because the Altima was heading toward that state. Soon after the Altima crossed the state line, a Massachusetts police officer stopped the car, and the four occupants were arrested, apparently for having burglar’s tools, and were taken to a Massachusetts police barracks. While held in the barracks, the defendant and the other occupants of the car met with Trooper Norman Nault of the Connecticut state police. Nault seized, among other things, the clothing that all four men were wearing, including the defendant’s sneakers.

The defendant was subsequently arrested in connection with both the Cumberland Farms and A & P incidents. The court granted the state’s motion to consolidate the charges relating to the two incidents into a single trial. Later, the defendant moved to sever the two cases, asserting likely jury confusion due to the similar nature of the facts underlying the two incidents. The court denied the defendant’s motion. The defendant was convicted, after a trial to the jury, of the several counts related to the two burglaries, and the court rendered judgments. From these judgments the defendant appeals.

I

The defendant first claims that the court improperly denied his motion to sever the charges related to the Cumberland Farms and A & P incidents. The defendant asserts that the factual circumstances underlying the two incidents are so similar that juror confusion likely resulted from trying the cases together. The defendant further asserts that he was prejudiced because the jurors may have improperly relied on evidence from one incident to find guilt on the charges related to the other.

The following facts are relevant to the resolution of the defendant’s claim. The court entertained argument on the defendant’s motion to sever on January 24, 2006. The defendant’s counsel stated: “We’re asking for the case to be severed.” Counsel further explained: “I think it’s especially appropriate in this case, Your Honor . . . it’s going to be quite a bit easier for the state if [the jurors] hear evidence of both of these cases to prove any one of them because the evidence they’re going to use in one is going to obviously taint the way the jury feels in the other.”

The state then argued: “There are similarities to the offenses, which in some instances would argue against joinder. However, the evidence, I believe, in this case is going to show that this was a common scheme. And evidence of one of the crimes would have been—would be admissible in the trial of [the other]. ... So, the cases are legally connected. It was essentially an ongoing conspiracy. Evidence from one trial would be admissible in the other trial.” (Emphasis added.) The court then denied the motion to sever.

Practice Book § 41-18 provides: “If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may, upon its own motion or the motion of the defendant, order separate trials of the counts or provide whatever other relief justice may require.” Our Supreme Court has instructed that in “deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb.” (Internal quotation marks omitted.) State v. Davis, 286 Conn. 17, 28, 942 A.2d 373 (2008). “The court’s discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant’s right to a fair trial.” (Internal quotation marks omitted.) State v. Ellis, 270 Conn. 337, 375, 852 A.2d 676 (2004). In State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), our Supreme Court determined that courts should carefully evaluate three factors when considering whether a motion to sever should be granted. The Boscarino factors are “(1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Ellis, supra, 375. “If any or all of these factors are present, a reviewing court must decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) Id. At least with regard to the first Boscarino factor, a defendant will not be able to demonstrate prejudice by a consolidation of charges if the evidence presented would have been cross admissible at the two trials, were the charges tried separately. See State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988).

The defendant, on appeal, relies solely on the fust Boscarino factor to argue that the court abused its discretion by denying his motion to sever. He asserts that the factual circumstances of the two burglaries were so similar as to lead to jury confusion. He further argues that the manner in which the burglaries were committed was not so similar as to constitute signature crimes, and, therefore, the evidence would not have been cross admissible to prove identity had the cases been tried separately. The state, on the other hand, argues that breaking into a convenience store by cutting a hole in the roof is so distinctive as to constitute a signature crime. Therefore, the state asserts, the evidence would have been cross admissible, and, thus, the defendant has not demonstrated prejudice from the denial of his motion.

Although both parties on appeal have briefed the issue of whether the evidence would have been cross admissible to prove identity, the record reveals that this ground for denying the motion to sever was not raised before the court. During argument on the motion to sever, the state argued that the motion should be denied because the evidence would be cross admissible on the ground that the two incidents were part of a common plan or scheme of criminal activity. It was on this basis that the court denied the motion to sever.

The defendant, on appeal, does not challenge the cross admissibility of the evidence, were the cases tried separately, on the basis of the incidents being part of a common plan of criminal activity, the ground on which the motion was denied. Therefore, the defendant has failed to show that the court’s denial of his motion to sever caused him prejudice, and this claim fails.

II

The defendant next claims that the court improperly charged the jury. Specifically, the defendant argues that the court’s instruction to the jury improperly implied that he had a duty to present evidence and to testify and that the court improperly delivered a “Chip Smith” charge and improperly marshaled evidence in favor of the state. We disagree.

The defendant concedes that none of his claimed instructional errors was raised at trial and are, therefore, unpreserved. He seeks review pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Our Supreme Court announced in Golding that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40.

A

The defendant first argues that the court’s charge to the jury improperly implied that he had an obligation to present evidence and to testify in his defense. The defendant challenges the following language of the court’s instruction: “You must consider all the evidence in the case, and you may decide that the testimony of a smaller number of witnesses on one side has greater weight than a larger number on the other side. It’s the quality of the evidence, not the quantity of the evidence, you should consider.”

The defendant asserts that the quoted portion of the charge improperly instructed the jury on the state’s burden of proof, the presumption of innocence and his constitutional right not to testify, and, therefore, he asserts that his argument raises matters of constitutional concern in satisfaction of the second Golding requirement. We agree with the state that the contested language is part of the court’s credibility instruction, which is not constitutional in magnitude, and that the jurors reasonably understood it to be such. Therefore, we agree with the state that the issue is not eligible for Golding review. See State v. Schiappa, 248 Conn. 132, 165-66, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999).

After giving a brief overview of the meaning of evidence, the court turned to the issue of credibility. The court clearly indicated to the jury that the topic of the following segment of the charge was going to be credibility by declaring: “As to credibility of witnesses . . . .” The court instructed the jury that it had the responsibility to decide the credibility of the various witnesses. The court explained that the jury could believe part, all or none of a witness’ testimony. The court further provided some guidance to the jurors to help them assess credibility. The court suggested they consider whether the witness could see or hear the incidents described, the witness’ manner while testifying, and whether the witness’ testimony seemed consistent and reliable. The court followed this with the challenged portion of the charge. Following that, the court instructed the jury on expert testimony and provided guidance on evaluating the credibility of experts.

The court next instructed the jury on the presumption of innocence and explained: “This presumption of innocence was with this defendant when he was first presented for trial in this case; it continues with him throughout this trial . . . .” After this, the court stated: “Burden of proof,” and proceeded to instruct the jury on the state’s burden of proof, explaining, among other things, that “the defendant does not have to prove his innocence.” Later, the court also instructed the jury: “I want to advise you that an accused person has the option to testify or not to testify at their trial. The defendant is under no obligation to testify, he has a constitutional right not to testify and you must draw no unfavorable inference from his failure to testify.”

We conclude the court clearly intended to convey to the jury, in the portion of the instruction challenged by the defendant, the idea that its determination on whether one witness is credible should not rest solely on whether others testify as to the same facts but, rather, that in some instances, the jury may find that several witnesses all lack credibility even if they appear to agree with each other. We further conclude that the court clearly conveyed to the jury that it was discussing credibility assessment and not the state’s burden of proof, the defendant’s right not to testify or the presumption of innocence, particularly as these points were specifically addressed later. Having determined that the challenged instruction was an instruction on credibility, which does not rise to the level of constitutional magnitude, we decline to afford this claim Golding review.

B

The defendant next argues that the Chip Smith charge delivered to the jury was improper because it directed the jurors in the minority, but not those in the majority, to reevaluate their positions when the jury was deadlocked on the counts arising from the Cumberland Farms incident.

This argument is reviewable pursuant to Golding, as it raises a constitutional issue and there is an adequate record for review. See State v. O’Neil, 261 Conn. 49, 58-59, 801 A.2d 730 (2002). Nevertheless, the defendant’s argument must fail because there is controlling Supreme Court case law directly on point that is contrary to the defendant’s position. See, id., 63-74.

Our Supreme Court revised the traditional Chip Smith charge in State v. O’Neil, supra, 261 Conn. 74-75. The charge delivered by the court here is virtually identical to the charge that our Supreme Court promulgated.

The argument advanced by the defendant, which is that the jurors holding the majority position and those holding the minority view must all be charged to reconsider their positions when deadlocked, is the same argument that was rejected by our Supreme Court. See id.; cf. id., 83 (Borden, J., concurring). Therefore, this argument must fail.

C

The defendant’s third argument involving the jury charge is that the court improperly marshaled the evidence in the state’s favor. We disagree.

After the commencement of deliberations, the jury sent a note to the court, requesting the court to summarize the evidence regarding shoe prints discovered on a sheet of paper at Cumberland Farms. Specifically, the jurors asked the court the following question, as relayed by the court to counsel: “We would like to have any information pertaining to the shoe print on the computer paper on Cumberland Farms on January 26,2004.” The court told counsel that it believed that the jury already had all the evidence and that it would so tell the jurors. The prosecutor stated: “I believe Detective [David] Lamoureux testified about seizing [the paper with the shoe print] and where it was . . . .” The court then stated: “Well ... I know [that defense counsel] asked a number of questions about where the particular exhibits were found, and I will offer up to them that if they want that read back, we can get that in a form of a question. Obviously, they’re entitled to have that read back.”

The court then called the jurors back into the courtroom. It addressed them, in relevant part, as follows: “Good afternoon. ... I have reviewed your question, I’ve read it into the record, I’ve shared it with counsel, and the direct answer to your question is that you have all of the information that has been admitted into evidence. There was some testimony, I believe, as to the shoe—a shoe being taken from [the defendant] when he was in the custody of the Massachusetts state police. There was also some testimony, I believe, from Detective Lamoureux as to where the papers were found inside the Cumberland Farms store when he found them and took them into evidence.” (Emphasis added.)

The defendant argues that the court improperly marshaled the evidence because its answer “clearly suggested, if not highlighted, its observation that the shoes [the] defendant wore at the time of his arrest left the print on the computer paper found inside the Cumberland Farms.”

We agree that this claim is reviewable pursuant to Golding in that the record is adequate and the claim raises a constitutional question. “Because the defendant failed to raise this issue in the trial court, our review of this claim on appeal is limited to whether the court’s conduct so deviated from the impartiality required that it deprived the defendant of a fair trial.” State v. Tatum, 219 Conn. 721, 735, 595 A.2d 322 (1991).

The purpose of marshaling the evidence is to provide a fair summary of the evidence and nothing more; to attain that purpose, the trial judge must show strict impartiality. To avoid the danger of improper influence on the jury, a recitation of the evidence should not be so drawn as to direct the attention of the jury too prominently to the facts in the testimony on one side of the case, while sinking out of view, or passing lightly over, portions of the testimony on the other side, which deserve equal attention. On review, we do not evaluate the court’s marshaling of the evidence in isolation. Rather, we review to determine whether the charge, as a whole, fairly presented the case to the jury. State v. Little, 88 Conn. App. 708, 712-13, 870 A.2d 1170, cert. denied, 274 Conn. 916, 879 A.2d 895 (2005).

The defendant asserts that the court should not have mentioned the shoe in its answer. The jury had evidence, however, that the shoe was the source of the shoe print. Thus, the court properly mentioned the shoe as it was evidence “pertaining to the shoe print found at the Cumberland Farms.” Although the court could have also instructed the juiy, at the time it was reciting the evidence relating to the shoe print, that the parties disagreed on whether the shoe seized was in fact the source of the shoe print, the defendant makes no claim here that the court improperly excluded his evidence or sank his theory of defense out of view. Cf. State v. Hernandez, 218 Conn. 458, 590 A.2d 112 (1991). The court instructed the jurors that they were the sole finders of fact near the beginning of its charge and reminded them of this near the conclusion of the charge. When answering the jury’s question, the court did not discuss either the state’s or the defendant’s theory. Finally, after reciting the evidence related to the shoe print, all of which was provided by the state, the court highlighted the fact that the defendant had cross-examined the state’s witnesses and offered to play back the recording of the cross-examination.

We conclude that the defendant has failed to demonstrate a violation of the third prong of Golding because he has failed to demonstrate that the jury charge was so biased in favor of the state’s evidence as to deprive him of a fair trial.

III

The defendant’s third claim is that the court improperly denied his motion to suppress his sneakers from being introduced as evidence. We disagree.

As noted previously, the car in which the defendant was riding was stopped soon after crossing the state line into Massachusetts. The defendant and the other occupants of the car were subsequently arrested and brought to the police barracks. While the defendant was incarcerated, police officers from Connecticut visited the defendant and, while there, seized, among other things, his sneakers.

Before trial, the defendant filed a motion to suppress tangible evidence but did not specifically request that the sneakers be suppressed. During trial, defense counsel represented to the court that he had been notified the day before that the state intended to introduce evidence of the shoe prints found at the Cumberland Farms for the purpose of demonstrating that they were made by one of the defendant’s sneakers. Defense counsel then asked permission to amend his motion to suppress orally to include the sneakers. The court heard argument. The court also heard testimony from Nault, the officer who seized the sneakers. Nault testified: “[W]hen I went [to the Massachusetts police barracks] to seize evidence for clothing, if I didn’t seize it, it would have been destroyed or been lost. So, I seized the clothing of all the people involved that were in that vehicle so we could use them possibly for later tests or for later examination.” Defense counsel did not challenge Nault’s testimony, either by way of cross-examination or other evidence, that had he not seized the clothing, the clothing would have been destroyed or lost. The court stated that it was temporarily denying the motion to suppress but indicated that it would further consider the matter. Two days later, while the defendant was conducting voir dire of the state’s proffered expert on shoe prints, the court asked defense counsel: “Are you objecting, then, to the introduction of the evidence . . . ?” Defense counsel then argued that the sneakers should be suppressed and that the results of subsequent testing on the sneakers should also be suppressed. After hearing the defendant’s argument, the court stated: “I indicated to you [earlier] that I did not see a problem at the seizure itself, and I have heard nothing to change my opinion as to that.” The court then explained: “The facts that [Nault] has described [amount to] exigent circumstances, the seizure is . . . immediately following an arrest, he’s afraid that the clothing will either be destroyed or disappear or that something will happen to it.” After hearing additional argument regarding subsequent searches of the sneakers, the court denied the motion to suppress the sneakers but granted the motion to suppress evidence arising from any warrantless search of the sneakers. During the later discussions, the defendant, again, did not challenge Nault’s testimony or the factual determination of the court regarding the destruction of the sneakers had they not been seized.

“Ordinarily, police may not conduct a search [or seize evidence] unless they first obtain a search warrant from a neutral magistrate after establishing probable cause.” (Internal quotation marks omitted.) State v. Copeland, 205 Conn. 201, 209, 530 A.2d 603 (1987). There are, however, a few exceptions to this rule, such as when there are exigent circumstances. State v. Aviles, 277 Conn. 281, 293, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). “The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly, and without seeking prior judicial authorization.” (Internal quotation marks omitted.) Id. “The trial court’s finding of facts will stand unless they are clearly erroneous. Its legal conclusion regarding the applicability of the doctrine, however, is subject to de novo review.” Id., 292.

The defendant asserts that there were no exigent circumstances in this case justifying the warrantless seizure. Specifically, he asserts that “the clothing was not in danger of being destroyed or removed elsewhere, and it was not available to the defendant.” The defendant does not cite the portion of the record on which he relies for these assertions. Further, although the defendant asserts facts that are inconsistent with the facts found by the court, which included that the sneakers and other clothing would have been destroyed were they not seized, he has provided no analysis demonstrating that the court’s factual determination was clearly erroneous. Finally, the defendant did not raise a challenge to the factual underpinning of the court’s determination regarding exigent circumstances to the court.

On the basis of the court’s factual determination that the sneakers were in danger of being lost or destroyed, which relied on testimony that was unchallenged during argument on the motion, we conclude that the court did not improperly determine that the state had demonstrated that the warrantless seizure was valid pursuant to the exigent circumstances exception to the warrant requirement.

IV

Finally, the defendant claims that there was insufficient evidence to support his conviction of attempt to commit larceny in the first degree and conspiracy to commit larceny in the first degree because the state failed to establish that he had attempted to take, or conspired to take, property in excess of $10,000. We agree.

It is well settled that “due process requires the state to prove every element of the offense charged beyond a reasonable doubt.” State v. Coltherst, 263 Conn. 478, 820 A.2d 1024 (2003), citing In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). In reviewing a sufficiency of the evidence claim, we first construe the evidence in a light most favorable to sustaining the decision; second, we consider whether on the facts so construed, and any inferences reasonably drawn from those facts, the trier of facts reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. See State v. Miranda, 260 Conn. 93, 110, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). General Statutes § 53a-122 (a), which governs larceny in the first degree, provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”

At trial, the state introduced evidence that the automated teller machine at the Cumberland Farms contained, at the time of the burglary, $7500. It further introduced evidence that the bottom drawer of the safe contained $446. Finally, it elicited testimony from a Cumberland Farms’ employee that the top drawer contained “a fair amount because we work second shift and we make quite a bit of money on second shift.” There was no evidence produced, however, suggesting that a “fair amount” of money was a sum greater than $2054. There was no other evidence introduced regarding any other potential source of money relevant to the charges.

We do not agree with the state that the jury reasonably could have inferred that a “fair amount” of money in the top drawer was an amount in excess of $2054. Therefore, we agree with the defendant that there was insufficient evidence from which the jury could have concluded that he either conspired or attempted to commit larceny in the first degree.

We next turn to the appropriate remedy. The defendant argues that he should be acquitted of the two larceny charges. The state, on the other hand, argues that the evidence introduced at trial supported a conviction for conspiracy and attempt to commit larceny in the second degree in violation of General Statutes § 53a-123. The state further contends that larceny in the second degree is a lesser offense included within larceny in the first degree, and, therefore, the proper course for this court is to remand the case to the trial court with direction to modify the judgment to reflect a conviction of conspiracy and attempt to commit larceny in the second degree and to resentence the defendant.

“State and federal appellate courts have long exercised the power to reverse a conviction while at the same time ordering the entry of judgment on a lesser-included offense. . . . The usual situation in which this occurs is when there is insufficient evidence to support one of the elements of an offense . . . [but] there is ample evidence to support a lesser-included charge which does not contain the insufficiently proven element.” (Citations omitted; internal quotation marks omitted.) State v. Edwards, 201 Conn. 125, 134 n.6, 513 A.2d 669 (1986).

Thus, to determine whether modification is appropriate, we must determine whether larceny in the second degree is a lesser included offense, under these circumstances for the purpose of modifying the judgment, and whether the jury necessarily found all the elements of the proposed lesser included offense when it delivered its verdict considering the greater offense. For this determination, we engage in a plenary review. See State v. Greene, 274 Conn. 134, 155, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006). We begin by comparing the elements of the crime charged with the elements of the proposed lesser included offense. General Statutes § 53a-119, which defines larceny, provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...” Section 53a-122 (a), which governs larceny in the first degree, provides in relevant part: “A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property . . . exceeds ten thousand dollars . . . .” Section 53a-123 (a), which governs larceny in the second degree, provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and . . . (2) the value of the property or service exceeds five thousand dollars . . . .”

Thus, to prove conspiracy and attempt to commit larceny in the first degree, pursuant to the charges in this case, the state had to demonstrate that (1) the defendant had the intent to deprive another of property and (2) he wrongfully conspired and attempted to take more than $10,000. To prove conspiracy and attempt to commit larceny in the second degree, the state would have had to show that (1) the defendant had the intent to deprive another of property and (2) he wrongfully conspired and attempted to take more than $5000.

Because we have determined that the evidence was insufficient to support the finding that the value of the property the defendant conspired and attempted to take exceeded $10,000, that finding, as to value, drops out, and the only relevant jury finding to remain is that the defendant intended to take property of another. Larceny in the second degree, however, has the element that the property must have a value of more than $5000.

The state argues, nevertheless, that, for the purposes of modification, conspiracy and attempt to commit second degree larceny are lesser offenses included within conspiracy and attempt to commit larceny in the first degree because, in order to find that the property at stake had a value exceeding $10,000, the jury must also have found the value of the property at stake had a value exceeding $5000. Although at first blush there appears to be some merit to this argument, we are unpersuaded.

In the cases relied on by the state, and other cases of which we are aware, in which modification was appropriate, the element, which the reviewing court found the evidence insufficient to support, was distinct from the other elements of the charged crime. When that element was eliminated, the remaining elements were themselves adequate to support a conviction of a lesser included offense. Thus, our Supreme Court determined that a judgment could be modified from a conviction of manslaughter with a firearm to a conviction of manslaughter. State v. Greene, supra, 274 Conn. 160-62. In Greene, to find the defendant guilty of either crime, the jury would have had to find all the elements of manslaughter, but to find him guilty of the charge of manslaughter with a firearm, the jury had to find an additional element, namely, that he used a firearm. Id., 161. Elimination of the firearm element did not affect the juiy’s finding as to the other elements that constituted manslaughter. See id.; see also State v. Edwards, supra, 201 Conn. 133 n.6; State v. Wade, 106 Conn. App. 467, 469, 942 A.2d 1085, cert. granted on other grounds, 287 Conn. 908, 950 A.2d 1286 (2008); State v. Falcon, 26 Conn. App. 259, 600 A.2d 1364 (1991) (collecting cases), cert. denied, 221 Conn. 911, 602 A.2d 10 (1992); cf. State v. Clemons, 31 Conn. App. 614, 626 A.2d 1310, cert. denied, 227 Conn. 908, 632 A.2d 696 (1993).

Here, the jury made one finding as to the value of the money involved with the charge. Once the jury’s finding on this element is eliminated, there is no longer a finding by the jury as to the value of the money or whether there was any money at all. Thus, unlike the cases relied on by the state, this is not a situation in which a distinct element is found insufficiently supported by the evidence, but the remaining elements, which were found by the jury, are unaffected and constitute a separate, lesser included offense.

Although it is true that there was evidence from which the jury might have concluded that the value of the property exceeded $5000, we do not know what evidence the jury accepted and what it rejected or how it reached the conclusion it did reach. We are not at liberty to make that finding. It is not enough that the jury was presented evidence from which it might have found that the defendant was guilty of conspiracy and attempt to commit larceny in the second disagree. See State v. Clemons, supra, 31 Conn. App. 614.

The judgment in the second case is reversed only as to the conviction of conspiracy to commit larceny in the first degree and attempt to commit larceny in the first degree and the case is remanded with direction to render judgment of not guilty on those counts. The judgments are affirmed in all other respects.

In this opinion the other judges concurred.

       Danielson is a part of the town of Killingly, which neighbors Brooklyn, the location of the Cumberland Farms burglary-

       Connecticut Code of Evidence § 4-5 (b) provides in relevant part: “Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than [to prove criminal tendencies] such as to prove . . . identity [or a] common plan or scheme . . . .”

       In the alternative, the defendant also seeks a reversal of his conviction pursuant to the plain error doctrine. See Practice Book § 60-5. “Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Bosque, 106 Conn. App. 783, 785, 943 A.2d 1115, cert. denied, 287 Conn. 913, 915 A.2d 1288 (2008). We are unpersuaded that the court committed plain error.

       “A Chip Smith instruction reminds the jurors that they must act unanimously, while also encouraging a deadlocked jury to reach unanimity.” (Internal quotation marks omitted.) State v. O’Neil, 261 Conn. 49, 51 n.2, 801 A.2d 730 (2002); see also State v. Smith, 49 Conn. 376, 386 (1881).

       The defendant does not argue that as the Chip Smith charge was applied to the particular facts of his case, the jurors in the minority were actually coerced by the court but, rather, that the instruction itself was improper because it was directed only to the jurors in the minority. See State v. O’Neil, supra, 261 Conn. 63.

       The revised Chip Smith charge is as follows: “The instructions that I shall give you now are only to provide you with additional information so that you may return to your deliberations and see whether you can arrive at a verdict.

        “Along these lines, I would like to state the following to you. The verdict to which each of you agrees must express your own conclusion and not merely the acquiescence in the conclusion of your fellow jurors. Yet, in order to bring your minds to a unanimous result, you should consider the question you have to decide not only carefully but also with due regard and deference to the opinions of each other.
      “In conferring together, you ought to pay proper respect to each other’s opinions and listen with an open mind to each other’s arguments. If the much greater number of you reach a certain conclusion, dissenting jurors should consider whether their opinion is a reasonable one when the evidence does not lend itself to a similar result in the minds of so many of you who are equally honest and equally intelligent, who have heard the same evidence with an equal desire to arrive at the truth and under the sanctions of the same oath.
      “But please remember this. Do not ever change your mind just because other jurors see things differently or to get the case over with. As I told you before, in the end, your vote must be exactly that—your own vote. As important as it is for you to reach a unanimous agreement, it is just as important that you do so honestly and in good conscience.
      “What I have said to you is not intended to rush you into agreeing on a verdict. Take as much time as you need to discuss the matter. There is no need to hurry.” State v. O’Neil, supra, 261 Conn. 74-75.

       The parties do not dispute the elements related to conspiracy or attempt but, rather, focus on the state’s evidence regarding the value of the property. Therefore, we focus our analysis on the predicate substantive crime of larceny in the first degree.

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny, as defined in section 53a-119, and ... (2) the value of the property or service exceeds five thousand dollars . . . .”

       See footnote 7 of this opinion.

       Because only the element relating to the value of the property at stake is at issue here, for clarity we have somewhat simplified the other elements necessary to prove larceny. Cf. State v. Spillane, 54 Conn. App. 201, 217-18, 737 A.2d 479 (1999) (listing elements of larceny), rev’d on other grounds, 255 Conn. 746, 770 A.2d 898 (2001).

       See footnote 10 of this opinion.

       We also note that the court did not instruct the jury on lesser included offenses, and neither party requested that it do so.


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. KENNETH E. FAUSEL
    (AC 28950)
    Bishop, DiPentima and Mihalakos, Js.

      Argued May 20
    officially released August 26, 2008

      Steven B. Rasile, special public defender, for the appellant (defendant).

      Kurtis Z. Piantek, certified legal intern, with whom were Bruce R. Lockwood, assistant state’s attorney, and, on the brief, Kevin D. Lawlor, state’s attorney, and Melanie Cradle, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Kenneth E. Fausel, appeals from the judgment of conviction rendered following his conditional plea of nolo contendere to possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277 (b). The defendant claims that the trial court improperly denied his motion to suppress certain evidence seized from his house. We agree and, accordingly, reverse the judgment of the trial court.

On June 30, 2006, the defendant filed a motion to suppress tangible evidence seized at his home by officers with the Milford police department on August 11, 2005. The defendant argued that the search of his home and the seizure of evidence violated his rights under the state and federal constitutions. On September 19, 2006, the court conducted an evidentiary hearing on the defendant’s motion, and on November 2, 2006, the court issued a memorandum of decision denying the motion to suppress.

The court set forth the following findings of fact: “On August 11, 2005, at approximately 11:20 a.m., Milford police officer Kenneth Rahn was on patrol when he observed a green Ford Probe with racing stripes operating with a license plate attached to the rear bumper with what appeared to be plastic ties. . . . Rahn ran the plate number, and it came back as expired and listed to a blue Chevrolet registered to a James Wayne ... of 6 Shagbark Lane in Milford, who Rahn was familiar with. [Rahn] was aware [that Wayne] had previous arrests for narcotics and weapons offenses. After stopping the Ford Probe, Rahn approached the vehicle, but the operator fled at a high rate of speed once the officer left his vehicle. . . . Rahn testified that the operator continued to accelerate and entered Interstate 95 at exit thirty-seven. The Ford Probe crossed all established lanes of traffic into the left breakdown lane next to the barrier and maintained a high rate of speed. . . . Rahn did not attempt to chase the vehicle but radioed the description of the vehicle and the operator to the Milford police dispatcher who alerted other police of the incident. A short time later, a Milford police officer who was conducting traffic control at a construction site observed the vehicle on Housatonic Drive. After searching the general area, Milford Detectives [Nicholas] Ricci and [Steve] Staurovsky discovered the Ford Probe backed into a driveway of a house located at 33 Austin Road in Milford .... Two construction workers across the street told police that they saw a man matching Wayne’s description drive into the driveway at 33 Austin Road, pull the license plate off the Ford [Probe] and enter the house. One detective went to the front door of 33 Austin Road and knocked on it but received no response. The second detective went to the side door and found it slightly ajar. A check of the mailbox indicated that there was mail addressed to [the defendant], a Lisa Fausel and a Marcia DeCarlo. Initially, there was no response from inside the house, but after police announced that a dog was going to be released into the house, Wayne appeared and surrendered. When he was asked [whose] house it was, Wayne told police that the house was ‘a friend’s’ and would not provide any other information.

“The Milford police, after securing Wayne, did a sweep of the house to determine if there was anyone else present. While checking an upstairs bedroom, Detective [Arthur] Huggins saw two small blue bags on a dresser, which he recognized from his training and experience as bags often used in packaging crack cocaine. Based on his observations, the Milford police applied for a search warrant for 33 Austin Road. A subsequent search of the house by warrant resulted in the seizure of a number of items, such as marijuana seeds and stems, cash, a loaded shotgun, a digital scale and other items of what could be identified as drug paraphernalia. The defendant was later arrested as a result of the search.”

In concluding that the search and seizure were warranted under the emergency doctrine exception to the warrant requirement, the court specifically cited to the following facts that were available to the police on August 11, 2005: “The person who started the chain of events, Wayne, was known to police as someone who had prior arrests involving weapons and drugs; Wayne was observed by . . . Rahn driving a vehicle with an expired license plate that belonged to another vehicle; Wayne waited until . . . Rahn was on foot approaching his vehicle to suddenly drive away at a. high rate of speed; [u]pon entering Interstate 95 and maintaining a high rate of speed, Wayne recklessly crossed all lanes of traffic and continued his attempt to elude capture by driving in the left breakdown lane; [although Wayne lived at 6 Shagbark Lane in Milford, he drove into the driveway of a house located at 33 Austin Road which was miles away from Shagbark Lane; [t]he police found the Ford Probe backed into the driveway at 33 Austin Road so that the license plate could not be observed from the street; [witnesses reported to the police that Wayne removed the license plate from the Ford Probe and entered the 33 Austin Road house; [w]hen police arrived at the house, Wayne would not respond to their calls to come outside; [w]hen he surrendered to police, Wayne volunteered little information about the house or who lived there other than that ‘a friend’ lived there and that there was no one in the house; [b]y checking the mail in the mailbox, police determined that at least three people resided at that address and [that] Wayne was not one of them.” The court further found that “[t]he police witnesses readily admitted that the perimeter of the house was secured when they made the decision to check the house. The police, however, could not guarantee that there was anyone else inside the house or [that] Wayne had encountered anyone when he entered and remained in the house. The police also did not know if Wayne had made a decision to enter this particular house before doing so or if he had randomly selected it.”

On the basis of these findings, the court concluded that “Wayne’s furtive and desperate efforts to elude capture by the Milford police and his choice of picking 33 Austin Road to do so provided the framework for meeting the test of reasonableness that is needed to allow an exception to the warrant requirement.” (Internal quotation marks omitted.)

On March 7, 2007, the defendant entered a plea of nolo contendere, conditioned on his right to appeal from the court’s denial of his motion to suppress. The court accepted the defendant’s plea and determined that its denial of the motion to suppress was dispositive of the case. On June 18, 2007, the court sentenced the defendant to five years incarceration, execution suspended, followed by three years of probation. This appeal followed.

“Well known federal and state constitutional principles govern the exclusion of evidence derived from a warrantless entry into a home. The fourth amendment to the United States constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Entry by the government into a person’s home, is the chief evil against which the wording of the Fourth Amendment is directed. . . . [Warrantless searches and seizures inside a home, are presumptively unreasonable . . . and the state bears the burden of showing that an exception to the warrant requirement exists.” (Citations omitted; internal quotation marks omitted.) State v. Geisler, 222 Conn. 672, 681-82, 610 A.2d 1225 (1992).

“The terms exigent circumstances and emergency doctrine are often used interchangeably when discussing warrantless entries into a home. The term exigent circumstances, however, generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. . . . The emergency exception refers to another type of warrantless entry that evolves outside the context of a criminal investigation and does not involve probable cause as a prerequisite for the making of an arrest or the search for and seizure of evidence.” (Citations omitted; internal quotation marks omitted.) State v. Klauss, 19 Conn. App. 296, 300, 562 A.2d 558 (1989).

The defendant challenges the court’s conclusion that the emergency doctrine applied to the circumstances of this case. Although the court did not hold that the exigent circumstances exception to the warrant rule applied in this case, the defendant also argues that the warrantless search of his home was not legally permissible under that principle. We address each claim in turn.

I

The defendant first claims that the court improperly concluded that the entry into his home fell within the emergency doctrine exception to the warrant requirement. The defendant argues that the evidence did not permit a finding that an officer would reasonably believe that a warrantless entry was necessary to assist a person in need of immediate aid. We agree.

The emergency doctrine is one of the recognized exceptions to the federal constitutional requirement that searches and seizures be conducted pursuant to a warrant. See Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). “[T]he fourth amendment does not bar police officers, when responding to emergencies, from making warrantless entries into premises and warrantless searches when they reasonably believe that aperson within is in need of immediate aid. . . . The extent of the search is limited, involving ‘a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises.’ . . . The police may seize any evidence that is in plain view during the course of the search pursuant to the legitimate emergency activities. . . . Such a search is strictly circumscribed by the emergency which serves to justify it . . . and cannot be used to support a general exploratory search.” (Citations omitted.) State v. Magnano, 204 Conn. 259, 266, 528 A.2d 760 (1987). “[G]iven the rationale for this very limited exception, the state actors making the search must have reason to believe that life or limb is in immediate jeopardy and that the intrusion is reasonably necessary to alleviate the threat.” (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 691.

“The state bears the burden of demonstrating that a warrantless entry falls within the emergency exception. ... An objective test is employed to determine the reasonableness of a police officer’s belief that an emergency situation necessitates a warrantless intrusion into the home. . . . [The police] must have valid reasons for the belief that an emergency exception exists, a belief that must be grounded in empirical facts rather than subjective feelings .... The test is not whether the officers actually believed that an emergency existed, but whether a reasonable officer would have believed that such an emergency existed. . . . The reasonableness of a police officer’s determination that an emergency exists is evaluated on the basis of facts known at the time of entry.” (Citations omitted; internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 142-43, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).

“[T]he emergency doctrine is rooted in the community caretaking function of the police rather than its criminal investigatory function. We acknowledge that the community caretaking function of the police is a necessary one in our society. [I]t must be recognized that the emergency doctrine serves an exceedingly useful purpose. Without it, the police would be helpless to save life and property, and could lose valuable time especially during the initial phase of a criminal investigation. . . . Constitutional guarantees of privacy and sanctions against their transgression do not exist in a vacuum but must yield to paramount concerns for human life and the legitimate need of society to protect and preserve life . . . .” (Internal quotation marks omitted.) Id., 143.

“Under the exclusionary rule, evidence must be suppressed if it is found to be the fruit of prior police illegality. . . . [I]n reviewing a trial court’s ruling on the emergency doctrine, subordinate factual findings will not be disturbed unless clearly erroneous and the trial court’s legal conclusion regarding the applicability of the emergency doctrine in light of these facts will be reviewed de novo. . . . Conclusions drawn from [the] underlying facts must be legal and logical. . . . We must determine, therefore, whether, on the basis of the facts found by the trial court, the court properly concluded that it was objectively reasonable for the police to believe that an emergency situation existed [to justify the entry].” (Citations omitted; internal quotation marks omitted.) Id., 141-42. Thus, we review the “applicability of the emergency doctrine . . . de novo . . . based upon the subordinate facts found by the trial court, to determine whether an emergency existed that would justify the warrantless entry into the dwelling.” State v. Geisler, supra, 222 Conn. 693.

At the suppression hearing, Huggins testified that he did not know if anyone else was inside the defendant’s house but was concerned about the possibility that someone might be injured and in need of assistance. By way of explanation for the entry, Huggins suggested that Wayne’s illegal entry of the home insinuated a burglary and the possibility that someone was injured. Before Huggins entered, however, Wayne indicated that no one else was in the house, and he indicated that his friend, the defendant, lived there. As corroboration, Wayne provided the defendant’s name, which was consistent with the information in the possession of the officers. On this basis, there was no indication that Wayne’s entry into the house was illegal. In sum, there is no evidence in the record to indicate that the officers ever had any reason to believe that there was anybody inside the house in immediate danger or in need of aid. A mere concern that someone might be inside and might be in need of immediate assistance does not warrant police intrusion into a private dwelling under the emergency doctrine. Thus, the police were not justified in entering the defendant’s house pursuant to the emergency exception.

II

The defendant also claims that exigent circumstances did not exist for a warrantless entiy of his home. We agree.

As with the emergency doctrine, the applicability of the exigent circumstances doctrine is subject to de novo review. State v. Aviles, 277 Conn. 281, 292, 891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108, 166 L. Ed. 2d 69 (2006). “The term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization. ... It is well established in Connecticut, however, that the test for the application of the doctrine is objective, not subjective, and looks to the totality of the circumstances. . . . Specifically, [t]he test of exigent circumstances ... is whether, under the totality of the circumstances, the police had reasonable grounds to believe that if an immediate arrest were not made, the accused would be able to destroy evidence, flee or otherwise avoid capture, or might, during the time necessary to procure a warrant, endanger the safety or property of others. This is an objective test; its preeminent criterion is what a reasonable, well-trained police officer would believe, not what the arresting officer actually did believe.” (Citations omitted; internal quotation marks omitted.) Id., 293.

Here, when the police entered the defendant’s home, Wayne was already in custody. There was, therefore, no risk that he could flee or that he posed a threat to public safety. Although the state contends that the officers believed that a felony, namely, a burglary, had been committed or was in progress, and that others may have been hiding in the house, there is no basis in the record to support this contention. As noted, there was no evidence that anyone else was in the house. Furthermore, because Wayne had indicated that the defendant, a friend of his, resided there, there is no indication that he did not have permission to be in the house. Additionally, because the police were pursuing Wayne for traffic violations, it is difficult to imagine what evidence relating to those violations might have been subject to destruction if the officers had not entered the premises at that time. Accordingly, the exigent circumstances doctrine is not applicable to the case at hand.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion to suppress and for further proceedings in accordance with the law.

In this opinion the other judges concurred.

       See General Statutes § 54-94a; Practice Book § 61-6.

       The facts of this case are readily distinguishable from those in State v. Ortiz, 95 Conn. App. 69, 895 A.2d 834, cert. denied, 280 Conn. 903, 907 A.2d 94 (2006), in which this court upheld a warrantless search under the emergency doctrine. In Ortiz, the officers were responding to a burglar alarm and, while investigating, came upon a bathroom door, which was locked from the inside, indicating that someone might be inside. Id., 72-73. Here, there was no support for an objective belief that a burglary had taken place and, therefore, that a victim of a crime was inside the house in need of assistance.