author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. DAVID GRENIER
    (AC 18211)
    Foti, Schaller and Daly, Js.
    Argued May 27
    officially released November 9, 1999

      Moira L. Buckley, with whom, on the brief, was F. Mac Buckley, for the appellant (defendant).

      Lawrence J. Tytla, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and John P. Gravalec-Pannone, former senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, David Grenier, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1993) § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. On appeal, the defendant claims that the trial court improperly (1) permitted the testimony of certain expert witnesses regarding the credibility of the victim, (2) admitted constancy of accusation evidence, (3) declined to conduct an in camera inspection of the mental health records of the victim and (4) determined that there was sufficient evidence to support the jury’s verdict of guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, S, was bom on November 11, 1989. In 1993, the defendant lived with his mother, who is S’s maternal grandmother. The defendant is the half-brother of S’s mother. Also living with the defendant and his mother were S’s great-grandmother and great-aunt. The defendant occupied two rooms in the house, one upstairs and one downstairs. In a downstairs room, known as “David’s room,” the defendant kept expensive electronic equipment and did not permit S’s cousins of similar age in the room. S, however, was allowed into the defendant’s room.

S and her mother visited the house at least every other weekend. During their visits, S’s mother sometimes ran errands and left S at the house while the defendant was home. During a visit in the summer of 1993, S disclosed to her grandmother that the defendant had licked her vagina. S’s grandmother repeated to her daughter, S’s mother, what S had told her. Later that day, when S’s father came home, S’s mother told him about S’s disclosure. Sometime thereafter, S disclosed to both of her parents that “Uncle David” had sexually assaulted her in his room.

Rather than call the police, S’s parents wanted to handle the incident as a family matter. A family meeting was held in September, 1993, at the home of S’s parents at which the defendant, the defendant’s brother and S’s grandmother were present. During the meeting, S’s father accused the defendant of sexually assaulting his daughter. The defendant was upset about the allegations but offered to pay for S’s counseling if she needed any.

Following the summer of 1993, S’s parents observed S acting in a sexually inappropriate manner for her age. In first grade, S began to see a counselor because of her behavior in school, where she would act inappropriately and talk about having sex. On February 6, 1996, S was evaluated at the Northeastern Connecticut Sexual Assault Crisis Services in Willimantic, where she told Kimberly Herwerth, a certified child counselor, that the defendant had had sex with her. Herwerth contacted the department of children and families and referred S to Deborah McGeehan, a clinical psychologist, for play therapy. During one of their play sessions, S told McGee-han that the defendant had sexually abused her. McGee-han testified that S’s behavior during their play sessions was consistent with that of a child who had been sexually abused.

At trial, the defendant testified that he had been falsely accused. He testified that in the beginning of 1993, S had a tantrum in front of him after he repeatedly told her to stop poking him with a toy. The defendant also testified that in early 1993, he and S’s father had a serious work-related argument that resulted in the defendant leaving his employment with S’s father. The defendant maintained that he did not commit the acts with which he was charged.

On November 12, 1997, the jury returned a verdict of guilty on both counts. The court sentenced the defendant to a total effective sentence of eight years imprisonment, suspended after four years, and ten year's probation. This appeal followed. Additional facts will be set forth as they become relevant in the context of the defendant’s claims.

I

The defendant first claims that he was denied due process of law when the trial court improperly allowed the state’s expert witnesses, Herwerth and McGeehan, to testify on the ultimate issue of the case, S’s credibility. We conclude that the admission of such testimony was not harmful to the defendant and does not warrant a new trial.

The following additional facts are necessary to the resolution of this issue. On direct examination by the state, Herwerth testified that she was a certified child counselor, advocate and interviewer who specialized in child sexual abuse. Herwerth stated that she had received extensive training in the areas of child sexual abuse, interviewing techniques and child development issues. She further testified that she had treated more than 900 children who complained of being victims of sexual assault or abuse.

During her testimony, Herwerth explained the nature of her relationship with S. In response to the state’s question whether S had provided her with any details regarding the sexual assault, Herwerth testified that S had and that “[her] statements were very credible.” The defendant’s objection to this testimony was overruled. The state went on to ask Herwerth what the term play therapy meant, and Herwerth answered that S was referred to play therapy so that she could “understand what has happened to her . . . ,” Although the defendant now argues that this statement was improper, he did not object to it at trial.

During cross-examination, after the jury was excused from the courtroom, the court reviewed the contents of a bench conference that had occurred prior to Herwerth’s testimony in which defense counsel had stated that he would “object to [expert] testimony on the basis of credibility and ultimate issue.” Thereafter, defense counsel moved to strike all of Herwerth’s testimony and requested a curative instruction on the ground that her testimony that “[S’s] statements were very credible” went to the ultimate issue and usurped the fact finder’s function. The court denied the defendant’s motion to strike, but directed the parties to draft proposed curative instructions. The defendant failed to provide the court with a proposed instruction as requested.

The next expert witness to testify for the state was McGeehan. McGeehan testified that she was a licensed clinical psychologist who specialized in working with children who have been sexually abused. McGeehan stated that she had treated approximately 200 children who complained of being the victims of sexual assault or abuse.

During her testimony, McGeehan described the different types of behavioral characteristics often exhibited by children who complain of being the victims of sexual abuse. The state then asked McGeehan for the basis of Herwerth’s referral of S to her. McGeehan replied that Herwerth had referred S to her because Herwerth felt that S “needed to recover from the abuse.” Although the defendant now argues that this statement was improper, he did not object when it was made. When the state next asked McGeehan what she was treating S for, McGeehan responded that she was treating S for, inter alia, “the trauma of the abuse that she experienced.” The defendant’s objection to this testimony was overruled.

The defendant argues that it was improper for the trial court to permit these four statements by the two expert witnesses because the truthfulness of S’s claims was the ultimate issue to be determined by the trier of fact. We will address the defendant’s unpreserved claims first.

A

With regard to Herwerth’s answer that S was referred to play therapy so that she could “understand what has happened to her” and McGeehan’s reply that Herwerth felt that S “needed to recover from the abuse,” the defendant failed to object to these statements at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or, alternatively, under the plain error doctrine. We conclude that the defendant cannot prevail under either of these standards.

While the record before us is adequate for review, the defendant has failed to meet the second prong of Golding because his claim of evidentiary impropriety is not one of constitutional magnitude. “[T]he admissibility of expert testimony is a matter of state evidentiary law that, in the absence of timely objection, does not warrant appellate review under [Golding] . . . because it does not, per se, raise a question of constitutional significance.” (Citation omitted.) State v. Joyner, 225 Conn. 450, 480, 625 A.2d 791 (1993); State v. Vilalastra, 207 Conn. 35, 46, 540 A.2d 42 (1988); State v. Cardany, 35 Conn. App. 728, 740, 646 A.2d 291, cert. denied, 231 Conn. 942, 653 A.2d 823 (1994). “Moreover, we have declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact.” State v. Campbell, 225 Conn. 650, 657, 626 A.2d 287 (1993); State v. Cardany, supra, 740.

Simply put, the defendant “has put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Vilalastra, supra, 207 Conn. 46. “[I]t would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right. ” (Internal quotation marks omitted.) State v. Dash, 242 Conn. 143, 152, 698 A.2d 297 (1997). Because the defendant has failed to allege a claim of constitutional magnitude, we decline to afford review under Golding.

We next consider whether this issue is entitled to plain error review. “Generally, where a claimed error of a nonconstitutional nature is not brought to the attention of the trial court, appellate review of that claim is available only if it constitutes plain error. ... To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Internal quotation marks omitted.) State v. Connelly, 46 Conn. App. 486, 511, 700 A.2d 694 (1997), cert. denied, 244 Conn. 907, 908, 713 A.2d 829, cert. denied, 525 U.S. 907, 119 S. Ct. 245, 142 L. Ed. 2d 201 (1998). On the basis of our review of the record, we conclude that the admission of these statements by the expert witnesses was not harmful, and did not affect the fairness and integrity of, or the public confidence in, the judicial proceedings and, therefore, did not constitute plain error.

B

The defendant properly preserved his claims with regard to the remaining two statements made by the expert witnesses and, therefore, is entitled to review. The defendant asserts that these statements were improper because they involved, either directly or indirectly, assertions by the witnesses that validated the truthfulness of S’s testimony.

“The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions.” (Internal quotation marks omitted.) State v. Spigarolo, 210 Conn. 359, 376, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). “The court’s decision is not to be disturbed unless [its] discretion has been abused, or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). “Generally, expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . State v. Borrelli, 227 Conn. 153, 165, 629 A.2d 1105 (1993) An expert witness [however] ordinarily may not express an opinion on an ultimate issue of fact, which must be decided by the trier of fact.” (Citations omitted; internal quotation marks omitted.) State v. Smith, 35 Conn. App. 51, 69-70, 644 A.2d 923 (1994), quoting State v. Vilalas-tra, supra, 207 Conn. 41.

“The determination of the credibility of a witness is solely the function of the jury. State v. Smith, 200 Conn. 544, 550, 512 A.2d 884 (1986); State v. Robins, 34 Conn. App. 694, 706, 643 A.2d 881 [(1994), aff'd, 233 Conn. 527, 660 A.2d 738 (1995)]. It is the trier of fact which determines the credibility of witnesses and the weight to be accorded their testimony. State v. Carter, 196 Conn. 36, 45, 490 A.2d 1000 (1985). Expert witnesses cannot be permitted to invade the province of the jury by testifying as to the credibility of a particular witness or the truthfulness of a particular witness’ claims. See State v. Freeney, 228 Conn. 582, 592, 637 A.2d 1088 (1994), citing State v. Borrelli, supra, 227 Conn. 174; State v. Spigarolo, supra, 210 Conn. 379-80.

“In cases that involve allegations of sexual abuse of children, our Supreme Court has held that expert testimony of reactions and behaviors common to victims of sexual abuse is admissible. State v. Spigarolo, supra, 210 Conn. 380. Such evidence assists a jury in its determination of the victim’s credibility by explaining the typical consequences of the trauma of sexual abuse on a child. Id., 378. It is not permissible, however, for an expert to testify further to her opinion of whether a victim in a particular case is credible or that a particular victim’s claims are truthful. Id., 379; In re Noel M., 23 Conn. App. 410, 423, 580 A.2d 996 (1990).” (Internal quotation marks omitted.) State v. Butler, 36 Conn. App. 525, 530-31, 651 A.2d 1306 (1995).

1

The defendant claims that Herwerth’s statement that “[S’s] statements were very credible” was a direct assertion that validated the truthfulness of S’s testimony. We agree.

The defendant argues that the present case is controlled by our decision in State v. Butler, supra, 36 Conn. App. 525. In Butler, the state presented an expert, Carol L. Cestaro, a social worker, who had treated a number of adolescents with a history of sexual abuse, including the victim in that case. Id., 528. Cestaro was asked by the state’s attorney whether she had formed an opinion as to whether the victim’s story was truthful or fabricated. Id., 529. Over the defendant’s objection, “Cestaro was permitted to testify that she ‘never got the sense that [the victim] was fabricating or making up the story,’ and that she felt that what [the victim] was saying was true.” Id., 531. We concluded that the trial court had abused its discretion because such testimony involved an assertion by an expert witness that validated the truthfulness of the victim. Id.

Although the state conceded at oral argument that Herwerth’s statement was not proper, it argues that this case is distinguishable from Butler because the state’s attorney never posed such an opinion question to any of the state’s expert witnesses. The distinction the state seeks to draw is one without a difference. The true gravamen of the claimed impropriety is not in the questions asked, but rather that such testimony would validate S’s veracity, thus usurping the jury’s function of assessing the credibility of the witnesses. See id.

Because Herwerth’s statement clearly involved a direct assertion that validated the truthfulness of S’s testimony, we agree with the defendant that Butler is controlling. Accordingly, we conclude that the admission of Herwerth’s statement was an abuse of the court’s discretion.

2

The defendant next claims that McGeehan’s statement that her treatment of S was for “the trauma of the abuse that [S] experienced” was an indirect assertion that validated the truthfulness of S’s testimony. Specifically, the defendant argues that McGeehan’s statement was a conclusory opinion that had the same effect as if McGeehan had testified that she believed in S’s truthfulness. We agree.

This case is similar to our decision is State v. Apostle, 8 Conn. App. 216, 232-33, 512 A.2d 947 (1986), in which we held that the trial court abused its discretion by admitting an expert witness’ testimony that, in his opinion, the sexual intercourse between the victim and the defendant was nonconsensual. We stated that “[t]he general rule of law in such cases is that when [an expert witness] bases a conclusion in part upon statements made to him by the victim, he is in fact making a determination about the credibility of the [victim]. . . . Such credibility determinations are within the sole province of the jury.” (Citation omitted.) Id., 233. Although Apostle dealt with a physician’s opinion that was based on his physical examination of the victim, the victim’s mental state at the time of the examination and the history of the incident as told to him by the victim, we see no reason not to apply the general rule to the facts of this case.

Here, McGeehan had no firsthand knowledge that S had been sexually abused. She did not witness any of the acts of the sexual assault. Any information acquired by McGeehan regarding the sexual abuse was obtained through conversations with other persons, namely S and Herwerth, who in turn had obtained her information from S. McGeehan’s conclusory statement, therefore, was based in part on statements made to her by S.

While McGeehan’s statement fell short of rendering an opinion on S’s credibility, there is little difference in the ultimate result. Although her testimony was not a literal statement of her belief in S’s truthfulness, such testimony had the same substantive import and could be perceived as a conclusive opinion that S had testified truthfully. See id.; see also State v. Haslam, 663 A.2d 902, 906 (R.I. 1995). Accordingly, we conclude that the admission of McGeehan’s statement was an abuse of the court’s discretion.

3

Our conclusion that the trial court abused its discretion in admitting the improper evidence does not, however, end our inquiry. “Where an evidentiary ruling has been found to be incorrect, but the improper ruling, as here, does not implicate a constitutional right of the defendant, the burden rests on the defendant to establish the harmfulness of the claimed impropriety. State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994); State v. Merritt, 36 Conn. App. 76, 92, 647 A.2d 1021 [(1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995)].

“In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. State v. Chapman, supra, 229 Conn. 544. The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result? State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); see also State v. DePastino, 228 Conn. 552, 567, 638 A.2d 578 (1994).” (Internal quotation marks omitted.) State v. Butler, supra, 36 Conn. App. 531-32.

Although this case turned on the issue of S’s credibility and which version of the facts the jury chose to believe, we cannot conclude that the experts’ testimony, which vouched for S’s truthfulness, affected the outcome of the trial and denied the defendant his right to a fair trial. At the outset, we note that it is important to view these statements in the context in which the questions were asked and answered. The improper statements made were not given in response to questions specifically designed to the expert’s opinion as to whether S was truthful. Compare id., 529 (expert witness asked if she had formed opinion whether victim’s story was truthful or fabrication). Therefore, the validating effect that these statements might have had on S’s credibility was limited. Additionally, we note that the improper statements were not repeated during the trial, and the state’s attorney did not emphasize or rely on the specific remarks in his closing argument.

Furthermore, our review of the jury instructions in this case reveals that the court specifically attempted to address the defendant’s concerns regarding the testimony. The court instructed the jury that “[t]he veracity of a witness is to be decided by the jury. . . . [0]ur law does not permit another witness to give an opinion on the truthfulness of still another witness and that is true in this case. So, the testimony of Herwerth [and] McGeehan . . . was not presented so [that] any one of them could tell you [their] opinion of [S’s] truthfulness. To the extent any one of these . . . witnesses may have expressed her own opinion of [S’s] truthfulness, you must not consider that opinion in coming to your decision.” The court then informed the jury that the testimony given by the expert witnesses was presented to furnish them with guidance regarding sexual assault allegations. The court also instructed the jury that it could decide whether to use the substance of the experts’ testimony, aside from their opinions as to veracity, in deciding whether to believe S’s testimony.

The court’s instructions clearly indicated to the jury that the jurors were the ultimate arbiter of the veracity of the witnesses and that they must not consider any expert witness’ opinion regarding S’s truthfulness. We note that a jury is presumed to follow the instructions given by the court. State v. Teti, 50 Conn. App. 34, 45, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998). Therefore, in the absence of evidence to the contrary; see id.; we must presume that the juiy followed the court’s instructions. The cautionary language set forth in the instruction convinces us that there was no reasonable probability that the improper action of the court in admitting the testimony was so prejudicial as to deprive the defendant of a fair trial.

II

The defendant next claims that the trial court improperly admitted certain constancy of accusation evidence by Herwerth that deprived him of his rights to confrontation and due process. We do not agree.

The following additional facts are necessary to the determination of this issue. During direct examination, Herwerth testified about some of the details of the assault provided to her by S. The defendant did not object at trial, but now claims that these various statements “[were] all hearsay statements that should not have been admitted under the constancy of accusation doctrine because they exceeded the limits of that doctrine as delineated by [State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc)].” Because the defendant failed to raise this claim at trial, he now seeks review under State v. Golding, supra, 213 Conn. 239-40, or, alternatively, under the plain error doctrine. We conclude that he cannot prevail under either of these standards.

While the record before us is adequate for review, the defendant has failed to meet the second prong of Golding because his claim is not one of constitutional magnitude. Unpreserved hearsay claims do not automatically invoke constitutional rights to confrontation. State v. Veal, 201 Conn. 368, 376, 517 A.2d 615 (1986). The constancy of accusation doctrine is an exception to the hearsay rule and has existed in Connecticut since 1830. State v. Eged, 48 Conn. App. 283, 288, 709 A.2d 39 (1998). “In Connecticut, [however] the doctrine of constancy of accusation does not violate an accused’s state and federal constitutional rights to confront witnesses. State v. Troupe, [supra, 237 Conn. 293].” State v. Eged, supra, 288; see State v. Lindstrom, 46 Conn. App. 810, 816, 702 A.2d 410, cert. denied, 243 Conn. 947, 704 A.2d 802 (1997) (“[o]ur Supreme Court has held that the constancy of accusation doctrine does not violate the right to confrontation”); State v. Jones, 44 Conn. App. 476, 487, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997) (evidentiary claim not of constitutional magnitude and therefore not subject to Golding review). The defendant “has put a constitutional tag on a nonconstitutional evidentiary ruling.” (Internal quotation marks omitted.) State v. Vilalastra, supra, 207 Conn. 46. Because the defendant has failed to allege a claim of constitutional magnitude, we decline to afford review under Golding.

Alternatively, the defendant urges us to review his claim under the plain error doctrine. Our review of the record indicates that the defendant had ample opportunity to cross-examine both Herwerth and S concerning the additional evidence provided by Herwerth. Furthermore, the court, during the trial, twice cautioned the jury that it was to use S’s out-of-court statements regarding the incident only for purposes of determining the credibility of S’s in-court testimony regarding the events and not for the purpose of determining the defendant’s guilt. Additionally, during its final instruction, the court properly charged the jury on the law concerning constancy of accusation evidence. On the basis of our review of the record, we conclude that the admission of Herwerth’s testimony did not affect the fairness and integrity of, nor the public confidence in, the judicial proceedings and, therefore, did not constitute plain error.

Ill

The defendant’s third claim is that the trial court improperly declined to conduct an in camera inspection of S’s mental health records. Specifically, the defendant argues that he had a due process right under the fourteenth amendment to the United States constitution to an in camera inspection of S’s psychiatric records to determine whether exculpatory information existed. We do not agree.

The following facts provide the necessary background to the disposition of this issue. Prior to trial, the defendant made a motion requesting the court to conduct an in camera inspection of S’s psychiatric records pursuant to State v. D'Ambrosio, 212 Conn. 50, 58, 561 A.2d 422 (1989), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963 (1990) (in camera inspection when record may contain material needed to attack credibility of witness), and State v. Leduc, 40 Conn. App. 233, 246-47, 670 A.2d 1309 (1996) (in camera inspection when record may contain exculpatory material). The court subsequently held a pretrial hearing to allow the defendant to make the necessary preliminary showing to obtain an in camera review of the records.

At the hearing, the defendant called only one witness, McGeehan, to testily in support of his motion. In response to questions from defense counsel and the court, McGeehan stated that the records she kept in the course of her meetings with S did not contain any indication that S had a mental abnormality that might reflect on her credibility regarding the accusations about the defendant. Thereafter, defense counsel ended his questioning, and stated that he was satisfied with the scope of the inquiry and that he believed there were no reports that would be material to the defense.

After being reminded by the court that Leduc addressed issues different from those in D Ambrosio, defense counsel resumed his questioning of McGeehan. In response to further questioning by defense counsel and the court about whether her records might contain any exculpatory material, McGeehan testified that she did not think that there was any such material in her records. At this point, defense counsel agreed that he had not made a showing that would require the court to examine S’s records in camera and thereafter stated that there was no requirement that the records be examined. After being asked repeatedly by the court whether defense counsel wanted to address any further questions to McGeehan or wanted the court to do anything further regarding his motion, the defendant effectively withdrew his motion for an in camera inspection of S’s records.

The defendant now claims, however, that the court should have conducted the inspection. Because the defendant failed to preserve this claim properly at trial, he seeks review under State v. Golding, supra, 213 Conn. 239-40, or, alternatively, under the plain error doctrine. The situation here is in the nature of induced error. Although it is the general rule that a party who induces error cannot be heard to complain about such error; see State v. Edwards, 39 Conn. App. 242, 251, 665 A.2d 611, cert. denied, 235 Conn. 924, 925, 666 A.2d 1186 (1995); unpreserved claims of constitutional magnitude, even when induced by the appellant, may be reviewed pursuant to Golding. See State v. Boyd, 36 Conn. App. 516, 521, 651 A.2d 1313, cert. denied, 232 Conn. 912, 654 A.2d 356, cert. denied, 516 U.S. 828, 116 S. Ct. 98, 133 L. Ed. 2d 53 (1995).

The record before us is adequate for review and the defendant’s claim is one of constitutional magnitude. See State v. Leduc, supra, 40 Conn. App. 249. Therefore, we will review the defendant’s unpreserved claim. Even though we review this claim under the third prong of Golding, we note that “[w]hen the principal participant in the trial whose function it is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right and a fair trial ... is seriously undercut. . . . State v. Safford, 22 Conn. App. 531, 539, 578 A.2d 152 [cert. denied, 216 Conn. 823, 581 A.2d 1057] (1990); State v. Chapman 16 Conn. App. 38, 48, 546 A.2d 929 (1988); State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Appellate review of the claim without the defendant’s ever having brought it to the attention of the trial court would be tantamount to an ambuscade of the trial court. See State v. Safford, supra [539].” (Internal quotation marks omitted.) State v. Johnson, 26 Conn. App. 433, 438, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

In State v. Leduc, supra, 40 Conn. App. 249-50, we concluded that a defendant has a due process right, upon request and after meeting a requisite threshold, to an in camera inspection of qualified confidential records. Here, because the defendant withdrew his motion, the court never had the opportunity to determine whether the defendant made the necessary preliminary showing for such an inspection. The defendant argues, however, that the court should have, sua sponte, ordered an in camera inspection of the records on the basis of McGeehan’s testimony that she did not think there was exculpatory material in them. The defendant offers us no authority or reason for imposing such a duty on the court. To impose such a duty would be an unorthodox application olLeduc in which we required the defendant to request and meet the requisite threshold before obtaining an in camera inspection of qualified confidential records. We decline the defendant’s invitation to impose such a duty on the court in the present case. We conclude, therefore, that the defendant was not deprived of a fair trial and may not prevail under Golding because he has not demonstrated that an error of constitutional magnitude clearly exists. Similarly, we conclude, on the basis of on our review of the record, that the claimed error did not affect the fairness and integrity of, nor the public confidence in, the judicial proceedings and, therefore, did not constitute plain error.

IV

The defendant’s final claim is that the evidence was insufficient to support the jury’s guilty verdict because S did not make an in-court identification of the defendant as the perpetrator of the sexual assault. Therefore, the defendant claims, the jury could not find him guilty beyond a reasonable doubt. We do not agree.

“We utilize a two-part analysis when reviewing a challenge to the sufficiency of evidence. . . . First, we review the evidence in the light most favorable to sustaining the verdict. . . . We then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence establishes guilt beyond a reasonable doubt. ... In the review process, the probative force of the evidence is not diminished if it consists in whole or part of evidence that is circumstantial rather than direct. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact-finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 563, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

During direct examination by the state, S, who was seven years old at the time of the trial, testified that her “Uncle David” had sexually assaulted her at his house. When shown a photograph of the house where the defendant lived, S identified it as the defendant’s house, where the abuse occurred. S also testified that her “grandma Mary” lived in the same house as the defendant. Upon further questioning by the state, S specifically identified the downstairs room in that house as being the location where the defendant had abused her. S testified that the downstairs room was the defendant’s room. When asked whether she saw “Uncle David” anywhere in the courtroom, however, S gave a negative response.

Although S was able to identify the photographs of the house, the room that the defendant lived in and where the abuse occurred, the defendant argues that this is inconsistent with the fact that she could not identify her abuser in court. The defendant claims, therefore, that S’s failure to identify her abuser in court severely undercut the reliability of her testimony and identification of the photograph. The defendant argues that inasmuch as S’s testimony was unreliable, for the jury to have concluded as it did, it must have impermis-sibly relied substantively on the testimony of the constancy of accusation witnesses. Because constancy of accusation testimony cannot be used to prove the truth of the matter asserted; see State v. Troupe, supra, 237 Conn. 304; the defendant claims that there is insufficient evidence in the record to establish beyond a reasonable doubt that he was the perpetrator of the assault. The defendant’s argument is without merit.

Although S testified that she did not see her assailant in the courtroom, the record indicates that the defendant had lost weight and changed his hairstyle since S had last seen him three to four years earlier. Additionally, the state presented testimony from Rose Niedz-wicki, the director of the sexual abuse services at the Child Guidance Clinic of Southeastern Connecticut. Niedzwicki testified that she had been with the clinic for eleven years and that during those years she had treated approximately 1000 children who have complained of being the victims of sexual assault or abuse. During her testimony, Niedzwicki explained that children in age similar to S characteristically are very poor at identifying their abusers. Niedzwicki also gave several reasons why such children are very poor at identifying their abusers.

“As to any conflicting testimony provided by the state’s witnesses, we follow the well established rule that we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . State v. Mejia, [233 Conn. 215, 224, 658 A.2d 571 (1995)]. . . . State v. James, 237 Conn. 390, 435-36, 678 A.2d 1338 (1996). . . . State v. Gould, [241 Conn. 1, 6-7, 695 A.2d 1022 (1997)]. When conflicting testimony is presented, the jury may credit the testimony it finds believable. See State v. Person, 236 Conn. 342, 347, 673 A.2d 463 (1996).” (Internal quotation marks omitted.) State v. Edwards, 247 Conn. 318, 323, 721 A.2d 519 (1998). Therefore, “[t]he [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

In addition to S’s testimony, which the trier of fact was entitled to credit, the jury heard testimony from several other witnesses, all of whom testified that in 1993 the defendant lived at the house depicted in the photograph previously identified by S and that the downstairs room was in fact the defendant’s room. Additionally, the defendant himself testified that the first floor room, which was identified by S as the room where the sexual assault had occurred, was his room. Although there was testimony that S had two uncles named David, S’s mother testified that S’s other Uncle David, who was not actually an uncle but rather a paternal cousin, lived in Franklin and had never lived in the house depicted in the photograph. The record reflects that in 1993, there was no one else by the name of David living at the house in question.

After construing the evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was the perpetrator and could have found him guilty beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 53a-70 (a) provides in relevant part: “A person is guilty oí sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age ....’'

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not. more than five hundred dollars or imprisoned not more than ten years or both.”

       The phrase used by S to describe the incident was that the defendant had licked her on her “heinie.” S’s mother testified that S would sometimes refer to her vagina as her heinie. At trial, S testified that “[Uncle David] touched [her private area] with his hands and his tongue.”

       The following colloquy took place:
      “[Assistant State’s Attorney]: And did [S] tell you that she had been the victim of sexual assault?
      “[Herwerth]: Yes. [S] told me that she had had sex.
      “[Assistant State’s Attorney]: And did she indicate who had done that to her?
      “[Herwerth]: Yes.
      “[Assistant State’s Attorney]: And who was that?
      “[Herwerth]: She told me her Uncle David.
      “[Assistant State’s Attorney]: Okay. And did she provide you with any details regarding this alleged sexual assault?
      “[Herwerth]: Yes. [S’sJ statements were,very credible. She used a lot of sensory detail.
      “[Defense Counsel]: Objection, Your Honor ....
      “The Court: All right. I’m going to allow it ... . Exception is noted.” (Emphasis added.)

       The following colloquy occurred:
      “[Herwerth]: The second to last session that. I had with [S] I recommended that she get involved in play therapy ....
      “[Assistant State’s Attorney]: And by play therapy, again for everyone’s benefit, what does that mean? What is the terminology as used in your business?
      “[Herwerth]: Well, my work with [S] went only as far as doing some crisis intervention counseling, and she was assessed as needing something more in depth and that would be a place where she could go and play, not necessarily talk about all of the things that, she has already disclosed, but talk about her feelings and play them out so that she could, understand what has happened to her and how she can appropriately handle this in the future.” (Emphasis added.)

       The following colloquy took place:
      “[Assistant State’s Attorney]: Doctor [McGeehan], have you had occasion to treat a patient by the name of [S]?
      “[McGeehan]: Yes, I have.
      “[Assistant State’s Attorney]: And was this as a result of a referral?
      “[McGeehan]: Yes, it was.
      “[Assistant State’s Attorney]: And who was the referral by?
      “[McGeehan]: The referral came through a woman by the name of Kim [Herwerth] at [Northeastern Connecticut Sexual Assault Crisis Services].
      “[Assistant State’s Attorney]: What was the basis of the referral?
      “[McGeehan]: There was a suspicion that [S] had been sexually abused and that [Herwerth] could not provide the long-term treatment she felt that [SJ needed to recover from the abuse.” (Emphasis added.)

       The following colloquy occurred:
      “[Assistant State’s Attorney]: And when did you start seeing [S]?
      “[McGeehan]: In April of 1996.
      “[Assistant State’s Attorney]: And to this day, today, do you continue to treat [S]?
      “[McGeehan]: Yes, I do.
      “[Assistant State’s Attorney]: And from the first time you saw her until today, approximately how many sessions have you had with [S]?
      “[McGeehan]: Approximately [twenty-five] sessions.
      “[Assistant State’s Attorney]: Okay. And what are you treating [S] for?
      “[McGeehan]: It’s a combination of her inappropriate behavior, which continues today. It has to do with sexual acting out with other children, comments of a sexual nature and also to treat the trauma of the abuse that she experienced.

      “[Defense Counsel]: Your Honor, I’m going to object to that as conclusory . . . (Emphasis added.)

       See footnote 5.

       See footnote fi.

       “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the st ate 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. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant [in] the particular circumstances.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).

       Prior to giving the jury instruction, the court noted for the record that it had given each counsel a copy of the proposed jury charge. The court informed both sides that it had tried to address the defendant’s concerns regarding Herwerth’s and McGeehan’s testimony. Defense counsel, having reviewed the proposed charge indicated that he did not have any suggestions, complaints or exceptions to the charge. Further, defense counsel agreed with the state’s attorney that the part of the charge that related to the expert’s testimony was fair and balanced.

       In addition to a violation of his federal rights to confrontation and due process, the defendant also alleges a violation of his rights under article first, § 8, of the constitution of Connecticut. Because he offers no separate analysis of this claim under the state constitution, we will not review it. See State v. Williams, 231 Conn. 235, 245 n.13, 645 A.2d 999 (1994).

       The following exchange t ook place bet ween the assistant state’s attorney and Herwerth:
      “[Assistant State’s Attorney]: When you talk about sensory details, what have you—
      “[Herwerth]: She talked about, things that were going on around her, and this is one of the things you look at; can they talk about their feelings, wlvat’s being said, who's there, where it took place, where other people were. [S] was able to talk about the television being on and a program. She talked about where she was at, what was said to her, where [the defendant’s] mother was, what [the defendant’s] mother said to her. She talked about feelings and used all of her own words in being able to describe things like ‘it tickled, [the defendant] thought I’d be scared, this was the first time'-, a lot of affectionate feelings.
      “[Assistant State’s Attorney]: And what was her demeanor like when she was saying these things to you?
      “[Herwerth]: She was very nonchalant. She got very silly at times, somewhat showing some embarrassment, but to her it was this thing that she learned and she made statements such as, ‘if I ever wanted to do it again, [the defendant] just told me to ask.’ ” (Emphasis added.)

       See footnote 10.

       The defendant does not claim a right to the inspection on the basis of his right to confrontation under the sixth amendment to the United States constitution.

       In response to the court’s inquiry as to whether “there [was] anything in the records which would be favorable to the defendant that the defendant would lilce the jury to hear that would have the tendency to make the jury have ... a reasonable doubt about [S’s] accusations,” McGeehan stated, “I don’t think there’s anything there that would do that.”

       The following exchange took place between the court and defense counsel:
      “The Court: Anything else, [defense counsel]?
      “[Defense Counsel]: No, Your Honor. . . .
      “The Court: Is there any further qtiestion to address to Ms. McGeehan under any claim that—preliminary to the defendant getting access to her records?
      “[Defense Counsel]: I think the appropriate inquiries have been made, Your Honor. . . .
      “The Court: Now is the time to do it. I don’t want any claim tomorrow, ‘Well, maybe if we asked her this, that or the other thing it might establish it.’
      “[Defense Counsel]: As I understand it, Your Honor, [McGeehan] has no knowledge or information with respect to anything that would suggest that there was something favorable to the defense that would come forth from the records that would exist ....
      “The Court: Do you want me to do anything further?
      “[Defense Counsel]: May I have a moment, Your Honor?
      “[Defense Counsel]: After discussion with my client, Your Honor, I don’t think we want to pursue the request that the records be brought in, given [MeGeehan’s] responses.”

       See footnote 10.

       We note that “[t]he jury may . . . consider other testimony of a witness that is unrelated to constancy of accusation as long as it does not fall within the category of hearsay. In other words, a witness who testifies in order to corroborate a victim’s accusations . . . may testily about other matters, and the jury is not precluded from considering this testimony.” State v. Leduc, supra, 40 Conn. App. 238.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    FLORENCE CUSANO, EXECUTRIX (ESTATE OF RICHARD CUSANO) v. BURGUNDY CHEVROLET, INC., ET AL.
    (AC 18212)
    O’Connell, C. J., and Landau and Sullivan, Js.
    Argued June 2
    officially released November 9, 1999

      Daniel P. Scapellati, with whom were Paul D. Meade and, on the brief, Lawrence L. Connelli, for the appellants (defendants).

      Michael J. Walsh, for the appellee (plaintiff).
   Opinion

SULLIVAN, J.

The defendants, Burgundy Chevrolet, Inc. (Chevrolet), and Ismael Velazquez, appeal following the trial court’s granting of the motion filed by the plaintiff, Florence Cusano, to open a judgment of nonsuit. The defendants claim that the court lacked the authority to open the judgment of nonsuit because the plaintiff failed to file the motion to open within the four month period set forth in General Statutes § 52-212a and Practice Book § 17-4 (a).1 We affirm the judgment of the trial court.

The following facts are relevant to the resolution of this appeal. On December 23,1990, Richard Cusano and Jose Romero were involved in a car accident resulting in their deaths. On August 26, 1991, the plaintiff executrix of the estate of Richard Cusano filed a wrongful death action against Chevrolet and Velazquez, the appointed representative of Romero’s estate.

On February 3,1992, the defendants served the plaintiff with interrogatories and requests for production. The defendants filed their answer and special defenses on February 5, 1992. On February 24, 1992, the case was claimed to a trial list. Subsequently, on April 14, 1992, the defendants filed a motion for judgment of nonsuit on the basis of on the plaintiffs failure to answer the interrogatories and to comply with the requests for production. The plaintiff responded to the interrogatories and requests for production on August 28, 1992.

The motion for judgment of nonsuit was still heard, and on September 3,1992, the court ruled that judgment of nonsuit would enter if no compliance by the plaintiff to the interrogatories was forthcoming within forty-five days. On September 28, 1992, the defendants filed a motion to compel the plaintiff to respond more fully to the interrogatories and requests for production. Thereafter, the plaintiff filed supplemental compliance to the defendants’ discovery requests dated October 2, 1992. On October 22, 1992, a trial court clerk entered a judgment of nonsuit against the plaintiff for failure to comply with the September 3, 1992 order.

On January 29, 1998, the plaintiff filed a motion to open the judgment of nonsuit. The court opened the judgment on February 23,1998, finding that the plaintiff and her counsel had no notice of the September 3, 1992 order prior to the October 22, 1992 judgment. The court also found credible the January 22, 1998 affidavit of the plaintiffs counsel, which stated that he had never received notice of the judgment of nonsuit.

Further, the court found that there was no indication in the file that the plaintiff had failed to comply with the discovery request at the time the judgment was entered by the clerk. The court held that, absent an indication of noncompliance, there was simply no basis for the nonsuit and the judgment should not have been entered. The defendants then appealed following the granting of the motion to open.

“[I]t is well established that an order opening a judgment ordinarily is not a final judgment within [General Statutes] § 52-263. . . . [Our Supreme Court], however, has recognized an exception to this rule where the appeal challenges the power of the court to act to set aside the judgment. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980); 4 Am. Jur. 2d, Appeal and Error § 126. . . . Solomon v. Keiser, 212 Conn. 741, 746-47, 562 A.2d 524 (1989).” (Internal quotation marks omitted.) G. F. Construction, Inc. v. Cherry Hill Construction, Inc., 42 Conn. App. 119, 122-23, 679 A.2d 32 (1996). In this case, the defendants argue that the trial court lacked authority to open the judgment of nonsuit. Consistent with the holdings of G. F. Construction, Inc., Solomon and Connecticut Light & Power Co., we address the appeal to the extent that it questions the trial court’s authority to open the judgment of nonsuit.

The defendants claim that the trial court lacked the authority1 *** to open the judgment because the motion to open the judgment of nonsuit was not filed within the four month period provided by § 52-212a and Practice Book § 17-4 (a). The plaintiff argues that the four month limitation period contained in § 52-212a and § 17-4 (a) does not apply because the entry of nonsuit was a clerical error. We agree.

“A trial court possesses the power to modify substantively its own judgment within four months succeeding the date on which it was rendered or passed. ... A court may correct a clerical error at any time, even after the expiration of the four month period.” (Citation omitted; internal quotation marks omitted.) Bottass v. Bottass, 40 Conn. App. 733, 738, 673 A.2d 129 (1996).

“A clerical error is a mistake or omission in a judgment which is not the result of the judicial function. Such a claimed error does not challenge the court’s ability to reach the conclusion that it did reach, but involves the failure to preserve or correctly represent in the record the actual decision of the court. 46 Am. Jur. 2d, Judgments § 202. Ravizza v. Waldie, 3 Conn. App. 491, 493, 490 A.2d 90 (1985).” (Internal quotation marks omitted.) Bottass v. Bottass, supra, 40 Conn. App. 739.

Our review of the record reveals that the clerk’s entry of nonsuit against the plaintiff was a clerical error and not the result of the judicial function. In its memorandum of decision, the court found that the judgment of nonsuit was not rendered by any trial court judge, and that the court was unaware that the October 22, 1992 judgment had been entered mistakenly under its authority. The court found that despite the language of the September 3,1992 discovery order, no judgment of non-suit could have entered unless there was a failure by the plaintiff to comply in a timely manner. Thus, as there was no indication in the court file that the plaintiff had failed to comply, the clerk had no authority to enter the judgment of nonsuit. Further, the court, in its memorandum of decision, concluded that “the judgment of nonsuit was based on clerical error or a misapprehension of the state of the record.”

Accordingly, we conclude that the four month limitation period contained in § 52-212a and § 17-4 (a) does not apply because the entry of nonsuit was a clerical error. We, conclude, therefore, that the court had the authority to open the judgment of nonsuit.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-212a provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, a civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. ...”

       Practice Book § 17-4 (a) provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. The parties may waive the provisions of this subsection or otherwise submit to the jurisdiction of the court.”

       On March 23,1998, the plaintiff moved to dismiss the defendants’ appeal for lack of subject matter jurisdiction. On May 6, 1998, this court denied the plaintiffs motion.

       In their brief, the defendants also claim that one of the factual findings underlying the court’s decision to open the judgment was clearly erroneous. Appellate review, in this case, is limited to whether the court had the authority to open the judgment of nonsuit. See Madison Hill Ltd. Partnership v. Madison, 38 Conn. App. 168, 170, 659 A.2d 744 (1995). Therefore, the second issue is not appropriately before this court. Accordingly, we will not address that claim.

       The defendants claim, in their brief, that the court lacked jurisdiction to open the judgment of nonsuit. In Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999), our Supreme Court recently held that “§ 52-212a operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it.” Thus, we examine the court’s substantive authority in this case to open the judgment and not its jurisdictional authority.

       See footnotes 1 and 2.

       On appeal, the defendants claim that the plaintiffs counsel had actual notice of the nonsuit judgment on June 30,1997, at the latest. The defendants argue that the four month limitation period therefore expired before the plaintiffs motion to open the judgment of nonsuit was filed. We do not address the issue of notice, however, because the entry of a judgment of nonsuit against the plaintiff was a clerical error that can be corrected at any time. It is, therefore, unnecessary to address the issue regarding the date that the plaintiff had actual notice of the judgment of nonsuit so as to start the running of the four month limitation period.


author: SPEAR, J. SULLIVAN, J.,

text:
    STATE OF CONNECTICUT v. ROY AMBROS SCOTT
    (AC 17742)
    Spear, Hennessy and Sullivan, Js.

      Argued April 26
    officially released November 9, 1999

      Jon L. Schoenhom, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Dennis J. O'Connor, senior assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Roy Ambros Scott, appeals from the judgment of conviction, rendered after a jury trial, of aggravated sexual assault in the first degree in violation of General Statutes § 53a-70a (a) (l) and attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-70 (a) (l). The defendant claims that (1) there was insufficient evidence to support the conviction of either crime, (2) the trial court improperly failed to instruct the jury on the essential element of penetration with respect to the charge of attempted sexual assault, and (3) the trial court improperly failed to instruct the jury on the defense of abandonment. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 31, 1995, the victim, her friend, Zelda Brown, Brown’s fiance, Elide Gray, and the defendant met at the victim’s apartment in East Hartford for cocktails. After a few drinks, the group proceeded in Gray’s car to a social club in Hartford to celebrate New Year’s Eve. Shortly before the club closed at 2 a.m., the victim paged her boyfriend, William Bruce Maddox, and, when he returned her call, asked him to meet her later at her apartment. As the victim left the club with Gray and the defendant, the defendant produced a nine millimeter Beretta semiautomatic pistol and fired five or six shots into the air.

When they arrived at the victim’s apartment, the defendant asked if he could use the bathroom. After initially refusing the request, the victim reluctantly agreed. Gray waited downstairs. After using the bathroom, the defendant told the victim that he liked her and kissed her, which she initially returned. As the defendant continued kissing, hugging and grabbing her, however, she told him to “chill” and “stop.” He nonetheless persisted, forcing her into her bedroom as she continued to protest.

The victim was unable to push past the defendant, and they fell onto the mattress on the floor. The defendant pulled down the victim’s pants and underwear to her ankles, undid his trousers, produced a condom and told the victim to put it on his penis, which she refused to do. He inserted his penis into her vagina anyway. After engaging in vaginal intercourse with her for some time, he removed his penis from her vagina, grabbed her by the hair and, forcing her head toward his crotch, told her to “lick me, lick me.” The victim refused and began screaming and crying. The defendant then recommenced vaginal intercourse.

Shortly thereafter, the victim heard Maddox’s car, which was very noisy, and told the defendant that Maddox would “kick his ass.” Grabbing his pistol, which was on the floor, the defendant said that Maddox “ain’t gonna do shit,” looked out the window and returned to the mattress after Maddox drove away. Maddox, seeing the darkened apartment, had assumed that the victim was not yet home and left. The defendant again resumed intercourse with the victim. He still held the gun, although it was not directly pointed at the victim’s head. Rather, the gun was lying near the side of her head. After completing sexual intercourse, the defendant dressed and left. The police arrested him after receiving a complaint from the victim.

I

The defendant first claims that the state failed to produce sufficient evidence to support his conviction of aggravated sexual assault in the first degree. The defendant concedes that the elements of sexual assault were satisfied but argues that the aggravating element was not satisfied because the state failed to prove that he possessed a handgun during the sexual assault. We disagree.

Although the defendant failed to raise this claim at trial, our Supreme Court has stated that unpreserved sufficiency of the evidence claims satisfy the requirements of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and are therefore reviewable “because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).” State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

“The standard of review of an insufficiency claim is twofold. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Milardo, 224 Conn. 397, 402-403, 618 A.2d 1347 (1993); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990). . . . State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993). The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt. . . . State v. Adams, [supra, 225 Conn. 276].” (Internal quotation marks omitted.) State v. Jones, 37 Conn. App. 437, 449, 656 A.2d 696, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).

The victim testified that during the sexual assault the defendant reached for his gun in response to the warning that Maddox would “kick his ass.” The defendant continued to hold the gun after Maddox had driven off and while sexually assaulting the victim. Although not pointed at her head, the gun was next to her head. Moreover, the victim and Gray had witnessed the defendant fire five or six shots as they left the social club earlier that evening. Construing these facts in the light most favorable to sustaining the jury’s findings and allowing reasonable inferences drawn therefrom, we conclude that the juiy reasonably could have concluded that the gun was used in the commission of the sexual assault, as required by § 53a-70a (a) (1), and that the defendant was guilty beyond a reasonable doubt of aggravated sexual assault in the first degree. We affirm the conviction of aggravated sexual assault in the first degree.

The defendant next claims that the evidence was insufficient to convict him of attempted sexual assault because he abandoned the attempt or, alternatively, he attempted only sexual contact by imploring the victim to “lick” him, without expressly demanding fellatio, which requires penetration of the mouth. Neither claim has merit.

General Statutes § 53a-49 (c) provides that “[w]hen the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” (Emphasis added.) Because the victim refused his request and started screaming and crying, the defendant’s abandonment of the attempt was not voluntary and, therefore, this portion of the statute was not satisfied. Moreover, the defendant simply transferred his criminal effort to a similar objective, further vaginal intercourse. General Statutes § 53a-50 provides in relevant part that “ [r] enunciation is not complete if it is motivated by a decision to . . . transfer the criminal effort to another but similar objective . . . .”

The defendant’s claim that he attempted only sexual contact and not fellatio merits little discussion. Although he argues that his intent was to limit the contact to the victim’s tongue touching his penis without having his penis ever penetrate her mouth, the jury was entitled to find that he did intend to force his penis into the victim’s mouth.

II

The defendant next claims that the trial court improperly failed to instruct the jury that penetration is an essential element of attempted sexual assault in the first degree. We disagree.

The defendant failed to preserve this claim at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40, or plain error review. See Practice Book § 60-5. The failure to instruct the jury on an essential element of an offense is an issue of constitutional magnitude because it may result in a due process violation that undermines the fairness of the trial. State v. Coleman, 48 Conn. App. 260, 270, 709 A.2d 590, cert. granted on other grounds, 245 Conn. 907, 718 A.2d 15 (1998). As the record in this case is adequate, we will afford Golding review to this issue.

“In reviewing a constitutional challenge to the trial court’s instructions, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the juiy. . . . The test is whether the charge as a whole presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) Id. On the basis of the entire charge, we conclude that it was not reasonably possible that the jury was misled and that the charge presented the case so that no injustice resulted.

In its instruction on aggravated sexual assault in the first degree, the court stated: “Sexual intercourse is defined in several ways in our statute. As it pertains in this count, it means vaginal intercourse. Penetration, however slight, is sufficient to complete vaginal intercourse, and it does not require the emission of semen.” Thereafter, as to the charge of attempted sexual assault in count two, the court instructed as follows: “Now, as to the underlying crime of sexual assault in the first degree, I just finished charging you on that particular crime as part of the first count. I don’t think I need to repeat it at this point. I can tell you that my instruction to you on that is the same as I would instruct you on this, the second count, with two exceptions. . . . [T]he second distinction between count two and the first is that the sexual intercourse claimed in this count to have been attempted is fellatio rather than vaginal intercourse. And I would instruct you that fellatio is, of course, the act of obtaining sexual gratification by oral stimulation of the penis. Otherwise, the instructions that I have given you regarding sexual assault in the first degree apply equally to this, the second count.”

Although the court did not specifically repeat the instruction that penetration is required to complete fellatio, it twice pointed out that the instructions on the first count applied to the second count, except for the type of intercourse charged. The court referenced its earlier instruction, in which it instructed that penetration, however slight, was sufficient to constitute vaginal intercourse, and reiterated that its earlier instruction applied equally to the second count. We believe that the court adequately instructed the jury on the element of penetration by incorporating by reference its instruction on the first count. We cannot conceive of the jury being misled in any way by the court’s charge.

Our review of the charge as a whole leads us to conclude that the court adequately informed the jury that penetration was required to complete fellatio and, thus, presented the case to the jury so that no injustice resulted.

III

The defendant also claims that the trial court improperly failed to instruct the jury on the defense of abandonment. He did not request an instruction on the defense of abandonment of the attempted sexual assault. The defendant’s argument that the court had a constitutional duty to instruct, sua sponte, on this claimed defense is unpersuasive. In State v. Preyer, 198 Conn. 190, 197, 502 A.2d 858 (1985), our Supreme Court stated that there is no “constitutional infirmity in failure to charge on such defenses as entrapment ... or alibi.” We are not persuaded that a sua sponte instruction on abandonment was required here, especially in view of the lack of evidence to support such a charge.

The judgment is affirmed.

In this opinion HENNESSY, J., concurred.

SULLIVAN, J.,

dissenting. Although I agree with the majority’s holding with respect to the sufficiency of the evidence claims, I respectfully dissent from part II of the majority opinion because I conclude that the trial court improperly instructed the jury on attempted sexual assault in the first degree.

A constitutionally adequate charge must “[provide] the jury with a clear understanding of the elements of the crime and guidance for proper determination of whether those elements were present . . . .” State v. Jenkins, 40 Conn. App. 601, 607, 672 A.2d 969, cert. denied, 237 Conn. 918, 676 A.2d 1374 (1996). The elements of attempted sexual assault in the first degree are that “the defendant acted with the specific intent to commit sexual assault in the first degree which in turn included the intent to have sexual intercourse . . . and that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime.” (Citation omitted; internal quotation marks omitted.) State v. Milardo, 224 Conn. 397, 403, 618 A.2d 1347 (1993).

The statutory definition of “sexual intercourse” includes fellatio. Penetration is an essential element of sexual assault by fellatio. General Statutes §§ 53a-70 and 53a-65; State v. Amarillo, 198 Conn. 285, 289-90, 503 A.2d 146 (1986).

The jury charge did not inform the jury that penetration is an essential element of sexual assault by fellatio. The majority is persuaded that the instruction on attempted sexual assault sufficiently incorporated the elements of sexual assault such that the element of penetration need not be articulated with respect to sexual intercourse by fellatio.1 The court stated that sexual intercourse in the first count meant vaginal intercourse and that “[pjenetration, however slight, is sufficient to complete vaginal intercourse . . . .” The court then noted that the second count was distinct in that sexual intercourse meant fellatio rather than vaginal intercourse, and that “fellatio is, of course, the act of obtaining sexual gratification by oral stimulation of the penis.” It is significant that the statutory definition of “sexual intercourse” comprises four acts, only three of which require penetration. See General Statutes § 53a-65 (2).

The defendant has argued that his order to “lick me” was not a request for sexual intercourse by fellatio. If we assume, arguendo, the truth of the defendant’s assertion, his conduct would constitute sexual contact rather than sexual intercourse. See General Statutes § 53a-65 (3). On the basis of the court’s defective charge, however, the jury could erroneously have concluded that an act that requires no penetration, such as licking, constituted fellatio. In other words, the jury could have believed the defendant’s claim and would nonetheless have been compelled by the defective instruction to return a guilty verdict. To ensure a fair trial, the defendant was entitled to a jury charge that apprised the jury of the elements of the charged offense.

I must, therefore, conclude that the court improperly instructed the jury with respect to the charge of attempted sexual assault in the first degree. I would reverse the conviction on that count and remand the case for further proceedings. Consequently, I dissent.

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

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
      “(b) Conduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) of this section unless it is strongly corroborative of the actor’s criminal purpose. . . .
      “(c) When the actor’s conduct would otherwise constitute an attempt under subsection (a) of this section, it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
      General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

       “[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.” State v. Golding, supra, 213 Conn. 239-40.

       General Statutes § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”

       Because we conclude that the court’s instruction was proper, the defendant’s claim of plain error necessarily must fail.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
      General Statutes § 53a-65 provides in relevant part: “(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and, does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.
      “(3) ‘Sexual contact’ means any contact with the intimate parts of aperson not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person. . . .” (Emphasis added.)

       The trial court instructed the jury with respect to the first count of aggravated assault as follows: “Sexual intercourse is defined in several ways in our statute. As it pertains in this count, it means vaginal intercourse. Penetration, however slight, is sufficient to complete vaginal intercourse, and does not require the emission of semen.” The tried court then instructed the jury on the attempted sexual assault count: “I just finished charging you on [sexual assault] as part of the first count. I don’t think I need to repeat it at this point. I can tell you that my instruction to you on that is the same as I would instruct you on this, the second count, with two exceptions. . . .
        [T]he second distinction between count two and the first is that the sexual intercourse claimed in this count to have been attempted is fellatio rather than vaginal intercourse. And I would instruct you that fellatio is, of course, the act of obtaining' sexual gratification by oral stimulation of the penis.” (Emphasis added.)


author: SPEAR, J.

text:
    ESSEX SAVINGS BANK v. CHARLES A. MARLAND ET AL.
    (AC 18698)
    Schaller, Spear and Hennessy, Js.
    Argued March 18
    officially released November 9, 1999

      Patrick W. Boatman, with whom, on the brief, was John H. Grosso, for the appellant (named defendant).

      Steven M. Basche, for the appellee (defendant Cadle Company of Connecticut, Inc.).
   Opinion

SPEAR, J.

The named defendant, Charles A. Marland (Marland), appeals from the judgment of the trial court ordering that the proceeds from a foreclosure sale, in excess of the first mortgage debt and expenses, be paid to the second mortgagee, the Cadle Company of Connecticut, Inc. (Cadle). Cadle had purchased the subject property at the sale. Marland claims that the court improperly (1) allowed Cadle to apply the sale proceeds to its second mortgage debt without holding an eviden-tiary healing on the issue of whether Cadle ever possessed the note evidencing the debt, (2) refused to allow evidence of the fair market value of the property at the time that the purchaser acquired title and (3) refused to apply the doctrine of equitable appropriation to extinguish the second mortgage debt. We reject these claims and affirm the judgment of the trial court.

The relevant facts and procedural history are as follows. The plaintiff, Essex Savings Bank, instituted the underlying foreclosure action against property owned by Charles A. Marland and Lorraine M. Marland. The plaintiff alleged that Cadle had an interest in the premises as assignee of a second mortgage. Summary judgment was rendered as to liability in favor of the plaintiff in accordance with an agreement between the plaintiff and Marland. Thereafter, the court ordered a foreclosure by sale. Cadle made a successful bid for the property in the amount of $260,000. The plaintiff was paid in full, and the balance of $104,000 was deposited with the court.

Marland and Cadle each claimed the balance of the proceeds by motions for supplemental judgment. The court granted Cadle’s motion, ruling that Cadle’s status as the successful bidder was of no moment in determining the question of who was entitled to the balance of the proceeds of the sale. The court found that “as a subsequent encumbrancer, [Cadle] is entitled to the balance of the sale proceeds. The amount of Marland’s debt to Cadle exceeds the balance of the sale proceeds.” Accordingly, the court denied Marland’s motion and granted Cadle’s motion for supplemental judgment. This appeal followed.

I

Marland’s first claim is based on the dismissal of his appeal from an earlier judgment of foreclosure that was rendered in favor of Cadle on its second mortgage. Marland argues that although the court found that Cadle was entitled to enforce its second mortgage, the dismissal of Marland’s appeal as moot because of the sale leaves unadjudicated the issue of the validity of Cadle’s second mortgage. Marland asserts that an evidentiary hearing on the competing motions for supplemental judgment was necessary to resolve this question.

The sole claim that Marland makes in support of his contention that Cadle’s mortgage is unenforceable is that Cadle, an assignee, has never been in possession of the note that evidences the underlying debt that the mortgage secures. Marland asserts that the court’s finding in Connecticut National Bank v. Marland, Superior Court, judicial district of New Haven at Meri-den, Docket No. CV 95-02494065 (October 29, 1996), that Cadle’s mortgage was a valid encumbrance cannot be given preclusive effect pursuant to the doctrine of res judicata because we dismissed Marland’s appeal of that judgment as moot. “Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits.” (Internal quotation marks omitted.) Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 119, 728 A.2d 1103 (1999). We conclude that Marland’s claim was properly precluded.

New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301 (1996), is dispositive of this claim. Although Cadle’s foreclosure action was tried before Bedford Realty Corp. was decided, the trial coxirt’s judgment was rendered approximately two and one-half months after the Bedford Realty Corp. decision. In Bedford Realty Corp., our Supreme Court held that when a mortgagee “has chosen to pursue the equitable action of foreclosure of the mortgage, rather than a legal action on the note, the fact that [the mortgagee] never possessed the lost promissory note is not fatal to its foreclosure of the mortgage.” Id., 759-60. Marland’s appeal on this ground could not have been successful. Therefore, the dismissal of his appeal does not prevent the application of res judicata.

Alternatively, Marland argues that because Bedford Realty Corp. implies that there could have been a different result had the creditor sued on the note or pursued a deficiency judgment, he is entitled to relitigate the note issue. This is so, he asserts, because the issue is presented here in a context different from the earlier foreclosure. We are not persuaded.

Here, Cadle is not suing on the note or pursuing a deficiency judgment. Moreover, Marland agreed to a summary judgment as to his liability on the first mortgage and, prior to filing his motion for supplemental judgment, took no action by way of a cross complaint or otherwise with respect to Cadle’s status as a subsequent encumbrancer. We conclude that the court properly gave preclusive effect to the earlier trial court decision that Cadle’s mortgage was valid and, therefore, properly declined to take evidence on that issue.

II

The defendant next claims that because the $260,000 purchase price of the property at the foreclosure sale was substantially less than its fair market value, he should have been allowed to introduce evidence of the fair market value prior to the court’s decision on the motions for supplemental judgment. The same question was raised and decided in New England Savings Bank v. Lopez, 227 Conn. 270, 630 A.2d 1010 (1993) (enbanc).

Although in Lopez the defendant attacked the constitutionality of the deficiency judgment procedure where a foreclosure by sale had been ordered, the rationale of that case applies equally to the circumstances here. Our Supreme Court stated in Lopez that the defendants’ argument “rests on the premise that, as a matter of constitutional law, a deficiency judgment must be calculated, not by subtracting the amount of the sale proceeds from the amount of the debt, but by subtracting the fair market value of the property from the amount of the debt. Their premise is unsound.” Id., 276. In rejecting the defendants’ claim, the court stated: “We can find no basis, however, in our state law or understandings regarding foreclosure by sale for the proposition that a debtor is legally entitled to a credit for the fair market value of the property sold. A debtor’s legal entitlement is, instead, to a credit for the amount of the sale proceeds. While an evidentiary hearing is required to determine the value of the mortgaged property and thus the amount of any deficiency following a strict foreclosure, such a valuation would be superfluous following a foreclosure by sale. In the latter action the price realized upon the sale of the property fixes the amount for which a deficiency may be entered pursuant to General Statutes § 49-28. . . . The deficiency is determined by subtracting the sale proceeds from the amount of the debt.” (Citations omitted; internal quotation marks omitted.) Id., 277-78.

The court stated its rationale as follows: “Indeed, the usual notion of fair market value is inconsistent with the notion of a foreclosure sale. [F]air market value is generally said to be the value that would be fixed in fair negotiations between a desirous buyer and a willing seller, neither under any undue compulsion to make a deal. ... An auction sale, such as a foreclosure sale, is not designed to reach that result because there is no opportunity for negotiations, and the seller, namely, the committee appointed by the trial court to conduct the sale, is under compulsion to make a deal, in the sense that it is required to take the highest bid, subject only to the approval of the court.

“Moreover, the traditional definition of fair market value implies a seller who is willing to entertain offers, and either rejects them or makes counteroffers and negotiates. That, in turn, implies the willingness to take time to sell, in order to see what the market will bring, and that willingness, in turn, implies a seller willing to take the risk of the market going down. Similarly, a desirous buyer who offers less than what the seller asks takes the risk of the market going up and of another desirous buyer making a higher offer. Neither of these scenarios fits the paradigm of the foreclosure sale, in which there is no asking price, no offer and counteroffer, and no opportunity for the parties to incur the respective market risks.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 280-81.

Except for the constitutional aspects, Marland’s claim is the same as that of the defendants in Lopez, i.e., that the owner of the equity is entitled to a credit based on the fair market value of property sold at a foreclosure sale rather than on the sale price. Applying the Lopez reasoning in this case leads us to conclude that Marland is not entitled to apply the fair market value of the property against the debt.

Marland argues that because this is not a deficiency proceeding such as in Lopez, we may properly adopt the views of the two dissenting justices in Lopes;. Those justices wrote that where a foreclosure by sale is ordered, the debtor ought to be entitled to a credit for the fair market value of the property rather than the auction price. Id., 286-300 (Berdon, J., and Katz, J., dissenting). We feel constrained to apply the majority’s reasoning in Lopez because our Supreme Court has made it clear that in the context of a foreclosure by sale, the “fair market value” concept does not apply. Therefore, we must reject Marland’s claim.

Ill

Marland’s last claim is that the property had a value substantially higher than the $260,000 that Cadle bid at the foreclosure sale and, because the first mortgage and expenses have now been paid, Cadle has been made more than whole. Marland argues that the excess proceeds should go to him pursuant to the doctrine of equitable appropriation. This claim also is without merit.

The defendant relies on Bassett v. Mason, 18 Conn. 131 (1846), as well as the dissenting opinions in New England Savings Bank v. Lopez, supra, 227 Conn. 286-300, for the proposition that equitable appropriation requires that the proceeds be distributed to him. In Bassett, the doctrine of equitable appropriation was applied because after the defendant, the second mortgagee, foreclosed, he acquired the first mortgage and then brought suit on the note underlying the first mortgage. Bassett v. Mason, supra, 136-37. Our Supreme Court, concluded that the defendant’s interest as a mortgagee merged with his interest as the owner of the equity of redemption, and the first mortgage debt was thereby satisfied and canceled. Id., 137.

Here, no such equitable considerations exist. The court found that after paying the first mortgage debt and the expenses, the balance was not sufficient to pay the balance of Cadle’s mortgage. Cadle is not in the position of the second mortgagee in Bassett because it is not attempting personally to collect on the first mortgage debt in addition to acquiring the title to the property.

The linchpin of Marland’s argument is his claim that the fair market value of the property is substantially higher than the $260,000 that Cadle paid. Our rejection of Marland’s fair market value claim in part II of this opinion applies to this claim as well.

The judgment is affirmed.

In this opinion the other judges concurred.

        Connecticut National Bank v. Marland, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 95-02494065 (October 29, 1996), was an action brought by Cadle to foreclose its second mortgage. The court rendered judgment in favor of Cadle, and Marland appealed to this court. Connecticut National Bank v. Marland, 45 Conn. App. 352, 696 A.2d 374, cert. denied, 243 Conn. 907, 701 A.2d 328 (1997). We dismissed the appeal as moot after the sale to Cadle that is the subject of this appeal.

       See footnote 1.

       The defendant claims that Cadle had an appraisal for substantially higher than $260,000, which it used in its own foreclosure action.