author: BEACH, J. BISHOP, J.,

text:
    STATE OF CONNECTICUT v. DEMETRICE L. LEWIS
    (AC 28791)
    Bishop, Harper and Beach, Js.

      Argued November 13, 2008
    officially released April 21, 2009

      Pamela S. Nagy, special public defender, for the appellant (defendant).

      Mitchell S. Brody, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian J. Leslie, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Demetrice L. Lewis, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of drag paraphernalia with intent to use in violation of General Statutes § 21a-267 (a) and possession of drag paraphernalia with intent to use within 1500 feet of a school in violation of General Statutes § 21a-267 (c). On appeal, the defendant claims that (1) the trial court improperly instructed the jury by failing to define the specific intent element on all charges and (2) there was insufficient evidence to support his conviction of the charges of possession of narcotics with intent to sell within 1500 feet of a school and possession of drag paraphernalia with intent to use within 1500 feet of a school. We agree with the defendant on both claims and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On June 3, 2005, at approximately 8:24 p.m., officers of the New Haven police department, including Luis Rivera, were dispatched to the intersection of North Frontage Road and Orchard Street after having received complaints of a robbery with a weapon at that location. The robbery suspects were described as three seventeen to eighteen year old men, one wearing a gray hooded sweatshirt and white “uptown” sneakers, and the other two wearing black hooded sweatshirts and blue jeans. In the area of 49 Waverly Street, Rivera and another officer stopped and detained the defendant, who was riding a bicycle and wearing dark clothing, and Joshua Williams, who was walking and wearing a gray hooded sweatshirt. Rivera stopped Williams and the other officer stopped the defendant, who had started to pedal his bicycle away as Williams was being detained.

Rivera conducted a warrant check on the defendant and found that there was an active warrant for his arrest. Rivera placed the defendant under arrest and conducted a thorough patdown of his person. Rivera discovered a clear sandwich bag in the defendant’s pocket within which there were nineteen Ziploc bags, each containing a white, rock like substance, which a field test revealed to be crack cocaine. Rivera also found $116 in the defendant’s front pocket, $160 in another pocket within the front pocket and $600 in his rear pocket. The money was in denominations of twenty, ten, five and one dollar bills. In the defendant’s rear pocket, Rivera also found a razor blade and a paper bag containing medium and small Ziploc bags. Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school.

At trial, Michael Wuchek, a detective with the New Haven police department, testified as an expert witness on the street level sale of narcotics. He opined that the quantity of narcotics, the packaging of the narcotics, the empty bags, the razor blade and the small denominations of money found in the defendant’s pockets were consistent with the street level sale of $10 bags of crack cocaine. Wuchek also testified that street level dealers often work in teams at a specific location, that a lookout riding on a bike commonly would be employed during a street level sale to identify customers or the police and that street level dealers typically would attempt to run away to avoid the police.

Anwar Houwari, a civil engineer and projects manager and record keeper in the engineering department of the city of New Haven, also testified. After examining an engineering map of the city of New Haven, Houwari determined that the distance between the Timothy Dwight School and 49 Waverly Street, where the defendant was stopped, was 1050 feet.

The defendant was found guilty by the jury of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school. The defendant was sentenced to a total effective term of eighteen years incarceration, execution suspended after ten years, with four years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court’s failure to instruct the jury on the specific intent element of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school violated his right to due process under the fourteenth amendment to the United States constitution. We agree.

On the issue of intent, the court instructed: “Now, intent. Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by oxxr statutes, a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. What a person’s intention has been is very largely a matter of inference. No witness can be expected to come here and testify that he looked into another person’s mind and saw, therein, [that it] contained a certain intention.” When instructing the jury on possession of narcotics with intent to sell by a person who is not drug-dependent and possession of drug paraphernalia with intent to use, the court referred back to its general instruction on intent. The coxirt then instructed the jury that if it foxmd the defendant guilty of those crimes and if it foxmd he was within 1500 feet of a school when he possessed a narcotic substance with intent to sell and possessed drug paraphernalia with intent to use, then he also would be guilty of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school, respectively.

The defendant did not file a written request to charge with respect to intent and failed to object to the court’s instructions. He now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant’s claim satisfies the first two prongs of Golding because the record is adequate for review and “[a]n improper instruction on an element of an offense . . . is of constitutional dimension.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998). “Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged . . . including intent where intent is one of those elements.” (Internal quotation marks omitted.) Id.

The defendant’s claim also satisfies the third prong of Golding because it is clear from the record that a constitutional violation exists. The crimes at issue are all specific intent crimes. “In deciding whether a criminal statute requires general or specific intent, our Supreme Court regularly has invoked the following distinction. When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent. . . . State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971).” (Citations omitted; internal quotation marks omitted.) State v. Nixon, 32 Conn. App. 224, 249, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). Possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a (b) both require a specific intent to sell. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (specific intent to sell essential element of § 21a-278a [b]). The clear language of § 2 la-267 (a) and (c) indicate that those crimes require a specific intent to use drug paraphernalia. General Statutes § 21a-267 (a) (“[n]o person shall . . . possess with intent to use drug paraphernalia” [emphasis added]); General Statutes § 21a-267 (c) (same); see also State v. Brunori, 22 Conn. App. 431, 435, 578 A.2d 139 (under § 21a-267 [a], state must prove defendant possessed drug paraphernalia with intent to use it), cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).

The court, however, did not instruct the jury on specific intent. Rather, it instructed the jury that “a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct.” (Emphasis added.) Intent to engage in proscribed conduct is not sufficient. “[I]t is improper for the trial court to read [the] entire statute [on intent] to a jury when the pleadings or the evidence support a violation of only a portion of the statute . . . .” (Citation omitted; internal quotation marks omitted.) State v. Austin, supra, 244 Conn. 235. A fortiori, it is improper for a court to instruct only on the general intent portion of the statute on intent when an instruction on the specific intent portion is required. See State v. Tedesco, 175 Conn. 279, 291-92, 397 A.2d 1352 (1978) (failure to instruct on element of specific intent constituted reversible error).

Finally, the defendant’s claim satisfies the fourth prong of Golding because the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. When reviewing a challenged jury instruction “[i]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. ... In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Salomon, 287 Conn. 509, 573, 949 A.2d 1092 (2008). Having reviewed the charge as a whole, we cannot say that no injustice resulted. It is reasonably possible that the jury was misled.

The court instructed the jury on general intent and referenced that definition numerous times. Nowhere in its instructions did the court define specific intent. This is not a situation in which, despite an improper instruction on intent, the court subsequently instructed the jury properly on intent, thereby eliminating the risk of jury confusion as to that element. See State v. Prioleau, 235 Conn. 274, 321-22, 664 A.2d 743 (1995) (jury not reasonably misled when court made one reference to general intent but repeatedly instructed on specific intent); State v. Austin, supra, 244 Conn. 235-37 (jury not reasonably misled when, despite reference to improper instruction on intent, court referenced proper instruction on intent numerous times). Here, the court’s several instructions as to general intent and lack of an instruction as to specific intent constitute reversible error. See State v. DeBarros, 58 Conn. App. 673, 679-84, 755 A.2d 303 (reversal warranted when court improperly instructed on general intent in initial charge plus two supplemental charges when only instruction on specific intent required and court referenced improper general intent instruction numerous times), cert. denied, 254 Conn. 931, 761 A.2d 756 (2000). The fourth prong of Golding therefore is satisfied. Accordingly, the judgment of conviction is reversed.

II

The defendant next claims that there was insufficient evidence to sustain his conviction of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school in violation of §§ 21a-278a (b) and 21a-267 (c), respectively. We must address these claims to determine whether to order a new trial on these counts or simply to vacate the conviction because of double jeopardy considerations. See State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005) (retrial barred and defendant entitled to acquittal if evidence insufficient to support conviction). We agree with the defendant’s claims.

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable-doubt. . . . We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Davis, 283 Conn. 280, 329-30, 929 A.2d 278 (2007).

A

The defendant contends that the state did not meet its burden of proving that the conduct at issue in the crimes of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school occurred within 1500 feet of a school because there was no testimony establishing that the school identified in the information as Timothy Dwight School was a “public or private elementary or secondary school”; General Statutes §§ 21a-278a (b) and 21a-267 (c); as required under the respective statutes. We agree.

To be convicted of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school, the state must prove, inter alia, that the forbidden acts occurred within 1500 feet of “the real property comprising a public or private elementary or secondary school . . . .” General Statutes §§ 21a-278a (b) and 21a-267 (c). The state’s proof as to this element of these crimes was limited to the testimony of Clifford Daniels, a New Haven board of education district supervisor. He testified that Timothy Dwight School was a public school and that it was one of the schools in his district. Daniels did not testify as to whether Timothy Dwight School was an elementary school or a secondary school, nor did he relate the grades taught there. The only evidence adduced was that it was a New Haven public school.

The defendant argues that the evidence adduced at trial was insufficient because the category of “public schools” can include schools, such as preschools, which are not elementary or secondary schools. The state argues, on the other hand, that Daniels’ testimony that Timothy Dwight School was a New Haven public school was sufficient evidence to satisfy the element that the school was a public elementary or secondary school for purposes of §§ 21a-278a (b) and 21a-267 (c). It argues, referencing General Statutes § 10-4, that the term “elementary school” includes preschool.

We construe the elements of §§ 21a-278a (b) and 21a-267 and apply them to the facts as reasonably could be found by the jury. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes.” (Internal quotation marks omitted.) State v. Rios, 110 Conn. App. 442, 449, 954 A.2d 901 (2008).

The crimes of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school require proof that the conduct occur within 1500 feet of “the real property comprising a public or private elementary or secondary school . . . .” (Emphasis added.) General Statutes §§ 21a-267 (c) and 21a-278a (b). The statutes in title 10 indicate that there are public schools that are neither elementary schools nor secondary schools. For instance, § 10-4 (a) provides that the state board of education has general supervision and control over “preschool, elementary and secondary education, special education, vocational education and adult education . . . .” General Statutes § 10-4 (a). In other statutes, the legislature includes kindergarten when discussing elementary education but does not include preschool. See General Statutes § 10-145d (f) (under state board regulations for teacher certification, endorsement to teach elementary education valid for kindergarten through grade six, inclusive); General Statutes § 10-273a (town transporting children to elementary school including kindergarten may seek reimbursement for transportation cost). Because public schools exist that axe neither elementary schools nor secondary schools, Daniels’ testimony that the Timothy Dwight School was a public school was not sufficient to support a finding that the conduct occurred within 1500 feet of an elementary or secondary school.

Our Supreme Court recently decided State v. King, 289 Conn. 496, 958 A.2d 731 (2008), in which it held that there was sufficient evidence from which the jury could have concluded beyond a reasonable doubt that Kolbe Cathedral High School in Bridgeport was a school within the meaning of § 21a-278a (b). In that case, four witnesses testified that the location where a narcotics transaction occurred involving the defendant was within 1500 feet of a school, which they referred to as “Kolbe Cathedral High School” or “Kolbe Cathedral.” Id., 521. The court concluded that “the jurors, without question, were able to determine on the basis of the testimony adduced at trial and their common knowledge about the familiar topic of school, that Kolbe Cathedral High School constituted a school, as that term was identified by the trial court’s instructions.” Id., 522. The name of the school in King — Kolbe Cathedral High School — was sufficient evidence from which the jury could have determined, on the basis of common knowledge and experience, the nature of the school. A high school ordinarily is a secondary school. In the present case, the name of the school at issue — Timothy Dwight School — alone does not indicate whether the school is an elementary or secondary school. The term does not exclude, for example, a preschool or school for adult education. It is not necessarily within the common knowledge and experience of the jury that the Timothy Dwight School, by virtue of its status as a public school, was either an elementary or secondary school.

Because there was no evidence as to whether Timothy Dwight School was an elementary or secondary school, and this is an element of both charges at issue, we conclude that there was insufficient evidence to support the defendant’s conviction of the crimes of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school.

B

With respect to the charge of possession of narcotics with intent to sell within 1500 feet of a school, the defendant also argues that there was insufficient evidence as to another aspect of the element requiring intent to sell narcotics at a location that is within 1500 feet of a school. The defendant argues that there was no evidence that he intended to sell at any particular location. We agree.

Section 21a-278a (b) requires, as an element of the offense, an intent to sell or dispense the narcotics at a location that is within 1500 feet of a school. State v. Denby, supra, 235 Conn. 483. “[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct .... [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Downey, 45 Conn. App. 148, 154, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997).

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) State v. Niemeyer, 258 Conn. 510, 518, 782 A.2d 658 (2001).

For there to be sufficient evidence of intent to sell at a specific location under § 21a-278a (b), there must be evidence of something more than just an intent to sell at some unspecified location. In State v. Harris, 60 Conn. App. 436, 442-43, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000), this court accepted the state’s concession of insufficient proof as to the element of intent to sell narcotics at a specific location within the proscribed zone when the only evidence as to that element was the defendant’s possession of seventy-one individual parcels of crack cocaine. Mere possession of narcotics with an intent to sell at some unspecified point in the future, at some unspecified place, is not enough. Quite obviously, if one is apprehended while coincidentally passing through a location, there is no logical inference that he intended to sell at the location of the apprehension. In contrast, in State v. Francis, 90 Conn. App. 676, 682-83, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005), this court found there to be sufficient evidence of intent to sell within the proscribed zone where the defendant not only possessed narcotics packaged for sale and money layered in a way to facilitate quick transactions, but also, among other things, hid his drugs behind his car’s gasoline cap and walked away, which expert testimony revealed was consistent with drug sale activity. See also State v. Pagan, 100 Conn. App. 671, 674-75, 918 A.2d 1036 (defendant observed selling drugs), cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007); State v. Myers, 101 Conn. App. 167, 177-81, 921 A.2d 640 (defendant’s transfer of drugs at location indicative of intent to sell at specific location), cert, granted on other grounds, 283 Conn. 906, 927 A.2d 919 (2007); State v. Knight, 56 Conn. App. 845, 852, 747 A.2d 13 (2000) (defendant showed marijuana and cocaine to plain clothed officer who had asked for a “ ‘ten’ ”).

In the present case, there was evidence indicating an intent to sell. Expert testimony and common sense suggest that the quantity of narcotics, the packaging of the narcotics, the empty bags, the razor blade and the small denominations of money found in the defendant’s pockets were consistent with the street level sale of $10 bags of crack cocaine. See State v. Francis, supra, 90 Conn. App. 682 (quantity of narcotics and manner of packaging indicative of intent to sell). When the police detained Williams, the defendant started to pedal his bicycle. There was expert testimony that street level dealers typically would attempt to run away to avoid the police.

The evidence presented in this case, however, did not raise a permissible inference of an intent to sell at the specific location where the defendant was arrested. When stopped by the police, the defendant was on his bicycle in the neighborhood in which he lived. The police did not observe him engage in any activity consistent with immediate drug sales but, rather, stopped him because he resembled the description of a robbery suspect. There was no evidence that the defendant was in the location at issue for any length of time sufficient to support an inference that he was doing more than passing through. The police officers who were dispatched to the area in response to a robbery complaint apprehended the defendant and Williams virtually immediately upon seeing him. Although there is evidence, such as the quantity of drugs found on his person and the manner of their packaging, that supports an inference of an intent to sell, the record is devoid of any direct or circumstantial evidence from which the inference of intent to sell at the place of apprehension can permissibly be drawn. We conclude that there was insufficient evidence that the defendant intended to sell narcotics at a location that was within 1500 feet of a school.

The judgment is reversed and the case is remanded for a new trial on the charges of possession of narcotics with intent to sell by a person who is not drug-dependent and possession of drug paraphernalia with intent to use and with direction to render judgment of not guilty of the charges of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school.

In this opinion HARPER, J., concurred.

BISHOP, J.,

concurring in part and dissenting in part. I agree with my colleagues in the majority that because the trial court failed to instruct the jury regarding specific intent, the judgment of conviction must be reversed. To that extent, I concur with the majority. Because, however, I am not persuaded by the defendant’s sufficiency arguments, I would remand this matter for a new trial on all counts.

The majority concludes that the evidence was insufficient to prove that the defendant possessed narcotics with the intent to sell within 1500 feet of a public elementary or secondary school in violation of General Statutes § 21a-278a (b) and that he possessed drug paraphernalia with the intent to use within 1500 feet of such a school in violation of General Statutes § 21a-267 (c). For the majority, the evidence was insufficient in two ways: (1) there was no evidence from which the jury could have concluded that the Timothy Dwight School in New Haven is a “public or private elementary or secondary school” within the meaning of the applicable statutes and (2) although the evidence may have been sufficient that the defendant possessed drugs with the intent to sell, it was wanting in regard to the charge that he intended to sell at a particular place that was within 1500 feet of a public school. Because I believe that the evidence adduced at trial provided a sufficient basis on which the jury could have concluded that the defendant possessed narcotics with the intent to sell and possessed drug paraphernalia with the intent to use within 1500 feet of a public school, I respectfully dissent.

Well established decisional law guides our analysis. As our Supreme Court has noted: “In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Aloi, 280 Conn. 824, 842, 911 A.2d 1086 (2007).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Smith, 110 Conn. App. 70, 75, 954 A.2d 202, cert. denied, 289 Conn. 954, 961 A.2d 422 (2008). The question on appeal, therefore, is not what inferences and conclusions we would have drawn from the direct and circumstantial evidence but, rather, whether the jury could reasonably have concluded as it did. Id. With those principles in mind, and an eye toward sustaining the verdict of the jury, I turn to the facts of the case at hand.

The majority concludes that there was insufficient evidence from which the jury could reasonably have concluded that the Timothy Dwight School is a public or private elementary or secondary school so as to invoke the provisions of General Statutes §§ 2 la-267 (c) and 21a-278a (b). The district supervisor of the New Haven board of education testified that the Timothy Dwight School is “one of my schools in my district” and that it is a public school. The jury also heard testimony that Timothy Dwight is a school with grades. Given this testimony, it was not unreasonable for the jury to have concluded that the Timothy Dwight School is a public elementary or secondary school.

The majority, however, concludes that the evidence that the Timothy Dwight School is either a public elementary or secondary school is wanting because school boards have statutory responsibilities over preschool, special education, vocational education and adult education. In making this assessment, I believe, respectfully, that the majority has conflated purpose with buildings. The issue is not what takes place within an elementary or secondary school but, rather, what sort of a building it is. The majority also too narrowly defines elementary and secondary schools as though buddings that house them do not serve, as well, to perform other functions of the board of education. For example, General Statutes § 10-282 (1) provides in relevant part: “ ‘Elementary school building’ means any public school building designed to house any combination of grades below grade seven or children requiring special education.” Section 10-282 (2) provides in relevant part: “ ‘Secondary school building’ means any public school building designed to house any combination of grades seven through twelve or any regional agriculture and technology education center . . . and may also include any separate combination of grades five and six or grade six with grades seven and eight in a program approved by the State Board of Education when the use of special facilities generally associated with secondary schools is an essential part of the program for all grades included in such school . ...” In short, the buildings that comprise elementary and secondary schools provide a myriad of educational opportunities. It would require speculation or conjecture to fathom an educational opportunity provided by a board of education that does not take place in a building that is either an elementary or secondary school.

Nor do I believe that the majority’s construction comports with the purpose of §§ 21a-267 (c) and 21a-278a (b) to create a safe no drug zone within 1500 feet of elementary and secondary school buildings. These statutes relate to geographic distance from a place of drug activity to the location of a school building, and they pertain no matter whether school is in session or what activities happen to take place in the school. Thus, whether adult education classes or preschool may be conducted in either an elementary or secondary school building is irrelevant.

As the majority notes, in State v. King, 289 Conn. 496, 958 A.2d 731 (2008), jurors may rely on “their common knowledge about the familiar topic of school” in determining whether the school in question fits within the 1500 foot prohibition contained in the applicable statutes. Id., 522. As a practical matter, I think that it is well within the common knowledge of the average juror that boards of education maintain elementary and secondary schools in which a variety of educational programs take place. Hearing that the Timothy Dwight School is a graded school within the supervision of the New Haven board of education, the jury did not have to speculate that the building comprising the Timothy Dwight School served some other purpose for which there may be grades. Rather, the jury was entitled to infer, from the evidence, that the Timothy Dwight School is a public elementary or secondary school. On this record, I believe that there was sufficient evidence that the Timothy Dwight School fits within the statutory definition of a public elementary or secondary school.

The majority also concludes that the evidence was insufficient to prove that the defendant intended to sell drugs in a particular place within 1500 feet of a school. As the majority notes, to jarove one guilty of possession of drugs with the intent to distribute within 1500 feet of a school, the state need not prove that a defendant intended to be within 1500 feet of a school but simply that such a person possessed narcotics with the intent of distributing them at a place that is geographically within 1500 feet of a public school. State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). “[Djirect evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Aloi, supra, 280 Conn. 843. “Intent is a question of fact, the determination of which should stand unless the conclusion drawn by the trier is an unreasonable one.” (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 460, 939 A.2d 581 (2008), aff'd after remand, 113 Conn. App. 488, 966 A.2d 798 (2009).

In this instance, the state adduced evidence from which the jury reasonably could have concluded that when the defendant was apprehended within 1500 feet of the Timothy Dwight School, he was fully equipped with the goods and in the manner of a street level narcotics dealer. In various pockets of his clothes, the police found $876 in denominations of $1, $5, $10, and $20. In the defendant’s pockets, the police also discovered nineteen bags with crack cocaine, various empty bags and a razor wrapped in a plastic bag. That the defendant was geared and ready for business can hardly be disputed.

The majority concludes, however, that evidence that the defendant was equipped and ready to sell some place is insufficient to conclude that he intended to sell at the place where he was detained. But in reaching its conclusion, the majority fails to discuss additional evidence, which, I believe, fills the evidentiary gap and provides an adequate basis for the jury’s determination on these charges. The record reveals evidence that as the defendant sat astride a bicycle, he was stopped on the sidewalk in front of 47 Waverly Street in New Haven in the company of another individual, Joshua Williams. Thus, this case is unlike those that wrestle with the notion of a transient defendant who is merely passing through an area located within 1500 feet of a school when he is detained by the police. Here, in fact, the defendant was in his own neighborhood. Shirley Warren, a defense witness, testified that she was friendly with the defendant’s siblings and that when the police detained the defendant, she went to his nearby house at 74 Day Street to inform his mother. Warren indicated that the Lewis home can be seen from Waverly Street.

Additionally, Detective Michael Wuchek of the New Haven police department, an expert in the ways of street level narcotics dealers, testified that the neighborhood in which the defendant lived and had been detained was a high level drug area in which Wuchek had participated in approximately twenty drug arrests. He also testified that the packaging of drugs in several bags suggests $10 purchases and that a seller of street level drugs often carries money in small denominations to make change and in different pockets as a defense to robbery. Wuchek stated that such dealers often confine their sales activities to one neighborhood, often one where they have family or where they are from, one whose alleys and yards are familiar to them so as to facilitate escape and to elude police detection or rival drug dealers. Finally, in this regard, Wuchek testified that such dealers often travel in pairs, with one on foot and another on a bike, one serving as a lookout and protector, while the other engages in transactions. On the basis of Wuchek’s testimony, which dovetails with the operative facts presented to the jury regarding the defendant’s manner and circumstances, it was not unreasonable for the jury to infer that the defendant was not only geared to sell but open for business when and where he was confronted by the police.

For the foregoing reasons, I believe the evidence was sufficient to convict the defendant of possession of drug paraphernalia with intent to use within 1500 feet of a public school and possession of narcotics with the intent to sell within 1500 feet of a public school. Accordingly, I would reverse the conviction and remand the matter for a new trial on all counts.

       The defendant also claims that the court improperly instructed the jury on possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school by omitting essential elements of the those crimes from its instructions. In view of our disposition in this case, we need not resolve this issue.

       Although the defendant cited article first, § 8, of the constitution of Connecticut in his appellate brief, he noted that he was not claiming greater protection under the state constitution. See State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992).

       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 state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       General Statutes § 53a-3 (11), which defines intent, provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” This statutory definition embraces both the specific intent and general intent. State v. McColl, 74 Conn. App. 545, 575, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003). General intent involves an intent to “engage in conduct described by a statute defining an offense”; id.; while specific intent involves “conscious objective ... to cause [a] result . . . .” (Internal quotation marks omitted.) State v. Holmes, 75 Conn. App. 721, 737, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).

       To the extent that this claim is unpreserved, the defendant seeks review under Golding. We note that “[a]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding. . . . [N]o practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim . . . .” (Citation omitted; internal quotation marks omitted.) State v. Singleton, 97 Conn. App. 679, 684 n.7, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006).

       When the prosecutor asked the grades or ages of the children who attended that school, the court sustained defense counsel’s objection. The prosecutor then asked: “What grades?” Defense counsel objected to that question. Out of the presence of the jury, the state argued that the question was relevant for proving that the defendant was not a student at that school as required by General Statutes § 21a-267 (c). Defense counsel contended that permitting Daniels to testify as to the ages of the children who attended the school would be prejudicial to the defendant. The parties then stipulated that the defendant was not enrolled at the school on the day in question. The court noted that it would permit the state to question the witness as to the highest grade level at the school but would not permit a question regarding the range of grades or ages of the students who attended the school. When the jury was brought back into the courtroom, the prosecutor concluded his direct examination of Daniels by asking him if the Timothy Dwight School was a public school, to which Daniels responded affirmatively. Defense counsel conducted no cross-examination.
      The state has not argued that this is a situation warranting a new trial on the ground that the court improperly had sustained the defendant’s objections to evidence, which, if admitted, would have satisfied an element of the crime in question.

       The statutes in title 10 demonstrate that elementary schools include special education and that secondary schools include any regional vocational agriculture center. General Statutes § 10-282 (1) and (2). Those statutes, however, treat preschool differently from elementary school. See, e.g., General Statutes §§ 10-145d (f) and 10-273a.

       In State v. Pagan, 100 Conn. App. 671, 675, 918 A.2d 1036, cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007), this court concluded that testimony that a sale of narcotics by the defendant occurred within 1500 feet of the Vincent E. Mauro School “alone would have been enough to satisfy the location element of [General Statutes § 21a-278a (b)].” That case concerned the issue of how far the sale was from the school, that is to say, whether the proscribed conduct occurred within 1500feet of the Vincent E. Mauro School. The issue of whether there was sufficient evidence that the Vincent E. Mauro School was, in fact, a public or private elementary or secondary school was not before the court in Pagan.

       In King, the trial court in its instructions to the jury stated that “[a]n elementary or secondary school is a school for any . . . combination of grades below grade seven. A secondary school is a school for any combination of grades seven through twelve, and may include any separate combination of grades of five and six or grades seven and eight.” (Internal quotation marks omitted.) State v. King, supra, 289 Conn. 519. Defense counsel neither requested a particular definition of the term “school” nor took exception to trial court’s charge. Id.

       A defense witness testified that she, Williams and another person were walking when the defendant, who was riding his bicycle, approached them. She further testified that at the time of apprehension, the four were talking. Rivera testified that at the time of apprehension, the defendant and Williams were walking. Neither version of events supports an inference that the defendant was doing more than passing through the area.

       The state argues that because the defendant was apprehended while riding a bicycle while his companion was on foot, and expert testimony suggested that such a combination was typical of drug dealing, an inference of intent to sell at that location could permissibly be made. We hold that, in itself, the combination of a bicycle rider and a pedestrian is too slender a reed on which to draw the inference of intent to sell at the precise location of apprehension, as also is the fact that the defendant’s apprehension occurred in his home neighborhood.

       General Statutes § 21a-267 (c) provides for additional punishment for one who possesses drug paraphernalia “within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school. . . .”
      General Statutes § 21a-278a (b) provides for additional punishment for one who possesses narcotics with the intent to sell “within one thousand five hundred feet of, the real property comprising a public or private public or private elementary or secondary school . . . ."

       When the state inquired as to the ages and grades of the children who attended the school, the defendant objected, and the objection was sustained. The state then asked: “What grades?” The witness began answering and stated, “[t]he grades are from,” and then the defendant objected. That objection was never sustained by the court, that partial answer was never stricken from the record and the jury was never instructed that it could not consider the answer. Therefore, the jury was informed that the school had “grades,” and this testimony is part of the evidentiary record.

       The jury heard from defense witness Shirley Warren that more people besides Williams were at the scene with the defendant when the police confronted them. The jury was free to credit police testimony that only the defendant and Williams were together when the police confronted them or evidence that others were present as well. In either case, the evidence makes it clear that the defendant was not simply passing by, en route to another place.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    ROBERT REICHERT v. MELINDA BRONSON
    (AC 28443)
    Bishop, Gruendel and Borden, Js.
    Submitted on briefs November 20, 2008
    officially released April 21, 2009

      Louis Kiefer filed a brief for the appellant (defendant).
   Opinion

GRUENDEL, J.

The defendant, Melinda Bronson, appeals from the judgment of the trial court granting the motion of the plaintiff, Robert Reichert, to modify a maintenance order. She claims that the court improperly concluded that the plaintiff had demonstrated extreme hardship as required under New York law. We reverse the judgment of the trial court.

The parties married in 1980. Their first child, A, was bom on January 12, 1987. Their second child, B, was bom on January 13, 1989. On November 4, 1998, the Supreme Court of the state of New York rendered a judgment of divorce that incorporated, but did not merge, the maintenance provisions of a stipulated agreement entered into by the parties. That agreement provided, inter alia, that the plaintiff “shall pay to [the defendant] the sum of $15,000.00 per year, $1,250.00 per month as and for maintenance of the [defendant] for a period of six years. Said payments shall commence August 1,1998, [and] shall continue monthly thereafter for six years unless terminated earlier by the remarriage of the [defendant] or the death of either party.” Accordingly, the judgment of divorce ordered the plaintiff to “pay to [the defendant] the sum of $1,250.00 per month for maintenance commencing on August 1, 1998, and on the first day of each month thereafter, pursuant to the parties’ [stipulation of [settlement . . . .”

Although the defendant originally was awarded custody of the minor children, a New York court on January 15,1999, transferred custody to the plaintiff. On March 30, 2000, that court “found that the [plaintiff] had without justification or reason failed to pay maintenance for three and one-half months.” The court found a maintenance arrearage of $4440 and ordered the plaintiff to pay attorney’s fees to the defendant in the amount of $875.

In May, 2000, on information supplied by A, the defendant was charged with sexual abuse in the second degree in violation of New York Penal Law § 130.60 (2) (McKinney 2004) and endangering the welfare of a child in violation of New York Penal Law § 260.10 (McKinney 2004), both misdemeanors under New York law. The defendant was convicted of those counts.

On June 7, 2001, the plaintiff filed with the Superior Court in Connecticut an affidavit regarding a foreign judgment, namely, the November 4, 1998 judgment of divorce rendered in New York. The following day, the plaintiff filed a motion for modification of child support, maintenance and visitation. The motion requested, inter alia, that “the monthly maintenance payments in the amount of $1,250.00 from [the plaintiff to the defendant] be terminated, retroactive to January 15, 1999 . . . .” On August 16, 2001, the defendant filed the first of several motions in the Connecticut court for contempt, alleging that the plaintiff had failed to pay maintenance as required by both the judgment of divorce and the March 30, 2000 order. The defendant filed her second motion for contempt on May 10, 2002. By order dated October 3, 2002, the court found the plaintiff in contempt. The court found the maintenance arrearage due to the defendant as of September 20, 2002, to be $48,079.63. In that order, the court stated that it would “act on the plaintiffs motion for modification of [maintenance] at a further hearing.”

On July 14, 2005, the court entered an order granting the plaintiff’s motion for modification. The court issued “corrected orders” on August 9, 2005, terminating the plaintiffs maintenance obligation retroactive to June 8, 2001. In addition, it entered the following orders: “[The] [b]aiancedue [to the] [defendant amounts to $48,079.63 (finding of September 20, 2002) less retroactive modification of $25,000 ($1250 x 20 months) and payment of $4000 in November, 2002. The resulting new balance is $19,079.63. The plaintiff is to present [a] payment plan to [the defendant’s] counsel within thirty days. . . . Counsel fees [are] awarded to the defendant in the amount of $3000. ... All uncompromised prior orders [are] to remain in full force and effect.” The defendant thereafter filed motions for reargument and for a new trial. By memorandum of decision filed December 7, 2006, the court denied those motions. In that memorandum, the court noted that the defendant “was arrested, tried and convicted of sexual abuse by the New York courts.” The court continued: “As a result of the [defendant’s] actions, the children developed a multitude of psychiatric and psychological problems. The Connecticut Superior Court and New York courts issued restraining orders against the [defendant], the mother-child relationship broke down and to a large extent has continued to this day. The plaintiff claims that as a result of the defendant’s actions, he had to give up his career as a national and international photographer to be available for his sons and their care. The court finds that the plaintiff has proved ‘extreme hardship’ under New York law. Spousal support is ordered terminated as of the date of the motion to modify, which was filed on June 8, 2001.” From that judgment, the defendant appeals.

On appeal, the defendant maintains that the court improperly concluded that the plaintiff had demonstrated extreme hardship as required under New York law. We agree.

At the outset, we note the applicable standard of review. To the extent that the court made findings of fact underlying its determination that modification was warranted, we consider those findings under the clearly erroneous standard. Gosselin v. Gosselin, 110 Conn. App. 142, 145, 955 A.2d 60 (2008). At the same time, whether the court properly applied the New York statute in question is an issue of law over which our review is plenary. See Gonzalez v. Surgeon, 284 Conn. 554, 572, 937 A.2d 13 (2007) (whether defendant properly interpreted and applied statute is question of law subject to plenary review).

New York Domestic Relations Law provides in relevant part: “Where, after the effective date of this part [July 19,1980], a separation agreement remains in force no modification of a prior order or judgment incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the judgment or order as modified shall supersede the terms of the prior agreement and judgment for such period of time and under such circumstances as the court determines . . . .” N.Y. Dom. Rel. Law § 236 (B) (9) (b) (McKinney 2008). The statute “permits a . . . modification of the maintenance provision of a divorce judgment to supersede the maintenance terms of the agreement for such time and under such circumstances as the court determines upon a showing of extreme hardship, which is a stricter standard of proof than a substantial change of circumstances.” Cohen v. Seletsky, 142 App. Div. 2d 111, 120, 534 N.Y.S.2d 688 (1988). Accordingly, in seeking modification of the judgment of divorce under § 236 (B) (9) (b), the plaintiff shouldered the substantial burden to “demonstrate that the continued enforcement of the maintenance terms of the divorce judgment will create an extreme hardship to him.” Id., 121. On our review of the record, we conclude that the plaintiff failed in that regard.

Central to the court’s ultimate determination in the present case is its finding that “as a result of the defendant’s actions, [the plaintiff] had to give up his career as a national and international photographer to be available for his sons and their care.” That finding is not supported by the record. In 1998, the plaintiff did not have custody of the minor children. The plaintiffs 1998 federal tax return listed income from his photography business of approximately $14,773. In 1999, custody of the children was transferred to the plaintiff. At that time, the plaintiff had remarried and had relocated from New York to a home in West Hartford owned by his new wife, Nancy Reichert. The plaintiff testified that the mortgage on that property was paid exclusively by Nancy Reichert. The plaintiff further testified that for the 1999 year in which he had custody of the children, he earned $48,000 from his photography business. In 2000, the plaintiff filed a joint tax return with Nancy Reichert that, although listing no income from his self-employment, nevertheless documented an adjusted gross income of $185,000. The plaintiffs 2003 tax return listed income from his photography business of $21,608. In a financial affidavit filed with the court on September 29, 2004, the plaintiff listed a weekly income of $350, or $18,200 annually. That evidence belies the plaintiffs contention that his custody and care for the children caused a detrimental effect on his income. To the contrary, his income increased following the transfer of custody. That increase militates against a finding of extreme hardship under § 236 (B) (9) (b). Alice C. v. Bernard G. C., 193 App. Div. 2d 97, 111, 602 N.Y.S.2d 623 (1993); see also Robinson v. Robinson, 176 Misc. 2d 952, 956, 674 N.Y.S.2d 921 (1998) (appropriate to compare financial circumstances at time of divorce to present financial circumstances in considering extreme hardship). In addition, it is significant that although the plaintiff alleged that he had incurred substantial medical expenses for the minor children, he declined to provide any supporting documentation or detail when invited to do so before the court. Furthermore, the defendant testified that at the time he obtained custody of the children, he had more than $330,000 in an individual retirement account fund that he had inherited. See Pintus v. Pintus, 104 App. Div. 2d 866, 868-69, 480 N.Y.S.2d 501 (1984) (defendant’s unemployment insufficient to establish extreme hardship in light of other funds maintained in bank accounts).

At its essence, the plaintiffs argument before the trial court was that the transfer of custody, in and of itself, constituted extreme hardship. That proposition has been considered and rejected by New York courts. In Harkavy v. Harkavy, 167 App. Div. 2d 510, 562 N.Y.S.2d 182 (1990), the defendant husband sought a downward modification of certain maintenance obligations under § 236 (B) (9) (b) in light of his assumption of custody of two minor children subsequent to the judgment of divorce. In dismissing his claim, the Appellate Division stated: “Assuming, arguendo, that the husband, in a timely fashion, raised a sufficient claim for relief from his maintenance obligation, the proof adduced at the hearing indicated only that there had been a change in custody. While the transfer of custody of the children to the husband was a significant change in circumstances, the husband failed to adduce any evidence at the hearing to indicate that his assumption of custody resulted in extreme financial hardship.” Id., 511-12. The same could be said in the present case.

Moreover, although most unfortunate, the fact that the defendant was convicted of misdemeanor charges of sexual abuse and endangering the welfare of a child does not elevate the plaintiffs financial plight to one of extreme hardship. The plaintiff has provided no evidence whatsoever to support such a contention.

In light of the foregoing, we conclude that the plaintiff failed to sustain his burden of demonstrating an extreme hardship warranting the termination of his maintenance obligations under § 236 (B) (9) (b). The court improperly determined otherwise.

The judgment is reversed and the case is remanded with direction to deny the motion for modification.

In this opinion the other judges concurred.

       At the time that this appeal was filed, Robert Reichert was the plaintiff. The record indicates that he died sometime in late 2007. By motion filed February 29, 2008, the defendant moved to substitute as the plaintiff Jean Devlin, the executrix of the estate of Robert Reichert, which this court granted on May 2, 2008. Neither the plaintiff nor the substitute plaintiff has filed an appearance or an appellate brief in this appeal. Our references in this opinion to the plaintiff are to Robert Reichert.
      Furthermore, we note that neither party has raised any issue regarding abatement. “Although at common law the death of a sole plaintiff or defendant abated an action ... by virtue of [General Statutes] § 52-599, Connecticut’s right of survival statute, a cause of action can survive if a representative of the decedent’s estate is substituted for the decedent. It is a well established principle, however, that [d]uring the interval . . . between the death and the revival of the action by the appearance of the executor or administrator, the cause has no vitality. The surviving party and the court alike are powerless to proceed with it.” (Citation omitted; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 570-71, 783 A.2d 457 (2001).

       The defendant also claims that (1) New York Domestic Relations Law § 236 (B) (9) (b) (McKinney 2008) violates article one, § 10, of the constitution of the United States, (2) the court abused its discretion in admitting evidence of her misdemeanor convictions, (3) the court improperly found that she was the sole cause of her children’s psychiatric and psychological problems absent expert testimony thereon and (4) the court improperly concluded that a statement contained in her pendente lite motion for attorney’s fees constituted an admission. We do not address those issues in light of our resolution of the defendant’s principal claim.

       The record contains information regarding the sexual abuse of A. Although not germane to the issues presented in this appeal, we nevertheless decline to identify the minor children in this matter by name. See General Statutes § 54-86e.


author: HARPER, J.

text:
    GEBREHIWET MOKONNEN v. PRO PARK, INC.
    (AC 28984)
    Harper, Beach and Pellegrino, Js.
    Argued November 18, 2008
    officially released April 21, 2009

      John T. Bochanis, for the appellant (plaintiff).

      David S. Rintoul, with whom was Jessica Braun, law clerk, for the appellee (defendant).
   Opinion

HARPER, J.

The plaintiff, Gebrehiwet Mokonnen, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Pro Park, Inc. On appeal, the plaintiff claims that the court’s interrogatories to the jury were erroneous. We decline to review the plaintiffs claim and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history underlying the plaintiffs appeal were set forth by this court following an earlier appeal. “The plaintiff, a Christian from Eritrea, began working for the defendant in 1993 as a security guard in a parking garage located adjacent to a Caldor store in Stamford. Isias Yohannas, also an Eritrean Christian, supervised the plaintiff. In about 1997, Fuad Hrezi, a Muslim, was appointed the manager of all of the defendant’s facilities in Stamford. At some point in 1997 or 1998, the first time Hrezi met the plaintiff, Hrezi asked whether he was a Christian or a Muslim. Hrezi also asked the plaintiff how long he had lived in Connecticut and New York. The plaintiff did not feel threatened by the conversation.

“On May 27, 1999, Hrezi notified the plaintiff that there were no more hours for him to work. Hrezi also told the plaintiff that there were no hours available in the defendant’s other facilities in Stamford and, therefore, his employment was terminated. As a result of the discharge, the plaintiff applied for unemployment benefits, and the defendant submitted a statement indicating as the reason for the plaintiffs termination that ‘Caldor’s store closed out and there are no hours for him there or at other Pro Park locations in Stamford.’

“In October, 1999, the plaintiff went to the Caldor’s garage and found that it was still open. He saw individuals he believed to be new employees working for the defendant and noted that Rachid Mokhtari, a Muslim who had been hired subsequent to the plaintiffs discharge, was working there. The plaintiff approached Hrezi and asked him for work. Hrezi told him that there was no opening for him in Stamford, but that he could go to Greenwich where Yohannas could give him some hours. When the plaintiff spoke with Yohannas, he was told that he could not give him a job because ‘they’re hiring all of these Muslims’ and that he did not have the authority to hire the plaintiff. Yohannas gave the plaintiff a telephone list of managers and made reference to the number of managers who were Muslims. After the plaintiffs discharge for lack of work, the defendant hired more than seventy individuals to work at its Stamford facilities and, in 1999, from the date of the plaintiff’s discharge to the end of the year, two-thirds of the twenty new employees were Muslim.

“The plaintiff filed a complaint with the commission on human rights and opportunities (commission), alleging that he was discriminated against on the basis of his religion. After a fact-finding hearing, the commission concluded that probable cause existed that the defendant discriminated against the plaintiff on the basis of his religion. The plaintiff then filed this action, alleging, in the first count, that the defendant’s actions constituted a discriminatory employment practice in violation of General Statutes § 46a-60 (a) (1) and, in the second count, negligent misrepresentation, claiming that the defendant had falsely informed the plaintiff that his discharge was due to lack of work. The case was tried to the jury, which found in favor of the plaintiff on both counts of his amended complaint, awarding $103,550 on the discrimination claim and $75,000 on the negligent misrepresentation claim. The court denied the defendant’s motion to set aside the verdict, but ordered a remittitur of $35,000 on the discrimination count. The defendant did not accept the remittitur. The court subsequently rendered judgment in favor of the plaintiff for $163,097.53, including attorney’s fees and costs.” Mokonnen v. Pro Park, Inc., 96 Conn. App. 625, 627-29, 901 A.2d 725, cert. denied, 280 Conn. 924, 908 A.2d 1088 (2006).

After the defendant appealed to this court, we reversed the judgment of the trial court and remanded the case for a new trial because the trial court improperly charged the jury on the religious discrimination claim. This court also directed the trial court to render judgment in favor of the defendant on the negligent misrepresentation claim because there was insufficient evidence to support a verdict in the plaintiffs favor on that claim. Id., 634. Following remand, the case was retried to the jury. The jury returned a verdict, supported by answers to interrogatories, in favor of the defendant on the religious discrimination claim. Thereafter, the plaintiff filed a motion to set aside the verdict or, in the alternative, for a new trial, on several grounds. The plaintiff argued that the jury interrogatories were misleading with regard to his burden of proof. The plaintiff noted that the jury’s analysis was governed by the burden shifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), which has a sequence of questions. The plaintiff asserted that the interrogatories guided the jury to answer the questions of the McDonnell Douglas Corp. burden shifting test out of sequence. He maintained that because the interrogatories did not follow the sequence of the analysis in the McDonnell Douglas Corp. test, the jury’s analysis was flawed. As a result, the plaintiff argued, he was required to prove beyond a minimal level of proof that the defendant discriminated against him. See footnote 2. He argued that the interrogatories effectively required him to show an actual motivation to discriminate by the defendant as his initial burden of proof. At the hearing on the motion, the court concluded that the jury “had evidence before it from which it could have found that there [was] no discriminatory intent, there was no act of discrimination and, therefore, answered the first question in the negative” and denied the plaintiffs motion. The court then rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

The plaintiffs sole claim on appeal is that the court’s jury interrogatories were erroneous. In opposition, the defendant submits that because the plaintiffs claim was unpreserved for appeal, this court is not bound to review the claim in view of the fact that the plaintiff failed to request plain error review. We agree with the defendant.

The plaintiff argues that the jury interrogatories represented an erroneous reflection of the McDonnell Douglas Corp. burden shifting test. Nonetheless, at the close of the evidence and before the court charged the jury, the plaintiff was afforded ample opportunity to review and to object to the jury interrogatories. At oral arguments before this court, the parties conceded that copies of the interrogatories were distributed to the parties for approval. In addition, the record reflects and the parties conceded at oral arguments that the plaintiff did not object to the interrogatories. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. . . . [S]ee also Practice Book § 60-5 (court not bound to consider claim unless it was distinctly raised at the trial).” (Citation omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 531-32, 955 A.2d 667 (2008).

Furthermore, the defendant distinctly raised in the trial court an issue with respect to the interrogatories. It suggested to the court that the interrogatories be amended to add a line for future damages. The parties discussed the interrogatories with the court, as a result of which the court amended the interrogatories to reflect the suggestion made by the defendant. In addition, following the reading of the jury charge, during which the interrogatories were read to the jury, the court invited exceptions from the parties. Neither party provided an exception. We may presume from the plaintiff’s repeated failure to object to the interrogatories that he agreed to their content and their submission to the jury. See West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 317, 541 A.2d 858 (1988). The plaintiffs claimed error was never distinctly raised at trial, and, accordingly, it was not preserved for appeal.

We note that the plaintiff has not requested plain error review of his unpreserved claim. See Practice Book § 60-5 (“[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court”). We therefore do not consider his claim under that doctrine. See Payton v. Payton, 103 Conn. App. 825, 827 n.1, 930 A.2d 802 (where unpreserved issue raised for first time on appeal and plaintiff did not request review under any doctrine by which this court may review unpreserved claims, court declined to address it), cert. denied, 284 Conn. 934, 935 A.2d 151 (2007); State v. Marsala, 93 Conn. App. 582, 590, 889 A.2d 943 (“This court often has noted that it is not appropriate to engage in a level of review that is not requested. . . . When the parties have neither briefed nor argued plain error . . . we will not afford such review.” [Internal quotation marks omitted.]), cert. denied, 278 Conn. 902, 896 A.2d 105 (2006).

The judgment is affirmed.

In this opinion the other judges concurred.

       The first interrogatory provided: “Do you find that the plaintiff . . . has proven, by a fair preponderance of the evidence, that he was discharged from employment by the defendant . . . due to a discriminatory employment practice (his religious creed), in violation of [§] 46a-60 (a) (1) of the General Statutes?” The jury answered, “No,” went no further with the last two interrogatories, and the jury foreperson signed the defendant’s verdict form. The unanswered interrogatories provided: “Do you find, by a preponderance of the evidence, that the discharge from employment of [the plaintiff] was motivated by a discriminatory reason (religious creed)?" and “Do you find, by a fair preponderance of the evidence, that the reason given by the defendant . . . was a pretext for discrimination (religious creed)?”

       “Under [the burden shifting] analysis of [McDonnell Douglas Corp.], the employee must first make a prima facie case of discrimination. The employer may then rebut the prima facie case by stating a legitimate, nondiscriminatory justification for the employment decision in question. The employee then must demonstrate that the reason proffered by the employer is merely a pretext and that the decision actually was motivated by illegal discriminatory bias.” (Internal quotation marks omitted.) Vollemans v. Wallingford, 103 Conn. App. 188, 220, 928 A.2d 586 (2007), aff'd, 289 Conn. 57, 956 A.2d 579 (2008). “The level of proof required to establish a prima facie case is minimal and need not reach the level required to support a jury verdict in plaintiffs favor.” (Internal quotation marks omitted.) Id.

       At oral arguments before this court, the plaintiff asserted that his appeal arose from the denial of his motion to set aside the verdict or, in the alternative, for a new trial. In his brief, however, the plaintiff does not challenge the denial of his motion. In fact, the plaintiff stated in his brief that the “instant appeal” arose from the jury verdict in favor of the defendant. In addition, the plaintiff cites no facts from the hearing on the motion and provides no legal analysis in support of an argument that the court improperly denied his motion. We decline to review this claim that was not briefed and was raised for the first time at oral arguments. See Connecticut Coalition Against Millstone v. Connecticut Siting Council, 286 Conn. 57, 87, 942 A.2d 345 (2008) (issues mentioned but not briefed beyond assertion deemed waived); State v. Louise-Julie, 60 Conn. App. 837, 841 n.4, 762 A.2d 913 (2000) (claims not briefed not entitled to review), cert. denied, 255 Conn. 929, 930, 767 A.2d 102, 103 (2001).


author: WEST, J.

text:
    ERIC KLEIN ET AL. v. NORWALK HOSPITAL
    (AC 28646)
    Flynn, C. J., and Robinson and West, Js.

      Argued November 18, 2008
    officially released April 21, 2009

      Brenden P. Leydon, with whom, on the brief, was Patrick J. Filan, for the appellant (named plaintiff).

      Frank W. Murphy, with whom was Kara A. T. Murphy, for the appellee (defendant).
   Opinion

WEST, J.

In this medical malpractice action, the plaintiff Eric Klein appeals from the trial court’s judgment, rendered after a jury verdict, in favor of the defendant, Norwalk Hospital (hospital). The issues we must address arise out of the insertion of a needle in an effort to place an. intravenous catheter into the arm of the plaintiff during his postoperative recovery from an emergency appendectomy. We must consider whether evidentiary rulings, made during the trial, impaired full jury consideration of the plaintiffs claims for recovery. The plaintiff claims that the court improperly denied his motion to set aside the verdict and for a new trial. Specifically, the plaintiff claims that the court improperly (1) precluded the testimony of his expert witness concerning causation because the witness was not disclosed properly pursuant to Practice Book § 13-4 (4) and (2) admitted the testimony of the defendant’s expert witness concerning causation. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history pertinent to the plaintiffs appeal. On February 27, 2003, the plaintiff, a dentist, was admitted into the hospital because of a perforated appendix and infectious abscesses. Later that day, he underwent emergency surgery to remove his burst appendix as well as a portion of his large intestine that had a cyst on it. The plaintiff recuperated during the immediate postoperative period as a patient in the hospital. Part of his postoperative treatment was intravenous antibiotic therapy to address the infection that resulted from his appendix bursting. On March 3, 2003, as part of her duties as a registered nurse employed by the hospital on its intravenous team, Patricia DePaoli inspected the plaintiffs existing intravenous lines to determine if they required changing or other treatment. Morton Klein, the plaintiffs father, was in the room visiting his son when DePaoli entered. Upon inspection, DePaoli discovered, on the back of the plaintiffs left hand, around an existing intravenous site, an area of low grade phlebitis. She began to replace the existing intravenous line in his left hand with a new intravenous line farther up his arm. During this procedure, Morton Klein testified, his son shouted out in pain on three occasions and that after the third incident, DePaoli terminated her attempt at inserting an intravenous line into the plaintiffs left arm. Morton Klein, however, did not see any of the procedure performed by DePaoli on his son’s left arm.

The plaintiff testified that during the procedure to place a new intravenous line into his left arm, he felt a distinct and sharp pain shooting down his arm just after DePaoli inserted the needle. He exclaimed in pain but allowed DePaoli to keep going with the procedure. He felt another sharp pain and again exclaimed, telling DePaoli that she had hit a nerve. DePaoli continued with the procedure until the plaintiff exclaimed in pain for a third time, complaining that his entire left hand had gone “dead” and telling DePaoli to remove the needle. After applying a dry sterile dressing to the area of the unsuccessful attempt, DePaoli then, without incident, inserted another intravenous line in the plaintiff’s right arm.

After his release from the hospital, the plaintiff asserted that he was having ongoing difficulties using his left hand and saw many medical specialists, including neurologists and a hand surgeon. These lingering effects were diagnosed, according to the plaintiff, as anterior interosseous nerve palsy caused by an improper attempted intravenous line insertion and had a negative impact on his dental practice and overall quality of life. He brought this action against the hospital, alleging medical malpractice on its part for the alleged improper insertion of the intravenous line by its employee, DePaoli, which resulted in the diagnosis of anterior interosseous nerve palsy.

On January 11, 2006, the plaintiff, pursuant to Practice Book § 13-4 (4), disclosed Clifford Gevirtz, an anesthesiologist specializing in pain management, as an expert witness. According to the disclosure, Gevirtz was to testify on matters concerning the standard of care to which the defendant was held, departures from the standard of care, causation and damages. He was not specifically disclosed as an expert on Parsonage Turner Syndrome nor was it disclosed that he would be testifying about the disease. During his direct examination of Gevirtz, Patrick J. Filan, counsel for the plaintiff, asked him if he was “familiar with the condition known as Parsonage Turner Syndrome.” The court sustained the defendant’s objection on the ground that the plaintiffs disclosure did not encompass Gevirtz’ testifying on the syndrome because the plaintiff was not “in compliance with the Practice Book requirement with respect to disclosure in order to use this expert witness for [that] purpose.” The court allowed Filan, outside of the jury’s presence, to make a proffer as to what Gevirtz would have testified to in regard to Parsonage Turner Syndrome. The following examination then took place:

“Q. Doctor, are you familiar with the syndrome called Parsonage Turner Syndrome?
“A. Yes, sir.
“Q. And what is it?
“A. It is a neurologic syndrome comprising pain in— usually abrupt onset of pain in the shoulder. Weakness of the girdle, the muscle girdle of the upper extremity. The pain is very severe, usually described from a pain management point of view as eight over ten or greater. And it gradually decreases over time. You are left with muscle wasting.
“Q. And what role, if any, does an acute injury play in allowing one to make a conclusion that a given neurological condition is Parsonage Turner Syndrome?
“A. It has been — Parsonage Turner Syndrome, the etiology has been attributed to various traumas, to various surgical issues. In other words, it can happen post-operatively and things like that.
“Q. And in this case, what opinion do you have concerning whether or not this was due — the plaintiffs injury was due to Parsonage Turner Syndrome?
“A. It is not due to Parsonage Turner Syndrome.
“Q. What is the basis for that opinion?
“A. Because the injury is entirely compatible with a needle injuring the anterior interosseous nerve. . . .
*
“Q. Okay. . . . And have you studied Parsonage Turner Syndrome?
“A. Yes, sir.
“Q. Have you treated Parsonage Turner Syndrome?
“A. Yes, sir.
“Q. Have you published on Parsonage Turner Syndrome?
“A. Yes, sir.
“Q. Is this within your area of expertise?
“A. I believe so. Yes, sir.”

Later in the trial, Frank W. Murphy, counsel for the defendant, called Robert Strauch, an orthopedic surgeon specializing in hand surgery, to testify as an expert witness on the requisite standard of care and causation. The court, upon Filan’s objection, conducted a Porter hearing to determine whether, and if so, what scientific methodology would allow the witness to diagnose, within a reasonable degree of medical certainty, without examination, the plaintiffs injury as being caused by Parsonage Turner Syndrome. After voir dire examination by both Murphy and Filan, the court allowed Strauch to testify that, on the basis of his review of the plaintiffs medical records and deposition testimony, the plaintiffs alleged injury was caused by Parsonage Turner Syndrome.

After closing arguments, the court instructed the jury and then submitted the case to it for deliberation, together with special interrogatories. The first interrogatory read: “Did the plaintiff, Eric Klein, prove by a preponderance of the evidence that [the] defendant, Norwalk Hospital, in its care and treatment of Eric Klein breached the standard of care for registered nurses in any of the ways alleged in the complaint?” The jury answered this question in the negative and returned a verdict in favor of the defendant. The plaintiff filed a motion to set aside the verdict and for a new trial. The court denied the motion. This appeal followed.

Prehminaiily, we set forth the applicable standard of review. “It is well settled that we will set aside an evidentiary ruling only when there has been a clear abuse of discretion. . . . [B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . The harmless error standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Citation omitted; internal quotation marks omitted.) Kalams v. Giacchetto, 268 Conn. 244, 249-50, 842 A.2d 1100 (2004); see also State v. Tatum, 219 Conn. 721, 738, 595 A.2d 322 (1991) (burden is on party claiming nonconstitutional evidentiary error to show that “it is more probable than not that the erroneous action of the court affected the result”). “ [T] o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002).

Our Supreme Court’s ruling in Kalams is especially instructive in the plaintiffs appeal. In Kalams, in the context of a medical malpractice action, an evidentiary ruling was assailed on appeal. As the court summarized: “During the trial, the defendant filed a motion in limine seeking to preclude [the plaintiffs expert witness] from testifying on the issue of causation. The trial court . . . heard arguments on the motion. Counsel for the plaintiff argued that the motion should be denied because the [plaintiffs] disclosure [of the expert] had been sufficient to put the defendant on notice that [the witness] would be testifying on the entire liability aspect of the case, including causation. The court . . . granted the motion in limine. [The plaintiffs expert witness] testified that he treated the plaintiff after the defendant had performed the two shoulder surgeries on him [that were at issue in the case]. When the plaintiff first came to [the witness’] office, he was unable to move his right arm. [The witness] performed exploratory surgery on the plaintiffs shoulder and determined that his deltoid muscle had detached from the bone as a complication of the surgeries performed by the defendant. [The witness] testified that the defendant had deviated from the standard of care by failing to diagnose the detachment of the muscle and by failing to treat that condition. The plaintiff attempted to question [the witness] on whether the defendant’s alleged deviation from the standard of care had caused the plaintiffs injuries. The trial court sustained the defendant’s objections to the questions.

“After the conclusion of evidence and the instructions to the jury, the trial court provided the jury with a verdict form containing two interrogatories. The first interrogatory asked: ‘In the medical malpractice claim, did [the] plaintiff prove by a preponderance of the evidence that [the defendant] was negligent in failing to comply with the standard of care applicable to him?’ The second interrogatory asked: ‘In the medical malpractice claim, did [the] plaintiff prove by a preponderance of the evidence that [the defendant’s] negligence was aproxímate cause of [the plaintiffs] damages?’ The jury answered ‘no’ to both interrogatories. Accordingly, the jury returned a verdict for the defendant in the medical malpractice action.” Kalams v. Giacchetto, supra, 268 Conn. 247-49.

The court concluded that it need not “consider the merits of the trial court’s ruling on the motion in limine because, even if [it assumed] that the ruling was improper, it was harmless. The jury was not required to reach the issue of causation because, as evidenced by its answers to the jury interrogatories, it first determined that the defendant had not breached the standard of care.” Id., 250. We conclude that the analysis provided in Kalams applies here. The jury found no breach of the standard of care by the hospital and, therefore, did not need to address the causation prong. Simply put, because the jury found no breach of the standard of care, any harm claimed as to an evidentiary ruling regarding causation is nugatory because there is no negligence. “Accordingly ... it is not reasonably probable that testimony on causation would have affected the result.” Id.

Here, the plaintiff essentially argues, however, that the preclusion of the portion of Gevirtz’ testimony on causation concerning Parsonage Turner Syndrome, in combination with the admission of Strauch’s testimony concerning the same issue, were harmful because causation of the injury itself established the breach of the requisite standard of care. Therefore, the plaintiff contends, it is reasonably probable that the testimony on causation would have affected the result: i.e., that the jury found no breach of the standard of care. After a thorough review of the record, we do not agree. Nowhere in the record is there any indication that the evidentiary rulings challenged by the plaintiff related to the issue of whether the hospital had breached the standard of care or that the plaintiff presented this evidence to the court or the jury as pertaining to that issue. See State v. Scruggs, 279 Conn. 698, 718, 905 A.2d 24 (2006) (“for any appellate theory to withstand scrutiny ... it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory . . . that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense” [internal quotation marks omitted]). Therefore, we cannot say that under the circumstances, these rulings would have affected the result of the jury’s finding on the dispositive issue of a breach of the standard of care.

The plaintiff further claims that in allowing Strauch to testify about Parsonage Turner Syndrome and not Gevirtz, the court “completely destroyed [Gevirtz’] reliability to the jury in explaining his opinions on the central contested issue in the case.” Again, we disagree. A similar argument was put forth by the plaintiff in Kalams, in which the plaintiffs expert witness testified as to breach of the standard of care but was precluded from testifying about causation. The plaintiff argued on appeal that “the exclusion of [the expert’s] testimony on causation was harmful because [the expert] was the plaintiffs only expert witness and his failure to testify on an essential element of the medical malpractice claim was bound to have undermined his credibility in the eyes of the jurors.” Kalams v. Giacchetto, supra, 268 Conn. 250. Here, Gevirtz was allowed to testify extensively about causation; he was only precluded from testifying on the narrow point that Parsonage Turner Syndrome did not cause the plaintiffs alleged injuries. As the court in Kalams stated, “we will not assume that the jury engaged in improper speculation as to the reason that the questions were not permitted.” Id., 251. As a result, we conclude that it is unlikely that the jurors discounted otherwise credible testimony by Gevirtz as to the alleged deviation from the standard of care or causation, for that matter, merely because he did not provide an opinion on an issue about which he did not testify. Accordingly, we cannot conclude that the precluded evidence would have had an effect on the final result; therefore, its preclusion was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       Jamie Klein, Eric Klein’s wife, was also a plaintiff in this action but is not a party to this appeal. We therefore refer in this opinion to Eric Klein as the plaintiff.

       Practice Book (2006) § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. Each defendant shall disclose the names of his or her experts in like manner within a reasonable time from the date the plaintiff discloses experts, or, if the plaintiff fails to disclose experts, within a reasonable time prior to trial. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . .”

       At the hospital, the intravenous team is a group of registered nurses that is responsible for various duties involving the insertion and monitoring of assorted intravenous catheters for differing therapeutic purposes. Team members also are responsible for training other hospital personnel in these procedures.

       Phlebitis is “[ijnflammation of a vein.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 1368. According to the testimony and documents properly in evidence, the phlebitis around this intravenous site on the plaintiffs arm was rated at “one plus” on a scale from one to five.

       See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       For example, in his colloquy with the court concerning the testimony of Gevirtz on Parsonage Turner Syndrome, the plaintiff repeatedly referred to the proffered testimony as relating to causation and not once to the breach of the standard of care. The plaintiff also argued repeatedly that Gevirtz should be allowed to testify on Parsonage Turner Syndrome because he was properly disclosed on causation and therefore should be allowed to testify as to what did not cause the plaintiffs injury.
      Furthermore, the plaintiff agreed with the court’s characterization of the purpose of the Porter hearing, which was to ascertain if the defendant’s expert “[could] testify to a reasonable degree of medical certainty that at least one potential cause of those symptoms [was] in fact that cause.”
      Moreover, the plaintiff argued consistently to the jury in his closing argument that the incidents of the procedure itself — the failure of DePaoli to locate a vein, the location of the needle insertion, the depth and angle of the insertion, the repeated attempts by DePaoli in light of both the plaintiffs exclamations of pain and the lack of a blood flashback (the talismanic sign of an actual insertion of the needle into the vein) — were all indications of the defendant’s breach of the requisite standard of care.