author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. DANNY BEVERLY
    (AC 22199)
    Flynn, Bishop and Daly, Js.

      Argued April 26
    officially released September 3, 2002

      Tara L. Knight, special public defender, with whom were Glenn M. Conway and Gregory Cerritelli, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, senior assistant state’s attorney, for the appellee (state).

       This appeal was argued before a panel comprised of Judges Flynn, Bishop and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a written decision.

   Opinion

BISHOP, J.

The defendant, Danny Beverly, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) he was deprived of his constitutional right to a fair trial as a result of prosecutorial misconduct, (2) the court’s consciousness of guilt instruction invaded the fact-finding province of the jury, (3) we should exercise our supervisory powers to abolish the consciousness of guilt instruction and (4) applying the five year sentence enhancement under General Statutes § 53-202k to the sentence he received for manslaughter in the first degree with a firearm violates the constitutional prohibition against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Shortly after 1 p.m. on November 26, 1996, a vehicle driven by Gino Bryant turned onto Rosette Street in New Haven. The defendant was sitting in the backseat of the vehicle. Congregated in front of 154 Rosette Street were Roosevelt Green, Tyrell Blackwell and Sterling Cole. Upon seeing the group, Bryant stopped the vehicle in front of the house and motioned for Cole to come to the driver’s side window. Bryant and Cole engaged in a short conversation during which Bryant stated, “I’m about to kill somebody.” After the conversation, Bryant drove the vehicle a short distance and stopped again. The defendant exited the backseat with a firearm, walked past Cole and fired the gun three or four times at Green. The defendant then ran back to the waiting vehicle and drove away.

Two police officers were in the area and immediately arrived at the scene, where they saw two victims. Blackwell had been shot in the back, and Green had been shot in the arm. Blackwell died from his injuries the following day, and Green suffered an injury to his hand. Prior to being transported to a hospital, Green told a police officer that “Danny shot me,” and that [the defendant] had driven away in a blue, four door Buick Park Avenue that had tinted windows, a damaged front end and a partial license plate number that included “696.” Further, Green told Willie Nelson, who resided at 154 Rosette Street, that “Danny and Gino” had shot him. Several days later, the police located the vehicle that had been used in the shootings, a blue, four door Buick Park Avenue that had tinted windows, a damaged front end and the license plate number 696-KGU. The vehicle was parked behind Bryant’s grandmother’s house.

The defendant was arrested on December 4, 1996, eight days after the shootings, by members of the Connecticut fugitive task force. The jury convicted the defendant of manslaughter in the first degree with a firearm, assault in the first degree and carrying a pistol or revolver without a permit. Thereafter, the court found that the defendant had used a firearm in the commission of a class B felony in violation of § 53-202k and enhanced his sentence accordingly. The defendant received a total effective sentence of fifty years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that he was deprived of his constitutional right to a fair trial as a result of “a pervasive pattern of egregious misconduct by the prosecuting attorney.” We disagree.

The defendant raises four instances of alleged misconduct by the prosecutor that he claims deprived him of a fair trial. The defendant concedes that he failed to preserve three of the claims properly at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5.

We will review the defendant’s claims under Golding because the record is adequate to do so, and an allegation of prosecutorial misconduct in violation of a fundamental right is of constitutional magnitude. State v. Yusuf, 70 Conn. App. 594, 622, 800 A.2d 590 (2002). We conclude, however, that the challenged questioning and comments did not deprive the defendant of a fair trial and, therefore, that his claims fail under the third prong of Golding.

“The standard of review for a claim of prosecutorial misconduct is well established. [T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct .of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecu-torial misconduct.” (Internal quotation marks omitted.) State v. Stevenson, 70 Conn. App. 29, 33, 797 A.2d 1 (2002).

“In order to determine whether claims of prosecu-torial misconduct amounted to a denial of due process, we must decide whether the challenged remarks were improper, and, if so, whether they caused substantial prejudice to the defendant. ... In conducting our analysis, we focus on several factors: (1) the extent to which the misconduct was invited by defense conduct or argument; (2) the severity of the conduct; (3) the frequency of the conduct; (4) the centrality of the misconduct to the critical issues of the case; (5) the strength of the curative instructions adopted; and (6) the strength of the state’s case.” (Internal quotation marks omitted.) State v. Yusuf supra, 70 Conn. App. 622-23. With those principles in mind, we will review each of the defendant’s claims.

A

The defendant first claims that the prosecutor’s questioning of Detective Joseph Greene of the New Haven police department regarding Greene’s position as a member of the Connecticut fugitive task force and his involvement in the arrest of the defendant along with the prosecutor’s comments during closing argument to the jury with respect thereto were “intended to falsely and prejudicially portray [the defendant] to the jury as a modem day [John] Dillinger, a dangerous, desperate fugitive who could only be captured through what amounted to a military operation involving state as well as federal law enforcement personnel.” The defendant mischaracterizes the prosecutor’s questioning of Greene and the comments during closing argument regarding Greene’s testimony.

Greene testified that he was a member of the fugitive task force, a unit comprised of federal and state agents, whose responsibility is to apprehend Connecticut’s most wanted fugitives. On December 4, 1996, the task force learned that the defendant was at a residence on Richard Street in New Haven. Upon arriving at the location, task force members knocked on the door several times and announced themselves. After a delay, the door was opened and a pit bull came toward the officers. The dog attacked one of the officers and was shot. The task force then entered the apartment and located the defendant standing fully clothed in the shower, where he was placed under arrest.

Greene testified about only the events surrounding the defendant’s arrest. The state can present evidence to show “the investigative effort made by the police and the sequence of events as they unfolded . . . .” (Internal quotation marks omitted.) State v. Dudley, 68 Conn. App. 405, 423, 791 A.2d 661, cert. denied, 260 Conn. 916, 797 A.2d 515 (2002). As such, Greene’s testimony was admissible.

The defendant further claims that the prosecutor’s remarks during closing argument, with respect to the testimony that Greene provided, were improper. Those remarks merely summarized Greene’s properly admitted testimony. Accordingly, the remarks during closing argument were not improper.

B

The defendant next contends that the prosecutor “injected prejudicial, accusatory and irrelevant questions intended to falsely imply to the jury that [the defendant] was involved in drugs, possessed a number of guns, owned a pit bull, which he used to guard his illicit stash of guns and drugs, and had told his mother in the days immediately after the shootings on Rosette Street that he intended to leave the state.” We disagree.

The defendant testified at trial. On direct examination, he testified as follows. On the morning of November 26,1996, he smoked marijuana and drank two forty ounce containers of beer and some gin and juice. At approximately 1 p.m., he was walking along Rosette Street where he saw Green, Blackwell and Cole near the street curb. As he was walking past the group, Green grabbed and attempted to take the chain that was around his neck. The chain had a medallion on it of the head of Jesus. Green brandished a gun, and a struggle ensued over its possession. During the struggle, two shots were fired. Once the defendant obtained possession of the gun, he fired another shot at Green. The defendant then ran to Bryant’s car, which was stopped nearby, and fled.

On cross-examination, the prosecutor asked the defendant whether he had possessed a firearm. The prosecutor also asked the defendant whether he had safes in his house that he used to store drugs and guns. The prosecutor then asked the defendant whether he had the gun that was used in the shootings in a safe he kept in his home and whether he had owned the pit bull to protect the safe. Further, the prosecutor asked the defendant whether he had told his mother after the shootings that he planned to leave the state. The prosecutor’s questioning was not inappropriate.

“[B]y exercising his fifth amendment right to testify on his own behalf, it is axiomatic that a defendant opens the door to comment on his veracity. It is well established that once an accused takes the stand and testifies his credibility is subject to scrutiny and close examination. ... A defendant cannot both take the stand and be immune from impeachment. ... An accused who testifies subjects himself to the same rules and tests which could by law be applied to other witnesses.” (Internal quotation marks omitted.) Id., 413. “A trial court has wide discretion both as to the allowance of questions involving relevancy and remoteness and as to the scope of cross examination to show contradictory statements.” 1B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 10c (2), p. 38.

The defendant, who did not object to the prosecutor’s questions at trial, put his credibility at issue by testifying. In permitting the prosecutor’s questioning regarding the presence of guns and drugs, the use of a safe, whether the pit bull guarded the drugs and guns, and the defendant’s statement to his mother, the court did not abuse its discretion in determining the scope of cross-examination. Furthermore, the defendant’s argument that the prosecutor acted improperly by not accepting the defendant’s answers at face value and then moving on to inquire about other topics is without merit.

The defendant also claims that the state’s comments during closing argument, with respect to guns and the statement he made to his mother, were improper. “[A] prosecutor may properly comment on the credibility of a witness where . . . the comment reflects reasonable inferences from the evidence adduced at trial. . . . Moreover, [b]ecause closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument.” (Citation omitted; internal quotation marks omitted.) State v. Yusuf, supra, 70 Conn. App. 625. We therefore conclude that the prosecutor’s comments were not improper.

C

The defendant next claims that the prosecutor acted improperly by attempting to impeach him through the use of a written statement that Bryant had given to the police. We disagree.

On cross-examination, the prosecutor asked the defendant whether he had met with Bryant after the shootings and before the defendant’s arrest. The defendant initially denied that such a meeting took place, but later testified that he had “no recollection of that.” The prosecutor then showed the defendant Bryant’s statement in an attempt to refresh his recollection. Defense counsel then asked what page the prosecutor was having the defendant review. The prosecutor replied: “This is Gino Bryant’s statement, and it’s page — ” before he was interrupted by defense counsel, who asked that the jury be excused. Outside of the jury’s presence, the court overruled the defendant’s objection and permitted the prosecutor to use Bryant’s statement in an attempt to refresh the defendant’s recollection as to whether the defendant had met with Bryant following the shootings.

With the jury present, the prosecutor asked the defendant whether Bryant’s statement would refresh his recollection about a conversation the day following the shootings in which Bryant said to the defendant: “Yo, we into some hot shit, man.” The defendant testified that the statement did not refresh his recollection, and the prosecutor proceeded to a different line of inquiry.

Although the defendant’s claim is that the prosecutor sought to use Bryant’s statement to impeach the defendant, a review of the record demonstrates that the prosecutor’s purpose in using the statement was to refresh the defendant’s recollection about a conversation he had with Bryant after the shootings. “Any object or writing may be used by a witness to refresh the witness’ memory while testifying. ...” (Emphasis added.) Conn. Code Evid. § 6-9 (a). “The object or writing need not be admissible because the witness will testify from his . . . refreshed recollection, not from the object or writing that was used to refresh his . . . recollection.” Id., § 6-9 (a) commentary. The prosecutor’s use of Bryant’s statement in an attempt to refresh the defendant’s recollection was permissible.

The defendant further argues that he was prejudiced as a result of the prosecutor’s reading from Bryant’s statement when asking if the statement would help refresh the defendant’s recollection. The defendant, however, offers no authority or analysis for his assertion. Rather, he simply states that he was prejudiced because of the prosecutor’s mention that the document was a statement from Bryant. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) State v. Vicente, 62 Conn. App. 625, 632, 772 A.2d 643 (2001).

D

The defendant’s final claim of prosecutorial misconduct is that the prosecutor “groundlessly and prejudi-cially impugned the sincerity of [his] religious beliefs . . . .” The defendant’s assertion is without merit.

The defendant’s claim rests on the prosecutor’s comment during closing argument that “[u]p until yesterday, there never was any jewelry hanging out of his shirt. Yesterday was the first time he had that cross over his tie. He has it out again today. You think it, that was not planned?” The defendant, however, has failed to show how that comment impugned his religious beliefs.

When read in conjunction with the prosecutor’s immediately preceding remarks, it is clear that the prosecutor’s comment did not have religious undertones. The defendant testified that he had shot Green in self-defense and that Green had used a firearm in an attempt to steal the chain that he was wearing, which had a medallion of the head of Jesus. The prosecutor’s comments, however, were directed at the defendant’s version of events, not at his religious beliefs. No fair reading of the prosecutor’s comments reveals an attempt to call into question the sincerity of the defendant’s religious beliefs.

E

Having concluded that the prosecutor’s questioning of the witnesses and his comments during closing argument were not improper, we need not address whether the defendant was substantially prejudiced. See State v. Thompson, 69 Conn. App. 299, 307, 797 A.2d 539, cert. granted on other grounds, 260 Conn. 936, 802 A.2d 90 (2002). Accordingly, the defendant’s claim that he was deprived of a fair trial because of a pattern of prosecutorial misconduct is without merit.

F

The defendant also seeks plain error review of his claims of prosecutorial misconduct. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. J.R., 69 Conn. App. 767, 778, 797 A.2d 560, cert. denied, 260 Conn. 935, 802 A.2d 89 (2002). As we previously concluded, there was no misconduct by the prosecutor. Accordingly, plain error review is not warranted.

II

The defendant next claims that the court’s consciousness of guilt instruction deprived him of due process by invading the fact-finding province of the jury. Specifically, the defendant argues that the court improperly stated: “The defendant’s initial flight and hiding does not raise a legal presumption of guilt, but it is to be given the weight to which the jury thinks it is entitled under the circumstances shown in this case.” It is the defendant’s contention that the court “instructed the jury to treat as fact a disputed factual predicate for the consciousness of guilt instruction . . . .” We decline to review the defendant’s claim.

The defendant concedes that his claim was not preserved properly at trial. Therefore, he seeks review under State v. Golding, supra, 213 Conn. 239-40, or the plain error doctrine. Practice Book § 60-5. The defendant’s claim fails to satisfy the second prong of Golding because it is not of constitutional magnitude. “It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the . . . Golding standard.” (Internal quotation marks omitted.) State v. Turner, 67 Conn. App. 519, 527, 787 A.2d 625 (2002). Accordingly, we decline to afford Golding review to the defendant’s claim as to the court’s consciousness of guilt instruction.

As previously stated, “[p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . The claimed error here is not so egregious or obvious as to merit such review. . . . The instructions read as a whole did not result in an unreliable verdict or miscarriage of justice.” (Citations omitted; internal quotation marks omitted.) State v. Tyson, 43 Conn. App. 61, 66, 682 A.2d 536, cert. denied, 239 Conn. 933, 683 A.2d 401 (1996). Accordingly, plain error review is not warranted.

III

The defendant also asks us to exercise our supervisory powers to abolish the consciousness of guilt instruction. We decline that invitation.

“[T]his court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. . . . Accordingly, we are guided in the resolution of this claim by State v. Hines, 243 Conn. 796, 709 A.2d 522 (1998). In Hines, our Supreme Court rejected the invitation to overrule precedent permitting such instructions. . . . Regarding the defendant’s request that we invoke our supervisory powers to promulgate a rule precluding jury instructions on consciousness of guilt, the Hines court declined to exercise its supervisory powers, noting that it did not consider this an appropriate case for the exercise of [its] supervisory powers . . . since [a] blanket rule governing flight instructions would not serve the narrow purpose that [its] supervisory powers are intended to further.” (Citations omitted; internal quotation marks omitted.) State v. Portee, 55 Conn. App. 544, 569-70, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A.2d 439 (2000); see also State v. Figueroa, 257 Conn. 192, 197, 777 A.2d 587 (2001). Accordingly, we will not, and cannot, exercise our supervisory powers to abolish the consciousness of guilt instruction.

IV

The defendant’s final claim is that the court violated the constitutional prohibition against double jeopardy when it applied the five year sentence enhancement provision of § 53-202k to his sentence for manslaughter in the first degree with a firearm. We disagree.

Our resolution of the defendant’s claim is controlled by our Supreme Court’s decision in State v. McMahon, 257 Conn. 544, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S. Ct. 1069, 151 L. Ed. 2d 972 (2002). In McMahon, our Supreme Court addressed the identical issue now raised by the defendant. Id., 557-58. In rejecting the double jeopardy challenge in McMahon, the court, after reviewing the express language of § 53-202k and the legislative history surrounding its enactment, held that “[o]n the basis of the plain language of § 53-202k, its legislative history, and prior court decisions interpreting the statute, we conclude that the application of § 53-202k’s sentence enhancement to manslaughter in the first degree with a firearm, a class B felony, does not violate double jeopardy.” Id., 562.

As previously stated, “[t]his court will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide.” (Internal quotation marks omitted.) State v. Portee, supra, 55 Conn. App. 569. Accordingly, the defendant’s claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant initially was charged with murder in violation of General Statutes § 53a-54a. The jury acquitted him of the murder charge and found him guilty of manslaughter in the first degree with a firearm as a lesser offense included within the crime of murder.

       The defendant was acquitted of conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a, and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (1).

       The defendant elected a trial to the court on part B of the information, which charged him with having used a firearm in the commission of a class A, B or C felony in violation of § 53-202k.

       The prosecutor stated in closing argument in relevant part: “Then we heard from Detective Joseph Greene from the Connecticut fugitive task force. We know that on the force, they look for Connecticut’s most wanted fugitives. And we know that they cooperate, and there were members on the team that day from the [Federal Bureau of Investigation] and Milford police department, and uniformed New Haven officers. He told us of the addresses that he was looking at for [the defendant]. He told us that finally, they narrowed it to 9 Richard Street, I believe, second floor, and they surrounded the building with uniformed officers. And then he showed us on the jury door how he knocked and said, ‘Police. Open up,’ and how many times he did that. He said around seven, I think. And he said he did it louder there than he did here. And he talks about hearing the dog start to bark, stop barking and hearing the footsteps, eventually the dog coming out and [biting] another officer. And then finally this defendant in a bathtub with the shower curtain closed, fully clothed, hiding behind the shower curtain.”

       The prosecutor stated in closing argument in relevant part: “[The defendant] admitted to knowing how to use a gun. Now, think about it. He’s high. He’s drunk. He’s everything else. Yet he could wrestle with [Green] and know how to shoot just like that, but he’s never been in possession of a gun before, he says. Come on. He admitted he had a couple of [safes]. He didn’t admit he ever had any guns with him, but, ladies and gentlemen, just think about that.
      * ** *
      “Then, he denies being on the run. He’s just hanging out in New Haven. He said different — he’s not at — in his room at his mother’s house. He’s at different addresses. He said, oh, I left — I would have left the state. Interestingly enough, when I asked him, ‘Did you tell your mother you were going to leave the state on November 30, 1996?’ Oh, no. It just seems too packed, ladies and gentlemen. He has an explanation for anything.”

       The prosecutor stated: “Now, we get to this chain issue. Now, you saw the chain. Heard what he said, ten carat gold. Now, if you are going to be robbed, are you going to fight for your life over a piece of ten carat gold or are you going to give it up? I thought he said it maybe had some sentimental value to him. People have certain things, maybe a wedding ring and engagement ring, something from a dead relative, it really means something to them. That’s not even the case. What does he do? He sells it and then he has to find the person he sold it to to bring it in to show you. Doesn’t— just doesn’t make sense. And think about it, you all were picked as jurors. He was sitting here. Up until yesterday, there never was anyjeweliy [hanging] outside his shirt. Yesterday was the first time he had that cross over his tie. He has it out again today. You think it, that was not planned?”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses . . . any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. AUTILIO A. PEREIRA
    (AC 20490)
    Dranginis, West and Daly, Js.

      Argued June 19
    officially released September 3, 2002

      Robert P. Pickering, with whom, on the brief, was John M. Cicilline, pro hac vice, for the appellant (defendant).

      Michele C. Lukban, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, Robert M. Spector, former assistant state’s attorney, and Stephen M. Carney, assistant state’s attorney, for the appellee (state).

       This appeal was argued before a panel comprised of Judges Dranginis, West and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that they would not reargue the appeal to this court with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render a written decision.

   Opinion

WEST, J.

The defendant, Autilio A. Pereira, appeals from the judgment of conviction, rendered after a jury trial, of five counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and five counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21. On appeal, the defendant claims that (1) the trial court improperly (a) instructed the jury in violation of his state and federal constitutional rights and (b) admitted prejudicial evidence that deprived him of a lair trial, and (2) the prosecutor’s closing argument to the jury deprived the defendant of a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the summer of 1997, when the events that form the basis of the defendant’s conviction took place, the victim was fourteen years old and the defendant was thirty-two years old. The two lived in the same apartment building in Norwich, he with his family on the second floor, and she with her mother and two sisters on the third floor. They frequently saw one another in the hallways and would stop and talk. Residents of the apartment complex knew the defendant and that he owned a silver colored Porsche automobile.

After the school year ended in June, 1997, the defendant gave the victim his pager number so that she could contact him. When the victim paged the defendant, he would return her telephone call and they would talk. One evening, the defendant suggested that the victim go for a ride with him. Because it would not look right for the victim to be seen getting into the Porsche with him, the defendant arranged to meet the victim around a comer at the far side of the apartment building. Once the victim was in the vehicle, the defendant drove to a side street and parked the vehicle.

The defendant instmcted the victim not to be nervous around him and that he wanted her to be comfortable. He began to kiss her. Then the defendant unbuttoned his pants and asked the victim if she wanted to lick his penis. She placed the defendant’s penis in her mouth for approximately one minute, but stopped because she did not like the taste. The two returned to the place where they had met, and the defendant told the victim he wanted to date her. He said that it did not matter that she was young. The defendant told the victim to page him when they could talk.

A few days later, the victim paged the defendant and informed him that they could meet because her mother was out. At approximately 7 p.m., they met where they had done so previously and went in the Porsche to a nearby park. Again, they kissed and the defendant asked the victim to perform oral sex on him. She complied.

Rain fell on the morning of July 24, 1997. Due to the inclement weather, the victim did not report to her summer job. She knew that the defendant, who poured concrete for a living, would not have to go to his job and paged him. In response, the defendant telephoned the victim, asked if anyone was home and if he could come upstairs. The defendant went to the victim’s apartment at approximately 11 a.m. The victim sat on the defendant’s lap in the living room for about five minutes. Thereafter they went into the victim’s bedroom, sat on the bed and engaged in foreplay. The victim was uncomfortable about the situation, but the defendant reassured her. The defendant performed oral sex on the victim and then engaged in intercourse. When the victim tried to stop the defendant, he moved her hand and calmed her. Later that day, when they saw one another, the defendant told the victim he wanted her to call him. He told her that it was not a good idea to talk to one another where others could observe them.

The following Saturday morning, the victim paged the defendant and told him to come to her apartment because she was alone. The defendant went upstairs immediately, and the two went directly to the victim’s bedroom and engaged in sexual intercourse. The defendant left shortly thereafter because his wife was expected home soon.

On or about August 2, 1997, the victim paged the defendant at night. They arranged to meet, but not where they had done so previously. One of the victim’s friends waited with her on North Street, near the entrance to the apartment complex. The friend knew that the defendant was coming to meet the victim. The defendant arrived in his wife’s red motor vehicle because his Porsche was not working. They went to a parking lot where the defendant removed a child’s car seat from the rear passenger seat, and the two engaged in sexual intercourse. The defendant asked the victim whether she had told her friends about their relationship and warned her that they could both get into trouble if she did.

In fact, the victim had confided in her friends. On the evening of August 10, 1997, the defendant’s wife telephoned the victim’s mother and asked if she and the victim would come to her apartment. One of the victim’s friends had told the defendant’s wife that the defendant and the victim were having an affair. The defendant’s wife confronted the victim. The victim denied the affair. When she returned to her apartment, the victim’s mother telephone the police. The victim denied the affair to the responding officer. She later asserted that she believed that she was in love with the defendant and wanted to protect him.

The next day, the victim’s mother informed her that they were going to a hospital so that the victim could be examined. The victim knew that a pelvic examination would reveal that she had engaged in sexual intercourse. On the way to the hospital, her mother again asked the victim whether she was having an affair with the defendant. In response, the victim admitted that she was. The victim was examined by an emergency room physician, who observed that the victim’s hymen had been perforated.

The victim went to live with her father in a different community. The victim engaged in counseling with a licensed clinical psychologist from September, 1997, through June, 1998. The victim disclosed her sexual encounters with the defendant to her therapist. Between September, 1998, and June, 1999, the victim told a counselor at a school based health care center of the defendant’s sexual behavior toward her. Additional facts will be discussed where necessary.

I

INSTRUCTIONAL CLAIMS

The defendant claims that the court’s instructions to the jury violated his rights under the fifth, sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the constitution of Connecticut by (1) shifting the burden of proof to him and impinging on the presumption of innocence, and (2) failing to charge on the victim’s delay in reporting the incidents.

We must first consider the state’s assertion that the defendant’s instructional claims are not reviewable because they were not preserved at trial. The defendant contends that he preserved his claims properly. “Aparty may preserve for appeal a claim that a jury instruction was improper either by submitting a written request to charge or by taking an exception to the charge as given. Practice Book § 16-20. If counsel follows the latter course, he or she must ‘state distinctly the matter objected to and the ground of objection. . . .’ Id.” Pes-tey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). “The propose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials.” (Internal quotation marks omitted.) State v. Miller, 186 Conn. 654, 658, 443 A.2d 906 (1982).

A

The defendant’s claim that the court improperly shifted the burden of proof and impinged on his presumption of innocence is based on the following portion of the charge: “If a defendant should attempt to make false statements respecting himself and his conduct concerning the matter on trial, you may consider this evidence tending to show a guilty connection by the defendant with the crime charged.” (Emphasis added.) Defense counsel objected to the cited portion of the instruction, stating that the court had “indicated . . . that if the defendant should attempt to make false statements respecting himself or his conduct concerning the matter of trial, you should consider this evidence tending to show a guilty — a guilty connection by the defendant with the crime charged. This section, on the testimony of the defendant, basically implies, gives some sort of added scrutiny to the defendant that shouldn’t be there. He’s presumed innocent. He’s presumed innocent on the [witness] stand. There should be no special charges as to him. I point out that the court did not make any similar statements as to the victim, where credibility is an important thing, and she’s not on trial. He’s presumed innocent, and therefore there should not be, in my opinion, anything to say.”

In his brief to this court, the defendant has argued that the court’s use of the term “guilty connection” was improper because it “singled out his testimony, reduced the state’s burden of proof and improperly infringed on [his] constitutional right to testify in his defense.” We agree with the state that the defendant did not preserve his claim that the court’s instruction shifted the burden of proof or infringed on Ms rigM to testify. We discern no difference, however, between the terms “added scra-tmy” and “singled out” with respect to the defendant’s testimony. Nonetheless, we conclude that defense counsel’s objection at trial is not the same as the claim raised on appeal.

At trial, counsel addressed Ms objection to the court’s mstruction regarding the defendant’s false statements m general. On appeal, the defendant cites R. Leuba & R. Fracasse, Connecticut Selected Jury Mstructions Manual (1998) § 2.20, p. 49, and concedes that a court properly may charge the jury with respect to statements and acts that may tend to show a consciousness of guilt. The basis of Ms claim is the court’s use of the term “guilty connection” rather than the preferred term “consciousness of guilt.” The defendant did not bring that difference to the court’s attention at a time when the court could have clarified its instruction to the jury. For that reason, we will not review the defendant’s claim.

B

The defendant’s second Mstructional claim is that the court improperly failed to focus on the victim’s delay in reporting the sexual assault in violation of his constitutional rights and State v. Troupe, 237 Conn. 284, 305, 677 A.2d 917 (1996) (en banc). The state argues that the charge given by the court substantially complied with the defendant’s request to charge. The defendant’s response to the state’s position is that his counsel took an exception to the court’s instruction after it was given.

Defense counsel articulated his exception as follows. “The charge on constancy, I think, goes a little too far in the sense that it . . . says why she kept silent about what she did until she came before the court to testify. I think with the new cases and the like out, that’s not what is — the purpose of those, sort of restrictive. I’m just afraid that that somehow bootstraps in what it is the state has been trying to do in this case.”

We cannot discern how the exception articulated by counsel was intended to apprise the court of the claim the defendant is making in this court, specifically, that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint [and that] the defendant is entitled to an instruction that any delay by the victim in reporting the incident is a matter for the jury to consider in evaluating the weight of the victim’s testimony.” Id., 304-305. It is the defendant’s position that his counsel’s use of the term “new cases” adequately apprised the court of his position. It is difficult for us to understand how the court was to divine Trowpe from the defendant’s exception where the defendant himself did not even cite Troupe in his request to charge, in contravention of Practice Book § 42-18. We therefore conclude that the defendant failed to preserve for our review his constancy of accusation claim with respect to the court’s instruction.

II

EVIDENTIARY CLAIMS

The defendant has raised three evidentiary claims on appeal. He claims that the court improperly (1) failed to conduct a Ported hearing before letting the state present the testimony of the emergency room physician who examined the victim, (2) permitted the state’s expert witness to bolster the victim’s credibility and (3) admitted testimony under the constancy of accusation doctrine in violation of Troupe.

We review evidentiary claims pursuant to an abuse of discretion standard. “Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. O’Neil, 67 Conn. App. 827, 831, 789 A.2d 531 (2002).

A

The defendant claims that the court improperly admitted the testimony of the emergency room physician who examined the victim because the court failed to inquire as to the scientific basis for the witness’ testimony, and the testimony was inconclusive and therefore unreliable and improper for the jury to consider. The state again argues that we should not review the claim because it was not preserved at trial. We agree with the state.

“Our rules of practice make it clear that counsel must object to a ruling of evidence [and] state the grounds upon which objection is made ... to preserve the grounds for appeal. . . . These requirements are not simply formalities. . . . We consistently have stated that we will not consider evidentiary rulings where counsel did not properly preserve a claim of error by objection . . . .” (Citations omitted; internal quotation marks omitted.) State v. Lizotte, 200 Conn. 734, 742A, 517 A.2d 610 (1986).

The following facts are relevant for our resolution of the defendant’s claim. The defendant filed a motion seeking a hearing pursuant to 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). In that motion, the defendant represented that the police had received a complaint of sexual misconduct that gave rise to the charges against him, the victim was examined by a physician in a hospital, the examining physician provided a discharge diagnosis of alleged statutory rape on the basis of the physical examination and the history provided by the victim’s mother, there are no valid scientific studies or evidence that demonstrate that the physical symptoms are directly correlated to alleged statutory rape and that such opinion or correlation as evidence has no grounding in scientific fact, but is based on speculation and hearsay.

The court granted the defendant’s motion for a Porter hearing and conducted the hearing outside of the presence of the jury. At that time, the court also ruled on a medical report completed by the physician that contained statements that the victim’s chief complaint was statutory rape and a discharge diagnosis of alleged statutory rape. Counsel for the defendant argued that those portions of the medical report should be redacted as hearsay statements made by the victim’s mother. The state did not object, and the court ruled that the report would not be admitted into evidence and that the physician’s testimony would be limited to his physical findings and the purpose of his examination. The physician testified in accordance with the court’s ruling. Defense counsel cross-examined the physician, but asked no questions concerning and raised no objection as to the validity of the physician’s methodology.

The defendant’s claim as to the court’s failure to conduct a Po rter hearing with respect to the methodology the physician employed to determine whether the victim’s hymen was perforated was not preserved at trial. We therefore decline to review the claim.

B

The defendant’s second evidentiary claim is that the court improperly admitted into evidence the testimony of the state’s expert witness. More specifically, the defendant claims that the expert’s testimony, in response to a hypothetical question posed by the state, bolstered the victim’s credibility. We are not persuaded.

The following facts are relevant to the defendant’s claim. The state called Rosemary Niedzwicki, a licensed clinical social worker with special training in child sexual abuse, to testify as an expert witness. Niedzwicki had never treated and did not know the victim. She testified, in part, about the needs, characteristics and behaviors of children who have been sexually abused. The state posed a hypothetical question that paralleled the facts of this case and asked Niedzwicki, on the basis of her education, experience and familiarity with the literature on child sexual abuse, whether the manner in which the child in the hypothetical disclosed the sexual abuse was behavior typical of a child who had been sexually abused under those circumstances. Nied-zwicki answered, “yes.” She also testified that she was not in a position to evaluate whether anything that the victim in this case said or did was credible. The defendant objected to Niedwzicki’s testimony.

“Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . We review claims of improper admission of expert testimony under an abuse of discretion standard.” (Citations omitted; internal quotation marks omitted.) State v. Freeney, 228 Conn. 582, 591, 637 A.2d 1088 (1994).

Expert testimony about the characteristics and behavior of victims of abuse, be it battered woman syndrome or sexual abuse, has been addressed previously by appellate courts of this state. See, e.g., id., 589-93; State v. Borrelli, 227 Conn. 153, 629 A.2d 1105 (1993); State v. Niemeyer, 55 Conn. App. 447, 740 A.2d 416 (1999), rev’d in part on other grounds, 258 Conn. 510, 782 A.2d 658 (2001). Our Supreme Court has stated “that there is a critical distinction between admissible expert testimony on general or typical behavior patterns of . . . victims and inadmissible testimony directly concerning the particular victim’s credibility.” (Internal quotation marks omitted.) State v. Borrelli, supra, 173.

An “expert may testify only as to the general behavior of victims of domestic abuse. He may not give an opinion as to whether this particular victim told the truth or whether this particular victim in fact suffered from domestic abuse. . . . These questions are solely within the province of the jury.” (Citation omitted; emphasis in original.) State v. Niemeyer, supra, 55 Conn. App. 453. On the basis of our review of the transcript and the arguments of the parties on appeal, we conclude that the court properly admitted Niedzwicki’s testimony with respect to the hypothetical question posed by the state, as it did not intrude on the juiy’s function as the arbiter of credibility and provided guidance to the jury on a matter that is not common knowledge.

C

The third of the defendant’s evidentiary claims is that the court improperly admitted evidence pursuant to the constancy of accusation doctrine in violation of State v. Troupe, supra, 237 Conn. 284, and its progeny. We disagree.

“[Wjhether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Cansler, 54 Conn. App. 819, 825, 738 A.2d 1095 (1999). An appellate court will make every reasonable presumption in favor of upholding the trial court’s evidentiary rulings. See State v. Orhan, 52 Conn. App. 231, 237, 726 A.2d 629 (1999).

In Troupe, our Supreme Court held that “constancy of accusation witnesses in sexual assault cases would be confined to testify only regar ding the fact that the victim complained to them, the time when that complaint was made, and the limited details of the assault, including the identity of the alleged perpetrator as reported to the witness by the victim.” State v. Kelly, 256 Conn. 23, 36, 770 A.2d 908 (2001). “Accordingly . . . any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. [State v. Troupe, supra, 237 Conn. 304.] Additionally, to admit the constancy of accusation testimony, the trial court must nevertheless, balance the probative value of the evidence against any prejudice to the defendant. Id., 305.” (Internal quotation marks omitted.) State v. Kelly, supra, 36.

“[S]uch evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.” State v. Troupe, supra, 237 Conn. 304-305. Furthermore, “the rule adopted in Troupe did not affect other rules of evidence or render inadmissible evidence that would otherwise be admissible under other rules of evidence, such as exceptions to the general rule against hearsay.” State v. Kelly, supra, 256 Conn. 37.

In his principal appellate brief, the defendant cites questions that were asked of six witnesses and argues that the court improperly admitted their constancy of accusation testimony because both the state and the court asked the witnesses broad questions that elicited extensive, detailed narratives rather than asking questions tailored to elicit the scope of testimony permitted by Troupe. We disagree that the questions invited expansive responses. Of the seventeen questions cited by the defendant in his brief, all but three required a yes or no answer. None of the yes or no questions violated the confines of Troupe. Some of the questions asked in no way related to constancy of accusation and were, in fact, directed to fact witnesses. Although the defendant carefully included the questions he disliked, he did not provide the response or explain how the response was either irrelevant, immaterial, in violation of one of the rales of evidence or prejudicial to him pursuant to the constancy of accusation rale. The defendant merely included portions of the witnesses’ testimony in his appendix and invited us to read it. It is not the job of an appellate court to search through the transcript on behalf of the defendant to find an error that he claims was prejudicial to him.

The defendant’s argument as to the prejudice that supposedly befell him is that the testimony of the constancy witnesses was not constant because those witnesses offered different testimony as to the nature of the victim’s relationship with him. From the perspective of the court, inconsistent testimony from the state’s witnesses rarely is prejudicial to a defendant. If anything, it will call into question the validity of the state’s case in the eyes of the jury, which is the arbiter of credibility.

We have read the testimony cited in the defendant’s appendix and the testimony brought to our attention by the state. None of the witnesses described the details of the sexual activity between the defendant and the victim. Most witnesses merely testified that the victim told them that she was having sex with the defendant and told them in general terms when it took place. At the conclusion of the testimony of several constancy of accusation witnesses, the court instructed the jury regarding constancy of accusation evidence, particularly that it could not be used as evidence of the crimes with which the defendant was charged. We also note that the defendant himself elicited specific facts from the witnesses during his cross-examination of them. For those reasons, we conclude that the court did not abuse its discretion by admitting the constancy of accusation evidence of which the defendant complains.

m

ALLEGED PROSECUTORIAL MISCONDUCT

The defendant’s last claim is that the prosecutor’s final argument to the jury violated his constitutional rights and deprived him of a fair trial. The defendant failed to object to the closing argument of the prosecutor and seeks review under the plain error doctrine; Practice Book § 60-5; or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant’s claim pursuant to Golding because the record is adequate for us to do so, and an allegation of prosecutorial misconduct in violation of a fundamental right is of constitutional magnitude. State v. Jenkins, 70 Conn. App. 515, 526, 800 A.2d 1200 (2002). On the basis of our review of the trial transcript and the briefs and arguments of the parties, we conclude, however, that the alleged constitutional violation did not clearly exist and did not clearly deprive the defendant of a fair trial, and, further that it is not one of those truly exceptional circumstances that warrant plain error review.

“Prosecutorial misconduct can occur in the course of closing argument. . . . Our standard of review of a claim of prosecutorial misconduct that allegedly results in an unfair trial is well established. [T]o deprive a defendant of his constitutional right to a fair trial . . . the prosecutor’s conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process. . . . We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecu-torial misconduct.” (Internal quotation marks omitted.) Id., 526-27.

The essence of the defendant’s claim is that the prosecutor improperly commented on the credibility of the witnesses and the inferences that could be drawn from their testimony. We agree with the defendant that in general, during closing arguments, a prosecutor may not express a personal opinion as to the credibility of witnesses. State v. Williams, 204 Conn. 523, 541, 529 A.2d 653 (1987). Where a prosecutor offers an opinion while recapitulating the evidence, however, our Supreme Court has held that such comments are improper, but do not constitute serious misconduct that affects the fairness of the trial. See State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). This court has held that it is not improper for a prosecutor to offer an opinion when commenting on evidence that supports the credibility of a witness. See State v. Saez, 60 Conn. App. 264, 268, 758 A.2d 894, cert. denied, 255 Conn. 905, 762 A.2d 912 (2000). A prosecutor may contend that testimony is truthful because it is “corroborated by the other evidence in the case.” State v. James, 211 Conn. 555, 590, 560 A.2d 426 (1989). Furthermore, aprosecutor may properly comment on the credibility of a witness where “the comment reflects reasonable inferences from the evidence adduced at trial.” Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 401, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999).

“[I]n addressing the jury, [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . [W]e must review the comments complained of in the context of the entire trial.” (Internal quotation marks omitted.) State v. Abdalaziz, 45 Conn. App. 591, 605, 696 A.2d 1310 (1997), aff'd, 248 Conn. 430, 729 A.2d 725 (1999). “The mere use of phrases such as T submit,’ T find,’ or 1 believe’ does not constitute improper argument.” Jenkins v. Commissioner of Correction, supra, 52 Conn. App. 400. A prosecutor may discuss whether witnesses have rehearsed their testimony; see State v. Burton, 258 Conn. 153, 169, 778 A.2d 955 (2001); State v. James, supra, 211 Conn. 589-90; and bring to the jury’s attention the testimony of those witnesses who have an interest in the outcome of the trial. See State v. Jefferson, 67 Conn. App. 249, 272-73, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 (2002).

We have reviewed the transcript of the prosecutor’s closing argument and are mindful of the parameters that guide our determination of whether a prosecutor’s comments were so egregious as to have violated the defendant’s constitutional rights to a fair trial. We conclude that the prosecutor’s comments here fell within those boundaries and that the defendant was not denied a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 1997) § 53-21 provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child shall be guilty of a class C felony.”

       In keeping with our policy to protect the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom her identity may be revealed. See General Statutes § 54-86e.

       Our Supreme Court has held that use of the term “guilty connection” in the context of an otherwise proper instruction did not dilute the state’s burden of proof or burden the defendant’s right to testify; State v. Francis, 228 Conn. 118, 132, 635 A.2d 762 (1993); and therefore that there was no federal constitutional violation. See also Goodrum v. Commissioner of Correction, 63 Conn. App. 297, 309-10, 776 A.2d 461 (phrase identifies permissive inference rather than forced conclusion), cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). In concluding that the term guilty connection did not violate the defendant’s rights under the fifth and fourteenth amendments to the United States constitution, our Supreme Court in Francis advised trial courts that “because of the possibility of the jury’s confusing ‘guilty connection’ as indicating evidence of guilt itself rather than evidence of consciousness of guilt; [State v. Brown, 199 Conn. 14, 27, 505 A.2d 690 (1986)]; it would be preferable for the trial court to omit the phrase ‘guilty connection’ from its instructions regarding false statements made by the defendant.” State v. Francis, supra, 133 n.16.

        The defendant here did not bring Francis to the court’s attention when he objected to the charge.

       With respect to constancy of accusation, the court instructed the jury as follows: “As you know, statements made out of court by a witness generally are not admissible because those out-of-court statements lack the support of tlie oath that a witness taires in court. However, there are exceptions to that general rule, and we have one of those exceptions in this case.
      “Now, the complaining witness here, [the victim], has testified here in court as to the offenses the state and she claim were committed upon her. Now, if that were all we had, you would ask yourselves, why did she keep silent about it until she came here before the court to testify. So, for the purpose of corroborating her testimony, the state is permitted to prove that outside of court, she made complaints or statements about what was done to her by the defendant. She made these statements to other persons. . . .
      “Now, this evidence was admitted to corroborate her testimony in court. It is to be considered by you on a very — on a limited basis, and considered by you only in determining the weight and credibility of [the victim’s] testimony. The fact that [the victim] made these statements is not being offered to prove that these events happened. But merely that she claimed they happened and to corroborate her in-court testimony. In determining the extent of such corroboration in her statements out of — the extent of such corroboration of her statements out of court, you will carefully consider all the circumstances under which they were made and, particularly, you should consider whether she has been constant and consistent in what she has said.
      “In addition, for the purpose of corroborating [the victim’s] testimony, her out-of-court statements may also be used for the purpose of impeaching her testimony. Therefore, you may rely on and consider any contradictions, inconsistencies or falsities which you find in the [victim’s] out-of-court statements in assessing the weight and credibility of her testimony.”
      We have reviewed the defendant’s request to charge and conclude that the instruction given by the court was more comprehensive than what the defendant had requested.

       Practice Book § 42-18 (a) provides in relevant part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based . . . (Emphasis added.)

        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). In Porter, our Supreme Court adopted the standard for the admissibility of scientific evidence set forth by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). “This entails a two part inquiry: whether the reasoning or methodology underlying the [scientific theory or technique in question] is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.’’ (Internal quotation marks omitted.) State v. Porter, supra, 63-64.

        State v. Troupe, supra, 237 Conn. 284.

       The physician testified as to his credentials, experience and his pelvic examination of the victim. He found that the victim’s hymen had been perforated. He explained the anatomy of the hymen, how perforation is determined and the various ways in which the hymen can be perforated. Although he found that the victim’s hymen was perforated, he had no way of knowing how or when it was perforated.

       Although we decline to review the defendant’s claim, we make clear that Porter does not apply “to all expert testimony, but only to that which involves ‘innovative scientific techniques.’ ” State v. Reid, 254 Conn. 540, 546, 757 A.2d 482 (2000). “[S]ome scientific principles have become so well established that an explicit [Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993)] analysis is not necessary for admission of evidence thereunder. . . . Evidence derived from such principles would clearly withstand a Daubert analysis, and thus may be admitted simply on a showing of relevance.” (Internal quotation marks omitted.) State v. Reid, supra, 546. The circumstances here of the physician testifying as to his observations based upon his education, skill and training are analogous to those of Reid and State v. Hasan, 205 Conn. 485, 491-92, 534 A.2d 877 (1987), in which the testimony at issue “concerned a method, the understanding of which [was] accessible to the jury . . . .” (Citation omitted; internal quotation marks omitted.) State v. Reid, supra, 547.

       Examples of some of the questions requiring a yes or no answer included:
      “Q: And did she tell you of any facts or make any allegations which would indicate who perpetrated the sexual assault?
      "Q: And the counseling that you provided to her, was it specific to sexual abuse?”
      “Q: Did she indicate to you that it was more than one sexual act?”
      “Q: After she said to you that they had sex, were there other substantial conversations on this topic?”

       Examples of questions that did not relate to constancy of accusation included:
      “Q: All right, Now I want to ask you about guys. All right. When you say you talked about guys, what do you mean?”
      “Q: And in the summer of 1997, was there a particular guy that she liked?”
      “Q: Did you ever see [the defendant] and [the victim] together?”

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       Under Golding, a defendant can prevail on an unpreserved claim of constitutional error “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.

       “[T]o prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . The doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Hair, 68 Conn. App. 695, 705, 792 A.2d 179, cert. denied, 260 Conn. 925, 797 A.2d 522 (2002).


author: LAVERY, C. J.

text:
    STATE OF CONNECTICUT v. KEVIN J. HACKETT
    (AC 22174)
    Laveiy> C. X, and Dranginis and Daly, Js.

      Argued April 25
    officially released September 3, 2002

      Louis S. Avitabile, special public defender, for the appellant (defendant).

      Julia K. Mahoney, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Amy Sedensky, assistant state’s attorney, for the appellee (state).

       This appeal was argued before a panel comprised of Chief Judge Lavery and Judges Dranginis and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written decision. The parties stipulated, however, that rather than rearguing the appeal to this court with a panel consisting of the original two judges and an additional judge, they would permit the remaining two judges alone to render a written decision.

   Opinion

LAVERY, C. J.

The defendant, Kevin J. Hackett, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while his operator’s license was under suspension in violation of General Statutes § 1.4-215 where his license had been suspended for having operated a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. In his brief, the defendant claims that the court, in denying his motions for a judgment of acquittal that were made during and after the presentation of evidence, improperly concluded that there was sufficient evidence that he had operated his motor vehicle in an area open for “public use” and that the court’s jury instruction on that term misstated the law. At oral argument before this court, he modified his position in recognition that the plain language of § 14-215 (a) does not refer to “public use” as an element of the crime. At oral argument, he claimed that (1) he did not violate § 14-215 because a license is not required to operate a motor vehicle on private property without a posted speed limit, and (2) the judgment of conviction should be reversed on the ground of plain error because the parties and the court believed that “public use” was an element of § 14-215 (a). We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. Shortly before 7 p.m. on January 20,2001, Alice Ventresca was getting out of a taxicab near her apartment building at 45 Savings Street in Waterbury. She heard a crash and an automobile engine stop running. She then went to the lobby of her building and saw the defendant, who she knew lived in the same building, getting out of the driver’s side of his automobile. He passed her in the lobby and entered an elevator after assuring her that he was all right, despite the large lump that she observed on his head. Ventresca, fearing that the defendant had a concussion, called the police and showed them the car because she feared that someone else had been injured in the crash. She also noticed that the left rear taillight of the defendant’s automobile was lit.

Patrolman David McKnight of the Waterbury police department was dispatched to 45 Savings Street and spoke with several individuals who informed him that there had been an accident. After observing the car, which was “fairly damaged,” he went to the defendant’s apartment. After first denying that he had been in an accident, the defendant admitted that he had been operating the automobile. At that time, the defendant’s operator’s license was under suspension from December 17, 2000, through December 17, 2003.

In an amended information, the defendant was charged with operating a motor vehicle in a parking area for ten cars or more while his license was under suspension in violation of § 14-215 (a). Trial was held on June 12, 2001. At the close of the state’s case-in-chief, the defendant requested a judgment of acquittal, which the court denied. The defendant then testified. He admitted that his automobile had hit a wall at 45 Savings Street, but testified that it was operated by a friend, Marcel Levesque. He also testified that the accident occurred at approximately 2 p.m. He testified that at approximately 5 p.m., he got into the driver’s side of the vehicle to remove the radio. Because the driver’s side door was “crimped or jammed against the front fender,” it made a loud noise when he opened and closed it. He then went back into the lobby, told Ventresca that he was all right in response to her questioning and went to his apartment. He testified that he told the police officer three or four times that he had not been operating the vehicle. The defendant also testified that he had signed a criminal summons because the officer told him that he would go to jail if he did not do so. On cross-examination, he testified that he did not drive at all on that day because he knew that his license was under suspension. The defendant again requested a judgment of acquittal at the close of all the evidence, which the court denied.

On June 13, 2001, the jury found the defendant guilty. After further testimony, the jury found him guilty on part B of the information, which charged him with having violated § 14-215 (c) in that he had operated a motor vehicle while his license was under suspension pursuant to General Statutes § 14-227b. The defendant’s subsequent motions for a judgment of acquittal as to both charges and for a new trial were denied. The court sentenced the defendant to thirty days incarceration. This appeal followed.

As previously discussed, the defendant modified his claims at oral argument in recognition that the plain language of § 14-215 does not require a showing that the motor vehicle was operated in an area open for “public use.” Accordingly, the defendant restated his claims, arguing that (1) he did not violate § 14-215 because a license is not required to operate a motor vehicle on private property where no speed limit is posted, and (2) the judgment of conviction should be reversed on the ground of plain error because the parties and the court believed that “public use” was an element of § 14-215 (a). We disagree with both claims.

We conclude that one whose operator’s license is under suspension violates § 14-215 whenever he operates a motor vehicle, regardless of whether it is operated on public or private property. We reach that conclusion after engaging in the two step process required for interpretation of criminal statutes. “Statutory construction . . . presents a question of law over which our review is plenary. . . . According to our long-standing principles of statutory [interpretation], our fundamental objective is to ascertain and give effect to the intent of the legislature. ... In determining the intent of a statute, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Once we ascertain the proper meaning of the statute, we then must undertake due process analysis to assess whether this meaning was apparent enough so as to give the defendant fair warning that his conduct was proscribed.” (Citation omitted; internal quotation marks omitted.) State v. Vickers, 260 Conn. 219, 223-24, 796 A.2d 502 (2002). Not only do we conclude that the words of § 14-215 (a) should be given their plain meaning, but we conclude also that the defendant had been warned fairly that he was completely prohibited from operating a motor vehicle.

Section 14-215 (a) provides in relevant part: “No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle . . . has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. ...” (Emphasis added.) Mindful that “[w]ords in a statute must be given their plain and ordinary meaning . . . unless the context indicates that a different meaning was intended”; (internal quotation marks omitted) id., 224; we conclude that the § 14-215 (a) prohibits absolutely all operation of a motor vehicle, without limitation.

In reaching that conclusion, we note that other statutes in the same chapter of our General Statutes limit their applicability to specified roadways. See General Statutes § 14-212a (highway construction or utility work zones); General Statutes § 14-212b (school zone); General Statutes § 14-216 (highway); General Statutes § 14-218a (public highway, road of specially chartered municipal association or district, parking area, private road with established speed limit, school property); General Statutes § 14-219 (highway; road; parking area for ten or more cars; multiple lane, limited access highway); General Statutes § 14-220 (limited access divided highway, other highway); General Statutes § 14-221 (highway); General Statutes § 14-222 (public highway, road of specially chartered municipal association or district, parking area for ten or more cars, private road with established speed limit, school property); General Statutes § 14-224 (c) and (d) (public highway, limited access highway); General Statutes § 14-225 (public street or highway, parking area for ten or more cars, school property); General Statutes § 14-227a (public highway, road of specially chartered municipal association or district, parking area for ten or more cars, private road with established speed limit, school property); General Statutes § 14-230 (highway); General Statutes § 14-230a (divided, limited access highway); General Statutes § 14-235 (highway); General Statutes § 14-236 (multiple lane highway); General Statutes § 14-237 (divided highway); General Statutes § 14-238 (controlled access highway); General Statutes § 14-238a (limited access highway); General Statutes § 14-242 (highway); General Statutes § 14-245 (highway); General Statutes § 14-246a (highway); General Statutes § 14-247 (private road or driveway); General Statutes § 14-247a (alley, driveway or building); General Statutes § 14-248a (public highway); General Statutes § 14-257 (public highway, other public place); General Statutes § 14-261 (public highway); General Statutes § 14-262 (highway, bridge); General Statutes § 14-264 (highway, bridge); General Statutes § 14-266 (state highway); General Statutes § 14-267a (highway, bridge); General Statutes § 14-269 (highway, bridge); General Statutes § 14-269a (highway); General Statutes § 14-270 (highway, bridge); General Statutes § 14-271 (highway); General Statutes § 14-272a (public highway); General Statutes § 14-279 (highway, private road, parking area, school property); General Statutes § 14-284 (highway); General Statutes § 14-285 (highway); General Statutes § 14-286a (highway); General Statutes § 14-286b (roadway); General Statutes § 14-286c (highway); General Statutes § 14-286d (highway); General Statutes § 14-288 (public highway); General Statutes § 14-292 (highway); General Statutes § 14-293a (public highway); General Statutes § 14-293b (public highway); General Statutes § 14-296a (public highway). Because § 14-215 contains no such limitation, we conclude that it was meant to apply absolutely to operation of a motor vehicle.

The defendant argues that because General Statutes § 14-36 (a) requires that one needs an operator’s license for the operation of a motor vehicle only on a “public highway ... or private road on which a speed limit has been established,” he did not need a license to drive in the building’s parking lot. As a result, he argues, it was irrelevant whether his license had been suspended. Essentially, the defendant asks us to adopt the holding of the Appellate Division of the Circuit Court in State v. Haight, 2 Conn. Cir. Ct. 79, 194 A.2d 718 (1963). We decline to do so and overrule that decision.

“[W]e are not bound by the precedent of the statutory Appellate Division of the Circuit Court”; State v. Hyatt, 9 Conn. App. 426, 430, 519 A.2d 612 (1987); although we may find it persuasive. See, e.g., State v. Johnson, 28 Conn. App. 708, 717, 613 A.2d 1344 (1992), aff'd, 227 Conn. 534, 630 A.2d 1059 (1993). We are not persuaded by Haight. There, the defendant appealed from the judgment of conviction for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227, now § 14-227a, and operating a motor vehicle while his license was under suspension in violation of § 14-215. State v. Haight, supra, 2 Conn. Cir. Ct. 80. He argued that neither statute applied because he was operating his motor vehicle in a private parking lot. Id. Although both statutes prohibited the “operation” of a motor vehicle without qualification, the court affirmed the judgment of conviction under § 14-227 as consistent with precedent; see State v. Piette, 16 Conn. Sup. 357 (1949); but reversed the judgment as to the conviction under § 14-215 for the reasons that the defendant in this case now urges us to adopt. See State v. Haight, supra, 81-82. We conclude that the plain language of the statute is more convincing than the Haight analysis.

We also conclude that our interpretation of § 14-215 (a) does not violate the defendant’s right to due process. As previously stated, the purpose of due process analysis is to determine whether the defendant had fair warning that his conduct was prohibited. See State v. Vickers, supra, 260 Conn. 224. The defendant does not explicitly argue that he was unaware that the suspension of his license precluded him. from operating a motor vehicle in the parking lot, although we could infer from his argument that a license was not required that he raises that argument implicitly. Even that implicit argument is undercut by his testimony at trial, where he testified that he did not operate his automobile at all on January 20, 2001, because he knew that his license was under suspension. Accordingly, we conclude that the defendant had been warned fairly that his conduct was prohibited.

We decline to afford extensive review to the defendant’s claim that his conviction should be reversed on the ground of plain error because of the mistaken belief of the parties and the court that the lot being open for “public use” was an element of § 14-215 (a). See Practice Book § 60-5. First, we are not required to review the defendant’s claim at all, as it was raised only briefly at oral argument and without analysis. See State v. Webb, 238 Conn. 389, 468 n.56, 680 A.2d 147 (1996). We do note, however, that the court’s charge required the jury to find that “[o]ne, that the defendant was operating a motor vehicle at the time and place alleged, two, that he was operating this motor vehicle in a parking area for ten or more cars and, three, that the defendant was operating a motor vehicle at this location while his license was under suspension.” Because the jury was required to find that the lot was open for “public use,” in addition to the actual elements of the crime, the defendant cannot complain that he received a more favorable instruction than that to which he was entitled. See, e.g., State v. Gonzalez, 222 Conn. 718, 730, 609 A.2d 1003 (1992) (Peters, C. J., concurring). We therefore conclude that there was no plain error in this case.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-215 provides: “(a)Noperson to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. No person shall operate or cause to be operated any motor vehicle, the registration of which has been refused, suspended or revoked, or any motor vehicle, the right to operate which has been suspended or revoked.
      “(b) Except as provided in subsection (c) of this section, any person who violates any provision of subsection (a) of this section shall be fined not less than one hundred fifty dollars nor more than two hundred dollars or imprisoned not more than ninety days or be both fined and imprisoned for the first offense, and for any subsequent offense shall be fined not less than two hundred dollars nor more than six hundred dollars or imprisoned not more than one year or be both fined and imprisoned.
      “(c) Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a or section 53a-56b or 53a-60d or pursuant to section 14-227b, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, and, in the absence of any mitigating circumstances as determined by the court, thirty consecutive days of the sentence imposed may not be suspended or reduced in any manner. The court shall specifically state in writing for the record the mitigating circumstances, or the absence thereof.”

       The defendant’s sentence was to run concurrently with a sentence that he previously had received.

       In charging on the second element, the court instructed the jury in relevant part as follows: “The law defines ‘parking area’ as lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to the public use with or without charge.
      “Now, with regard to that, open to the public. For an area to be open to the public, it does not have to be open to everybody all the time. The essential feature of public use is that it is not confined to a privileged individual. It is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character. Any parking lot which the general public has access to is a public parking lot for purposes of this case.”


text:
    VICKI ANN FORD v. THOMAS EDWARD FORD
    (AC 21613)
    Flynn, Bishop and Daly, Js.

    Argued April 26
    officially released September 3, 2002

      Max F. Brunswick, for the appellant (defendant).

      Morris I. Olmer, for the appellee (plaintiff).

       This appeal was argued before a panel comprised of Judges Flynn, Bishop and Daly. Although Judge Daly agreed with the other judges regarding the resolution of this appeal, he died before he had the opportunity to concur with the written opinion. The parties stipulated, however, that they would not reargue the appeal to this court, with a panel consisting of the original two judges and an additional judge. Rather, the parties stipulated that they would permit the remaining two judges alone to render the written opinion.

   Opinion

BISHOP, J.

The sole issue raised in this appeal is whether the trial court correctly determined that the defendant, Thomas Edward Ford, was in arrears with respect to his alimony obligation to the plaintiff, Vicki Ann Ford, in the amount of $105,230 as of November 28, 2000. We affirm the judgment of the trial court.

The following procedural history and underlying facts are relevant to our determination of the defendant’s appeal. The marriage of the parties was dissolved on November 29, 1984. As part of the judgment, the court ordered the defendant to pay the plaintiff $300 a week as unallocated alimony and child support until October 1,1985, $250 a week until August 1,1990, and, thereafter, $200 a week as alimony to terminate upon the plaintiff’s remarriage or cohabitation within the meaning of General Statutes 46b-86 (b).

In September, 1987, the defendant unilaterally reduced his payments to $50 a week, an amount he perceived to be the child support portion of the court’s order, eliminating the portion he attributed to alimony on the basis of his belief that the plaintiff was cohabiting. In September, 1987, the defendant also filed an application for a rule to show cause seeking a termination of his alimony obligation on the same basis. In that endeavor, he was represented by attorney Joseph Chiarelli. The motion was marked off the court calendar on September 22, 1987. Subsequently, by a pleading dated October 1, 1987, the plaintiff filed a motion for contempt and a motion seeking an upward modification of alimony. At that juncture, the plaintiff was represented by attorney Louis Parley. The court docket does not reveal that any action was taken on either of the motions in 1987.

On June 8, 1988, Chiarelli commenced the plaintiffs deposition, during which he learned that she had not brought certain documents that he had asked her to produce for examination in conjunction with the deposition. The defendant claims that at the deposition, both counsel agreed to continue the deposition for the plaintiff to comply with the document production request and that the defendant would not be required to make the court-ordered alimony payments until the continued deposition was conducted. The deposition never took place.

Thereafter, on September 11, 2000, the plaintiff brought an application for a rule to show cause why the defendant should not be held in contempt for his failure to pay the court-ordered alimony. In response, the defendant claimed that the alimony order had been suspended by agreement of the parties and, in the alternative, that the plaintiff had waived her entitlement to alimony by agreeing, through counsel, that the defendant would not be required to comply with the court order until her deposition was completed.

At a hearing on the matter, Chiarelli testified that after the adjournment of the deposition on June 4,1988, he had reached an agreement with Parley that the defendant would not have to comply with the alimony order while the deposition was pending. He also acknowledged that after he departed from the aborted deposition, he had told the defendant that he did not have to continue paying alimony, and thereafter he did not reschedule the deposition. By his reasoning, because there had been an agreement not to pursue the alimony arrearage until the deposition was completed, he had effectively protected his client from the obligation to comply with the court order by not rescheduling the deposition.

The court disagreed with the defendant’s position on two grounds, each of which separately defeated the defendant’s claims. In assessing the evidence, the court found that there was no agreement relieving the defendant of his alimony obligation. The court also opined that even if there had been such an agreement, it would not, as a matter of law, negate the judicial order of alimony.

The court further found that the plaintiff had not waived her right to seek enforcement of the alimony order. The court therefore concluded that the order had continued unabated and that the plaintiff was not prevented by the purported agreement from pursuing her right to receive the court-ordered alimony award. The court determined that the total arrearage as of November 28,2000, was $105,230. This appeal followed.

The defendant first claims that the parties entered into a binding agreement, through counsel, to suspend the alimony obligation. We do not agree.

“We first set forth our standard of review. [WJhere the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision. ... [A] trial court’s conclusions are to be tested by the finding; they must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.” (Citation omitted; internal quotation marks omitted.) Burrier v. Burrier, 59 Conn. App. 593, 595, 758 A.2d 373 (2000).

“An order of the court must be obeyed until it has been modified or successfully challenged.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998). Thus, even if the parties had agreed that the defendant would not be obligated to comply with the alimony order, that agreement would not be effective to modify the defendant’s obligation because, as previously stated, “[djecrees in a dissolution action cannot be modified by acts of the parties without further decree or order by the court.” Albrecht v. Albrecht, 19 Conn. App. 146, 151, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989). Because we conclude that the court’s reasoning with respect to the legal effect of any claimed agreement was legally and logically correct, we need not review its factual determination that there was no binding agreement.

The defendant claims, in the alternative, that even if the alleged agreement reached at the recessed deposition did not operate to modify the alimony order, the plaintiff waived her right to seek enforcement of the order by the terms of the agreement. We disagree.

As the court aptly noted, waiver involves “an intentional relinquishment of a known right. . . . Whether conduct constitutes a waiver is a question of fact.” (Citations omitted; internal quotation marks omitted.) Fisette v. DiPietro, 28 Conn. App. 379, 385, 611 A.2d 417 (1992). Our review therefore is limited to whether the judgment is clearly erroneous or contrary to law. Id., 382-83.

In assessing the evidence in its well reasoned and thorough memorandum, the court noted that no evidence of waiver was presented other than the bare fact that the plaintiff did not actively pursue her motion for contempt for several years following the recessed deposition. Although it recognized that waiver need not be express and may be implied by conduct, the court determined that none of the plaintiffs conduct, either surrounding the making of the alleged agreement at the time of the recessed deposition or occurring in the subsequent years leading to the hearing, constituted facts from which waiver reasonably could be inferred. We are mindful of the court’s unique position in making that factual determination and in assessing such matters, and we are persuaded that the court’s conclusions were not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       An earlier appeal by the defendant arising from the same circumstances raised an issue unrelated to the present appeal. The hearing that underlies this appeal took place following our disposition of the first appeal. See Ford v. Ford, 52 Conn. App. 522, 727 A.2d 254 (1999).

       Although not expressed in the judgment, it is apparent from the ages of the parties’ two children that the two reductions in unallocated alimony and child support were intended to correlate with the year in which each child reached the age of majority.