text:
    STATE OF CONNECTICUT v. DANIEL HALLOWELL
    (AC 20074)
    Lavery, C. J., and Schaller and Hennessy, Js.
    Argued October 30, 2000
    officially released January 23, 2001

      Richard R. Brown, with whom was Robert T. Rim-mer, for the appellant (defendant).

      Paul E. Murray, supervisory assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

LAVERY, C. J.

The defendant, Daniel Hallowell, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3). The defendant claims that the court improperly denied his motion for judgment of acquittal because (1) there was insufficient evidence to sustain the conviction of manslaughter in the first degree and (2) the state failed to disprove beyond a reasonable doubt that he was acting in self-defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 26, 1994, at approximately 10:30 p.m., the defendant, age fifteen, his brother and two friends left the defendant’s house in his mother’s car and went to a gasoline station in Colchester. While the defendant and his friends were at the gasoline station, three vehicles carrying eight individuals entered the gasoline station. A verbal exchange took place between the defendant and his friends and the men from the other three vehicles.

During the exchange between the two groups, the vehicle containing the defendant, his brother and their friends exited the gasoline station at a high rate of speed. The other three vehicles followed the defendant’s vehicle out of the parking lot. A car chase ensued, during which one of the three vehicles following the defendant stopped its pursuit. The chase continued for several miles and ended when the defendant pulled into his driveway.

After the defendant’s vehicle turned into the driveway, the two vehicles that had been behind it during the chase continued down to a point a short distance past the defendant’s house. The vehicles then turned around and proceeded back toward the defendant’s house. The vehicle carrying the victim, Michael Tom-masi, was behind the other vehicle as the two cars drove past the house.

While the two vehicles were turning around after the chase, the defendant’s vehicle proceeded up the driveway of his house and stopped. The defendant exited the vehicle, entered his house and obtained a loaded shotgun. He then walked outside and down to the end of the driveway with the gun in his hand.

As the two vehicles that were involved in the chase slowly drove past the defendant’s driveway, the defendant fired the shotgun twice from the edge of his driveway. The driver of the second vehicle heard an explosion and someone scream that the victim, who was sitting in the rear seat of the car, was shot and had been killed. The two vehicles, one of which contained the victim, then drove directly to the state police barracks in Colchester. The victim died from shotgun pellet wounds to the head and neck.

The defendant was charged with and prosecuted for the crime of murder in violation of General Statutes § 53a-54a (a). The jury found the defendant not guilty of the original charge of murder but guilty of one count of the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (3). This appeal followed. Additional facts will be provided as necessary.

I

The defendant first claims that the court acted improperly in denying his motion for judgment of acquittal because there was insufficient evidence to sustain the conviction of manslaughter in the first degree. Specifically, the defendant asserts that the evidence adduced at trial was insufficient for the jury to find beyond a reasonable doubt that he acted under circumstances evincing an extreme indifference to human life.

Our standard of review for a sufficiency of the evidence claim is well defined. Our Supreme Court has stated: “In reviewing [a] sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. ... It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.” (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997), quoting State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). “[T]he inquiiy into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

The defendant was convicted of manslaughter in the first degree. To obtain a conviction for manslaughter in the first degree, the state must prove beyond a reasonable doubt that the defendant, “under circumstances evincing an extreme indifference to human life . . . recklessly engages in conduct which creates a grave risk of death to another, and thereby causes the death of another person.” General Statutes § 53a-55 (a) (3). The state also must prove that the defendant had the “general intent to engage in conduct that created a grave risk of death to another person under circumstances evincing extreme indifference to human life.” State v. Best, 56 Conn. App. 742, 754, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000). A specific intent to kill or injure is not required. State v. Shine, 193 Conn. 632, 640, 479 A.2d 218 (1984).

The defendant argues on appeal that there was insufficient evidence to conclude that he acted with extreme indifference to human life at the time of the shooting. “No definition of ‘extreme indifference to human life’ is found in the penal code, title 53a of the General Statutes . . . .” State v. Pitt, 28 Conn. App. 825, 830, 612 A.2d 60, cert. denied, 224 Conn. 907, 615 A.2d 1049 (1992). “Some guidance, as to the level of indifference the legislature fairly perceived is gleaned by its designating the indifference in § 53a-55 (a) (3) by the adjective extreme. That adjective has been defined to mean existing in the highest or greatest possible degree. . . . It is synonymous with excessive. . . . What evinces an extreme indifference to human life is really a question of fact.” (Citations omitted; internal quotation marks omitted.) State v. Best, supra, 56 Conn. App. 755.

The evidence was sufficient to prove that the defendant acted with extreme indifference to human life. The defendant went into his house, after a car chase, obtained a loaded shotgun, walked at least one hundred feet to the edge of the roadway in front of the house and fired a shotgun round, containing between nine and fifteen pellets equivalent to .32 caliber bullets, at a vehicle that he knew to be occupied. The vehicle was moving away from the defendant and was forty to sixty feet down the road when the shotgun rounds were fired. Some of the pellets fired from the shotgun penetrated the back window of the vehicle in which the victim was sitting in the rear seat. The victim died from pellet wounds to the head and neck.

We conclude that the evidence of the defendant’s conduct, together with reasonable inferences drawn therefrom, was sufficient for the jury to find beyond a reasonable doubt that, under circumstances evincing an extreme indifference to human life, the defendant recklessly engaged in conduct that created a grave risk of the victim’s death. The court properly denied the defendant’s motion for judgment of acquittal on this ground.

II

The defendant next claims that the court improperly denied his motion for judgment of acquittal because the state failed to disprove that he was acting in self-defense. Specifically, the defendant contends that the court improperly denied his motion for judgment of acquittal because he presented evidence of self-defense, which the state did not rebut or disprove beyond a reasonable doubt. We disagree.

Generally, “a person is justified in using reasonable physical force upon another person to defend himself . . . from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose . . . .” General Statutes § 53a-19 (a). Aperson is not justified, however, “in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling . . . .” General Statutes § 53a-19 (b). In other words, § 53a-19 (b) “requires recourse to retreat in lieu of the use of physical force only when the actor himself knows that he can avoid the necessity of using such force with complete safety . . . .” (Internal quotation marks omitted.) State v. Carter, 48 Conn. App. 755, 769-70, 713 A.2d 255, cert. denied, 247 Conn. 901, 719 A.2d 905 (1998).

The statute focuses on the person claiming self-defense. State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427 (1982). “This statutory emphasis upon the defendant further demonstrates the function of the jury in [its] evaluation of the self-defense claim.” (Internal quotation marks omitted.) State v. Carter, supra, 48 Conn. App. 769. “The state has the burden of disproving the defense of justified use of force . . . beyond a reasonable doubt. . . . Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence. . . . As long as the evidence presented at trial was sufficient to allow the jury reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained.” (Citations omitted; internal quotation marks omitted.) State v. Wilson, 17 Conn. App. 97, 99, 550 A.2d 21 (1988).

The defendant argues on appeal that he presented ample evidence that the shooting was in response to imminent fear of deadly bodily harm and was done in self-defense. A jury reasonably could conclude that the defendant’s act of leaving his house, walking to the end of the driveway and firing a loaded shotgun at a vehicle that was moving away from him, and which was already forty to sixty feet away from him, were sufficient to sustain the state’s burden of disproving self-defense.

Also, according to the defendant, the shooting occurred after several months of harassment by some of the men in the two cars and threats of bodily harm by other young men in the community. The defendant argues that because no evidence was offered by the state that, with complete safety, he could have retreated from his property, he was allowed to use self-defense. We disagree.

The defendant had safely retreated into his family’s house before he returned to the end of the driveway and fired the shotgun. The men in the two vehicles never entered the defendant’s property, nor did they leave their cars or the street at anytime when they were in front of the defendant’s house. Therefore, the jury reasonably could have concluded that the defendant was not justified in using deadly force in this case

because he could have retreated with complete safety by staying in his house, but chose to leave. Accordingly, the court properly denied the defendant’s motion for judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    DONNA ANASTASIA v. BEAUTIFUL YOU HAIR DESIGNS, INC., ET AL.
    (AC 19052)
    Foti, Pellegrino and Peters, Js.
    Argued September 26, 2000
    officially released January 23, 2001

      James D. Diamond, for the appellants-appellees (defendants).

      Andrew B. Nevas, for the appellee-appellant (plaintiff).
   Opinion

PELLEGRINO, J.

The defendants appeal and the plaintiff, Donna Anastasia, cross appeals from the judgment of the trial court adopting the findings and recommendations in the report of an attorney trial referee. The defendants claim that the court improperly accepted the findings and recommendations of the referee because the plaintiff failed to prove her claim of fraud in the inducement of a contract. The plaintiff challenges the calculation of damages. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. The plaintiff purchased a hair salon from the defendant Deborah Lacerenza in July, 1994. Shortly thereafter, in January, 1995, the plaintiff commenced an action against the defendants, claiming that they had fraudulently misrepresented the value of the salon during negotiations leading to the consummation of the sale, and sought damages and rescission of the contract of sale. The matter was referred to an attorney trial referee pursuant to Practice Book (1998) § 19-2. After a hearing, the referee, in a report dated June 22, 1998, made factual findings in favor of the plaintiff and recommended that the court award her damages in the amount of $20,200.

On July 2, 1998, the plaintiff timely filed a motion to correct the findings in the report, which the referee denied without comment on July 24, 1998. On July 31, 1998, the plaintiff timely filed exceptions to the findings in the report and, on August 7,1998, she timely filed an objection to the acceptance of the report. The plaintiffs proposed corrections and her exceptions and objections largely concerned the referee’s findings and recommendations regarding her damages.

On September 3, 1998, the defendants filed motions objecting both to the acceptance of the report and to judgment on the report, including the recommendation of the award of damages. Additionally, they challenged the referee’s failure to make separate findings as to each defendant, his finding of fraud and certain evidentiary rulings. On October 21, 1998, the court overruled all objections and exceptions of both parties, and rendered judgment in accordance with the findings and recommendations in the report of the referee. The court did not issue a memorandum of decision, and none of the parties sought articulation of the court’s analysis as to the exceptions, objections or acceptance of the referee’s findings and recommendations. This appeal followed.

I

The defendants claim that the court improperly accepted the findings and recommendations of the referee because the plaintiff did not prove that the defendants acted fraudulently. We disagree.

The standard of review in cases referred to referees is well settled. “Attorney trial referees are empowered to hear and decide issues of fact. ... It is axiomatic that a reviewing authority may not substitute its findings for those of the trier of the facts. . . . The trial court, as the reviewing authority, may render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts found by the [attorney trial] referee.” (Citations omitted; internal quotation marks omitted.) Villano v. Polimeni, 54 Conn. App. 744, 747-48, 737 A.2d 950, cert. denied, 251 Conn. 908, 739 A.2d 264 (1999).

Some additional facts are necessary for our resolution of this issue. The referee found the following to have occurred. In May, 1994, the plaintiff answered a newspaper advertisement in which Lacerenza offered her salon for sale. The plaintiff, a mother of four young children, was in the process of being divorced and was interested in purchasing a business that would generate enough income to support her family. The plaintiff had not worked for several years, had no business experience and had never worked as or trained to be a hairdresser. During the course of negotiations, the plaintiff shared that information with Lacerenza.

While the plaintiff and Lacerenza were reaching agreement on a purchase price for the salon, Lacerenza made a number of representations relating to the business. She told the plaintiff that weekly sales receipts for the salon averaged $2500 and that, after deducting corresponding expenses, the plaintiff could expect a weekly salary of about $900. Lacerenza presented the plaintiff with a brief written statement itemizing receipts and expenses, and repeating the figures that she had relayed orally. Lacerenza also claimed that the salon had a client base of at least 2000, that it was a “signature salon,” that it could support two full-time manicurists with existing demand and that its utility expenses were approximately $150 per month. She assured the plaintiff that the salon’s monthly rental payments were covered by product sales. Further, Lac-erenza told the plaintiff that the salon’s assets included a tanning bed that had not been advertised to customers but that, given proper promotion, would provide a significant source of additional income. When the plaintiff asked Lacerenza if she could see the salon’s records and tax returns to verify the accuracy of what she was being told, Lacerenza claimed that they were unavailable and that, in any event, they did not reflect matters truthfully since the salon was largely a “cash business” that did not report all of its income to the state and federal tax authorities.

On the basis of those discussions, the parties agreed on a purchase price of $68,000 for the salon. Lacerenza insisted that the plaintiff pay her $23,200 in cash prior to the closing on the sale. The contract subsequently drafted by Lacerenza’s attorney reflected only the balance of $44,800 as the total purchase price. To raise the necessary funds for the purchase, the plaintiff borrowed $65,000 from her relatives. She executed a promissory note to Lacerenza for the balance. At the July 1, 1994 closing, the defendant Charles Raymond assured the plaintiffs aunt, who had lent the plaintiff $60,000, that she need not worry about having her loan repaid because the salon’s business and income were such that she would be reimbursed within a year.

Upon assuming control of the business, the plaintiff found that the salon’s business was much slower than she had been led to believe. An employee who had been away on vacation returned and told the plaintiff that the salon’s client base was at most 300. The employee informed the plaintiff that the tanning bed had never been used because the salon’s insurer refused to cover it and that the salon’s demand was inadequate to support even one full-time manicurist. The revenue from product sales was much less than the cost of rent. Utility bills were substantially higher than represented. The salon was not, in fact, a “signature salon.” Throughout the summer months, business did not improve.

On September 24, 1994, the plaintiffs attorney wrote a letter to the defendants’ attorney, accusing the defendants of making material misrepresentations about the salon during the negotiations and demanding either rescission of the contract of sale or damages. The defendants did not comply with those demands and, on January 12, 1995, the plaintiff filed her complaint with the court.

“The essential elements of a cause of action in fraud are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury. . . . All of these ingredients must be found to exist; and the absence of any one of them is fatal to a recovery. . . . Additionally, [t]he party asserting such a cause of action must prove the existence of the first three of [the] elements by a standard higher than the usual fair preponderance of the evidence, which higher standard we have described as ‘clear and satisfactory’ or ‘clear, precise and unequivocal.’ ” (Citations omitted; internal quotation marks omitted.) Citino v. Redevelopment Agency, 51 Conn. App. 262, 275-76, 721 A.2d 1197 (1998).

“Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact. . . . The trier of facts is the judge of the credibility of the testimony and of the weight to be accorded it.” (Citation omitted; internal quotation marks omitted.) Maturo v. Gerard, 196 Conn. 584, 587-88, 494 A.2d 1199 (1985). When the trial court finds that a plaintiff has proven all of the essential elements of fraud, its decision will not be reversed or modified unless it is clearly erroneous in light of the evidence and the pleadings in the record as a whole. Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981).

The defendants claim that the statements they made to the plaintiff were only opinions as to the future profitability of the salon, not statements of fact, and, therefore, the first element of fraud was not satisfied. We disagree.

“The requirement that a representation be made as a statement of fact focuses on whether, under the circumstances surrounding the statement, the representation was intended as one of fact as distinguished from one of opinion. ... It is sometimes difficult to determine whether a given statement is one of opinion or one of fact, inasmuch as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties all have a bearing upon the question. . . . [E]ach case must in a large measure be adjudged upon its own facts.” (Citation omitted; internal quotation marks omitted.) Meyers v. Cornwell Quality Tools, Inc., 41 Conn. App. 19, 28-29, 674 A.2d 444 (1996).

In Meyers, we held that assertions regarding expected revenue and income, made by the defendant to the plaintiff to induce the latter to purchase a tool dealership, were statements of fact rather than opinion. Id., 29-30. The referee in this case similarly found that the representations of gross and net monthly income were not opinions, but representations of fact. The referee concluded that “[t]he evidence was clear, precise and unequivocal that Lacerenza, as president of the corporate defendant, made false representations to Anastasia as statements of fact, and that those statements were untrue at the time they were made, and known to be untrue by Lacerenza. Furthermore, the statements were made to induce Anastasia to purchase the salon, which, in fact, she did, to her injury.”

Our review of the record convinces us that the referee’s factual findings were not clearly erroneous. Further, the conclusion reached by the referee and accepted by the court that the defendants made fraudulent misrepresentations to induce the plaintiff to purchase the salon to her detriment was clearly, precisely and unequivocally supported by the subordinate facts found, and was legally and logically correct.

II

The plaintiff and the defendants make a number of additional claims on the appeal and cross appeal. We decline to review them, however, because the record is inadequate.

The record is inadequate for review because the referee’s report is either unclear or incomplete, or completely void of findings or recommendations regarding the parties’ claims of error because those claims were first raised to the trial court in the parties’ exceptions and objections to the referee’s report. See footnotes 7 and 8. Further, we have not been provided with either a written memorandum of decision or a transcribed copy of an oral decision, signed by the trial court, stating its reasons for overruling the parties’ exceptions and objections, and accepting the referee’s findings and recommendations in total. See Practice Book § 64-1 (a); Buchetto v. Haggquist, 17 Conn. App. 544, 547-49, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989).

“The duty to provide this court with a record adequate for review rests with the appellant[s].” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); Practice Book § 60-5. An appellant’s “utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Ginsberg v. Fusaro, 225 Conn. 420, 431, 623 A.2d 1014 (1993).

“We, therefore, are left to surmise or speculate as to the existence of a factual predicate for the trial court’s rulings. Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997).

Because the court did not articulate the factual or legal basis for its decision to accept the findings and recommendations of the referee, despite the parties’ exceptions and objections to the referee’s report, and because the report contains no analysis of those claims, the record is inadequate for our review, and we are precluded from reaching the issue of whether the court decided properly.

The judgment is affirmed.

In this opinion the other judges concurred.

       Deborah Lacerenza, Charles Raymond and Beautiful You Hair Designs, Inc., are the defendants. Lacerenza owned and managed the hair salon at issue in this appeal prior to its sale to the plaintiff, Donna Anastasia. Raymond is Lacerenza’s husband. Lacerenza formed the corporation to manage the assets of the salon and was the corporation’s president. The record is silent as to the ownership of the corporation.

       Practice Book (1998) § 19-2, now § 19-2A, provides in relevant part: “The court or any judge thereof may send to [an attorney trial referee] for a finding of facts any case wherein the parties are not, as a matter of right, entitled to a trial by jury. . .

       Practice Book § 19-4 provides in relevant part: “An attorney trial referee to whom a case has been referred shall file a report with the clerk of the court . . . within one hundred and twenty days of the completion of the trial before such referee.”
      Practice Book § 19-8 provides in relevant part: “(a) The report of . . . [an] attorney trial referee shall stale . . . the facts found and the conclusions drawn therefrom. It should not contain statements of evidence or excerpts from the evidence. The report should ordinarily state only the ultimate facts found ....
      “(b) The . . . [an] attorney 1 rial referee may accompany the report with a memorandum of decision including such matters as it may deem helpful in the decision of the case . . . .”

       Practice Book (1998) § 19-12 provides in relevant part: “If either party desires to have the report or the finding corrected by striking out any of the facts found, or by adding further facts, or by stating the claims of the parties made before the [attorney trial referee], or by setting forth rulings upon evidence or other rulings of the [attorney trial referee], such party shall within two weeks after the filing of the report or finding file with the court a motion to correct setting forth the changes and additions that are desired. . . .”

       Practice Book (1998) § 19-13 provides in relevant part: “If [an attorney trial referee] fails to correct a report or finding in compliance with a motion to correct, the moving party may, within ten days after the decision on the motion to correct, file exceptions seeking corrections by the court in the report, or finding. ...”

       Practice Book § 19-14 provides in relevant part: “A party may file objections to the acceptance of a report on the ground that conclusions of fact stated in it were not properly reached on the basis of the subordinate facts found, or that the . . . attorney trial referee erred in rulings on evidence or other rulings or that there are other reasons why the report should not be accepted. . . .”

       The court rendered judgment on the report pursuant to Practice Book (1998) § 19-16, which provides in relevant part: “If exceptions or objections have been seasonably filed, the case should be claimed for the short calendar for hearing thereon; and the court may, upon its decision as to them, forthwith direct judgment to be rendered.”

       Practice Book § 19-17 (a) provides in relevant part: “The court shall render such judgment as the law requires upon the facts in the report. If the court finds that the . . . attorney trial referee has materially erred in its rulings or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report . . .

       A “signature salon” is one to which callers of atelephone hotline number, listed in women’s magazines, will be referred.

       The plaintiff testified that she also had spoken at length with Raymond on the telephone when she made the initial call expressing interest in purchasing the salon. He told her that the salon “threw off about $75,000” annually, which prompted the plaintiff to make further inquiries with Lacerenza.

       In addition to their claim that fraud was not proven, the defendants claim that the court improperly accepted the findings and recommendations of the referee because: (1) the plaintiff failed to prove damages; (2) the referee did not make separate findings for each defendant; (3) the referee admitted hearsay evidence; and (4) the plaintiffs claims of misrepresentation during negotiations for the purchase and sale of the salon did not survive the closing of the transaction at issue. The plaintiff, in her cross appeal, claims that the court improperly accepted the referee’s calculation of damages.


author: LANDAU, J.

text:
    CITY OF HARTFORD v. PAN PACIFIC DEVELOPMENT (CONNECTICUT), INC., ET AL.
    (AC 18687)
    Landau, Zarella and Daly, Js.
    Argued September 28, 2000
    officially released January 30, 2001

      David Doyle, with whom, on the brief, was Mark L. Bergamo, for the appellant (defendant First Union National Bank).

      Denise E. Aguilera, assistant corporation counsel, with whom were Delroy Alexander Shirley, senior assistant corporation counsel, and, on the brief, Kevin G. Dubay, corporation counsel, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendant First Union National Bank (First Union) appeals from the judgment of the trial court rendered when it denied First Union’s motions to open the judgment of strict foreclosure rendered in favor of the plaintiff city of Hartford on property owned by the named defendant, and denied First Union’s motion to reargue. On appeal, First Union claims that the court abused its discretion in denying the motions to open the judgment and the subsequent motion to reargue. We affirm the judgment of the trial court.

This appeal stems from the foreclosure of various municipal tax liens on real property (premises) known as 884-902 Main Street in Hartford. Prior to commencing this foreclosure action, the plaintiff, pursuant to General Statutes § 12-195h and a written agreement, assigned tax liens on the premises and other properties for the years 1991, 1992 and 1993 to GTL Investments Limited Partnership (GTL). First Union is the collateral agent of GTL. In February, 1998, the plaintiff commenced this action to foreclose tax liens on the premises for the years 1994, 1995 and 1996. First Union was named in the complaint as a defendant because of the interest it claimed in the property based on the 1991, 1992 and 1993 assigned tax liens.

According to his return of service, a deputy sheriff, on February 11, 1998, served process on First Union by leaving a verified copy of the writ of summons and the complaint in the hands of the person in charge of First Union’s place of business at 30 State Street in Hartford. On March 19,1998, First Union was defaulted for failure to appear. The court, Satter, J., granted the plaintiffs motion for judgment of strict foreclosure on May 18, 1998. On May 21, 1998, First Union filed the first of two motions to open the judgment of strict foreclosure. First Union’s second motion, filed on June 15, 1998, claimed that good cause existed to open the judgment. The court, Freed, J., denied both motions on June 15, 1998. On June 22, 1998, First Union filed a motion to reargue the second motion to open the judgment, claiming that there was good cause to do so. The court, Freed, J., denied the motion to reargue. First Union thereafter appealed to this court.

I

Before we resolve First Union’s claims pertaining to the denial of its motions, we must address its challenge to the trial court’s subject matter jurisdiction, which is subsumed in its argument concerning the motion to open the judgment. “[0]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988).

First Union bases its claim that the court lacked subject matter jurisdiction on General Statutes §§ 12-172 and 12-181. First Union argues that because § 12-181 prohibits the extinction of prior municipal tax liens in an action to foreclose other municipal tax liens, the court did not have jurisdiction to render a judgment of strict foreclosure. We disagree.

To resolve First Union’s subject matter jurisdictional challenge, we note the difference between a court’s jurisdiction and its statutory authority. “Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11. A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987). It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 420-21 n.3, 426 A.2d 1324 (1980).

“Although related, the court’s authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power may be exercised in order to comply with the terms of the statute. Bailey v. Mars, 138 Conn. 593, 601, 87 A.2d 388 (1952). . . . Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).” (Internal quotation marks omitted.) Beizer v. Dept. of Labor, 56 Conn. App. 347, 361-62, 742 A.2d 821, cert. denied, 252 Conn. 937, 747 A.2d 1 (2000).

In Connecticut, the trial court has authority, pursuant to § 12-172, to adjudicate the foreclosure of tax liens according to the laws enacted by our legislature. Section 12-181 provides in relevant part that “[i]f one or more municipalities foreclose one or more tax liens on real estate and acquire absolute title thereto and if any other municipality having one or more tax liens upon such real estate at the time such foreclosure title becomes absolute has not, either as plaintiff or defendant, been made a party thereto, the tax liens of each of such other municipalities shall not be thereby invalidated or jeopardized.” Although that statute may preclude the invalidation of First Union’s tax hens, it does not deprive the court of subject matter jurisdiction over the cause of action. First Union’s challenge to the trial court’s subject matter jurisdiction is, therefore, without merit.

II

We now consider First Union’s claim that the court abused its discretion by denying First Union’s motions to open the judgment and its motion to reargue the second motion to open the judgment. We review such claims under the abuse of discretion standard.

“A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion.” (Internal quotation marks omitted.) Wilkes v. Wilkes, 55 Conn. App. 313, 325, 738 A.2d 758 (1999). “Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion. See Biro v. Hill, 231 Conn. 462, 468, 650 A.2d 541 (1994) . . . .” Federal Deposit Ins. Corp. v. Thompson, 56 Conn. App. 82, 89, 741 A.2d 972 (1999).

“Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion . . . means that the ruling appears to have been made on untenable grounds. . . . In determining whether the trial court has abused its discretion, we must make every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998). “Therefore, the question is not whether any one of us, had we been sitting as the trial judge, would have exercised our discretion differently. Our role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 842, 661 A.2d 539 (1995).

A

The court rendered judgment in this action on May 18, 1998. First Union subsequently filed two motions to open the judgment. First Union filed its first motion to open on May 21,1998, to which the plaintiff objected. The first motion to open was to be argued at the short calendar on June 15, 1998, but at the short calendar, First Union filed an amended motion to open. The plaintiff abandoned the claims raised in the first motion and relied on the good cause argument set forth in its second motion. The second motion to open stated in part: “In support of this motion, [First Union] states that it was not aware of the pendency of this action and did not receive notice of the entry of judgment.” The court heard the argument of counsel and representations of fact from counsel on both sides. The court denied the motions to open without setting forth findings of fact, conclusions of law or explaining its decision.

It is the appellant’s responsibility to provide an adequate record for review. Practice Book § 61-10. First Union provided this court with a signed copy of the transcript of the short calendar hearing, which does not contain an oral memorandum of decision. See Auric Answering Service, Inc. v. Glenayre Electronics, Inc., 54 Conn. App. 86, 88, 733 A.2d 307 (holding that signature of trial court on entire transcript does not satisfy requirements of Practice Book § 64-1), cert. denied, 250 Conn. 926, 738 A.2d 653 (1999). First Union never filed a motion requesting that the trial court articulate the reasons for its decision. Because the court denied the motions to open without a written or oral memorandum of decision and because the plaintiff did not seek an articulation of that decision pursuant to Practice Book § 66-5, we have an inadequate record before us and therefore do not make any further inquiry. See Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 154 n.2, 595 A.2d 872 (1991); Conway v. Hartford, 60 Conn. App. 630, 634-35, 760 A.2d 974 (2000).

B

Following the court’s denial of the motions to open, First Union filed a motion to reargue, claiming that the court had relied on statements made by the plaintiffs counsel, which misrepresented conversations he had with the partner in the law firm representing First Union. In support of the motion to reargue, First Union attached two affidavits, one from a partner and one from an associate in the firm representing First Union. Both affidavits indicate that the affiants knew of the pending action on May 11, 1998, and knew that judgment had been rendered on May 18, 1998. The partner acknowledged that she had a conversation concerning the foreclosure with a member of the plaintiffs corporation counsel’s office, but did not indicate the date of the conversation.

The plaintiff objected to the motion to reargue and attached the affidavits from five members of its corporation counsel’s office. All of the affidavits indicate that the partner telephoned an assistant corporation counsel and asked that the motion for strict foreclosure be marked off the May 18, 1998 short calendar. The assistant corporation counsel informed the partner that the plaintiff was going forward with its motion. The court denied the motion to reargue. The record does not contain a transcript of the argument before the court, if any was had, and First Union did not ask the court to articulate its reason for denying the motion to reargue. The record, therefore, is inadequate for our review. See Practice Book § 61-10.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       First Union’s formal identity is First Union National Bank, formerly known as First Fidelity Bank, N. A., as custodian and collateral agent for GTL Investments Limited Partnership.

       The other defendants in this action are Pan Pacific Development (Connecticut), Inc., the Metropolitan District and Pan Pacific (HTC) Associates Limited Partnership, which are not parties to this appeal.

       General Statutes § 12-195h provides: “Any municipality, by resolution of its legislative body, as defined in section 1-1, may assign, for consideration, any and all liens filed by the tax collector to secure unpaid taxes on real property as provided under the provisions of this chapter. The consideration received by the municipality shall be negotiated between the municipality and the assignee. The assignee or assignees of such liens shall have and possess the same powers and rights at law or in equity as such municipality and municipality’s tax collector would have had if the lien had not been assigned with regard to the precedence and priority of such lien, the accrual of interest and the fees and expenses of collection. The assignee shall have the same rights to enforce such liens as any private party holding a lien on real property.”

       In a tangential argument to bolster its claim, First Union argues that the court did not have personal jurisdiction over it because the plaintiff failed to give notice of the foreclosure action in the manner prescribed in the parties’ written agreement. At oral argument before us, First Union acknowledged that it waived its personal jurisdiction claim in the trial court. “It is fundamental that jurisdiction over a person can be obtained by waiver.” Pitchell v. Hartford, 247 Conn. 422, 428, 722 A.2d 797 (1999); see United States Trust Co. v. Bohart, 197 Conn. 34, 39, 495 A.2d 1034 (1985) (“[ujnlike subject matter jurisdiction . . . personal jurisdiction may be created through consent or waiver”); see also Stewart-Brownstein v. Casey, 53 Conn. App. 84, 88, 728 A.2d 1130 (1999).

       General Statutes § 12-181 provides: “Whenever used in this section, unless the context otherwise requires, ‘municipality’ has the meaning given thereto in section 12-141. The tax collector of any municipality may bring suit for the foreclosure of tax hens in the name of the municipality by which the tax was laid, and all municipalities having tax hens upon the same piece of real estate may join in one complaint for the foreclosure of the same, in which case the amount of the largest unpaid tax shah determine the jurisdiction of the court. If ah municipalities having tax hens upon the same piece of real estate do not join in a foreclosure action, any party to such action may petition the court to cite in any or ah of such municipalities as may be omitted, and the court shah order such municipality or municipalities to appear in such action and be joined in one complaint. The court in which action is commenced shah continue to have jurisdiction thereof and may dispose of such action in the same manner as if ah the municipalities had commenced action by joining in one complaint. If one or more municipalities having one or more tax hens upon the same piece of property are not joined in one action, each of such municipalities shah have the right to petition the court to be made a party plaintiff to such action and have its claims determined in the same action, in which case the same court shah continue to have jurisdiction of the action and shah have the same rights to dispose of such action as if all municipalities had originally joined in the complaint. The court having jurisdiction under the provisions of this section may limit the time for redemption, order the sale of the real estate, determine the relative amount of the undivided interest of each municipality in real estate obtained by absolute foreclosure if two or more municipalities are parties to one foreclosure action or pass such other decree as it judges to be equitable. If one or more municipalities foreclose one or more tax liens on real estate and acquire absolute title thereto and if any other municipality having one or more tax liens upon such real estate at the time such foreclosure title becomes absolute has not, either as plaintiff or defendant, been made a party thereto, the tax liens of each of such other municipalities shall not be thereby invalidated or jeopardized.”

       In stating the basis of First Union’s argument, we do not suggest that we agree or disagree with its construction of the statute.

       First Union raised claims of improper service and lack of personal jurisdiction in its first motion to open. It waived those claims at the short calendar on June 15, 1998.

       The transcript in part contains the following colloquy between First Union’s counsel and the court:
      “The Court: There’s not much equity on your side, I should say.
      “Counsel: Thank you, Your Honor.
      “The Corut: I should probably say none. I am going to deny the motion to reopen and vacate the judgment.”

       The associate learned of this action from counsel for the named defendant property owner, Pan Pacific Development (Connecticut), Inc., in the course of litigating a separate action brought by First Union to foreclose its tax liens on the premises.


author: CRETELLA, J.

text:
    STATE OF CONNECTICUT v. LEO LABBE
    (AC 19410)
    Lavery, C. X, and Schaller and Cretella, Js.
    Argued October 26, 2000
    officially released January 30, 2001

      Robert P. Pickering, special public defender, for the appellant (defendant).

      Jessica C. Torres-Daigle, deputy assistant state’s attorney, with whom, on the brief, were Patricia A. Swords, state’s attorney, and Elizabeth C. Learning, assistant state’s attorney, for the appellee (state).
   Opinion

CRETELLA, J.

The defendant, Leo Labbe, appeals from the judgment of conviction, rendered after a jury trial, of breach of the peace in violation of General Statutes § 53a-181 (a) (5). The defendant claims that (1) the trial court improperly admitted subsequent uncharged misconduct testimony of two witnesses and (2) there was insufficient evidence of intent to support the conviction. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On November 27, 1996, the victim was traveling on Interstate 84 to Boston. After she entered a rest area, she noticed a man later identified as the defendant sitting in a motor vehicle to her right with his window down. After she returned to her automobile and started to back out of her parking space, she noticed the defendant lift himself from his seat and expose his penis. She observed that behavior through the open window of the defendant’s car. The victim first wrote down the license plate number of the defendant’s vehicle, then moved her car into another parking space directly in front of the rest stop building, went inside and contacted the state police. A state police trooper responded and took the victim’s statement, including a description of the defendant.

On December 30,1996, the trooper arranged an array of photographs for the victim to review. She recognized the photograph of the defendant and said that she was 70 percent certain that he was the person who had exposed himself to her at the rest stop on November 27, 1996.

I

The following additional facts and procedural history are necessary to resolve the defendant’s claim that the court improperly admitted evidence of his subsequent misconduct through the testimony of two witnesses.

The first witness testified that on August 15, 1997, while traveling with a friend southbound on Interstate 91, she stopped at a rest area. She saw the defendant’s vehicle parked in the lot. Because of the defendant’s “grubby” look and her suspicions, she memorized the marker plate on the defendant’s vehicle. The defendant subsequently followed her onto the highway and, through the open window of his vehicle, exposed himself to her in a manner similar to what had occurred during the November 27, 1996 incident. She reported the incident to the state police, and the defendant subsequently was arrested.

Prior to permitting the state to present the evidence of the 1997 incident to the jury, the state made a proffer of the evidence outside the presence of the jury. Following argument, the court allowed the testimony as uncharged misconduct, stating that the test for its admissibility was whether the probative value of such evidence to show a common scheme outweighs any prejudice to the defendant. The court found that the probative value outweighed the prejudicial effect and ruled that the evidence would be permitted. The court overruled the defendant’s objection, admitted the evidence and gave the jury a limiting instruction. At that time, the state also informed the court that it would be offering the testimony of the trooper who had arrested the defendant after the second incident. The defendant made no objection at that time or when the trooper testified as to the identification of the defendant, his license, registration and other details of the incident.

The defendant argues that the victim’s testimony and that of the trooper relating to subsequent uncharged misconduct was inadmissible. Although the defendant’s objection to the admissibility of subsequent uncharged misconduct evidence preserved his challenge to the testimony of the first witness, the defendant did not object to the trooper’s testimony. We decline to review the claim challenging the trooper’s testimony, notwithstanding the defendant’s claim that it should be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5. The defendant failed to preserve that claim for appeal properly, and it involves an evidentiary and not a constitutional matter. It does not, therefore, satisfy the requirements for review under Golding. Further, it fails under the plain error doctrine because the trooper’s testimony did not result in any manifest injustice. See Practice Book § 60-5.

Even if we were to conclude that the defendant’s objection to the witnesses’ testimony was considered to be a continuing objection to apply to the testimony of the trooper, thus preserving for our review the defendant’s claim as to that testimony, we would still consider the evidence admissible under the criteria and analysis that is hereinafter set forth relating to the witnesses’ testimony.

The defendant on appeal argues that the court improperly admitted into evidence the witnesses’ testimony about the 1997 incident because of its highly prejudicial nature, and because it was too dissimilar from the 1996 incident to meet the requirements for admission under a theory of common scheme, plan or design, or identity or intent. He also argues that the evidence of the 1997 incident was inadmissible because it was subsequent uncharged misconduct rather than prior uncharged misconduct. We do not agree.

The defendant cites no case law or statute to support his assertion that subsequent uncharged misconduct is more prejudicial than prior uncharged misconduct. Our Supreme Court, however, has upheld the admission of subsequent misconduct by a defendant as relevant to the issue of identity. State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985). In State v. Payne, 219 Conn. 93, 102, 591 A.2d 1246 (1991), although the Supreme Court determined that evidence of a defendant’s subsequent criminal activity was not relevant to prove identity and should not have been admitted at trial, that court made not distinction between prior uncharged misconduct and subsequent uncharged misconduct. Thus, as we determined in State v. Lepri, 56 Conn. App. 403, 409, 743 A.2d 626, cert. denied, 253 Conn. 902, 753 A.2d 938 (2000), “[t]he important factor ... in admitting evidence of uncharged misconduct is its relevancy and prejudicial effect.” In Smith, Payne and Lepri, no distinction was made between prejudice associated with subsequent misconduct and prior misconduct. The test for admissibility is the prejudicial versus probative value of the evidence. Whether it was prior or subsequent misconduct has no bearing on its admissibility.

Evidence is admissible if such evidence outweighs its prejudicial impact and if it meets the requirements that the offense is (1) not too remote in time, (2) similar to the offense charged and (3) committed upon a person similar to the prosecuting witness. See State v. Esposito, 192 Conn. 166, 169-70, 471 A.2d 949 (1984). It is also relevant to note that our courts are “more liberal in admitting evidence of other criminal acts to show a common scheme or pattern in sex related crimes than in other crimes.” State v. Kulmac, 230 Conn. 43, 62, 644 A.2d 887 (1994).

The August 15,1997 and November 27,1996 incidents certainly were not too remote in time, having occurred within months of each other. The acts also were sufficiently similar because they both involved the defendant’s exposing himself in a similar manner from within his vehicle, through an open widow, to women whom he had initially located in rest areas along interstate highways in Connecticut. The court also noted that uncharged misconduct may be admitted to show intent. We agree. See State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993); see also State v. Wild, 43 Conn. App. 458, 464-65, 684 A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326 (1996).

Moreover, the court carefully considered the admissibility of the evidence. It conducted a full hearing outside of the presence of the jury. Its instructions to the jury were thorough in explaining the limited purpose for which the testimony should be used, and the jury was cautioned that the evidence should not be used to infer guilt, but solely to evaluate whether there was a common scheme or plan on the part of the defendant, or for identity or intent. We conclude, therefore, that the court did not abuse its discretion in admitting evidence of the 1997 incident.

II

The defendant next argues that the state did not prove beyond a reasonable doubt that he intentionally caused inconvenience, annoyance or alarm within the meaning of § 53a-181 (a) (5) by exposing himself to the victim. We disagree.

In viewing a claim of insufficient evidence, this court adheres to a clearly established two part analysis. First, the evidence must be construed in the light most favorable to sustaining the verdict and, second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. See State v. Cobb, 251 Conn. 285, 385, 743 A.2d 1 (1999). This court cannot substitute its judgment for that of the jury if there was sufficient evidence to support the jury’s verdict. See State v. Booth, 250 Conn. 611, 655, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Construing the evidence in the light most favorable to sustaining the verdict, we conclude that there was sufficient evidence to sustain the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he . . . (5) in a public place, uses abusive or obscene language or makes an obscene gesture . . . .”

       The state originally charged the defendant with public indecency in violation of General Statutes § 53a-186 (a) (2). The state subsequently charged the defendant with the additional crime of breach of the peace. As to the charge of public indecency, the jury was unable to render a verdict, and a mistrial was declared as to that charge alone. The state thereafter nolled that charge.