author: STOUGHTON, J.

text:
    IN RE JORDEN R.

    (AC 28128)
    DiPentima, Harper and Stoughton, Js.

      Argued November 28, 2007
    officially released April 15, 2008

      Michael J. Melly, for the appellant (respondent mother).

      Christopher L. Aker, assistant attorney general, with whom, on the brief, were Richard Blumenlhal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Karen Oliver Da,mboise, for the minor child.

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

   Opinion

STOUGHTON, J.

The trial court rendered judgment granting the petition by the petitioner, the commissioner of children and families, to terminate the parental rights of the parents of the minor child, Jorden R. The respondent mother appeals from the judgment. She claims that (1) the decision to terminate her parental rights was against the weight of the evidence and clearly erroneous, (2) the court improperly refused to allow expert testimony and (3) the court improperly refused to transfer guardianship to the maternal grandparents. We agree in part with the first and second claims, and, therefore, we reverse in part the judgment of the trial court.

On July 27, 2005, the petitioner was granted an ex parte order of temporary custody. On the same date, a neglect petition was filed. On October 27, 2005, a petition to terminate parental rights pursuant to General Statutes § 17a-112 (j) (3) (C) was filed. The petitions were consolidated and tried together.

The following facts and procedural history are relevant to our resolution of the issues raised by the respondent’s appeal. Jorden was bom on June 19, 2005. The respondent was bom on December 15, 1988, and was sixteen years old when her son was bom. The father was bom on May 2, 1985, and was twenty years old when the child was bom. The respondent, who was then in high school and living with her parents, began dating the father during the summer of 2004. He had dropped out of high school and was living in his own apartment. He became very angry when he learned that the respondent was pregnant, and their relationship ended for a time. They resumed their relationship in January, 2005, and the respondent then began spending the weekends at the father’s apartment with the consent of her parents.

The relationship between the two was a stormy one during this period, and they had frequent arguments. The respondent believed that the father was using dmgs and seeing other women. In May, 2005, the father lost his apartment and moved in with the respondent and her parents. On June 19, 2005, Jorden was bom. On July 23, 2005, the father and the respondent planned to leave the baby with the respondent’s mother and to visit friends. They planned to return to pick up the baby and to spend the night at the home of the father’s grandmother in order to do some work around the house the following morning before the grandmother returned from a trip. They arrived at their friends’ house between 5:30 and 6 p.m. The respondent testified that while there, she drank an alcoholic, fruity beverage and had one “hit” from a marijuana pipe and that the father had been drinking alcohol and smoking marijuana. When they went back to pick up the baby, the father testified, the respondent was asleep in the car. At the grandmother’s house, the respondent fixed the baby’s formula and took it to the room where they were to stay. The respondent testified that she awoke at 2 a.m. on July 24, 2005, and fed Jorden and put him back to bed. She testified that she was awakened by the father between 9:30 and 10 a.m. and fed Jorden. The father testified that he also awoke with Jorden and that he then slept until 8:30 or 9 a.m. He gave differing accounts, however, of when he awoke with the baby, and, in addition, the police discovered that he had been at a convenience store with a friend from 7:15 a.m. to 8 a.m. on July 24, 2005.

When the respondent fed Jorden at about 10 a.m., she saw that his hand began to twitch at ten to fifteen second intervals. She called her mother for advice, and her mother suggested that she change Jorden’s position. Jorden slept until about 1 p.m., and when he awoke, the respondent fed him and put him back to sleep. She had noticed the twitching again and called her mother after Jorden went back to sleep. They agreed to meet for dinner, at which time they would evaluate the child. The father and the respondent drove to the house of the respondent’s parents with Jorden, arriving at about 7 p.m. Jorden was twitching, so they called a pediatrician but could reach only the answering service. The respondent’s mother picked the baby up and noticed swelling in the region of the right temple. She told the parents to take Jorden to the emergency room at Windham Hospital.

At the hospital, the emergency room nurse called for a physician because the baby was having a seizure. Jorden was having clonic tonic seizures, and facial twitching and right eye deviation were noticed. There was a soft area in his scalp, consistent with bruising or swelling, and anterior chest trauma. A computerized tomography scan revealed a skull fracture, and an X ray showed a fracture of the clavicle. A physician opined that Jorden had symptoms consistent with shaken baby syndrome. There had been no report of accidental injury, and the respondent and the grandparents denied any knowledge of an injury. The physician reported that the father appeared aggressive and was not engaging in conversation. Jorden was transported to Hartford Hospital by helicopter and then to the pediatric intensive care unit of Connecticut Children’s Medical Center. Among his injuries were a compound skull facture with overlying hematoma, severe brain dysfunction associated with large subdural effusion, and brain swelling and retinal hemorrhages in the left eye. The collection of fluids in Jorden’s brain were of different ages, possibly indicating two episodes of trauma. With the consent of the parents, an order not to resuscitate was placed on Jorden’s hospital chart. Eventually, the child was discharged in guarded condition and placed in a foster home specializing in care for children with complex medical conditions.

Our standard of review on an appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. Our function is to determine whether the court’s conclusion was legally correct and factually supported. We do not examine the record to determine whether a different conclusion might have been reached. Every reasonable presumption is made in favor of the trial court’s ruling. See In re Vincent B., 73 Conn. App. 637, 640-41, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003).

I

The respondent claims that the court improperly terminated her parental rights as to the child. Specifically, she argues that it improperly determined that (1) there was clear and convincing evidence that she harmed the child by acts of commission or omission pursuant to § 17a-112 (j) (3) (C), (2) she was unwilling or unable to benefit from reunification services, thus relieving the department of children and families (department) of the obligation to attempt to reunify her with her child, and (3) termination was in the best interest of the child.

“In order to terminate a parent’s parental rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family ... (2) termination is in the best interest of the child . . . and (3) there exists any one of the seven grounds for termination delineated in § 17a-112 (j) (3).” (Citations omitted; internal quotation marks omitted.) In re Shaiesha O., 93 Conn. App. 42, 46-47, 887 A.2d 415 (2006).

Our Supreme Court has noted that “[t]he rights to conceive and to raise one’s children have been deemed essential . . . .” (Internal quotation marks omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983). This court has stated that “[w]hen the [s]tate initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it. If the [s]tate prevails, it will have worked a unique kind of deprivation. . . . A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one.” (Internal quotation marks omitted.) In re Vincent B., supra, 73 Conn. App. 641, quoting Santosky v. Kramer, 455 U.S. 745, 759, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). We review the respondent’s claim with these principles in mind.

A

The respondent first argues that the court improperly determined that the petitioner provided clear and convincing evidence that she violated one of the statutory grounds for termination, namely, § 17a-112 (j) (3) (C). We disagree.

Pursuant to § 17a-112 (j) (3) (C), the court found that the child had been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being. It determined that the specific acts were the severe injuries of a nonaccidental nature, not adequately explained, resulting in life threatening injuries and permanent neurological impairment. The respondent claims that this finding was clearly erroneous as to her because there was no evidence that she committed any act that might have caused the terrible injuries to the child or that she failed to do anything that might have prevented those injuries.

The child must have been with one or both of his parents when he was injured, since neither has suggested that the injuries might have occurred when he was with his grandmother, and both parents acknowledged that he was in their care during the night of the injury. Neither parent admitted to any act that might have caused the injuries, and each has suggested that the other might have been responsible. The father had shown some violent tendencies of which the respondent was aware, and, indeed, she was suspicious of some of his actions with the child. The court found by clear and convincing evidence that the child suffered severe physical injuries that the parents could not explain. The evidence was sufficient to support the court’s conclusions. See In re Cheyenne A., 59 Conn. App. 151, 159, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000).

B

The respondent also argues that it was clearly erroneous for the court to conclude that she was unable or unwilling to benefit from reunification services and that, therefore, the department was not required to provide such services or to attempt to reunify the respondent with her child. We agree that it was clearly erroneous for the court to have determined that the department did not have to provide reasonable efforts to reunify the respondent with her child on the ground that she was unwilling or unable to benefit from such services.

The following facts are relevant to the resolution of the respondent’s claim. The court, Bear, J., approved two lists of preliminary specific steps, one issued to the respondent and the other to the father, at the time that it granted the petitioner’s motion for an ex parte order for temporary custody. The purpose of the preliminary specific steps, as stated on the forms, was to guide the parents so that they might “safely . . . regain the custody of the . . . child.” The list provided to the respondent was extensive. It initially consisted of twenty specific steps, not all of which were later found to be relevant to the respondent’s case. Included among the steps were that the respondent needed to keep her whereabouts known to the department; participate in individual and parenting counseling; engage in a psychological evaluation; sign releases allowing the department to monitor the counseling services and psychological evaluation results; comply with a somewhat ambiguous direction to “obtain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by the [the department] to avoid further domestic violence incidents”; and keep the child’s medical appointments and visit with the child as permitted by the department. The court noted that it “hereby approves and orders the above steps as preliminary specific steps. This order shall remain in effect until the court orders final specific steps.” The respondent agreed to abide by the preliminary specific steps on August 2, 2005. The record does not indicate that final specific steps were ever prepared for the respondent.

The court, Foley, J., found, after the termination of parental rights hearing, that the respondent had “facially” complied with all of the preliminary specific steps. It also found that the father had failed to comply with several of the steps, most importantly, that he did not “wish to participate in services or counseling to address his anger, his drug abuse or his mental health issues.” Despite the differing levels of participation in, and compliance with, the preliminary specific steps by the respondent and the father, the petitioner filed a petition to terminate the parental rights of both parents on October 27, 2005. As part of the petition, the petitioner represented that both the respondent and the father were “unwilling to benefit from reunification efforts.” The petitioner relied on the severity of the injury and the failure of either parent to provide an adequate explanation of the cause of the injury to justify the department’s refusal to provide reasonable efforts to reunify the respondent with her child. Specifically, the petitioner alleged that the respondent “is unwilling or unable to benefit from reunification services in that Jorden . . . suffered serious physical injuries while in her care . . . for which she has no viable explanation.” The petitioner did not allege that the respondent caused the child’s injuries, but only that collectively, she and the father would not or could not explain to department workers how the injuries were caused.

The hearing on the petition for termination of the respondent’s parental rights, which had been consolidated with the petition for a finding of neglect, commenced on September 11, 2006. The court heard evidence regarding, among other things, the extent of the respondent’s compliance with the preliminary specific steps. Ann Negron, a social worker supervisor who had been employed by the department for twelve years at the time of the hearing, testified about the respondent’s compliance with the preliminary specific steps. She testified that the respondent had kept her whereabouts known to the department during the relevant times, and this was undisputed at the hearing. Negron testified that the respondent had engaged in individual and parenting counseling. With regard to this step, the court also heard testimony from the respondent’s individual counselor, Nancy B. McDowell, a licensed clinical social worker with a master’s degree in social work. McDowell had met with the respondent for twenty-one sessions. During that time, McDowell and the respondent created a list of five goals for the respondent to pursue. These goals included mourning Jorden’s injury, dealing with her own history of abuse by the father, learning to deal with “complex social systems” such as the department, continuing to develop an independent voice and developing a social network for emotional support. Although McDowell was initially troubled by the respondent’s unwillingness to discuss her deep emotional issues, eventually the respondent did open up, and McDowell was generally pleased with the progress that the respondent had made by June, 2006. McDowell also commented that she was “struck by [the respondent’s] energy to do the things that had been asked of her in terms of working and going to school and visiting Jorden.”

The respondent also completed a psychological examination conducted by David M. Mantell, a psychologist who had been appointed by the court to examine both the respondent and the father. She subsequently took part in a second psychological evaluation, conducted by Ronald D. Anderson, a psychologist, though the court refused to consider the results of this evaluation, as discussed in part II.

Negron testified that the respondent secured a protective order against the father in May, 2006, satisfying that specific step. There is no indication in the record that the petitioner had recommended that she seek such an order prior to that date. The respondent also attended all but one of Jorden’s medical appointments. Finally, Negron testified that the respondent visited with the child as allowed by the department. Negron testified that the respondent’s “visits have gone very well. . . . She always arrived at least fifteen minutes prior to the visit. She always arrived in a good mood and willing to see the baby. She liked to be there when [the] foster mother arrived so that she could hold the child. [The respondent] also engaged with the child during the visits. . . . She talked to her son. She sang to her son. When he would start crying, she’d pick him up, bring him to the window.” Negron further testified that she had noticed an improvement in the respondent’s interaction with Jorden over the course of the visits. She testified that the respondent was “more engaging; she has also asked a lot more questions regarding ... his medical care; she also asked in terms of what he’s able ... to do with the physical therapist. . . . [S]he also has brought in her own books and various educational toys. She taught Jorden how to do patty-cake and he does respond to patty-cake. She just says patty-cake and he starts clapping. She’s very engaging during the visits.”

The court also heard testimony that the respondent went beyond the requirements of the preliminary specific steps by attending domestic violence counseling, which began August 31, 2006. This counselor, Donna L. Andrini, testified that she is a certified battered women’s counselor who also worked as a victim’s advocate. Although Andrini provided only general remarks because she had completed only her first counseling session with the respondent at the time of the hearing, she did indicate that she believed the respondent was sincere in her desire to address any domestic abuse issues.

The court also heard testimony, however, that the respondent began dating the father again after Jorden was injured. The court considered evidence that the reinitiated relationship continued while the respondent was participating in counseling and that the respondent hid the relationship from both her mother and her counselor. The respondent admitted that she had been lured by the father’s “sweet talk.” The renewed relationship lasted until May, 2006. At that time, the respondent was at her parents’ house with a friend. The father, who was no longer welcome in the home, arrived unannounced. After a brief argument with the respondent, the father slapped her on the face. The respondent called the police and subsequently sought a protective order against the father. As noted previously, she began domestic violence counseling in August, 2006. The respondent testified that at the time of the trial, she had not interacted with the father since May, 2006. Further, she had begun to date someone new. In contrast to her surreptitious relationship with the father, the respondent testified that she had discussed this new relationship with her domestic violence counselor.

The termination of parental rights hearing was held between September 11 and 22,2006. In its memorandum of decision, the court noted that the department “did not make efforts to actively reunify the child with the parents” and upheld the department’s decision by concluding that “the parents have been unable or unwilling to benefit from reunification services.” The court did not, however, rely on the department’s proffered assertion that the injury alone was sufficient to dispense with its statutory obligation to make reasonable efforts to reunify the respondent with her child but instead evaluated her participation and compliance with the services provided pursuant to the preliminary specific steps in making its decision. The court grounded its determination on the respondent’s youth and immaturity and her continued relationship with the father. Specifically, the court found that the department “was presented with a young, immature mother. She continues to be a teenager and act like a teenager. She was not old enough to effectively parent before Jorden’s injuries, and she remains too young. No amount of services from [the department] can make her mature beyond her years. Whatever gains were made in [the respondent’s] counseling were entirely subverted by her own surreptitious involvement with [the father].”

The court emphasized that it was particularly troubled by the fact that the respondent failed to disclose to her counselors her continued relationship with the father. The court noted that it was concerned that the respondent was at risk of entering another relationship similar to the one with the father, to the detriment of both her and the child. Although not explicitly included in its “reasonable efforts” analysis, the court elsewhere indicated its concern that the respondent would not be able to address the child’s complex medical needs adequately.

Pursuant to § 17a-112 (j), to grant a petition for termination of parental rights, the court must find by clear and convincing evidence that the department has made reasonable efforts to reunify the child with the parent unless the court finds that the parent is unable or unwilling to benefit from reunification services. “The requirement of reunification efforts provides . . . substantive protection for any parent who contests a termination action, and places a concomitant burden on the state to take appropriate measures designed to secure reunification of parent and child. . . . This requirement is based on the well settled notion that [t]he right of a parent to raise his or her children [is] recognized as a basic constitutional right.” (Citation omitted; internal quotation marks omitted.) In re Devon B., 264 Conn. 572, 584, 825 A.2d 127 (2003).

Cases involving the termination of parental rights are always difficult and require that the court seek a proper balance between the parent’s constitutionally protected interest in the care, custody and control of the child and the interest of the state in protecting the child’s health and safety. In re Christina M., 90 Conn. App. 565, 566-67, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006). An important goal of the child protection statutes is to preserve family integrity by teaching parents the skills they need to nurture and care for their children. Id., 571.

We review this court’s analysis and determination in In re Vincent B., supra, 73 Conn. App. 637, for guidance. In that case, the petitioner filed a petition for termination of the father’s parental rights on November 2, 2000, after having previously filed a petition for a finding of neglect. Id., 638-39. The trial court consolidated the two petitions on November 28, 2000. Id., 639. The court determined that the father was unwilling or unable to benefit from reunification services. Id., 640. The petitioner argued that the department had a six year relationship with the family and that on prior occasions the father had rejected all services that the department recommended. Id., 642. The court had also previously terminated the father’s parental rights as to two of his other children. Id. On appeal, this court reversed the judgment terminating the father’s parental rights, including the determination that the department was not required to provide reasonable efforts to reunify the parent and the child. Specifically, this court noted that in May, 2001, after the petitioner filed the petition to terminate his parental rights, the father had successfully completed a substance abuse program addressing his alcohol addiction. Id. The department’s decision to refrain from providing services for the father, however, resulted from its interaction with him before he had completed the program. Id., 643. This court concluded that the father’s “history of not availing himself of services as well as the department’s filing of the petition to terminate his parental rights did not relieve the department of a continuing duty to make reasonable efforts [to reunify the father with his child].” Id., 644.

The child in this case was only five weeks old when he sustained his injuries. He is neurologically impaired and will require care for the rest of his life. The choice, however, is not as stark as terminating the respondent’s parental rights or leaving the child, wholly unassisted, with what could be an unprepared mother. Unless he is institutionalized, the state will have to provide assistance to any parent, foster parent, adoptive parent or guardian who cares for him, including the respondent if custody is eventually returned to her. The respondent’s immaturity is the one circumstance that advancing years will alter. We do not agree that the evidence supports the finding that the respondent was unwilling and unable to benefit from reunification efforts.

The court properly observed that this single mother was immature and lacking in judgment. This circumstance is not as uncommon as one might wish it were in today’s society. It may well be the fact that the department might be able to choose more effective parents than those to whom many children have been bom. It must nevertheless take into account the rights of the parents as well as the rights of the child. As our Supreme Court has noted, “[a] parent cannot be displaced [simply] because someone else could do a better job of raising the child . . . .” (Internal quotation marks omitted.) In re Jessica M., 217 Conn. 459, 467, 586 A.2d 597 (1991). This child was only five weeks old when he was injured and has not been in his mother’s care since. The respondent was offered certain services through the department and did what she was asked to do. Even though for some of the time she disingenuously continued in some sort of relationship with the father, she eventually obtained a protective order against him and has subsequently notified her domestic abuse counselor of her dating activities. The department never attempted reunification services at least in part because it could not be determined how the child had been injured. In the absence of any suggestion that the respondent intentionally caused those injuries, she was entitled to reasonable efforts of the department to aid her.

II

The respondent next claims that the court abused its discretion when it precluded from evidence the testimony and report of her expert concerning his psychological evaluation of her. We agree in part with the respondent.

The following facts axe relevant to the respondent’s claim. Prior to the termination hearing, the court appointed Mantell to conduct a psychological evaluation of both the respondent and the father. Mantell was instructed to examine the parents individually. Although he examined them at the same time, he conducted the examinations in separate rooms. Mantell drafted a single report, incorporating information on both parents, on March 8, 2006. Mantell’s report included background information about the parents, results from the evaluations he conducted of the parents and a concluding section entitled “Termination Questions.” The report specifically declined to make a conclusion regarding termination. Because neither parent admitted to engaging in acts that may have led to the child’s injuries, Mantell concluded that “[i]t is therefore . . . not possible to offer a professional opinion about when the parents might be in a position to resume a responsible position in the child’s life.” In a second paragraph, the report also concluded that although “the accumulated data weighs more heavily against the father,” because Mantell was not able to “clearly identify” which parent caused the injuries, he could not make a recommendation regarding parental custody of the child. Mantell subsequently testified at the termination hearing, and his report was entered into evidence as a full exhibit.

After her examination with Mantell, the respondent hired Anderson to conduct an additional psychological examination of her. According to Anderson’s report, the purpose of the evaluation was to “assess [the respondent’s] adjustment and personality functioning, and to identify any factors which might impair her judgment or ability to care for her child.” Anderson, a licensed clinical psychologist, had conducted several evaluations for the judicial branch since 1980. Anderson testified that he had met with the respondent on two separate occasions to evaluate her and that each session lasted approximately three hours. Anderson drafted a report of the findings he made pursuant to these sessions that included a list of four recommendations, and the reasons for those recommendations, regarding the continued relationship between the respondent and her child. The first recommendation was that the department should take steps toward reunifying the respondent with her son; second, that the reunification plan include a condition that the father be precluded from making direct contact with either the child or the respondent; and third, that the respondent should be provided with training to help her learn how to deal with her child’s continuing needs and that she be regularly assessed and provided with specific goals to meet. Prior to drafting his report, Anderson was provided with, and reviewed, the report that Mantell had drafted concerning both parents. It is not entirely clear how Anderson received Mantell’s report, but the parties appear to agree that the respondent herself provided it to him and that there was no intentional wrongdoing involved with this disclosure. Anderson reviewed the Mantell report, conducted several interviews with the respondent during which he administered several psychological exams, and drafted his report on September 10, 2006.

At trial, the respondent called Anderson as a witness. After eliciting some background information about the witness’ credentials and his evaluation of the respondent, the respondent’s counsel proffered his report as a full exhibit. Counsel for the petitioner, the father and the child each stated that they had no objection to admitting the report. The court indicated that the exhibit would be marked as respondent’s exhibit two. A question then arose regarding whether the copy provided was authentic. The copy offered into evidence appears to have been printed from an e-mail attachment that Anderson had sent to the respondent’s attorney. The court recessed to allow Anderson to review the exhibit in order to verify that there were no substantive changes from the report he drafted. After Anderson examined the report, he verified that it was authentic and signed it. At that point, counsel for the child and counsel for the father again stated that they had no objection to the report, and the court admitted the report into evidence. The respondent’s counsel then proceeded with the direct examination. During the examination, the father’s counsel interrupted and objected for the first time to the report on the ground that the report relied, at least in part, on Mantell’s report. Counsel asserted that his client had taken part in Man-tell’s examination with the belief that its results would stay confidential but that it was clear that Anderson had reviewed the report and, specifically, read Mantell’s remarks concerning the father. Further, counsel stated that the information in the Mantell report likely influenced all of Anderson’s conclusions. The petitioner agreed.

The court allowed the parties to voir dire the witness to determine the extent to which he relied on the Man-tell report. Anderson then testified about the procedures he used in administering the evaluation and gathering data related to the respondent. Anderson testified that he “could certainly describe the process of the individual evaluation and the results of the testing . . . without any reference to . . . Mantell’s report.” He also testified that he “could certainly indicate her intellectual abilities, her personality—what the personality tests show, the results of the evaluation itself’ without resort to Mantell’s report. Anderson then indicated that he would not have worded his second recommendation, the recommendation regarding the father’s ability to contact the respondent and child, as he did without Mantell’s report. Anderson indicated that without Mantell’s report, he would have had only the respondent’s version of the father’s actions to consider and so might have had to qualify his recommendation by providing “something like ‘based on her report’ or some qualification . . . .’’At that point, the court interjected, stating: “All right. I’ve heard enough. . . . Anderson has honestly testified that there are certain matters that are contained in his recommendations, certain conclusions that he has reached, which could not have been reached absent ... a review of . . . Mantell’s report. Accordingly . . . Anderson is excluded from testifying.” The respondent subsequently requested that Anderson be allowed to testify about his examination of the respondent, without making reference to the father. The court responded: “I think that the well has been poisoned. My ruling stands. Call your next witness.”

The respondent argues that the court abused its discretion when it excluded from evidence Anderson’s report and refused to allow Anderson to testify. The petitioner argues that the court acted properly in excluding the evidence in light of the unauthorized disclosure of Mantell’s report to Anderson.

“The trial court’s exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.) In re Tabitha P., 39 Conn. App. 353, 365 n.8, 664 A.2d 1168 (1995). In reviewing the court’s determination to exclude the report and testimony, we are mindful that “[t]he psychological testimony from professionals is rightly accorded great weight in termination proceedings.” In re Nicolina T., 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

Our Supreme Court reviewed a challenge to expert testimony in a termination of parental rights hearing in In re David W., 254 Conn. 676, 691, 759 A.2d 89 (2000). In that case, the court-appointed clinical psychologist, Mantell, had made improper ex parte contact with the department before drafting his fourth, and final, report regarding the respondents’ rehabilitation. Mantell subsequently testified for the petitioner at the hearing. The trial court determined that impeachment through cross-examination provided the respondents with a sufficient remedy for the violation and refused to exclude the expert from testifying. Id., 678. On appeal initially to this court, we reversed the judgment terminating the respondents’ parental rights, finding that the conflict created by Mantell’s testifying for the petitioner, as well as the ex parte contacts, and his role as an independent court-appointed expert mandated the exclusion of his testimony. In re David W., 52 Conn. App. 576, 589-90, 727 A.2d 264 (1999), rev’d, 254 Conn. 676, 759 A.2d 89 (2000). Our Supreme Court reversed this court’s judgment. It agreed with the trial court that cross-examination provided a sufficient remedy. The Supreme Court further stated that it would have been improper for the court to have excluded the testimony. In re David W., supra, 254 Conn. 691.

Here, the court properly recognized the high importance that this state places on privacy rights regarding psychological examinations. The court also found that the father’s privacy rights had been violated without any showing of cause. Therefore, it properly determined that it should take steps to remedy the injury. In doing so, however, it could have redacted the report to exclude any reference to Mantell’s report or even any mention of the father at all. Further, it could have limited any testimony Anderson might have provided to matters regarding the respondent, alone, without reference to the father and based solely on Anderson’s evaluations of her. If there was any question as to whether Anderson’s conclusions regarding the respondent’s ability to benefit from reunification efforts were independent from, or wholly dependent on, Mantell’s conclusions, the other parties could have attempted to impeach Anderson through cross-examination, and the court, as the trier of fact, could have assessed the credibility and weight of Anderson’s testimony accordingly. See id.

In this case, the court precluded more relevant, and potentially highly important, evidence than was necessary to address the violation of privacy. Anderson did not testify that he based all of his conclusions on the information he gleaned from Mantell’s report. Instead, he clearly stated that he would have been able to testify about the results of the evaluations he made of the respondent without regard to the background information in the earlier report. Further, to the extent that Anderson testified that he would have had to alter his report had he not had the information provided by Man-tell’s report, he indicated that such alterations would have been only as to his second recommendation, which was that the father not be allowed to have contact with the child and the respondent. He did not indicate that his conclusions that the respondent could benefit from reunification efforts and that she should be provided with such services were influenced by Mantell’s report.

Because of the importance of the interests involved, namely, the parental rights of the respondent to care, to raise and possibly even to see her child at all, and the interest of the child in a reasoned and accurate determination of his best interests, we conclude that the court abused its discretion in precluding more evidence than was necessary to remedy the unauthorized disclosure.

The petitioner argues that even if the determination to exclude the entire report and to preclude Anderson from testifying was an abuse of discretion, it was harmless error. The petitioner argues that the ruling was harmless because the only issue before the court was causation of the injury, another witness, McDowell, testified about the respondent’s mental condition, and the court did not appear to rely on Mantell’s report in making its determination. We do not agree that the preclusion was harmless.

The petitioner is mistaken in asserting that the only issue before the court was causation. The court consolidated the petitions for neglect and for termination of parental rights and held a single hearing to address both. The court was reviewing evidence to determine, among other things, whether the department correctly concluded that it was unnecessary to provide the respondent with reasonable efforts to reunify her and the child. Anderson’s recommendation that reunification efforts could be beneficial, and the reasons supporting that recommendation, clearly could be important to a reasoned determination of that issue. Second, the petitioner argues that the evidence would have been cumulative in that the respondent’s therapist already had testified about the respondent’s mental condition. There is no evidence, however, that the therapist was a licensed psychologist, that she administered evaluations similar to those administered by Anderson or that she had the professional training to do so. Third, there is nothing in the memorandum of decision to indicate that the court discredited the Mantell report or found it trivial. Recognizing the importance generally accorded to expert testimony in termination of parental rights cases, we conclude that the error was not harmless.

The judgment is reversed with respect to the termination of the respondent mother’s parental rights and the case is remanded for a new trial with respect to the mother’s parental rights. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The child’s father consented to the termination of his parental rights during the course of the trial, and he is not involved in this appeal. Therefore, we refer to the mother as the respondent.

       The respondent has not adequately briefed her third claim. Therefore, we decline to afford it review.

       General Statutes § 17a-112 Q) provides in relevant part: “The Superior Court . . . may grant a petition [for termination of parental rights] if it finds by clear and convincing evidence that: (1) the Department of Children and Families has made reasonable efforts ... to reunify the child with the parent . . . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ... (2) termination is in the best interest of the child, and (3) . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to . . . severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . . .”

       Because our resolution of the respondent’s second argument is dispositive of this claim, we need not reach her third argument, which is that termination of her parental rights was not in the best interest of the child.

       We note, preliminarily, that the petitioner, in her petition for tennination of the respondent’s parental rights, alleged that reunification services were inappropriate, and the court found that the department had no obligation to make reasonable efforts to reunify the respondent with her child. We are not, therefore, presented with a case in which the court has found that the parent has failed to achieve sufficient rehabilitation despite the department’s reasonable efforts at reunification; see In re Anthony H., 104 Conn. App. 744, 750, 756, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008); but, rather, we are presented with a case in which the court has determined that the department had no obligation to attempt to reunify the respondent with her child.

       The petitioner also alleged that the respondent was intoxicated at the time of the injury. The petitioner apparently abandoned this allegation at trial.

       McDowell testified that during her time counseling the respondent, which lasted from November, 2005, until June, 2006, the respondent canceled or rescheduled ten appointments. She further testified, however, that this frequency of cancellation was not uncommon, and that “by canceling and rescheduling [the appointments, the respondent] was indicating her desire to participate.”

       The court stated in its decision that the respondent and the father began dating again six weeks after the injury, in September, 2005. It does not cite the source of this date. The respondent testified that they began dating again about four months after the iiyury. Another witness, Helen C., whose testimony the court specifically credited, testified that they began dating again a few months after the injury. Negron testified that she saw the respondent and the father at one of Jorden’s medical appointments in September, 2005, but she specifically stated that they did not interact with each other.

       Anderson’s fourth “recommendation” was not really a recommendation but, rather, a proviso indicating that Anderson did not have any department records to review at the time he drafted his report.

       The petitioner refers to the court’s ruling as a “sanction” of the respondent for violating the father’s privacy rights. The court did not characterize its ruling as a sanction, however, and the respondent does not appear to have been violating any order of the court at the time she gave the report to her expert. See Vitone v. Waterbury Hospital, 88 Conn. App. 347, 357, 869 A.2d 672 (2005). Further, the court did not find that there was any intentional wrongdoing involved with the disclosure. We believe it is more accurate to characterize the court’s ruling as a remedy, specifically, a remedy for the unauthorized disclosure of the father’s confidential information.

       We note that although we are reversing the trial court’s determination granting the petition for termination of parental rights as to the respondent, this decision does not grant the respondent custody of the child. See In re Jessica M., supra, 217 Conn. 475. We further note that the judgment terminating the father’s parental rights is unaltered by this decision.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    JOHN P. RICHARDSON ET AL. v. ZONING COMMISSION OF THE TOWN OF REDDING ET AL.
    (AC 28364)
    McLachlan, Beach and Pellegrino, Js.

      Argued January 4
    officially released April 15, 2008

      Robert A. Fuller, for the appellants (defendant Candace R. Benyei et al.).

      Michael N. LaVelle, for the appellee (named defendant).

      WardJ. Mazzucco, with whom was Camille DeGalan, for the appellees (plaintiffs).
   Opinion

McLACHLAN, J.

The defendants Candace R. Benyei and C. Christian Benyei appeal from the judgment of the trial court sustaining the appeal of the plaintiffs, John P. Richardson and Laurie G. Richardson, from the decision of the zoning commission of the town of Redding (commission) approving the defendants’ application to construct an indoor riding arena on their property located at 29 Giles Hill Road in Redding. On appeal, the defendants claim (1) that the court improperly applied the successive application rule when it determined that the commission could not approve a second, revised application to construct the proposed structure after it had denied a prior application involving the same structure and (2) that the commission properly could correct its mistaken denial of their first application because the defendants demonstrated that the proposed structure was a permitted use on their property when the second application was discussed and not an illegal expansion of a nonconforming use. Although we conclude that the court improperly applied the successive application rule in this case, we affirm the trial court’s judgment for different reasons.

The following facts and procedural history are relevant to our resolution of the issues in this appeal. The defendants purchased their property, known as Whimsy Brook Farm, in 1972. Although their residence is located on the property, they also have owned and operated an equine facility on their 6.4 acre parcel since 1973. In connection with that operation, they raise, breed, train and board horses, and they provide private riding lessons on horses owned by them and their boarders. The defendants’ property is located in an R-2 residential zone.

In 1986, the commission enacted substantial revisions to its zoning regulations. Pursuant to article V, § 5.14.2 (b), of those amended regulations, a land management plan was required for any “[a]nimal raising operations” in which the number of horses exceeded one horse per 0.8 acres. At that time, the defendants’ use of their property became nonconforming as to the number of horses on their 6.4 acre parcel. The amended regulations limited the number to eight, and the defendants kept from twenty to twenty-five horses at Whimsy Brook Farm at any given time.

By letter dated July 5, 2005, Candace Benyei requested permission from the commission to construct a 12,000 square foot indoor riding arena on the defendants’ property. In addition to the actual riding ring, the two story corrugated metal building would contain five stalls, bathroom facilities, a tack room, a wash area, a viewing room and storage space. The proposed structure was to be located sixty feet from the boundary line of the plaintiffs, who are abutting property owners. This initial proposal was discussed at meetings of the commission on July 13, August 10, and September 14 and 28, 2005. The commission members also participated in a site walk on the defendants’ property on September 21, 2005.

Throughout the proceedings, the plaintiffs expressed their opposition to the defendants’ application. Individually and through counsel, they insisted that the defendants’ proposed use required the submission and approval of an application for a special permit. At the commission’s meeting on September 28, 2005, a letter from Frank Taylor, the chairman of the commission, who was unable to attend that evening, was read into the record. Taylor concluded that “we should require a full special permit use site plan and land management plan and schedule the required public hearing.” After the reading of Taylor’s letter, a commission member made the following motion: “Make a motion. Deny this application and move to a special permit process.” The motion was seconded and passed unanimously.

By letter dated October 27, 2005, Candace Benyei requested that the commission “put us on the agenda for the meeting on November 9th. We would like to discuss with you a new building project.” At the November 9, 2005 meeting, Candace Benyei, the defendants’ attorney and the defendants’ engineer appeared before the commission. At that time, the defendants submitted a revised plan that included a septic and engineered drainage plan and a package of maps containing twelve pages. The defendants’ attorney stated that he wanted to “clarify the status” of the property. He indicated that the primary use of the defendants’ property was farming, which is a permitted use in an R-2 zoning district. He further indicated that the proposed structure had been moved more than 100 feet from the plaintiffs’ property line. Article V, § 5.14.6 (c), requires that “Major Structures” on a farm, such as the proposed building, be set back 100 feet from all side and rear lot lines. Because the building had been moved to comply with that provision of the zoning regulations, the defendants’ attorney argued that it could be constructed as a permitted use. He also argued that the only nonconformity on the property was the number of horses and that the proposed structure did not increase that nonconformity, thereby making it unnecessary for the defendants to apply for a special permit.

At the conclusion of the defendants’ presentation, a commission member made the following motion: “I would make a motion that [the defendants’ proposal] does not require a special permit.” The motion was seconded and it passed unanimously. The commission then reached the merits of the application and unanimously approved the defendants’ site plan. The plaintiffs appealed from the commission’s decision to the Superior Court pursuant to General Statutes § 8-8.

In their appeal to the trial court, the plaintiffs claimed that the commission acted illegally, arbitrarily and in abuse of its discretion in approving the defendants’ application because, inter alia, it improperly (1) determined that the proposed use did not result in the expansion of an existing nonconforming use, (2) determined that the use proposed did not require a special permit, (3) failed to hold a public hearing before granting the application and (4) reversed its prior decision that the proposal would require an application for a special permit and a land management plan. On August 18, 2006, the court issued its memorandum of decision. It found that the plaintiffs were aggrieved and sustained their appeal on the ground that the commission improperly reversed its initial determination on the first application. Having obtained certification to do so, the defendants filed the present appeal.

I

The defendants claim that the court improperly applied the successive application rule when it determined that the commission could not approve a second, revised application to construct the proposed structure after it had denied a prior application involving the same structure. Specifically, they argue that the second plan was changed substantially in that it brought the proposed structure into compliance with the applicable zoning regulations, thereby allowing the commission to approve the revised site plan.

In its memorandum of decision, the court found as follows: “While an administrative agency may grant a second application following a denial of the first where the second application has been substantially changed to meet the objections the agency has to the original application . . . such is not the case here. . . . [T]he commission, after four meetings and a site walk, specifically found that the structure itself, not its location, was an expansion of a nonconforming use and directed [the defendants] to submit a special permit application so that the scope and impact of the application could be more thoroughly investigated. The plaintiffs relied on that determination and expected that no development would take place in the absence of a special permit application and public hearing. The only change to the renewed application was the relocation of the structure; however, there was no change to its footprint or the fact that it would not replace either of the existing training areas. In the absence of such evidence, the commission acted arbitrarily in approving the second application.” (Citation omitted; internal quotation marks omitted.)

We first set forth the applicable standard of review. “Trial courts defer to zoning boards and should not disturb their decisions so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . The trial court should reverse the zoning board’s actions only if they are unreasonable, arbitrary or illegal. . . . The burden of proof is on the plaintiffs to demonstrate that the zoning board acted improperly.” (Internal quotation marks omitted.) Vine v. Zoning Board of Appeals, 102 Conn. App. 863, 869, 927 A.2d 958 (2007).

When a party files successive applications for the same property, a trial court’s inquiries may vary depending on whether the application before the zoning agency is an application for a variance or an application for a permit. “In considering a subsequent variance application where it has already denied a similar prior one, [a] zoning board of appeals is generally precluded from reversing a prior decision unless there has been a material change of conditions, or other considerations have intervened affecting the merits, and no vested rights have arisen. . . . The board is disallowed from revisiting its prior determination that the requirements for a variance are not present because, if a reversal of that determination was allowed, there would be no finality to the proceeding [and] the result would be subject to change at the whim of members or due to the effect of influence exerted upon them, or other undesirable elements tending to uncertainty and impermanence. . . .

“Finality of decision is just as desirable in the case of an exception [or permit] as in one involving a variance. Because of the nature of an exception [or permit], however, the power of a zoning board to review a prior decision denying the exception [or permit] is not limited, as it is when a variance is sought, to the two situations mentioned above. An additional situation arises when the owner requesting an exception [or permit] files a subsequent application altering the plan under which he previously sought the exception [or permit], in order to meet the reasons for which the board denied the prior one. ... To justify a special exception [or permit] ... it must appear that the manner in which the owner proposes to use his property will satisfy the conditions imposed by the regulations. If, therefore, upon a second request for a special exception [or permit], there is a substantial change in the manner of use planned by the owner, the board is faced with an application materially different from the one previously denied. It may well be that the new plan, by reason of the changes made therein, will succeed, where the former failed, in satisfying the conditions enumerated in the regulations. Under such circumstances, the board is not precluded from granting the second application merely because it has denied the first. . . .

“A subsequent [permit] application made in order to bring a prior application into compliance with applicable regulations, no matter how minor the work involved may be, is clearly not minor in regard to its significance and effect. . . . The board may grant the exception [or permit] once it finds that all the requirements of the ordinance have been satisfied . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Grasso v. Zoning Board of Appeals, 69 Conn. App. 230, 244-46, 794 A.2d 1016 (2002). The same concept applies to a site plan application. Id., 246.

In the present case, the court found that the only change between the first and second applications of the defendants was the location of the proposed structure and that the commission, in denying the first application, had “specifically found that the structure itself, not its location, was an expansion of a nonconforming use . . . .” For that reason, the court concluded that the successive application rule applied and that the commission acted arbitrarily in reversing its decision. We disagree with the court’s finding and conclusion.

First, in denying the initial application, the commission did not give a collective reason for its decision. Many issues had been discussed at that meeting. Although the chairman stated in his letter that he believed the proposed use constituted an expansion of a nonconforming use, and similar comments were made by other individuals during that meeting, the commission denied the application without stating its reasons on the record. “[M]ere utterances of an individual member do not constitute a formal, official collective statement of the entire board.” Vine v. Zoning Board of Appeals, supra, 102 Conn. App. 870 n.2.

Second, we conclude that the court improperly substituted its judgment for that of the commission. Because no official collective statement was provided for the commission’s denial of the defendants’ first application, the court should have searched the entire record to find a basis for the commission’s decision. Id., 870. In addition to the discussion that the proposed structure might be an illegal expansion of a preexisting, nonconforming use, other comments were made by the commission members and members of the public as to the failure of the structure to meet the 100 foot setback requirement in the regulations. The first application located the structure sixty feet from the plaintiffs’ boundary line. The second application moved the building to a location more than 100 feet from the plaintiffs’ boundary line. If, as argued by the defendants’ attorney, the revised application then satisfied all of the requirements for the use of that building, the commission was entitled to review the subsequent application and approve the site plan.

“The function of the [trial] court on review is not to reach its own conclusions upon subordinate facts but only to determine whether the conclusion of the commission on those facts was unreasonable or illogical.” Hoffman v. Kelly, 138 Conn. 614, 617, 88 A.2d 382 (1952). We cannot conclude that the commission’s decision to review the revised application was unreasonable or illogical when there is a basis in the record to find that the change in location was made in order to bring the proposal into compliance with the regulations. Accordingly, the court improperly concluded that the successive application rule prevented the commission from considering the revised application of the defendants.

II

Although the commission properly could consider the subsequent plan, we nevertheless affirm the court’s judgment because the commission’s determination that the defendants were not required to submit an application for a special permit was clearly contrary to the zoning regulations.

At the meeting at which the defendants’ revised application was discussed, the defendants’ attorney told the commission members that the primary use of the property was for farming and that the proposed structure was, therefore, a permitted use in an R-2 zoning district. Article IV, § 4.2.1, of the regulations lists the permitted uses in residential zones. In addition to detached single-family dwellings, permitted principal uses include “[f] arming, forestry and horticulture, as provided by section 5.14.” Article V, § 5.14.6 (c), entitled “[mjajor [structures,” provides, that “[a]ny bam, greenhouse, shed, structure or group of structures exceeding 2,500 square feet in gross ground coverage shall be set back at 100 feet from all side and rear lot lines, or effectively screened as required to protect adjacent properties.” Because the revised plan located the proposed structure more than 100 feet from the plaintiffs’ boundary line, the defendants argued that no special permit was required because the application complied with the regulations for a major structure on property used primarily for farming.

Some of the commission members questioned whether the defendants’ property was being used primarily for farming and whether the proposed structure was incidental to a farming use. The defendants’ attorney referred to the statutory definition of farming set forth in General Statutes § 1-1 (q) to support their position. Neither the commission members nor the defendants’ attorney referred to the definition of “farming” in the town’s zoning regulations. Article VIII, § 8.1.64, defines “farming” as “[t]he cultivation of open land for growing of crops, hay, fodder, ensilage, pasturage, orchards, gardens, nursery stock, and related agricultural production, including the incidental raising of domestic animals and the sale of agricultural products directly resulting from such cultivation, within limits prescribed by these [regulations . . . .” Without discussing the definition of “farming” as found in its own zoning regulations, the commission agreed with the defendants that no special permit was required for their proposal and approved the site plan submitted for the construction of the indoor riding arena.

The court never reached the issue of whether the defendants’ proposed structure was incidental to a permitted farming use, as claimed by the defendants, or whether the addition of an indoor riding arena to the property was an illegal expansion of a nonconforming use, as claimed by the plaintiffs.* **** We consider this issue because its resolution involves the interpretation of the zoning regulations, which presents a question of law. See Thomas v. Planning & Zoning Commission, 98 Conn. App. 742, 745, 911 A.2d 1129 (2006). This court can decide a question of law notwithstanding the fact that the trial court did not address it. Cf. Colangelo v. Heckelman, 279 Conn. 177, 194 n.16, 900 A.2d 1266 (2006).* *****

“Because the interpretation of the regulations presents a question of law, our review is plenary. . . . [Z]oning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006). Although a commission’s interpretation of its regulations is entitled to some deference, we are not bound by its legal interpretation. See Northeast Parking, Inc. v. Planning & Zoning Commission, 47 Conn. App. 284, 293, 703 A.2d 797 (1997), cert. denied, 243 Conn. 969, 707 A.2d 1269 (1998) .

As we previously noted, farming is a permitted use in an R-2 zoning district. Contrary to the defendants’ argument, however, their property is not used primarily for farming. The definition of “farming” in the town’s zoning regulations is controlling. According to article VIII, § 8.1.64, farming is “[t]he cultivation of open land” and “includ[es] the incidental raising of domestic animals . . . .” Although the defendants reside at Whimsy Brook Farm, it is undisputed that the primary use of the property has been the raising, breeding, training and boarding of horses since 1973. Candace Benyei, in the defendants’ first application, described the operation as an “equine facility.” It cannot reasonably be argued that the raising of horses on the defendants’ property is incidental to the cultivation of their land so as to fall within the definition of “farming” in the regulations.

Although we conclude that the defendants’ use of their property is not primarily for farming, we do not agree with the plaintiffs’ argument that the defendants’ proposal necessarily involves the expansion of a nonconforming use. A nonconforming use is defined in article V, § 5.17.3, as “[a]ny lawful use of land or lawful use of a building or [structure, which use, however, does not comply with the permitted uses or permitted special uses specified by these Regulations for the Zone in which it is located . . . .” (Emphasis added.) Although the defendants’ equine facility is not a permitted use in an R-2 zoning district, the operation does fall within the enumerated permitted special uses for residential zones set forth in article IV, § 4.2.3. Section 4.2.3 (j) authorizes the establishment of “[l]ivery stables, riding academies, livestock farms, and forest sawmills, subject to the provisions of Section 5.14,” upon the granting of a special permit by the commission. Section 5.14 is entitled “[f]arms, [p]roduce [sjtands, [ajnimal [operations,” and includes horses under the category of “[a]nimal raising operations . . . .” Even though the term “livestock farms” is not expressly defined in the regulations, a reading of the applicable sections of those regulations leads to the conclusion that the raising of horses is a permitted special use under § 4.2.3 (j), as further clarified by § 5.14.

The defendants’ use of their property was established before a special permit for “livestock farms” was required. Nevertheless, any enlargement of that use is subject to the requirements set forth in the current regulations. Article V, § 5.1, entitled “[permitted [special [u]ses,” provides: “Special uses, as permitted within the respective zones, are unique in character and require that each application be considered on its individual merits. A use subject to Special Permit shall not be established, altered or enlarged until specific findings and approval have been made by the Zoning Commission under the following regulations.” (Emphasis added.) The provisions that follow are comprehensive and require, inter alia, the submission of a special permit application with a complete site plan. Section 5.1.2 sets forth the procedure for submission of the application and requires the commission to hold a public hearing and to send notice of that hearing by certified mail to each abutting property owner.

Because the term “alter” is not defined in the zoning regulations, we look to the commonly accepted meaning of the word. In Webster’s Third New International Dictionary, “alter” is defined as follows: “[T]o cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else.” The plaintiffs and other members of the public voiced concerns at the meeting on the first application that the defendants’ proposed structure would, inter aha, require its own septic system because of the bathroom and wash area, could adversely impact the drainage in the area and could result in increased truck and trailer traffic.

We conclude that the defendants’ permitted special use of its property would be altered by the construction of a 12,000 square foot indoor riding arena, and, therefore, it was necessary under the zoning regulations for the defendants to submit an application for a special permit and for the commission to hold a public hearing on that application. For that reason, the appeal of the plaintiffs from the decision of the commission was properly sustained.

The judgment is affirmed.

In this opinion the other judges concurred.

       The commission also was named as a defendant in this administrative appeal. It filed an appellate brief, adopting the arguments presented by the Benyeis, although it did not file a petition for certification to appeal. We refer to the Benyeis as the defendants in this opinion.

       In the defendants’ application to construct an indoor riding arena, Candace Benyei stated that the defendants’ operation at Whimsy Brook Farm is an “equine facility.”

       In fact, Candace Benyei indicated that the defendants intended to reduce the number of horses on their property from twenty-five to twenty when the new building was constructed.

       The court found that the plaintiffs, as abutting property owners, were statutorily aggrieved by the commission’s decision. That finding has not been challenged on appeal.

       General Statutes § 1-1 (q) provides in relevant part: “[T]he words ‘agriculture’ and ‘farming’ shall include cultivation of the soil, dairying, forestry, raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training and management of livestock, including horses, bees, poultry, fur-bearing animals and wildlife, and the raising or harvesting of oysters, clams, mussels, other molluscan shellfish or fish; the operation, management, conservation, improvement or maintenance of a farm and its buildings, tools and equipment.... Nothing herein shall restrict the power of a local zoning authority under chapter 124."

       At the time the defendants’ first application was being considered, the plaintiffs and some of the commission members stated their concerns that the defendants’ property was being used for business purposes. It was acknowledged that the defendants’ property had been used for the raising and boarding of horses since 1973. Comments were made that some of the current uses of the property might be valid preexisting, nonconforming uses but that the proposed structure would be an illegal expansion of those nonconforming uses.
      The plaintiffs and various commission members stated that the defendants would be required to submit an application for a special permit if their proposal constituted an expansion of a valid nonconforming use. The regulations, however, do not permit the expansion of a nonconforming use, with or without the issuance of a special permit. Article V, § 5.17.3, provides that “[a]ny lawful use of land or lawful uso of a building or [structure, which use, however, does not comply with the permitted uses or permitted special uses specified by these Regulations for the Zone in which it is located, is a nonconforming use.”

        “No nonconforming use shall be expanded or enlarged beyond the extent of building size, floor space and site area it occupied on the effective date of these Regulations, or pertinent amendments thereto.
      “No nonconforming use may be changed except to ause which is permitted by these Regulations for the Zone in which the use is located or to another nonconforming use less intensive in nature and more consistent with the uses permitted in the Zone in which the building, structure or site area, is located, as determined by the Commission.”

       Further, it is appropriate to address this issue because the defendants have claimed on appeal that the commission properly could correct its mistaken denial of their first application because they demonstrated at the meeting on their second application that the proposed structure was a permitted use under the regulations and that no special permit was required.

       The statutory definition of “farming” in § 1-1 (q) does not apply to the present case because that term is expressly defined in the applicable regulations. See Wood v. Zoning Board of Appeals, 258 Conn. 691, 705, 784 A.2d 354 (2001).

       The definitional differences between the Redding zoning regulations and the Middletown zoning regulations distinguish this case from the recently decided case of Borrelli v. Zoning Board of Appeals, 106 Conn. App. 266, 941 A.2d 966 (2008). In Middletown, the definition of “farming or other agricultural uses” included “animal husbandry”; id., 275-76; whereas in Redding, “farming” included only the “incidental raising of domestic animals.”

       Under the zoning regulations of the town of Redding, a “livestock farm,” as a permitted special use, may be the principal use of the property and coexist with a residence. See Lauer v. Zoning Commission, 220 Conn. 455, 466, 600 A.2d 310 (1991).


author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. SEAN RAMIREZ
    (AC 27707)
    Bishop, Lavine and McDonald, Js.

      Argued November 28, 2007
    officially released April 15, 2008

      Jodi Zils Gagne, special public defender, for the appellant (defendant).

      Kathryn Ward Bare, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Brian J. Leslie, assistant state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Sean Ramirez, appeals from the judgment of conviction, following a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). On appeal, the defendant claims that (1) the trial court improperly denied his posttrial motion for a judgment of acquittal, (2) the court improperly instructed the juiy on self-defense and (3) the evidence was insufficient to sustain his conviction of assault in the second degree and threatening in the second degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was driving on College Street in New Haven during the afternoon of October 29, 2003, when he noticed a black sport utility vehicle, driven by the defendant, weaving erratically. Both the victim and the defendant stopped their vehicles for a red traffic signal in adjacent lanes at the intersection of College Street and Chapel Street. When the traffic signal turned green, the defendant accelerated rapidly and switched into the victim’s lane, cutting him off. In response, the victim moved his car into the neighboring lane, but the defendant also switched lanes, cutting the victim off a second time. The victim was forced to brake to avoid a collision and, consequently, flashed his high beam headlights to alert the defendant to his presence. The defendant then braked abruptly, forcing the victim also to brake swiftly to avoid hitting the defendant’s car. After the defendant resumed traveling forward, he changed lanes and slowed his vehicle. When the victim drove past him, the defendant immediately switched back into the victim’s lane. The defendant twice accelerated toward the victim’s car as if intending to ram it, slowing down just before contact. The victim, concerned for his safety, changed lanes two more times to avoid the defendant. When the victim came to a stop at a red traffic signal at the intersection of College Street and North Frontage Road in the center lane, the defendant drove abreast of him in the right lane. Through his closed windows, the victim could see that the defendant was angrily yelling and gesticulating at him.

The defendant then exited his car, ran to the victim’s driver side window and began pounding his fists against the glass. The victim, afraid that the defendant would hurt him, reached between the front seats and into the back of his car and grabbed his baseball bat to protect himself. Just after the victim got the bat, the defendant punched his fist through the driver’s side window, reached into the victim’s car and wrenched the bat out of his hands. The defendant stated: “I’m glad you gave me this bat because now I’m going to beat the hell out of you and kill you with it.” The defendant then began hitting the victim, while the victim tried to deflect the blows with his feet. After striking the victim about half a dozen times, the defendant ran back to his car, reversed quickly down College Street and drove away.

The defendant was stopped in his vehicle by the police approximately half an hour later. The defendant’s right hand was lacerated and swollen, and he explained that he had just been in an altercation with the victim on College Street. Additionally, the victim’s baseball bat was found inside the defendant’s car.

The defendant was ultimately arrested and charged with attempt to commit assault in the first degree, assault in the second degree, threatening in the second degree and carrying a dangerous weapon. At trial, the defendant testified and admitted to hitting the victim with the baseball bat and punching him in the face. The defendant claimed, however, that he was acting in self-defense. The jury found the defendant guilty of assault in the second degree and threatening in the second degree. He was acquitted of attempt to commit assault in the first degree, carrying a dangerous weapon and failure to appear in the first degree. On March 8, 2004, the defendant filed a motion for a judgment of acquittal notwithstanding the verdict in which he sought relief on the ground that the verdict was both legally and factually inconsistent. On March 20, 2006, the court denied the defendant’s motion. The court sentenced the defendant to six years incarceration, execution suspended after four years, and two years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied his motion for a judgment of acquittal because the jury’s guilty verdict on the charge of assault is legally and factually inconsistent with the jury’s finding of not guilty on the charge of carrying a dangerous weapon. The defendant argues that assault with a dangerous instrument or deadly weapon required the state to prove that he used a dangerous or deadly weapon in the commission of the assault and that the jury’s finding of not guilty on the charge of carrying a dangerous or deadly weapon or instrument can not be factually or legally harmonized with the assault conviction. We disagree.

Preliminarily, we note that “[t]he resolution of a claim of inconsistent verdicts presents a question of law. . . . Our review is therefore plenary.” (Internal quotation marks omitted.) State v. Mourning, 104 Conn. App. 262, 269, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007).

We first consider the defendant’s claim that the verdict was legally inconsistent. Generally, a legal inconsistency arises when an essential element for one conviction negates an essential element for another conviction. “[W]here the inconsistent verdicts claim involves a simultaneous conviction and acquittal on different offenses [however], the court, in testing the verdict of guilty for inconsistency as a matter of law, is necessarily limited to an examination of the offense charged in the information and the verdict rendered thereon without regard to what evidence the jury had for consideration. ... If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.” (Citation omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 244, 745 A.2d 800 (2000).

A conviction of assault in the second degree in violation of § 53a-60 (a) (2) requires that an offender intend to cause physical injury to another person and that he actually cause such injury by means of a deadly weapon or dangerous instrument. No such requirement of intent to cause physical injury or causing such injury is contained in General Statutes § 53-206, which prohibits the carrying of a dangerous or deadly weapon or instrument.

Also, for a defendant to be found guilty of carrying a dangerous weapon under § 53-206, the state must prove that the defendant carried on his person a dangerous or deadly weapon or instrument. As the court charged in its instructions to the jury: “[C]arry means what it means in its everyday sense, including any method of carrying, which renders the weapon or instrument readily acceptable and available for use irrespective of whether the person moves from place to place while having the weapon or instrument rather [than] in [one’s] possession. It also means to bear, to bear about, sustain, transport, remove or convey. Carry is further defined as to have or bear upon or about one’s person as a watch or weapon .... A person does not have to move in order to carry an object.” The court’s charge to the jury has an adequate foundation in decisional law as well as in common usage. See State v. Hopes, 26 Conn. App. 367, 374, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992); Black’s Law Dictionary (5th Ed. 1979) (defining carry as, “[t]o bear, bear about, sustain, transport, remove, or convey .... To have or bear upon or about one’s person, as a watch or weapon”); Ballentine’s Law Dictionary (3d Ed. 1969) (defining carrying a weapon as “[a]ny method of carrying which renders the weapon readily accessible and available for use, irrespective of whether the person moves from place to place while having the weapon in possession”). Thus, carrying a dangerous instrument on one’s person and assaulting someone by means of a dangerous instrument are not identical concepts, as use does not necessitate carrying. Consequently, because the crimes of assault in the second degree and carrying a dangerous weapon contain different elements, a conviction of one is not legally inconsistent with an acquittal of the other.

The defendant also claims that the verdict was factually inconsistent. The defendant argues that because the jury found him not guilty of carrying a dangerous weapon, in this case, a baseball bat, the jury’s verdict of guilty of assault in the second degree with this same baseball bat is illogical.

The law is well settled that a factually inconsistent verdict will not be overturned on appeal. State v. DeCaro, supra, 252 Conn. 242. “The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. . . . [inconsistency of the verdicts is immaterial. ... As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S. Ct. 189, 76 L. Ed. 356 (1932): The most that can be said in such cases ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Internal quotation marks omitted.) State v. Knight, 266 Conn. 658, 670, 835 A.2d 47 (2003).

Here, it is quite possible that the jury chose to exercise leniency by finding the defendant not guilty of the charge of carrying a dangerous weapon while finding him guilty of assault. If so, the defendant was given the benefit of his acquittal on the counts on which he was acquitted, and it is neither irrational nor illogical to require him to accept the burden of conviction on the counts on which the jury found him guilty. See State v. Cassidy, 3 Conn. App. 374, 390, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), quoting United States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). Therefore, because it is the jury’s sole province to determine the facts, we decline to review the defendant’s claim of factual inconsistency.

II

The defendant also claims that the court improperly instructed the jury that he had a duty to retreat before he could claim that he acted in self-defense. We disagree.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) State v. Singleton, 97 Conn. App. 679, 688, 905 A.2d 725, cert. granted on other grounds, 280 Conn. 949, 912 A.2d 484 (2006). “The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Russell, 101 Conn. App. 298, 330-31, 922 A.2d 191, cert. denied, 284 Conn. 910, 931 A.2d 934 (2007).

The relevant section of the court’s instructions to the jury states: “[You may also find that] the defendant’s use of force was not justified if he was the initial aggressor and did not adequately retreat. If you find that the defendant was the initial aggressor, the defendant’s use of force may still be justified if he withdrew from the encounter and made it clear to the other person, [the victim], that he was retreating from the use of force.

“That is, if the defendant was the initial aggressor, his use of physical force on [the victim] was justified if he withdrew from the encounter and effectively communicated to [the victim] his intent to withdraw, but [the victim], notwithstanding, continued the struggle or threatened the use of physical force. . . .

“Therefore, even if the state has proven the elements of the crimes alleged in the first four counts of the information, you will still find the defendant not guilty on those first four counts, unless you find [that] the state has proven beyond a reasonable doubt . . . [that] the defendant was the initial aggressor and did not adequately retreat.”

The defendant argues that the court’s use of the word “retreat” rather than “withdraw,” as suggested by the defendant, improperly instructed the jury that he had a duty to retreat prior to using nondeadly force in self-defense. Although it is true that the duty to retreat is applicable only when a defendant uses deadly force in self-defense, our review of the record reveals that it was not reasonably possible that the court’s instructions misled the jury.

When the court instructed the jury on self-defense, the word retreat was always prefaced in the same sentence by the term initial aggressor. This indicates that the court used the word retreat only when instructing the jury about the initial aggressor exception to self-defense. The court’s use of the word retreat did not invoke the legal doctrine of the duty to retreat but rather was used synonymously with the word withdraw. Furthermore, the court never instructed the jury as to the use of deadly force in self-defense. It would have, therefore, been a leap for the jury to have considered the duty to retreat exception to the use of deadly force. Finally, the court’s instructions were taken almost verbatim from the manual on selected criminal jury instructions for the state; see J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. 2001) § 2.39, p. Ill; *and from the exact language of the self-defense statute. See General Statutes § 53a-19 (c). The court therefore properly instructed the jury.

III

Finally, the defendant claims that there was insufficient evidence to conclude beyond a reasonable doubt that he assaulted and threatened the victim. Though the defendant failed to preserve this claim, we review it as if it were preserved. “[A]ny defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)]. . . . [N]o practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim . . . .” (Internal quotation marks omitted.) State v. Hicks, 101 Conn. App. 16, 20-21, 919 A.2d 1052 (2007).

“The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in thé light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty.” (Internal quotation marks omitted.) State v. Calabrese, 279 Conn. 393, 402-403, 902 A.2d 1044 (2006).

A

The defendant argues that there was insufficient evidence to prove that he committed assault in the second degree in violation of § 53a-60 (a) (2). Specifically, he asserts that the state failed to prove that he had the necessary intent to cause physical injury and that he actually caused physical injury to the victim.

To prove the defendant guilty of assault in the second degree, the state was required to prove beyond a reasonable doubt that (1) the defendant intended to cause physical injury to another person, (2) he did in fact cause injury to such person and (3) he did so by means of a dangerous instrument. General Statutes § 53a-60 (a) (2); State v. Bosse, 99 Conn. App. 675, 678, 915 A.2d 932, 282 Conn. 906, 920 A.2d 310 (2007).

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident. . . . Furthermore, it is a permissible, albeit not a necessary or mandatory, inference that a defendant intended the natural consequences of his voluntary conduct.” (Internal quotation marks omitted.) State v. Pauling, 102 Conn. App. 556, 567, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d 727 (2007).

Here, the jury reasonably could have concluded that the defendant intended to injure the victim physically by crediting the victim’s testimony that the defendant cut off the victim multiple times and nearly rear-ended his vehicle twice; that he pounded on the victim’s car window until it shattered; that he wrestled a baseball bat from the victim and told him he was going to beat him and that he struck the victim with the bat multiples times.

With respect to whether the defendant caused physical injury to the victim sufficient to sustain the conviction, General Statutes § 53a-3 (3) defines a physical injury as an impairment of physical condition or pain. The victim testified that bruises developed on his calves as a result of the defendant’s blows. Accordingly, the state presented sufficient evidence to sustain the defendant’s conviction of assault in the second degree.

B

The defendant also challenges the sufficiency of the evidence for his conviction of threatening in the second degree. To prove the defendant guilty of threatening in the second degree, the state was required to prove beyond a reasonable doubt that (1) the defendant intended to place the victim in fear of imminent serious physical injuiy through (2) a physical threat. General Statutes § 53a-62 (a).

The defendant asserts that the jury improperly credited his alleged uncorroborated statement, “I’m glad you gave me this bat because now I’m going to beat the hell out of you and kill you with it.” The defendant argues that his testimony of self-defense was more consistent and therefore more credible than the victim’s testimony. We are not persuaded.

The jury reasonably could have concluded that the defendant intended to threaten the victim and did threaten him on the basis of the testimony at trial that the defendant ran out of his car screaming and gesturing at the victim, pounded on the victim’s window, eventually breaking the glass, reached through the broken window, grabbed the baseball bat and threatened to beat and kill the victim. The victim testified that he felt very concerned for his safety several times during the incident.

The defendant’s focus on the uncorroborated threatening statement ignores the fact that the jury might have found much of his conduct during the altercation threatening. Moreover, though the defendant argues that his testimony was more credible and consistent than the victim’s testimony, the jury is solely responsible for determining the credibility of witnesses. See State v. Mungroo, 104 Conn. App. 668, 673, 935 A.2d 229 (2007), cert. denied, 285 Conn. 908, 942 A.2d 415 (2008). On the basis of the evidence presented at trial, we conclude that the evidence was sufficient to support the jury’s verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       We decline to identify the victim in the interest of protecting his privacy. See State v. Epps, 105 Conn. App. 84, 86 n.2, 936 A.2d 701 (2007), cert. denied, 286 Conn. 903, 943 A.2d 1102 (2008).

       The defendant was subsequently charged with failure to appear in the first degree In violation of General Statutes § 53a-172 when he did not appear in court on June 1, 2004.

       General Statutes § 53-206 provides in relevant part: “(a) Any person who carries upon his or her person any BB. gun, blackjack, metal or brass knuckles, or any dirk knife, or any switch knife, or any knife having an automatic spring release device by which a blade is released from the handle, having a blade of over one and one-half inches in length, or stiletto, or any knife the edged portion of the blade of which is four inches or over in length, any police baton or nightstick, or any martial arts weapon or electronic defense weapon, as defined in section 53a-3, or any other dangerous or deadly weapon or instrument, shall be fined not more than five hundred dollars or imprisoned not more than three years or both. . . .” (Emphasis added.)

       See J. Pellegrino, supra, § 2.39, which provides in relevant part: “You must find that the use of physical force was not justified if the state proves beyond a reasonable doubt that . . . [t]he defendant was the initial aggressor and did not adequately retreat. If you find that the defendant was the initial aggressor, the defendant’s use of force may still be justified if he withdrew from the encounter, and made it clear to the other person that he was retreating from the use of force.”

       General Statutes § 53a-19 (c) provides in relevant part that “a person is not justified in using physical force when ... he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force . . . .”