author:
GRUENDEL, J.
      LAVERY, J.,

text:
    STATE OF CONNECTICUT v. NOEL MENDOZA
    (AC 29547)
    DiPentima, Gruendel and Laveiy, Js.

      Argued September 16, 2009
    officially released February 9, 2010

      Andrew S. Liskov, special public defender, for the appellant (defendant).

      Leonard C. Boyle, deputy chief state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Marc G. Ramia, assistant state’s attorney, and Melissa Patterson, deputy assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Noel Mendoza, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (l). He claims that the trial court abused its discretion in permitting the state to reopen its case-in-chief and improperly denied his motion for a judgment of acquittal. In addition, the defendant alleges a double jeopardy violation. We affirm the judgment of the trial court.

The following undisputed facts are relevant to our resolution of the present appeal. In the early horns of June 20, 2006, the defendant’s girlfriend, Dianna DeJesus, sat on her front porch at 63 Arch Street in Meriden. At that time, a dispute arose between the defendant and another individual on the property, and the defendant brandished a handgun. Frightened, DeJesus fled inside her residence. She then heard two gunshots, which she reported to the police via a 911 call. Jason Smith, whose residence abuts that of DeJesus, similarly contacted the police after hearing gunshots and observing a man on the concrete retaining wall that separates the properties. Officers from the Meriden police department responded to the scene, where they found two nine millimeter shell casings on the steps leading to the rear porch of DeJesus’ residence and a Kel-Tec P-11 nine millimeter semiautomatic pistol with live ammunition in the magazine in a doghouse at the rear of DeJesus’ property.

The defendant thereafter was arrested and charged, by amended information dated September 12,2007, with criminal possession of a firearm in violation of § 53a-217 (a) (1) and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The state further filed a part B information charging the defendant with being a persistent serious felony offender in light of two prior convictions for the sale of narcotics in violation of General Statutes § 21a-277 (a).

A jury trial commenced on September 18, 2007. As part of its case-in-chief, the state presented the testimony of the Meriden police officers who discovered the firearm and shell casings on the DeJesus property. The state also offered the testimony of Gerard Petillo, a forensic firearm examiner at the department of public safety. Petillo testified that testing confirmed that the recovered firearm was operable. In addition, both DeJesus and Smith testified, and the state introduced approximately two dozen exhibits into evidence. On September 19, 2007, the state rested, and the defendant immediately moved for a judgment of acquittal, stating that the state had not presented “evidence sufficient to support [the case] going to the jurors.” The state objected, and a bench conference followed. Immediately thereafter, the following colloquy ensued:

“The Court: All right. The court is going to reserve decision on the [motion for a judgment of acquittal]. I’m going to review my notes. In the meantime, [counsel], [I] just excused the jury and [the state] rested about five minutes ago. [The prosecutor] indicated there was the issue . . . which had been placed on the record earlier on, I forget what day, regarding [the] defendant’s prior felony conviction with regard to the first count as a possible stipulation and you wish to be heard on that?
“[The Prosecutor]: Yes, Your Honor. I did approach counsel prior to the start of trial with regard to the element of count one regarding the defendant previously being convicted of a felony. Subsequent to that . . . the state indicated on the record, again, that the state was seeking a stipulation. Counsel indicated that he would consider that and discuss that with his client, and that issue was never broached again. So, if defense counsel’s willing to stipulate, there won’t be any issue at this point. If defense is not willing to stipulate, the state’s going to make a motion to reopen its case so that it may satisfy that particular prong of count one.
“The Court: [Defense counsel], my recollection is . . . that matter, I believe, was placed on the record. [The prosecutor] just noted that that matter has not been, apparently, resolved prior to the time [he] just rested, but it had been broached. It doesn’t come as a surprise. What ... do you have to say?
“[Defense Counsel]: Well, Your Honor, the state is correct, Your Honor. They did . . . approach me in regards to my client’s 'willingness to stipulate to that issue. I indicated to them ... I couldn’t make that decision until I approached my client and consulted with him and gave him my opinion. Throughout the, I guess, preparations for trial and preparations for evidence, I neglected to talk to my client about that issue, Your Honor. If I could, Your Honor, speak to him over the course of this evening and get back to the court tomorrow morning and to [the prosecutor], I’m pretty sure we’d be able to resolve it.
“The Court: All right.”

The court thus reserved its decision on the motion and dismissed the jury for the day.

The next morning, the court addressed the defendant’s motion for a judgment of acquittal outside the presence of the jury. After hearing from the parties, the court granted the motion with respect to the reckless endangerment charge. The court then shifted its attention to the criminal possession of a firearm charge, noting that the state filed a motion “to reopen its casein-chief in order to offer evidence of the defendant’s felony status” that morning. During argument thereon, the state maintained that it “inadvertently rested prior to providing any evidence of the defendant’s convicted felon status” and emphasized that “the defendant did not alert the state to the evidentiary gap” concerning his prior felony convictions. The state opined that “the defendant’s felony status really is not a contested issue,” stating that it earlier had filed a part B information detailing his prior convictions and “had ordered certified copies of conviction for the defendant’s felony convictions . . . .” In addition, the state averred that it had placed on the record the possibility of a stipulation regarding the defendant’s prior convictions at the outset of trial. In response, defense counsel conceded that “mere inadvertence” caused the evidentiary gap and further acknowledged that “if the state had not inadvertently forgotten ... to introduce [that] evidence, there would be no prejudice [to the defendant].” Defense counsel nevertheless contended that the state’s motion to reopen its case-in-chief should be denied. Relying on the decision of our Supreme Court in State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987), counsel contended that “the defendant doesn’t have to specifically state on the record what ... is lacking in the state’s evidence, so long as he raises the motion for a judgment of acquittal . . . and that becomes the trigger ... to alert the state ... to the deficiency . . . in their evidence . . . .”

In considering the arguments of counsel, the court emphasized that when the state originally expressed its intention to seek to reopen the case to introduce evidence of the defendant’s felony convictions, the defendant “did not indicate that [the felony status issue] had been a basis for your motion for a judgment of acquittal” and stated “for the record that . . . this discussion regarding the failure of the state to introduce the felony conviction occurred within . . . minutes of the state resting its case.” Concluding that the defendant “did not specifically call the state’s attention, nor the court’s attention, to the evidentiary gap” regarding prior felony convictions, the court granted the motion to reopen “for the limited purpose of the issue of the felony convictions.”

The state proceeded to offer the testimony of Virginia Hemming, a deputy clerk with the Superior Court. Hemming testified that the defendant had been convicted of a felony on January 17, 1992. The state then rested, and the defendant renewed his motion for a judgment of acquittal, which the court denied. The jury thereafter found the defendant guilty of criminal possession of a firearm. The court rendered judgment accordingly and sentenced the defendant to a total effective term of five years incarceration. From that judgment, the defendant appeals.

I

We first consider the defendant’s contention that the court abused its discretion in permitting the state to reopen its case-in-chief. Relying principally on State v. Allen, supra, 205 Conn. 370, the defendant maintains that the court improperly permitted the state to reopen its case to prove an essential element of the crime of criminal possession of a firearm. Careful examination of that precedent persuades us otherwise.

“[I]f a trial court feels that, by inadvertence or mistake, there has been a failure to introduce available evidence upon a material issue in the case of such a nature that in its absence there is a serious danger of a miscarriage of justice, it may properly permit that evidence to be introduced at any time before the case has been decided.” (Internal quotation marks omitted.) State v. Zoravali, 34 Conn. App. 428, 441, 641 A.2d 796, cert. denied, 230 Conn. 906, 644 A.2d 921 (1994). “The decision to reopen a criminal case to add further testimony lies within the sound discretion of the court, which should be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . . The purpose ... is to preserve the fundamental integrity of the trial’s truth-finding function.” (Internal quotation marks omitted.) State v. Jones, 96 Conn. App. 634, 643, 902 A.2d 17, cert. denied, 280 Conn. 919, 908 A.2d 544 (2006). “The trial court’s discretion will be reversed only upon manifest abuse of discretion or injustice.” State v. Zoravali, supra, 442.

That discretion is not without limit. In the seminal case of State v. Allen, supra, 205 Conn. 370, our Supreme Court addressed an instance in which the defendant alerted the state to a specific evidential deficiency in its case-in-chief via a motion for a judgment of acquittal, and the state thereafter moved to reopen its case-in-chief in order to rectify that deficiency. That procedural posture presented two competing concerns. On one hand, to “permit the state to reopen its case-in-chief after the defendant has pointed out in his motion for judgment of acquittal the specific particulars why the state had failed to present a prima facie case rewards the state for its ‘laxity’ and in practical effect turns the defendant’s attorney into a prosecutorial arm of the state.” Id., 375. On the other hand, “a trial is not a game of technicalities, but one in which the facts and truth are sought.” (Internal quotation marks omitted.) Id., 375-76.

The Allen court recognized the “wide discretion enjoyed by the trial court to permit the reopening of a case after either side has rested.” Id., 380. It nevertheless observed that the “precise facts and procedural posture of this case are significantly different.” Id., 380-81. Expounding on that distinction, the court noted that the state in that case “conceded that the evidence presented in its case-in-chief was insufficient” and that the state “offered new evidence on reopening and did not merely offer cumulative evidence or clarify previous testimony.” Id., 383. The court also distinguished its earlier decision in State v. Watson, 165 Conn. 577, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974), by explaining that the defendant in Watson “did not file a motion for judgment of acquittal and thus the defendant was not the one responsible for pointing out the potential evidentiary gap in the state’s case.” State v. Allen, supra, 205 Conn. 382. Accordingly, the court reasoned that “allowing the state to reopen its case-in-chief after the defendant has identified its shortcomings was fundamentally unfair to the defendant and an abuse of the trial court’s discretion.” (Emphasis added.) Id., 383-84.

In concluding, the court articulated its holding in plain terms: “Our holding in this case does not preclude a trial court from exercising its discretion to reopen a case. We only hold that when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal, it is an abuse of the trial court’s discretion to permit a reopening of the case to supply the missing evidence.” Id., 385.

The defendant in the present case maintains that Allen supports his claim that the court abused its discretion in permitting the state to reopen its case-in-chief. Indeed, this case is similar in certain respects to that decision. The state concedes that the evidence originally presented in its case-in-chief was insufficient as to the felony conviction element of the charged offense. In addition, the motion to reopen sought to introduce new evidence and “did not merely offer cumulative evidence or clarify previous testimony.” Id., 383. At the same time, the present case is materially different from Allen in that the defendant here failed to specifically identify the evidentiary gap in the state’s case-in-chief in moving for a judgment of acquittal. The defendant seeks to minimize the significance of that critical distinction by arguing that such specificity is unnecessary. In his view, because “the very purpose and essence of a motion for a judgment of acquittal is to serve notice of an evidentiary insufficiency in the state’s case,” the mere act of moving for such a judgment itself alerts the state to an evidentiary deficiency in its case. Accordingly, the defendant insists that permitting the state to reopen its case after he moved for a judgment of acquittal on the ground that the state had not presented “evidence sufficient to support [the case] going to the jurors” amounted to an abuse of discretion.

For multiple reasons, we do not agree with the defendant. First and foremost, the plain language of Allen undermines his claim. The holding of Allen proscribing the reopening of the state’s case-in-chief contained two prerequisites: (1) that the state failed to make out a prima facie case because insufficient evidence had been introduced concerning an essential element of a crime; and (2) that the defendant specifically identified this evidentiary gap in a motion for a judgment of acquittal. Id., 385. It is undisputed that the defendant did not specifically identify the evidentiary gap regarding his felony status in his motion for a judgment of acquittal.

In addition, our Supreme Court has interpreted its precedent in Allen in a manner contrary to that advocated by the defendant in this appeal. In State v. Roman, 224 Conn. 63, 616 A.2d 266 (1992), cert. denied, 507 U.S. 1039, 113 S. Ct. 1868, 123 L. Ed. 2d 488 (1993), the court explained that “[u]nless the state’s offer seeks to fill an evidentiary gap in its prima facie case that was specifically called to the state’s attention by the defendant’s motion for acquittal; see State v. Allen, supra, [205 Conn.] 385; the trial court may permit additional evidence to be presented even though that evidence strengthens the case against the defendant.” State v. Roman, supra, 71; State v. Jones, supra, 96 Conn. App. 643. The lesson of Allen and Roman is that unless the defendant specifically has identified an evidentiary gap in the state’s prima facie case, the trial court retains discretion to permit the state to reopen its case-in-chief in response to a motion for a judgment of acquittal. We are bound by that precedent.

Furthermore, a practical problem abounds with the defendant’s interpretation. If the mere act of moving for a judgment of acquittal necessarily alerts the state to its evidential insufficiency, as the defendant maintains, then the trial court never could exercise its discretion in such instances. The Supreme Court in Allen expressly held to the contrary, stating that “[w]e reach the result in this case without interfering with a trial court’s discretion to permit a reopening under appropriate circumstances in a future case”; State v. Allen, supra, 205 Conn. 381; and that “[o]ur holding in this case does not preclude a trial court from exercising its discretion to reopen a case.” Id., 385.

The defendant highlights the following language from Allen regarding a defendant’s possible silence in the face of an evidentiary gap in the state’s prima facie case: “[T]he state failed to introduce any evidence as to ... an essential element of the crime [charged]. ... As the state conceded at oral argument before us, had the defendant remained silent until after the verdict had been rendered, the omission of this evidence would have required a judgment of acquittal either in the trial court or on appeal.” (Citation omitted.) Id., 377. From that dictum, the defendant extrapolates that “in such circumstances . . . wherein a prima facie case is lacking, it makes tactical sense for a defendant to first forgo moving for an acquittal after the state has rested and then decline to offer any evidence,” which he describes as a beneficial trial strategy. Risky also describes that strategy, as it presumes that the state will decline to seek to reopen its case-in-chief at a later point pursuant to Practice Book § 42-35 (3). To suggest that the state would not have sought the court’s permission to reopen its case to introduce evidence of the defendant’s felon status prior to the entry of a verdict had the defendant not moved for a judgment of acquittal is to engage in sheer speculation and conjecture, which “have no place in appellate review.” Narumanchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005).

The defendant also makes much of the mention in Allen of People v. Belton, 23 Cal. 3d 516, 522, 591 P.2d 485, 153 Cal. Rptr. 195 (1979). Our Supreme Court stated: “The California Supreme Court has recognized that to require a defendant to state specific grounds in support of the motion for acquittal would place the burden upon him to point out to the prosecutor, as well as to the court, the gaps in the prosecution’s case. Such a requirement would come perilously close to compelling a defendant to aid in his own prosecution and would lessen the prosecutor’s burden to prove each and every element of the case beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Allen, supra, 205 Conn. 380. The defendant posits that to specifically identify an evidentiary gap in the state’s case would both aid his own prosecution and implicate his sixth amendment right to effective assistance of counsel. As he argues in his appellate brief, “[w]hen a defendant actually tells the state in its motion for a judgment of acquittal about evidentiary gaps in its casein-chief, the state will naturally know how to fill the gaps. It will then, as in the case at bar, seek to reopen its case to remedy the deficient proof.” His argument misunderstands the holding of Allen. Under that precedent, a trial court is prohibited from granting a motion to reopen when a defendant specifically identifies in his motion for a judgment of acquittal an evidentiary gap in the state’s case-in-chief concerning an essential element of a crime. Thus, Allen provides the very safeguard against the concerns articulated by the defendant.

The defendant’s misunderstanding of Allen is further reflected in his argument that Practice Book § 42-40 does not require a defendant to specifically set forth the grounds for the motion for a judgment of acquittal. The proscription in Allen pertains not to whether the state ultimately will be permitted to reopen its case in certain circumstances but, rather, whether the trial court retains the discretion to make that determination. AJlen plainly holds that “when the state has failed to make out a prima facie case because insufficient evidence has been introduced concerning an essential element of a crime and the defendant has specifically identified this evidentiary gap in a motion for judgment of acquittal,” the trial court cannot permit the state to reopen its case to supply the missing evidence. State v. Allen, supra, 205 Conn. 385. When such specific identification is lacking, the trial court exercises its discretion to preserve the fundamental integrity of the trial’s truth-finding function; State v. Zoravali, supra, 34 Conn. App. 442; in determining whether to grant a motion to reopen the state’s case-in-chief. Thus, even absent a specific identification of the state’s evidentiary gap in a motion for a judgment of acquittal, a defendant still may persuade a trial court that the motion to reopen should not be granted and, likewise, may still prevail on a motion for a judgment of acquittal. Indeed, the defendant so prevailed in the present case on the reckless endangerment charge.

Because the defendant did not specifically identify the state’s evidentiary gap in his motion for a judgment of acquittal, the issue properly before us is whether the trial court abused its discretion in permitting the state to reopen its case-in-chief. On the particular facts of this case, we answer that query in the negative.

The record in the present case strongly suggests that, when the defendant moved for a judgment of acquittal, the issue of his status as a felon was not contemplated. It is undisputed that the defendant did not specifically identify that evidentiary issue in moving for a judgment of acquittal. Rather, the September 19, 2007 transcript indicates that the issue of the defendant’s felony status was raised by the prosecutor. As it is particularly pertinent, we again note the following colloquy between counsel and the court:

“The Court: All right. The court is going to reserve decision on the [motion for a judgment of acquittal]. I’m going to review my notes. In the meantime, [counsel], [I] just excused the jury and [the state] rested about five minutes ago. [The prosecutor] indicated there was the issue . . . which had been placed on the record earlier on, I forget what day, regarding [the] defendant’s prior felony conviction with regard to the first count as a possible stipulation and you wish to be heard on that?
“[The Prosecutor]: Yes, Your Honor. I did approach counsel prior to the start of trial with regard to the element of count one regarding the defendant previously being convicted of a felony. Subsequent to that . . . the state indicated on the record, again, that the state was seeking a stipulation. Counsel indicated that he would consider that and discuss that with his client, and that issue was never broached again. So, if defense counsel’s willing to stipulate, there won’t be any issue at this point. If defense is not willing to stipulate, the state’s going to make a motion to reopen its case so that it may satisfy that particular prong of count one.
“The Court: [Defense counsel], my recollection is . . . that matter, I believe, was placed on the record. [The prosecutor] just noted that that matter has not been, apparently, resolved prior to the time [he] just rested, but it had been broached. It doesn’t come as a surprise. What ... do you have to say?
“[Defense Counsel]: Well, Your Honor, the state is correct, Your Honor. They did . . . approach me in regards to my client’s willingness to stipulate to that issue. I indicated to them ... I couldn’t make that decision until I approached my client and consulted with him and gave him my opinion. Throughout the, I guess, preparations for trial and preparations for evidence, I neglected to talk to my client about that issue, Your Honor. If I could, Your Honor, speak to him over the course of this evening and get back to the court tomorrow morning and to [the prosecutor], I’m pretty sure we’d be able to resolve it.
“The Court: All right.”

Tellingly, at no time after the issue of the evidentiary gap regarding the defendant’s felony status was raised by the state did the defendant ever indicate that that gap was a basis of his motion for a judgment of acquittal, as the court specifically found in ruling on the state’s motion to reopen. To the contrary, counsel for the defendant requested time to speak with his client about the stipulation regarding his felony status and expressed optimism that the issue of proof of the defendant’s felony status could be resolved. That record belies any claim, which we note that the defendant has not advanced, that his motion for a judgment of acquittal was predicated on evidential insufficiency concerning his status as a convicted felon.

Furthermore, it is significant that the state alleged, and the defendant conceded, at trial that the failure to offer evidence of the defendant’s prior felony convictions was attributable to “mere inadvertence . . . .” Coupled with that uncontested fact is the fact, which the court found, that the parties during trial discussed a possible stipulation on this point. Moreover, the state reminded the court that it earlier had filed a part B information detailing the defendant’s prior convictions and “had ordered certified copies of conviction for the defendant’s felony convictions . . . .” See State v. Dunbar, 51 Conn. App. 313, 319, 721 A.2d 1229 (1998) (Allen distinguishable because state “was prepared to prove the essential element that is at issue”), cert. denied, 247 Conn. 962, 724 A.2d 1126 (1999). In such circumstances, the trial court in its discretion may permit the introduction of related evidence “at any time before the case has been decided.” (Internal quotation marks omitted.) State v. Zoravali, supra, 34 Conn. App. 441. In essence, the defendant, who neither apprised the court of the specific deficiency in the state’s case nor voiced any objection when that deficiency was addressed by the state on September 19, 2007, now seeks the reversal of the trial court’s exercise of discretion on the basis of a deficiency beyond his contemplation at the time he moved for a judgment of acquittal. A trial, however, “is not a game of technicalities, but one in which the facts and truth are sought.” (Internal quotation marks omitted.) State v. Allen, supra, 205 Conn. 375-76.

We also note that the court expressly found that the defendant “did not specifically call the state’s attention, nor the court’s attention, to the evidentiary gap” regarding prior felony convictions. That factual finding is supported by the record before us. As we already have noted, the defendant did not specifically identify that evidentiary gap in moving for a judgment of acquittal. The September 19, 2007 transcript indicates that the state first raised that issue before the court. Moreover, even after the state raised the issue, the defendant did not claim that the evidentiary gap regarding his felony status was in any manner related to his motion for a judgment of acquittal. On that record, we cannot say that the court’s finding was clearly erroneous.

In weighing the merits of the state’s motion to reopen, the court was required to balance the defendant’s interest in a fair proceeding with a trial’s fundamental and ever present search for the truth. The record before us supports the court’s finding that the defendant did not specifically call the state’s attention, nor the court’s attention, to the evidentiary gap regarding his prior felony convictions and strongly suggests that when he moved for a judgment of acquittal, the evidentiary gap as to his status as a felon was not contemplated. In addition, the defendant conceded that he had discussed a possible stipulation as to that evidentiary issue with the state at trial and further conceded that the state’s failure to present evidence on that issue as part of its case-in-chief was due to mere inadvertence. At trial, the defendant acknowledged that “if the state had not inadvertently forgotten ... to introduce [that] evidence, there would be no prejudice [to the defendant]” but nevertheless insisted that the motion to reopen should be denied. In light of the foregoing, and mindful that our standard of review is a deferential one; see, e.g., State v. Perkins, 271 Conn. 218, 252, 856 A.2d 917 (2004); we conclude that the court did not abuse its discretion in permitting the state to reopen its case for the limited purpose of addressing the issue of the defendant’s prior felony convictions.

II

We turn next to the defendant’s claim that the court improperly denied his motion for a judgment of acquittal on the criminal possession of a firearm charge. “The standard of appellate review of a denial of a motion for a judgment of acquittal has been settled by judicial decision. . . . The issue to be determined is whether the jury could have reasonably concluded, from the facts established and the reasonable inferences which could be drawn from those facts, that the cumulative effect was to establish guilt beyond a reasonable doubt. . . . The facts and the reasonable inferences stemming from the facts must be given a construction most favorable to sustaining the jury’s verdict. ... It is established case law that when a defendant challenges the sufficiency of the evidence, we apply a twofold test. We first review the evidence ... in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn . . . the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt .... In this process of review, it does not dimmish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citation omitted; internal quotation marks omitted.) State v. Hamlett, 105 Conn. App. 862, 866, 939 A.2d 1256, cert. denied, 287 Conn. 901, 947 A.2d 343 (2008).

At the outset, we note the following procedural history pertinent to the defendant’s claim. After the defendant moved for a judgment of acquittal, the court reserved its decision thereon. The state then moved to reopen its case-in-chief, which, after argument, the court granted. At that point, the court did not decide the defendant’s motion for a judgment of acquittal. Without objection by the defendant, the state proceeded to offer the testimony of Hemming, who testified that the defendant had been convicted of a felony on January 17, 1992. The state then rested, and the defendant renewed his motion for a judgment of acquittal, which the court denied.

On appeal, the defendant does not maintain that the evidence presented in the state’s case-in-chief was insufficient to support a finding by the jury of his guilt beyond a reasonable doubt of criminal possession of a firearm. Instead, he argues that the evidence presented prior to the reopening of the state’s case was insufficient and claims, for the first time on appeal, that the court improperly permitted the state to present Hemming’s testimony before ruling on his motion for a judgment of acquittal in contravention of Practice Book § 42-41. That claim never was raised before the trial court and, hence, is unpreserved. The defendant has not sought review of that unpreserved claim pursuant to either the plain error doctrine; Practice Book § 60-5; or State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). To review a claim articulated for the first time on appeal and not raised before the trial court amounts to a trial by ambuscade of the trial judge. State v. Robinson, 227 Conn. 711, 741, 631 A.2d 288 (1993). We therefore decline to afford review on this unpreserved ground. Viewing the state’s case-in-chief as a whole, the jury could have reasonably concluded, from the facts established and the reasonable inferences that could be drawn therefrom, that the cumulative effect was to establish the defendant’s guilt beyond a reasonable doubt.

m

The defendant’s final claim is that, in permitting the state to reopen its case and present additional evidence as to an essential element of the crime of criminal possession of a firearm, the court violated the prohibition against double jeopardy. The defendant did not preserve this claim at trial and now seeks Golding review. We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” That constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double jeopardy prohibition “serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial].” (Internal quotation marks omitted.) State v. Chicano, supra, 216 Conn. 706.

In his brief analysis of this constitutional claim, the defendant argues simply that “since [his] motion [for a judgment of acquittal] should have been granted, allowing the state to present new evidence that established the missing element in its successive case-in-chief amounted to a successive prosecution for the same offense and violated the defendant’s double jeopardy protections.” That protection, however, “applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.” Richardson v. United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984). The jeopardy that attached upon commencement of the defendant’s trial did not terminate when the court granted the state’s motion to reopen its case-in-chief pursuant to Practice Book § 42-35 (3).

The defendant’s claim hinges on his allegation that the motion for acquittal was improperly denied. When it is found that a motion for a judgment of acquittal must be granted, be it by trial or appellate court, further prosecution is prohibited. See State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005) (“[p]ursuant to Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 [1978], a defendant is entitled to a judgment of acquittal and retrial is barred [under the double jeopardy clause] if an appellate court determines that the evidence is insufficient to support the conviction”). We already have concluded that the state in its case-in-chief presented sufficient evidence to support a finding by the jury of the defendant’s guilt beyond a reasonable doubt of criminal possession of a firearm, and, thus, the court properly denied the defendant’s motion for a judgment of acquittal. Accordingly, his double jeopardy claim fails under Golding's third prong.

The judgment is affirmed.

In this opinion DiPENTIMA, J., concurred.

LAVERY, J.,

dissenting in part. Practice Book § 42-40 provides in relevant part that “[a]fter the close of the prosecution’s case in chief . . . upon motion of the defendant . . . the judicial authority shall order the entry of a judgment of acquittal as to any principal offense charged and as to any lesser included offense for which the evidence would not reasonably permit a finding of guilty. . . .’’In this case, after the state rested, the defendant, Noel Mendoza, immediately moved for a judgment of acquittal, stating that the state had not presented “evidence sufficient to support [the case] going to the jurors.” Because the state failed to offer any evidence in its case-in-chief regarding the defendant’s convicted felon status, an essential element of the crime charged, and because the defendant complied with applicable rules of practice, the trial court abused its discretion in granting the state’s motion to reopen its case. Accordingly, I respectfully dissent from part I of the majority opinion.

Our Supreme Court has held that prejudice warranting the reversal of a trial court’s decision to grant the state’s motion to reopen has occurred “when the state was allowed to introduce further testimony in order to cure its failure to introduce, during its casein-chief, any evidence upon an essential element of the crime charged, a deficiency called to its attention by the defendant’s motion for a directed judgment of acquittal.” Wood v. Bridgeport, 216 Conn. 604, 606-607, 583 A.2d 124 (1990), citing State v. Allen, 205 Conn. 370, 533 A.2d 559 (1987). On the basis of this premise, and for the following reasons, I believe the court abused its discretion in granting the state’s motion to reopen immediately following the defendant’s motion for a judgment of acquittal.

In determining whether, in these circumstances, the court abused its discretion in allowing the state to reopen its case-in-chief, it is important to consider that the “state, which has the burden to prove every element of the crimes charged beyond a reasonable doubt, is required to present enough evidence so that a jury could reasonably find the defendant guilty; failing such an evidentiary showing, it risks a successful motion for judgment of acquittal. ... In United States v. Hin-derman, [625 F.2d 994, 996 (10th Cir. 1980)] the court warned that the ‘government’s case-in-chief should not be treated as an experiment that can be cured after the defendant has, by motion, identified the failures.’ The California Supreme Court has recognized that ‘to require a defendant to state specific grounds in support of the motion for acquittal would place the burden upon him to point out to the prosecutor, as well as to the court, the gaps in the prosecution’s case. Such a requirement would come perilously close to compelling a defendant to aid in his own prosecution and would lessen the prosecutor’s burden to prove each and every element of the case beyond a reasonable doubt.’ People v. Belton, 23 Cal. 3d 516, 522, 591 P.2d 485, 153 Cal. Rptr. 195 (1979).” (Citation omitted.) State v. Allen, supra, 205 Conn. 379-80.

In this case, the state in its case-in-chief offered the testimony of police officers, witnesses and a forensic firearm examiner, as well as two dozen exhibits into evidence. At no time during its case-in-chief, however, did the state offer any evidence regarding the defendant’s convicted felon status. Only after the defendant filed a motion for a judgment of acquittal, and the court subsequently granted the state’s motion to reopen, did the state then offer the new testimony of a deputy clerk of the Superior Court as evidence that the defendant had been convicted of a prior felony.

In State v. Allen, supra, 205 Conn. 383, the state failed to offer any evidence on the length of the barrel of the pistol at issue, an essential element of the crime charged, and the defendant moved for a judgment of acquittal at the close of the state’s case, claiming that the evidence was insufficient on that element. Subsequently, the state moved to reopen its case to present evidence on the length of the barrel of the firearm. After the court granted the state’s motion to reopen, the state offered new evidence and did not merely offer cumulative evidence or clarify previous testimony. Those facts strengthened our Supreme Court’s conclusion that “allowing the state to reopen its case-in-chief after the defendant has identified its shortcomings was fundamentally unfair to the defendant and an abuse of the trial court’s discretion.” Id., 383-84.

Although, as the majority points out, the holding in Allen is narrow—the court concluded that the trial court abused its discretion in permitting the state to reopen its case to supply missing evidence because the defendant had specifically identified the evidentiary gap in his motion for a judgment of acquittal—the law does not require such a specific evidentiary identification when a defendant moves for a judgment of acquittal. Id., 385. Thus, I believe the state’s offering of new evidence after the state rested and failed to make out a prima facie case, and after the defendant pointed out that the state had not presented “evidence sufficient to support [the case] going to the jurors,” constitutes a fundamental unfairness to the defendant. Because I believe the defendant was substantially prejudiced by the court’s granting of the state’s motion to reopen, I find that the court abused its discretion.

The state had the burden to prove every element of the crime charged beyond a reasonable doubt and failed to do so. In fact, the state concedes that it failed to make out a prima facie case because it offered no evidence of the felony conviction element of the charged offense. Additionally, no stipulation was entered into regarding this evidentiary gap. In turn, after the state rested, the defendant followed the rules of practice and appropriately moved for a judgment of acquittal due to insufficient evidence.

Furthermore, had the defendant remained silent until after the verdict had been returned, the omission of this evidence would have required, under the constitution, a judgment of acquittal either in the trial court or on appeal. See id., 377. Having brought to the attention of the state the fact that insufficient evidence existed, the defendant effectively was victimized by his own diligence, as the state used the reopening of its case to supply the missing element of the crime, thus assuring the defendant’s conviction. See id., 378.

After reviewing the relevant motion to reopen case law, the only case factually similar to the present matter is Allen. The facts in Allen are analogous except that in this case, after the state failed to establish a prima facie case, the defendant called the deficiency to the state’s attention by stating that insufficient evidence exists to support the case going to the jury. Although the defendant did not specifically notify the state as to what essential element of the crime the state had failed to prove, such specificity, as mentioned previously, is not required. In my opinion, allowing the state to reopen its case-in-chief, after the defendant has identified its shortcomings and complied with the rules of practice and the law, fundamentally is unfair to the defendant. See id., 383-84. The majority is permitting the defendant to be effectively victimized, as the state used the reopening of its case to supply evidence of an essential missing element of the crime. See id., 378. Consequently, I believe the trial court abused its discretion in granting the state’s motion to reopen.

Accordingly, I respectfully dissent from part I of the majority opinion, and I would reverse the judgment of conviction with respect to the charge of criminal possession of a firearm and remand the case to the trial court with direction to render judgment of acquittal as to that charge. I concur in the remainder of the opinion.

       General Statutes § 53a-217 (a) (1) provides: “A person is guilty of criminal possession of a firearm or electronic defense weapon when such person possesses a firearm or electronic defense weapon and (1) has been convicted of a felony . . .

       Count one of the information charged the defendant with criminal possession of a firearm in violation of § 53a-217 (a) (1). See footnote 1 of this opinion.

       On appeal, the state concedes that the transcripts before us contain no mention of that possible stipulation. At the same time, defense counsel acknowledged that such a discussion had transpired.

       For clarity, we repeat that the defendant’s primary argument in this appeal is that it is an abuse of discretion for a trial court ever to permit the state to reopen its case-in-chief when the defendant has moved for a judgment of acquittal on a general allegation of evidential insufficiency. In essence, the defendant asks us to rewrite the Allen standard so as to eliminate the specific identification of the evidentiary gap prong of that precedent.
      Although the dissent champions that request, proper regard for this court’s role as an intermediate appellate tribunal mandates that we decline the defendant’s invitation. It is axiomatic that the Appellate Court is “bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Citation omitted; internal quotation marks omitted.) State v. Smith, 107 Conn. App. 666, 684-85, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008); see also, e.g., State v. Brown, 73 Conn. App. 751, 756, 809 A.2d 546 (2002) (“Our Supreme Court is the ultimate arbiter of the law in this state. We, as an intermediate appellate court, cannot reconsider the decisions of our highest court.”); State v. Fuller, 56 Conn. App. 592, 609, 744 A.2d 931 (“[i]t is not within our function ... to overrule Supreme Court authority”), cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000).

       Practice Book § 42-35 (3) provides: “The prosecuting authority and the defendant may present rebuttal evidence in successive rebuttals, as required. The judicial authority for cause may permit a party to present evidence not of a rebuttal nature, and if the prosecuting authority is permitted to present further evidence in chief, the defendant may respond with further evidence in chief.”

       Practice Book § 42-41 provides: “If the motion [for a judgment of acquittal] is made after the close of the prosecution’s case in chief, the judicial authority shall either grant or deny the motion before calling upon the defendant to present the defendant’s case in chief. If the motion is not granted, the defendant may offer evidence without having reserved the right to do so.”

       Interestingly, the defendant in State v. Allen, supra, 205 Conn. 370, originally raised a double jeopardy claim. As our Supreme Court observed: “Although the defendant claimed in his brief that the denial of his motion for judgment of acquittal implicated the prohibition against double jeopardy, he conceded at oral argument before us that the entire issue was better analyzed as a claim of an abuse of discretion.” Id., 375.

       It also is clear that the plain language of Practice Book § 42-40 does not require such specificity when the defendant makes a motion for a judgment of acquittal.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    KEITH PHANEUF v. WILLIAM BERSELLI ET AL.
    (AC 30602)
    Flynn, C. J., and Harper and Peters, Js.

      Argued November 9, 2009
    officially released February 16, 2010

      Louis N. George, with whom was Jeffrey O. McDonald, for the appellant (plaintiff).

      Jack G. Steigelfest, with whom, on the brief, were Thomas P. Celia and Christopher M. Harrington, for the appellee (named defendant).
   Opinion

PETERS, J.

The principal issue in this personal injury action is the relationship between a jury’s finding, in response to interrogatories, that the named defendant was not negligent and the plaintiffs claims that the jury had been misinstracted on proximate causation and on duty of care. The plaintiff has appealed from the trial court’s denial of his motion to set aside the jury verdict in favor of the named defendant. We affirm the judgment of the court.

The plaintiff, Keith Phaneuf, filed a three count complaint against the defendant, William Berselli, a tractor trailer truck driver doing business as Berselli Trucking. The complaint alleged common-law negligence, recklessness and statutory recklessness under General Statutes § 14-222. In his answer, the defendant denied liability and alleged, as special defenses, that the plaintiffs own negligence or recklessness had contributed to the plaintiffs injuries. The defendant also named Spazzarini Construction Company, Inc. (Spazzarini), the plaintiffs employer, as an apportionment defendant.

After the presentation of the plaintiffs case-in-chief, the court granted the defendant’s motion for a directed verdict on counts two and three but denied his motion as to common-law negligence. After the presentation of the defendant’s case, the court granted the plaintiffs motion for a directed verdict on the defense of contributory recklessness but denied it as to contributory negligence.

On October 30, 2008, the jury returned a verdict in favor of the defendant. The first interrogatory that the jury was required to address was: “Do you find that the plaintiff has proven, by a preponderance of the evidence, that defendant William Berselli was negligent in one or more of the ways specified in the [c]omplaint?” The jury’s answer was “[n]o.” In accordance with the court’s instructions, the jury did not address the remaining jury interrogatories. The court denied the plaintiffs motion to set aside the verdict. The plaintiff has appealed to this court. We affirm the judgment of the court.

The plaintiffs complaint alleged the following facts. On December 10, 2003, he was performing electrical work on traffic signal lights in a bucket truck suspended above the intersection of Route 83 and Lower Butcher Road in Ellington. The defendant drove his tractor trailer truck into the intersection and struck the bucket containing the plaintiff, causing the plaintiff to be thrown from the bucket and to land on the ground and to sustain significant bodily injuries. A state police trooper, Gregory Deslandes, was directing traffic at the scene and had waved the defendant through the intersection. At the time of the accident, the plaintiff was working as a subcontractor for Spazzarini, a contractor for the department of transportation (department).

At trial, the court denied the plaintiffs motion in limine to preclude evidence of the conduct of Deslandes and Spazzarini. Upon the conclusion of the presentation of all the evidence, the court instructed the jury on the issue of proximate causation, stating: “In assessing proximate cause, you must consider all the conduct which you find contributed to the plaintiffs injuries, including the conduct of the defendant . . . the plaintiff . . . and the employees of Spazzarini ... as well as the conduct of others, such as Trooper Deslandes and employees of the [department . . . .”

On appeal, the plaintiff claims that the court’s instructions to the jury were improper in three ways: (1) in discussing proximate causation, the court referred specifically to the conduct of Deslandes, Spazzarini and the department as possibly contributing to the plaintiffs injuries; (2) the corut failed to instruct the jury about the relevance of the relative size of the plaintiffs bucket truck and the defendant’s truck; and (3) the court failed to instruct the jury that the defendant, because he was traveling through a work zone, was bound to exercise a heightened standard of care for the protection of the plaintiff. We are not persuaded.

“The standard of review for a challenge to the propriety of a jury instruction is well established. [J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 351, 788 A.2d 496 (2002).

I

The plaintiff first claims that the court improperly instructed the jury on proximate causation because it instructed the jury to consider all possible causes of the plaintiffs injuries, including the conduct of Deslandes, Spazzarini and the department as examples of what conduct the jury could consider in determining the proximate cause of the plaintiffs injuries. The plaintiff argues that the court should have told the jury that it could apportion liability among the plaintiff, the defendant or Spazzarini and consider anyone’s conduct in determining proximate causation. The plaintiff contends that it was improper to refer specifically to Des-landes and the department because they were nonparties and unavailable for apportionment of liability. In response, the defendant argues that the jury did not reach the question of proximate causation once it determined that the defendant was not negligent. We agree.

It is indisputable that the jury answered “[n]o” to the interrogatory asking whether the plaintiff had proven “by a preponderance of the evidence, that the defendant William Berselli was negligent in one or more of the ways specified in the [cjomplaint?” As instructed, the jury then entered a verdict for the defendant without addressing subsequent interrogatories concerning proximate causation.

The court premised its denial of the plaintiffs motion to set aside the jury verdict on the fact that, having answered “[n]o” to the first interrogatory concerning the issue of negligent conduct, the jury did not reach the subsequent question concerning proximate causation. On appeal, the plaintiff argues that, in finding that the defendant was not negligent, the jury necessarily had to consider the question of proximate causation because proximate causation is an essential component of negligence.

The plaintiff correctly argues that proximate causation must be proved as an essential element of the tort of negligence. The first jury interrogatory, however, did not ask for the jury’s finding on the ultimate legal issue in the case. Indeed, if the first interrogatory had asked the jury for its ultimate finding on whether the plaintiff had proven the tort of negligence, answers to the subsequent questions regarding proximate causation would have been superfluous. Rather, as explained by the court in its instructions, negligence “is the breach of a legal duty owed by one person to another, and such legal duty is the exercise of reasonable care.” The first interrogatory, therefore, asked the jury to determine only whether the defendant had breached a duty, not whether such breach was the proximate cause of the plaintiffs injuries.

The plaintiff has not met his burden on appeal of showing that the court’s instructions to the jury misled it in such a way as to prejudice the plaintiff. He did not, at trial, object to the form of the interrogatories or challenge the court’s four part definition of the law of negligence, and he cannot do so now.

II

The plaintiff next claims that the jury instructions were improper because the court did not instruct the jury to consider the size of the defendant’s vehicle as one of the particular circumstances to be considered when determining the care that the defendant should have exercised. The tractor trailer driven by the defendant was the largest legally allowed on the road, and the plaintiff argues that the court should have drawn the jury’s attention to that fact. We are not persuaded.

The court instructed the jury concerning the duty of care owed by the defendant as follows: “It is not the care which you personally think the defendant, William Berselli, ought to have used. Instead, you must determine the question by placing an ordinarily prudent person in the situation of the defendant and ask yourselves what would such a person have done? All of the surrounding circumstances must be considered.

“In circumstances of slight danger, a slight amount of care might be sufficient to constitute reasonable care, while in circumstances of great danger, a correspondingly great amount of care would be required to constitute reasonable care.” The court went on to address four of the specific ways that the defendant was alleged to have acted negligently—not maintaining reasonable speed, failing to keep a proper lookout, failing to maintain control over his vehicle and failing to give a warning to the plaintiff. With respect to each negligence allegation, the court indicated that the juiy should consider the circumstances existing at the time of the accident in determining whether the defendant had been negligent.

In denying the plaintiffs motion to set aside the verdict, the court held that “[t]he fact that the . . . defendant operated a large tractor trailer truck was undisputed. It was the subject of much of the testimony, the photos that [the jurors] had before them, the police reports, the expert reports and the expert analyses. ... To assume that the jury required a reminder that the defendant drove a big tractor trailer truck through the intersection and that it could not grasp the significance of that fact when applying the court’s specific instructions on unreasonable speed, failure to keep a proper lookout and proper control, etc., would unreasonably belittle the ordinary juror’s memory and intelligence.”

The plaintiff cites Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977), for the proposition that “[i]t is the law of this state that a request to charge which is relevant to the issues of a case and which is an accurate statement of the law must be given. ... It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Citations omitted.) Id. The plaintiff maintains that, in the present case, the court not only failed to give the requested charge verbatim, but also failed to give it in substance, as Mazzucco requires. According to the plaintiff, the denial of his request to charge left it to the jury to determine the circumstances that it would consider and permitted the jury to focus on the care that a reasonably prudent person driving an average sized vehicle would have taken, rather than the care required by a person driving a vehicle the size of the defendant’s tractor trailer. We are not persuaded.

The court’s instructions made it clear to the jury that it must consider all circumstances of the accident. The jury heard the defendant’s uncontested testimony describing the size of his vehicle. This record furnishes no basis for us to speculate that the jury ignored the facts as presented. We agree with the court that it did not need to describe “every item of evidence or physical fact which might bear on the jury’s decision.” See, e.g., Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 714, 596 A.2d 1318 (“[i]f the issues are clearly enumerated and the argument of counsel has fairly presented the .case, a discussion in the charge of the details of the evidence may defeat its proper purpose” [internal quotation marks omitted]), cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).

Ill

The plaintiffs final claim is that the court improperly failed to honor his request for an instruction that the jury consider the special duty owed to workers in road construction work zones. The plaintiff cites Viretto v. Tricarico, 116 Conn. 718, 165 A. 345 (1933), in support of this claim.

The plaintiff requested the following instruction, which the court declined to give: “Here, the [defendant, in driving through the intersection, where he knew construction to be taking place, and where he knew workmen were engaged, was under a duty to exercise care not to injure those workers proportionate to the danger inherent in the situation. This includes the fact that the workers might have their attention so focused upon their work as to not be watchful for traffic. Additionally, the plaintiff was entitled to assume that the driver of any vehicle passing through the intersection would exercise the degree of care incumbent upon him in such a situation and, if the vehicle was to pass so close to him, that the driver would at least give a warning.”

The court instead instructed the jury: “[A]n operator has a duty to decrease speed when a special hazard exists with respect to other traffic or by reason of weather or other highway conditions. The plaintiff maintains that the highway construction occurring near the intersection constituted just such a special condition warranting the defendant to drive his truck at a decreased speed. Whether the defendant drove his truck unreasonably fast at the time of the accident is a question for you, the jury, to determine after a consideration of all the surrounding circumstances which you find existed at the time.” In addition, with respect to warnings, the court instructed the jury: “Reasonable care requires . . . that when a driver observes that another person is near or about to enter his course of travel where a reasonably prudent person would feel that some signal ought to be given, the driver should sound his horn to give warning of his approach.” Finally, as previously noted, the court also instructed the jury that the care owed by the defendant was relative to the risk involved in the situation in which he found himself.

Viretto v. Tricarico, supra, 116 Conn. 718, involved facts similar to the present case, in that a plaintiff who was working on road construction was injured by an automobile driven through that work zone. In that case, our Supreme Court, in the language relied on by the plaintiff, stated that “[i]t was the duty of the defendant driver in passing over the highway, which was not open to ordinary traffic and upon the construction of which he knew workmen were engaged, to exercise care not to injure them proportionate to the danger inherent in the situation, including the fact they might well have their attention so engaged upon their work as not to be watchful for traffic; and on the other hand, such workmen had the right to assume that any driver of a vehicle upon the road would exercise such care.” Id., 719-20. The Supreme Court then affirmed a juiy verdict in favor of the plaintiff, stating: “The evidence affords sufficient basis for a finding by the jury that the defendant driver was negligent, and we cannot hold as a matter of law that the plaintiff was guilty of contributory negligence.” Id., 720.

In the present case, the court’s instructions were consistent with the holding of Viretto even though they were not identical to the language in the plaintiffs requested instructions. It sufficed for the court to inform the jury that the defendant owed the plaintiff a duty of care appropriate to the danger inherent in the situation, that the defendant had a duty to warn the plaintiff if it was reasonable to do so, and that the construction zone was a special circumstance that might have required the defendant to lower his speed. We are, therefore, not persuaded by the plaintiff’s claim that the instructions given to the jury in this case unfairly presented his case to the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs complaint also contained allegations of (1) recklessness against Gregory Deslandes, a state police trooper, (2) negligence against the plaintiffs employer, Spazzarini Construction Company, Inc., and (3) a violation of General Statutes § 13a-144 against the department of transportation. The trial court, Fuger, J., granted the department’s motion to dismiss on the basis of sovereign immunity. The plaintiff subsequently withdrew his complaint as to Deslandes and Spazzarini. In this opinion, we refer only to Berselli as the defendant.

       The plaintiff has not challenged on appeal the court’s ruling on the motion in limine.

       “In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Stein v. Tong, 117 Conn. App. 19, 27, 979 A.2d 494 (2009). Furthermore, “the plaintiff must prove both causation in fact and proximate cause.” (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn. App. 47, 76, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).

       To the extent that the plaintiff argues on appeal that the defendant had a heightened duty of care due owing to the fact that the plaintiff was working in a road construction work zone when the injury occurred, the plaintiffs claim has not been preserved properly. Although the plaintiff made a request for specific instructions, the request did not refer to any heightened duty as a matter of law, such as the plaintiff now argues existed. After the instructions were given, the plaintiff made no reference to a heightened duty of care. The memorandum of law supporting the plaintiff’s motion to set aside the verdict made only passing reference to a heightened standard of care, and the argument was not addressed by the trial court in its ruling. We, therefore, decline to address the claim on appeal. See, e.g., Lin v. National Railroad Passenger Corp., 277 Conn. 1, 14, 889 A.2d 798 (2006).


text:
    VANESSA RANFONE v. ROBERT RANFONE
    (AC 30562)
    Bishop, DiPentima and Peters, Js.
    Argued November 30, 2009
    officially released February 16, 2010

      Frank J. Kolb, Jr., with whom, on the brief, was Joseph H. Marotti, for the appellant (defendant).

      Allison M. Near, with whom was Howard A. Jacobs, for the appellee (plaintiff).
   Opinion

PETERS, J.

In a marital dissolution action, a trial court may award a spouse a portion of the retirement benefits that will be earned by his or her former spouse subsequent to the date of dissolution. Bender v. Bender, 258 Conn. 733, 752, 785 A.2d 197 (2001); Ranfone v. Ranfone, 103 Conn. App. 243, 248, 928 A.2d 575, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007). The dispositive issue in this appeal is whether a court making such an award has the authority to clarify its terms if, as originally drafted, the award was unenforceable. We affirm the judgment of the trial court making the required correction.

In a judgment rendered on May 9, 2005, the court dissolved the marriage of the plaintiff, Vanessa Ranfone, and the defendant, Robert Ranfone. As part of the court’s equitable distribution of the property and assets of the parties, the court awarded the plaintiff a 50 percent share of the value of the defendant’s pension “as of the date that [the defendant] first becomes eligible to begin collecting his share of the pension.” The court’s judgment was affirmed on appeal. Ranfone v. Ranfone, supra, 103 Conn. App. 254.

Thereafter, the defendant’s pension administrator rejected the proposed preapproved domestic relations order (PADRO) that had been tendered to carry out the court’s pension order. In the administrator’s opinion, the phrase “first becomes eligible to begin” is ambiguous because the defendant presently is eligible to retire and to begin receiving a reduced pension. In response to the administrator’s rejection, the parties returned to the trial court for a reexamination of the existing pension order.

In a memorandum of decision filed November 5,2008, the court reiterated two of its earlier decisions with respect to the pension. It again denied the defendant’s motion to divide the pension as of the date of the judgment dissolving his marriage to the plaintiff, and it again denied the plaintiffs motion to require the defendant, upon his retirement, to elect a pension option with 50 percent survivor benefits. These decisions are not directly at issue in this appeal.

Addressing the pension administrator’s ruling, the court held that “the pension order should include terminology to the effect that valuation of the plaintiffs portion of the pension shall be based on one half of the amount that the defendant receives when he retires and begins collecting his share of the pension.” The defendant’s appeal challenges the propriety of this ruling.

The defendant has raised two issues. His principal contention is that the court’s order improperly modified the property distribution in its original dissolution decree. In addition, he maintains that the court exceeded its jurisdiction by awarding pension rights to the plaintiff that entitled her to participate in contributions to his pension that reflected his earnings subsequent to the date of the dissolution of the parties’ marriage. We are not persuaded by either claim.

It is well established that “[a]n appellate court will not disturb a trial court’s orders in domestic relations cases unless the court has abused its discretion or it is found that it could not reasonably conclude as it did, based on the facts presented. ... In determining whether a trial court has abused its broad discretion in domestic relations matters, we allow every reasonable presumption in favor of the correctness of its action.” (Internal quotation marks omitted.) Gail R. v. Bubbico, 114 Conn. App. 43, 46-47, 968 A.2d 464 (2009).

I

At the outset, we must resolve a jurisdictional issue. The plaintiff asserts that we have no subject matter jurisdiction to hear the defendant’s appeal because the order that the defendant has challenged was not a final judgment. Ordinarily, “[t]he statutory right to appeal is limited to appeals by aggrieved parties from final judgments . . . .” (Internal quotation marks omitted.) Rosado v. Bridgeport Catholic Diocesan Corp., 276 Conn. 168, 194, 884 A.2d 981 (2005).

The plaintiff maintains that the trial court’s order restating the plaintiffs pension rights was merely an unappealable interlocutory order because it has not yet been finalized by a PADRO. The defendant argues, to the contrary, that the court’s order so concluded the rights of the parties with respect to the division of the defendant’s pension that its ruling was a final judgment. We agree with the defendant.

It is true that the precise terms of the PADRO defining the plaintiffs pension rights when the defendant retires from government service are not before us. It is equally true, however, that, regardless of its other terms, if the trial court’s ruling is affirmed, the PADRO will have to include a term distributing 50 percent of the pension to the plaintiff when the defendant retires. This requirement satisfies the test articulated in State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), that an interlocutory order is immediately appealable if it “so concludes the rights of the parties that further proceedings cannot affect them.”

II

The defendant’s principal argument on the merits is that the court’s order, with respect to the plaintiffs pension rights, impermissibly modified the terms of the court’s original assignment of property rights to the two parties. The defendant concedes that the court had continuing authority to enforce its prior orders but maintains that the amended decree was not an enforcement order but, rather, an unauthorized modification of its prior judgment. We disagree.

The defendant premises his appeal on the proposition that the court’s original order, with respect to his pension, was unambiguous. Concededly, under the terms of that order, the plaintiffs pension rights were tied to the defendant’s eligibility for a pension. The defendant maintains that, in light of his eligibility to retire at the time of the dissolution decree, the plaintiffs pension rights unambiguously were set at that time and were not subject to enhancement by his continued government service for an indefinite future period of time.

The difficulty with the defendant’s argument is that it assumes that the court’s initial allocation of the parties’ pension rights was unambiguous. Like the pension administrator, the court found, to the contrary, that its description of the event that would trigger the defendant’s eligibility for a pension contained a latent ambiguity. “[L]atent ambiguities are those which appear only as the result of extrinsic or collateral evidence showing that a word, thought to have but one meaning, actually has two or more meanings. . . . Latent ambiguities [can] be shown and explained by pleading and parol proof.” 11 S. Williston, Contracts (4th Ed. Lord 1999) § 33:40, pp. 816-17; Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995); In re Marriage of Holloway, 299 Mont. 291, 295-96, 999 P.2d 980 (2000).

Applying the law stated in these authorities, we hold that the court reasonably found that a latent ambiguity in its original pension order authorized it to restate its order to clarify its original intention for the division of the defendant’s pension rights between the parties. We, therefore, disagree with the defendant’s characterization of the court’s order as an impermissible modification of its terms.

We note, finally, that the defendant cannot prevail on his contention that, as clarified, the court’s pension order adversely affected his eligibility to receive his pension. As originally drafted and as clarified, the pension order left him unfettered freedom to decide when he wishes to retire. The pension order affected his projected pension payout, but not his control of his date of retirement.

Ill

In the alternative, the defendant maintains that the court’s clarified order awarding the plaintiff 50 percent of his pension when he retires was improper because the court had no authority to make a financial award that, in addition to dividing the parties’ assets at the time of the dissolution of their marriage, also included the future accrual of the defendant’s pension rights. We disagree.

The defendant acknowledges that his claim must take into account the decisions of our Supreme Court in Bender v. Bender, supra, 258 Conn. 733, and of this court in Ranfone v. Ranfone, supra, 103 Conn. App. 243. Bender established that an equitable distribution in a marital dissolution case may include unvested pension benefits. Bender v. Bender, supra, 749. Ranfone established that an equitable distribution in a marital dissolution case may include unvested pension benefits even if disbursement of the pension is delayed until the pension comes into “pay status;” Ranfone v. Ranfone, supra, 253-54; and even if the distribution includes “future contributions to [the] pension, made after the date of dissolution . . . .” Id., 250.

The defendant maintains that, as restated by the trial court, the new pension benefits order is different and unauthorized because it is substantively different from the previous order that was upheld in Ranfone. This argument depends on the proposition, which we have already rejected, that the court’s revised order was a modification rather than a clarification of its original order. Indeed, our earlier decision validating the pension order until the pension order comes into “pay status”; id., 254; indicates that we assumed the terms of the trial court’s order to be precisely as the trial court has now clarified them to be.

The judgment is affirmed.

In this opinion the other judges concurred.

       The record indicates that a PADRO is a variant of a qualified domestic relations order, known as a QDRO, which has been recognized as “the means by which to assign to a nonemployee spouse all or any portion of pension benefits provided by a plan that is governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq.” Krafick v. Krafick, 234 Conn. 783, 786 n.4, 663 A.2d 365 (1995).