author: FOTI, J.

text:
    STATE OF CONNECTICUT v. WILLIAM EASTWOOD
    (AC 23907)
    Foti, Dranginis and McLachlan, Js.

      Argued March 22
    officially released June 22, 2004

      David G. Toro, for the appellant (defendant).

      Toni M. Smith-Rosario, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John P. Doyle, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, William Eastwood, appeals from the judgment of conviction, following a jury trial, of three counts of attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-94 (a), three counts of risk of injury to a child in violation of General Statutes (Rev. to 1999) § 53-21 (a) (1), as amended by Public Acts 2000, No. 00-207, § 6, and one count of interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that the court improperly (1) denied his motion to suppress items that police seized from his van, (2) admitted these items into evidence and (3) denied his motion for a judgment of acquittal with regard to the risk of injury counts. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the afternoon hours of October 16, 2000, the defendant drove in his van to Liberty Street in New Haven. He parked his van near a multifamily house where ten year old J, eleven year old R and twelve year old N, who are brothers, resided with their family. In the early evening hours, after the boys had returned home from school, R and N walked to a nearby market to purchase snacks. J received a quarter from his uncle and began walking toward the market to join his brothers. J was not wearing a shirt.

The defendant, who was sitting in the driver’s seat of his van with the driver’s window rolled down, observed J walking alone toward the market. The defendant called to J, saying, “little boy . . . come here, come here.” J declined. The defendant then said to J, “come in this van,” and indicated that he wanted to take him to Madison. When J again refused to approach, the defendant said, “when I take you, you’re not going to tell your parents.” The defendant told J, “don’t make me come out of this van and grab you and kill you; you ain’t gonna see your parents again.” The defendant then opened the driver’s door of his van and stepped out. The defendant threatened to kill J if he did not get into the van. J smelled alcohol on the defendant’s breath, observed the defendant drinking from a square shaped bottle and observed through a window a mattress in the back of the van.

Frightened by the defendant, J ran to the market and told his brothers about his encounter with the defendant. Shortly thereafter, the three brothers left the market together. They soon encountered the defendant, who called to them. The defendant had spoken with R shortly before, asking him to go with him in his van. The defendant now asked the boys, as a group, to accompany him to Madison. J left the scene to get his uncle, who lived in his house. The defendant again asked R and N to get into the van so he could “take them somewhere.” The defendant threatened to kill R and N if they did not get into the van. The defendant told R that he was not a stranger and that he was not dangerous. R refused to get into the van, telling the defendant, among other things, to leave him alone and that he was a stranger.

J summoned his uncle, telling him that “there is a guy that wants to take me to Madison; if I don’t get in the car, he is going to kill me.” The victims’ uncle immediately walked to the van and asked the defendant what he wanted. The uncle had never met the defendant before and believed that the defendant was intoxicated. The defendant asked the uncle if he could take the boys to Madison. The uncle strongly refused, instructed his nephews to go back inside their house and dialed 911 on his cordless telephone.

The defendant, watching the boys’ home, remained in his van until Gregory Catania, a New Haven police officer, arrived. The defendant disobeyed Catania’s commands to exit the van. Catania opened the driver’s door of the van, pulled the defendant out of the van and attempted to handcuff the defendant. The defendant resisted. A second police officer, Rosealee Reid, arrived and assisted Catania in handcuffing the defendant and placing him in the back of Catania’s police cruiser. Catania placed the defendant under arrest. The defendant brought this appeal after his trial and conviction. Additional facts germane to the defendant’s claims will be set forth as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress items that police found in his van. We disagree.

The record reflects that police filed an application for a warrant to search the defendant’s van, which was being stored at a police garage following the defendant’s October 16, 2000 arrest. Peter Moller, a detective with the New Haven police department, and David Fitzgerald, an officer with the New Haven police department, submitted the application as well as their affidavit in support of the warrant application. The application was for “any and all weapons and firearms including pistols, rifles, revolvers, shotguns, hatchets, axes, knives, cutting instruments and cutting tools, blunt force instruments, projectiles, ammunition, bullet casings, computer systems . . . that may be used to ‘access’ . . . process or store data, cameras, video equipment, ‘lures’ i.e. toys, books, computer games, other items that would attract a child, restraints, video tapes, film, photographs or other images of a sexual nature” within the van.

In their affidavit, Moller and Fitzgerald averred, on the basis of their personal knowledge, personal observations, information received from other police officers, police reports and from statements given by prudent and credible witnesses, the following facts. On October 16, 2000, Catania and Reid responded to the 911 call from the victims’ uncle concerning a man outside of his home who threatened to kill his nephews if they did not accompany him. The officers found the defendant sitting in his van, but the defendant refused to comply with instructions to exit the van. The officers physically removed the defendant, who appeared to be intoxicated, from the van. The officers conducted a brief search of the van for weapons, but did not find any. Catania, however, noticed a “silver police type badge” on the van’s dashboard.

Moller and Fitzgerald further averred that Catania had spoken with the uncle, who related that J had run to his house and told him that “ ‘there’s a guy who wants to kill me. There’s a guy that wants to kill me if I don’t get into his car.’ ” The uncle went outside and found the defendant sitting in the driver’s seat of his van, talking to R and N. The defendant asked the uncle if he could take the boys to Madison. The uncle refused and called 911. Later that night, detectives from the New Haven police department interviewed J, R and N. Ten year old J recounted that the defendant had called to him, asked him to get into the van and said, “ ‘If you don’t come in, I’m gonna kill you.’ ” At that time, the defendant opened the driver’s door and moved his feet outside of the van. R and N recounted their similar experience, how the defendant had called to them and told them that he wanted to take them somewhere. R and N informed the detectives that, when they refused, the defendant appeared to become angry and told them, “ ‘come here or I’ll kill you.’ ”

Moller and Fitzgerald further averred that following the defendant’s arrest, they conducted a criminal background check. They discovered that, in October, 1989, Madison police had arrested the defendant for risk of injury to a child. The arrest warrant in that case disclosed that the defendant’s brother-in-law reported to police that the defendant had engaged in activities with and made comments of a sexual nature to his thirteen year old son, the defendant’s nephew. When police officers interviewed the defendant concerning these allegations, the defendant “freely admitted” that these events had occurred and that he desired “ ‘younger people.’ ”

The detectives averred that they spoke with Catania regarding Catania’s “brief search for weapons” in the defendant’s van immediately following the arrest. Catania recalled observing “a bed at the back of the vehicle, [a] computer printer, a black case containing what appeared to be a laptop type computer, a camera tri-pod stand, a bright camera light [and] two filing cabinets, along with clothing and various other [personal] items.” Following the arrest, police towed the defendant’s van to the police garage.

Moller and Fitzgerald finally averred that, on the basis of their training and experience as members of their department’s sexual assault and bias crime unit, “individuals that attempt to lure young children off of the street and into their vehicle do so in order to assault, rob, kidnap or sexually molest the child. That persons involved in luring children into their vehicles used different methods such as ‘Lures’, i.e. toys, books, candy, computer games, or other things that would attract a child. These individuals will also deceive children, gaming their trust by pretending to be . . . Police Officers, Fire Fighters [or] other trusted individuals. That in some instances, these individuals have been known to use or threaten to use physical violence against children to force them to comply with their demands.” On the basis of their averments, the detectives manifested their belief that probable cause existed that evidence relating to the defendant’s charged crimes was contained within his van.

On October 20, 2000, the court, Alexander, J., issued the warrant and, on October 23, 2000, police executed the warrant. Prior to trial, the defendant filed a motion to suppress all evidence seized during the search and any testimony regarding such evidence. Evidence seized by police during their search of the van included a portable lamp with a 250 watt bulb, a disposable 35mm camera that was still in its packaging, many sheets of stickers, a badge engraved with the title, “Security Guard,” a pair of size eight underwear, approximately seventy-one photographs depicting boys, six photographs depicting naked boys and thirty-four pages of typewritten material authored by the defendant. At the hearing on the motion, the defendant claimed that probable cause did not exist in support of the warrant and that any evidence seized during the search, therefore, was inadmissible as fruit of an illegal search. The court denied the motion to suppress. The defendant now claims that the court’s ruling was improper because the information contained in the application was insufficient to support a finding of probable cause.

“Whether the court properly found that the facts submitted were enough to support a finding of probable cause is a question of law and is subject to plenary review on appeal.” State v. Greene, 81 Conn. App. 492, 496, 839 A.2d 1284, cert. denied, 268 Conn. 923, 848 A.2d 472 (2004). “The law regarding probable cause and the standards for upholding the issuance of a search warrant are well established. We uphold the validity of [a search] warrant ... [if] the affidavit at issue presented a substantial factual basis for the [issuing judge’s] conclusion that probable cause existed. . . . [T]he [issuing judge] is entitled to draw reasonable inferences from the facts presented. When [an issuing judge] has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the [issuing judge]. Whe[n] the circumstances for finding probable cause are detailed, whe[n] a substantial basis for crediting the source of information is apparent, and when [an issuing judge] has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched. ... In determining the existence of probable cause to search, the issuing [judge] assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. . . . We view the information in the affidavit in the light most favorable to upholding the [issuing judge’s] determination of probable cause. ... In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the [issuing judge’s] determination. . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.” (Internal quotation marks omitted.) State v. Buddhu, 264 Conn. 449, 459-60, 825 A.2d 48 (2003), cert. denied, 541 U.S. 1030, 124 S. Ct. 2106, 158 L. Ed. 2d 712 (2004).

The defendant argues in his brief: “[T]here was no probable cause to believe that the items enumerated by the officers [in the warr ant application] were associated with criminal activity, and there was no probable cause to believe that the items named would be found in the place to be searched. The causal connection between the threats made [by the defendant] and the items believed to be in the defendant’s possession does not exist. The facts, as explained by the officers, do little to reasonably persuade an impartial and reasonable mind that probable cause exists. The facts, rather, give way to suspicion and conjecture.”

First, we conclude that probable cause existed with respect to objects such as weapons, firearms or restraints. The affidavit contained allegations that the defendant, having asked the three boys to accompany him in his van, threatened to “kill” each of them if they did not acquiesce to his request. It was not unreasonable to conclude that, at the time that the defendant made these threats, he possessed a weapon or firearm that would have enabled him to carry them out. Such evidence would certainly have been connected to the defendant’s criminal activity, would have assisted in the defendant’s conviction and would have been found in the place to be searched.

Second, we conclude that probable cause existed with regard to computer systems, cameras, video equipment, videotapes, film and photographs or other images of a sexual nature. The affidavit contained allegations that the defendant had asked three boys, aged ten, eleven and twelve, to get into his van and to accompany him to another location. The boys did not know the defendant, and when the defendant became upset after the boys refused to accompany him, he threatened to kill them. The affiants further alleged facts relating to the defendant’s prior arrest in Madison, where he engaged in conduct of a sexual nature with a thirteen year old boy. When questioned concerning that behavior, he “freely admitted” his desire for “ ‘younger people.’ ” Also, the affidavit contained facts related to Catania’s brief search of the defendant’s van following the arrest. Catania described having observed a bed, a computer printer, a laptop computer, a camera, a camera light and a filing cabinet.

There is probable cause that these items were related to criminal activity and would have assisted in the defendant’s conviction. The facts alleged were that the defendant wanted the boys to get into his van and wanted to take them somewhere away from their home. The facts alleged in the affidavit, including the circumstances surrounding the defendant’s prior arrest, created a reasonable suspicion that there was a sexual motive underlying the defendant’s unusual conduct. The affidavit also related Catania’s observation of a bed, computer and camera equipment in the back of the van. On the basis of these facts, probable cause existed that these items would have provided evidence of the defendant’s motive and were connected to the alleged criminal activity for which the defendant was arrested.

Third, we conclude that probable cause existed with regard to lures, which include toys, books, computer games or other “things that would attract a child. ...” On the basis of the facts previously detailed, it was reasonable to believe that that this type of evidence would have been connected to criminal activity or would have assisted in the defendant’s conviction. The facts demonstrate that the defendant’s objective was getting the boys into his van. It is not dispositive, as the defendant suggests it is, that there was no allegation that the defendant actually used any such items. Instead, it is logical to infer from the facts presented that the defendant was sexually attracted to young boys. The existence of items that would logically attract children, such as those listed, certainly would have corroborated the victims’ allegations. Such items would have been further evidence that reflected the defendant’s criminal scheme. Further, because the defendant attempted to get these boys to go into his van, there was probable cause to believe that such items would be located in the van.

II

The defendant next claims that the court improperly admitted into evidence the items seized from his van. We disagree.

At trial, the state offered these items “in regards to [the defendant’s] motive, in regards to his intent, and in regards to his state of mind” at the time of the incident. The defendant objected on the grounds that these items did not have any probative value, that he did not use any of these items in his interaction with the three boys and that the prejudicial value of certain of these items was great. The court admitted the items into evidence, noting that although some of the items were “extremely prejudicial,” such prejudice was outweighed by the items’ high probative value with regard to the defendant’s motive, intent and state of mind.

The defendant’s motive, intent and state of mind were relevant to the prosecution for the crimes of attempt to commit kidnapping in the second degree and risk of injury to a child. “Where, as here, there existed factual issues related to the defendant’s intent, we recognize that such factual issues are characteristically proven by circumstantial evidence .... It is obvious that direct evidence of the accused’s state of mind is rarely available and, therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citation omitted; internal quotation marks omitted.) State v. Hersey, 78 Conn. App. 141, 166, 826 A.2d 1183, cert. denied, 266 Conn. 903, 832 A.2d 65 (2003); see also State v. Jackson, 257 Conn. 198, 210-11, 777 A.2d 591 (2001).

The issue with regard to the disputed evidence is twofold. We must determine if the court abused its discretion in determining, first, that the evidence was relevant and, second, that the evidence need not be excluded because its probative value outweighed its prejudicial effect on the jury. “The challenged [e]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Internal quotation marks omitted.) State v. Nims, 70 Conn. App. 378, 389, 797 A.2d 1174, cert. denied, 261 Conn. 920, 806 A.2d 1056 (2002); see Conn. Code Evid. § 4-1. Generally, relevant evidence is admissible unless an exclusionary principle applies. See Conn. Code Evid. § 4-2.

“Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only whe[n] an abuse of discretion is manifest or whe[n] injustice appears to have been done.” (Internal quotation marks omitted.) State v. Peeler, 267 Conn. 611, 637, 841 A.2d 181 (2004); see also Conn. Code Evid. § 4-3. Having set forth our standard of review and the applicable legal principles, we now turn to the evidence in question.

A

First, the defendant challenges the admission of thirty-four pages of typewritten material authored by him. In these writings, reasonably viewed as the defendant’s journal, the defendant detailed many of his dreams, beliefs and aspirations. The topics are varied, but a central theme in the journal is the defendant’s desire to engage in sexual relationships with boys as young as four years old. The journal is replete with graphically detailed descriptions of sexual encounters between the defendant and young boys. The defendant portrayed some of these encounters as past events, others as dreams and others as something to which he aspired and would work to make a reality.

The court did not abuse its discretion when it determined that the journal had probative value. The journal was compelling circumstantial evidence of the defendant’s motive in approaching the victims in this case and in determining whether the defendant acted in the manner alleged by his victims and charged by the state. One of the central themes of the journal is, in itself, telling. This theme is the defendant’s obsession with gaining access to young boys for sexual purposes. In one representative excerpt, the defendant states: “The only problem is in the LITTLE BOYS. How am I going to get them?” Shortly thereafter, the defendant proclaims: “I can do it, and I will, somehow!” Throughout the journal, the defendant repeatedly discusses the difficulties inherent in obtaining young boys and the fact that satisfying his desires “demands an ingenious plan . . . .”

The defendant specifically discusses his goal of finding boys who are alone or who spend time with him at their parents’ request. He also discusses coming upon young boys in public places and engaging in sexual activities with them. In one passage, the defendant writes about a sexual encounter with a young boy, who is not wearing a shirt, whom he found at a public beach. In yet another passage, the defendant describes seeing and being sexually attracted to “pretty wild bare chested little boys . . . .” The defendant describes his van, which he calls his “van sex temple.” The defendant also writes about sexual encounters between himself and boys on the bed in his van. Further, the defendant writes about filming and photographing his sexual encounters with boys.

These written thoughts and desires are circumstantially relevant to the defendant’s actions on October 16, 2000. Contrary to the defendant’s assertions, the fact that he wrote extensively about his strong desire to “get” young boys and to engage in sexual activities with them was relevant to the jury’s consideration of the charges against him. It was compelling evidence of why he acted as he did. Further, the journal depicts a state of mind that specifically relates to the facts and circumstances of this case. For example, in the journal, the defendant refers to his encountering boys who are the same age as one or more of the victims in this case and his strong sexual desire for such boys, the defendant’s desire to encounter boys alone in public places and to engage in sexual activities with them, the defendant’s specific attraction to boys who are not wearing shirts and his desire to engage in sexual activities with them, as well as the defendant’s desire to engage in sexual activities with boys on the bed in his van.

The defendant argues that the writings concerned a “taboo or disturbing” subject matter and improperly aroused the jury’s emotions. We agree with the defendant that this evidence was highly prejudicial to him. The court noted this prejudice, as well. The existence of such prejudice, however, is not dispositive. The issue is whether this evidence was unduly prejudicial or improperly aroused the jury’s emotions. The fact that the writings depicted, in graphic detail, sexual encounters between the defendant and young boys, a topic that would have a tendency to arouse strong negative emotions, does not render the evidence inadmissible in light of its strong probative value on the issue of the defendant’s state of mind. Furthermore, we are confident that the jury followed the court’s timely and unambiguous instructions to consider this evidence solely in determining the defendant’s motive and intent.

The defendant claims separately that the court improperly permitted the prosecutor to read aloud to the jury the defendant’s journal. The record reflects that the prosecutor indicated at trial that he wanted to read aloud to the jury excerpts from the defendant’s journal. The defendant objected on the ground that the writings were “prejudicial” and “that the evidence speaks for itself . . . .” The defendant also argued that there was a danger that, if the prosecutor were to read aloud only excerpts from the journal, the jury would improperly consider the passages read out of context or not review the journal in its entirety during its deliberations. The court ruled that the prosecutor could read aloud from the exhibit, provided that he read aloud the exhibit in its entirety. The court instructed the jury that it would have the full exhibit during deliberations and that it should keep the passages read “in context.” The prosecutor then read aloud the journal, in its entirety, before the jury.

Apart from his claim that the court abused its discretion in admitting the journal into evidence, the defendant claims that permitting the prosecutor to read the journal aloud “highlighted the evidence and called undue attention to it.” The defendant argues that “[g]iven the graphic nature of the [journal], having the pages read to the jury placed an unnecessary emphasis on the words contained therein and prejudiced the jury in making its deliberations.”

The defendant does not cite to any authority for his proposition that the court should have precluded the prosecutor from reading aloud from a full exhibit, and we are unable to find any. We already have concluded that the court did not abuse its discretion in admitting these writings as a full exhibit, for the limited issue of the defendant’s motive and intent. We likewise conclude that by permitting the prosecutor to use the exhibit as he did, the court did not abuse its “inherent discretionary powers to control proceedings, exclude evidence, and prevent occurrences that might unnecessarily prejudice the right of any party to a fair trial.” (Internal quotation marks omitted.) State v. Holmes, 64 Conn. App. 80, 85, 778 A.2d 253, cert. denied, 258 Conn. 911, 782 A.2d 1249 (2001).

B

The defendant next claims that the court improperly admitted the photographs seized from his van. The record reflects that the state introduced one exhibit, which consisted of approximately seventy-one separate photographs depicting boys in various poses, and another six exhibits, all of which consisted of photographs of nude boys. All of these photographs appear to have been downloaded from Internet web sites, and the defendant concedes in his brief that he printed these photographs from the Internet. Many of the images are in color and are printed on heavy paper. Most of the photographs contain Internet web addresses and some contain captions.

Apart from the six photographs depicting nude boys, the other photographs depict boys in various poses and states of undress. The exhibit contains photographs of boys in their underwear, photographs of partially dressed boys reclining on beds or sofas, photographs of boys with their pants partially unzipped or pulled down, photographs of boys holding open their shirts, photographs of boys playing along a beach in their swimsuits, photographs that show only the clothed backside or crotches of boys and other photographs that show only boys’ faces.

The defendant objected to the admission of these exhibits, arguing, as he does on appeal, that they lacked any probative value. The defendant argues that he did not take these photographs and that the photographs do not depict either the victims or the area in which the defendant was arrested. The defendant also argues that he did not illegally possess these photographs and that these photographs did not depict “lewd characterizations or sexual content.” In contrast, however, the defendant simultaneously argues that the subject matter of these photographs was highly prejudicial. As the defendant admits, he does not contest “that the photographs . . . are not sexually explicit in any manner

We conclude that the court’s admission of these photographs reflected a sound exercise of discretion. The probative value of these photographs becomes obvious when the photographs are viewed in conjunction with the defendant’s journal and the charges against him. The court admitted these exhibits into evidence solely on the issue of the defendant’s motive and intent and so instructed the jury. We already have concluded that the defendant’s journal, replete with references to his sexual attraction to young boys, sheds light on his motive on October 16, 2000. These photographs also shed light on the defendant’s motive. The fact that the defendant possessed more than seventy photographs of this nature, let alone the fact that they were in his van during the incident, corroborates the state of mind plainly described in the defendant’s journal. That is, these photographs are further evidence of the obsession detailed in the journal and make it more likely that the defendant’s conduct was motivated by his sexual attraction to young boys and his obsession with finding ways to engage in sexual activities with them.

Having discussed the probative value of these photographs, we also reject the defendant’s claim that the court should have excluded these photographs because they “greatly” prejudiced the defendant. The defendant does not support his claim that these exhibits were of such a nature as to be unduly prejudicial. In fact, the defendant argues that these photographs are neither lewd nor sexually explicit. The jury was free to draw whatever reasonable inferences from this evidence, with regard to the defendant’s motive, as it saw fit. This evidence may have been adverse to the defendant’s case, but we do not conclude that it was unduly prejudicial to the defendant’s case.

C

The defendant also claims that the court improperly admitted into evidence a portable lamp with a 250 watt bulb, a disposable 35mm camera that was still in its packaging, many sheets of stickers, a metal badge engraved with the title, “Security Guard,” and a pair of size eight underwear. As explained previously, police seized all of these items from the defendant’s van.

The defendant objected at trial to the admission of these items. He argues that these items lacked probative value because there is no allegation that the defendant either used or threatened to use these items during the incident at issue and, therefore, that they are not relevant. The defendant further argues that these items “aroused the emotions of the jury.”

We conclude that the court properly exercised its discretion in admitting these items into evidence solely on the issue of the defendant’s motive. We reiterate that motive is generally proven by circumstantial evidence. Police recovered each of these items from the defendant’s van, and the evidence demonstrated that the defendant threatened to kill the victims if they did not get into the van. This fact, alone, confers on this evidence a degree of probative value. The fact that the defendant did not use any of these items during the incident does not lessen their probative value; the jury reasonably might have determined that the defendant did not use the items only because he lacked the opportunity to do so. The defendant urges us to view these items in artificial isolation, arguing that, on their own, none of these items reasonably sheds light on the defendant’s motives. The court properly admitted these items because the jury reasonably could have determined that these items do shed light on the defendant’s motives when they are viewed reasonably in light of the circumstances surrounding his arrest and the other evidence of his motive.

The jury reasonably could have determined that the lamp and camera are relevant in light of the defendant’s desire, expressed in his journal, to photograph young boys engaging in sexual encounters with him. The badge and stickers reasonably could be viewed, as the state argues, as evidence of lures that the defendant might employ to attract young boys. The defendant argues that the state did not present any evidence with regard to the fact that he either used or might have been motivated to use these items as lures. Such evidence was not necessary. The jury need not have relied on opinion testimony to infer reasonably that the defendant, an adult, likely possessed these items because he intended to or desired to use them in connection with fulfilling his “plan” to engage in sexual relationships with boys. Likewise, the jury could have viewed the size eight underwear much as it might have viewed the photographs, given the other evidence in this case, as evidence of the defendant’s sexual obsession with boys. Because of the charges in this case, as well as the age and gender of the victims, such evidence was relevant.

The defendant’s arguments fail because the court is bound to view this evidence in the light that a rational juror might view it. “The jury is entitled to draw reasonable inferences from the evidence before it and, in performing its function, the jury brings to bear its common sense and experience in the affairs of life.” State v. Koslik, 80 Conn. App. 746, 756, 837 A.2d 813, cert. denied, 268 Conn. 908, 845 A.2d 413 (2004). Expecting the jury to view these items in light of the other evidence presented, the court properly determined that it was relevant to the issue of the defendant’s motive. Further, the defendant has failed to support his argument that the admission of these items was unduly prejudicial to him.

Ill

Finally, the defendant claims that the court improperly denied his motion for a judgment of acquittal with regard to the risk of injury counts. We disagree.

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong[ed] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Feliciano, 74 Conn. App. 391, 395, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).

We next define the elements that are integral to the crimes at issue. General Statutes (Rev. to 1999) § 53-21 (a), as amended by Public Acts 2000, No. 00-207, § 6, provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child ... is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.” The charges against the defendant concern only that part of the statute that prohibits the creation of a situation likely to impair the morals of the victims. The elements integral to the defendant’s conviction under § 53-21 (a) (1) are as follows: (1) the defendant’s conduct was wilful or unlawful; (2) the defendant created, acquiesced in or was deliberately indifferent to a situation that was likely to impair the victim’s morals; and (3) the victim was younger than sixteen years of age. See, e.g., State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963) (noting that statute precludes deliberate indifference to, acquiescence in or creation of situations inimical to minor’s moral welfare); State v. Payne, 40 Conn. App. 1, 12-13, 669 A.2d 582 (1995), aff'd, 240 Conn. 766, 695 A.2d 525 (1997).

The defendant does not challenge the fact that the victims were younger than sixteen years of age. The defendant posits, as he did at trial, that the evidence demonstrated only that he threatened to kill the boys if they did not get into his van. The defendant argues that he “threatened [the] boys with bodily harm and nothing else” and that “[h]e did not utter anything suggestive or sexual, nor did he touch the children in any way.”

Here, the state specifically charged that the defendant violated the statute by “engaging, enticing, and threatening” the boys. The jury had before it ample evidence of the defendant’s motive and reasonably could have found that the defendant’s motives during the incident were entirely sexual in nature. The jury reasonably could have found that the defendant had engaged, enticed and threatened the boys because he wanted to engage in the sexual behavior with them of the variety amply detailed in his journal. The jury reasonably could have found that the defendant acted unlawfully and wilfully in creating the situation that he did and that in so acting, the defendant created a situation that was likely to be harmful to the boys’ morals.

The fact that the defendant did not actually impair the boys’ morals is of no consequence. The jury, having heard the testimony of J and R, reasonably could have determined that actual impairment was averted by reason of the boys’ actions and responses to the defendant’s enticements and threats. What the statute precludes is the creation of a situation that is likely to impair the morals of a victim younger than sixteen years of age. “Lack of an actual injury to . . . the . . . morals of the victim is irrelevant . . . actual injury is not an element of the offense. . . . [T]he creation of a prohibited situation is sufficient.” (Citation omitted; internal quotation marks omitted.) State v. Davila, 75 Conn. App. 432, 437, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003); see also State v. Cutro, 37 Conn. App. 534, 541-42, 657 A.2d 239 (1995) (noting that violation of § 53-21 may occur even though victim is unaware of defendant’s prohibited conduct).

Here, the situation that the defendant created rises to the level of behavior prohibited by the statute. The defendant engaged, enticed and threatened the minor victims. His explicit goal was to get them into his van, away from their parents or guardians. Probative evidence supported a finding that the defendant’s conduct constituted steps toward sexual contact. The jury reasonably could have found that, once inside the van and away from their parents or guardians, the victims surely would have encountered strong sexual advances and behavior by the defendant. The defendant referred to his van as a “sex temple.” He wrote about finding ways to engage in sexual activities with minors, including engaging in such behavior in his van, and graphically described the activities that he wanted to engage in with them. The defendant had a bed in his van, along with a camera and the other items previously described. The jury was entitled to view all of this evidence in light of its common sense and to draw reasonable inferences from this evidence concerning the defendant’s motives. On the basis of the evidence, the jury reasonably could have found that the defendant had created a situation in which he could satisfy his sexual interest in boys and, specifically, these victims, and that he had taken every step possible to fulfill his desires in that regard.

In evaluating whether a situation is likely to impair a victim’s morals, the relevant inquiry, as the court properly instructed the jury, is to evaluate the situation in light of “precepts that are commonly accepted among us as right and decent.” See, e.g., State v. Payne, supra, 40 Conn. App. 13-14 (reiterating that “common sense of the community was an appropriate standard for a jury to apply in order to distinguish innocuous conduct from conduct that would violate ... § 53-21”). The evidence supported a finding that the defendant had created a situation in which he could satisfy the sexual interests described in his journal, interests that surpassed the deliberate touching of a minor’s private parts, and included anal and oral intercourse. Consequently, the jury reasonably could have determined that the situation created was likely to have impaired the victims’ morals.

For the foregoing reasons, we conclude that the court properly denied the defendant’s motion for a judgment of acquittal. The state presented sufficient evidence to support the defendant’s conviction with regard to these charges.

The judgment is affirmed.

In this opinion the other judges concurred.

       The court sentenced the defendant to a total effective sentence of nine years incarceration to be followed by fifteen years of special parole.

       The defendant claims on appeal that the court admitted all of the items seized from his van as evidence of prior misconduct. “Evidence of other crimes, wrongs or acts of a person is admissible ... to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony.” Conn. Code Evid. § 4-5 (b). The record reflects that the state did not offer these items specifically as evidence of prior misconduct, but generally as evidence of the defendant’s motive. At trial, the defendant discussed § 4-5, but argued that this evidence was not admissible as prior uncharged misconduct, and the court did not address the issue of admissibility on that ground. The court admitted these items solely on the ground that they had probative value relative to the issue of the defendant’s motive and intent.
      Although the defendant mischaracterizes the ground on which the court admitted this evidence, there is some merit to the defendant’s claim that the writings were, in small part, evidence of prior uncharged crimes of the defendant. In the writings, the defendant wrote about at least one sexual relationship that he had engaged in with a boy in Florida. As the rule provides, the court could admit this evidence on the issue of motive. The court clearly indicated to counsel and to the jury that this evidence was to be considered solely on the issue of the defendant’s motive. Accordingly, the court’s admission of this evidence did not violate § 4-5, and we will address the defendant’s claim that the court should have excluded the evidence as being irrelevant and unduly prejudicial.

       Having reviewed the journal in its entirety, we conclude that it would serve no useful purpose to set it forth in its entirety in this opinion.

       The defendant also argues that the writings were not probative because they reflected mere “dreams and fantasies” and “surely are not of logical thought.” We disagree. Although some passages are written so as to memorialize what the defendant describes as dreams, the writings as a whole concern the same subject matter. The defendant intermingled his descriptions of dreams about sexual encounters with boys with writings about his conscious thoughts and desires about the same topic. As the court aptly noted, the defendant chose to memorialize these dreams concerning his sexual interactions with young boys in writing, and such conduct speaks to the defendant’s state of mind. There is no reason to believe that the jury did not afford to excerpts concerning dreams the weight that it deemed proper.

       The court delivered an immediate limiting instruction concerning this evidence. The court stated: “[T]he evidence that has been introduced as having been seized from the defendant’s van has been offered by the state and admitted by the court solely as evidence of the defendant’s motive and intent in enticing the alleged victims to his van, if you find that he, in fact, did so. Such evidence has not been admitted or offered to prove that he, in fact, did try to entice the alleged victims to his van.”

        During its charge on the risk of injury counts, the court again instructed the jury with regard to its proper role in considering this evidence. The court stated: “[T]he state is not claiming that the situation likely to be harmful to the victim’s morals was exposure to those items or materials that were in the defendant’s van. Rather, the state claims that being enticed to enter the defendant’s van, given his intentions as evidenced by those items . . . constituted a situation likely to be harmful to their morals.” With regal'd to the issue of motive generally, the court later stated: “Now, you have heard evidence regarding items and materials which were seized from the defendant’s van. Those items, as I have previously instructed you, were admitted solely on the issue of the defendant’s motive and intent.”

       For example, one photograph contains the following caption: “Hi! This is my Boylove site! This site is for Boylovers and Boys! If you aren’t a Boylover. Feel free to visit anyway! There might be something to learn!”

       See footnote 5.

       Some stickers depict, among other things, trucks, airplanes, boats, castles, unicorns, dragons, birds, whales, panda bears and the planet earth. Other stickers are packaged and labeled as “motivational stickers” and are captioned with phrases including “Enjoy life!” and “Do it now!”

       The jury reasonably could have found that the underwear is of a type typically worn by young boys.

       See footnote 5.

       In a long form information, the state charged, with regard to each of the minor victims, that the defendant “did willfully or unlawfully cause or permit a child under the age of sixteen years ... to be placed in a situation that the morals of such child were likely to be impaired by engaging, enticing, and threatening the minor child in violation of Sec. 53-21 (a) (1) of the Connecticut General Statutes.”


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    FRANCES KUNAJUKR v. SUTIP KUNAJUKR
    (AC 23190)
    Lavery, C. J., and Bishop and West, Js.

      Argued March 22
    officially released June 22, 2004

      Richard Hustad Miller, for the appellant (defendant).

      Scott M. McGowan, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

This appeal, which the defendant amended, arises from a marriage dissolution action. The defendant, Sutip Kunajukr, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Frances Kunajukr. He claims that the court (1) improperly accepted a pendente lite agreement as a final order without his explicit consent, (2) improperly ordered him to pay child support in an amount that deviated from the child support guidelines without first stating on the record the guideline amount and (3) abused its discretion by ordering him to maintain a life insurance policy without placing the cost of such a policy on the record. By way of amended appeal, the defendant appeals from the postjudgment order awarding attorney’s fees to the plaintiff to defend against his appeal. The defendant specifically claims that the court abused its discretion by awarding, the plaintiff $5000 for appellate counsel fees. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of the defendant’s appeal. The parties were married on January 6, 1986, in Bangkok, Thailand. They have one minor child, M, bom prior to the marriage on February 10,1985, and one minor child, S, bom after the marriage on April 21, 1989. The defendant has another child, J, from his prior, marriage.

The plaintiff commenced an action on July 5, 2000, seeking dissolution of the marriage on the ground of irretrievable breakdown. Although the parties offered various reasons for the breakdown of the marriage, the court found that financial issues were the cause. Pursuant to an agreement submitted by the parties, the court ordered, inter alia, that the defendant, in lieu of paying child support, continue to fund the Sutip Kunajukr Irrevocable Tmst (tmst). The tmst was to be funded by insurance premium payments on an insurance poiicy. The court further ordered the defendant to designate and to maintain the plaintiff as the irrevocable beneficiary of his life insurance policy that was in effect at his place of employment. Additionally, the plaintiff was ordered to maintain the life insurance policy in effect at his present place of employment or to obtain a similar policy at any future place of employment at a reasonable cost until his alimony obligation terminated. The court rendered the judgment of dissolution on May 15, 2002.

The defendant filed an appeal on June 21, 2002. The plaintiff subsequently filed a postjudgment motion for attorney’s fees to defend the appeal. After a hearing on the plaintiffs motion, the court awarded the plaintiff $5000 to defend the appeal. On February 11, 2003, the defendant filed an amended appeal. Additional facts will be set forth as necessary.

Before discussing the defendant’s specific claims, we set forth our standard of review. “We will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. ... A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. ... In reviewing the trial court’s decision under [an abuse of discretion] standard, we are cognizant that [t]he issues involving financial orders are entirely interwoven. The rendering of judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . .

“A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court’s action to determine ultimately whether the court could reasonably conclude as it did. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Citations omitted; internal quotation marks omitted.) Parley v. Parley, 72 Conn. App. 742, 745, 807 A.2d 982 (2002). With the foregoing principles in mind, we now turn to the specific claims of the defendant.

I

The defendant first claims that the court improperly accepted a pendente lite agreement as a final order without his explicit consent. Specifically, he argues that although the parties reached a stipulated agreement as to custody, visitation and child support, he never agreed on the record that the agreement would become part of the court’s judgment. We disagree.

The following additional facts are necessary for the resolution of that issue. During the trial, the parties produced an agreement, dated February 22, 2002, that resolved certain areas of contention. Specifically, the agreement addressed custody, medical and dental insurance for the minor children and child support. The agreement provided in relevant part: “In lieu of current child support, the Defendant shall continue to fund the Sutip Kunajukr Irrevocable Trust dated June 11, 2001. Said Trust to be funded by the Defendant making the life insurance premium payments of the Jefferson Pilot Life Insurance policy with a death benefit of $800,000.00. Payments to be made throughout the minority of the minor children or to sooner terminate if payments are made in full before the majority of the minor children. ...” The agreement required that the defendant make six annual payments of $28,000 for the policy, starting in June, 2001. The parties agreed that the defendant made the June, 2001 payment. The plaintiff, the defendant, their respective attorneys and the attorney for the minor children all signed the agreement.

During the trial, on March 5, 2002, the parties informed the court of the signed agreement. The court reviewed the agreement on the record with the parties and requested that the parties clarify certain aspects of the agreement. At the next day of the trial, March 13, 2002, the parties informed the court that they were prepared to make certain stipulations and filed a signed copy of the redrafted agreement. The court canvassed the plaintiff regar ding the agreement, and she indicated that she wanted to make it binding and part of the court’s judgment. The defendant stated that he had read and understood the agreement and his obligations. He then informed the court that he wanted the court to accept the agreement and to make it an order. The court subsequently accepted the agreement.

On appeal, the defendant claims that the court abused its discretion by accepting the agreement, which he characterizes as a pendente lite order, and incorporating it as part of its judgment. That argument is without merit.

“Pendente lite” is defined as “[p]ending the lawsuit; during the actual process of a suit; during litigation. . . .” Black’s Law Dictionary (6th Ed. 1990). Pendente lite orders, therefore, are of a temporary nature. See Papa v. Papa, 55 Conn. App. 47, 54, 737 A.2d 953 (1999).

The agreement in this case contemplated an additional five years of postjudgment insurance premium payments to fund the trust. Those payments would last throughout the minority of the children. We further note that the defendant and his counsel were present when the court canvassed the plaintiff and never objected when she agreed that the order would become part of the judgment. Additionally, in the absence of any claims for relief with respect to child support filed by the defendant, combined with the fact that the agreement was made during the trial, we conclude that it was well within the court’s discretion to accept the agreement and to incorporate it into its judgment.

General Statutes § 46b-66 does not require an explicit canvass of the defendant. But see Practice Book §§ 39-19 and 39-20 (court must canvass defendant on record before accepting guilty plea); State v. Lopez, 77 Conn. App. 67, 71 n.7, 822 A.2d 948 (same), cert. granted on other grounds, 265 Conn. 903, 829 A.2d 421 (2003). Section 46b-66 (a) merely provides in relevant part that “[i]n any case . . . where the parties have submitted to the court an agreement concerning the custody, care, education, visitation, maintenance or support of any of their children or concerning alimony or the disposition of property, the court shall inquire into the financial resources and actual needs of the spouses and their respective fitness to have physical custody of or rights of visitation with any minor child, in order to determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. ...”

In the present case, we conclude that the court observed and complied with its statutory obligation pursuant to § 46b-66. Accordingly, the court did not abuse its discretion by incoiporating the agreement into its judgment.

II

The defendant next claims that the court improperly ordered him to pay child support in an amount that deviated from the child support guidelines without first stating on the record the guideline amount. We will not review that claim because the defendant failed to submit a child support guidelines form as required by Practice Book § 25-30 (e).

In Favrow v. Vargas, 231 Conn. 1, 29, 647 A.2d 731 (1994), our Supreme Court stressed adherence by the trial court to observe the procedures set out in the child support guidelines to facilitate appellate review. Recently, in Bee v. Bee, 79 Conn. App. 783, 787-88, 831 A.2d 833, cert. denied, 266 Conn. 932, 837 A.2d 805 (2003), we concluded that a party who fails to submit a child support guidelines worksheet is precluded from complaining of the alleged failure of the trial court to comply with the guidelines and that we will not review such a claim. The defendant has failed to provide any meaningful distinction between this case and the facts of Bee. Accordingly, we decline to review his claim.

III

The defendant next claims that the court abused its discretion by ordering him to maintain a life insurance policy without placing the cost of such a policy on the record. Specifically, the defendant argues that there is no evidentiary record as to the cost of continuing the insurance policy and, therefore, it was improper for the court to order that he maintain life insurance. We disagree.

In its memorandum of decision, the court ordered the defendant to “designate and maintain the plaintiff as irrevocable beneficiary of his life insurance policy presently in force at his place of employment . . . and/ or any other life insurance policy provided at any future place of employment at a reasonable cost until his obligation to pay alimony terminates. ...”

“An order for life insurance is very often an appropriate and necessary component of a judgment of dissolution of marriage. . . . Such an order, however, must have a reasonable basis in the evidence.” (Citation omitted; internal quotation marks omitted.) Quindazzi v. Quindazzi, 56 Conn. App. 336, 338, 742 A.2d 838 (2000). We have held that it is reversible error for the court to order a party to obtain new or additional life insurance without evidence of the availability and cost of that insurance. See, e.g., Parley v. Parley, supra, 72 Conn. App. 746; Quindazzi v. Quindazzi, supra, 338; Papa v. Papa, supra, 55 Conn. App. 50-52; Lake v. Lake, 49 Conn. App. 89, 92, 712 A.2d 989, cert. denied, 246 Conn. 902, 719 A.2d 1166 (1998); Wolf v. Wolf, 39 Conn. App. 162, 171-72, 664 A.2d 315 (1995). Those cases, however, are distinguishable from the case before us.

The defendant had a life insurance policy in effect at his place of employment, Lawrence and Memorial Hospital in New London, at the time of the dissolution. He was not required to obtain new or additional insurance. “[Ojrders requiring the maintenance of life insurance have been approved on numerous occasions by our courts. . . . [H]owever, it is important to note that the life insurance policy was in existence at the time of the judgment. The trial court in each of these cases, therefore, had available to it all of the information necessary to craft an appropriate order regarding such insurance.” (Citations omitted; internal quotation marks omitted.) Porter v. Porter, 61 Conn. App. 791, 805, 769 A.2d 725 (2001).

In Porter, we stated that “the life insurance . . . was in existence at the time of the judgment. Through his financial affidavit, the defendant represented to the court that he had two existing life insurance policies. The court ordered that the defendant maintain one such policy for the benefit of the children. It changed neither the value nor any other condition of the life insurance that would affect its availability to the defendant. Under those circumstances, we conclude that the court had available to it all of the information necessary to craft an appropriate order regarding the life insurance.” Id., 806; see also Bee v. Bee, supra, 79 Conn. App. 794.

Similarly, in the present case, the defendant represented through his financial affidavit that he possessed a life insurance policy at the time of the dissolution. Thus, we conclude that the court did not abuse its discretion by ordering the defendant to maintain his life insurance policy.

IV

The defendant’s final claim is that the court abused its discretion by awarding the plaintiff $5000 for appellate counsel fees. We disagree.

The following additional facts are necessary for the resolution of that claim. The defendant filed his appeal from the dissolution judgment on June 21, 2002. On October 11, 2002, the plaintiff filed a motion for attorney’s fees and costs to defend the appeal. On November 19, 2002, after a hearing, the court granted the plaintiffs motion and ordered the defendant tó pay $5000. The defendant filed a motion for articulation of the order, and the court filed its articulation on March 24, 2003. In its articulation, the court stated that it considered the financial abilities of the parties and the criteria set forth in the General Statutes. The court determined that the parties had different financial abilities, based primarily on the fact that the plaintiff had an earning capacity of $8 per hour and had not been employed since 1988. The defendant earned more than $200,000 per year as a physician. The court concluded by stating that although the plaintiff would receive certain stocks and deferred compensation, at the present time she did not have ample liquid funds to defend against the appeal. On the basis of her financial affidavit, the court found that she was $43,000 in debt with only $5000 in her checking account, with her sole income being alimony in the amount of $640 per week. The defendant’s motion for further articulation was denied on April 21, 2003.

“Courts ordinarily award counsel fees in divorce cases so that a party . . . may not be deprived of [his or] her rights because of lack of funds. . . . Where, because of other orders, both parties are financially able to pay their own counsel fees they should be permitted to do so. . . . Koizim v. Koizim, 181 Conn. 492, 501, 435 A.2d 1030 (1980). An exception to the rale announced in Koizim is that an award of attorney’s fees is justified even where both parties are financially able to pay their own fees if the failure to make an award would undermine its prior financial orders .... Whether to allow counsel fees [under General Statutes §§ 46b-62 and 46b-82], and if so in what amount, calls for the exercise of judicial discretion. ... An abuse of discretion in granting counsel fees will be found only if [an appellate court] determines that the trial court could not reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Sachs v. Sachs, 60 Conn. App. 337, 347-48, 759 A.2d 510 (2000); see also Lambert v. Donahue, 69 Conn. App. 146, 150, 794 A.2d 547 (2002).

On the basis of our review of the record, we cannot conclude that the court abused its discretion when it determined that the plaintiff lacked sufficient or ample liquid funds to defend the appeal and ordered the defendant to pay $5000 to the plaintiffs attorney.

The judgment is affirmed.

In this opinion the other judges concurred.

       The terms of the trust indicated that the beneficiaries were J, who was not an issue of this marriage, in the amount of 20 percent, M in the amount of 20 percent and S in the amount of 60 percent. Both the beneficiaries and the percentages were made irrevocable.

       The following colloquy occurred between the court and the defendant:
      “The Court: And these payments are going to be in lieu of child support for your children?
      “[The Defendant]: Yes.
      “The Court: All right. And you want the court to accept this agreement and make it an order?
      “[The Defendant]: Yes.”

       The child support guidelines worksheet is set forth in § 46b-215a-5a of the Regulations of Connecticut State Agencies.

       It would appear that on the basis of the financial affidavits submitted, this case falls outside the parameters of the child support guidelines because the parties’ net weekly income exceeds $2500. Section 46b-215a-2a (a) (2) of the Regulations of Connecticut State Agencies provides that “[w]hen the parents’ combined net weekly income exceeds $2,500, child support awards shall be determined on a case-by-case basis, and the current support prescribed at the $2,500 net weekly income level shall be the minimum presumptive amount.” See also Homans v. Homans, Superior Court, judicial district of New London, Docket No. 120749 (April 11, 2003) (“income of the father is above the maximum amount contemplated by the child support guidelines and therefore they do not apply”); Cohen v. Hanley, Superior Court, judicial district of Fairfield, Docket No. 311585 (January 7, 2003) (“[d]ue to the parties’ income, the child support guidelines do not apply”).

       “Pursuant to General Statutes § 46b-62, the trial court ‘may order either spouse ... to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82. . . .’ General Statutes § 46b-82 provides that ‘[i]n determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may malee pursuant to section 46b-81 Issler v. Issler, 50 Conn. App. 58, 70, 716 A.2d 938 (1998), rev’d on other grounds, 250 Conn. 226, 737 A.2d 383 (1999).


author: WEST, J.

text:
    STATE OF CONNECTICUT v. EDDIE LEWIS
    (AC 23502)
    Laveiy, C. X, and Bishop and West, Js.

      Argued March 22
    officially released June 22, 2004

      David B. Rozwaski, special public defender, for the appellant (defendant).

      Elizabeth M. Moseley, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Michael A. Gailor, assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Eddie Lewis, appeals from the judgment of conviction, rendered after a trial to the court, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and threatening in the second degree in violation of General Statutes § 53a-62. On appeal, he claims that the evidence was insufficient to sustain his conviction. We affirm the judgment of the trial court.

The court reasonably could have found the following facts. On January 25, 2001, the defendant entered a Carvel’s store in West Hartford wearing a black leather jacket, a mask and a black hood pulled up over his head. The supervisor on duty immediately recognized him as the same individual who had applied for a job in the store two days prior to the robbery. She later shared that observation with the police. According to the supervisor, the individual who had applied for a job in the store had used the name “Edward Preston” on his application form. Upon recognizing the defendant as “Edward Preston,” the supervisor addressed the defendant by the name “Edward,” to which he responded, “yo.” The defendant then told the supervisor that he was going to rob the store, but added that he hated to do it because he believed her to be “a nice person.” The defendant then approached the supervisor, showed her the butt of a gun, threatened to use the firearm and demanded that she lead him to the store’s safe. He ordered the other employee in the store to follow them to the safe, pulling her by the shirt. That employee testified that the defendant held the gun in his hand. The defendant took money from the store’s safe and cash register and, on exiting the store, advised the two women to “call the police.” After the defendant exited the store, the supervisor attempted to catch him, but failed to do so.

The supervisor later recognized the defendant’s photograph in the March 3, 2001 edition of the Hartford Courant as the man who had robbed the store on January 25, 2001. She brought the newspaper to work and showed the photograph to the other employee, who had worked on the night of the incident. They both agreed that the photograph was that of the man who had robbed the store. The supervisor contacted the police and shared her discoveiy with them.

At trial, the defendant testified that he was an acquaintance of the supervisor’s husband and that the two had met sometime in 2000 to perform a drug transaction. The defendant also testified that in the course of his relationship with the supervisor’s husband, he visited the supervisor’s home and had met her prior to the incident on January 25, 2001. According to the defendant, the supervisor’s husband owed him money and suggested that the defendant go to the Carvel’s when his wife was working and take money from the store in settlement of the debt owed to him. The defendant further testified that he and the supervisor’s husband originally drove to the store on January 24, 2001, to execute the plan. According to the defendant, he left the supervisor’s husband in the car and entered the store alone, but on observing that the store’s manager was present, exchanged some words with the supervisor and left. Contrary to the testimony of the supervisor, the defendant maintained that he never wrote any personal information with respect to a job application.

The defendant testified that he had spent the afternoon of January 25, 2001, at the supervisor’s house with her husband to discuss another attempt at taking the store’s money. He further testified that he never intended to rob or to threaten anyone: “My mindset was that all I was doing was just going to walk in the store and just walk back to where [the supervisor was]. She was there where she gave me the money, and I walked out. My mindset wasn’t going into the establishment and threaten by force or rob the establishment.” According to the defendant, the supervisor’s husband told the defendant that the supervisor had been made aware of the plan on the evening of January 25, 2001, before the event was to occur. The court found the defendant guilty of both offenses and sentenced him to fourteen years of incarceration followed by six years of special parole. This appeal followed.

On appeal, the defendant claims that the evidence was insufficient to sustain his conviction of robbery in the first degree and threatening in the second degree. Specifically, he argues that because this was an “inside job,” he walked into the store without having to display or to threaten the use of a gun and without the intent necessary to establish the robbery offense. Moreover, he argues that there was insufficient evidence to prove that he threatened anyone in the course of the incident, as defined by § 53a-62. We disagree.

“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 the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged [offense], each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . [I]n determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . [A]n inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference.

“Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Moore, 82 Conn. App. 267, 270-71, 843 A.2d 652, cert. denied, 269 Conn. 904, 852 A.2d 734 (2004). “If there is conflicting evidence . . . the fact finder is free to determine which version of the event in question it finds most credible. . . . The determination of a witness’ credibility is the special function of the trial court. This court cannot sift and weigh evidence. . . . Otherwise, [t]his court would then, by way of fact-finding, be required to adjudicate the validity and the reliability of that evidence. At this stage of the proceedings, we are incapable of making those necessary determinations. . . . Thus . . . the testimony was for the trial court to assess and we have no appropriate role at this level in determining which of the various witnesses to credit.” (Citation omitted; internal quotation marks omitted.) State v. Griffin, 78 Conn. App. 646, 651, 828 A.2d 651 (2003).

Section 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” General Statutes § 53a-133 defines robbery as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” Larceny is defined in relevant part by General Statutes § 53a-119 as follows: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ...”

Section 53a-62 (a) provides: “A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury, (2) such person threatens to commit any crime of violence with the intent to terrorize another person, or (3) such person threatens to commit such crime of violence in reckless disregard of the risk of causing such terror.”

Sufficient evidence was adduced at trial, as we have set out, on which the court reasonably could have concluded that the state had proven every element of the charged offenses beyond a reasonable doubt. There was testimony that the defendant entered the store on January 25, 2001, armed with a gun, wearing a mask and a black hooded sweatshirt pulled up over his head. He informed the supervisor that he was robbing the store. Both employees at the store saw the defendant’s gun. According to the supervisor, the defendant showed her the firearm and warned her that “you don’t want to have to die for somebody else’s money . . . .” He demanded that the supervisor lead him to the store’s safe. After being subjected to the defendant’s threat and display of a gun, the two employees complied with his demands. The defendant pulled the second employee by the shirt as all three walked to the back of the store. He then took money from the store’s safe and cash register and promptly left.

With respect to the defendant’s claim of an “inside job,” the court found the following: “There is ... no credible evidence that [the supervisor] was involved. Additionally, there was no credible evidence that the defendant had reason to believe that she was involved or had foreknowledge of the intended larceny and robbery.” There was ample evidence in the record for the court reasonably to conclude that the supervisor was an innocent victim. The court was free to determine which version of events to be most credible. Moreover, the court specifically found that the supervisor and the employee, a high school student, were separate victims of the defendant’s crimes.

After having construed the evidence in the light most favorable to sustaining the verdict, we determine that on those facts and the inferences reasonably drawn from them, the court reasonably could have concluded that the cumulative force of the evidence established the defendant’s guilt of both offenses beyond a reasonable doubt. Accordingly, we uphold the defendant’s conviction of robbery in the first degree and threatening in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant’s full name is Edward Preston Lewis.

       At trial, the supervisor described her exchange with the defendant as follows: “[H]e said something about you don’t want to have to die for somebody else’s money or something like that. And then he said, take me to the safe. So, I was like, you bet, let’s go, and I took him back there to the safe.”