text:
    GEORGE M.
      v. COMMISSIONER OF CORRECTION
    (AC 26961)
    SchaUer, McLachlan and Harper, Js.
    Argued December 4, 2006
    officially released May 8, 2007

      Neal Cone, senior assistant public defender, for the appellant (petitioner).

      Madeline A. Melchionne, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, sad Henri Alexandre, assistant attorney general, for the appellee (respondent).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the defendant, the victims or others through whom the victims’ identities may be ascertained. See General Statutes § 54-86e.

   Opinion

HARPER, J.

The petitioner, George M., appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The petitioner claims that the court improperly upheld the determination of the respondent, the commissioner of correction, that he was not eligible to earn good time credit as provided in General Statutes § 18-7a. We agree with the petitioner and reverse the judgment of the habeas court.

The relevant procedural facts are not in dispute. The state filed an information under docket number CR-96-94223, charging the petitioner with one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) and two counts of risk of injuiy to a child in violation of General Statutes (Rev. to 1993) § 53-21 (1). The state alleged that the conduct underlying the sexual assault charges occurred “on or about diverse dates in 1993 to 1995.” The state alleged that the conduct underlying the risk of injuiy charges occurred “on diverse dates in 1993 through 1995.”

The state filed an information under docket number CR-96-94222, charging the petitioner with one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) and one count of risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21 (1). The state alleged that the conduct underlying these charges occurred “on or about diverse dates in 1993 through 1995.”

The informations were joined for a trial by jury. In May, 1998, the petitioner was convicted of all of the crimes with which he was charged. On June 19, 1998, the trial court sentenced the petitioner to a total effective term of twelve years imprisonment, suspended after eight years, to be followed by three years of probation. This court affirmed the conviction following the petitioner’s direct appeal.

The judgment mittimuses issued following the conviction did not provide a specific date for each offense. Instead, in the spaces designated for the “date of offense” for each offense listed in the mittimuses, the date range “1993-1995” was inscribed. It fell upon the respondent, upon receipt of the mittimuses, to calculate the petitioner’s release date. The respondent selected January 1, 1995, as the offense date in evaluating the petitioner’s eligibility to earn good time credit afforded by § 18-7a. That enactment provides in relevant part that “[a]ny person sentenced to a term of imprisonment for an offense committed on or after July 1, 1983,” may earn good time credit during the term of his imprisonment. General Statutes § 18-7a (c). In contrast, General Statutes § 18-100d provides: “Notwithstanding any other provision of the general statutes, any person convicted of a crime committed on or after October 1,1994, shall be subject to supervision by personnel by the Department of Correction until the expiration of the maximum term or terms for which such person was sentenced.” Thus, a determination of an offense date is significant; good time credit may be earned by prisoners who are imprisoned for offenses that occurred on or after July 1, 1983, but it cannot be earned by prisoners who are imprisoned for offenses that occurred on or after October 1, 1994.

On October 21, 2004, the petitioner filed a motion to correct an illegal sentence. The petitioner sought clarification of his sentence, arguing that the offense dates were ambiguous and potentially subjected him to double jeopardy. On January 12, 2005, the trial court denied the motion.

On February 10, 2005, the petitioner filed a petition for a writ of habeas coipus. The petitioner challenged the respondent’s decision to designate January 1, 1995, as the offense date for determining his eligibility to earn good time credit. The petitioner alleged that, because of the respondent’s decision, he was deprived of his statutory right to earn good time credit and that, if the respondent had afforded him such right, he “would have completed his period of incarceration and been released to probation on or about April, 2004.” The petitioner alleged that his “sentence and sentence calculation are illegal in that the sentence is ambiguous as to the date of offense,” and that, for the purpose of determining his eligibility for good time credit, he “was not convicted of a crime committed on or after October 1,1994 . . . .” (Citation omitted; internal quotation marks omitted.) The petitioner argued that the respondent’s decision violated his right to a juiy trial under the federal and state constitutions because “the respondent is imper-missibly lengthening [his] sentence on the basis of a fact that was never either admitted by [him] or proven to a jury . . . .” (Citation omitted.) The respondent asserted as a defense that the petitioner “was sentenced for offenses which, at least in part, occurred on or after October 1, 1994,” and, therefore, that the petitioner was not entitled to good time credit. The respondent asserted that it had calculated correctly the petitioner’s term of confinement.

Following a hearing during which the habeas court heard testimony from a records specialist employed by the department of correction, the court issued a thorough memorandum of decision denying the petition. In addition to finding the procedural facts set forth previously, the court found: “The victims testified at the criminal trial that the conduct constituting the offense occurred several times a month between 1993 and the summer of 1995. . . . Testimony by a detective involved in the investigation indicated that the offenses occurred between September, 1993, and June, 1995.” (Citation omitted.) The court also found that “[t]he offense date of January 1, 1995, was selected by the respondent to give the petitioner the earliest day of the 1995 calendar year.” The court also noted that “the respondent in good faith attempted to determine the petitioner’s controlling sentence and discharge date.”

The habeas court noted that it was not improper for the state to have alleged that the petitioner committed the offenses at issue during the defined, yet broad, date range alleged in the informations. The court also recognized, however, that there were different reasonable ways in which to interpret the date range for the offenses listed on the mittimuses. Specifically, the date range could represent a time period during which a course of criminal conduct occurred, a period during which multiple instances of criminal conduct occurred or a period during which a single offense occurred, the time of which could not be determined with accuracy. The court stated that, without the benefit of additional information, “a determination of a specific offense date cannot be made with certainty from the [mittimuses themselves].” The court then reasoned, on the basis of its findings, as follows: “A review of the underlying record in this case shows that the date range utilized by the prosecuting authority is most accurately interpreted to mean that multiple instances of criminal conduct occurred in the date range. Since the young victims could not identify specific dates on which the criminal conduct occurred, the state chose to charge the petitioner with offenses that occurred over a demonstrable date range. Additionally, because it was unknown exactly how many instances of the offenses occurred, the state essentially charged the petitioner with one instance of each offense. It is clear and undeniable, however, that the evidence at the underlying criminal trial shows that many instances of the offenses occurred, both prior to and after October 1, 1994. It follows therefrom that the petitioner in fact stands convicted for offenses committed on or after October 1, 1994. Consequently, the petitioner’s controlling sentence is good time ineligible.” (Emphasis in original.)

The court rejected the petitioner’s claim that the rule of lenity applied and that the rule’s application weighed against upholding the respondent’s determination. The court reasoned that the rule of lenity did not apply because there was no ambiguity in the good time statutes or any risk that the petitioner was being subjected to harsher punishment as a result of an ambiguity in the statutes governing his punishment. The court also rejected the petitioner’s claim that the jury did not find that he had committed any offense on or after October 1,1994. Seemingly in contrast with its earlier determinations concerning the jury’s verdict, the court reasoned that “the jury did find beyond a reasonable doubt that all six discrete offenses were, in fact, committed on or after October 1, 1994.” (Emphasis in original.)

The petitioner argues that, on the basis of the jury’s verdict and the evidence presented at trial, there is no basis upon which to conclude that any of the offenses for which he stands convicted necessarily occurred on or after October 1, 1994. Thus, the petitioner claims that the court improperly upheld the respondent’s decision to use January 1,1995, as the offense date. Further, arguing that an ambiguity exists as to how the good time statutes apply to him, the petitioner claims that the rule of lenity applies and that the court should have directed the respondent to deem him eligible to earn good time credit. The respondent argues that the court properly determined that at least some offenses occurred in 1995 and that the court properly rejected the petitioner’s lenity argument because “[ijneligibilty for statutory good time credit is not punishment nor does it subject the petitioner-appellant to double jeopardy.”

The material facts presented to the habeas court are not in dispute and, as a determination of the petitioner’s eligibility for good time credit presents a question of law, our review is plenary. See Tyson v. Commissioner of Correction, 261 Conn. 806, 816, 808 A.2d 653 (2002), cert. denied sub nom. Tyson v. Armstrong, 538 U.S. 1005, 123 S. Ct. 1914, 155 L. Ed. 2d 836 (2003).

The starting point of our analysis is a determination of the petitioner’s offense date, as that date is disposi-tive in determining his eligibility for good time credit. General Statutes § 18-100d unambiguously indicates that a statutory right to earn good time credit is not afforded to persons sentenced to a term of imprisonment for crimes committed on or after October 1,1994. Velez v. Commissioner of Correction, 250 Conn. 536, 544, 738 A.2d 604 (1999). The petitioner does not challenge the state’s use of date ranges in the informations. The habeas court, having reviewed the record of the petitioner’s criminal trial, noted that the young victims were unable to identify specific dates when the petitioner committed the charged offenses, that the victims were unable to specify with precision how many offenses the petitioner committed and that there was evidence from which the jury could find that the petitioner committed offenses both prior to and after October 1, 1994. On the basis of the record, the court interpreted the informations to allege (1) that multiple instances of criminal conduct occurred during the date range and (2) that conduct constituting each offense occurred at some point during the date range. The record amply supports the court’s assessment in this regard.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial. . . . [That] the offense should be described with sufficient definiteness and particularity to apprise the accused of the nature of the charge so he can prepare to meet it at his trial . . . are principles of constitutional law [that] are inveterate and sacrosanct. . . . Moreover, [t]he state has a duty to inform a defendant, within reasonable limits, of the time when the offense charged was alleged to have been committed. The state does not have a duty, however, to disclose information which the state does not have. Neither the sixth amendment [to] the United States constitution nor article first, § 8 of the Connecticut constitution requires that the state choose a particular moment as to the time of an offense when the best information available to the state is imprecise.” (Citations omitted; internal quotation marks omitted.) State v. Vumback, 263 Conn. 215, 22122, 819 A.2d 250 (2003). The state alleged a specific date range during which the offenses were alleged to have been committed. Such a charging technique is not unusual and has been deemed reasonable in cases, such as the present case, in which the victims are of a tender age, there is a continuing nature to the offenses alleged and the capacity of the victims to recall specifics precludes the state from alleging events with exactitude. See, e.g., State v. Hauck, 172 Conn. 140, 150-51, 374 A.2d 150 (1976); State v. Saraceno, 15 Conn. App. 222, 234-37, 545 A.2d 1116, cert. denied, 209 Conn. 823, 824, 552 A.2d 431, 432 (1988).

In the present case, the jury returned a general verdict of guilty on all counts charged. Having reviewed the informations, the evidence presented to the jury, the court’s jury charge and the jury’s general verdict, we conclude that there is no basis, either in law or in logic, upon which one could conclude that the jury found that the petitioner necessarily committed any or all of the charged offenses on or after October 1, 1994. The jury did all that was asked of it; it returned a general verdict and said no more. Neither this court nor any other court has the ability to offer a different explanation of the jury’s verdict without resort to speculation. Hence, we disagree with the habeas court insofar as it concluded that the jury found that all of the offenses were committed on or after October 1, 1994. Simply put, the date of offense for each of the petitioner’s crimes falls within the date ranges alleged in the informations.

Having established what information may be known concerning the offense dates found by the jury, our difficulty in determining the petitioner’s eligibility for good time credit becomes readily apparent. As a matter of law, a person sentenced to a term of imprisonment either is or is not eligible for such credit. We have examined the relevant statutory provisions; General Statutes §§ 18-7a (c) and 18-100d; mindful that “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 16, 912 A.2d 992 (2007). The provisions are seemingly unambiguous and may be harmonized without any difficulty, yet the facts of this case present a latent ambiguity in their application. The dates of offenses underlying the petitioner’s convictions encompass and include dates prior to and following October 1, 1994, the date before which good time credit eligibility is afforded by § 18-7a (c) and on or after that date to which § 18-7a (c) does not apply by operation of § 18-100d.

Our review of the text of the statutes, their relationship to one another and their relationship to other statutes does not shed light on this issue. Further, our subsequent review of the legislative history of these statutes, the circumstances surrounding their enactment, the legislative policies they were designed to implement and their relationship to existing legislation and common-law principles governing the same general subject matter does not clarify their lawful application to the facts of this case. This leads us to the petitioner’s contention that, by operation of the rule of lenity, the ambiguity in the application of the good time statutes should be resolved in his favor.

“It is a fundamental tenet of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. . . . The touchstone of this rule of lenity is statutory ambiguity.” (Citations omitted; internal quotation marks omitted.) State v. Rawls, 198 Conn. 111, 121-22, 502 A.2d 374 (1985). “A penal statute must be construed strictly against the state and liberally in favor of the accused. . . . Criminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . [W]e . . . [reserve] lenity for those situations in which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” (Citations omitted; internal quotation marks omitted.) State v. Sostre, 261 Conn. 111, 120, 802 A.2d 754 (2002). “Lenity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into operation at the end of the process of construing what [the legislature] has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” (Internal quotation marks omitted.) State v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004), quoting Albernaz v. United States, 450 U.S. 333, 342, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981).

Connecticut courts sparingly have applied the rule of lenity, often referred to as the rule of strict construction. The rule of lenity has been applied when an ambiguity exists as to whether a penal statute authorized separate punishments for the simultaneous possession of more than one prohibited item. See, e.g., State v. Ruscoe, 212 Conn. 223, 257-58, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Rawls, supra, 198 Conn. 121-22. It has also been applied when an ambiguity exists as to the scope of conduct described in a criminal statute. See, e.g., State v. Harrell, 238 Conn. 828, 833-39, 681 A.2d 944 (1996) (holding that ambiguity surrounding definition of “murder” in capital felony statute must be construed in defendant’s favor); State v. Hinton, 227 Conn. 301, 317-18, 630 A.2d 593 (1993) (holding that ambiguity as to whether doctrine of transferred intent should be applied to crime of attempt to commit murder must be resolved in defendant’s favor). The rule of lenity applies to both penal statutes and sentencing guidelines. See 3 J. Sutherland, Statutes and Statutory Construction (6th Ed. Singer 2001) § 59.3, p. 131.

In support of his argument that the rule of lenity applies here, the petitioner relies on cases from other jurisdictions in which the rule was applied in the context of sentencing guidelines. See United States v. Johnson, 430 F.3d 383, 399 (6th Cir. 2005), cert. denied, 549 U.S. 829, 127 S. Ct. 48, 166 L. Ed. 2d 49 (2006); Glynn v. State, 868 So. 2d 1280, 1281 (Fla. App. 2004); Cairl v. State, 833 So. 2d 312, 314 (Fla. App. 2003). These cases resolve somewhat analogous issues involving the interpretation of sentencing guidelines. Thus, they are not directly on point. The rule of lenity applies to the interpretation of ambiguous penal statutes, whether they delineate criminal conduct or impose punishment for such conduct. See State v. Sostre, supra, 261 Conn. 120 (“[c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant” [internal quotation marks omitted]); State v. Hinton, supra, 227 Conn. 317 (rule of lenity requires court to resolve “doubts in the enforcement of a penal code against the imposition of a harsher punishment” [internal quotation marks omitted]). We must reach an issue of first impression in this state—whether the rule of lenity applies to good time statutes.

The parties have neither cited nor discussed any decisions from courts in other jurisdictions that have applied the rule of lenity to good time statutes. Our research has revealed that courts in several jurisdictions have applied the rule to such statutes. Notably, in Maryland House of Correction v. Fields, 348 Md. 245, 267, 703 A.2d 167 (1997), the Maryland Court of Appeals utilized the rule of lenity in its interpretation of a good time statute. The court stated: “While [the good time statute] does not establish punishment, it does set forth a significant procedure for shortening the punishment the inmate receives. We see no reason why the rule of lenity should not be utilized . . . .” Id. Later, in Webster v. State, 359 Md. 465, 481, 754 A.2d 1004 (2000), the Maryland Court of Appeals stated: “For the rule of lenity to be applicable, the statute being interpreted need not itself be a penal statute; what is required is that the interpretation given the statute have a significant impact on the sentence that the defendant receives.” See also Stouffer v. Staton, 152 Md. App. 586, 608-609, 833 A.2d 33 (2003). Courts in other jurisdictions also have implicitly viewed good conduct statutes as being in the nature of sentencing statutes and have applied the rule of lenity in their interpretation. See Faulkner v. District Court, 826 P.2d 1277, 1278 (Colo. 1992); State ex rel. Molero v. Blackburn, 379 So. 2d 725, 727 (La. 1979); Cao v. Stalder, 915 So. 2d 851, 857-58 (La. App. 2005); Wounded Shield v. Gunter, 225 Neb. 327, 332, 405 N.W.2d 9 (1987); Personal Restraint of Mahrle, 88 Wash. App. 410, 415, 945 P.2d 1142 (1997).

Our Supreme Court recently reaffirmed the well settled principle that the rule of strict construction applies only to penal statutes. State v. Skakel, 276 Conn. 633, 675-76, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). As relevant, the Skakel court held that statutes of limitation were not penal statutes to which the rule of strict construction applied. Id. In its analysis, the court delineated penal statutes as those that “define criminal conduct, establish the punishment to be imposed or otherwise burden defendants . . . .” Id., 676. The good time statutes at issue neither define criminal conduct nor establish the punishment for a crime. Yet, their application is closely related to punishment, for the right to earn good time credit may directly affect the number of days a person sentenced to a term of imprisonment must actually remain in prison. Because the application of these statutes to the petitioner potentially may reduce his sentence by some amount of time, the statutes reasonably must be said to be related to his punishment for the crimes of which he stands convicted. This being the case, we conclude that the interpretation of these statutes has the potential to burden defendants in such a manner that the statutes are penal in nature. We are persuaded by the analysis employed by courts that have treated good time statutes in this manner and have applied the rule of lenity in their inteipretation.

By resort to the rule of lenity, we will resolve the latent ambiguity in the statutory scheme, brought to light by the unique circumstances of the present case, in the petitioner’s favor. Thus, we conclude that petitioner should be given the benefit of the doubt in terms of his eligibility for good time credit. Applying this rule, we interpret the statutory scheme such that the petitioner is eligible to earn credit in accordance with § 18-7a in such a manner as if the offense date occurred prior to October 1, 1994.

The judgment is reversed and the case is remanded with direction to render judgment determining the petitioner’s release date in accordance with the interpretation of the law set forth in this opinion.

In this opinion the other judges concurred.

       Our research also has revealed that courts in some other jurisdictions have concluded that good time statutes are not penal in nature and have declined to apply the rule of lenity in their interpretation. See, e.g., Sash v. Zenk, 428 F.3d 132, 134-35 (2d Cir. 2005), cert. denied, 549 U.S. 920, 127 S. Ct. 277, 166 L. Ed. 2d 212 (2006); Martinez v. Wendt, Docket No. 3:03-Cv-028b-L (N.D. Tex. October 24, 2003) (unpublished opinion).


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    LORRAINE M. PHILLIPS v. RUSSELL B. PHILLIPS
    (AC 27306)
    Flynn, C. X, and DiPentima and Pellegrino, Js.

      Argued January 8
    officially released May 8, 2007

      Edward Muska, for the appellant (defendant).

      Kevin M. O’Brien, for the appellee (plaintiff).
   Opinion

FLYNN, C. J.

The defendant, Russell B. Phillips, appeals from the judgment of the trial court awarding damages in the amount of $132,863.89 in favor of the plaintiff, Lorraine M. Phillips. On appeal, the defendant claims that the court improperly (1) found against him on his special defense of misrepresentation and (2) construed the term “income” to mean “gross income.” We affirm the judgment of the trial court.

The following facts, as found by the court, are relevant to the issues on appeal. The defendant “had worked with and for his father in his father’s automobile repair and towing business on and off throughout a period of about seventeen years .... In June, 1999, [the defendant] took over the management and operation of the garage, Phillips Repair, owned by his father, David Phillips. David Phillips had suffered health problems and had seriously neglected the business, resulting in unpaid taxes, unpaid creditors and allegedly fraudulent tax filings. The affairs of the garage were in a state of significant disarray, with imminent foreclosure due to long overdue unpaid taxes, closing down of the business, and state officials’ seizure of business records and computers. David Phillips asked [the defendant] to take over the business, and, after he agreed to do so, [the defendant] took immediate steps to negotiate payment arrangements with the numerous creditors. He was able to avoid the impending foreclosure. He used his own money to commence payments on delinquent taxes and overdue debts. He commenced efforts to manage the garage so as to get it running efficiently. [The defendant also] quit his full-time job in order to take over these responsibilities.

“In November, 1999, [the defendant] approached his father and his father’s wife, the plaintiff, Lorraine M. Phillips, indicating to them that he could not continue his efforts unless he had some security that the property would not be sold out from under him. In response thereto, David Phillips and [the plaintiff] agreed to convey the real estate on which the garage was situated to [the defendant] and that was accomplished by means of a warranty deed executed on December 21, 1999. The real estate conveyed includes the lot on which the garage is situated at 212 Hartford Turnpike, Tolland, Connecticut, and an adjoining address—9 Kingsbury Avenue, which shares the septic system and well. In addition to the garage on the 212 Hartford Turnpike address, there is also a six room house on the property (the 9 Kingsbury Avenue address). This parcel of land had been purchased by [the plaintiff] and David Phillips in 1989 for $350,000.

“On December 21,1999, [the plaintiff], David Phillips, and [the defendant] met at the office of attorney [F. Joseph] Paradiso, who had been retained by [the defendant]. Attorney Paradiso had prepared the warranty deed referred to [previously], and [the plaintiff] and David Phillips signed the deed. At this time, there still remained a balance of approximately $200,000 on the mortgage on the garage property, and the parties agreed that, as part of his assumption of the garage responsibilities, [the defendant would take] over the payments of that mortgage obligation. Just as they were concluding their discussion at the lawyer’s office, [the plaintiff] asked [the defendant] if, as part of the deal, he was also planning to continue to pay the second mortgage on her house at 39 Reed Street (apparently, this, as well as many other personal bills, had previously been paid directly through the garage). [The defendant] responded in the affirmative. Either at [the plaintiffs] request or attorney Paradiso’s suggestion that this agreement should be commemorated in writing, attorney Paradiso drafted another document, handwritten on lined yellow paper, signed by the parties, stating: ‘As part consideration for the purchase of 212 Hartford Turnpike Tolland, I, [the defendant] do agree to pay the mortgage at 39 Reed Street, Rockville, CT from the income at Phillips Repair which has a balance of approximately $115,000.’

“[The defendant] continued to run the garage. At the time [the defendant] took over the property, there were tenants in the residence at the 9 Kingsbury Avenue property, but they had not paid rent for some time and an eviction had been commenced by David Phillips. Because of problems with the eviction filings and the tenants’ continued occupancy despite David Phillips’ repeated reporting to [the defendant] that the tenants were leaving ‘this month,’ the property was not vacated for some time and no rent was coming in. After these tenants finally left, [the defendant] did the significant cleaning of the ‘trashed’ premises that was necessary, gutted the house and completed needed [renovations]. Thereafter, the property was rented through [§ 8 of the National Housing Act, 42 U.S.C. § 1437f], and [the defendant] permitted his father to receive those rentals.

“In the fall of 2000, [the defendant] reorganized the business, and changed the status of the garage from ‘Phillips, Repair, Inc.,’ to ‘Phillips Auto Repair, L.L.C.’ David Phillips died on May 21, 2001. . . .

“In approximately September, 2001, [the defendant] stopped paying the mortgage on [the plaintiffs] 39 Reed Street property. At that time [the plaintiff and the defendant] were having a dispute as to the use and ownership of a truck, and they apparently were not able to agree on many other issues. . . . [The plaintiff began making] the mortgage payments on the 39 Reed Street property after [the defendant] stopped making payments. She made the payments, refinanced and then paid off that mortgage.”

The plaintiff sought, among other things, the reimbursement for the mortgage payments she had made on the 39 Reed Street property from October, 2001, as well as the payoff of the mortgage on that property, plus interest. The defendant claimed, via a special defense, that his agreement to pay the mortgage on the 39 Reed Street property was invalid because it had been procured by fraud and misrepresentation in that the plaintiff and David Phillips had told him that the proceeds of that mortgage had been used solely to pay expenses of the garage. Additionally, the defendant had argued that the agreement to pay the mortgage from the “income” of the garage, as stated in the written agreement, referred to the “net income” and not the “gross income” of the garage. The court, concluding that there had been no misrepresentation and that the term “income” referred to “gross income,” found in favor of the plaintiff on this count of the complaint and awarded her $132,863.89. This appeal followed.

I

On appeal, the defendant first claims that the court improperly concluded that there was no misrepresentation that fraudulently induced him to assume the mortgage payment of the 39 Reed Street property. The defendant argues that the evidence demonstrates that he fraudulently was led to believe that the mortgage proceeds from the 39 Reed Street property were used solely for business proposes. He contends that this evidence was not contradicted and that, therefore, the court’s finding that he was not fraudulently induced into paying this mortgage by the misrepresentations of David Phillips and the plaintiff is contrary to the evidence and is clearly erroneous. We are not persuaded.

“Fraud and misrepresentation cannot be easily defined because they can be accomplished in so many different ways. They present, however, issues of fact.” (Internal quotation marks omitted.) Harold Cohn & Co. v. Harco International, LLC, 72 Conn. App. 43, 50-51, 804 A.2d 218, cert. denied, 262 Conn. 903, 810 A.2d 269 (2002). “The party claiming fraud . . . has the burden of proof. . . . Whether that burden has been met is a question of fact that will not be overturned unless it is clearly erroneous. ... A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted) Duplissie v. Devino, 96 Conn. App. 673, 680-81, 902 A.2d 30, cert. denied, 280 Conn. 916, 908 A.2d 536 (2006).

“The essential elements of a cause of action in [fraudulent misrepresentation] are: (1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon the false representation to his injury.” (Internal quotation marks omitted.) Cadle Co. v. Ginsberg, 70 Conn. App. 748, 769, 802 A.2d 137, cert. denied, 262 Conn. 905, 810 A.2d 271 (2002).

In its memorandum of decision, the court specifically found: “The agreement as to payment of the 39 Reed Street property is binding on [the defendant,] the court having made no finding of misrepresentation inducing this obligation.” When requested by the defendant to articulate this finding in more detail, the court offered the following articulation: “The court did not find the evidence of misrepresentation credible.” No further articulation was sought, nor was a motion for review requested.

The defendant claims that he proved all of the elements of his special defense of fraudulent misrepresentation: (1) the plaintiff and David Phillips told him that the proceeds of the 39 Reed Street mortgage solely were used to pay business expenses; (2) this statement was untrue, and the plaintiff and David Phillips knew it was untrue; (3) the plaintiff and David Phillips made this misrepresentation to induce the defendant into agreeing to pay the mortgage; and (4) the defendant signed the agreement because he was told that all of the money had been used for the business. He argues that the only factual dispute on this issue was “whether or not the representations were made that the 39 Reed Street mortgage [had been] used solely to pay business debt.” He then refers to his own trial testimony and argues that his testimony was not contradicted and that, in essence, it, therefore, should be conclusive.

In this case, however, the court found the defendant’s testimony concerning the issue of misrepresentation to be incredible. In reviewing the record, including the trial transcripts, we have noticed several instances in which the defendant provided contradictory testimony on this issue. He also testified that he did not believe his father when his father told him that the proceeds from the mortgage solely had been used to pay expenses of the business. If the defendant did not believe that the proceeds had been used solely for business expenses, then he would not have been justified in relying on such a representation, which he believed to be false, when agreeing to assume the mortgage payments. See Giametti v. Inspections, Inc., 76 Conn. App. 352, 363, 824 A.2d 1 (2003) (one who supplies false information for guidance of others in business transactions subject to liability for pecuniary loss caused to those whom justifiably relied on that information). Reviewing the record, we conclude that the court’s finding that the defendant failed to prove fraudulent misrepresentation has support in the record, and we are not left with a definite and firm conviction that a mistake was made. We conclude, therefore, that the court’s finding was not clearly erroneous.

II

The defendant next claims that the court improperly construed the term “income” in the parties’ agreement to mean “gross income.” He argues that the under the plain meaning of the agreement, he would pay the mortgage from the “net income” of the garage, with no payment being made if there was insufficient “net income” to cover the payment. We disagree.

Initially, we determine the appropriate standard of review, which is disputed by the parties. The defendant argues that the court did not find the agreement ambiguous but that it misconstrued the plain meaning of term “income” to mean “gross income.” He argues that our review is plenary. The plaintiff, on the other hand, argues that the court did find the agreement to be ambiguous and that it looked at the circumstances surrounding the agreement before determining that the parties intended that the term “income” be synonymous with “gross income.” She argues that our review of this factual finding is under the clearly erroneous standard. We agree with the plaintiff.

“In giving meaning to the terms of a contract, the court should construe the agreement as a whole, and its relevant provisions are to be considered together. . . . The contract must be construed to give effect to the intent of the contracting parties. . . . This intent must be determined from the language of the instrument and not from any intention either of the parties may have secretly entertained. . . . [Ijntent ... is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . When the language is clear and unambiguous, however, the contract is to be given effect according to its terms. ... In such a case, no room exists for construction.” (Citations omitted; internal quotation marks omitted.) Greenburg v. Greenburg, 26 Conn. App. 591, 596, 602 A.2d 1056 (1992).

To identify and to apply the appropriate standard of review, we, therefore, must determine initially whether the agreement, specifically the term “income,” was unambiguous. A word is ambiguous when it is “capable of being interpreted by reasonably well-informed persons in either of two or more senses.” (Internal quotation marks omitted.) Connecticut Properties Tri-Town Plaza, LLC v Seymour Cinema, Inc., 84 Conn. App. 569, 577 n.8, 854 A.2d 756 (2004). Both parties offer reasonable interpretations of the term “income” as contained in the agreement. The fact that this term can be interpreted reasonably in two equally compelling ways is evidence, in and of itself, that the provision is ambiguous. See Coscina v. Coscina, 24 Conn. App. 190, 193-94, 587 A.2d 159 (1991).

Because we have concluded that the relevant term of the agreement is ambiguous, “[t]he determination of the intent of the parties to a contract ... is a question of fact subject to review under the clearly erroneous standard.” (Internal quotation marks omitted.) Santana v. Hartford, 94 Conn. App. 445, 465, 894 A.2d 307, cert. granted on other grounds, 279 Conn. 901, 901 A.2d 1223 (2006). “The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed . . . .” (Internal quotation marks omitted.) Jo-Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn. App. 179, 191, 880 A.2d 945 (2005). Having thoroughly reviewed the briefs, record and transcripts, we conclude that the court’s finding was not clearly erroneous.

In this case, the court specifically found: “The agreement clearly specifies that payment is to be made from the income at Phillips Repair. The terms of a contract are to be construed in accord with . . . their popular ordinary meaning unless their context, or the circumstances, show that a special meaning was intended. . . . Income means a gain or recurring benefit measured in money that derives from capital or labor. . . . There is no mention in the agreement of whether the obligation is to be paid from gross or net income and, consequently, there is no guidance from the document itself as to what was intended. However, common experience is that debts are to be paid out of the gross income, as clearly [the defendant] intended to pay the other debts of the business.” Additionally, the court found the defendant’s interpretation to be “disingenuous in that [he] had paid the Reed Street mortgage, without protest, in the years when there was insufficient net income to cover to mortgage.” Reviewing the record before us, we conclude that there is evidence to support the court’s finding, and we are not left with a firm conviction that a mistake has been made. We conclude, therefore, that the court’s finding was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       In his appellate brief, the defendant also claims that the court improperly failed to explain the basis for its conclusion: “There was no analysis of the law of misrepresentation, no explanation of the facts on which this legal conclusion was based, and no explanation of how the evidence supported these facts. ... In short, there is no way for [the appellate] court to know whether the decision of the trial court was legally and logically correct, what the facts were that supported this legal conclusion, and what evidence was used to support the facts.” The defendant requests that we “remand this case to the trial court to make findings on the issue of fraud and to set forth the factual basis of its findings, or, in the alternative, order a new trial if the trial court is unable to do so.”
      It is axiomatic that the appellant has the responsibility of providing this court with an adequate record for review. See Practice Book § 61-10; Naru-manchi v. DeStefano, 89 Conn. App. 807, 815, 875 A.2d 71 (2005). “[W]here a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal of the rectification memorandum to this court via the motion for review.” (Internal quotation marks omitted.) Highgate Condominium Assn. v. Watertown Fire District, 210 Conn. 6, 21, 553 A.2d 1126 (1989). “[P]roper utilization of the motion for articulation [and the motion for review] serves to dispel. . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . The burden of securing an adequate record for appellate review of an issue . . . rests with the . . . appellant. . . . Because it is the . . . appellant’s responsibility to provide this court with an adequate record for review ... we will not remand a case to correct a deficiency the . . . appellant should have remedied.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 510, 827 A.2d 729 (2003). In this case, although recognizing the limited usefulness of the court’s articulation of this matter, the defendant did not file a motion for further articulation with the trial court, nor did he file a motion for review with this court pursuant to Practice Book § 66-7. Concluding, however, that the court set forth sufficient findings and conclusions, we will review the claim on the basis of the record before us.


author: HARPER, J.

text:
    STATE OF CONNECTICUT v. ANGELOPE BENNETT
    (AC 26789)
    Gruendel, Harper and Berdon, Js.

      Argued January 10
    officially released March 29, 2007

      Heather A. Abel, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, Jr., senior assistant state’s attorney, for the appellee (state).

       March 29,2007, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

HARPER, J.

The defendant, Angelope Bennett, appeals from the judgments of the trial court revoking his probation and committing him to the custody of the commissioner of correction for three years. The defendant claims that the court improperly denied his motion to suppress certain evidence presented at the violation of probation hearing and that the evidence did not support the court’s factual findings. We hold that the evidence did not support the court’s findings and reverse the judgment of the trial court.*

In 2000, the defendant was convicted, under separate informations, of larceny in the second degree and burglary in the third degree. The trial court sentenced the defendant to a total effective term of incarceration of ten years, execution suspended after two years, and five years probation. One of the terms of the defendant’s probation was the standard prohibition against violating any criminal law of the state. On May 25, 2004, during his probationary period, the defendant was arrested and charged with possessing a weapon in a motor vehicle in violation of General Statutes § 29-38, possessing burglar’s tools in violation of General Statutes § 53a-106 and possessing drug paraphernalia in violation of General Statutes § 21a-267 (a). On the basis of those charges, the state charged the defendant with violating the terms of his probation in violation of General Statutes § 53a-32.

At the violation of probation hearing, the state presented evidence that, in the early morning hours of May 25, 2004, the defendant was operating a motor vehicle in Darien. A police officer with the Darien police department, on patrol, stopped the defendant’s vehicle after observing that one of the vehicle’s headlamps was not illuminated. While conversing with the defendant, the officer observed a wooden baseball bat and a crowbar inside the vehicle. The officer arrested the defendant for possessing a weapon in a motor vehicle. A search of the defendant by the officer yielded a small device of a type commonly used to smoke crack cocaine, and burnt residue on the device tested positive as cocaine. The defendant had hidden the device in his clothing and asked the officer not to mention its discovery to members of his family. A later search of the defendant’s vehicle yielded a small digital scale, an empty purse, two flat head screwdrivers, a Phillips screwdriver, an adjustable wrench, a glove and a small canvas bag with holes cut into it.

At the end of the adjudicative phase of the violation of probation hearing, the court orally delivered its ruling. The court found that, on the basis of the officer’s discovery of the bat and crowbar, the defendant possessed dangerous weapons in his motor vehicle on May 25, 2004. The court then stated: “Therefore, the court will find the evidence is sufficient and allow it to find by a preponderance of the evidence that the defendant was engaged in criminal activity at the time of his stop. And the court will find that he’s in violation of probation as to the condition of probation that he . . . not engage in any criminal activity.” At the end of the dispositional phase of the hearing, the court determined that the beneficial purposes of probation were no longer being served, revoked the defendant’s probation and committed him to the custody of the commissioner of correction for three years. This appeal followed.

The defendant claims that the evidence did not support a finding that he possessed burglar’s tools or a weapon in a motor vehicle. In its brief, the state concedes that the evidence did not support such findings. We agree that the evidence was not sufficient to sustain a finding of violation of probation on these grounds.

The defendant argues that the judgments cannot be sustained on the alternate factual ground on which the court might have based its decision, which is that he possessed drug paraphernalia, because the court did not make any findings in this regard. The state acknowledges that the court did not make any findings with regai'd to drug paraphernalia but argues that “[t]he trial court’s lack of comment on the state’s uncontroverted proof that the defendant had committed the crime of possession of drug paraphernalia, and also had possessed illegal drugs while on probation, certainly does not mean that there was insufficient evidence of the same.”

The defendant was entitled to have issues of fact resolved by the trial court. The court was required to state its decision, either orally or in writing, and its decision was to “encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .” Practice Book § 6-1. The issue before the court was whether the defendant had violated the criminal laws as alleged by the state and, thus, had violated his probation in violation of § 53a-32. The court set forth its legal conclusion that “the defendant was engaged in criminal conduct at the time of his stop” in violation of his probation. The court set forth the necessary factual basis for this conclusion, stating that the defendant possessed weapons, in the form of a bat and a crowbar, in his motor vehicle. The court did not make any express or implied findings concerning the defendant’s possession of drug paraphernalia or drugs.

Despite the fact that the state alleged and presented what it characterizes as compelling evidence that the defendant possessed drug paraphernalia, it cannot be disputed that the court did not rely on this evidence when it set forth the factual basis for its judgments. This corut cannot try the factual issues related to possession of drug paraphernalia, and for this court to determine that such factual issues were resolved in favor of the state by the trial court would be entirely speculative. See State v. Hunter, 99 Conn. App. 736, 744, 916 A.2d 63 (2007) (“[i]t is not the province of this court to speculate as to the factual and legal determinations made by the trial court”). Thus, we cannot sustain the judgments on the basis of factual grounds that were not addressed by the trial court. We reject the state’s assertion to the contrary.

The state argues that the defendant “has failed in his burden to provide this court with an adequate record for review” in that he did not seek an articulation of the court’s decision to determine whether the court found that he possessed drug paraphernalia. It is well settled that an appellant must take the steps necessary to provide this court with an adequate record for review of the claims he has raised on appeal. See State v. Canales, 281 Conn. 572, 583, 916 A.2d 767 (2007). “The proper procedure by which an appellant may ask the trial court to provide the factual and legal basis for a ruling, or to address a matter that it has overlooked in its decision, is to file a motion for articulation. See Practice Book § 66-5. A motion seeking articulation is appropriate in cases in which the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling . . . [and it is the proper procedural vehicle] to ask the trial judge to rule on an overlooked matter.” (Internal quotation marks omitted.) Murphy v. Zoning Board of Appeals, 86 Conn. App. 147, 159, 860 A.2d 764 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1080 (2005).

As our earlier discussion reflects, we are satisfied that the defendant presented this court with an adequate record for review of the claim he raised on appeal. The defendant claims that the evidence did not support the specific findings made by the court and, thus, that the judgments should be reversed. To prevail on appeal, it was not necessary for the defendant to challenge findings that the court did not make and on which it did not base its judgments. The court did not overlook any of the matters before it; it plainly determined that the defendant had violated the terms of his probation and set forth the factual and legal basis for that conclusion. To the extent that the state implicitly suggests otherwise, we observe that the court’s decision was not incomplete because it did not express findings concerning all of the evidence presented or all of the alternate factual grounds on which the state based its case. It was the province of the court, as the finder of fact, to assess the evidence and to determine which factual grounds supported its decision. It plainly stated such grounds in its ruling.

Additionally, the state argues that, if any findings related to possession of drug paraphernalia are necessary to “the proper disposition” of this case, we may remand the matter to the trial court for an articulation related thereto. “Where the factual or legal basis of a trial court’s decision is unclear, ambiguous, or incomplete or the court has failed to state any basis for its decision, this court may remand the case, pursuant to Practice Book § 60-5, for further articulation of the basis of the trial court’s decision.” Housing Authority v. Charter Oak Terrace/Rice Heights Health Center, Inc., 82 Conn. App. 18, 24, 842 A.2d 601 (2004). We will not take such steps here because, as esqdained previously, the factual and legal basis of the court’s decision is not unclear, ambiguous or incomplete. The court provided the factual and legal basis of its decision. The state concedes that the factual basis set forth by the court was not supported by the evidence. The state was afforded a full and fair opportunity to present evidence and to persuade the court that one or more factual grounds existed to support its case. The fact that the court chose to rely on some, but not all, of the factual grounds presented by the state reflects an exercise of the court’s discretion, as fact finder, to fashion its ruling adequately in a manner of its choosing. It does not reflect that the record is in any manner incomplete.

The evidence does not support the findings on which the court based its decision. Accordingly, we must reverse the judgments of the trial court.

The judgments are reversed and the case is remanded with direction to render judgments for the defendant.

In this opinion the other judges concurred.

       In light of our holding, we do not address the defendant’s claim that the court improperly denied his motion to suppress evidence.

       We commend the state for its forthrightness with regard to this issue. Its concession, correct in law, served the ends of justice and obviated the need for this court to address at length these sufficiency of the evidence claims.

       In its brief, the state claimed that this appeal was moot. The state withdrew this claim prior to the time of argument before this court, and we therefore do not address that claim.


author: DiPENTIMA, J.

text:
    AMERICAN DIAMOND EXCHANGE, INC. v. SCOTT ALPERT ET AL.
    (AC 25768)
    Bishop, DiPentima and Peters, Js.

      Argued October 11, 2006
    officially released May 8, 2007

      Steven D. Ecker, with whom, on the brief, was Sarah A. L. Merriam, for the appellant (defendant Jurgita Kar-obkaite).

      William F. Gallagher, with whom, on the brief, were Hugh D. Hughes and David R. Babbitz, for the appel-lee (plaintiff).
   Opinion

DiPENTIMA, J.

In this appeal, we primarily consider whether the trial court properly concluded that all of the elements had been established for the plaintiffs successful action against the defendant for tortious interference with business expectancy and civil conspiracy and whether it made a proper award of damages.

The plaintiff, American Diamond Exchange, Inc., brought this tort action against the defendant Jurgita Karobkaite and her former husband, Scott Alpert. Following a trial to the court, the defendant was found liable for tortious interference with the plaintiffs business expectancy and civil conspiracy, but the court held that a third count alleging the defendant’s violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., had not been proven. The court awarded the plaintiff damages in the amount of $118,000.

On appeal, the defendant claims that the court (1) improperly concluded that the plaintiff had proven all of the elements of tortious interference with a business expectancy, (2) improperly concluded that the plaintiff had proven all of the elements of civil conspiracy, (3) made an award of damages that is not supported by law or the facts and (4) applied an improper burden of proof to the tortious interference claim. We agree with the defendant that the court’s award of damages was legally improper and not supported by the evidence. We are not persuaded by the defendant’s remaining claims. We therefore reverse the judgment of the trial court only as it pertains to damages and affirm the judgment in all other respects.

The record reveals the following facts and procedural history. The defendant came to the United States in 1996, when she was twenty years old. She married Alpert in September of the following year. Approximately one month later, Alpert was hired as a retail sales clerk for the plaintiff, a corporation that buys and sells diamonds and other jewelry, located in New Haven. Within the first few months of his employment, Alpert became an estate buyer for the plaintiff.

Alpert testified that throughout his employment, he diverted the plaintiffs customers so that he personally could purchase their jewelry. Alpert would tell the customers that his employer was not interested in the piece that they were selling but that he would like to buy it for the defendant’s upcoming birthday or anniversary. Alpert also testified that he diverted customers who had signed consignment agreements with the plaintiff. He would tell those customers that their piece was not moving as quickly as he had hoped but that he personally was willing to purchase it for the defendant. He would typically set up an off-premises meeting to complete the transaction. Alpert would then resell the jewelry at the wholesale level, often in New York City or in other locations by mail or courier service. His selling price for an item usually was 45 to 50 percent higher than what he paid for its purchase. Alpert also admitted to stealing several diamonds from the plaintiff.

Alpert testified that the defendant was fully aware of his diversion scheme from its inception and was a willing participant who shared in the profits. Bank records revealed that the defendant maintained a joint checking account with Alpert throughout the years in question. Checks were drawn on this account to pay for the purchase of jewelry from diverted customers, and deposits were made into this account when those items were resold. Alpert provided several examples of such transactions, and copies of the corresponding check or deposit slip were admitted into evidence. Several of those deposits were for large sums, including a bank check made out to the defendant in the amount of $28,000 from Rich Schatz, Inc., a wholesale buyer to whom Alpert had sold diamonds.

The defendant was present when Alpert made transactions with diverted customers on numerous occasions, her signature is on some of the checks used to purchase the jewelry, and she endorsed checks from the wholesale purchasers. The defendant also sold a diamond to Nagi Jewelers for which she received a check payable to herself in the amount of $828, which she cashed.

In the year 2000, approximately $195,000 was deposited into the defendant’s and Alpert’s joint account. The defendant also maintained a savings account, into which approximately $136,000 was deposited. During this time, the defendant never earned more than $500 a week, and Alpert’s salary was never greater than $96,000 a year. No additional income was listed on their joint tax returns for any of the years involved.

Approximately one year prior to the termination of his employment, Alpert missed a meeting he had arranged with a diverted customer, and the customer called the plaintiffs store looking for him. Alpert was confronted by David Schnee, the president of the plaintiff. Alpert promised Schnee that he would not conduct any business outside the store. At about this time, Alpert admitted to the defendant that he was addicted to crack cocaine. Shortly thereafter, Alpert moved out of the condominium that he owned with the defendant. Despite their separation, the deposits to and withdrawals from the joint checking account continued.

Approximately one year later, in April, 2002, Schnee hired a private investigator to set up a sting operation that would catch Alpert purchasing jewelry from a diverted customer. Following the successful operation, Alpert confessed all the details of his scheme to Schnee, who terminated his employment immediately. The defendant and Alpert were subsequently divorced in early 2003.

The plaintiff brought suit against the defendant and Alpert in a six count complaint, alleging as to both of them tortious interference with a business relationship or expectancy, violations of CUTPA, and civil conspiracy. At trial, Alpert testified before the court as to the veracity of all of the allegations in the complaint. The defendant, however, maintained throughout the trial that she did not know anything about Alpert’s activities. A judgment of default was entered against Alpert on all counts. The court found the defendant liable for tortious interference with a business relationship or expectancy and civil conspiracy but found that she had not violated CUTPA. The court awarded the plaintiff $118,000 in damages. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant’s first claim is that the court improperly held the defendant liable for tortious interference with the plaintiffs business relationship or expectancy. We are not persuaded by any of the defendant’s arguments in support of this claim.

The defendant’s claim is comprised of both legal and factual arguments. The defendant’s arguments concerning the legal standard that the court applied are entitled to our plenary review. See Cable v. Bic Corp., 270 Conn. 433, 440, 854 A.2d 1057 (2004). Under this standard, we determine “whether the court’s conclusions were legally and logically correct and whether they are supported by the facts appearing in the record.” (Internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 406, 867 A.2d 841 (2005). The defendant’s arguments concerning the evidence presented in support of that legal standard, however, are subject to our established and rigorous standard for sufficiency of evidence claims. For such issues, “[w]e must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the [court] could not reasonably and legally have reached [its] conclusion. . . . We apply this familiar and deferential scope of review, however, in light of the equally familiar principle that the plaintiffs] must produce sufficient evidence to remove the [court]’s function of examining inferences and finding facts from the realm of speculation.” (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 440-41, 899 A.2d 563 (2006).

A cause of action sounding in tort for interference with another’s business practices and opportunities has long been recognized in Connecticut. The law in this state “forbids unjustifiable interferences with any man’s right to pursue his lawful business or occupation and to secure to himself the earnings of his industry. Full, fair and free competition is necessary to the economic life of a community, but under its guise, no man can by unlawful means prevent another from obtaining the fruits of his labor.” (Internal quotation marks omitted.) Selby v. Pelletier, 1 Conn. App. 320, 323, 472 A.2d 1285 (1984). A successful action for tortious interference with business expectancies requires the satisfaction of three elements: “(1) a business relationship between the plaintiff and another party; (2) the defendant’s intentional interference with the business relationship while knowing of the relationship; and (3) as a result of the interference, the plaintiff suffers actual loss.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27, 761 A.2d 1268 (2000).

A

The defendant first argues that she cannot be held liable for tortious interference with the plaintiffs business expectancies because nothing that she was found to have done can be considered independently tortious conduct. We disagree.

Our case law has recognized that not every act that disturbs a business expectancy is actionable. “[A] claim is made out [only] when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself.” (Internal quotation marks omitted.) Downes-Patterson Corp. v. First National Supermarkets, Inc., 64 Conn. App. 417, 429, 780 A.2d 967, cert. granted on other grounds, 258 Conn. 917, 782 A.2d 1242 (2001) (appeal dismissed June 25, 2002). Accordingly, the plaintiff must plead and prove at least some improper motive or improper means. Id. “[F]or a plaintiff successfully to prosecute such an action it must prove that . . . the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously.” (Internal quotation marks omitted.) Id. In the context of a tortious interference claim, the term malice is meant “not in the sense of ill will, but intentional interference without justification. ... In other words, the [plaintiff] bears the burden of alleging and proving lack of justification on the part of the [defendant].” (Internal quotation marks omitted.) Id.; see also 4 Restatement (Second), Torts § 766B (1979) (test for intentional interference with prospective contractual relation is whether actor’s behavior improper). Our Supreme Court has recognized that the legal theory of tortious interference with a business expectancy encompasses a broad range of behavior. Blake v. Levy, 191 Conn. 257, 261, 464 A.2d 52 (1983).

There is ample evidence in the record from which the court could have found that the defendant had an improper motive. In its memorandum of decision, the court concluded that the defendant was “a knowing and willing participant in Alpert’s schemes and reaped some profits therefrom.” These schemes admittedly were advanced purely for the financial betterment of Alpert and the defendant, at the expense of the plaintiff. Although the defendant protests that she could not have had an improper motive because she was not aware of the improper means that Alpert had employed, the court specifically found otherwise.

There is also an abundance of evidence from which the court could have found that the defendant had herself employed improper means to interfere with the plaintiffs business expectancy. The court specifically noted several aspects of her involvement: managing the checking account from which the money was withdrawn to pay for jewelry bought from diverted customers and to which the profits were deposited when those purchases were resold at the wholesale level, accompanying the defendant on a number of these transactions; signing and endorsing checks, and depositing large sums of money into a private savings account.

The defendant urges us to ignore the court’s inventory of factors proving her specific involvement because they took place prior to the spring of 2001, which is the time the court found that the defendant became an active participant in Alpert’s schemes. According to the defendant, any findings of activities before that date cannot be used as evidence of her knowing participation. We disagree. The court used the spring of 2001 as the date after which it found the defendant’s claim of ignorance to be unfathomable. The court therefore used this point in time as that from which it would hold her accountable. Its choice of time frame for liability purposes does not in any way negate its findings of the defendant’s participation in the events prior to that date, for it is this very participation that furthered the court toward its ultimate determination of knowledge and participation.

We are equally unpersuaded by the defendant’s attempt to isolate each of her actions and to claim them individually to be innocuous. The court made a specific finding that she was aware of the scheme that these actions furthered. We do not ignore the intent and circumstances surrounding such actions. Furthermore, as we have often recognized, “[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes [liability] in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Sam, 98 Conn. App. 13, 33, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006).

Finally, the defendant directs our attention to Holler v. Buckley Broadcasting Corp., 47 Conn. App. 764, 767, 706 A.2d 1379 (1998). In that case, one of the defendants had confronted his manager with the plaintiffs breach of the employee confidentiality agreement, and, as a result, the plaintiffs employment was terminated. We held that the plaintiff did not allege an improper motive or means. We find Holler distinguishable. Whereas in the present case, the defendant and Alpert were the sole cause of the plaintiffs loss, in Holler, the plaintiffs own wrongdoing caused his employment to be terminated. Moreover, in Holler, the defendant’s actions can be justified by obviously proper motives, whereas the defendant before us has none. See, e.g., Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 734 A.2d 112 (1999) (defendant supervisor justified in discharging employee with long record of deficient performance); PAR Painting, Inc. v. Greenhome & O’Mara, Inc., 61 Conn. App. 317, 325-26, 763 A.2d 1078 (defendant inspector justified in criticizing plaintiffs work performance because it was in nature of defendant’s function and plaintiffs work was inadequate), cert. denied, 255 Conn. 951, 770 A.2d 31 (2001); Biro v. Hirsch, 62 Conn. App. 11, 771 A.2d 129 (assistance in retaining counsel to commence legal action justified), cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).

We conclude, on the basis of the record before us, that the court found the requisite improper conduct on the defendant’s part.

B

The defendant next argues that the court improperly failed to require that the plaintiff prove her knowledge of the relationship between the plaintiff and its customers. A review of the record before us reveals that the defendant’s argument is unavailing.

It is apparent from the court’s written memorandum of decision that it considered the extent of the defendant’s knowledge of Alpert’s activities. The court recognized that in the pleadings and throughout the trial, the defendant denied having any knowledge of Alpert’s activities. The court, however, explicitly rejected the defendant’s account, finding that it “strain[ed] credulity . . . .” Instead, it found that she was fully aware by the spring of 2001 that Alpert was diverting business from his employer. The record reflects that this was the time that Alpert was confronted by his employer about his diversions and was specifically warned not to engage in this conduct again. Because the court explicitly found that Alpert informed her of this scheme, which involved diverting customers, she must have been aware of the business relationship between the plaintiff and these customers.

Having determined that the court properly required proof of the knowledge element, we turn now to the defendant’s additional argument that there was insufficient evidence presented to satisfy that element. As we have already stated, there was an abundance of evidence in the record from which the court could have determined that the defendant was a knowing participant in Alpert’s schemes to divert customers from the plaintiff. The court made the specific finding that Alpert informed the defendant about the source of the income, and that the withdrawals and deposits continued to their joint checking account after this time.

The defendant takes issue with the fact that this evidence is based, at least in part, on Alpert’s testimony, despite the court’s statement that he lacked credibility. The defendant, however, takes the court’s statement out of context and therefore misinterprets its meaning. In its memorandum of decision, the court stated: “If it were simply Alpert’s testimony against [the defendant], the plaintiff would not prevail against her, because Alpert, an admitted thief, drug addict, gambler and liar, has absolutely no credibility. However, there is credible evidence before the court linking [the defendant] to her former husband’s illegal schemes against his former employer.” The court then went on to enumerate the factors indicating the defendant’s involvement in the scheme. Although the court questioned Alpert’s general credibility because of his personal history, it conditioned the truth of that initial assumption on a lack of corroborating evidence. The court considered the defendant’s testimony and found her to lack credibility as well. It specifically wrote: “Her self portrayal as an innocent victim of her [former] husband’s perfidy was, in short, not credible.” Thus, the court ultimately concluded that the evidence before it corroborated Alpert’s testimony that the defendant was a knowing participant in his scheme. The court was well within its discretion to so conclude.

This court, as well as our Supreme Court, has repeatedly stated in countless forms the basic evidentiary tenet that the determination of a witness’ credibility is the special function of the trier of fact. See Smith v. Smith, 183 Conn. 121, 123, 438 A.2d842 (1981) (“[nothing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded their testimony” [internal quotation marks omitted]). We have also recognized that there are often inconsistencies in witness testimony and have left the resolution of those issues to the fact finder as well. See, e.g., State v. Jones, 92 Conn. App. 1, 11, 882 A.2d 1277, (2005). The trier need not accept the entire testimony of one party part and parcel but, rather, is entitled to credit some portions of a witness’ testimony and discredit others. State v. Hoyeson, 154 Conn. 302, 305, 224 A.2d 735 (1966). We have no appropriate role at this level in determining which of the various witnesses to credit. See State v. Nowell, 262 Conn. 686, 695-96, 817 A.2d 76 (2003)

Because we have left such factual determinations in the province of the trial court “where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985); Malkin v. United States, 243 F.3d 120, 124 (2d Cir.), cert. denied, 534 U.S. 821, 122 S. Ct. 55, 151 L. Ed. 2d 24 (2001). We conclude that there was ample evidence in the record from which the court could have reached its decision as to the defendant’s knowledge of the business relationship.

C

The defendant’s final argument with respect to this claim is that there was no evidence that the plaintiff sustained an actual loss as a result of the defendant’s conduct, which is an essential element of the tort. The defendant’s argument lacks merit.

“[I]t is an essential element of the tort of unlawful interference with business relations that the plaintiff suffered actual loss.” (Internal quotation marks omitted.) DiNapoli v. Cooke, 43 Conn. App. 419, 426, 682 A.2d 603, cert. denied, 239 Conn. 951, 686 A.2d 124 (1996), cert. denied, 520 U.S. 1213, 117 S. Ct. 1699, 137 L. Ed. 2d 825 (1997). Thus, it must “appear that, except for the tortious interference of the defendant, there was a reasonable probability that the plaintiff would have entered into a contract or made a profit.” Goldman v. Feinberg, 130 Conn. 671, 675, 37 A.2d 355 (1944). Such a determination is a question for the trier of fact, as is the question of whether the plaintiff has suffered an “actualloss.” (Internal quotation marks omitted.) DiNapoli v. Cooke, supra, 428. “If the question is whether the plaintiff would have succeeded in attaining a prospective business transaction in the absence of [the] defendant’s interference, the court may, in determining whether the proof meets the requirement of reasonable certainty, give due weight to the fact that the question was made hypothetical by the very wrong of the defendant.” (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 34 (jury verdict in plaintiffs favor on tortious interference claim equivalent of finding plaintiff suffered actual loss to support award of punitive damages); see also DiNa-poli v. Cooke, supra, 428 (plaintiff established actual loss for defendant’s liability in tortious interference claim even if court could not calculate precise amount of that loss). Accordingly, “an award of compensatory damages is not necessary to establish a cause of action for tortious interference as long as there is a finding of actual loss . . . .” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 34.

The defendant makes two assertions with respect to this argument. She first contends that there is no evidence other than Alpert’s testimony that the diverted customers would have transacted business with the plaintiff but for Alpert’s actions. As we have already explained, the court was within its discretion to credit the testimony of Alpert that his actions caused a loss. Alpert admitted that all of his customers were people who had entered the plaintiff’s retail location with the intention of selling an item of jewelry. It was Alpert who encouraged them to leave the premises and conduct business with him instead. In order to persuade them to do so, he would mislead them into thinking that their business prospects with the plaintiff were inauspicious, either by saying that the plaintiff was not interested in the item or by saying that a consignment item was not selling. Alpert further testified that many of these customers had signed a contract with the plaintiff, which Alpert would alter or remove from the store. This was corroborated by Schnee’s testimony that on the night of the sting, he found many consignment records in Alpert’s car. We conclude that the plaintiff sufficiently demonstrated a reasonable probability that the diverted customers would have conducted business with the plaintiff but for the tortious interference. See Goldman v. Feinberg, supra, 130 Conn. 675 (requiring only that plaintiff demonstrate reasonable probability of business relationship, not definite one).

The defendant’s second contention is that the plaintiff failed to prove that she proximately caused its loss. Specifically, she argues that the interference with business relations was completed as soon as the customer ended his or her relationship with the plaintiff, whereas all of the actions the court found she committed occurred after Alpert had already diverted the plaintiffs customers. The defendant again attempts to extract each of her actions from the context in which they were committed. The court found her to be an active participant in the ongoing scheme. Her actions helped to perpetuate the diversion of the plaintiffs customers. We cannot accept the defendant’s somewhat factitious logic that draws artificial lines between individual transactions within an overarching plan. We therefore conclude that the plaintiff sufficiently proved that its loss was proximately caused by the defendant.

II

The defendant next claims that the court improperly concluded that she had committed civil conspiracy. The defendant primarily argues that the plaintiff failed to prove that she had combined with Alpert with the intention of engaging in any unlawful conduct, which is an essential element of the cause of action. We disagree.

The elements of a civil action for conspiracy are: “(1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.” (Internal quotation marks omitted.) Marshak v. Marshak, 226 Conn. 652, 665, 628 A.2d 964 (1993), overruled on other grounds by State v. Vakilza-den, 251 Conn. 656, 666, 742 A.2d 767 (1999) (en banc). Thus, it is an essential element of the tort that the alleged conspirators have combined “to do a criminal act or an unlawful act or a lawful act by criminal or unlawful means.” (Internal quotation marks omitted.) Jones v. O’Connell, 189 Conn. 648, 662, 458 A.2d 355 (1983).

In the criminal context, we have recognized that “it is not necessary to establish that the defendant and his coconspirators signed papers, shook hands, or uttered the words we have an agreement. . . . [T]he requisite agreement or confederation may be inferred from proof of the separate acts of the individuals accused as coconspirators and from the circumstances surrounding the commission of these acts.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, 276 Conn. 452, 462, 886 A.2d 777 (2005). The reason for that policy, as we have explained, is that “conspiracies, by then-very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence.” (Internal quotation marks omitted.) State v. Leggett, 94 Conn. App. 392, 400, 892 A.2d 1000, cert. denied, 278 Conn. 911, 899 A.2d 39 (2006). Our Supreme Court has instructed that circumstantial evidence has the same probative force as direct evidence. State v. Farnum, 275 Conn. 26, 36, 878 A.2d 1095 (2005).

That logic applies with equal force to civil conspiracies. In this case, the court specifically found that in the spring of 2001, Alpert informed the defendant that he was diverting customers from the plaintiff, after which the defendant did not stop activity in their joint account. There was substantial evidence in the record from which the court could have reached those findings and concluded that the defendant combined with Alpert to divert the customers.

The defendant asserts that the court ignores “undisputed” evidence that Alpert had an independent stock of jewelry and that he ran a legitimate side business, evidence that would support the defendant’s claim of innocence. The defendant is incorrect that this fact is undisputed; in fact, it was strongly contested by the plaintiff. That a fact was testified to does not make it an admitted or undisputed fact. Stoner v. Stoner, 163 Conn. 345, 347, 307 A.2d 146 (1972). Moreover, the court made no mention of Alpert’s “legitimate” side business in its memorandum of decision. Given that the court held the defendant liable, and its memorandum of decision listed only factors supporting that liability, we can infer from its silence as to the side business that it did not credit the defendant’s testimony on this point. See Giametti v. Inspections, Inc., 76 Conn. App. 352, 364, 824 A.2d 1 (2003).

Second, the fact that there is support in the record for a different conclusion is irrelevant at this stage in the judicial process. On appeal, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. Nashid v. Andrawis, 83 Conn. App. 115, 118, 847 A.2d 1098, cert. denied, 270 Conn. 912, 853 A.2d 528 (2004). We review the totality of the evidence, including reasonable inferences therefrom, to determine whether it could support the trier’s decision. Considine v. Waterbury, 279 Conn. 830, 858, 905 A.2d 70 (2006). We conclude that it does.

The defendant’s final argument in support of this claim is that the court improperly shifted the burden of proof from the plaintiff onto her to prove that she had an innocent state of mind. The defendant bases this argument on the court’s finding that her self portrayal as an innocent victim was not credible. Contrary to the defendant’s interpretation, we read this statement as the court’s having made a credibility determination with respect to the defendant. We do not read it as the court’s determination that she failed to prove her innocence. It is clearly within the function of the trial court to make such credibility determinations as part of its overall assessment of the plaintiffs claim. See Boccanfuso v. Conner, 89 Conn. App. 260, 292, 873 A.2d 208 (“[t]he trier is free to accept or reject, in whole or in part, the testimony offered by either party” [internal quotation marks omitted]), cert. denied, 275 Conn. 905, 882 A.2d 668 (2005).

Ill

The defendant next claims that the court’s award of $118,000 in damages was legally improper and not supported by the evidence. We agree with the defendant.

We accord plenary review to the court’s legal basis for its damages award. See First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 603, 724 A.2d 497 (1999). The court’s calculation under that legal basis is a question of fact, which we review under the clearly erroneous standard. Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 28, 664 A.2d 719 (1995). In its memorandum of decision, the court explained its award of damages as follows: “It is difficult to calculate the amount of damages sustained by the plaintiff. There were theories running from $100,000 or so to nearer to $400,000. The most reasonable calculation, however, is $118,000, representing a ‘profit’ by reflecting the difference between $334,000 in deposits in the defendant’s bank account and $216,000 in debits to that account over the years in question.”

The defendant first argues that the court’s damages award was legally improper because it was based on the defendant’s profit rather than the plaintiffs loss. We agree with the defendant that the proper measure of damages in an action for tortious interference with a business expectancy is not the profit to the defendant but, rather, the pecuniary loss to the plaintiff of the benefits of the prospective business relation. See Conrad v. Erickson, 41 Conn. App. 243, 247-48, 675 A.2d 906 (1996) (relying on plaintiffs estimation of business losses to uphold jury’s damages award); see also Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 37; 4 Restatement (Second), Torts, supra, § 774A.

The defendant also argues that in its calculation of damages, the court improperly included transactions that occurred between the years 1998 through 2001, despite finding that the defendant became involved in Alpert’s illegal conduct beginning sometime in the spring of 2001. We agree that the defendant cannot be held responsible for any of the lost profits the plaintiff suffered before this date. We therefore reverse the judgment of the trial court as to damages only and remand the case for a recalculation of damages on the basis of the plaintiffs lost profits, rather than improper gains to the defendant, and dating only as far back as April, 2001. On remand, the court is limited to consideration of the evidence in the existing record. In its calculation, the court may consider the net profit made by Alpert, as measured by the difference between the amount he earned on the resale of a given item of jewelry and the amount he had paid to acquire that item. The court, however, must also factor into its damages equation that the net profit to Alpert may have been substantially less than it would have been to the plaintiff because of the different price markup each applied.

IV

Finally, the defendant argues that the court applied an incorrect burden of proof to the case. The defendant asserts that because the plaintiff’s claims against the defendant were rooted in fraud, the plaintiff was required to prove its case by clear and convincing evidence, rather than by a preponderance of the evidence. We disagree.

The issue of whether the court held the parties to the proper standard of proof is a question of law, which this court reviews de novo. See Litchfield Asset Management Corp. v. Howell, 70 Conn. App. 133, 139, 799 A.2d 298, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). The defendant mistakenly asserts that because fraud was a component of the misconduct alleged by the plaintiff, the complaint is rooted in fraud so as to be subject to the heightened standard of proof by clear and convincing evidence. The cases the defendant cites in support of this claim are distinguishable because they are based specifically and exclusively on the defendant’s fraud. See, e.g., id. (claim of fraudulent conveyance); see also Busker v. United Illuminating Co., 156 Conn. 456, 458-59, 242 A.2d 708 (1968) (claim of fraudulent deprivation of opportunity to earn commission). Although misrepresentation and fraudulent acts were some of the behaviors that comprised the tortious interference claim, they were not an essential part thereof. Unlike the cases on which the defendant relies, none of the counts against the defendant in the complaint required the court to find that she committed any fraudulent acts herself. The tortious interference claim was satisfied simply by the plaintiffs having demonstrated that the defendant intentionally interfered with its business relations without justification. See Downes-Patterson Corp. v. First National Supermarkets, Inc., supra, 64 Conn. App. 429. In a tortious interference case, such as the one before us, preponderance of the evidence is the appropriate burden of proof. See, e.g., Hi-Ho Tower, Inc. v. Com-Tronics, Inc., supra, 255 Conn. 34—37. Accordingly, we decline to find plain error.

The judgment is reversed only as to the award of damages and the case is remanded for a recalculation of damages on the existing record consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Alpert did not, contest the pleadings, and a judgment was entered against him. In this opinion, we refer to Karobkaite as the defendant.

       Alpert testified that an estate buyer purchases secondhand jewelry from the general public for resale.

       The complaint further alleged conversion and breach of contract and fiduciary duty as to Alpert only.

       Section 767 of 4 Restatement (Second) of Torts provides in relevant part: “In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors: (a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interests sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties.”

       See part I B.

       We also find no merit in the defendant’s argument that the court essentially found her liable for merely encouraging Alpert’s tortious interference with the plaintiffs business expectancies, in contravention of our Supreme Court’s holding in Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 546 A.2d 216 (1988). In that case, the only action alleged to be tortious was the defendant employer’s encouragement of its employee to solicit the plaintiffs customers despite the employer’s knowledge that the employee had signed a covenant not to do so. The record in the present case, by contrast, reveals the various ways in which the defendant actively participated in the scheme to divert customers.

       The defendant additionally argues that because the court did not find that her conduct amounted to a CUTPA violation, that same conduct cannot be the basis of a tortious interference claim because the latter carries a lower burden of proof than the former. See Sportsmen’s Boating Corp. v. Hensley, 192 Conn. 747, 753-57, 474 A.2d 780 (1984). We disagree with the defendant’s assertion. In determining whether a practice violates CUTPA, the court applies the so-called cigarette rule, under which it must consider: “(1) [WJhether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons], ... A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.” (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 155, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). We may readily infer that the court did not hold the defendant liable under CUTPA because it concluded that the balance of these factors weighed against liability. No such balancing test is required for a claim of tortious interference. We further note that the defendant did not seek an articulation of the court’s terse finding with respect to this issue.

       The defendant cites Collum v. Chapin, 40 Conn. App. 449, 671 A.2d 1329 (1996) in support of this argument. We find that case to be inapposite. In Collum,, the court stated that the actions alleged in a claim for tortious interference with employment could not have taken place following the date employment ended. In this case, the court found that the defendant “was a knowing and willing participant in Alpert’s schemes and reaped some profits therefrom.” The court’s language thus makes clear that it found the defendant’s involvement to transcend any given transaction.

       The defendant additionally argues that this claim must fail because the plaintiff did not prove the underlying tort. Because we have already concluded that the plaintiff has met the elements of the underlying tort, this argument also lacks merit.

       Both Alpert and Schnee testified that Alpert’s independent stock of jewelry was sold wholesale or on consignment through the plaintiff and that other than some small items of nominal value, the stock was depleted by December, 1998.

       The defendant asserts that the court’s conspiracy finding lacks logical and chronological coherence because the conduct underlying that finding occurred prior to spring 2001. As we stated previously, the spring of 2001 was the court’s benchmark, after which it found it impossible for the defendant to deny knowledge. Just because the court was cautious in setting a date from which to hold the defendant liable does not mean it turned a blind eye to the factors leading to that date, which guided its findings. It was appropriate for the court to consider that the defendant accompanied Alpert to conduct transactions with diverted customers and that she managed their j oint checking account because those actions intimate her cognizance of Alpert’s scheme. Her conduct prior to spring 2001 therefore provided aproper evidentiary prelude to the court’s finding that she was a knowing participant in Alpert’s illegal actions.

       Section 774A (1) of 4 Restatement (Second) of Torts provides: “One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for (a) the pecuniary loss of the benefits of the contract or the prospective relation; (b) consequential losses for which the interference is a legal cause; and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.”

       We note that the defendant also disputes the accuracy of the figures on which the court relied, which, according to the defendant, were taken directly from the plaintiffs posttrial brief and were not substantiated.

       The defendant concedes that she did not properly preserve this claim and therefore seeks our review under the plain error doctrine. See Practice Book § 60-5. Because a trial court’s application of an incorrect burden of proof would constitute plain error, we review the defendant’s claim to determine whether plain error exists. See Herrera v. Madrak, 58 Conn. App. 320, 325-26, 752 A.2d 1161 (2000) (failure to instruct jury on proper burden of proof constitutes plain error).