text:
    State of Connecticut v. Matthew C. Pyles
    (6852)
    Borden, Daly and Stoughton, Js.
    Argued December 21, 1988
    decision released February 14, 1989

      Eddi Z. Zyko, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were Thomas E. Gomberg, assistant state’s attorney, and Pamela Weidman, legal intern, for the appellee (state).
   Daly, J.

The defendant appeals from a judgment of conviction, after a jury trial, of larceny in the second degree in violation of General Statutes § bSa-123. On appeal the defendant claims that the trial court erred (1) in admitting two documents into evidence under the business record exception to the hearsay rule, and (2) in its instructions to the jury. We find no error.

The jury could reasonably have found the following facts. In November, 1986, the defendant was employed as the manager of a gas station and convenience store located in Southington and owned by Shuck Petroleum Company. As manager, the defendant was responsible for calling Kathy Murphy, Shuck’s district supervisor, every weekday morning to report the sales figures for the previous day of business. The sales figures were compiled from paperwork consisting of such items as the receipts from the cash register, the gas console and the credit card machine. The defendant was responsible also for sending this paperwork to Shuck’s main office once a week, and for depositing the previous day’s proceeds at the bank after phoning the sales figures in to Murphy.

On Monday, November 24,1986, the defendant made his daily call to Murphy and reported the sales figures for November 21, 22 and 23. The defendant informed Murphy that the sales were $4360 for November 21, $4100 for November 22 and $3150 for November 23.

At approximately noon on November 24, Murphy visited the defendant at the Southington store and discussed with him his apparent inability to comply with the company policy of making the daily bank deposits by 2 p.m. Two and one-half hours later, Murphy received a phone call from the defendant, informing her that he was quitting and would leave the keys to the store at the Southington police department.

That night, Murphy, Pamela Corey, who was a Shuck office clerk, and two others went to the Southington store, where they discovered that the store’s paperwork, including the tape from the cash register, was missing. Murphy was unable to compute the day’s totals from either the cash register or the gasoline console.

The following day, November 25, Murphy went to the bank to determine whether any deposits had been made the day before. She found that early on the morning of November 24 the defendant had deposited the store’s proceeds for November 19, 20 and 21. No deposits had been made, however, for November 22 or 23. Joyce Kelly, a bookkeeper for Shuck, testified that the paperwork for the Southington store for the period of November 20 through 23 was never mailed to the Shuck offices.

The defendant’s first claim is that the trial court erred in admitting into evidence two of the state’s exhibits under the business records exception to the hearsay rule.

One of the state’s exhibits was the November, 1986 sales journal for the Southington store. This document was prepared monthly by the Shuck office clerks. The figures posted in the journal were taken from the paperwork that the defendant had sent in weekly to the main office. When the state offered the document as an exhibit during the direct examination of Kelly, the defendant objected, claiming that the document did not qualify as a business record. The trial court admitted the journal into evidence. The defendant then further objected to the admission of the information contained on line twenty-four of the journal, claiming it was hearsay. The court overruled that objection.

Another of the state’s exhibits was the November, 1986 daily call-in sheet for the Southington store. Entries were made daily to this document by Murphy. The figures posted in the call-in sheet were obtained from the daily calls made to Murphy by the defendant. The state also offered this document during Kelly’s direct examination. The defendant’s objection to the admission of this document as a business record was overruled.

The standards governing the admissibility of evidence proffered under the business records exception to the hearsay rule are set forth in General Statutes § 52-180. The three requirements that must be satisfied are (1) that the record was made in the regular course of business, (2) that it was the regular course of business to make the writing, and (3) that the writing was made at the time of the transaction or occurrence or within a reasonable time thereafter. State v. Waterman, 7 Conn. App. 326, 341, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986). Moreover, the business record must be based upon the entrant’s own observations or upon information transmitted to him by an observer whose business duty it was to transmit the information to the entrant. State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985); D’Amato v. Johnson, 140 Conn. 54, 59, 97 A.2d 893 (1953).

The defendant has raised several technical claims of error with respect to the admission of these documents. Our courts, however, have consistently construed § 52-180 liberally. See Jefferson Garden Associates v. Greene, 202 Conn. 128, 141, 520 A.2d 173 (1987), and cases cited therein; Shuchman v. State Employees Retirement Commission, 1 Conn. App. 454, 457-58, 472 A.2d 1290 (1984). We cannot say that the trial court abused its discretion in allowing the two documents into evidence. The testimony showed that both documents were prepared in the ordinary course of business and that it was in the ordinary course of Shuck’s business to prepare the monthly sales journal and the daily call-in sheet. Moreover, the entries on the call-in sheet were made every weekday morning following the defendant’s call to Murphy and the entries on the sales journal were made once a week following the arrival in the mail of the paperwork sent by the defendant to Shuck’s main office. Both documents qualified for admissibility under § 52-180; accordingly, the trial court did not err in allowing the documents into evidence.

The defendant’s final claim of error concerns the trial court’s instructions to the jury. He claims specifically that a portion of the charge constituted an unfair comment on the evidence and that it unduly emphasized a portion of the state’s case, thereby prejudicing him.

The following facts are relevant to this claim. During cross-examination, the prosecutor asked the defendant why he failed to deposit the sales proceeds, noting that the amount of cash in question was $7000. The defendant objected to the question, claiming that there was no evidence establishing that figure. The court sustained the objection, despite the state’s argument that it had established that the defendant had called in $4100 and $3150 as daily sale amounts to Murphy but the money had never been deposited. The next day the court acknowledged it had made a mistake in ruling there had been no evidence regarding the sum of approximately $7000. The court denied the state’s motion to reopen the case and instead gave a curative instruction to the jury. The defendant took an exception to this instruction.

“ ‘ “To determine whether an error in a charge constitutes reversible error, the court must consider the whole charge. ... In considering the charge as a whole we eschew critical dissection . . . thereby not passing upon the instructions attacked in ‘artificial isolation’ from the whole charge.” ’ ” (Citations omitted.) State v. Reddick, 15 Conn. App. 342, 351, 545 A.2d 1109 (1988), quoting State v. Marshall, 3 Conn. App. 126, 129, 485 A.2d 930 (1985). Jury instructions will be upheld if they are correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Greene, 11 Conn. App. 575, 580, 528 A.2d 855, cert. denied, 205 Conn. 804, 531 A.2d 938 (1987). The trial court may, in its discretion, make reasonable comments on the evidence; State v. Ryerson, 201 Conn. 333, 348, 514 A.2d 337 (1986); provided it does not direct or advise the jury how to decide a particular matter. State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985); State v. Gallman, 16 Conn. App. 433, 435, 547 A.2d 932 (1988).

In reviewing the charge as a whole, we note that the jury was repeatedly instructed that it was the sole arbiter of the facts, and that, while the court was free to comment on the evidence, the jury was not bound by these comments. Moreover, in making the challenged instruction, the court merely clarified for the jury its misunderstanding of the evidence. The court’s comment neither emphasized any portion of the state’s case nor directed the jury how to decide the case. The charge, as a whole, was sufficient for the jury’s guidance and was not misleading.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-123 provides in pertinent part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars, (2) the value of the property or service exceeds five thousand dollars, (3) the property, regardless of its nature or value, is taken from the person of another, or (4) the property is obtained by defrauding a public community, and the value of such property is two thousand dollars or less.”

       Line 24 of the monthly sales journal contained the entry made by Murphy that “no sales available for [November 24, 1986] — Matthew quit and took everything.”

       General Statutes § 52-180 provides in pertinent part: “Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if the trial judge finds that it was made in the regular course of any business, and that it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       The court charged the jury as follows: “Now, there was a dramatic incident here which I don’t want to overemphasize, but I do think that in the interest of justice I should remark on it. You may remember that earlier in the proceedings Mr. Gomberg made and incorporated into a question a certain amount of money, and I sustained the objection on the ground that I didn’t recall testimony as to that amount of money. Now, I may have ruled on the objection in such a way as to make you think that I am suggesting to you that he didn’t take anything. That was not my intention. It was not what I had in mind. It was simply at the time I did not recall what amount of money was stated by an earlier witness.
      “Now, as I say, please don’t put this out of perspective. I made a mistake in misunderstanding what was going on, and I simply mentioned it in order to straighten out that mistake, but don’t put it out of perspective simply because I am remarking on it at this time. It doesn’t mean I am suggesting to you that you believe or disbelieve anything. I simply don’t want you to be misled because of the fact that I probably had a poor choice of words.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Winthrop D. Baker III
    (7106)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued December 20, 1988
    decision released February 14, 1989

      John R. Williams, with whom, on the brief, was Leslie Travis, law student intern, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Robert Qulia, legal intern, for the appellee (state).
   Daly, J.

This is an appeal by the defendant from the denial by the trial court of his motion to withdraw his plea of guilty entered pursuant to the Alford doctrine.

On February 18, 1988, the defendant entered an Alford plea to the charge of arson in the second degree, a violation of General Statutes § 53a-112 (a) (1) (A). The trial court canvassed the defendant pursuant to Practice Book §§711 and 712 and then accepted the plea. The court entered a finding of guilty and set a sentencing date. Two days prior to sentencing, new counsel appeared for the defendant and filed a motion to withdraw the guilty plea pursuant to Practice Book §§ 720 and 721. On May 19,1988, the trial court denied the motion and thereafter sentenced the defendant to a term of seven years imprisonment, suspended after three years, with three years probation, in accordance with the plea agreement.

On appeal, the defendant claims that the trial court erred in denying his motion to withdraw his guilty plea. He argues that the court failed to inform him of the maximum fine that could be imposed for a violation of General Statutes § 53a-112 and therefore failed to personally ensure that he fully understood the maximum possible sentence on the charge as required by Practice Book § 711 (4), thereby denying him due process of law as secured by the Connecticut and United States constitutions. We find no error.

This court recently held in State v. Rish, 17 Conn. App. 447, 451-52, 553 A.2d 1145 (1989), that the failure of the trial court to inform the defendant of the precise amount of the fine that could have been imposed as a result of his Alford plea did not constitute defective compliance with Practice Book § 711 (4).

In State v. Collins, 207 Conn. 590, 596, 542 A.2d 1131 (1988), our Supreme Court was unpersuaded by the argument that the trial court erred when it accepted the defendant’s guilty pleas without informing him of the minimum sentences mandated by each charge to which he pleaded guilty. The defendant’s appellate argument was unavailing because the sentence imposed was not different from that of the plea bargained agreement. Id.; see also State v. Coleman, 17 Conn. App. 307, 312, 552 A.2d 442 (1989).

Finally, in State v. Godek, 182 Conn. 353, 360, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981), the court held that the failure of the trial court to advise the defendant of the right to a trial by a judge, as required by Practice Book § 711 (5), did not require the vacating of the defendant’s plea. The trial court had complied with every other facet of § 711; accordingly, the Supreme Court held that there was substantial compliance with § 711, such that none of the defendant’s constitutionally protected rights had been abridged.

“Practice Book § 711 was promulgated to ensure that guilty pleas are made voluntarily and with full knowledge of the waiver of constitutional rights.” State v. Suggs, 194 Conn. 223, 226, 478 A.2d 1008 (1984), citing State v. Godek, supra, 357. In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), the United States Supreme Court identified the three constitutional rights which are waived by a plea of guilty: “First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the states by reasons of the Fourteenth [Amendment]. . . . Second, is the right to a trial by jury. . . . Third, is the right to confront one’s accusers.” (Citations omitted.) Boykin v. Alabama, supra, 243.

In the present case, the trial court complied with every provision of Practice Book § 711 except that it failed to inform the defendant of the maximum fine that could be imposed for a violation of § 53a-112. Our review of the proceedings indicates that a fine was not contemplated in the plea bargain. Accordingly, we hold that the failure of the trial court to inform the defendant of the maximum fine that could have been imposed does not constitute defective compliance with Practice Book § 711 (4) and that the defendant knowingly and voluntarily waived his constitutional rights.

There is no error.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       General Statutes § 53a-112 (a) provides in pertinent part: “A person is guilty of arson in the second degree when, with intent to destroy or damage a building . . . (1) he starts a fire or causes an explosion and (A) such act subjects another person to a substantial risk of bodily injury . . . .”

       “[Practice Book] Sec. 711.--advice to defendant
      “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of previous conviction; and
      “(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistanee of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”
      “[Practice Book] Sec. 712.--insuring that the plea is VOLUNTARY
      “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting attorney and the defendant or his counsel.”

       “[Practice Book] Sec. 720.--WHEN ALLOWED
      “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”
      “[Practice Book] Sec. 721.--grounds
      “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”


author: Borden, J.

text:
    Jennie J. Randazzo v. John F. Pitcher
    (6555)
    Borden, Daly and O’Connell, Js.
    Argued October 12, 1988
    decision released February 14, 1989

      Harry Cohen, for the appellant (plaintiff).

      Richard D. Arconti, for the appellee (defendant).
   Borden, J.

In this personal injury action arising out of an automobile accident, the plaintiff appeals from the judgment rendered upon the jury’s verdict in favor of the defendant. The plaintiff claims that the court erred (1) in failing to instruct the jury properly regarding the law applicable to her claim of liability, and (2) in permitting the investigating police officer to testify regarding the general point of impact between the cars of the plaintiff and the defendant. We find error.

The accident occurred in the vicinity of the intersection of Route 7 and Sullivan Road in New Milford, shortly after midnight on January 8,1985. It was snowing at the time of the accident. The plaintiffs theory of liability was that she was just completing a left turn into Sullivan Road from the northbound lane of Route 7 when the accident occurred, and that she had the right of way because the defendant was not in or near the intersection when she made her turn. She testified that she was traveling north on Route 7, and that as she approached the intersection of Sullivan Road she turned on her left signal light, stopped on the right side of the center line, and looked ahead for traffic. She testified further that there was no traffic at all on the road, that she then made a left turn into Sullivan Road, and next remembered waking up in the hospital.

The defendant testified that he was traveling south on Route 7 when he saw the plaintiffs car facing west in the northbound lane of Route 7. He testified also that the plaintiff then began to move across the southbound lane to make a left turn into Sullivan Road, and that he then applied his brakes, sounded his horn and turned to his right to avoid the collision. He testified also that part of the plaintiff’s car was within Sullivan Road and part within Route 7 when the cars collided.

The plaintiff’s principal claim is that the court’s charge to the jury inadequately covered her claim of liability, namely, that the defendant failed to grant her the right of way at the intersection. We agree.

The court first read General Statutes § 14-242 (e) to the jury. It then stated: “Therefore, the driver of the vehicle entering the intersection of two highways, as is the case here, when about to turn into the street upon his left, must yield the right of way to another vehicle approaching from the opposite direction which is in the intersection or so close thereto as to constitute an immediate hazard. The test to be applied is this. Would a man of ordinary prudence ... in the same situation in the exercise of reasonable care, reasonably believe that if both vehicles continued to run at the respective rates of speed at which they were running, such continuation of the two vehicles in their respective courses would involve the risk of collision, not necessarily and certainly involve an actual collision but would invoke the risk of a collision.”

The plaintiff had filed certain requests to charge based on her claim of law, and took exception to the charge as given. We need not discuss the propriety of her requests to charge because her exception to the charge was adequate to alert the court to the claim she renews on appeal.

The plaintiff was entitled to an instruction adequately suited to her claim of law supported by the evidence she presented. See Grecki v. New Britain, 174 Conn. 200, 203, 384 A.2d 372 (1978); Mei v. Alterman Transport Lines, 159 Conn. 307, 313, 268 A.2d 639 (1970). If matter omitted from the charge “is essential to a proper and complete consideration and decision of the case, failure to include it, although inadvertent, constitutes error. Pietrycka v. Simolan, 98 Conn. 490, 500, 120 Atl. 310 [1923].” Gross v. Boston, W. & N. Y. St. Ry. Co., 117 Conn. 589, 596, 169 A. 613 (1933).

The court’s charge did not adequately cover the claim of law based on her testimony, namely, that she had the right of way when she made a left turn into Sullivan Road, because the defendant was neither in the intersection nor so close thereto as to constitute an immediate hazard. See Affinito v. Daniels, 179 Conn. 388, 389-90, 426 A.2d 782 (1979). Although the court’s charge was suited to the defendant’s version of the collision, namely, that he had the right of way because his car was either within the intersection or so close thereto as to constitute an immediate hazard, the charge did not suit the evidence the plaintiff presented. The court erred, therefore, by omitting half of the instruction approved in Affinito, namely that “[i]f you find that the [defendant’s] vehicle was not so close to the intersection when the [plaintiff’s] car was about to make the left turn, so that a reasonably prudent person would believe that if the left turn was then and there made, there existed no real immediate danger of risk of a collision, then the [plaintiff’s] car had the right of way under the statute and was justified in making the turn.” Id., 389. This error was not harmless, moreover, because it resulted in a lack of adequate guidance to the jury regarding the plaintiff’s principal claim in the case.

Although a new trial is required, we consider the plaintiff’s second claim of error because it is likely to arise upon the retrial. The plaintiff claims that the court erred by permitting the investigating police officer to give his opinion regarding the general point of impact between the two vehicles because an adequate foundation for his testimony had not been established. We disagree.

Officer Robert J. Cramer, Jr., of the New Milford police department, who was the investigating officer, testified that he had state police academy training in accident investigation. He testified further that his police report, which was not admitted into evidence, indicated a point of impact. He also testified that it is standard procedure to look for debris in determining a point of impact, that he prepared the sketch on his report indicating the point of impact shortly after his investigation, that he did not recall seeing debris in the road, and that there must have been something other than the statements of the parties to lead him to indicate the point of impact in the report but he could not recall what it was. He testified also that he was not qualified “that particular evening, under those circumstances” to determine “the exact” point of impact. He testified also, however, that he recalled there being snow on the road, that in any accident investigation he would look for debris and skidmarks or, in this case, tracks left in the snow, and that he probably did so in this case. He testified also that when he performs an accident investigation he attempts to determine the general point of impact from such evidence. He then testified, over the plaintiffs objection, that the report refreshed his memory and that the general point of impact was in the southbound lane of Route 7. The plaintiff duly excepted.

“Expert opinion testimony as to the point of impact in a motor vehicle accident is proper provided the witness has been qualified and an adequate foundation for his testimony has been laid.” Waldron v. Raccio, 166 Conn. 608, 613, 353 A.2d 770 (1974). Cramer’s police training was sufficient to permit him to give an opinion as to the point of impact, provided that a sufficient foundation for such an opinion was established. “ ‘Some facts must be shown as the foundation of ... an [expert’s] opinion, but there is no rule of law declaring the precise facts which must be proved before such an opinion may be received in evidence. It is largely a matter of judicial discretion whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion of value.’ ” Id., 614, quoting Barber v. Manchester, 72 Conn. 675, 684, 45 A. 1014 (1900). Although this case presents a close question, and although the trial court could well have exercised its discretion to exclude Cramer’s opinion, in light of the testimony that he generally determined the point of impact from evidence such as debris and marks in the road and that he probably did so in this case, we cannot say that the trial court abused its broad discretion by permitting him to testify to the general area of the point of impact.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 14-242 (e) provides: “The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or within the area formed by the extension of the lateral lines of the private alley, road or driveway across the full width of the public highway with which it intersects, or so close to such intersection of public highways or to the area formed by the extension of the lateral lines of said private alley, road or driveway across the full width of the public highway as to constitute an immediate hazard.”


author: Stoughton, J.

text:
    Roger Phillips et al. v. Alex Palakewitz et al.
    (6380)
    Dupont, C. J., Stoughton and Norcott, Js.
    Argued December 9, 1988
    decision released February 14, 1989

      Roberta E. Braunstein, for the appellants (defendant Joel L’Heureux et al.).

      Thomas J. Londregan, for the appellees (plaintiffs).
   Stoughton, J.

The plaintiffs brought this action seeking to enjoin the defendants from blocking and interfering with a right of way over an old road. The defendants Joel L’Heureux and Debra Ann Sass (hereinafter the defendants) denied that there was a right of way and, by way of counterclaim sought an order preventing the plaintiffs from entering or remaining on the portion of the road adjacent to their property. The court issued the injunction and also ordered certain additional relief not requested by the parties. The plaintiffs appealed, claiming error in the granting of the unrequested relief, and the defendants cross appealed. The plaintiffs’ appeal was withdrawn after the trial court granted a motion to open the judgment and deleted the unrequested relief. The cross appeal of the defendants remains.

The defendants own a piece of property in the town of Salem that is bordered on its easterly side by Governors Road and on its southerly side by Morgan Road. The property forms a rectangle in the southeasterly portion of the plaintiffs’ land. To the north of the defendants’ property, the plaintiffs’ property borders on Governors Road. To the west of the defendants’ property, the plaintiffs’ property borders on Morgan Road. Governors Road and Morgan Road form an intersection at the southeasterly corner of the defendants’ property.

There was evidence from which the court reasonably could have found the following facts. Governors Road was a public road extending from its intersection with Morgan Road northerly to its intersection with the New London Turnpike. The westerly portion of Governors Road, abutting the easterly boundary of the defendants’ property, was cleared and had not become overgrown. The road had been in use by members of the general public for many years. On January 11, 1984, that portion of Governors Road which abuts the land of the plaintiffs and of the defendants was abandoned by the town. On various dates during 1986 and earlier, the defendants blocked the cleared portion of Governors Road, preventing access by the plaintiffs to their property by means of Governors Road. The court concluded that the defendants had failed to prove their claim of adverse possession and that, on the basis of its findings of fact, and by application of General Statutes § lSa-55, the plaintiffs were entitled to a right of way in common with the defendants over the discontinued Governors Road. It rendered judgment for the plaintiffs and enjoined the defendants from blocking the right of way and from interfering with construction by the plaintiffs of a gravel driveway or with access by the plaintiffs to and from their lot over Governors Road.

The defendants claim that the court erred in its interpretation of and application of General Statutes § 13a-55 in finding that Governors Road was a public road that was abandoned in 1984, in refusing to find adverse possession by the defendants, in weighing the evidence, and in opening the judgment and deleting the unrequested equitable relief.

The defendants claim that the court should not have applied § 13a-55 because Governors Road was abandoned in the 1800’s before § 13a-55 came into existence. This claim is easily disposed of. The court found that that portion of Governors Road which abuts the land of the plaintiffs and of the defendants was abandoned by the town of Salem on January 11, 1984, and there was evidence to support that finding. We will not retry the case. The defendants also claim that the language in § 13a-55 granting a right of way over a discontinued or abandoned highway to the nearest or most accessible highway means that because Morgan Road also borders their property, they must use it rather than the right of way over Governors Road for ingress and egress. This interpretation simply is not what the statute says. Under the provisions of § 13a-55, property owners bounding an abandoned highway are granted a right of way over the abandoned highway to the nearest or most accessible highway.

The challenges to the findings that Governors Road was a public road that was abandoned in 1984 and that the defendants had failed to prove adverse possession, and to the weight assigned by the trial court to the evidence, implicate the fact finding function of the trial court. We can neither retry facts nor pass upon the credibility of witnesses. We are limited in our review to determining whether the judgment of the trial court was clearly erroneous, or whether the judgment was contrary to law. Golfin v. Plymouth Industrial Development Corporation of Connecticut, Inc., 15 Conn. App. 804, 543 A.2d 287 (1988). Since the facts found are not clearly erroneous, and the conclusions are legally and logically correct, the trial court’s decision must stand. Id., 805.

The trial court in its original judgment defined the boundaries of a gravel driveway which the plaintiffs desire to construct, placed certain conditions on construction and use of the driveway and granted to the defendants certain parking privileges. The plaintiffs moved to open the judgment and the court, concluding that it should not have granted relief over and above that sought by the plaintiffs, corrected the judgment to eliminate the relief which had not been sought. We agree with the plaintiffs that the trial court was correct in doing so.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 13a-55 provides: “right-of-way of property owners BOUNDING A DISCONTINUED OR ABANDONED HIGHWAY OR A HIGHWAY ANY PORTION OF WHICH IS DISCONTINUED OR abandoned. Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in conjunction with a limited access highway.”


author:
O’Connell, J.
      Daly, J.,

text:
    Julius T. Koper v. Rose Marie Koper
    (6491)
    Borden, Daly and O’Connell, Js.

      (One judge dissenting)

    Argued October 13, 1988
    decision released February 21, 1989

      Samuel H. Teller, with whom, on the brief, was Randy Lynn Cohen, for the appellant (plaintiff).

      Raymond F. Parlato, with whom, on the brief, were Jonathan Zorn and Deborah Deschamps, for the appellee (defendant).
   O’Connell, J.

This is an action for the dissolution of a marriage in which the plaintiff appeals, claiming error in the court’s periodic alimony award, division of the jointly owned marital home and an order allowing the defendant to retain funds withdrawn from a joint bank account. We find error.

The dissolution decree was rendered on May 7,1987, at which time the trial court filed a memorandum of decision reciting, inter alia, the financial orders of which the plaintiff complains. All the claims of error are subsumed in a claim requiring a comparison between the memorandum of decision and a subsequently filed articulation of that decision.

In its memorandum of decision, the court expressly found that the breakdown of the marriage was not the sole fault of either party. The pertinent part of the memorandum reads: “The breakdown of the marriage cannot be attributed solely to one (1) party or to the other nor would it serve any purpose to attempt to more precisely determine the extent of responsibility borne by the respective parties.” By contrast, the pertinent portion of the articulation that was ordered by this court reads: “The court finds that the conduct of the plaintiff, in large part, contributed to the marital breakdown.”

General Statutes § 46b-81 (c) sets forth the criteria that the court must consider in ordering the division of property. This statute requires the court to consider, inter alia, the cause of the marriage dissolution. General Statutes § 46b-82 contains nearly identical criteria for considering an award of alimony. It is well established that in a dissolution action the trial court is accorded wide discretion in allocating property and setting the amount and type of alimony. Elliott v. Elliott, 14 Conn. App. 541, 548, 541 A.2d 905 (1988). Although the court must consider each of the statutory criteria, it is clear from the case law that the court need not make an express finding on each. Id., 547. In the present case, the effect of the orders concerning the marital home was to award the defendant 100 percent of the home’s value when she had requested only 65 percent. She also was awarded $50 per week alimony when her expenses were less than her income by $100 to $150 per week. The defendant also was allowed to keep $17,500 of joint funds that she had arrogated to herself.

The foregoing orders, although facially more favorable to the defendant, could conceivably be appropriate and within the wide discretion of the trial court. While it is rare that we will interfere with the trial court’s discretion in matters of this type; see Blake v. Blake, 207 Conn. 217, 229, 541 A.2d 1201 (1988); this is one of those rare occasions.

“ ‘An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated is unclear.’ ” Rosenblit v. Danaher, 206 Conn. 125, 148, 537 A.2d 145 (1988), quoting State v. Wilson, 199 Conn. 417, 434, 513 A.2d 620 (1986). A motion for articulation is the proper procedure to seek elucidation from the trial court of its considered evaluation of statutory criteria. Barnes v. Barnes, 190 Conn. 491, 493-94, 460 A.2d 1302 (1983).

Accordingly, an articulation was appropriate here because of a perceived inconsistency between the determination of fault and the financial orders. The trial court, however, misconceived the purpose of an articulation in that it failed to supply an explanation of its reasoning, an analysis of the parties’ assets or a weighing of the statutory criteria. While the trial court is not obligated to make express findings on each of the criteria enumerated in §§ 46b-81 and 46b-82, its memorandum of decision must at least reflect a proper consideration and weighing of the factors set forth in the statute. Trubowitz v. Trubowitz, 5 Conn. App. 681, 687, 502 A.2d 940 (1985). Rather than furnishing an appropriate clarification, the trial court shifted its position, justifying the defendant-oriented orders by finding that “the conduct of the plaintiff, in large part, contributed to the marital breakdown.” The articulation then proceeds to extend its conclusion of fault by the plaintiff into a detailed description of his misconduct, ranging from physical violence through mental cruelty to financial dominance. It is clear that the original memorandum of decision and the articulation are sharply contradictory.

An articulation is not an opportunity for a trial court to substitute a new decision nor to change the reasoning or basis of a prior decision. We are unable to discern whether the original memorandum or the articulation, if either, correctly represents a proper resolution of this case. Moreover, any effort on our part to resolve this conflict would put us in the untenable position of retrying the facts. See State v. Wilson, supra, 438-39. Under these circumstances the only remedy is a new trial. Id., 434-45.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion Borden, J., concurred.

Daly, J.,

dissenting. I respectfully disagree with the conclusion of the majority that the trial court’s memorandum of decision and its articulation are “sharply contradictory.” A close reading of the decision and the articulation clearly demonstrates that the court neither changed its decision nor changed the reasoning or basis of its decision.

The majority has found a contradiction between the memorandum of decision and the articulation when, in fact, none exists. In its memorandum of decision, the trial court found that neither party was 100 percent responsible for the breakdown of the marriage and that any further “attempt to more precisely determine the extent” of the parties’ responsibility in causing the breakdown would serve no purpose. In its articulation, the court elaborated on some of the underlying causes of the breakdown and found that the plaintiff’s conduct contributed greatly to that breakdown. Nowhere in the articulation, however, does the court find that the plaintiff was solely responsible for the breakdown. I fail to see any contradiction between these two findings. The trial court’s failure to “more precisely determine the extent of responsibility” in the memorandum should not preclude it from elaborating, in the articulation, on some of the underlying facts that led to the marital breakdown.

Our Supreme Court has held that “articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification.” State v. Wilson, 199 Conn. 417, 435, 513 A.2d 620 (1986). In view of the purpose of articulation, the decision and the articulation must be construed together, not separately, and we must read the articulation as a clarification of the decision. When the two are read together, it becomes clear that, contrary to the majority’s view, the trial court did weigh the statutory criteria, did analyze the parties’ assets and did explain its reasoning.

In making the financial orders, the trial court was required to consider the statutory criteria set forth in General Statutes §§ 46b-81 and 46b-82. The court is not, however, required to make an express finding on each of the criteria. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). “ ‘Our case law is clear that a trial court is free to weigh the relevant statutory criteria without having to detail . . . what importance it has assigned to the various statutory factors. What we are left with is the argument, not unfamiliar in matrimonial appeals, that the trial court failed to weigh the criteria equitably and thus arrived at an impermissible award.’ ” Id., quoting Tutalo v. Tutalo, 187 Conn. 249, 251-52, 445 A.2d 598 (1982). In my view, there was sufficient evidence introduced before the court that, if believed, would support the awards as rendered. That is all that is required. Barnes v. Barnes, supra, 495.

I would find no error.

       The trial court denied the plaintiff’s motion for articulation that was initially a ground of appeal. On March 23,1988, this court granted the plaintiff’s motion for review, pursuant to Practice Book § 4054, and ordered the trial court to articulate the basis of its order pertaining to the transfer of the family home.

       General Statutes § 46b-81 (c) provides: “In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       “[General Statutes] Sec. 46b-82. (Formerly Sec. 46-52). alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent's securing employment.”

       Although this court’s order only required articulation of the basis of the property division, in view of the articulation changing the finding of fault, the propriety of the alimony and joint fund orders are also within the scope of this appeal.


author: Per Curiam.

text:
    State of Connecticut v. William Rado, Sr.
    (6509)
    Borden, Spallone and Daly, Js.
    Submitted on briefs January 17
    decision released February 21, 1989

      Timothy C. Moynahan, John M. Loconsolo, Jr., and Theresa M. Dalton, filed a brief for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, and John Dropick, assistant state’s attorney, filed a brief for the appellee (state).
   Per Curiam.

The defendant, the former mayor of Naugatuck, appeals from the judgment of conviction, following the denial of his motions to dismiss, rendered upon his conditional pleas of nolo contendere to the following crimes: bribe receiving in violation of General Statutes § 53a-148; first degree larceny in violation of General Statutes §§ 53a-122 (a) (4) and 53a-119 (6) (1); soliciting an illegal campaign contribution in violation of General Statutes (Rev. to 1985) §§ 9-348k (5) and 9-348k (10); and receiving an illegal campaign contribution in violation of General Statutes (Rev. to 1985) § 9-348k (9). The defendant challenges the constitutionality of General Statutes (Rev. to 1985) § 54-47, which authorized a Superior Court judge to act as a grand juror. The defendant claims that the appointment of a member of the judiciary as a grand juror violated the separation of powers doctrine and deprived him of his right to a fair trial.

This court rejected identical claims raised by this same defendant in State v. Rado, 14 Conn. App. 322, 541 A.2d 124, cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, U.S. , 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988). In that case, this court held that because the existence of an investigation by the grand jury is not generally violative of individual rights, and because the defendant did not establish that the investigation violated any of his personal rights, he lacked standing to challenge General Statutes (Rev. to 1985) § 54-47, authorizing such investigations. Furthermore, this court added that even if he had standing the defendant failed to prove beyond a reasonable doubt that because General Statutes (Rev. to 1985) § 54-47 authorized a judge to perform the functions of a grand juror it was unconstitutional. That decision is dispositive of this appeal.

There is no error.


text:
    Michael Palmieri v. Intermagnetics General Corporation
    (6498)
    Spallone, Daly and Foti, Js.
    Argued January 18
    decision released February 21, 1989

      Michael Moher, with whom, on the brief, was Daniel D. Skuret, for the appellant (plaintiff).

      William F. Gallagher, with whom, on the brief, were, Joseph F. Trotta and Kerrie C. Dunne, for the appellee (defendant).
   Per Curiam.

The plaintiff, Michael Palmieri, initiated a negligence action against the defendant, Intermagnetics General Corporation, for injuries and damages sustained in a fall on the premises of Chase Nuclear Building in Waterbury. The incident occurred when the plaintiff, in the course of his employment with Oliwa Painting Corporation, was sandblasting the walls of the Chase Nuclear Building and fell into an opening on the walkway of a machine causing injury to his left knee.

In its answer, the defendant denied control and denied that its negligence was the cause of the plaintiffs fall or that it was negligent in any respect, as alleged by the plaintiff. In its special defense, the defendant claimed that the incident was a result of the plaintiffs own negligence in that he had failed to be watchful of his movements and had failed to exercise proper care in the performance of his duties. The plaintiffs reply denied the defendant’s special defense.

After a trial, the jury returned a general verdict for the defendant.

The plaintiff in this appeal claims error in the court’s instructions with regard to the negligence of the defendant. The plaintiff did not object to the court’s charge on the defendant’s special defense of contributory negligence.

This case is controlled by the general verdict rule, which provides that if a jury renders a verdict for one party an appellate court, in the absence of relevant interrogatories, will presume that the jury found every issue in favor of the prevailing party. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987); Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981). The rule applies whenever a verdiet for one party could reasonably be rendered on one or more distinct causes of action; see Matthews v. F.M.C. Corporation, 190 Conn. 700, 706, 462 A.2d 376 (1983); or distinct defenses. See Royal Homes, Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463, 466, 199 A.2d 698 (1964); see also Bergmann v. Newton Buying Corporation, 17 Conn. App. 268, 271, 551 A.2d 1277 (1989).

In this case, we have no way of gleaning, from the record, the basis for the jury verdict for the defendant. “We are precluded from delving into the minds of the jurors in order to ascertain the basis and the rationale underlying their decision.” Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984). Regardless of any errors that might have been made during the court’s charge on negligence, there were no challenges to the court’s charge on the defendant’s special defense of contributory negligence as to which the evidence supports a verdict for the defendant. Where a jury reasonably could have reached its conclusion, its verdict should not be disturbed. Preisner v. Illman, 1 Conn. App. 264, 267, 470 A.2d 1237 (1984).

There is no error.

       The sole interrogatory propounded in this case gives no solace to the plaintiff. To the question, “Do you find that the plaintiff was upon the equipment with permission from Christopher Cole or Intermagnetics General Corp.?” the jury responded, “No.” Such response tends to support the verdict for the defendant on its special defense of contributory negligence.


author: Norcott, J.

text:
    State of Connecticut v. Willie E. Thompson
    (6656)
    Dupont, C. J., Spallone and Norcott, Js.

      Argued December 7, 1988
    decision released February 21, 1989

      John S. Pinney, with whom, on the brief, was Thomas E. Gaffey, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, was Richard Schatz, former assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from a judgment of conviction of three counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), three counts of unlawful restraint in the first degree in violation of General Statutes § 53a-95, one count of possession of a sawed-off shotgun in violation of General Statutes § 53a-211, and one count of burglary in the third degree in violation of General Statutes § 53a-103 (a). On appeal the defendant raises three claims of instructional error: (1) that the trial court failed to follow the mandate of General Statutes § 54-84 (b) regarding the silence of the defendant; (2) that it unconstitutionally diluted the state’s burden of proving guilt beyond a reasonable doubt in instructing the jury on circumstantial evidence; and (3) that it misled the jury in its instruction on the element of possession for the crime of possession of a sawed-off shotgun.

From the evidence presented at trial, the jury reasonably could have found the following facts. On January 23, 1983, at about 8:30 p.m., a robbery occurred at Scooby’s Restaurant in Groton. On that evening, Michael Thompson, Diana Sliker and Gretchen Crowley were employed there. While they were in the process of closing the restaurant, two masked men entered; one of the men carried a shotgun. The intruders forced the three employees to lie on the floor and bound their hands with coat hangers and their feet with an extension cord. After they searched Thompson’s back pockets but found no money, they emptied the safe and the cash register, took the money from the other employees’ pocketbooks and fled.

On February 7,1983, detectives from the Waterford police department interviewed the defendant. During this interview, the defendant confessed to his participation in the Scooby’s Restaurant robbery. He told the police that he was wearing a ski mask and gloves and was carrying a shotgun. The defendant also told the police that he and his accomplice then went to New London where they split up the money and that, thereafter, he arranged for someone to dispose of the shotgun.

In addition to the defendant’s confession, two other witnesses, Dinah McNair, the defendant’s niece, and Susan Pemberton, the defendant’s former girlfriend, testified that the defendant had told them that he had committed the robbery. The jury also heard additional testimony regarding the shotgun. Pamela Delome, the defendant’s neighbor, testified that the defendant had kept the shotgun under her mattress during January, 1983, and that she often had seen him leave and return with it. She also testified that the defendant had kept masks, ammunition, knives and dynamite in her apartment. Arthur Hewitt, the defendant’s brother-in-law, testified that he had found the shotgun under his bed on February 6,1983, and had thrown it in the Thames River, where the police located it on February 22,1983. Michael Gomez, another brother-in-law of the defendant, identified the shotgun as his but testified that it had not been sawed off the last time he saw it. He also testified that in January he had hired the defendant to work for him and that he had discovered the shotgun missing sometime in February. The defendant presented no evidence at trial.

The defendant first contends that the trial court erred in its instructions to the jury by failing to follow the mandate of General Statutes § 54-84 (b) regarding the silence of the defendant. We first note that at trial the defendant did not request an instruction regarding his failure to testify and did not take exception to this portion of the charge. The defendant claims review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and under the plain error doctrine. Practice Book § 4185.

Our Supreme Court has repeatedly held that “a claim of trial court noncompliance with § 54-84 (b) is reviewable on appeal even though the defendant, as in this case, did not at trial except to the charge as given. The statute ‘serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial’; State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); and it is ‘plain error for a trial judge not to comply with [its] mandate.’ State v. Tatem, 194 Conn. 594, 595-96, 483 A.2d 1087 (1984).” State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988). Accordingly, we will afford this claim plain error review.

General Statutes § 54-84 (b) provides in pertinent part that the trial court “shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” The trial court gave the following instruction to the jury regarding the defendant’s decision not to testify: “Now an accused person is not obliged to take the witness stand, or to offer any evidence in his own behalf, and no inference of guilt may be drawn from the failure of the defendant to testify in this case.” The defendant argues that the trial court’s use of the words “of guilt” allowed the jury to speculate on the defendant’s bad character or possible criminal record even though the instruction prohibited an inference of guilt. We disagree.

Judicial noncompliance with § 54-84 (b) does not automatically warrant a reversal and a new trial. State v. Townsend, supra. A minor departure from the language of the statute is not reversible error. State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891 (1987). “We must decide, on a case by case basis, whether a trial court’s failure fully to comply with the statute was harmless. State v. Cobb, 199 Conn. 322, 324-25, 507 A.2d 457 (1986). Because such an error is of constitutional dimension, ‘[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.’ State v. Sinclair, supra, 584; State v. Cobb, supra, 325; State v. Tatem, supra, 599. In the present context, the state must show that the charge as given conveyed to the jury the substantive meaning of the statutory requirement. State v. Cobb, supra; State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985).” State v. Townsend, supra, 625-26.

In the present case, the trial court repeatedly instructed the jury that the state alone bore the burden of proving the defendant’s guilt beyond a reasonable doubt and that the defendant was presumed innocent until proven guilty and stood before the jury “free from any bias, prejudice, or burden arising from his position as the defendant.” Additionally, the trial court specifically instructed the jury that it was the state’s evidence alone which must establish the defendant’s guilt. We also note that the court’s pretrial instructions were replete with references to the aforementioned principles of law concerning the presumption of innocence and thereby served to emphasize the court’s later jury instructions.

We find that the court’s deviation from the statutory language of General Statutes § 54-84 (b) was not the type that, in the context of the entire charge, would mislead the jurors by suggesting that it was permissible for them to consider the defendant’s silence in deciding the case; see State v. Townsend, supra; State v. Tatem, supra. The charge, as given, conveyed to the jury the substantive meaning of General Statutes § 54-84 (b). Accordingly, we find that the defendant’s claim must fail.

The defendant’s second claim of instructional error is that the trial court’s “more probable than not” reference concerning circumstantial evidence impermissibly diluted the state’s burden that it prove every essential element of the crime charged beyond a reasonable doubt. Again, the defendant took no exception to the court’s instruction, but we routinely grant Evans review to these claims that involve the fundamental constitutional right that the state establish each element of the defendant’s guilt beyond a reasonable doubt. See State v. Mercer, 208 Conn. 52, 72, 544 A.2d 611 (1988); State v. Flinter, 16 Conn. App. 402, 405, 548 A.2d 1 (1988).

It is axiomatic that an instruction that dilutes the state’s burden to prove each and every element of the crime charged is unconstitutional. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984). Jury instructions similar to the one before us in which the trial court instructs the jury that it may infer facts based on a “more probable than not” standard are erroneous. See State v. Hufford, 205 Conn. 386, 407, 533 A.2d 866 (1987); State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); see also State v. DeMatteo, 13 Conn. App. 596, 538 A.2d 1068 (1988). “We have repeatedly disapproved of the use of the more probable than not standard in instructions on circumstantial evidence. [State v. Gonzalez, 205 Conn. 673, 692, 535 A.2d 345 (1987)]; State v. Robinson, 204 Conn. 207, 211, 527 A.2d 694 (1987). In resolving the further question of whether such instructions were harmful beyond a reasonable doubt, we have applied a bifurcated standard of review. ‘ “ ‘Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.’ State v. Robinson, [supra, 210], . . .” ’ State v. Gonzalez, [supra,] 690-91; State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Otherwise, we consider the erroneous instruction in the context of the charge as a whole to determine whether it is ‘reasonably possible that the jury was misled.’ State v. Gonzalez, [supra]; State v. McDonough, supra.” State v. Mercer, supra, 73.

In this case, the principal factual issue at trial was identity, and the direct evidence relative to the issue was strongly against the defendant. There was, in fact, very little circumstantial evidence for the jury to consider. The most significant part of the direct evidence was the defendant’s own confession regarding every element of the crimes with which he was charged. This confession to the police was abundantly supported by other corroborative evidence including the testimony of the defendant’s relatives, a neighbor and a former girlfriend. See State v. Arnold, 201 Conn. 276, 286-87, 514 A.2d 330 (1986).

Because the issue before us concerns the element of identity, we have reviewed the challenged language in the context of the entire charge and note that the court instructed the jury (1) on the presumption of innocence, (2) on the state’s burden to prove the defendant’s guilt beyond a reasonable doubt, an instruction that the court repeated at least fifteen times, (3) on the definition of “reasonable doubt,” and (4) on the state’s burden to prove each element of the crimes charged beyond a reasonable doubt. Additionally, the trial court instructed the jurors that they were to find all the “facts” proven beyond a reasonable doubt. In light of this entire charge, we are satisfied that it was not reasonably possible that the jury was misled by the challenged language and that the use of this language, while erroneous, was not harmful beyond a reasonable doubt.

The defendant also contends that the trial court erred in its jury instruction regarding the element of possession for the crime of possession of a sawed-off shotgun, a violation of General Statutes § 53a-211. The defendant once again seeks Evans review of this claim because he took no exception to the challenged instruction at trial.

The defendant argues that the court’s instruction on accessory culpability misled the jury as to the proof of possession required to convict the defendant of possession of a sawed-off shotgun and thus abridged his due process rights under the sixth and fourteenth amendments to the United States constitution and the constitution of Connecticut, article first, § 8. “The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975); State v. Anonymous, 179 Conn. 516, 519, 427 A.2d 403 (1980); State v. Griffin, 175 Conn. 155, 162, 397 A.2d 89 (1978); 1 Wharton, Criminal Evidence (13th Ed.) § 10.” State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984). Because the defendant’s claim involves the fundamental rights of an accused to a fair trial and for the state to prove each element of the crimes charged, we will review his claim under Evans. State v. Vessichio, 197 Conn. 644, 648-49, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986); State v. Payne, 12 Conn. App. 408, 411-12, 530 A.2d 1110 (1987).

In its general instructions, the court stated in pertinent part that “if two or more persons participate in a crime they are equally responsible.” The court related this instruction on accessory liability to “any of the crimes alleged in the information” and gave as examples of its instruction the following: “The defendant would be guilty of such crime although, for example, he was the one [sic] who actually took the items stolen, or the one who actually tied up the store employees.” Subsequent to its general instructions, the court gave very specific instructions regarding the shotgun charge. The defendant contends that the court’s general instruction misled the jury into believing that they could convict the defendant of possession of a sawed-off shotgun as an accessory, even if he himself did not have possession of it.

To begin our analysis of this claim, we note that although the transcript indicates that the court omitted the word “not” from the challenged sentence, it is clear from the context and from the instruction as a whole that the court conveyed to the jury the idea that the defendant would be guilty of a crime even if his fellow perpetrator was the one who actually took the money or tied up the employees. Although this instruction was improper, under the circumstances present here, we conclude that the error was harmless. “ ‘An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury was misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982).’ ” State v. Tatem, supra, 599, quoting State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982), cert denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983).

We first note that the court immediately followed the challenged language with examples relative only to the crimes of robbery and unlawful restraint. We find it significant that the court did not include the crime of possession of a sawed-off shotgun in its examples of accessory culpability and that the improper language was included in the court’s general rather than in its specific instructions regarding the separate crimes charged. When the court did give specific instructions regarding possession of the shotgun, it did so clearly, definitively and correctly. The court told the jury of the concepts of “actual” and “constructive” possession and then, after defining the concepts, stressed that, in the present case, the state needed to prove the defendant’s “actual” possession. Furthermore, we note that the jury heard the totality of these instructions against the background of the state’s very strong case of the defendant’s actual possession of the shotgun.

From our review of the entire charge, we are satisfied that the court’s use of the challenged language was adequately clarified and corrected by subsequent language in its charge. We therefore conclude that the error was harmless because it was not reasonably possible that the jury was misled into believing that they could convict the defendant as an accessory to possession of a shotgun. We are convinced that the jury convicted the defendant based on the state’s proof beyond a reasonable doubt of his actual possession of that weapon.

There is no error.

In this opinion the other judges concurred.

       The defendant also was convicted of being a persistent dangerous felony offender in violation of General Statutes § 53a-40 (a).

       In State v. Boulware, 183 Conn. 444, 441 A.2d 1 (1981), our Supreme Court held harmless an instruction almost identical to that in the present case. The trial court in Boulware had charged that the jury “may not draw any unfavorable inference as to [the defendant’s] guilt merely because of his failure or refusal to testify.” The Supreme Court rejected the defendant’s 54-84 (b) claim, the substance of which mirrored the 54-84 (b) claim before us, and concluded that “the defendant has viewed the instruction in a far too technical manner. . . . We think a reasonable juror hearing this instruction within the context of the entire charge would naturally assume that the defendant’s silence formed no part in the case.” (Citations omitted.) Id., 447-48.

       The trial court’s full instruction on the use of circumstantial evidence was as follows: “Now, with reference to circumstantial evidence, proof beyond a reasonable doubt does not mean that you must have direct evidence supporting a fact. You may apply the rule of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact, or a set of facts. Such an inference may be made provided two elements in the application of this rule are satisfied. First, that the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt; and second, that the inference asked to be drawn is not only logical and reasonable, but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true.”

       General Statutes § 53a-211 provides in pertinent part: “A person is guilty of possession of a sawed-off shotgun . . . when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches . . . .”

       We note that the defendant failed to brief the basis of his state constitutional argument and accordingly we consider it abandoned. See State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Magnano, 204 Conn. 259, 265 n.4, 528 A.2d 760 (1987).

       The text of the court’s general instructions on accessory liability reads in pertinent part as follows: “Accordingly, if you find that the defendant was one of the two robbers allegedly involved in the offenses which are before you, and further, that the defendant did anything to aid, to assist, to inspire, or to encourage the commission of any of the crimes alleged in the information with the necessary intent, the defendant would be guilty of such crime although, for example, he was the one [sic] who actually took the items stolen, or the one who actually tied up the store employees.”

       The trial court’s specific instructions regarding “possession of a sawed-off shotgun” read as follows: “The seventh count of the second substituted information charges the defendant with the crime of possession of a sawed-off shotgun in violation of Section 53a-211 of the General Statutes, and reads as follows: ‘And said Attorney further charges that at the Town of Groton, on or about the 23rd day of January, 1983, the said WILLIE E. THOMPSON, on Long Hill Road, did commit the crime of illegal possession of a sawed-off shotgun, in violation of Section 53a-211 of said Statutes.’
      “Section 53a-211 of the Penal Code provides in pertinent part as follows: 'A person is guilty of possession of a sawed-off shotgun . . . when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches.’
      “The first element of this offense is that the defendant knowingly possessed a sawed-off shotgun. An act is done knowingly if it is done voluntarily and purposefully. Knowledge may be inferred from facts and circumstances in this case.
      “The second element is possession of a shotgun, sawed-off shotgun. The law recognizes two kinds of possession: First, actual possession and second, constructive possession. A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. An example of actual possession, is I possess this pen, which is in my hand.
      “Now, it’s the claim of the State, of course, that the defendant had actual possession of a sawed-off shotgun, State’s Exhibit 2, which will be given to you, on January 23, 1983, on or about Scooby’s Restaurant.
      “The third element of this offense is that the shotgun possessed, and I will remind you of the definition of shotgun which I gave to you before, must have a barrel of less than eighteen inches or an overall length of less than twenty-six inches. The State has offered evidence that the barrel of the shotgun, State’s Exhibit 2, which it claims the defendant possessed, is fourteen inches long, and that the overall length of the shotgun is twenty-five inches.
      “If you find it proven beyond a reasonable doubt that the defendant possessed a sawed-off shotgun he would be guilty of a violation of this statute as alleged in the seventh count of the substituted information. On the other hand, if you do not find it proven beyond a reasonable doubt that the accused possessed a sawed-off shotgun then he would not be guilty of the seventh count of the information.”