author: Landau, J.

text:
    Board of Education of the City of Hartford v. Hartford Federation of School Secretaries
    (10166)
    Foti, Landau and Heiman, Js.
    Argued November 8, 1991
    decision released January 7, 1992

      Helen Apostolidis, assistant corporation counsel, for the appellant (plaintiff).

      Brian A. Doyle, for the appellee (defendant).
   Landau, J.

The plaintiff Hartford board of education (board) appeals from the judgment of the trial court denying its application to vacate an arbitration award brought pursuant to General Statutes § 52-418 and concomitantly granting an application by the defendant Hartford Federation of School Secretaries (federation) for an order confirming the award. The trial court concluded that the board failed to sustain its burden of proof. We agree.

The board and the federation entered into a collective bargaining agreement containing a multistep grievance procedure that culminated in arbitration. Pursuant to that agreement, the federation filed a grievance alleging that one of its retired members, Laura Rycyna, was denied her full severance pay as a result of a miscalculation by the board. The dispute proceeded to arbitration. The issue submitted was as follows: “Did the Board violate Article VII, Section C.3 of the 1984-1988 contract in computing the amount of severance due to Laura Rycyna?” At the arbitration hearing both parties presented evidence regarding the specific amount of severance pay to which the grievant was entitled, and how that computation was made.

The arbitration panel issued the following award, which the trial court confirmed: “The Board is ordered to pay the Grievant’s estate the additional sum of $344.79 which would have been paid had the formula for computing severance pay included both part sick days and full sick days.” On appeal, the plaintiff claims that the trial court improperly found that the arbitrators did not exceed their authority and that the award conformed to the submission. It argues that the submission sought only a yes or no response and not a determination of a remedy.

It is undisputed that arbitration awards are generally upheld and that we give great deference to an arbitrator’s decisions since arbitration is favored as a means of settling disputes. Board of Education v. AFSCME, 195 Conn. 266, 270, 487 A.2d 553 (1985); Board of Education v. Local 818, 5 Conn. App. 636, 639, 502 A.2d 426 (1985); Trumbull v. Trumbull Police Local 1745, 1 Conn. App. 207, 211-12, 470 A.2d 1219 (1984). Although a party to arbitration is entitled to judicial review, the autonomous nature of the arbitration process dictates minimal intrusion by the courts. Middle-town v. Police Local, No. 1361, 187 Conn. 228, 230, 445 A.2d 322 (1982). The scope of judicial review of an arbitration award is limited by General Statutes § 52-418 and by the terms of the contract between the parties. Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 22, 453 A.2d 1158 (1983); Trumbull v. Trumbull Police Local 1745, supra. Specifically, review is limited to a comparison of the award with the submissions and to a determination of whether the award conforms to the submissions. Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 338-39, 555 A.2d 406 (1989); American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 186, 530 A.2d 171 (1987); O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 153, 523 A.2d 1271 (1987); Stratford v. Local 134, IFPTE, 201 Conn. 577, 584, 519 A.2d 1 (1986); Caldor, Inc. v. Thornton, 191 Conn. 336, 340, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985). The submission defines the scope of the entire arbitration proceedings by specifically delineating the issues to be decided and no matter outside the submission may be included in the award. Hartford v. Local 760, 6 Conn. App. 11, 14, 502 A.2d 429 (1986); see Oldread v. National Union Fire Ins. Co. of Pittsburgh, 5 Conn. App. 517, 519-20, 500 A.2d 956 (1985). The court may not review the award for errors of law or fact. Bic Pen Corporation v. Local No. 134, 183 Conn. 579, 584, 440 A.2d 774 (1981); Hartford v. IAFF, Local 760, AFL-CIO, CLC, 24 Conn. App. 254, 256-57, 587 A.2d 435 (1991).

Where the parties have consented to arbitration and have framed the issues submitted, we “make every reasonable presumption in favor of the arbitration award and the arbitrator’s acts and proceedings.” O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra 145; Bic Pen Corporation v. Local No. 134, supra, 585; Trumbull v. Trumbull Police Local 1475, supra, 212. The burden of demonstrating the nonconformity of the award to the submission is on the party seeking to vacate the award. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 145-46; Bruno v. Department of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983); Bic Pen Corporation v. Local No. 134, supra. On the basis of the record provided in this case we conclude that the trial court acted properly in determining that the plaintiff did not meet this burden.

Article VII, § C.3 of the collective bargaining agreement provides in relevant part: “Upon retirement of an employee, such employee shall be entitled to receive, on the basis of his/her current wages, a maximum of of sixty (60) days for twelve month employees and fifty (50) days for ten (10) month employees or twenty percent (20%) of the total unused sick leave days of the person’s total period of employment, whichever is greater.” The submission sought a determination of whether the severance pay due the grievant was calculated correctly. At the hearing, the parties submitted evidence directed to the computation of the severance pay. Thus, it is apparent that the submission sought an independent computation of the amount of the severance pay due the grievant. This is precisely what was done. It is irrelevant that the submission does not make a specific request for a remedy because a determination of the proper amount due the grievant is implicit in the submission. Thus, although the submission does not expressly ask what the remedy should be, it is clear that it was the parties’ intent that the arbitrators fashion an appropriate remedy. Because the plaintiff has failed to demonstrate that the award does not conform to the submission, the trial court properly denied the motion to vacate the award.

The judgment is affirmed.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Sharon Barnett v. James Barnett
    (8644)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued October 4, 1991
    decision released January 7, 1992

      Robert K. Lesser and Patricia J. Conway filed a brief for the appellant (defendant).

      Jonathan J. Klein, for the appellee (plaintiff).
   O’Connell, J.

The defendant appeals following the denial of his motion to open and set aside the judgment dissolving his marriage. He claims that the trial court improperly failed to open and set aside the award of lump sum alimony and the distribution of marital assets because the judgment was based upon a mutual mistake as to the equity in the marital home. The plaintiff also claims that the doctrine of impossibility of performance and the equitable principles of justice and fairness substantiate his contention that the trial court acted improperly in denying his motion to open the judgment. We affirm the judgment of the trial court.

The record discloses that the marriage between the parties was dissolved on February 16, 1989, at which time the trial court adopted the agreement of the parties as read into the record by them during the course of the trial. The relevant portions of the agreement provided that the marital residence would be listed for sale at an asking price of not less than $325,000. The defendant guaranteed that the plaintiff would receive $50,000, with $15,000 to be advanced within two weeks from the date of dissolution and the balance to be paid at the real estate closing. In the event that the net proceeds of the sale exceeded $50,000, the plaintiff would keep the excess. Also, depending on the sale price, the defendant would be reimbursed the $15,000 from the sale proceeds or would pay the plaintiff any unpaid portion of the $35,000 balance. In the event of a shortfall in the sale price, the defendant would hold the plaintiff harmless from any deficiency.

At the time the judgment was rendered, both parties were aware that a mortgage foreclosure had progressed to the stage that a date for a foreclosure sale had been set. The parties’ aspiration that a private sale might avoid a less advantageous foreclosure sale was not realized and about three months later, the third mortgagee purchased the property at the foreclosure sale for $245,000. This purchase triggered the defendant’s guarantee to pay the plaintiff the remaining $35,000.

We commence our analysis with a determination of the nature of the defendant’s $50,000 guarantee. It is clear that no matter what price the property brought, the plaintiff was to receive $50,000. Such an award constitutes lump sum alimony which is a final judgment not modifiable by the court even if there is a change in circumstances. Turgeon v. Turgeon, 190 Conn. 269, 282, 460 A.2d 1260 (1983); Miller v. Miller, 16 Conn. App. 412, 416, 547 A.2d 922, cert. denied, 209 Conn. 823, 551 A.2d 430 (1988). When a judgment is rendered based on the parties’ agreement, however, it may be opened if there is a showing that it was obtained through fraud; Billington v. Billington, 220 Conn. 212, 217-18, 596 A.2d 1377 (1991); or mutual mistake. Solomon v. Keiser, 22 Conn. App. 424, 427, 577 A.2d 1103 (1990).

On appeal, the defendant argues that the judgment arose out of a mutual mistake concerning the equity in the marital home. Mutual is the key word here. Even if we assume, arguendo, that the defendant, an experienced real estate broker, did not realize that in this day of falling real property values a foreclosure sale would bring a price substantially below the appraised value, he nevertheless fails to demonstrate that the plaintiff was likewise mistaken. If both parties were certain that the sale price would be adequate to pay the plaintiff at least $50,000, no guarantee would have been required. A simple statement that the plaintiff would receive $50,000 from the net proceeds of the sale would have sufficed. The plaintiff, however, did not agree to such a provision. Rather, she protected herself with the defendant’s guarantee that if the house was sold at a low price she would nevertheless receive $35,000 in addition to the $15,000 that the defendant would pay her two weeks after the dissolution. We are not persuaded that the parties intended this guarantee to be tied to their opinions of the property value or to the net sales price.

The defendant next argues that because of the low foreclosure sale price he lacks the money to carry out the agreement and therefore performance of the agreement is rendered impossible. Our law recognizes that performance of a contract is excused when the thing to be done becomes impossible. See Straus v. Kazemekas, 100 Conn. 581, 588-89, 124 A. 234 (1924). The Straus court articulated an example of the type of impossibility which would excuse performance of a contract as the following: If a person contracts to deliver a certain horse at a future time and the horse dies before the delivery date, the law will excuse performance because it is presumed that the parties contracted for delivery on the condition that the horse would be alive on the delivery date. Id. Here, the foreclosure sale had already been ordered when the defendant voluntarily entered into the agreement upon which the judgment was founded. There is, therefore, no basis for the defendant’s contention that he expected a private sale to have resulted in a greater sale price thereby leaving him with sufficient funds to pay this guarantee.

At best, the defendant’s position amounts to a claim that the judgment should be opened and set aside on the ground of impossibility of performance because he does not have the money to carry out the agreement. We determined earlier in this decision that the defendant’s guarantee was a final judgment. The defendant has furnished us with no Connecticut authority, nor are we aware of any, that allows a party to avoid payment of a judgment on the basis of impossibility of performance due to lack of funds. Furthermore, we note that the record does not support the defendant’s contention that he lacks sufficient resources from which he can satisfy the judgment. Among other assets the defendant could liquidate is a business that he has offered for sale for $185,000.

The defendant’s final argument, to the effect that equity required the trial court to grant relief, is merely a summary of his mutual mistake and impossibility of performance arguments and therefore requires no further discussion by us.

The trial court properly declined to open the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff moved for dismissal of this appeal because of the defendant’s failure to be present before this court for argument. We reserved decision on the motion and now deny it. We will decide the appeal on its merits.

       “Net proceeds” was defined as the purchase price less the amount due on three mortgages, together with tax payments, adjustments, broker fees and reasonable attorney’s fees.

       Upon receipt of the balance of the $50,000, the plaintiff was to transfer to the defendant, her shares of stock in his business.

       “[Plaintiff’s Counsel to the Plaintiff]: Now, your husband guarantees that all mortgages, [lien]-holders, attorney’s fees, everything in connection with this property, that—these payments, if there is a shortfall in the sale of the house—that he will see that these things are paid, and he will hold you harmless.

        “[Defense Counsel]: What he has agreed to do—You are reading more into it than it says. What he has agreed to do, there will not be the deficiency against her. That is what is guaranteeing.
      “[Plaintiff’s Counsel]: No deficiency against the wife?
      “[Defense Counsel]: Correct.
      “[Plaintiff’s Counsel]: And he is going to hold her harmless.
      “[Defense Counsel]: He is going to guarantee her fifty thousand.”


author: Lavery, J.

text:
    Mary Jane Catania v. Joseph Catania
    (9936)
    Norcott, Lavery and Landau, Js.

      Argued September 30, 1991
    decision released January 14, 1992

      Dennis C. LaGanza, for the appellant (defendant).

      Timothy A. Daley, with whom, on the brief, was Robert J. Williams, for the appellee (plaintiff).
   Lavery, J.

This case concerns the liability of the defendant, Joseph Catania, on a promissory note executed on December 14,1983. The trial court found that the defendant was a comaker of the note and rendered judgment for the plaintiff, Mary Jane Catania, in the amount of $18,629.98, plus interest, costs and attorney’s fees. On appeal, the defendant claims that (1) the trial court improperly ruled that he was a comaker instead of an accommodation maker, and (2) he is discharged from liability pursuant to General Statutes § 42a-3-606. We affirm the judgment of the trial court.

The trial court found the following facts. The property securing the note at issue is located in the town of Enfield and was acquired by the defendant’s mother in 1976. She purchased the property for the benefit of the plaintiff and Vincent Catania, who were married at that time and used the property as their principal residence. Vincent is the defendant’s brother and the plaintiff’s former husband. At the time of the transaction, the plaintiff and Vincent agreed to pay the mortgage and real estate taxes on the property. Title, however, remained in the name of Vincent’s mother.

In 1977, Vincent’s mother conveyed the property to her son Joseph, the defendant, without Joseph’s knowledge or consent. The defendant did not learn that he was record owner of the property until some time after 1980, when he received a tax notice from the town of Enfield. The defendant’s role was strictly that of a trustee because he did not obtain any benefit from the property.

The plaintiff and Vincent were divorced in 1980. The divorce decree provided that Vincent was to pay the mortgage payments, homeowners’ insurance premiums and real estate taxes until their youngest child reached age eighteen. The divorce decree further provided that upon certain conditions, the property was to be sold, with the proceeds to be divided equally between the plaintiff and Vincent. The defendant, although record owner of the property, was not a party to the divorce proceedings. The plaintiff failed to record the judgment on the land records, and the defendant remained record owner of the property.

In 1982, Vincent caused a second mortgage to be taken out on the property. The New England Bank and Trust Company was the lender. The defendant, as record owner of the property, signed a loan guarantee agreement pledging the property as collateral to secure his brother’s loan. The loan agreement contained a reservation of rights clause. The defendant received no benefit from this loan. Rather, Vincent used the proceeds to pay past due mortgage payments, property taxes and other bills.

In 1983, the defendant and Vincent executed the note at issue in this appeal. This note also was secured by a mortgage on the property that served as collateral for the prior loan. The defendant and Vincent signed this note on a line labeled “borrower’s signature,” and the defendant executed a mortgage deed in favor of the New England Bank and Trust Company to secure the loan. Again, the defendant received no benefit from this loan. Vincent used the proceeds to pay property taxes and to satisfy his obligation on the 1982 indebtedness.

The plaintiff obtained a judgment that quieted title in her name in 1986. The judgment paralleled the terms of the divorce decree. Between 1988 and 1989, Vincent stopped making mortgage payments on both the first and second mortgages on the property. In May, 1989, New England Bank and Trust Company brought an action to foreclose the note and mortgage. The defendant, Vincent, the plaintiff, and her minor children were all named defendants. On May 24, 1989, the plaintiff paid New England Bank and Trust in exchange for an assignment of the 1983 promissory note. Vincent had filed for bankruptcy under the Federal Bankruptcy Code on May 19,1989. He was granted a discharge in bankruptcy on September 26, 1989. The plaintiff had unsuccessfully opposed Vincent’s attempt to discharge the debt to the bank.

The present action was commenced on August 22, 1989, with the plaintiff seeking payment of the note plus interest, costs and attorney’s fees. At trial, the plaintiff maintained that the 1983 promissory note was validly negotiated by New England Bank and Trust to the plaintiff who became a holder, and that the defendant, as a maker, owed the plaintiff the value of the note. Although the defendant asserted that he was merely acting as an accommodation party for Vincent, the trial court found that he introduced no facts to show that New England Bank and Trust Company knew or accepted him as an accommodation party. The only evidence the defendant introduced to show he was an accommodation party pointed to the fact that he signed both the guarantee agreement in 1982 and the promissory note in question in 1983 to accommodate Vincent.

The defendant first asserts that the trial court improperly ruled that he was a comaker of the installment loan note executed in 1983 because he proved his status as an accommodation maker pursuant to General Statutes § 42a-3-415. Because an accommodation party signs an instrument for the purpose of lending his name to another party to it, the essential character of an accommodation party is that of a surety. General Statutes § 42a-3-415 (1). An accommodation party can sign a note in any capacity—as a maker, acceptor, drawer or endorser. 1 J. White & R. Summers, Uniform Commercial Code (3d Ed.) § 13-13, p. 657. Except as against a holder in due course, without notice of accommodation, “the accommodation character [of an instrument] may be shown by oral proof.” General Statutes § 42a-3-415 (3); Bizzoco v. Chinitz, 193 Conn. 304, 308, 476 A.2d 572 (1984). The defendant, as the party claiming accommodation status, bears the burden of proving his accommodation status, which includes proof of the original holder’s knowledge or acceptance of him as an accommodation maker. Bizzoco v. Chinitz, supra, 308-309.

The intention of the parties is an important factor to consider when determining accommodation status. Kerney v. Kerney, 120 R.I. 209, 214, 386 A.2d 1100, 1102 (1978); Dalton v. George B. Hately Co., Inc., 634 S.W.2d 374, 378 (Tex. App. 1982); Utah Farm Production Credit Assn. v. Watts, 737 P.2d 154, 158 (Utah 1987). “[I]t is a question of the intention of the person claimed to be an accommodation party, the person who would be the accommodated party, and the person who was the holder of the paper when the alleged accommodation party signed.” (Emphasis in original.) Utah Farm Production Credit Assn. v. Watts, supra; 6 R. Anderson, Uniform Commercial Code (3d Ed.) § 3-415:16.

The intention of the parties as to accommodation status is a factual issue. See MacArthur v. Cannon, 4 Conn. Cir. Ct. 208, 214, 229 A.2d 372 (1967). As such, it is within the sole province of the trier of fact to decide. Tyers v. Coma, 214 Conn. 8, 12-13, 570 A.2d 186 (1990). The trial court’s determination of intent is not reviewable unless the conclusion drawn is one that cannot be reasonably made. Rebillard v. Hagedorn, 6 Conn. App. 355, 357, 505 A.2d 731 (1986); Lord v. Stavrakis, 6 Conn. App. 161, 162, 503 A.2d 629, cert. denied, 199 Conn. 804, 506 A.2d 146 (1986). As a reviewing court, we cannot sift and weigh evidence, for to do so would usurp the role of the trial court. State v. Cofield, 220 Conn. 38, 49, 595 A.2d 1349 (1991); Essex Savings Bank v. Leeker, 2 Conn. App. 98, 102, 476 A.2d 1071 (1984).

A review of the trial court’s memorandum of decision discloses that the court examined both the note itself and the parol evidence presented by the parties. The defendant concedes that the trial court did consider the parol evidence presented, but asserts that the court failed to focus on the most significant factors underlying the parties’ intentions. Although § 42a-3-415 (3) permits the admission of parol evidence to establish the accommmodation status of a party to a note, it does not compel the trier of fact to conclude that the accommodation status has been proven. Bizzoco v. Chinitz, supra, 308. In the present case, the trial court found that the defendant held the property which was the collateral for the note as a trustee for Vincent. The trial court further found that the defendant introduced no evidence to show that the bank, as holder of the note, had notice, knew or accepted him as an accommodation maker. Consequently, the trial court ruled that the defendant was a comaker, rather than an accommodation maker.

“Where supported by the evidence, as in this case, the trial court’s findings of fact are outside the review of this court. Our function in this regard is limited solely to the determination of whether or not the decision of the trial court was clearly erroneous.” Thomas F. Golden Realty Co. v. Echo Six, 9 Conn. App. 52, 56, 514 A.2d 390 (1986); Practice Book § 4061. We conclude that the trial court’s decision was not clearly erroneous.

The defendant next claims that he is discharged from liability pursuant to General Statutes § 42a-3-606 because the plaintiff altered the terms for payment of the note and impaired the collateral securing the note. The suretyship defenses as set forth in § 42a-3-606, however, are available only to a party who is in the position of surety. See General Statutes § 42a-3-606. As White and Summers note in their work on the Uniform Commercial Code, “[sjection 3-606 (a) (1) specifies changes in the legal relationship between debtor and creditor that discharges the surety.” (Emphasis added.) J. White & R. Summers, supra, § 13-15. A comaker of a note is not a surety. Because the trial court found that the defendant was a comaker of the note and not an accommodation maker, he cannot avail himself of the suretyship defenses as set forth in § 42a-3-606. Official comment 1 to General Statutes § 42a-3-606; J. White & R. Summers, supra, § 13-13.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 42a-3-415 provides: “contract of accommodation party. (1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
      “(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation.
      “(3) As against a holder in due course and without notice of the accommodation oral proof of the accommodation is not admissible to give the accommodation party the benefit of discharges dependent on his character as such. In other cases the accommodation character may be shown by oral proof.
      “(4) An endorsement which shows that it is not in the chain of title is notice of its accommodation character.
      “(5) An accommodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.”

       The plaintiff concedes that she is not a holder in due course.

       General Statutes § 42a-3-606 provides in pertinent part: “impairment of recourse OR of collateral. (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder (a) without express reservation of rights releases or agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person, except that failure or delay in affecting any required presentment, protest or notice of dishonor with respect to any such person does not discharge any party as to whom presentment, protest or notice of dishonor is effective or unnecessary . . . .”


author: Daly, J. Laveky, J.,

text:
    State of Connecticut v. Robert Hopes
    (9202)
    Daly, Foti and Lavery, Js.
    Argued October 1, 1991
    decision released January 14, 1992

      Alexander H. Schwartz, for the appellant (defendant).

      Paul J. FerenceJc, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of carrying a pistol without a permit in violation of General Statutes § 29-35 and criminal possession of a firearm in violation of General Statutes § 53a-217. He was acquitted of attempt to commit first degree assault in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1). The defendant claims (1) that the trial court improperly refused to charge the jury that duress is a defense to the charges of carrying a pistol without a permit and criminal possession of a firearm, (2) that the court incorrectly defined the meaning of carrying as used in § 29-35 when charging the jury and that there was insufficient evidence to support a conviction for carrying a pistol without a permit, and (3) that there was insufficient evidence concerning the operability of the pistol he possessed to support a conviction for criminal possession of a firearm. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. During the late evening hours of April 29,1989, Eric Peck, Michael Cassar, Steve Wall, Hank Bona and Jeff Pasonti were together at Demery’s nightclub in downtown New Haven. When Demery’s closed at 2 a.m on April 30, Peck and his friends went to Broadway Pizza. Wall waited there for his order while the others left the restaurant to eat in Bona’s car. Approximately ten minutes later, Peck returned to the crowded restaurant to look for Wall, who had already left. As Peck moved through the restaurant, he accidentally stepped on the defendant’s foot. According to Peck’s testimony, he apologized but the defendant responded by kicking him in the leg. They began to exchange words as Peck was going to the men’s room. Upon Peck’s return, the defendant stood up and challenged him to a fight. Peck was about to fight when he noticed that the defendant was accompanied by a group of people. He left the restaurant to get his friends and warned the defendant that he would return to fight.

After a few minutes, Peck returned to the restaurant with Cassar, Pasonti and Bona. As Peck and the defendant were about to fight, one of the defendant’s companions told Peck, “Don’t worry about him, he’s acting like a jerk because he’s wasted.” Upon hearing this, Peck changed his mind and decided not to fight the defendant. Peck then motioned to Cassar to leave the restaurant. Peck then saw the defendant point a pistol at Cassar’s head. Neither Peck nor Cassar saw where the defendant got the pistol. Thomas Jette, the manager of Broadway Pizza, testified that one of the defendant’s companions gave him the pistol as Peck and Cassar were approaching. Jette described the weapon as a black handgun. While pointing the gun at Cassar, the defendant said, “What are you going to do now, man?” Peck and Cassar fled the restaurant with their two other friends. The defendant was then seen leaving the restaurant with some of his friends.

Upon leaving the restaurant, Peck and his friends met with Wall, who was in an automobile about thirty yards from the restaurant. Less than one minute after leaving the restaurant, Peck and Cassar heard gunshots and felt something pass by their heads. Cassar felt a thrust of sand or some gravel strike his legs. They later reported this incident to the New Haven police who were unable to locate any shell casings or other evidence at the scene. Jette identified the defendant as a regular customer of Broadway Pizza. Peck and his friends all made positive photographic identifications of the defendant.

I

The defendant’s first claim concerns the trial court’s refusal to charge the jury on the defense of duress pursuant to General Statutes § 53a-14. The following facts are pertinent to this claim.

On April 12, 1990, after the defense had rested its case, the trial court instructed both sides that closing arguments and requests to charge should be ready for the next day at 2 p.m. The court then held an in camera charging conference at which the parties presented written requests to charge the jury. On April 13, just before closing arguments were to commence, defense counsel orally requested a charge on duress. The state objected and the trial court denied the oral motion. The court noted that the defendant was given sufficient time to submit proper written requests to charge. The trial court also concluded that giving a duress instruction would be unfair to the state because the state would be unable to respond to this new theory in its closing argument. The defendant did not take an exception to this ruling. There also was no objection by the defendant to the absence of the duress instruction following the court’s charge to the jury. The defendant failed to preserve the claim concerning the duress instruction by not offering a written request to charge and not taking exception to the charge given by the trial court. Practice Book § 852.

The defendant seeks review of this unpreserved claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant argues that the trial court’s failure to give the duress instruction violated his constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). Although there is a constitutional right to present a defense, the defendant has failed to demonstrate that the absence of a duress instruction to these charges constitutes a constitutional violation that “clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 240.

The defense of duress would not justify the carrying of a pistol without a permit. See State v. Bailey, 209 Conn. 322, 348, 551 A.2d 1206 (1988); State v. Holloway, 11 Conn. App. 665, 671 and n.6, 528 A.2d 1176 (1987). Claims of justification such as self-defense and duress are only relevant when the actor’s use of reasonable physical force is at issue. State v. Bailey, supra. The degree of force used by a person is not relevant in a prosecution for violating § 29-35. Id. The court in Bailey noted that “[ejven if the defendant’s conduct in carrying the pistol was factually inseparable from a threat by [the defendant] to use force, the only legal question arising from the conduct was whether she was carrying the pistol without a permit in violation of § 29-35.” Id., 348-49. Any duress this defendant may have experienced does not justify the carrying of a pistol without a permit.

As to the second count on which he was convicted concerning the criminal possession of a firearm, it is unclear whether a duress instruction was sought for that particular count. There was no specific explanation other than a general oral request that a duress instruction should be given to the jury. There also was no explanation by defense counsel for his failure to comply with Practice Book §§ 852 and 854. In the past, our Supreme Court has refused to review a defendant’s claim of a court’s failure to instruct on a defense where the defendant failed to comply with Practice Book §§ 852 and 854. State v. Jacobs, 194 Conn. 119, 128-29, 479 A.2d 226 (1984), cert. denied, 469 U.S. 1190, 105 S. Ct. 963, 83 L. Ed. 2d 968 (1985). InState v. Jacobs, supra, the defendant sought an instruction on the defense of intoxication but failed to file a written request to charge or to take an exception to the lack of instruction. This is exactly what occurred in this case. “When the principal participant in the trial whose function is to protect the rights of his client does not deem an issue harmful enough to press in the trial court, the appellate claim that the same issue clearly deprived the defendant of a fundamental constitutional right . . . is seriously undercut.” (Citation omitted.) State v. Huff, 10 Conn. App. 330, 338, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987). Here, the defendant did not pursue the duress claim through an exception or a claimed factual basis or an explanation as to its application in this case. We conclude that the lack of a duress instruction for the charge of criminal possession of a firearm did not deprive the defendant of a fair trial. Thus, the defendant has failed to satisfy the Evans-Golding standard for review.

The lack of a duress instruction also does not constitute plain error that would warrant review pursuant to Practice Book § 4185. A party is entitled to plain error review of an unpreserved claim in “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985). An important factor to consider when determining if plain error review is necessary is whether the claimed error resulted in an unreliable verdict or a miscarriage of justice. State v. Hinckley, supra. The court’s decision not to give a duress instruction did not affect the fundamental fairness of the trial or cause the defendant to suffer any manifest injustice.

II

The defendant’s second claim concerning the definition of “carry” within § 29-35 presents an issue of first impression. See State v. Bailey, supra, 350-51 (whether mere holding constitutes carrying within meaning of § 29-35 not in issue because jury had evidence of asportation before it). The defendant argues the meaning of “carry” in § 29-35 requires proof of asportation. Therefore, he claims that the jury should have been instructed on this element of the offense and that his conviction cannot stand because the state failed to prove it. We do not agree that proof of asportation of the pistol or revolver is a necessary element of § 29-35.

In its charge to the jury, the trial court stated that “although it is not defined in the statute, ‘carries upon his person,’ is synonymous with ‘to hold upon his person.’ ” Counsel for the defendant objected to this definition of carrying as being too broad. He argued that carrying was a narrower term than holding because in addition to holding it involved some physical movement or asportation of the pistol. The objection was overruled and there was an exception noted.

The word carry is not defined in the statute. Because carry is not defined in the statute, we will first look to determine the common meaning of carry as expressed in the law and dictionaries. State v. Lubus, 216 Conn. 402, 407, 581 A.2d 1045 (1990). The definitions of carrying a weapon support this court’s decision that a showing of asportation is unnecessary. Ballentine’s Law Dictionary (3d Ed.) defines carrying a weapon in part as “any method of carrying which renders the weapon readily accessible and available for use, irrespective of whether the person moves from place to place while having the weapon in possession . . . .” Black’s Law Dictionary (5th Ed.) also defines carry as “[t]o bear, bear about, sustain, transport, remove, or convey.” Carry is further defined as “[t]o have or bear upon or about one’s person, as a watch or weapon. . . .” Id. The reference to about one’s person corresponds with the first sentence of § 29-35 which uses the phrase to carry “upon his person.” This confirms our conclusion that asportation or movement is not a necessary element to establish a violation of § 29-35.

When there is no explicit definition of a statutory term this court will attempt to determine it by “identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute . . . .” State v. Campbell, 180 Conn. 557, 562, 429 A.2d 960 (1980). Section 29-35 is concerned with prohibiting the use of unlicensed weapons in public. House Bill No. 5652, 24 S. Proc., Pt. 10, 1981 Sess., pp. 3150-51. Section 29-35 allows a person to keep an unlicensed pistol or revolver in her home or business location. The statute also does not prohibit the transportation of unlicensed handguns from the home or office, where the transportation involves repairing the pistol or taking part in gun competitions. Section 29-35 also specifically refers to “upon his person,” thus the pistol must be within the defendant’s control or dominion in a public area. On the basis of the legal definitions of carry and the statutory history as to the purpose of § 29-35, we hold that there does not have to be proof that the defendant physically moved or transported the pistol over space while carrying an unlicensed pistol.

Accordingly, the trial court’s definition of carry was a correct statement of law. Similarly, because proof of asportation is not required to prove a violation of § 29-35, there was sufficient evidence to support the defendant’s conviction. The fact that the defendant had the pistol within his possession and control in a public place without having a valid permit justifies his conviction pursuant to § 29-35.

Ill

The defendant’s remaining claim concerns the sufficiency of the evidence as to the operability of the pistol as required by § 53a-217. The defendant argues that although he had the pistol inside the restaurant, there is no evidence linking him to the subsequent shooting at Peck and Cassar that occurred outside the restaurant.

When reviewing a sufficiency of the evidence claim, we examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of facts established and the reasonable inferences whether the “ ‘jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991). It should also be emphasized that “ ‘ “[i]n this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.”. . .’” (Citation omitted.) State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).

The operability of a pistol or firearm can be proved by either direct or circumstantial evidence. State v. Manley, 195 Conn. 567, 573-74 n.8, 489 A.2d 1024 (1985). The proof of operability does not require that the actual pistol be admitted into evidence. Id. In this case, the evidence revealed that after the defendant pulled out the pistol and pointed it at Cassar and Peck, they retreated from the restaurant. According to defense witness Joshua Jacobs, the defendant then followed them out of the restaurant less than one minute after they had departed. There was no direct evidence as to the location of the pistol, once Peck and Cassar retreated after the defendant brandished the pistol. None of the state’s witnesses saw the defendant leave with the gun or fire a pistol outside the restaurant. As Peck and Cassar stood in front of Wall’s car, approximately twenty-five yards away from the restaurant, they heard gunfire. They also felt something pass close by their heads. Cassar testified that he felt debris or gravel hit his legs. The jury could infer that the pistol was operable from the testimony of both Peck and Cassar who heard gunshots and felt something pass by them outside of the restaurant. The failure to recover the pistol or shell casings does not prevent establishing proof of operability.

The defendant, relying on State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991), argues that for the jury to have connected the gunfire that occurred outside the restaurant to the pistol held by the defendant while inside the restaurant required a leap of faith not founded in the evidence. There was evidence that the defendant initially pointed the weapon at Peck and Cassar in the restaurant. Within one minute, the defendant then followed Peck and Cassar outside the restaurant. Just after Peck and Cassar left the restaurant they heard the gunfire and felt something pass by their heads. The jury could reasonably conclude from the circumstantial evidence that the defendant followed Peck and Cassar and fired the pistol at them even though there was no direct evidence linking the defendant to the discharge of the pistol. The jury did not have to make an unjustified leap of faith to find that the defendant was responsible for firing the pistol at Peck and Cassar.

We conclude that a jury could reasonably find that the pistol used by the defendant in this case was operable as required by § 53a-217.

The judgment is affirmed.

In this opinion Foti, J., concurred.

Laveky, J.,

dissenting. I cannot adopt the majority’s view that the defendant was not entitled to a jury charge on duress. I, therefore, respectfully dissent.

The majority cites State v. Bailey, 209 Conn. 322, 551 A.2d 1206 (1988), as authority for the proposition that the defense of duress would not justify the carrying of a pistol without a permit in violation of General Statutes § 29-35. In Bailey, our Supreme Court concluded that “the defendant was not entitled to a self-defense instruction under § 53a-19 to the charge of carrying a pistol without a permit.” Id., 349. This case is distinguishable from State v. Bailey, supra. In this case, the defendant requested a duress instruction under § 53a-14, whereas the defendant in Bailey did not.

“Because § 53a-14 declares that duress ‘shall be a defense’ and not an affirmative defense, we look to § 53a-12 to determine the allocation of the burden of proof. Section 53a-12 (a) provides that ‘[w]hen a defense other than an affirmative defense, is raised at trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.’ Whether the defense of duress was ‘raised’ at the trial must be determined by viewing the record in a light most favorable to the defendant’s claim.” State v. Rouleau, 204 Conn. 240, 249-50, 528 A.2d 343 (1987).

Viewing the record in a light most favorable to the defendant’s claim, I find that he did, in fact, raise the defense of duress against the charges of carrying a pistol without a permit and criminal possession of a firearm. The defendant orally requested an instruction on duress on the day after the charging conference. The trial court denied the oral motion, because the defendant failed to present a written request to charge on the defense of duress in compliance with Practice Book § 852, and because the state would be unfairly precluded from adequately responding to the duress instruction during its closing argument. Although the defendant’s request to charge was not in strict compliance with the rules of practice, his oral motion was sufficient to raise the defense. We must next determine whether the defendant introduced sufficient evidence at trial to warrant the duress instruction.

It is recognized as a matter of federal and Connecticut constitutional law that in criminal trials due process requires the jury to be instructed on a defense when evidence of such a defense has been introduced. See, e.g., Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Belle, 215 Conn. 257, 273, 576 A.2d 139 (1990); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). In Connecticut, the evidentiary threshold entitling a defendant to a defense instruction is very low. Our Supreme Court has held that if a defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, a jury charge is obligatory and a “ ‘defendant is “entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible. . . United States v. Platt, 435 F.2d 789, 792 (2d Cir. 1970), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).’ ” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). It is well settled that when considering a claim of failure to deliver a requested charge, we must view the evidence in the light most favorable to the defendant. State v. Diggs, 219 Conn. 295, 298, 592 A.2d 949 (1991); State v. Fuller, supra, 275.

Applying this standard to the facts introduced in this case, I cannot avoid the conclusion that there was a sufficient factual foundation placed before the jury to support an instruction on duress. The incident began when Peck stepped on the defendant’s foot in the restaurant. The defendant kicked Peck and a heated verbal exchange followed. Peck then left the restaurant to get some friends. Less than a minute later, Peck returned with two friends. Peck was an offensive tackle on a college football team, and described himself as six feet two inches tall and weighing approximately 270 pounds. His two friends were also physically imposing, each tall and weighing between 200 and 240 pounds. The three rushed to the rear of the restaurant. The defendant was cornered in front of a jukebox. The defendant did not bring the pistol into the restaurant; it was tossed to him by another patron after the defendant had retreated as far as he could. Peck did not stop rushing toward the defendant until the defendant pointed the pistol at him.

In my opinion, the testimony and evidence outlined above provided an ample basis to entitle the defendant to a jury instruction of duress on the charges of carrying a pistol without a permit and criminal possession of a firearm.

I would reverse the judgment and remand the case for a new trial with instructions to instruct on the defense of duress.

       General Statutes § 29-35 provides in pertinent part: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28.”

       General Statutes § 53a-217 provides: “criminal possession of pistol, REVOLVER OR ELECTRONIC DEFENSE WEAPON: CLASS D FELONY, (a) A person is guilty of criminal possession of a pistol, revolver or electronic defense weapon when he possesses a pistol, revolver or electronic defense weapon and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.
      “(b) Criminal possession of a pistol, revolver or electronic defense weapon is a class D felony, for which two years of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 53a-14. duress as defense. In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was coerced by the use or threatened imminent use of physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. The defense of duress as defined in this section shall not be available to a person who intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.”

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”


author: Cretella, J.

text:
    Shiang-Yueng Feng et al. v. Dart Hill Realty, Inc., et al.
    (10000)
    O’Connell, Foti and Cretella, Js.

      Argued November 4, 1991
    decision released January 14, 1992

      Kimball Haims Hunt, for the appellants (defendants).

      Bruce D. Tyler, for the appellees (plaintiffs).
   Cretella, J.

The defendant appeals from a judgment rendered in favor of the plaintiffs after a jury trial. The defendant claims that the trial court improperly denied its motion for judgment notwithstanding the verdict, where the verdict permitted a recovery for unjust enrichment in a relationship between the parties that was governed by express contract and was determined to be untainted by fraud or by a Connecticut Unfair Trade Practices Act (CUTPA) violation. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. On July 9,1988, the plaintiffs signed a written agreement with the defendant for the purchase of a house to be constructed by the defendant in the Mountain View Estates subdivision in South Windsor. A closing date of September 25, 1988, was set forth in the purchase agreement. The agreement also provided that the defendant could extend the date for closing up to sixty days in the event the defendant was unable to deliver a certificate of occupancy to the premises on the date originally set for closing.

The defendant was unable to complete construction of the house by September 25, 1988. The plaintiffs’ mortgage commitment with American Savings Bank was due to expire on October 17,1988. The defendant obtained a certificate of occupancy on October 26,1988, at which time the defendant was ready, willing and able to close on the transaction.

Pursuant to the purchase agreement, the plaintiffs had paid a total deposit of $20,500 prior to October 17, 1988. No closing took place prior to the expiration of the plaintiffs’ mortgage commitment. On November 7, 1988, the plaintiffs demanded the return of their deposit from the defendant and the payment of other expenses incurred by them as a result of their reliance on the purchase agreement. The defendant did not refund any money to the plaintiffs.

Thereafter, the plaintiffs commenced this action, alleging in a four count complaint (1) breach of contract, (2) unjust enrichment, (3) fraud, and (4) a CUTPA violation. After trial to a jury, the court directed a verdict in favor of the defendant on the CUTPA claim, and the jury returned a defendant’s verdict on the breach of contract and fraud claims. The jury, however, found the defendant liable on the claim of unjust enrichment (count 2) and awarded the plaintiffs $21,205. The court denied the defendant’s motion for judgment notwithstanding the verdict. This appeal followed.

“[P]arties who have entered into controlling express contracts are bound by such contracts to the exclusion of inconsistent implied contract obligations.” H. B. Toms Tree Surgery, Inc. v. Brant, 187 Conn. 343, 346-47, 446 A.2d 1 (1982); see also 42 C.J.S., Implied Contracts § 34. Proof of a contract enforceable at law precludes the equitable remedy of unjust enrichment; United States Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., 10 Conn. App. 125, 127, 521 A.2d 1048, cert. denied, 203 Conn. 806, 525 A.2d 521 (1987); 12 S. Williston, Contracts (3d Ed. Jaeger) § 1478; at least in the absence of a breach of the contract by the defendant; Rabinovitz v. Marcus, 100 Conn. 86, 95-96, 123 A. 21 (1923); 3 Restatement (Second), Contracts § 373, comment a; J. Calamari & J. Perillo, Contracts (2d Ed.) § 15-3; a nonwillful breach by the plaintiff; Vines v. Orchard Hills, Inc., 181 Conn. 501, 505-10, 435 A.2d 1022 (1980); Stahenau v. Cairelli, 22 Conn. App. 578, 581, 577 A.2d 1130 (1990); or a mutual rescission of the contract. Pierce v. Staub, 78 Conn. 459, 466, 61 A. 760 (1906). None of these exceptions was presented to the jury by the pleadings or instructions.

Although the plaintiffs do not dispute the rule of law set forth in these authorities, they respond that the defendant’s argument “rest[s] on the false premise that there was a determination that the relationship between the [parties] was governed by an express contract.” Invoking general verdict principles; see Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 201-204, 520 A.2d 208 (1987); the plaintiffs contend: “From the jury’s rejection of the plaintiffs’ breach of contract claim, the defendants have inferred that the jury found that there was a contract and that the contract was not breached. The defendants’ inferences are unjustified. An inference could easily be drawn that the jury found the parties did not enter into a binding agreement. No interrogatories were submitted to the jury. . . . Did the jury reject the claim because they found that there was a contract but no breach of it or did the jury reject the claim because there simply was no contract between the parties? . . . The defendants’inference that there was a contract is not well founded since the jury may have found that there was no contract whatsoever between the parties.” Because we conclude that the general verdict rule does not apply to the circumstances of this case, we cannot agree with the plaintiffs.

“The so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party.” Finley v. Aetna Life & Casualty Co., supra, 202. In Finley, because the jury rendered a general verdict for the defendant on the plaintiff’s claim of breach of an express contract, it was presumed to have determined both that a contract did not exist between the parties and that the defendant’s conduct did not constitute a breach of the contract. Id. This was so, however, only because “the defendant’s answer controverted both of the principal claims raised by the plaintiffs complaint. The defendant’s denials of the contract’s existence and of its breach presented the jury with distinct and severable defenses to the plaintiff’s claims.” Id., 204.

In the present case, by contrast, the defendant’s answer admitted the existence of a written purchase agreement between the parties. Additionally, the defendant also served requests for admission upon the plaintiffs, pursuant to Practice Book § 238, that assumed the existence of the parties’ written contract. At trial, moreover, the evidence and arguments of counsel focused primarily on the issue of whether the defendant’s conduct constituted a breach of the terms of the contract between the parties. Finally, the fact that the defendant did not dispute the existence of the contract was further reflected in the court’s charge to the jury, which was devoid of any instructions on the law of contract formation.

Because “we will decide the appeal on the theory on which it was tried and decided in the trial court”; L. F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 35 n.4, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986); the general verdict rule cannot be applied to the circumstances presented in this case. Contrary to the plaintiffs’ claims, the jury’s verdict cannot be understood to include any “implicit finding” that a contract never existed between the parties. Instead, the parties at all times operated under a theory of the case that admitted and established a written contract pertaining to the purchase and sale of the property in question. The pleadings and the jury’s verdict, then, necessarily determined that there was an express contract between the parties which was not breached by the defendant’s failure to close on the transaction on September 25. Because the undisputed existence of a contract enforceable at law precludes recovery under a theory of restitution or unjust enrichment under the circumstances of this case; United States Fidelity & Guaranty Co. v. Metropolitan Property & Liability Ins. Co., supra; the trial court should have set aside the verdict on the plaintiffs’ claim of unjust enrichment (count two) and rendered judgment in favor of the defendant.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       In addition to the named defendant, Jeanne Huppe was also a defendant in the trial court and a party to this appeal. Because her actions as an agent for the named defendant play no role in this appeal separate from those of the named defendant, we refer to the appellants by the singular term “defendant” throughout this opinion,

       In addition to the named plaintiff, Miao-Hsiang Feng, his wife, was also a plaintiff in the trial court proceedings and a party to this appeal.

       General Statutes §§ 42-110a through 42-110q.

       The jury also returned a verdict against the defendant on its counterclaim alleging breach of contract by the plaintiffs.

       Although captioned a “motion for judgment in favor of the defendants notwithstanding the verdict,” the defendant’s motion requested that the court set aside the verdict pursuant to Practice Book § 320, as well as Practice Book § 321. As such, it satisfied the prerequisite to our full review of the defendant’s claim on appeal. See Pietrorazio v. Santopietro, 185 Conn. 510, 441 A.2d 163 (1981).


author: Dupont, C. J.

text:
    Robert T. Henin v. Gay K. Henin
    (9660)
    Dupont, C. J., Norcott and Heiman, Js.

      Argued October 2, 1991
    decision released January 14, 1992

      James H. Howard, for the appellant-appellee (defendant).

      David F. Sherwood, for the appellee-appellant (plaintiff).

      Barbara J. Ruhe, for the minor children.
   Dupont, C. J.

This is an appeal from a judgment rendered in a dissolution of marriage action. The issues are whether the trial court’s allegedly improper conclusion regarding the cause of the breakdown of the marriage adversely affected the financial awards and whether the trial court abused its discretion in awarding the defendant time limited alimony. The plaintiff’s cross appeal questions whether the trial court’s order requiring payment to the defendant of a promissory note upon the plaintiff’s remarriage violates the plaintiff’s fundamental constitutional right to marry.

The parties were married in August of 1969 and have four minor children who ranged in age from four to sixteen at the time of the dissolution. The plaintiff was forty-three years old and a dentist with his own practice. The defendant was forty-one years old, with a bachelor of fine arts degree in fashion merchandizing. She was not employed outside of the home for most of her married life and at the time of the dissolution was working as a supermarket bagger.

In 1983, the defendant’s mental state began to deteriorate. She refused to seek psychiatric treatment despite the advice of pastoral and other counselors. The defendant’s illness eventually resulted in two referrals in 1987 to the department of children and youth services about her behavior with the children.

In May, 1987, the plaintiff filed a complaint seeking a legal separation, later changing the relief sought to a dissolution of marriage. During the litigation, the plaintiff obtained a restraining order forcing the defendant to vacate the marital residence. Also, counsel for the children sought and received restraining orders preventing the defendant from exercising visitation with the minor children except under controlled conditions.

Prior to trial, the plaintiff’s motion for a psychiatric examination of the defendant was granted. When the defendant failed to appear for the scheduled examination, she was held in contempt. A capias was issued and the defendant subsequently was examined and evaluated in compliance with the original court order. The defendant was diagnosed with chronic undifferentiated schizophrenia and was subsequently hospitalized at a psychiatric hospital for sixty days. During the course of the marital litigation, a guardian ad litem and conservator were appointed for the defendant.

The trial court dissolved the parties’ marriage and awarded custody of the minor children to the plaintiff with limited visitation rights provided to the defendant. The court ordered the defendant to convey her one-half interest in the marital residence to the plaintiff and ordered him to execute a $100,000 mortgage deed and note to her, bearing 7 percent simple interest, payable at such time as the children no longer used the home as a residence, upon the plaintiffs death or remarriage, or on April 18, 2004, whichever occurs first. The majority of the parties’ other assets was awarded to the plaintiff. The defendant was awarded $400 per week in periodic alimony to terminate upon the earliest of her death, remarriage, or April 12,2004. Periodic alimony was made nonmodifiable as to its thirteen year duration. That term was timed to coincide with the maturation of the mortgage note. The plaintiff was also ordered to continue providing health insurance coverage for the defendant for a three year period. In addition, he was ordered to maintain a declining balance term life insurance policy in the original amount of $200,000 for the benefit of the defendant for the period during which he is obligated to pay alimony. Finally, the plaintiff was ordered to pay a portion of the defendant’s counsel fees, guardian ad litem’s fees, and a portion of the children’s guardian ad litem’s fees.

The defendant contests the trial court’s finding that the breakdown of the marriage was caused by her failure to seek medical treatment and her consequent behavior, claiming that the finding adversely affected the financial awards.

General Statutes §§ 46b-81 (c) and 46b-82 require the trial court to consider several factors in crafting its financial orders, including the cause for the dissolution. The defendant argues that our decision in Roach v. Roach, 20 Conn. App. 500, 507, 568 A.2d 1037 (1990), would here preclude the trial court from finding that behavior caused by mental illness can be the cause of a marital dissolution and further argues that, even if such a finding were permissible, the testimony did not support the trial court’s conclusion.

In Roach v. Roach, supra, we held that the demeanor of a party while testifying during a dissolution action cannot be converted into the cause of a breakdown of the marriage. Of necessity, the cause of a dissolution must already have occurred prior to trial. The facts of Roach v. Roach, supra, are dissimilar to the present case. The trial court’s finding here was that the breakdown of the marriage was caused by the defendant’s failure to seek medical treatment. That finding was based on testimony relating to the defendant’s condition and behavior from 1983 to the time of trial, and was unrelated to the defendant’s mental condition as it manifested itself during trial.

In Breen v. Breen, 18 Conn. App. 166, 167-68, 557 A.2d 140 (1989), we declined to disturb the trial court’s finding that the plaintiff’s failure to attempt reconciliation was a major factor in the breakdown of the marriage. Sunbury v. Sunbury, 13 Conn. App. 651, 538 A.2d 1082 (1988), rev’d on other grounds, 210 Conn. 170, 553 A.2d 612 (1989), upheld the trial court’s finding that a party who had suffered emotional trauma as a result of a child’s death and had thereafter increased her alcohol consumption and become abusive was more at fault in the marital breakup than her husband. A finding that a party’s health problem, such as alcoholism, was the precipitating cause of a breakdown of a marriage need not be disturbed, although the “voluntary” resumption of the use of alcohol cannot be the basis of the termination of a periodic alimony award. McPhee v. McPhee, 186 Conn. 167, 176-77, 440 A.2d 274 (1982). The teaching oí Breen, Sunbury and McPhee is that a trial court enjoys a wide latitude in the type of finding it may make as to the cause of the dissolution. We conclude, therefore, that a trial court may find that a party’s mental condition and consequent behavior was the cause of a marital dissolution.

We must next determine whether the defendant correctly argues that the evidence at trial did not support the court’s finding. For this court to conclude that the trial court abused its discretion, we must determine that the trial court could not reasonably conclude as it did. Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983); Trivelli v. Trivelli, 5 Conn. App. 488, 490, 500 A.2d 244 (1985). Having reviewed the record and the evidence in this case, we find ample support for the court’s conclusion that the defendant’s illness and refusal to seek treatment caused the breakdown. We further conclude, on the basis of the record, that the court’s finding about the cause of the breakdown did not improperly infect the financial awards.

The defendant next contests the trial court’s order that terminates the periodic alimony award on April 12, 2004. The defendant contends that the trial court abused its discretion because it failed to articulate a reason for the time limitation of its award and because there was insufficient evidence on the record to demonstrate that the defendant could become self-sufficient within that time.

The issue of time limited alimony has been considered by this court in a number of cases. See Watson v. Watson, 20 Conn. App. 551, 568 A.2d 1044 (1990); Sunbury v. Sunbury, supra; O’Neill v. O’Neill, 13 Conn. App. 300, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988); Louney v. Louney, 13 Conn. App. 270, 535 A.2d 1318 (1988); Markarian v. Markarian, 2 Conn. App. 14, 475 A.2d 337 (1984). In each of these cases, we stated that one purpose of limiting the duration of an alimony award is to provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. See Markarian v. Markarian, supra, 16.

In these cases, we reviewed whether there was sufficient evidence to support the trial court’s finding that the spouse should receive time limited alimony for the particular duration established. If the time period for the periodic alimony is logically inconsistent with the facts found or the evidence, it cannot stand. O’Neill v. O’Neill, supra.

In the present case, the defendant has a college degree, but did not work outside the home for most of her married life. There is no evidence in the record concerning her future earning potential if she seeks treatment for her mental illness. Expert testimony indicated that she would be unable, given her mental condition at the time of the dissolution, to find employment consistent with her education and previous experience. There was no finding by the trial court, or evidence from which the court could make a finding, regarding the time required for the defendant to recover from her mental illness, assuming she accepted treatment. Thus, the thirteen year duration of the periodic alimony award is arbitrary if analyzed only in terms of the time necessary for the defendant’s economic rehabilitation.

In Roach v. Roach, supra, 506, however, we recognized that “[although time limited alimony awards are usually rehabilitative in purpose, there may be other valid reasons for awarding such alimony.” Another valid purpose for time limited alimony is to provide interim support until a future event, such as a bond maturation, trust disbursement, or mortgage maturation, takes place. Such a purpose exists in the present case.

The trial court’s financial orders must be considered as a cohesive unit. Brash v. Brash, 20 Conn. App. 609, 569 A.2d 44 (1990). The periodic alimony award here is nonmodrfiable as to duration. Six days after its end, on April 18, 2004, the parties’ youngest child will reach his majority and the $100,000 mortgage note and its accrued interest will become payable. The trial court stated that the intent of the latter order was to provide a lump sum that, if reasonably invested, would generate income for the rest of the defendant’s life equivalent to that provided by the terminated alimony order. The maturation of the mortgage coincides with the termination of the periodic alimony award, and, therefore, the particular duration of the award has a rational basis. The time limited periodic alimony, therefore, was proper.

The defendant also claims that there can be no time limited alimony award in this case because General Statutes § 46b-85 requires an order of indefinite length for the support of the defendant, who is a mentally ill spouse. This section provides in pertinent part: “At the time of granting dissolution of a marriage to which one party is mentally ill or at any time thereafter, on application of either party or of the guardian or conservator of the mentally ill spouse, or of any person . . . charged with the support of the mentally ill spouse . . . the court may make such order requiring support of the mentally ill spouse, or security for support, as may be proper.” The trial court did not order any supplemental support pursuant to § 46b-85, nor was any application pursuant to § 46b-85 made by anyone.

We have previously analyzed this section and its relationship to General Statutes § 46b-82 to determine “which statute should be used to provide support for a mentally ill spouse who is not cared for by another, either physically or by management of financial affairs.” Roach v. Roach, supra, 512. Although a guardian ad litem and conservator were appointed for the defendant, this fiduciary did not seek contribution from the plaintiff for support of the defendant. The support award to the defendant was properly made pursuant to § 46b-82 because no one requested support under § 46b-85 and the defendant cannot be the recipient of payments under both statutes. Roach v. Roach, supra, 511. There was no requirement in this case for the trial court to issue an order of indefinite duration pursuant to § 46b-85.

The plaintiff, in his cross appeal, alleges that the trial court abused its discretion in requiring payment of the mortgage upon his remarriage. He argues that while a woman generally improves her family’s income by marrying, a man generally diminishes his family’s income by marrying, unless he marries a woman with income. He argues, therefore, that the court’s order infringes on his claimed constitutional right to marry a spouse who does not produce income, although he cites no authority to support this proposition. There is no such right.

Moreover, it is not unusual or impermissible for a trial court to award a husband’s interest in the marital home to the wife subject to a lien in favor of the husband to be repaid upon her death or remarriage. See, e.g., Hollingsworth v. Hollingsworth, 180 Conn. 212, 429 A.2d 463 (1980); Graham v. Graham, 25 Conn. App. 41, 592 A.2d 424 (1991). An order conditioning the payment of the mortgage upon the wife’s death, remarriage or cohabitation with an unrelated male is valid. Graham v. Graham, supra. There is nothing irrational or unconstitutional about a converse award. We find absolutely no merit in the plaintiffs argument.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note the six day difference between the date the alimony terminates and the date the mortgage note becomes payable. That difference is irrelevant, however, to this appeal.

       The testimony was as follows:
      “Q. You also understand that she had a college degree and previously worked in fashion with Macy’s. Did you have that information?
      “A. Yes.
      “Q. Do you feel that she would have difficulty in holding, given your knowledge of her illness, in holding that type of employment, as opposed to being a bagger or doing some other kind of menial job?
      “A. Insofar as schizophrenia causes diminished concentration, confused thinking, especially under stress, and inability at times to perceive reality, I would believe so.”


text:
    State of Connecticut v. Essaid Mezrioui
    (9836)
    Lavery, Landau and Cretella, Js.
    Argued September 23, 1991
    decision released January 21, 1992

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Edward Narus, assistant state’s attorney, for the appellee (state).
   Lavery, J.

After a jury trial, the defendant was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B). In this appeal, the defendant claims (1) that there was insufficient evidence presented at trial to prove beyond a reasonable doubt that he violated either of the sexual assault statutes charged, (2) that both § 53a-70 (a) and § 53a-72a (a) (1) (B), as applied to the facts of this case, are unconstitutionally vague, (3) that the prohibition against double jeopardy was violated by his trial and punishment for both § 53a-70 (a) and § 53a-72a (a) (1) (B), and (4) that the trial court’s instructions to the jury unfairly marshalled the evidence and misstated important evidentiary facts, thus depriving him of a fair trial. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On the evening of October 4,1989, the victim and several female friends went to a Manchester bar to celebrate the upcoming marriage of one of the women. The bar featured male dancers, who gradually disrobed while dancing for the all female audience. At the conclusion of the performance, at approximately 10 p.m., the bar was opened to male patrons as well.

The defendant arrived at the bar at approximately 11 p.m. A short time after his arrival, the defendant began dancing with one of the victim’s female friends. During this time, the victim and her friends discussed the possibility of getting some marihuana. Later, the defendant offered the victim some marihuana.

The victim informed her friends that she would return shortly and followed the defendant to his car. The two entered the car, where the defendant told the victim that he did not want to give her the marihuana because the police patroled the area. He then told her that he did not have any marihuana with him, but that he could get some at a nearby house.

After driving for approximately ten minutes, the defendant began making sexual advances toward the victim and threatened to beat her. The victim tried to dissuade the defendant by telling him that she was infected with the AIDS virus. When the defendant persisted, the victim attempted to discourage him by telling him that she was menstruating. The defendant again threatened her. After the defendant demanded that the victim remove her clothing, he fondled her breasts, and then engaged in intercourse with her. The victim testified that she had submitted due to fear of bodily harm.

After the assault, the victim left the car to get dressed. When she returned to the car, she told the defendant she knew where they could get some drugs, and directed him to the home of a close friend in East Hartford. Upon their arrival, the victim entered the house while the defendant waited outside in his car. The victim had hidden her brassiere in the car as proof of the incident. The victim told her friend that she had been raped and called the police, indicating that her assailant was parked in the car in front of the house. Shortly thereafter, East Hartford police officers arrived, arrested the defendant, and, after determining that the incident had taken place in Manchester, contacted the Manchester police department. Throughout this period, the victim alternated between being calm and being agitated. After the victim’s husband arrived, he took her to Manchester Memorial Hospital where a physical examination was performed.

I

The defendant first asserts that there was insufficient evidence presented at trial to prove beyond a reasonable doubt that he violated either General Statutes § 53a-70 (a) or § 53a-72a (a) (1) (B). “The two-part test for appellate analysis of a claim of evidentiary insufficiency is well established. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have . . . established guilt beyond a reasonable doubt.” State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991). The inquiry on appeal is whether the evidence is sufficient to prove the elements of the crimes. In the present case, the elements involved are (1) sexual intercourse; § 53a-70 (a); and sexual contact; § 53a-72a (a) (1) (B); and (2) the use or threat of force.

The defendant concedes that he had sexual intercourse and sexual contact with the victim but contends that the victim consented, or that he reasonably believed that the victim’s conduct, under all the circumstances, indicated her consent. In State v. Smith, 210 Conn. 132, 142, 554 A.2d 713 (1989), our Supreme Court stated that “whether a complainant should be found to have consented [in a sexual assault case] depends on how her behavior would have been viewed by a reasonable person under the surrounding circumstances.” The defendant maintains that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the victim’s conduct indicated a lack of consent. We disagree.

At trial, the victim testified that she did not want to engage in sexual activity with the defendant. She attempted to dissuade the defendant from continuing his sexual advances by making two separate statements. First, she told him that she was infected with the AIDS virus. When the defendant persisted, she told him that she was menstruating. Despite her statements, the defendant insisted that they engage in sexual activity, threatening her with physical violence. At that point, the victim submitted to the defendant’s demands.

We are unpersuaded by the defendant’s contention that the jury could not have found the victim’s lack of consent beyond a reasonable doubt. Although the victim never said “no” or “stop,” such an explicit verbal rejection of unwanted sexual advances is not required by State v. Smith, supra. Similarly, it is not necessary that the victim physically resist the unwanted sexual advances. State v. Mastropetre, 175 Conn. 512, 522-23, 400 A.2d 276 (1978). The fact that the victim eventually submitted to the defendant’s demands after he threatened the use of force does not amount to consent on her part. Indeed, “where forcible compulsion is proven beyond a reasonable doubt, a lack of consent is implicit.” State v. Clinkscales, 21 Conn. App. 411, 419, 574 A.2d 243 (1990). Therefore, when, as here, a victim submits to unwanted sexual advances after being subjected to force or a threatened use of force, such submission does not pardon the use of force. See State v. Rodgers, 198 Conn. 53, 61, 502 A.2d 360 (1985). In the present case, we conclude that the cumulative force of the evidence presented at trial was sufficient to support the jury’s verdict on each of the sexual assault charges.

II

The defendant’s second claim is that General Statutes §§ 53a-70 (a) and 53a-72a (a) (1) (B) are unconstitutionally vague as applied to the facts of this case. This claim is raised for the first time on appeal, and the defendant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1990), and State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

“State v. Golding, supra, establishes that a defendant cannot prevail on an unpreserved constitutional claim unless all four conditions are met, any one of which may be considered first.” State v. Shaw, 24 Conn. App. 493, 497, 589 A.2d 880 (1991). Under the third Golding condition, the defendant can prevail only if the alleged constitutional violation clearly exists and clearly deprived him of a fair trial. State v. Golding, supra, 240.

A penal statute must be sufficiently defined to enable a person to know what conduct must be avoided. State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). Unless first amendment freedoms are involved, a claim that a statute is void for vagueness is determined by its applicability to the particular facts presented. Id., 57. The defendant contends that the victim chose not to resist his advances, and was intimidated solely by the size of the defendant and the unfamiliarity of the surroundings, rather than by the use of force or threat of the use of force. The victim, however, was not wholly passive in that she attempted to dissuade the defendant by telling him that she was infected with the AIDS virus and was menstruating. Nor was the victim intimidated solely by the size of the defendant and the unfamiliarity of the surroundings. The victim submitted to the defendant’s demands only after he threatened her.

Our Supreme Court in State v. Smith, supra, on facts similar to those here, rejected the same vagueness claim. The language of the challenged statutory provisions is perfectly clear when applied to the facts of this case. We conclude that the defendant has thus failed to meet the third Golding condition and his claim must necessarily fail. State v. Tweedy, 219 Conn. 489, 511, 594 A.2d 906 (1991); State v. Golding, supra, 240.

Ill

The defendant’s next claim is that he committed only one sexual act, and may not be convicted twice on the basis of that act. He bases his argument on the fifth and fourteenth amendments to the United States constitution. We disagree.

It is well established that the double jeopardy clause of the fifth amendment prohibits multiple punishments for the same offense. State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054 (1985); State v. Delgado, 19 Conn. App. 245, 250, 562 A.2d 539 (1989). In the context of a single trial, double jeopardy analysis is a two-step process. “First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985). We apply this analysis with reference to the charging documents. Id., 75; State v. Hart, 23 Conn. App. 746, 757, 585 A.2d 103, cert. granted, 217 Conn. 811, 587 A.2d 152 (1991). The issue, though essentially constitutional, becomes one of statutory construction. State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).

First, we must determine whether the defendant’s actions constituted the same act or transaction. The information charges that each crime took place on October 4,1989, in Manchester, but is silent as to the exact time of each crime charged. The defendant pursued neither a statement of essential facts nor a bill of particulars. The parties concede that both crimes charged relate to the defendant’s conduct in his car, but it is unclear exactly what act of the defendant supported the conviction of sexual assault in the third degree.

The trial court instructed the jury that contact with either the groin or the breasts of the victim would support a verdict against the defendant on the charge of sexual assault in the third degree. Intercourse and incidental contact with the groin, however, is only one act, because all acts of vaginal intercourse will necessarily include at least some incidental contact with the groin. It is unclear whether the jury relied on the contact with the breasts or the contact with the groin to support the verdict against the defendant on the charge of sexual assault in the third degree. We must therefore conclude that, for the purposes of double jeopardy analysis, the crimes charged arose out of the same act or transaction. State v. Flynn, 14 Conn. App. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 225, 102 L. Ed. 2d 215 (1988).

We must next determine whether the charged crimes constitute only one offense. For purposes of double jeopardy analysis, “the test to be applied to determine whether there are two offenses or only one, is whether each [statutory] provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Tweedy, supra; State v. Gilchrist, 24 Conn. App. 624, 627, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). In applying the Blockburger test, we are permitted to examine only the charging documents and the relevant statutory provisions. State v. Greco, 216 Conn. 282, 291, 584 A.2d 425, (1990); State v. Lonergan, 213 Conn. 74, 79, 566 A.2d 677, cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1989). We are prohibited from examining the evidence presented at trial. Indeed, “[i]n making this determination, we are concerned with theoretical possibilities, and do not focus on the evidence presented.” State v. De Matteo, 13 Conn. App. 596, 603, 538 A.2d 1068 (1988).

In the present case, there is merely a brief long form information charging the defendant with “Sexual Assault in the First Degree” and “Sexual Assault in the Third Degree.” The information is sufficient pursuant to Practice Book § 618 although it sets forth only minimal data on the alleged criminal activity. State v. Spigarolo, 210 Conn. 359, 382, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); State v. Frazier, 194 Conn. 233, 236, 478 A.2d 1013 (1984). The burden rests on the defendant to request a bill of particulars and a statement of essential facts more precisely defining the manner in which he committed the offense. State v. Osman, 21 Conn. App. 299, 310, 573 A.2d 743 (1990), rev’d on other grounds, 218 Conn. 432, 589 A.2d 1227 (1991). Although the record in the present case is replete with motions, the defendant sought neither a bill of particulars nor a statement of essential facts. Our analysis, therefore, is severely limited in that we can look to only the brief long form information and the sexual assault statutes charged.

Sexual assault in the first degree requires proof of sexual intercourse. Sexual assault in the third degree, on the other hand, requires proof of sexual contact, which must be for the purpose of either (1) the sexual gratification of the actor, (2) the humiliation of the victim, or (3) the degradation of the victim. Each statutory provision requires proof of a fact that the other does not. Sexual assault in the first degree requires proof of sexual intercourse; sexual assault in the third degree does not. Sexual assault in the third degree requires proof of sexual contact, which necessarily requires proof of the actor’s purpose; sexual assault in the first degree requires no such proof of purpose. Consequently, we are bound to hold that the two crimes charged are separate offenses.

If there had been a statement of essential facts or a bill of particulars, we possibly would have reached a different result. In the present case, vaginal intercourse occurred. The defendant concedes that this intercourse was for the purpose of sexual gratification and that there was incidental contact with the victim’s groin pursuant to the intercourse. Indeed, it is physically impossible to commit vaginal intercourse without incidental contact with the groin. Because there was not a detailed long form information, a bill of particulars, or a statement of essential facts, however, we must conclude that for the purposes of Blockburger analysis, based on the statutes and the information, and looking at “theoretical possibilities,” the two sexual assault crimes as charged in the present case are two separate offenses because each requires proof of a fact that, despite the evidence presented at trial, the other does not. State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988); State v. Wright, 197 Conn. 588, 593, 500 A.2d 547 (1985).

IV

Finally, the defendant asserts that the trial court’s instructions to the jury unfairly marshalled the evidence and misstated important evidentiary facts, thus depriving him of a fair trial. The defendant maintains that the instructions of the trial court taken as a whole unfairly emphasized and buttressed the victim’s version of the incident, while treating his version tersely. A review of the jury charge indicates otherwise.

The record discloses that, in its charge, the court fairly summarized the evidence offered by both the state and the defendant. The court instructed the jury to disregard any indication, expressed or intimated, concerning the court’s opinion regarding the facts of the case. This reminder was repeated throughout the jury charge. The test by which we evaluate the trial court’s charge is whether the charge, read in its entirety, “fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” State v. Ballas, 180 Conn. 662, 680, 433 A.2d 989 (1980); State v. Hernandez, 218 Conn. 458, 465, 590 A.2d 112 (1991). We conclude that the trial court’s instructions to the jury were fair and proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       General Statutes § 53a-72a (a) provides: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact . . . (B) by the threat of use of force against such other person or against a third person, which reasonably causes such person to fear physical injury to such person or a third person . . .

       A defendant “can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1990).

       We note that the “defendant’s failure to pursue a motion for a bill of particulars complicates this inquiry.” State v. Flynn, 14 Conn. App. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 225, 102 L. Ed. 2d 215 (1988).

       The present case involves multiple offenses charged during a single prosecution and should not be confused with the line of cases involving successive prosecutions. In cases involving successive prosecutions, we are permitted to examine not only the charging documents and the relevant statutory provisions, but also the evidence presented at trial. State v. Lonergan, 213 Conn. 74, 91-92, 566 A.2d 677 (1989).

       Connecticut courts have applied double jeopardy analyses to sexual assault statutes on previous occasions. First degree sexual assault and second degree sexual assault are separate offenses. State v. Blackwell, 20 Conn. App. 193, 197-98, 565 A.2d 549 (1989). Similarly, convictions of sexual assault in the second degree and sexual assault in the third degree do not constitute double jeopardy. State v. Snook, 210 Conn. 244, 555 A.2d 390. Convictions of attempted sexual assault in the first degree and sexual assault in the first degree do not constitute double jeopardy. State v. Anderson, 211 Conn. 18, 29, 557 A.2d 917 (1989). The crimes of sexual assault in the third degree and sexual assault in the fourth degree are separate offenses; State v. Hufford, 205 Conn. 386, 393, 533 A.2d 866 (1987); and the crime of risk of injury to a child under sixteen years of age is not the same offense as either sexual assault in the second degree or sexual assault in the fourth degree. State v. James, 211 Conn. 555, 587, 560 A.2d 426 (1989).
      In State v. Arline, 25 Conn. App. 653, 658, 596 A.2d 7, cert. granted on other grounds, 220 Conn. 924, 598 A.2d 364 (1991), the state and the defendant stipulated that sexual assault in the third degree is a lesser included offense of sexual assault in the first degree. The decision, however, turned on whether the defendant was entitled to a charge on sexual assault in the third degree and concluded that he was not because there was no evidence to justify a conviction on that charge.

       See Practice Book §§ 831 and 625.

       The long form information provided in part: “[Ajccuses Essaid Mezrioui ... of kidnapping in the first degree and charges that at the Town of Manchester on or about the 4th day of October, 1989, the said Essaid Mezrioui abducted another, to wit: the victim, and restrained her with intent to accomplish or advance the commission of a felony, in violation of Connecticut General Statutes § 53a-92 (a) (2) (B).

        “Count Two-And the undersigned assistant state’s attorney further accuses Essaid Mezrioui of sexual assault in the first degree, and charges that at the Town of Manchester, on or about the 4th day of October, 1989, the said Essaid Mezrioui compelled another, to wit: the victim, to engage in sexual intercourse by the use of force against her and the threat of use of force against her which reasonably causes such person to fear physical injury, in violation of Connecticut General Statutes § 53a-70 (a).
      “Count Three-And the undersigned assistant state’s attorney further accuses Essaid Mezrioui of sexual assault in the third degree and charges that at the Town of Manchester, on or about the 4th day of October, 1989, the said Essaid Mezrioui compelled another, to wit: the victim, to submit to sexual contact by the threat of use of force against such other person, which reasonably causes such person to fear physical injury, in violation of Connecticut General Statutes § 53a-72a (a) (1) (B).”

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.”

       General Statutes § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”
      General Statutes § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area, groin, anus, inner thighs, buttocks or breasts.”