author: Norcott, J.

text:
    Loretta B. Watson v. David P. Watson
    (7857)
    Borden, Daly and Norcott, Js.

      Argued November 8, 1989
    decision released January 23, 1990

      Bruce Beck, with whom, on the brief, were Philip P. Apter and James M. Vaughan, for the appellant (plaintiff).

      Linda Mariani, with whom, on the brief, were Ellen S. Giannini and Carolyn Brotherton, for the appellee (defendant).
   Norcott, J.

The plaintiff wife appeals from the judgment of the state trial referee acting as the trial court in a contested dissolution action. On appeal, the plaintiff claims that the trial referee erred (1) in failing to award permanent periodic alimony, (2) in admitting certain nonexpert testimony as to land values, (3) in allowing the defendant to introduce previously undisclosed evidence, (4) in failing to assign to her the marital residence or any of the defendant’s other interests in land or a monetary equivalent, and (5) in sustaining the defendant’s objection to her motion to reargue. We find error in part.

At the time of the trial, the defendant husband was working at his father’s farm, earning approximately $362 per week. He also received milk and meat free of charge from the farm. The plaintiff was a housewife, and was employed by several individuals to clean their houses, earning approximately $157 per week. The trial court dissolved the parties’ seventeen year marriage, finding that it had broken down irretrievably. The plaintiff alleged physical abuse and a lack of communication. The defendant claimed that the plaintiff had become involved in another relationship, but the court found no probative evidence to support the third party relationship. The court awarded custody of the parties’ minor daughters to the plaintiff and liberal visitation rights to the defendant. The court also ordered the defendant to pay $50 per week for each of two minor children, and $65 per week for the younger daughter when the older daughter reaches the age of eighteen. No award was ordered for a third child, who is handicapped, because the state of Connecticut provides for her care.

The court further ordered the defendant to pay periodic, nonmodifiable alimony in the amount of $35 per week, terminable at the end of three years. Finally, the court awarded the plaintiff exclusive use of the marital house until July 13,1991, when the younger daughter reaches eighteen years of age. At that time, the defendant is to have possession and is to pay to the plaintiff a two stage lump sum property settlement of $80,000. The court made no award to the plaintiff with respect to the defendant’s other real property interests.

The plaintiff first claims that the trial court erred in awarding limited, nonmodifiable alimony. Our standard of review in domestic relations cases is clear. We will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did. Timm v. Timm, 195 Conn. 202, 210, 487 A.2d 191 (1985); O’Neill v. O’Neill, 13 Conn. App. 300, 302, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “ ‘A fundamental principle in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982); Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986).’ ” O’Neill v. O’Neill, supra, 306, quoting Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). No single criterion is preferred over others, and the trial court has broad discretion in varying the weight placed on each criterion under the circumstances of each case. Carpenter v. Carpenter, supra.

Notwithstanding the great latitude accorded to the trial court in awarding alimony and assigning property, the plaintiff argues that the trial court could not reasonably have concluded as it did with respect to the alimony award. After a careful review of the entire record before us, we agree with the plaintiff and find error.

In its memorandum of decision, the court found the following facts. The plaintiff had been employed as a teacher in Rhode Island prior to her marriage, ceased teaching when she became pregnant with her first child, seventeen years ago, and has not taught since that time. She is not licensed to teach in Connecticut and has been earning approximately $157 per week cleaning houses. The court further found that the plaintiff “has many physical problems with her knees, especially from arthritis,” that she had undergone knee replacement surgery on one knee in the past and that she would require replacement of the other “in the not too distant future.”

The court rejected the plaintiffs claim for lump sum and periodic alimony and instead awarded her non-modifiable alimony of $35 per week for three years. After finding that the defendant is a fractional owner of four pieces of property, two comprising approximately one-half acre and two in which his fractional interest totals 208 acres and 123 acres, the court awarded no interest in those parcels to the plaintiff. The court also found that the defendant fraudulently conveyed the family residence to his children in order to remove the property from the marital assets, and yet it awarded the plaintiff exclusive use of that residence for a maximum term of three years during which time she is to be responsible for the payments of fuel and utilities, and with full rights to possession reverting to the defendant thereafter. The court further ordered that the plaintiff pay 20 percent of the children’s private school tuition during the year of the order, and 50 percent thereafter.

In determining the alimony to be awarded, the trial court has broad discretion, but it must consider all of the statutory criteria enumerated in General Statutes § 46b-82, “including length of the marriage, the causes for the dissolution of the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of the parties.” O’Neill v. O’Neill, supra, 312-13; see Carpenter v. Carpenter, supra, 742. There must be some indication in the record as to the basis of the trial court’s determination of the award. Markarian v. Markarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984). “At a minimum, the record should indicate that the trial court considered relevant statutory factors in making an alimony award containing an automatic termination date.” Id.

Although the trial court stated in its memorandum of decision that it had “carefully considered the criteria of the alimony statute” and applied them to the case before it, we find that this award of alimony is logically inconsistent with the court’s findings of fact. See O’Neill v. O’Neill, supra, 313. The court found that the plaintiff was earning $157 per week cleaning houses, and that she had many physical problems with her knees, including arthritis. It also acknowledged that she would most likely need to undergo a second knee replacement and, by these findings, implicitly found that she had a permanent disability. The court further found that although the plaintiff had been a teacher in Rhode Island, she has not taught in seventeen years and is not licensed to teach in Connecticut. We fail to see the logic behind the trial court’s award of alimony in light of these findings regarding the length of the marriage, the plaintiff’s physical disability and the facts relating to her employability. These findings do not support the court’s award of time limited alimony. Roach v. Roach, 20 Conn. App. 500, 507, 568 A.2d 1037 (1990); see O’Neill v. O’Neill, supra. Further, the trial court made no attempt to explain the basis of its decision in order to reconcile it with its findings of fact. See O’Neill v. O’Neill, supra; Markarian v. Markarian, supra.

The defendant suggests that this time limited award might have been meant to be rehabilitative alimony. He suggests that the court may have felt that while the plaintiff might no longer be able to clean houses, she might pursue her Connecticut teaching certification or training for an office job. The specific issue of rehabilitative alimony, however, was never addressed by the court. “Underlying the concept of time limited alimony is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency.” Markarian v. Markarian, supra. The trial court here, however, expressed no belief that this rationale might be applicable. There is simply nothing in the record of this case to indicate that the trial court felt as the defendant suggests.

The rationale behind the trial court’s award is not evident in the memorandum of decision, and the alimony award is logically inconsistent with the facts found by the trial court. We conclude, therefore, that there is error.

Having concluded that the trial court’s award of non-modifiable limited periodic alimony was logically inconsistent with the facts found by it, we must remand this case to the trial court. We cannot properly limit our remand to the issue of periodic alimony. “The issues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984).” Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). “ ‘[N]o single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case.’ Volante v. Volante, 180 Conn. 528, 531, 429 A.2d 964 (1980).” Sunbury v. Sunbury, supra, 174. As in Sunbury, where the court addressed a similar dissolution situation, the trial court on remand in this case “could no more fashion just and equitable financial orders by reconsidering only the issue of periodic alimony, than it could reassemble a broken vase with only one piece.” Id., 173. Our remand to the trial court, therefore, is for a new hearing on all of the financial issues.

Because it is likely to recur at the new hearing, we now address the second part of the plaintiffs alimony claim, namely, that the trial court erred in allowing the defendant to offer his projected expenses as opposed to current expenses on his financial affidavit. The plaintiff argues that this admission into evidence of the defendant’s projected expenses also constitutes error. We agree.

Practice Book § 463 requires that, at the time of the dissolution action, both parties file a sworn statement “of current income, expenses, assets and liabilities.” (Emphasis added.) The defendant, however, apparently having few current expenses, listed projected expenses on his financial affidavit. These expenses were speculative and should not have been considered by the court.

By the defendant’s own admission, the expenses that he listed on his sworn financial affidavit were projected. He had moved in with his parents and was not currently paying mortgage, taxes or insurance. Yet, the defendant estimated the expenses that he might pay should he move out on his own.

Consideration of projected expenses is analogous to consideration of projected assets, an issue that has been addressed by this court. See Manaker v. Manaker, 11 Conn. App. 653, 528 A.2d 1170 (1987). In Manaker, this court dealt with a dissolution in which the defendant husband had moved out of the marital residence and was living with another woman. In that case, we held that “[cjlearly, any future benefit the defendant may receive from the possibility of the housemate transferring assets to him is, at best, speculative and should not have been received into evidence for the purpose of assessing the defendant’s future economic prospects.” Id., 655. We held that the trial court could properly consider the housemate’s financial resources as relevant in determining the defendant’s living expenses because any contributions made by the housemate would be relevant to the defendant’s current expenses. Id.; see also Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987) (consideration of a “potential inheritance” disallowed because it was speculative and not current).

Nor can expenses be projected on the basis of speculation. What is relevant in determining the alimony and property division are the defendant’s current expenses, or, in some instances, the defendant’s future but definitive expenses. See Rubin v. Rubin, supra, 230-31. In determining property division, the trial court may usually consider only the current assets and liabilities of the parties. See id., 231. If a court could consider such projected expenses, a party would be able to insulate portions of his income from distribution by masking them as necessary to pay nonexistent expenses.

We also consider, because it is likely to recur at the new financial hearing, the plaintiff’s claim that the trial court erred in admitting the testimony of the defendant’s father regarding the value of land belonging to him and his neighbors. She claims error because the witness testified to the development rights and not to the value of the land itself.

The witness testified that he owned two parcels of land in Preston and that his son had a fractional interest in each. He then testified to their value. During his direct examination, he provided the sale prices of several of his neighbors’ properties and, on cross-examination, he stated that these sale prices were for the development rights of those properties.

“It is well settled that an owner of property is competent to testify as to its market value. Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963).” Ratner v. Willametz, 9 Conn. App. 565, 582, 520 A.2d 621 (1987). An owner can base his opinion on his familiarity with the value of similar properties in the same general area as his own. See Ridgeway v. Ridgeway, 180 Conn. 533, 544 n.7, 429 A.2d 801 (1980). The fact that the witness testified to the value of the development rights, which is lower than the value of the land itself, does not render the admission of that testimony erroneous. The witness, as the owner of the property, was qualified to render his opinion on the value of his land, including diminished value. McCahill v. Town & Country Associates, Ltd., 185 Conn. 37, 41, 440 A.2d 801 (1981). The weight to be accorded that testimony rests with the trier of fact. Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d 799 (1982); Ridgeway v. Ridgeway, supra. Accordingly, we find no error.

We need not consider the plaintiff’s other claims because they are not likely to recur or are already subsumed under our remand for a new hearing on the financial issues.

There is error in part, the judgment as to the financial issues is set aside and the case is remanded for a full hearing on the financial issues.

In this opinion the other judges concurred.

       The property settlement required the defendant to pay the plaintiff $40,000 within three months of the date that she vacates the house and $40,000 within two years thereafter.

       Following our reasoning in Markarian v. Markarian, 2 Conn. App. 14, 17 n.2, 475 A.2d 337 (1984), we again state that “[o]ur decision neither holds nor intimates that the trial court must make specific, detailed findings on each factor it considers pursuant to § 46b-82 or otherwise. We do, however, require that the record contain some indication as to the reasoning of the trial court in making an exercise of its discretionary powers in this type of proceeding.”

       In Rubin v. Rubin, 204 Conn. 224, 229-30, 527 A.2d 1184 (1987), our Supreme Court held that expectancy of inheritance “ ‘ “has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist.” . . .’ Krause v. Krause, [174 Conn. 361, 365, 387 A.2d 548 (1978)).” (Citation omitted.)


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    F. Owen Eagan v. Zoning Board of Appeals of Old Lyme et al.
    (7802)
    Spallone, Norcott and Foti, Js.
    Argued November 8, 1989
    decision released January 23, 1990

      Elizabeth A. Gallagher, with whom was Owen P. Eagan and, on the brief, Cynthia C. Bott, for the appellant (plaintiff).

      Thomas F. McGarry, with whom, on the brief, was Michael R. Feliciano, for the appellee (defendant Hugh E. Reilly).
   Spallone, J.

The plaintiff appeals from the trial court’s dismissal of his appeal from the granting by the named defendant, the Old Lyme zoning board of appeals (board), of a zoning variance to the defendant Hugh E. O’Reilly (applicant).

The plaintiff contends that the trial court erred (1) in dismissing his appeal where the action of the board was illegal, arbitrary and an abuse of its discretion, and (2) in denying his motion to bring in evidence. outside the record challenging the adequacy of the notice of the hearings.

In February, 1987, the applicant applied to the board for a variance to construct a seasonal, single-family house on his property in Old Lyme. The submitted plans described a smaller lot with a shorter front yard setback than specified in the regulations for this R-10 residential zone.

After published notice, the board held a public hearing in April, 1987, at which the plaintiff, an abutting property owner, was heard. On May 5,1987, the board granted the applicant’s requested variance and published the required notice. The plaintiff appealed to the Superior Court, and the applicant was granted party status pursuant to General Statutes § 8-8. During the pendency of the appeal, the plaintiff filed a motion to introduce evidence outside of the record, challenging the adequacy of the notice to him of the public hearing. The court, Hendel, J., denied that motion.

After oral argument, the trial court, Flanagan, J., dismissed the plaintiff’s appeal in December, 1988. Following certification by this court, the plaintiff filed this appeal.

I

The plaintiff first claims that the board was without power to grant the applicant’s variance because the applicant failed to meet his burden of proving undue hardship. The plaintiff argues that any hardship to the applicant was self-inflicted and arose from his failure to act on a previous grant of a special zoning exception. We disagree.

A variance is authority extended to the owner to use his property in a manner precluded by the zoning regulations. Burlington v. Jencik, 168 Conn. 506, 508, 362 A.2d 1338 (1975). A zoning board has the power to grant a variance if the variance will not substantially affect the comprehensive zoning plan and if strict adherence to the zoning ordinance would cause unusual hardship unnecessary to achieving the plan’s purpose. Pollard v. Zoning Board of Appeals, 186 Conn. 32, 38-39, 438 A.2d 1186 (1982); Aitken v. Zoning Board of Appeals, 18 Conn. App. 195, 204, 557 A.2d 1265 (1989). Proof of hardship is, therefore, a condition precedent to the granting of a variance, and such hardship must arise from the circumstances or conditions beyond the applicant’s control. Smith v. Zoning Board of Appeals, 174 Conn. 323, 327, 387 A.2d 542 (1978); Aitken v. Zoning Board of Appeals, supra, 205.

Appellate review of an agency decision is not a de novo adjudication and the court “is limited to a review of the evidence and reasoning the agency has placed on the record.” Kaeser v. Conservation Commission, 20 Conn. App. 309, 311, 567 A.2d 383 (1989). If the record reasonably supports the agency’s conclusions, the agency’s decision will not be disturbed. Frito-Lay, Inc. v. Planning & Zoning Commission, 206 Conn. 554, 573, 538 A.2d 1039 (1988); Burnham v. Planning & Zoning Commission, 189 Conn. 261, 266, 455 A.2d 339 (1983). The burden of proof is on the plaintiff to demonstrate that the board acted improperly. Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 707, 535 A.2d 799 (1988).

In this case, the trial court reviewed the record and found that the board properly considered the factors for granting a variance and articulated its reasons on the record. The application requested a variance for a use in concert with the comprehensive zoning plan. There was evidence that many houses in the immediate area of the applicant’s property were built on lots of the same size or smaller than the applicant’s and built with setbacks of the same distance as that proposed by the applicant. See Morningside Assn. v. Planning & Zoning Board, 162 Conn. 154, 162, 292 A.2d 893 (1972).

Further, the board found that the zoning regulations imposed an undue hardship on the applicant. The board stated that if strictly applied, the area zoning ordinance would render the applicant’s property useless, because it would be “impossible to locate a house of any size on the lot as far as the required setbacks in the regulation.” The plaintiff correctly states the law that a self-inflicted hardship cannot be proper ground for a variance. Pollard v. Zoning Board of Appeals, supra, 39; Spencer v. Zoning Board of Appeals, 15 Conn. App. 387, 390, 544 A.2d 676 (1988). The plaintiff relies on Farrington v. Zoning Board of Appeals, 177 Conn. 186, 413 A.2d 817 (1979), to argue that the applicant’s hardship is self-inflicted. In Farrington, the applicant was granted an extension of time on a special permit requiring that construction be completed within two years of its issuance. Id., 188. On appeal, the trial court held that the applicant’s own inaction during the term of the permit created a self-imposed hardship, which did not justify the decision of the zoning board to grant the extension. Id., 189-90. The plaintiff here claims that because the applicant allowed a special permit granted in 1968 to expire without constructing a residence on his property, his inaction for nineteen years constitutes a similarly self-created hardship.

This case is distinquishable from Farrington. The plaintiff has not sought an extension of his 1968 permit, but rather has reapplied for a variance. The hardship cited in the current application results from the minimum lot size and setback distance specified in the zoning regulations, not by the applicant’s own action or inaction. Cf. Pollard v. Zoning Board of Appeals, supra, 41 (surveyor error not grounds for variance); Aitken v. Zoning Board of Appeals, supra, 206 (desire to subdivide property is self-imposed hardship). The current application is neither related to nor dependent upon the expired permit and was granted by the board on its own merits. Further, we find that this board, unlike the board in Farrington, supra, 190-91, set forth on the record its reasons for granting the variance.

II

The plaintiff also claims that it was error for the trial court to deny his motion to bring in evidence outside the record to demonstrate that, because he is a seasonal resident, the statutory notice requirements were inadequate to notify him of the public hearings. A court reviewing a zoning board decision on appeal may, at its discretion, permit the introduction of supplemental evidence if deemed necessary for the equitable disposition of the appeal or if the record is incomplete. General Statutes § 8-8 (e); Troiano v. Zoning Commission, 155 Conn. 265, 268-69, 231 A.2d 536 (1967).

It is uncontroverted that the board fully complied with the notice requirements mandated by General Statutes § 8-7, which requires two publications of the notice of the public hearing-in a local newspaper of substantial circulation. Although not required to do so, the board also mailed the plaintiff a letter of notification that he received before the hearing. Whatever the claimed inadequacy of notice, the plaintiff attended the public hearing and addressed the board. The board did everything required of it, and more, to notify this plaintiff.

We conclude that the trial court properly applied the relevant law in reviewing the record of the board’s granting of the variance and properly determined that the board had adhered to the statutory notice requirements.

There is no error.

In this opinion the other judges concurred.

       The board stated several reasons for its decision to grant the variance, “a. The area pre-existed zoning;
      “b. The engineered septic system plan now presented was much better than the one which would have been installed in 1968 when Mr. O’Reilly had been granted permission to build by the zoning commission.
      “c. Neighboring property owner offered no objections.
      “d. Applicant noted on application that the land would be rendered useless if he was not allowed to build upon it;
      “e. Applicant had to move the proposed building forward because of the requirements of the septic system and leaching field area, which made it impossible to locate a house of any size on the lot as far as the required setbacks in the regulation.”


author: Daly, J.

text:
    Arnold J. Alderman, Trustee v. RPM of New Haven, Inc., et al.
    (7506)
    Borden, Daly and Norcott, Js.

      Argued November 8, 1989
    decision released January 23, 1990

      Edward J. Botwick, for the appellants-appellees (defendants).

      Gilbert M. Galer, for the appellee-appellant (plaintiff).
   Daly, J.

In this action for conversion of funds, the defendants appeal and the plaintiff cross appeals from the judgment of the state trial referee, acting as the trial court, awarding the plaintiff $38,972.05. We find no error on the appeal, but we find error in part on the cross appeal.

The following facts are undisputed. The plaintiff owned three of seven condominium units in Connelly Parkway Condominium, a complex located in Hamden. The plaintiff occupied unit two and held title, as trustee, to units four and six. In December, 1979, after the condominium was first organized, the plaintiff hired the Benedict Company as its management agent. During this management, the defendant Richard W. Miller was an agent-employee of the Benedict Company and conducted the management duties at the complex.

On September 1,1984, when the Benedict Company ceased its operations, Miller continued as the property manager of the complex, this time acting as the subagent for the named defendant, RPM of New Haven, Inc. (RPM), which had succeeded the Benedict Company as the management agent for the entire complex, including the plaintiff’s units. At the time that RPM took over as the management agent, the last known balance that was due for unit four was $18,153.44 and for unit six was $18,840.71.

The plaintiff sold units four and six in February, 1986, and, at that time, requested an accounting and payment of the money due from these two units. Miller prepared the accounting on a handwritten sheet dated April 30, 1986. This accounting showed a balance of $20,435.37 due for unit four, and a balance of $18,536.68 due for unit six, for a total net balance of $38,972.05. When the plaintiff subsequently demanded payment, Miller informed him that there were no funds left in the account to make payment, that the plaintiff’s funds had been commingled with the funds from all the units into a single account and that all of the plaintiff’s funds had been used to pay the bills and obligations of another unit owner. The plaintiff sued the two defendants for conversion of his funds. In his complaint, the plaintiff alleged that as of April 30, 1986, the amount of $38,972.05 was due to him. He requested that amount, plus interest.

The trial court found for the plaintiff and determined that the two defendants were jointly and severally liable for $38,972.05 because of their unauthorized commingling of funds for the two units into a general account, and because of their use of this money for payment of expenses and bills unrelated to the plaintiff’s two units. The trial court, however, did not award the plaintiff interest on the $38,972.05. This appeal and cross appeal followed.

The defendants’ sole claim of error is that the trial court incorrectly applied the correct measure of damages. In support of their claim, the defendants assert, without reference to case law, that the “[pjroper award should have been that sum of money which was lost to the plaintiff during the term of the principal/agent relationship or damages arising therefrom. In this case that sum should have been the sum due the Plaintiff at the conclusion of the [fiduciary] relationship, less the sum due to the plaintiff at the beginning of this relationship or $38,692.05 [sic] less $36,994.18, or a total of $1967.87 [sic].” On the basis of our review of the record, we conclude that the trial court correctly applied the proper measure of damages to the facts of the case.

In his cross appeal, the plaintiff claims that the trial court erred in failing to award prejudgment interest on an otherwise properly determined amount of damages. We agree.

“General Statutes § 37-3a allows the recovery of interest in civil actions ‘as damages for the detention of money after it becomes payable . . . .’We have construed the statute to make the allowance of interest depend upon ‘whether the detention of the money is or is not wrongful under the circumstances.’ Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971). ‘The allowance of interest as an element of damages is, thus, primarily an equitable determination and a matter lying within the discretion of the trial court.’ Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973).” Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985); see also Ottaviani v. Pechi, 16 Conn. App. 705, 708, 548 A.2d 1354 (1988). “Whether in certain circumstances a sum has been liquidated may be a useful, although not necessarily a controlling, criterion.” Slattery v. Maykut, 176 Conn. 147, 155, 405 A.2d 76 (1978). “Under this statute, interest ordinarily begins to run from the time when the money was due and payable.” Marcus v. Marcus, 175 Conn. 138, 146, 394 A.2d 727 (1978).

It is true that courts “have seldom found an abuse of discretion in the determination by a trial court of whether a detention of money was ‘wrongful’ ”; Newington v. General Sanitation Service Co., supra. It is also true that courts “have never held the denial of ... an award [of prejudgment interest for unpaid monetary claims] to be an abuse of discretion.” State v. Stengel, 192 Conn. 484, 487, 472 A.2d 350 (1984); see also Vernon Foodliner, Inc. v. Central Mutual Ins. Co., 1 Conn. App. 595, 600, 474 A.2d 468 (1984); but see Guaranty Bank & Trust Co. v. Dowling, 4 Conn. App. 376, 386, 494 A.2d 1216, cert. denied, 197 Conn. 808, 499 A.2d 58 (1985) (error in not awarding prejudgment interest where terms of promissory note expressly provided that interest be awarded). Nevertheless, under the circumstances of this case, we are compelled to find that the trial court erred in failing to award prejudgment interest.

The record reveals that the plaintiff requested, in both his complaint and his trial brief, that interest be awarded and thus diligently presented his claim to the trial referee. Cf. Newington v. General Sanitation Service Co., supra, 90-91. In addition, the amount that was due to the plaintiff was a liquidated amount. Cf. Slattery v. Maykut, supra. Furthermore, the trial referee relied on Luciani v. Stop & Shop Cos., 15 Conn. App. 407, 410, 544 A.2d 1238, cert. denied, 209 Conn. 809, 548 A.2d 437 (1988), in finding that the defendants had wrongfully appropriated the plaintiffs funds by converting them subsequent to an initial rightful possession. Such a form of conversion has been characterized as a “wrongful use.” Id.

The trial court concluded that the facts of the present case meet the definition of conversion by wrongful use and that as of April 30, 1986, there was a liquidated amount of $38,972.05 due to the plaintiff. In view of these findings, and because the plaintiff diligently pursued in the trial court his request for interest as damages, we conclude that the trial court abused its discretion by failing to award prejudgment interest for the wrongful use of this money from the date that the money became due and payable on April 30, 1986, to the date of judgment, October 5, 1988. See Marcus v. Marcus, supra; see also Cecio Bros., Inc. v. Feldmann, supra, 275. The plaintiff is, therefore, entitled to interest on $38,972.05 at the statutory rate of 10 percent per annum for the period from April 30, 1986, through October 5, 1988.

There is no error on the appeal; there is error in part on the cross appeal, the judgment is set aside and the case is remanded with direction to render judgment as on file except that interest is to be awarded to the plaintiff in accordance with this opinion.

In this opinion the other judges concurred.

       The defendants expressly abandoned one of their issues on appeal and impliedly abandoned a second issue when they failed to brief the issue. See Morris v. Newington, 36 Conn. Sup. 74, 88, 411 A.2d 939 (1979), citing Sachem’s Head Assn. v. Lufkin, 168 Conn. 365, 366, 362 A.2d 519 (1975).

       Although the memorandum of decision did not expressly address the plaintiff’s claim for interest, it did so impliedly. The court impliedly denied interest when it awarded the exact amount of money damages that the plaintiff claimed was due and payable to him. The plaintiff’s claim is thus reviewable. Cf. Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 750, 557 A.2d 525 (1989).

       We do note that, although the plaintiff was diligent in making known to the trial referee that he also requested interest, the plaintiff could have filed, but did not file, a motion for articulation following the court’s implicit denial of interest. See Practice Book § 4051. Because there was sufficient support in the record for the plaintiff’s claim, he was not harmed by his failure to file this motion. Cf. Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 750, 557 A.2d 525 (1989).

       The record is unclear whether the money was due at the time of the sale in February, 1986, or when the accounting was made in April, 1986. Because the plaintiff has requested only that interest be awarded starting from April 30, 1986, we need not pursue this discrepancy.


text:
    State of Connecticut v. Robert Ryerson
    (7257)
    Daly, Norcott and Foti, Js.
    Argued October 18, 1989
    decision released January 30, 1990

      JohnR. Williams, with whom, on the brief, wasiSue L. Wise, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the denial of his motion for correction of an illegal sentence. This appeal arises out of the judgment rendered in the judicial district of New London sentencing the defendant to serve a ten year sentence on a charge of violation of probation; General Statutes § 53a-32; that sentence to run consecutive to a sentence then being served by the defendant.

On October 17, 1983, the defendant was sentenced by the trial court in the judicial district of New London, after having been convicted of three counts of robbery in the second degree. The court imposed a sentence of ten years on one count, and ten years, execution suspended after five years, on each of the other two counts. Because these sentences were imposed concurrently, the defendant received a total effective sentence of ten years. The court then determined that the defendant was drug dependent and committed him to the custody of the commissioner of mental health, pursuant to General Statutes § 21a-285, for not more than twenty-four months, during which time the sentences were to be fully suspended. The court indicated to the defendant that if he did not successfully complete the program he faced the full ten year sentence.

On April 27,1984, the defendant was released by the commissioner of mental health and again appeared before the New London trial court. At that time, the court fully suspended the ten year sentence and placed the defendant on probation for five years. The court, however, warned the defendant that if he came back before the court as the result of drug related activity or a criminal violation, he would serve the entire balance of his ten year sentence.

On February 8, 1985, while still on probation, the defendant was convicted in the New Haven judicial district of robbery in the first degree, and sentenced to a term of fifteen years, execution suspended after six years, with five years probation. The court, Hadden, J., noted that the defendant’s New London probation was in another jurisdiction and was not part of the sentence he imposed.

On May 28, 1985, the defendant was presented in New London on a warrant charging him with a violation of probation. The defendant pleaded guilty to this charge based on his previous conviction. The New London court reimposed the October 17,1983 ten year sentence to run consecutive to the six year New Haven sentence. The defendant, therefore, received a total effective prison sentence of sixteen years.

On June 10, 1988, the defendant filed a motion for the reduction of his sentence on the ground that the presentence investigation report presented to the October 17, 1983 sentencing court showing eleven counts of armed robbery in Montana was in error and was not corrected until after the defendant was sentenced on the unrelated New Haven charge. He also argued that the sentence was punitive in nature and too harsh. The court denied this motion.

The defendant timely appealed this denial, but the original appeal was stayed in order to raise additional grounds in a second motion for correction of an illegal sentence. After the court denied the second motion, this appeal ensued.

I

The defendant’s first claim is that the trial court erred in denying his motion to correct an illegal sentence because the trial court in the judicial district of New London exceeded its statutory authority and violated the constitutional prohibition against double jeopardy. The defendant argues that the court illegally raised his effective sentence from a maximum of ten years that would have been imposed if the New London sentence was to run concurrent with the New Haven sentence, to sixteen years to serve based on the reimposition of the New London sentence to run consecutive to the New Haven sentence.

A

The defendant makes two arguments in his claim that the New London trial court exceeded its statutory authority when it reimposed the New London sentence to run consecutive to the New Haven sentence. First, he argues that the New London trial court did not have the authority to impose a consecutive sentence and that the only court that could impose a consecutive sentence would have been the New Haven court, acting pursuant to General Statutes § 53a-37. We do not agree.

General Statutes § 53a-32 (b) provides that if a violation of probation is established, the trial court may revoke the sentence of probation, “and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.” In State v. Gaskin, 7 Conn. App. 131, 508 A.2d 40 (1986), this court determined that the probation revocation court did not impose an illegal sentence when it sentenced the defendant to three years for a violation of probation; that sentence to run consecutive to the sentence imposed for the intervening offense. The Gaskin court reasoned that “[tjhere is no distinction between the present case and the situation in which a defendant, incarcerated after conviction, is later convicted of an additional crime committed before the offense for which he is incarcerated, and who is, on the second conviction, sentenced to serve a term of imprisonment consecutive to the earlier sentence. Such a consecutive sentence is expressly permitted by General Statutes § 53a-37.” Id., 135. In effect, this court has determined that the probation revocation sentencing court, acting pursuant to General Statutes § 53a-32 (b), has the statutory authority to impose a sentence for the underlying offense that runs consecutive to the sentence for the second, or intervening offense. See also State v. Boom, 15 Conn. App. 34, 57, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988).

As part of his first argument, the defendant also asserts that because the New Haven court did not expressly state that the undischarged sentence resulting from a violation of probation would run consecutive to the subsequent sentence on the charge of robbery in the first degree, the New London court sentencing the defendant on his violation of probation was required to impose a concurrent sentence. This argument is also misplaced.

The defendant had not been charged with a violation of probation at the time that he was sentenced on the second offense, and, therefore, the New Haven judge would have been acting prematurely by imposing on the defendant a sentence consecutive to a possible, undischarged sentence. Contrary to the defendant’s contention, the state is not required to charge the defendant simultaneously with a violation of probation and a second, separate offense.

The defendant, in his second argument, attempts to distinguish the holding in Gaskin from the present case, arguing that, even if the New London court had the statutory authority to impose a consecutive sentence, the judge nevertheless exceeded his authority by imposing a longer effective sentence than he was originally authorized to impose. We are not persuaded by the defendant’s claim.

Assuming, arguendo, that the defendant’s reasoning is correct and that the probation revocation sentencing court in Gaskin imposed a consecutive sentence that did not exceed its statutory authority, we are not persuaded that the principle in Gaskin should limit a court acting under General Statutes § 53a-32 (b) to imposing an effective sentence that does not exceed the maximum exposure of the original conviction. Indeed, this construction would create absurd results in those situations in which a defendant is sentenced to a greater term to serve for the intervening offense than for the original offense because it would effectively prevent a trial judge from ordering a defendant to serve his prison sentence for the original conviction. The trial court should not be prevented from reimposing the original, or any lesser amount of punishment, by way of a consecutive sentence once it has been determined that the defendant has committed the additional offense of a violation of probation.

While “[i]t is axiomatic that ‘penal statutes and rules of criminal procedure are to be strictly construed to protect the fundamental constitutional right to liberty’ State v. Shockley, 188 Conn. 697, 714, 453 A.2d 441 (1982) (Speziale, C. J., concurring); “ ‘the application of common sense to the language of a penal law is not to be excluded in a way which would involve absurdity or frustrate the evident design of the lawgiver.’ ” State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983).

B

The defendant also argues that the reimposition of the New London sentence to run consecutive to the New Haven sentence violated the state and federal constitutional prohibition against double jeopardy.

As a preliminary matter, we must decide whether this claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973); see also State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989); because the defendant raises this claim on appeal for the first time. On the basis of our Supreme Court’s decision in State v. Smith, 207 Conn. 152, 540 A.2d 679 (1988), we deny review under Evans because the defendant has not demonstrated that his claim is of constitutional dimension. See State v. Golding, supra, 240-41; State v. Maldonado, 20 Conn. App. 137, 139, 564 A.2d 638, cert. denied, 213 Conn. 806, 567 A.2d 836 (1989).

In State v. Smith, supra, our Supreme Court determined that the doctrine of double jeopardy is inapplicable to probation revocation proceedings. The court began its analysis by stating that “[t]he guarantee against double jeopardy proscribes exposure to criminal prosecutions for the same offense after conviction or acquittal and protects against multiple punishments for the same offense. . . . Such exposure is absent from proceedings that are not ‘ “ ‘essentially criminal.’” ’ . . . ‘A proceeding is criminal for double jeopardy purposes if it imposes a sanction intended as punishment.’ . . .” (Citations omitted.) Id., 176.

The court then concluded that “[rjevocation hearings are not concerned with punishment or retribution. . . . The element of ‘punishment’ in probation revocation ... is attributable to the crime for which he was originally convicted and sentenced. Thus, any sentence this defendant had to serve as the result of the violation . . . was ‘punishment’ for the crime of which he had originally been convicted. Revocation is a continuing consequence of the original conviction from which probation was granted. The doctrine of double jeopardy is not applicable . . . .” Id., 177-78. Because the doctrine of double jeopardy is inapplicable to probation revocation proceedings, this court need not further review the defendant’s claim.

Accordingly, the reimposition of the New London sentence to run consecutive to the New Haven sentence was not illegal or unconstitutional, and the trial court appropriately denied the motion for correction of an illegal sentence pursuant to Practice Book § 935.

II

The defendant’s second claim is that the probation revocation sentencing court allegedly increased his punishment and, in so doing, acted with vindictiveness in violation of his constitutional due process rights as set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), and State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985), cert. denied, 474 U.S. 1073,106 S. Ct. 833, 88 L. Ed. 2d 804 (1986). This claim has no merit.

This court must first determine whether the analysis of North Carolina v. Pearce, supra, is warranted where there is a reimposition of a sentence for a violation of probation. We believe it is not necessary to conduct this analysis. “North Carolina v. Pearce, [supra], only prohibits the imposition of a more severe sentence on remand.” (Emphasis in original.) State v. Taylor, 207 Conn. 109, 117, 540 A.2d 64 (1988) (Callahan, J., concurring).

This case does not concern itself with vindictiveness. The defendant did not receive a more severe sentence. His effective sentence for the original robbery offenses was ten years and five years probation, and, with the exception of credit given for his previous incarceration and commitment for drug treatment, and the fact that his probation was terminated, that is the same sentence that was reimposed. In addition, the reimposition of a sentence already given based on the defendant’s subsequent offense for a violation of probation is not akin to the resentencing on remand because of a defendant’s successful appeal, as was the case in Pearce.

Even if we were to apply a Pearce analysis to this case, we would still conclude that the Pearce presumption of vindictiveness does not apply and that the defendant has not proven actual vindictiveness. See State v. Taylor, supra, 116-17.

In State v. Taylor, our Supreme Court held that the Pearce analysis does not apply to a resentencing following a habeas corpus proceeding where the habeas court had remanded the case to the trial court for resentencing. The court said, “ ‘[t]he Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial. Like other “judicially created means of effectuating the rights secured by the [Constitution]” ... we have restricted application of Pearce to areas where its “objectives are thought most efficaciously served.” . .■ . (Citations omitted.) Texas v. McCullough, [475 U.S. 134, 138, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986)].” State v. Taylor, supra, 115-16.

The court then stated that “[t]he violation of due process in situations such as Pearce and [Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974)] . . .. [arises] from the ‘danger that the State might be retaliating against the accused for lawfully attacking his conviction.’ Bordenkircher v. Hayes, [434 U.S. 357, 363, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978). ‘[Wjhere the presumption applies, the sentencing authority or the prosecutor must rebut the presumption that an increased sentence or charge resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.’ ” State v. Taylor, supra, 116.

As in Taylor, the Pearce presumption would not apply to the present case because this is not a situation where the state might be retaliating against the accused for lawfully attacking his conviction; indeed, this defendant made no such attack. Furthermore, the record fails to support the defendant’s claim that vindictiveness actually occurred in the probation revocation sentencing.

Ill

The defendant’s third claim is that he was denied his constitutional right to due process when both the original New London sentencing court, Hendel, J., as well as the probation revocation sentencing court, Hendel, J., considered incorrect information in determining the defendant’s sentence for the initial robbery offense.

We note at the outset that we will not consider the defendant’s alleged denial of his constitutional right to due process pertaining to the incorrect information presented to the original sentencing court in the presentence investigation report because the appropriate avenue for review would have been a timely filed motion for sentence review.

With regard to the defendant’s claim that he was denied due process because of incorrect information presented to the probation revocation sentencing court, the state has raised the issue of whether this claim is entitled to review based on State v. Evans, supra. See also State v. Golding, supra. The state claims that the incorrect information that was presented to the probation revocation sentencing court was not objected to by the defendant, and hence not properly preserved for our review. We do not agree with the state’s contention.

On the basis of our review of the record, we conclude that the issue is re viewable because the defendant’s claim amounts to one of an unconstitutional deprivation of the due process rights allegedly accorded him in State v. McNellis, 15 Conn. App. 416, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988), and State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). See State v. Golding, supra, 241; State v. Baxter, 19 Conn. App. 304, 309-10, 563 A.2d 721 (1989). Nonetheless, we are not persuaded by the defendant’s claim that the incorrect information violated his due process rights and deprived him of a fair trial. State v. Golding, supra, 241.

In the present case, the defendant first argues that he was actually prejudiced by the assistant state’s attorney’s submission of incorrect information at the probation revocation sentencing. The defendant also argues that the probation revocation sentencing judge relied on this same false information represented by the assistant state’s attorney and that this resulted in an enhancement of an otherwise legal sentence. The incorrect information pertained to the defendant’s prior criminal record in Montana that was originally misstated in his presentence investigation report, but later corrected. At the probation revocation sentencing, however, a different state’s attorney misrepresented that the defendant had committed eleven robberies in Montana, when in fact, he had committed only one.

In State v. McNellis, supra, 447-48, this court stated: “When a defendant is actually prejudiced by the prosecution’s submission of misinformation regarding his prior criminal record ... a defendant is denied due process of law and the conviction cannot be sustained. Townsend v. Burke, 334 U.S. 736, 740-41, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948). A sentence premised on a materially untrue criminal background would be con- • stitutionally infirm.”

In the present case, the record discloses that the same trial judge was present for the defendant’s original sentence and for the reimposition of the sentence to run consecutive to the intervening offense. The record further discloses that at the original sentencing the trial judge was told by defense counsel that the information regarding the defendant’s Montana criminal record was incorrect, that the trial judge accepted defense counsel’s representations on the record and that the trial judge indicated in a subsequent motion for articulation that the defendant’s Montana record played no role in the sentence. Even though a new state’s attorney represented the same incorrect information at the probation revocation sentencing, and the trial judge and defendant were silent, this was the same trial judge who had already known that the information was not accurate. The defendant has not demonstrated that this information actually prejudiced his case.

As to the defendant’s second argument, while it may be true that “[a]s a matter of due process, information may be considered as a basis for a sentence only if it has some minimal indicium of reliability”; State v. Huey, supra, 127; the defendant is nevertheless required to show that the information was materially false or unreliable and that the trial court relied substantially on the information in determining the sentence. State v. Collette, 199 Conn. 308, 321, 507 A.2d 99 (1986); see also State v. Williams, 205 Conn. 456, 477, 534 A.2d 230 (1987).

In Williams, the court determined that, on the basis of its review of the record as a whole, the trial court did not rely on the inaccuracies alleged by the defendant and that the central concern of the trial court at sentencing was the defendant’s history of violent conduct toward women. State v. Williams, supra, 478.

Likewise, in the present case, the record discloses that Judge Hendel’s concerns at the probation revocation sentencing were aimed at sentencing the defendant to the term he had originally given him because the defendant was given a break but did not take advantage of the break when he was convicted of committing another crime. On the basis of our review of the record, we conclude that the probation revocation sentencing court did not rely on the inaccuracies alleged by the defendant.

Accordingly, we conclude that the defendant has not sufficiently shown that he was actually prejudiced by the inaccuracies of his Montana record and that the probation revocation sentencing court did not rely on the inaccuracies alleged by the defendant.

There is no error.

In this opinion the other judges concurred.

       The defendant maintained his innocence to the intervening offense and noted that he had appealed from this conviction, but nevertheless he pleaded guilty based on the fact that a jury had convicted him. See State v. Ryerson, 201 Conn. 333, 514 A.2d 337 (1986) (conviction upheld).

       The court gave the defendant credit for the time he had served before sentencing and the time spent in the drug treatment program. This minimal amount of time is not critical to this appeal.

       The defendant relied on Practice Book § 935 for both the initial “motion for reduction of sentence” and the subsequent motion for the correction of an illegal sentence.

       The relevant language of General Statutes § 53a-37 states that “when a person who is subject to any undischarged term of imprisonment at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence.”

       The defendant’s reasoning is misplaced. The defendant argues that the reason that the court in Gaskin did not exceed its statutory authority when it sentenced the defendant for a probation violation, was because it could have imposed a sentence of up to ten years for the original offense, a violation of General Statutes § 53-21. Although the defendant in Gaskin faced a maximum exposure of ten years for this offense when he appeared before the court that imposed the original sentence, that court sentenced the defendant to five years. The intervening sentence imposed in Gaskin was seven years, and the sentence for the probation violation, reimposed to run consecutive to the intervening sentence, was three years, for a total effective sentence of ten years. Because the total effective sentence in Gaskin did not exceed the maximum exposure on the underlying offense, the defendant here argues, in effect, that a probation revocation court is limited to imposing a total effective sentence that does not exceed that maximum exposure. The authority of a court to sentence a defendant for a violation of probation is not measured by the maximum exposure for the underlying offense; it is measured by the sentence actually imposed. That authority operates independently of the sentence imposed for the intervening offense. Thus, the probation revocation court in Gaskin could have imposed a sentence of up to five' years consecutive to the sentence for the intervening offense, regardless of whether this would have led to a total effective sentence that was longer than the maximum exposure for the original offense.

       “We note that Connecticut does not have an express double jeopardy clause, but we have interpreted our due process guarantees as including protection against double jeopardy. State v. Rawls, 198 Conn. 111, 113 n.3, 502 A.2d 374 (1985).” State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989).

       Even if we reviewed the defendant’s substantive claim, we would nevertheless have determined that there was no violation of the prohibition against double jeopardy because the claim is without merit. The defendant argued that the probation revocation sentencing court violated the constitutional right against double jeopardy by modifying the sentence after execution of it had commenced. See State v. Elliott, 8 Conn. App. 566, 574, 513 A.2d 1285, cert. denied, 201 Conn. 813, 517 A.2d 630 (1986). Even if we accept the argument that the reimposition of the New London sentence consecutive to the New Haven sentence is a “modification” upward, this argument is without merit.
      The defendant wrongfully contends that the defendant’s commitment to the commissioner of mental health for drug treatment pursuant to General Statutes § 21a-285 began the execution of his sentence. General Statutes § 21a-185 (a) expressly provides: “If sentence has not been imposed, the court shall first proceed upon the conviction, impose sentence, order commitment to the executive director and, suspend execution of such sentence during the period of such commitment.” (Emphasis added.) Thus, the sentence was not executed by virtue of the defendant’s commitment for drug treatment.


author: Lavery, J.

text:
    State of Connecticut v. John Sinclair
    (7293)
    Dupont, C. J., Spallone and Lavery, Js.
    Argued October 12, 1989
    decision released January 30, 1990

      Barbara Sorrentino, assistant public defender, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom were Michael Dearington, state’s attorney, and James G. Clark, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant is appealing from a judgment of conviction, after a jury trial, of burglary in the second degree in violation of General Statutes § 53a-102, and larceny in the fourth degree, in violation of General Statutes § 53a-125. He also appeals from a judgment of conviction, after a trial to the court, of being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The defendant claims that the trial court erred (1) in failing to strike the testimony of a witness whose statement was lost by the police, (2) in failing to declare a mistrial or to give a curative instruction after the state made remarks during closing argument that allegedly shifted the burden of proof to the defendant, (3) in refiising the defendant’s request to charge on circumstantial evidence and in giving an inadequate instruction on that issue. The defendant also claims that the state committed prosecutorial misconduct when it argued to the jury certain facts not in evidence. We find no error.

The jury could reasonably have found the following facts. The victim, Penelope Ducker, was a student residing in Morse College, an undergraduate college of Yale University in New Haven. On October 6,1987, at approximately 9:40 p.m., Ducker left her dormitory room to visit a friend across the hall. When she returned to her room, she saw a man come out of her room carrying her portable stereo. Ducker yelled at the man, who fled down a flight of stairs toward the college courtyard.

Ducker chased the burglar down several flights of stairs. During the chase, the burglar threw down the stereo on the stairs. Ducker stopped and looked out an opened window, through which she could see the man she had chased walking nonchalantly away from the building. She yelled from the window, “Stop that guy. He just ripped me off.” The man began to run.

Paul Jahnige and David Thompson, two Yale students, heard Ducker’s cries and began to chase the man. Ducker also joined the chase. The three eventually caught up with and surrounded the man on a nearby street, Tower Parkway. He asked his pursuers to “give [him] a break.” He began running again, then stumbled and fell. Two gold chains belonging to Ducker spilled from his jacket pocket. Jahnige and Thompson then held the man until the police arrived. At trial, the parties stipulated that the man chased by the Yale students and arrested by the police was in fact the defendant.

I

The defendant first claims that the trial court erred in refusing to strike the testimony of the victim because of the state’s failure to produce her statement. We disagree.

After the defendant’s arrest, the Yale police tape-recorded Ducker’s statement at the station house. It was the policy of the Yale police to transcribe such recordings and then to store the cassettes in a locked drawer, to which only two officers had a key. When neither officer was available to unlock the drawer, as was the case on the evening in question, the cassette would be left on the desk top above the drawer, to be placed in the drawer when it next could be unlocked. The tapes were usually labeled with a small, adhesive-backed piece of note paper and were not catalogued in any way.

Approximately one week before the trial began, the state informed the defendant that it could not locate the cassette tape containing Ducker’s statement, although it was able to provide a transcript of the recording signed by Ducker. The defendant filed a motion in limine to suppress Ducker’s testimony at trial on the ground that the state had failed to comply with the mandatory discovery requirements of General Statutes § 54-86b and Practice Book §§ 748 through 755. The trial court denied the motion.

The discovery of prosecution witnesses’ statements is governed by General Statutes § 54-86b, and the statute is complemented by Practice Book § 752. It is undisputed that the tape recording of Ducker’s statement qualifies as a “statement” within the meaning of § 752. State v. Williamson, 14 Conn. App. 108, 112, 552 A.2d 815, aff’d, 212 Conn. 6, 562 A.2d 470 (1989). For the purposes of § 752, the term “statement” includes a “stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.” Practice Book § 749 (2).

In order for the provisions of Practice Book § 752 and General Statutes § 54-86b to apply, however, four additional requirements must be met. State v. Williamson, supra, 113. “First, the witness whose prior statements are sought, must have been a witness for the prosecution and must have testified under direct examination.” Id. Although the defendant moved to suppress Ducker’s testimony before trial began, it was clear at the time the motion was argued that Ducker would be a key witness for the prosecution. “Second, the defendant must make a motion to the trial court for production of the witness’ statement.” Id. In this case, the state informed the defendant before trial that the tape was lost. A motion for production under these circumstances, when the outcome is preordained, “would simply set judicial wheels unnecessarily spinning . . . .” Chomko v. Patmon, 20 Conn. App. 159, 163, 565 A.2d 250 (1989). The defendant’s pretrial motion to suppress served the intended function of bringing the destruction or loss of the evidence to the trial court’s attention. As to the third and fourth requirements, namely, that the statement “must relate to the subject matter about which the witness has testified” and that it “must be in the possession of the state or its agents”; State v. Williamson, supra; there is no dispute. The provisions of § 54-86b and § 752, therefore, encompass the tape recording of Duckers’ statement. State v. Williamson, supra.

“It is beyond dispute that the state cannot avoid the discovery provisions of Practice Book § 752 by destroying discoverable material in its possession before the defendant moves for production. . . . The provisions of §§ 752 and 755 .. . ‘are mandatory.’ ” (Citation omitted.) State v. Williamson, 212 Conn. 6, 13, 562 A.2d 470 (1989). Because the “ ‘ “[suppression of relevant, material and otherwise admissible evidence is a severe sanction which should not be invoked lightly” ’ ”; id., 15; no § 755 sanction is warranted if the nonproduction of the statement in violation of § 752 was not in bad faith; id., 14; and is harmless. Id., 13. We turn first to the issue of whether the nonproduction of the statement was in bad faith.

Although the defendant does not dispute that the loss of the tape was unintentional, he argues that the routine disregard and negligence shown in the police’s handling of the tapes is tantamount to bad faith. It is true that, although the Yale police department’s general policy was to keep such tapes in a locked drawer, the execution of this policy during the time in question could be characterized as slipshod. The tapes were not catalogued, were poorly labeled, and often were not immediately placed in the drawer but left on the desk where, should the flimsy label fall off, they might be mistaken for blank tapes and reused. In short, although the department policy was to preserve the tapes, in reality the procedures to implement that policy left open a fair possibility that discoverable material might be negligently lost or destroyed. Although we disagree with the defendant’s contention that the routine mishandling of these tapes was tantamount to bad faith, we will bear in mind this aspect of the state’s culpability in the loss of the tape as we weigh the defendant’s showing of prejudice, to which we next turn our attention.

“ Tn the absence of bad faith we employ a balancing test to determine whether sanctions should be imposed for the state’s failure to produce the tape. . . . ’ State v. Santangelo, [205 Conn. 578, 587-88, 534 A.2d 1175 (1987)].” State v. Williamson, supra, 14. The test weighs the state’s culpability in failing to produce the tape against any resulting prejudice to the defendant. Id. Because access to the statements of state witnesses is not a constitutional right, the burden of showing prejudice rests on the defendant when the state has not deliberately destroyed the evidence in question. Id., 17.

The defendant claims that the loss of the tape prejudiced him by denying him a tool with which to impeach Ducker’s testimony at trial. He argues that this disability was aggravated by the fact that Ducker was the only eyewitness to the crime itself and was unable to make an in-court identification. He further claims that Ducker’s description of the defendant’s clothes conflicted with that given by other eyewitnesses.

We are not persuaded that the defendant’s case was prejudiced by the loss of the tape. First, the defendant was provided with a transcription of the recording that was reviewed and signed by Ducker only three days after the crime. The defendant used the transcription to cross-examine Ducker. Second, the defendant’s cross-examination of Ducker failed to reveal any critical inconsistencies between her trial testimony and her transcribed statement. Cf. State v. Williamson, supra, 25 (several critical inconsistencies between witness’ transcribed statement and witness’ recollection of what she actually told police). Third and most importantly, although Ducker’s testimony was undoubtedly important to the state’s case, the state presented other witnesses who testified to the defendant’s appearance in the Morse College courtyard and his subsequent flight and apprehension. These witnesses also identified the defendant as the person they apprehended on Tower Parkway and testified that when he attempted to escape and fell, several gold chains belonging to Ducker fell out of his pocket. Thus, this is not a case where “ ‘the appellant’s conviction rests heavily on the credibility of a single [witness].’ ” Id., 21; United States v. Wallace, 848 F.2d 1464, 1471 (9th Cir. 1988). It is unlikely, therefore, that any discrepancies between Ducker’s taped statement and the transcript thereof that may have escaped her review of the transcript would have impeached her trial testimony and “ ‘tipped the balance of persuasion in favor of [the defendant].’ [United States v. Wallace, supra, 1472].” Id., 21. The trial court did not abuse its discretion in denying the motion to strike Ducker’s testimony.

II

The defendant next claims that the trial court erred in denying his motion for a mistrial and his request for a curative instruction after the state made certain remarks during closing argument that the defendant claims shifted the burden of proof to the defendant on the issue of identity. This claim is without merit.

During closing argument, defense counsel heavily-stressed that Ducker could not positively identify the defendant as the person she had seen in her room, and she urged the jury to conclude that there were “two different people involved” in the events leading to the defendant’s arrest, and that it was a third party, not the defendant, who Ducker saw in her room. The state, in its rebuttal, attacked the defendant’s claim that someone else committed the burglary, saying: “Did this man who defense counsel claims was not John Sinclair . . . did they beam him to the Starship Enterprise? Did they beam him down so that he could walk out the door? I would submit to you that this is not reasonable. It is science fiction .... If there are two people there, they’ve got to know where there’s evidence that the person — where that person is because otherwise you are speculating on something that’s not supported by the evidence.” After the state’s rebuttal, the defendant moved for a mistrial or for a curative instruction. The court denied both motions and the defendant took an exception.

“The ultimate question on a motion for mistrial is whether there was ‘ “substantial and irreparable prejudice to the defendant’s case.” Practice Book § 887. A mistrial is warranted “only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial.” ’ State v. Jennings, 5 Conn. App. 500, 505, 500 A.2d 571 (1985). Such a motion involves the court’s wide discretion. Id.” State v. Kluttz, 9 Conn. App. 686, 705, 521 A.2d 178 (1987); see also State v. Gonzalez, 18 Conn. App. 643, 646, 560 A.2d 468 (1989).

The state of course bears the burden of proving each and every element of the crime charged beyond a reasonable doubt. State v. LaCasse, 9 Conn. App. 79, 516 A.2d 145, cert. denied, 201 Conn. 815, 518 A.2d 72 (1986). This burden has been described as requiring proof that “ ‘precludes every reasonable hypothesis except that which it tends to support and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ ” State v. Brown, 163 Conn. 52, 64, 301 A.2d 547 (1972). The defendant, should he choose to present a defense, bears the burden of proving his defense to a point where, on the whole evidence, the jury believes that the state has failed to prove the elements in question beyond a reasonable doubt. Id., 66.

In the present case, the defendant chose to argue, based on Ducker’s failure to identify him as the person in her room, that it was another individual that committed the burglary. The defendant could not succeed with such a theory unless he proved facts sufficient to allow the jury to view it as a reasonable hypothesis consistent with his innocence. See id. Further, the prosecutor is entitled to comment on the defendant’s failure to support his own factual theories. See United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977); State v. Kluttz, supra, 706, 708. For the state to do so in no way denied the defendant a fair trial or necessitated a curative instruction. The state’s remarks did not shift the burden of proof of the state. See State v. Ostolaza, 20 Conn. App. 40, 44, 564 A.2d 324 (1989).

Ill

The defendant next claims that the trial court’s instructions to the jury on circumstantial evidence unconstitutionally diluted the state’s burden of proof. The defendant requested that the jury be instructed that “[wjhere the state relies upon circumstantial evidence to prove an element of a crime, you must find both that the basic fact and the fact you are asked to infer have been established beyond a reasonable doubt.” The court instead instructed the jury: “Circumstantial evidence of an event is indirect evidence, that is, the testimony of the witnesses or evidence by exhibits as to the existence of certain facts or . . . other events from which . . . the jury may logically and reasonably conclude that the events in question did happen . . . . [W]ith circumstantial evidence the jury first has to determine the credibility of the witnesses and the exhibits and then decide whether the facts testified to do exist. Then they have to decide whether the happenings of those events or existence of those facts lead logically to the conclusion that other facts existed and/or other events occurred and ultimately that this crime was committed by the defendant.”

Before giving the challenged instruction, the court charged the jury on the state’s burden of proving the defendant guilty beyond a reasonable doubt, stating that “one witness’s testimony is sufficient [to satisfy the state’s burden of proof] if you believe it beyond a reasonable doubt. And if it is established alone or together with other testimony and all the elements of the crime beyond a reasonable doubt.” (Emphasis added.) The court further instructed the jury on the relevance of this burden to the issue of identification: “[T]he burden of proof is at all times upon the state to prove beyond a reasonable doubt all the essential elements of the crime or crimes. One of those elements of course is the identification of the accused as the person who committed the crime. So even though you find that a crime was committed, you must also establish beyond a reasonable doubt that this accused committed [it].” The court reiterated this point later in its instructions.

The defendant argues that the court’s instructions permitted the jury to draw inferences from facts proved to a degree less than beyond a reasonable doubt, or misled the jury into believing that it could do so. Viewing the challenged instruction in the context of the overall charge; State v. Anderson, 212 Conn. 31, 37, 561 A.2d 897 (1989); we conclude that the instruction was not erroneous. “The failure of the trial court to utter the talismanic ‘beyond a reasonable doubt’ phraseology after each and every statement of what is to be proved by the state, or of how that proof is to be made, does not necessitate reversal. . . . The statement that inferences should be reasonably and logically drawn is not, in and of itself, erroneous. In fact, such an instruction, it has been previously recognized, ‘is entirely proper. ... In this case, the instruction did not at any time charge the jury on a standard of proof less than the ‘beyond a reasonable doubt’ requisite.” (Citations omitted.) State v. Wylie, 10 Conn. App. 683, 691, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987). In fact, the court specifically instructed the jury that identification was an element provable only by proof beyond a reasonable doubt, and that the testimony of several witnesses taken together and believed beyond a reasonable doubt could support a guilty verdict if it satisfied all the elements of the crime by that standard. In viewing evidence that could yield contrary inferences, a jury may draw inferences consistent with guilt or consistent with innocence. State v. Dumlao, 3 Conn. App. 607, 491 A.2d 404 (1985).

Although the trial court’s instructions could have stated more explicitly the requirement that the facts essential to the ultimate inference of guilt must be proved beyond a reasonable doubt, we are satisfied that the court’s instructions, read as a whole, adequately conveyed this essential idea to the jury. See State v. Silano, 204 Conn. 769, 774-75, 529 A.2d 1283 (1987).

IV

The defendant’s final claim is that he is entitled to a new trial because the state committed prosecutorial misconduct by making certain factual assertions during closing argument that were not supported by facts in evidence. Specifically, the defendant claims that the state in two separate instances overstated the factual scope of, and thus mischaracterized, a stipulation reached between the parties at trial. He further claims that the state argued that there was testimony indicating that the staircase down which the defendant was alleged to have fled opened only onto the first floor exit, that the only way to go was “out the door,” although no such testimony had been offered. According to the defendant, the prosecutor’s improper remarks deprived him of a fair trial in violation of his federal and state constitutional rights. U.S. Const, amend. XIV; Conn. Const, art. I, § 8.

The defendant did not preserve this claim at trial and he therefore seeks review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973): We conclude that it does not qualify for Evans review.

Although the defendant has labeled these claims as constitutional, review of the record discloses that they are not truly of constitutional magnitude. State v. Golding, 213 Conn. App. 233, 239, 567 A.2d 823 (1989). “Review of unpreserved claims of prosecutorial misconduct has been reserved for instances where the claimed misconduct was part of a pattern of misconduct repeated throughout the trial or was blatantly egregious. State v. Williams, 204 Conn. 523, 537, 529 A.2d 653 (1987); State v. Reddick, 15 Conn. App. 342, 354-55, 545 A.2d 1009, cert. denied, 209 Conn. 819, 551 A.2d 758 (1988).” State v. Horne, 19 Conn. App. 111, 128, 562 A.2d 43 (1989).

The incidents cited by the defendant simply do not fall within either of these categories. The two claimed mischaracterizations of the stipulation are certainly not examples of blatant prosecutorial misconduct; in fact we doubt whether the first claimed misstatement is truly inaccurate. See footnote 7, supra. Regarding the defendant’s claim that the state inaccurately claimed that there was testimony to the effect that the exit to the courtyard was the only exit from the staircase in question, we note that there was no testimony directly on this issue, although the jury could have reached by inference the conclusion that the state ascribed to direct evidence. The state’s suggestion was incorrect, but was not so misleading or prejudicial that it rose to the level of egregious prosecutorial misconduct. We therefore decline to review these claims further.

There is no error.

In this opinion the other judges concurred.

       The defendant’s appeal from the judgment of conviction of being a persistent serious felony offender relies on a successful appeal from the felony convictions in the jury trial. Our conclusion that his burglary and larceny convictions are not erroneous necessarily leads to the conclusion that his persistent felony offender conviction is likewise not in error.

       Recorded statements by defendants, on the other hand, were routinely sent to the New Haven police department for storage.

       General Statutes § 54-86b provides in pertinent part: “In any criminal prosecution, after a witness called by the prosecution has testified on direct examination, the court shall on motion of the defendant order the prosecution to produce any statement oral or written of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified, and the court shall order said statement to be delivered directly to the defendant for his examination and use.”

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       We also note that hearing such a motion before the witness testifies eliminates the possibility that the court might be required to attempt to “unring the bell”; see Maness v. Meyers, 419 U.S. 449, 460 n.18, 95 S. Ct. 584, 42 L. Ed. 2d 574 (1975); by ordering the witness’ testimony stricken. In State v. Mullings, 202 Conn. 1, 5, 519 A.2d 58 (1987), the court did not note any impropriety in the defendant's use of a pretrial motion to strike testimony under Practice Book § § 752 and 755.

       The handling of the tape in question took place before this court and the Supreme Court released their decisions in State v. Williamson, 14 Conn. App. 108, 552 A.2d 815, aff’d, 212 Conn. 6, 562 A.2d 470 (1989). The trial court heard testimony that the Yale police department had revised its policy regarding such tapes after the Williamson decisions were released.

       The parties stipulated “that the individual being held by the Yale students on Tower Parkway on the evening of October 6, 1987 and who was taken into custody by the Yale police, was in fact the defendant . . . .” The defendant claims that the following statements “blatantly” misstate the stipulated facts. First: “Now, when counsel gets to argue about the chains, he wants you to believe that this defendant didn’t have those chains even though it was stipulated to the fact that this is the guy who was on Tower Parkway, who fell down on Tower Parkway . . . .” Second: “What you know is that this man was at the top of the stairs and he had run down the stairs and he had the same height and build and he looked very similar and he was out of her sight for maybe five seconds. There was no one else in sight. She saw the man come out of the door. It was definitely John Sinclair because he essentially admitted it was.”