author: BISHOP, J.

text:
    WILLIAM A. TORGERSON v. SARAH TUXIS RESIDENTIAL SERVICES, INC.
    (AC 23637)
    Dranginis, Bishop and DiPentíma, Js.

      Argued October 28, 2003 —
    officially released February 10, 2004

      Joshua A. Winnick, for the appellant (plaintiff).

      Leslie S. Hollo, for the appellee (defendant).
   Opinion

BISHOP, J.

This appeal concerns a dispute between the parties to a real estate transaction. At issue was whether, in the deed of conveyance, the plaintiff, William A. Torgerson, had reserved to himself a vehicular right-of-way across premises he had conveyed to the defendant, Sarah Tuxis Residential Services, Inc., in favor of a rear parcel he had retained. Asserting that the parcel conveyed to the defendant was burdened by a vehicular right-of-way to the retained parcel, the plaintiff brought a three count complaint seeking a declaratory judgment, injunctive relief and an accounting. At trial, the court resolved all issues for the defendant. This appeal followed.

On appeal, the plaintiff claims that the court (1) failed to analyze properly the language of the deed utilized in the transaction, (2) incorrectly found that a map not referred to in the deed should be incorporated by reference into the deed, (3) incorrectly found that the right-of-way reservation in the deed was for pedestrian but not vehicular traffic and (4) incorrectly found that the parties were aware, at the time of the closing, that the reservation of a vehicular right-of-way would violate the local zoning ordinance. We affirm the judgment of the trial court.

As background to our analysis, we briefly summarize the relevant trial evidence. In February, 1999, the plaintiff and Sotira Zena Tubaya were joint owners of property at 45 Boston Street in Guilford, consisting of two parcels. Parcel A, which abutted Boston Street, contained a residence and outbuilding; parcel B was an undeveloped rear lot. On March 3,1999, the plaintiff and Tubaya executed a sales and purchase sales agreement with the defendant to convey Parcel A “as shown on schedule A.” Schedule A consisted of a map containing par cels A and B. The map depicted a twenty-foot wide right-of-way across parcel A from its intersection with Boston Street to parcel B. Schedule B of the purchase and sales agreement was an addendum that imposed further obligations on the parties to the transaction as a condition of closing. Included were the following relevant obligations undertaken by the sellers: “[T]he performance of a survey and preparation of a map at seller’s sole cost and expense that sets forth in accurate detail the metes and bounds of the premises being conveyed to the buyer (parcel A), and the premises being retained by the seller (parcel B), and all easements and/ or rights of way thereon and, the seller’s obtaining all necessary special permits, variances and/or other approvals necessary to enable the Seller to divide the premises in accordance with the above-referenced survey and map.”

Subsequently, on March 12, 1999, the defendant filed an application with the town of Guilford for a special permit to use the residence on parcel A as its administrative offices. In conjunction with the submission, the defendant included a site development plan for parcel A that depicted a right-of-way across parcel A to parcel B. Between the date of submission and a public hearing on May 5, 1999, town officials made it known to the defendant that the special use permit would not be granted with the existence of a vehicular right-of-way across parcel A in favor of parcel B. Accordingly, the defendant had its land surveyor prepare a revised site development plan and survey eliminating the vehicular right-of-way and replacing it with a pedestrian right-of-way. The plaintiff attended and spoke in favor of the defendant’s petition at the May 5 public hearing at which the revised site plan and survey were presented. On June 7, 1999, the town notified the defendant that its special use permit would be approved subject to certain conditions, one of which was that “the deed for parcel A be revised to eliminate any reference to a vehicular right-of-way to parcel B.” That requirement was based on the town’s determination that the existence of a vehicular right-of-way across parcel A in favor of parcel B would, in fact, violate the town’s zoning ordinance.

Witnesses testified at trial that the plaintiff became aware, after signing the purchase and sales agreement and before the closing, that the right-of-way to the parcel he retained would be restricted to pedestrian traffic. Additionally, the court heard testimony that the plaintiff had reviewed and approved the revised survey map prior to executing the closing documents and that the plaintiff had been made aware, before closing, that the map referred to in the closing deed was the revised map depicting only a pedestrian right-of-way. Finally, unlike the original map, the revised version was composed of Mylar, a material suitable for recording.

For a period subsequent to the closing, the defendant permitted the plaintiff to traverse parcel A by motor vehicle to gain access to parcel B. When that permission was withdrawn, and once the plaintiff decided to attempt to sell parcel B, this action was commenced.

Although the plaintiff has asserted four claims, resolution of this appeal requires us to address the related issues of whether the conveyance deed incorporated a map by reference and, if so, whether the court correctly identified the map.

As a preliminary matter, we note that our review of a court’s interpretation of the language of a deed presents a question of law. Therefore, insofar as our assessment of the judgment involves the court’s interpretation of the deed of conveyance, our review is plenary. Mulla v. Maguire, 65 Conn. App. 525, 531, 783 A.2d 93, cert. denied, 258 Conn. 934, 785 A.2d 229 (2001). To the extent that the court has made findings of fact, our review is limited to a determination of whether the court’s conclusions were clearly erroneous. Beneduci v. Valadares, 73 Conn. App. 795, 801, 812 A.2d 41 (2002).

The deed reviewed by the parties at the closing and later recorded contained the following relevant language describing the premises to be demised as: “known as 45 Boston Street and shown and depicted as ‘Parcel A’ on a map entitled ‘property survey map and division map 45 Boston Street, Guilford, Connecticut Scale 1”=20’ Sheet 1 of 1 Date 3-15-99’ prepared by Kenny Associates . . . .’’In response to the plaintiffs motion for rectification, the court indicated that it had found that the deed of conveyance had incorporated by reference a map and that the incorporated map reserved only a pedestrian right-of-way. Finding that language clear, the court correctly commented that the wording of the deed left no room for construction. In determining that the deed incorporated the map by reference, the court was legally correct. “[A] reference to [a] map in [a] deed, [¶] or a more particular description, incorporates [the map] into the deed as fully and effectually as if copied therein. . . . [T]he identifying or explanatory features contained in maps referred to in a deed become part of the deed, and so are entitled to consideration in interpreting the deed as though they were expressly recited therein.” (Citation omitted; internal quotation marks omitted.) Schwartz v. Murphy, 74 Conn. App. 286, 291, 812 A.2d 87 (2002), cert. denied, 263 Conn. 908, 819 A.2d 841 (2003); see also General Statutes § 7-31 (governing incorporation of recorded maps into deeds).

Because the court determined that the deed incorporated the map by reference, the only factual question remaining to consider was whether the referenced map was the original map including a general right-of-way or the revised map containing only a pedestrian right-of-way. As the plaintiff correctly notes, both maps are dated March 15, 1999, although the revised map also contains a date of revision of May 3,1999. To determine which map the recorded deed referenced, the court properly considered extrinsic circumstances, including the negotiations of the parties, the composition of the revised map, the plaintiffs knowledge of the planning and zoning board’s response to the defendant’s special use permit application, and the various discussions among the parties and their counsel at the closing. “In construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed . . . and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence.” (Internal quotation marks omitted.) Mackie v. Hull, 69 Conn. App. 538, 541-42, 795 A.2d 1280, cert. denied, 261 Conn. 916, 917, 806 A. 2d 1055 (2002). The court therefore correctly took into consideration the language of the deed together with the attendant circumstances of the parties, and its conclusion that the deed referenced the revised map was not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

      Tubaya, who subsequently conveyed her interest in parcel B to the plaintiff, is not a party to this action.


source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. STEPHEN SPIEGELMANN
    (AC 22726)
    Flynn, Bishop and McLachlan, Js.

      Argued November 18, 2003 —
    officially released February 10, 2004

      David T. Grudberg, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Maxine V. Wilensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Stephen Spiegelmann, appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2), two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (1), one count of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), and one count of unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The defendant was acquitted of one count of risk of injury to a child, in violation of § 53-21 (1), which charged the defendant with the photographing of intimate parts of a minor. The trial court sentenced the defendant to a total term of sixty years incarceration, consisting of three consecutive twenty year terms on the sexual assault counts and concurrent terms on the remaining counts.

The defendant argues on appeal that the trial court acted improperly by (1) allowing certain pornographic materials and testimony regarding such materials to be entered into evidence although the victim had not specifically identified them, (2) admitting prejudicial hearsay under the constancy of accusation doctrine, thereby depriving the defendant of a fair trial, and finally (3) permitting prosecutorial misconduct during cross-examination of the defendant and during closing argument, thereby depriving him of a fair trial. We are not persuaded and therefore affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim accused the defendant of sexually assaulting her on a regular basis beginning at age four and ending when she was nine years old. After the victim last visited the defendant in August, 1999, her mother noticed that she had a bleeding injury on her arm, apparently caused by fingernails that were dug into her skin. The victim told her mother that the defendant had injured her and had also chased her with a knife. The victim did not reveal any incidents of sexual abuse to her mother at that time. The victim’s mother immediately reported these incidents of physical violence to the local police department, which began an investigation into possible physical abuse of the victim by the defendant. The police referred the matter to the department of children and families (department). Subsequently, on September 10, 1999, the victim revealed to Celmira Gonzalez, an investigator for the department, that the defendant had also subjected her to sexual abuse. Gonzalez recommended that the victim be evaluated by the Yale Child Sexual Abuse Clinic and referred the case to the police for investigation of possible sexual abuse. The victim revealed to Florence Freudentha! Mackey at the Yale clinic the details of the alleged sexual abuse that she had suffered at the hands of the defendant, and she was physically examined by Janet Murphy, a nurse practitioner.

Two detectives in the sex crimes unit of the local police department met with the victim on November 10, 1999, and took her sworn statement, in which she disclosed that she had been sexually abused by the defendant.

At trial, the victim testified in graphic detail about both the physical and sexual abuse she repeatedly had endured from the defendant. The victim testified that the defendant touched her “in a way she didn’t like,” in that he had touched her face, breasts, buttocks and vagina; had touched her with his penis in her vagina, buttocks and mouth; had penetrated her vagina, mouth and rectum with his penis; had stuck his finger in her vagina and rectum; and had placed his tongue inside and outside her vagina and stuck his tongue in her mouth “and moved it around.” The victim also testified that the defendant forced her to sleep in the same bed with him when she spent the night, that he would rub his penis on her chest until he ejaculated onto her and would prevent her from leaving the bed to clean herself.

The victim also testified that the defendant’s bathroom floor usually had “number two” and magazines on it when she would come to visit. It was clear from the victim’s testimony that “number two” was used in reference to human excrement. The victim further testified that the defendant would force her to take baths in water in which the defendant had defecated and he would then rub his feces on her. On other occasions, the victim testified, the defendant would defecate in a container and rub his feces on her chest, back and legs.

The victim testified that the defendant had shown her various pornographic materials, including photographs, magazines and videotapes depicting various images of men and women engaging in sexual activity, naked men and women, and naked people with “number two.” The victim also testified that the defendant had read her stories that he had printed from the Internet that involved “naked people going to the bathroom.” The victim testified that the defendant had threatened to kill her, her mother and her dog if she told anyone about the abuse. When she had tried to stop the defendant, the victim testified, he would inflict harm on her, chase her with a knife or threaten her.

Immediately prior to the defendant’s arrest on November 18, 1999, the police executed a search and seizure warrant for his home and found magazines, photographs, sexual fantasy stories from the internet and videotapes in the locations that the victim had specified. Material stored on the defendant’s computers was reviewed by the Federal Bureau of Investigation (FBI). Thomas Veivia, an FBI agent, testified at trial that his search revealed approximately 45,000 images of a sexual nature, including images of sexual activity involving bodily fluids such as mine, feces, semen and saliva.

I

We first address the defendant’s claim that the court acted improperly in allowing certain evidence to be presented to the jury because the victim had not specifically identified it as something that she had been shown and, therefore, it should have been excluded as more prejudicial than probative. The defendant has specifically challenged only the admission of the “scatological” fantasy stories that were printed from the Internet and the admission of some e-mail correspondence arising out of Internet chat room discussions in which the defendant participated. These are the only materials admitted into evidence that the victim did not specifically identify as having been shown to her. The defendant clearly objected to the admission of the stories at trial, thereby preserving that issue for appellate review. However, the defendant did not preserve the issue as to the e-mail chats. When the e-mail chats were identified by the defendant and offered into evidence by the state, the court asked if the defendant had any objection, to which his counsel replied: “No objection on this.” The defendant therefore failed to raise this evidentiary claim at trial, leaving this issue unpreserved for our review on appeal. See State v. Andresen, 256 Conn. 313, 323-24, 773 A.2d 328 (2001). Unpreserved claims of error may be raised on appeal if the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and meets all of its requirements. The defendant did not seek review under Golding in his principal brief, but rather sought such review in his reply brief in response to the state’s anticipatory argument. “The reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis.” State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). Furthermore, even if the defendant had sought review under Golding, evidentiary claims are not of constitutional magnitude and would thus fail under Golding's second prong. See State v. Hansen, 39 Conn. App. 384, 390, 666 A.2d 421, cert. denied, 235 Conn. 928, 667 A.2d 554 (1995). We therefore decline to review the defendant’s unpreserved claim regarding the propriety of the admission of the e-mail chats into evidence.

Regarding the admission of the scatological stories, the defendant argues that they were admitted improperly because the probative value of the stories was substantially outweighed by the prejudice that the admission of the explicit material had on the defendant. The state declared at trial that it was not going to ask the victim specifically to identify the stories it sought to admit. It justified this decision on the basis of a reluctance to “revictimize” her. The state claimed that the stories seized from the defendant’s home were representative of the type that the victim claimed that the defendant had read to her and should be admitted on that ground. The court admitted the stories, but rejected the state’s “representative” theory of admission, finding instead that the stories were probative of the fact that the defendant had an interest in scatological materials and that this showed his motive or “obsession.” The court relied on Boyle v. Johnson, 93 F.3d 180, 184 (5th Cir. 1996), cert. denied, 519 U.S. 1120, 117 S. Ct. 968, 136 L. Ed. 2d 853 (1997), in which evidence of the defendant’s sexual obsession was shown by the admittance of certain sexual materials. The court acknowledged that the materials had a propensity to be prejudicial, but noted that the defendant’s interest in scatology was probative in that scatology “has a fairly limited band of enthusiasts.” Rather than admitting all of the stories into evidence, the court permitted the state to admit only five, stating: “To introduce volumes and volumes of these materials, I don’t see as adding to the probative value . . . .”

We now set forth the standard of review for this claim. “It is well established that a trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. Colon, 70 Conn. App. 707, 718, 799 A.2d 317, cert. denied, 261 Conn. 933, 806 A.2d 1067 (2002).

We need not reach the issue of whether the scatological stories were admissible, however, because even if we assume without deciding that the court abused its discretion in admitting the stories into evidence, the defendant has failed to show any harm from their admission. See State v. Shabazz, 246 Conn. 746, 759, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999); Lusas v. St. Patrick’s Roman Catholic Church Corp., 125 Conn. 206, 209, 4 A.2d 333 (1939) (“new trial ought not to be granted for the improper admission of evidence where it is apparent to the court that no injury to the complainant and no injustice could have resulted from the error” [internal quotation marks omitted]); State v. Colon, supra, 70 Conn. App. 718; Bugryn v. Bristol, 63 Conn. App. 98, 112, 774 A.2d 1042, cert. denied, 256 Conn. 927, 776 A.2d 1143, cert. denied, 534 U.S. 1019, 122 S. Ct. 544, 151 L. Ed. 2d 422 (2001). To establish the harmfulness of an evidentiary ruling, “the defendant must show that it is more probable than not that the improper action affected the result. . . . The question is whether the trial court’s error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court’s ruling, though erroneous, likely to affect the result?” (Citation omitted; internal quotation marks omitted.) State v. Russo, 62 Conn. App. 129, 137, 773 A.2d 965 (2001).

In the present case, the defendant cannot show that the admission of the scatological stories affected the result of the trial, nor can he show that he was deprived of a fair trial. The defendant did not object at trial to the admission of other evidence that was equally graphic, nor did he argue on appeal that the admission of this evidence was reviewable under Golding. In addition to the victim’s detailed testimony regarding the acts of abuse committed against her, the court admitted into evidence items that the victim identified as things that had been shown to her by the defendant. Among the items admitted as full exhibits were graphic photographs depicting feces on aplate and women consuming human excrement, and a videotape entitled “Fontaner der Lust,” which portrays, according to the defendant’s testimony, “people urinating on each other and doing things like that.” Several pornographic magazines identified by the victim were also admitted, as well as a spiked rubber ball device and a rubber ring device identified by the victim. Concededly, the stories at issue that were admitted into evidence depicted highly offensive material. However, when these stories are viewed alongside the large quantity of other equally vulgar materials that were admitted into evidence without objection, the conclusion that the defendant was in no way prejudiced is indubitable.

We also note that although the defendant was convicted of seven separate offenses, the jury acquitted him of one of the counts with which he was charged. This indicates that the jury was not so carried away by the explicitness of the contents of the evidence before it that it could not objectively reach a finding of guilt or innocence. We conclude that the admission of the scatological stories caused no harm to the defendant.

II

We next turn to the defendant’s second claim. The defendant argues that the court improperly admitted the testimony of four witnesses under the constancy of accusation doctrine, contrary to the holding of State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (enbanc). Specifically, the defendant avers that the victim’s testimony provided an insufficient predicate for the admission of the witnesses’ corroborative testimony. In addition, the defendant argues that the report of the assault to Gonzalez, a department investigator, was an “official report” and, therefore, all of the testimony by those witnesses to whom the victim had reported the assault following her meeting with Gonzalez was admitted improperly under State v. Samuels, 75 Conn. App. 671, 817 A.2d 719, cert. granted, 263 Conn. 923, 823 A.2d 1216 (2003). The defendant did not object to the admission of this testimony on these grounds at trial.* ** Therefore, this issue was not preserved properly for our review.

The defendant has requested that we review these claims under State v. Golding, supra, 213 Conn. 239-40. However, the issues raised by the defendant regarding constancy of accusation testimony are evidentiary in nature. We previously have held that Golding does not apply to evidentiary claims, which, standing alone, do not rise to the level of constitutional magnitude that is required by Golding’s second prong. State v. Minor, 80 Conn. App. 87, 93, 832 A.2d 697 (2003); State v. Morales, 78 Conn. App. 25, 47, 826 A.2d 217, cert. denied, 266 Conn. 901, 832 A.2d 67 (2003). In fact, our Supreme Court stated in Golding that “once identified, unpreserved evidentiary claims masquerading as constitutional claims will be summarily dismissed.” State v. Golding, supra, 241.

The defendant argues that Golding applies because the improper admission of the constancy of accusation testimony prejudiced him to the point that he was deprived of his constitutional right to receive a fair trial. In support of this claim, the defendant relies on our recent holding in State v. Samuels, supra, 75 Conn. App. 671. The defendant’s reliance on Samuels is misplaced. In Samuels, we held that the cumulative effect of the constancy of accusation testimony that was admitted improperly denied the defendant his right to a fair trial. Id., 690. We stated that “[t]he improper admission of the testimony of each constancy of accusation witness . . . was harmless and did not, alone, create such substantial prejudice to the defendant .... [T]he testimony is part of a mosaic of improperly admitted evidence that, in the aggregate, served to deny the defendant a fair trial.” (Emphasis added.) Id.

Although the defendant in the present case argues that the accumulation of improperly admitted testimony deprived him of a fair trial, it is notable that in this case, unlike in Samuels, the defendant made no proper evidentiary objections at trial. In State v. Joyner, 225 Conn. 450, 625 A.2d 791 (1993), our Supreme Court held that admission of expert testimony was an evidentiary matter and not, per se, constitutionally significant, explaining that “[e]ven our ruling in State v. Torres, 210 Conn. 631, 642-43, 556 A.2d 1013 (1989), which held that a series of inconsistent evidentiary rulings could be so injurious as to impair a defendant’s constitutional rights, arose in the context of rulings to which proper exception had been taken.” State v. Joyner, supra, 480; see also State v. Thompson, 71 Conn. App. 8, 13, 799 A.2d 1126 (2002). Because the defendant has raised unpreserved evidentiary claims of error, we decline to review this issue. “Regardless of how the defendant has framed the issue, he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review.” (Internal quotation marks omitted.) State v. Francis D., 75 Conn. App. 1, 11, 815 A.2d 191, cert. denied, 263 Conn. 909, 819 A.2d 842 (2003).

Ill

We next address the defendant’s final claim on appeal, namely, that of prosecutorial misconduct during cross-examination and closing argument. The defendant did not object at trial to the state’s cross-examination of him or to its closing argument. Therefore, the defendant has requested that we review this claim pursuant to State v. Golding, supra, 213 Conn. 239-40. The record is adequate for our review and claims of prosecutorial misconduct are of constitutional magnitude; therefore, we will review the defendant’s claim under Golding. See State v. Pepper, 79 Conn. App. 1, 19, 828 A.2d 1268, cert. granted on other grounds, 266 Conn. 919, 837 A.2d 801 (2003). “To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. . . . [T]he defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process.” (Citations omitted; internal quotation marks omitted.) State v. Singh, 259 Conn. 693, 699-700, 793 A.2d 226 (2002). “Claims of prosecutorial misconduct trigger a two-pronged inquiry. First, we must examine the allegedly improper conduct to determine if it was, in fact, improper and rose to the level of prosecutorial misconduct. If it did, we will analyze the effect of the misconduct to determine if it deprived the defendant of a fair trial.” State v. McKiernan, 78 Conn. App. 182, 195, 826 A.2d 1210, cert. denied, 266 Conn. 902, 832 A.2d 66 (2003).

The defendant first submits that the prosecutor referred to facts that were not in evidence during her closing argument. Specifically, the defendant points to a rhetorical story told by the prosecutor in her rebuttal at closing argument. Although no evidence was admitted at trial of the facts presented in the prosecutor’s story, which was alleged to have been a tale of personal experience, the jury was not exposed to any facts about this case that had not been admitted into evidence. Rather, the prosecutor appealed to the common sense of the jury (rather than to its sympathy) by use of a rhetorical device. We have stated that “[o]ur vigilance concerning prosecutorial misconduct does not lead us to a desire to exclude rhetoric from oral advocacy.” State v. Cotton, 77 Conn. App. 749, 774, 825 A.2d 189, cert. denied, 265 Conn. 911, 831 A.2d 251 (2003). Although it is axiomatic that “[a] prosecutor, in fulfilling his duties, must confine himself to the evidence in the record,” this notion is balanced against the premise that “[j]urors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) State v. Rogelstad, 73 Conn. App. 17, 29-30, 806 A.2d 1089 (2002).

Although the facts in the prosecutor’s story had not been admitted into evidence, the jury was not being asked to rely on the truth of the story to reach a finding of guilt. Furthermore, the prosecutor was responding to the defendant’s closing argument, in which the defendant had argued that if the victim had had intercourse with him as many times as she had claimed, there would have been evidence of that fact in her physical examination, which showed no such evidence. We conclude that “[i]t does not follow . . . that every use of rhetorical language or device [by the prosecutor] is improper. . . . The occasional use of rhetorical devices is simply fair argument.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 162, 836 A.2d 224 (2003). Therefore, the prosecutor’s use of the rhetorical device was not improper.

The defendant next claims that the prosecutor appealed to the passions and emotions of the jury. “A prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not according to a rational appraisal of the evidence, but on the basis of powerful and irr elevant factors which are likely to skew that appraisal. . . . Therefore, a prosecutor may argue the state’s case forcefully, [but] such argument must be fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom. ” (Citations omitted; internal quotation marks omitted.) State v. Singh, supra, 259 Conn. 719.

The defendant first argues that the prosecutor discussed the defendant’s possession of pornographic materials with the purpose of inflaming the passions of the jurors. Because the defendant has failed to specify which statements were allegedly improper, we decline to review this claim, as it was briefed inadequately. See Raymond v. Rock Acquisition Ltd. Partnership, 50 Conn. App. 411, 419-20, 717 A.2d 824 (1998).

The defendant also cites the prosecutor’s statements regarding the defendant’s “assaults” on the victim’s senses as well as the juror’s own common sense and sense of justice, made in reference to the defendant’s testimony, as improper conduct intended to incite the passions of the jury. We reject this contention as well. “It is the prosecutor’s duty to see that justice is done and to use any legitimate means to accomplish that, including persuading the jury that its verdict will accord with justice.” State v. Yusuf, 70 Conn. App. 594, 632, 800 A.2d 590, cert. denied, 261 Conn. 921, 806 A.2d 1064 (2002). The prosecutor’s statements were not so blatantly egregious as to rise to the level of impropriety necessary to cause substantial prejudice to the defendant, particularly when compared to some of the greater volume of improper conduct at issue in recent cases in which our Supreme Court has denied the defendant redress. See, e.g., State v. Thompson, 266 Conn. 440, 832 A.2d 626 (2003). Additionally, the defendant has not demonstrated that the trial was infected with unfairness. Therefore, we conclude that the prosecutor’s statements did not result in an unconstitutional violation of the defendant’s right to a fair trial.

The defendant’s final claim of prosecutorial misconduct is that the prosecutor was sarcastic and argumentative during her cross-examination of the defendant. It is improper for a prosecutor to inject sarcasm into the cross-examination of the defendant. See State v. Santiago, 73 Conn. App. 205, 224, 807 A.2d 1048 (2002), cert. granted, 262 Conn. 939, 815 A.2d 673 (2003). The present case is distinguishable from Santiago, however, in that the defendant’s counsel did not object to the alleged sarcastic comments and the court did not, as in Santiago, threaten the prosecutor with contempt or find that the comments warranted a curative instruction to the juiy. Compare id., 226. “[Wjhether a new trial or proceeding is warranted depends, in part, on whether defense counsel has made a timely objection to any of the prosecutor’s improper remarks. When defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to seriously jeopardize the defendant’s right to a fair trial.” State v. Reynolds, supra, 264 Conn. 165.

We do not condone the prosecutor’s use of sarcasm in her cross-examination of the defendant. However, we fail to see how any impropriety that may have occurred in those isolated instances deprived the defendant of a fair trial. “We do not sciutinize each individual comment in a vacuum, but rather we must review the comments complained of in the context of the entire trial. ... It is in that context that the burden [falls] on the defendant to demonstrate that the remarks were so prejudicial that he was deprived of a fair trial and the entire proceedings were tainted.” (Internal quotation marks omitted.) State v. Bothwell, 78 Conn. App. 64, 69, 826 A.2d 182, cert. denied, 266 Conn. 908, 832 A.2d 72 (2003). The few interjections of sarcasm into the cross-examination of the defendant were insufficient to deprive him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom her identity may be ascertained. See General Statutes § 54-86e.

       The court termed the stories “scatological.” “Scatology” is defined as: “1. The study of fecal excrement, as in biology. 2. An obsession with excrement or excretory functions. 3. Obscene language or literature, esp. that dealing with excrement and excretory functions.” The American Heritage College Dictionary (3d Ed. 1993).

       In the record, the court stated that it arbitrarily had decided to admit into evidence only three of the many stories presented by the state. However, upon reviewing the actual full exhibits admitted in trial, it is clear that five, not three, of the stories were admitted as full exhibits.

       The defendant states in his brief that the photographs identified by the victim were admitted into evidence over defense counsel’s objection. However, our review of the record indicates that this objection appears to have been directed at whether there was a sufficient foundation for these photographs to be shown to the victim to refresh her recollection and was not based on their prejudicial effect on the defendant if they were to be admitted as full exhibits. Therefore, this objection did not preserve this issue properly for our review.

       To the extent that the defendant seeks review of the admission of evidence to which he did not object at trial, we decline to afford review.

       “The constancy of accusation doctrine allows a witness to whom the victim of a sex clime has confided the details of the crime to testify in court about what the victim told the witness as an aid in assessing the credibility of the victim. The doctrine is not strictly an exception to the hearsay rule because the testimony is not admitted to prove the truth of the testimony of the witness. The doctrine is now limited in Connecticut to allow testimony only as to the fact and timing of the victim’s complaint or as to details necessary to associate the victim’s complaint with the pending charge, for example, the time and place of the attack or the identity of the defendant. Other testimony of a witness who was the confidante of the victim is limited to corroboration of the victim’s testimony, but cannot be used for substantive purposes. State v. Troupe, 237 Conn. 284, 304-305, 677 A.2d 917 (1996) (en banc).” State v. Minor, 80 Conn. App. 87, 93 n.8, 832 A.2d 697 (2003).

       At trial, the defendant objected to the scope of the witnesses’ testimony on the ground that it went into more detail of the sexual assault than Troupe permits. The defendant also objected to the number of constancy of accusation witnesses on the grounds that the testimony was cumulative and prejudicial to him. The defendant has not revived these objections in this appeal.

       Although the defendant objected to the constancy of accusation testimony on other grounds, we previously have held that “[ajppellate review of evidentiary rulings is ordinarily limited to the specific legal issue raised by the objection of trial counsel.” (Internal quotation marks omitted.) State v. Beliveau, 36 Conn. App. 228, 241, 650 A.2d 591 (1994), aff'd, 237 Conn. 576, 678 A.2d 924 (1996). Therefore, the defendant’s objections at trial, which differ from those raised on appeal, did not adequately preserve the issue for appellate review. See State v. Morales, 45 Conn. App. 116, 127-28, 694 A.2d 1356 (1997), appeals dismissed, 246 Conn. 249, 714 A.2d 677 (1998).

       The state argued: “Now, I’d like to address some of [the defense attorney’s] argument before I begin with the rest of mine. He . . . talked about how there was sex every time and that there were over 100 videos. . . . However, I’m going to tell you a story about a little girl I once baby-sat for. ... I heard a bloodcurdling scream. I go running, oh, my God, what happened? A bug. A huge bug. An huge, ugly bug. How big was the bug? This big. And she is hysterical. It takes us ten minutes of looking through the kitchen and, sure enough, ladies and gentlemen, there was a bug. And it was big. And it was ugly. It was a cockroach, but it wasn’t this big.
      “And I . . . tell you that story because to a child, it might have seemed like every time that she had sex. And certainly maybe it wasn’t penile-vagina intercourse. It might have been his fingers. It might have been her tongue. . . . And in terms of the cockroach story, the little girl did tell the truth. There was a big, ugly bug. The difference was in one of the details, which was [that] it wasn’t this big; it was this big.”

       The state argued: “[The defendant] wants you to believe that [the victim’s] behavior, I assume, is not consistent despite what the experts say as to what is exhibited by children who are sexually assaulted. A person who has a wide and diverse background in the area of paraphilias, specifically fetishes involving feces, urine, sex with a variety of different subjects and people. It’s not a stretch of the imagination that he would add one more fetish, one more perversion and extend this and envelop [the victim] in the world that he created. He wants you to believe that he did not practice that obsessive secret world on [the victim]. He wants you to find him not guilty despite the overwhelming evidence. And in this, he wants to assault your last sense, and this is your sense of justice.”

       The defendant cites the following as an example of the prosecutor’s sarcasm during cross-examination of him:
      “[Prosecutor]: And I — again, I guess it’s just a coincidence that the police found [the pornographic materials] where [the victim] said they would be; isn’t that correct? It’s just a coincidence, right, sir? Yes or no?”


author: DiPENTIMA, J.

text:
    STEVEN CHILA v. RICHARD L. STUART ET AL.
    (AC 23504)
    Bishop, DiPentima and Mihalakos, Js.

      Argued October 29, 2003 —
    officially released February 10, 2004

      David M. Wattman, with whom, on the brief, was Elizabeth A. DiRusso, for the appellant (plaintiff).

      Robert S. Bello, with whom, on the brief, were Lawrence M. LaPine and Thomas M. Cassone, for the appel-lees (defendants).
   Opinion

DiPENTIMA, J.

In this action arising out of a contract dispute, the plaintiff, Steven Chila, appeals from the judgment of the trial court rendered in accordance with the report of an attorney trial referee (referee) in favor of the defendants, Richard L. Stuart and Robert L. Stuart, on their counterclaim against the plaintiff. The plaintiff had acted as a consultant to the defendants in forming a corporation, Wilton Auto Service Center, Inc., a business venture that failed. The plaintiff claims that (1) the defendants did not have standing to assert personal claims against him because any breach of contract damages were sustained by a nonparty corporation in which he and the defendants were officers and (2) the court improperly awarded damages to the defendants.

The facts and procedural history pertinent to this appeal are as follows. The plaintiff commenced this breach of contract action against the defendants on March 1,1998, to recover a $53,000 consulting fee allegedly owed to him by Wilton Auto Service Center, Inc. The defendants denied that funds were owed to the plaintiff and filed a counterclaim against him, alleging, inter alia, breach of fiduciary duties, breach of contract, misrepresentation, breach of the implied covenant of good faith and fair dealing, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., tortious interference, wrongful diversion of customers and conversion. The case proceeded to trial before the referee on January 18 and 19, and February 20, 2001. Posttrial briefs were filed on April 17, 2001. On August 14, 2001, the referee filed his report recommending that judgment be rendered in favor of the defendants on the plaintiffs complaint. He further recommended that “[w]ith respect to the defendants’ counterclaim . . . judgment enter for the defendants on the first count, with rescission-restitution as the remedy ($173,000); on the fourth count, with damages of $9000 (duplicative of a portion of the award on the first count); and on the fifth count in the amount of $15,000 (again, with $9000 duplicative of an element of the award under the first count).” He recommended, in the alternative, that “with respect to the first count of the counterclaim, should rescission-restitution be deemed inappropriate under the circumstances, judgment should enter for defendants for damages in the amount of $150,000 plus consequential damages of $23,000

The referee found the following facts pertinent to the issues in this appeal. On October 2,1997, the defendants signed an agreement prepared by the plaintiffs attorney, who acknowledged to the defendants in writing that she was representing the interests of the plaintiff and not the defendants. The defendants were not aware of and had not reviewed the prepared agreement and various other documents involving the franchisor, Standard Oil Company, or the leases for the subject premises until that date. The terms of the agreement between the plaintiff and the defendants required the defendants to provide the plaintiff with $150,000 (including an $80,000 deposit previously provided to the plaintiff) for all start-up costs and the balance to the plaintiff for finding the opportunity and negotiating agreements with Standard Oil Company. In addition, the defendants were required to pay an additional $53,000 consulting fee for the plaintiffs services to be rendered to the defendants during the six months following the closing. The agreement also provided that the plaintiff would be the president of the new corporation with a 22 percent interest therein, but without sharing the profits. The defendants had no prior experience in running a service station, and were in need of the plaintiffs substantial experience in operating service stations and automobile repair shops.

The referee also found that the plaintiff did not use his “best efforts” in regard to his consulting services, as required by the agreement, in that (1) in the first month of operation, he was at the station only “on a veiy limited number of occasions” and monitored operations primarily by telephone, (2) in the first month of operation, the plaintiff took a ten day vacation, (3) he did not make a “special effort” in assisting the defendants with starting the new business, despite the fact that when the plaintiff did make some efforts, problems were generally resolved quickly, (4) the plaintiff, with some frequency, diverted the defendants’ customers to his own shop in Darien for repairs, especially when the defendants did not have qualified personnel at the Wilton service station, and all profits were retained by the plaintiff, (5) the plaintiff received $9000 from the defendants to purchase tools belonging to the prior operator, negotiated with the prior operator to purchase the tools for $8000, but subsequently stopped payment on his own check and failed to return the funds to the defendants, who never obtained ownership of the tools, (6) the defendants paid the plaintiff a total of $173,000, including $150,000 earmarked for start-up costs.

The referee then suggested various conclusions. He concluded that the plaintiff had breached the contract with the defendants. Specifically, the plaintiff failed to perform his obligations under the contract in that he failed to provide his “best efforts” in consulting with the defendants. The referee further concluded that the defendants had entered into the agreement with the plaintiff in reliance on the expectation that the plaintiff would provide his “best efforts” and that without such efforts, the contract failed of its essential purpose. He then concluded that rescission was an appropriate remedy. Finally, he concluded that the plaintiff had breached the covenant of good faith and fair dealing and violated CUTPA. As to damages, the referee recommended that for purposes of rescission-restitution, because the defendants had paid the sum of $173,000 to the plaintiff, they should therefore recover that amount. The referee recommended that if rescission-restitution was inapplicable, the plaintiff should pay to the defendants contract damages of $150,000, with consequential damages of $23,000.

On December 27, 2001, the plaintiff filed objections to numerous factual findings of the referee, supported by affidavits that were reviewed by the trial court. The defendants then filed a motion to strike the plaintiffs affidavits, which was granted by the court on March 25, 2002, over the plaintiffs objection.

In its memorandum of decision, the court addressed the question of whether there was sufficient evidence and testimony to support the referee’s conclusion that the plaintiff had failed to live up to his agreement as a consultant to the defendants. The court found that “[t]he transcript of the trial indicates that there is indeed sufficient evidence to justify the findings of the [referee] to that effect.” The court overruled the plaintiffs objection that the referee should have been recused because of an alleged conflict of interest.

Finally, the court sustained the plaintiffs objection to the referee’s recommendation of rescission, but found that “the issue of whether rescission is an appropriate remedy is not important because the referee also recommended that the defendants recover ... on a breach of contract theory.” The court thus accepted the report of the referee and rendered judgment in the amount of $173,000 against the plaintiff and in favor of the defendants. This appeal followed.

I

The plaintiff first claims that the defendants as individuals did not have standing to sue for damages sustained by a nonparty corporation in which the plaintiff and the defendants were officers, directors and shareholders. We disagree.

For a court to have subject matter jurisdiction over a claim, the party asserting the claim must have standing. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501, 467 A.2d 674 (1983). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest ... in the subject matter of the controversy.” (Internal quotation marks omitted.) Id.

The facts the defendants pleaded and proved are sufficient to allege a cause of action for breach of contract. “When standing is put in issue, the question is whether the person whose standing is challenged is a proper party to request an adjudication of the issue and not whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a legally protected interest that the defendant’s action has invaded. ... It is axiomatic that an action upon a contract or for breach of a contract can be brought and maintained by one who is a party to the contract sued upon . . . .” (Citation omitted; internal quotation marks omitted.) Cottman Transmission Systems, Inc. v. Hocap Corp., 71 Conn. App. 632, 639, 803 A.2d 402 (2002). In this case, the defendants entered into and were parties to an agreement with the plaintiff to form a corporation and to receive consulting services from him. That is sufficient to establish standing for a breach of contract action. Accordingly, we reject the plaintiffs argument that the court lacked subject matter jurisdiction.

II

The plaintiff next claims that the trial court improperly awarded damages, pursuant to the report of the referee, because there was no competent evidence of damages sustained by the defendants. Specifically, the plaintiff ar gues that ordering a return of the defendants’ entire capital investment is an improper measure of damages for a breach of the plaintiffs obligations under the agreement. He further argues that such an award is, in effect, an improper rescission of the contract. We disagree.

A

We first examine whether the court’s adoption of the referee’s conclusions with respect to the breach of contract theory was proper. “[B]ecause the attorney trial referee does not have the powers of a court and is simply a fact finder, [a]ny legal conclusions reached by an attorney trial referee have no conclusive effect. . . . The reviewing court is the effective arbiter of the law and the legal opinions of [a referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment. . . . Where legal conclusions are challenged, we must determine whether they are legally and logically correct and whether they find support in the tacts found by the . . . referee.” (Citation omitted; internal quotation marks omitted.) Alliance Partners, Inc. v. Oxford Health Plans, Inc., 263 Conn. 191, 202, 819 A.2d 227 (2003).

The court adopted the recommendation of the referee that the total amount of the defendants’ investment be returned, not as a refund, but as “damages that flow naturally from the breach.” “We have no difficulty with the basic idea that a party injured by a breach of contract may under certain circumstances recover the cost of his reliance as part of his expectation interest. . . . Based upon the elementary proposition that the measure of damages for a breach of contract is the loss which the injured party has thereby sustained, the rule in its more specific application embraces the two distinct elements of (1) expenditures already incurred towards performance, and (2) the profits that he would realize by performing the whole contract.” (Citations omitted; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 328, 514 A.2d 734 (1986). The defendants submitted evidence as to the first of those two elements.

Our Supreme Court has stated that “[w]hile the actual or out-of-pocket cost ... of acquiring . . . capital assets may be evidence of value, the value of that investment at the time of the breach [is] not necessarily the amount originally paid for it.” (Emphasis added; internal quotation marks omitted.) Id., 330-31. Thus, to ascertain the value of the defendants’ capital investment, the value of that investment before the breach, minus the value after the breach, would have to be ascertained. “The difference between these two values, if any, will reflect the correct amount of the plaintiffs loss of investment in capital assets resulting from the breach of contract.” (Emphasis added.) Id., 331. We therefore conclude that the court’s decision to adopt the recommendation that the defendants recover under a breach of contract theory was legally and logically correct.

B

The determination of whether the court improperly accepted the referee’s report with respect to damages involves a question of fact. We review facts found by a referee and adopted by the court under the clearly erroneous standard. “The assessment of damages is peculiarly within the province of the trier and the award will be sustained so long as it does not shock the sense of justice. The test is whether the amount of damages awarded falls within the necessarily uncertain limits of fair and just damages.” (Internal quotation marks omitted.) Buckman v. People Express, Inc., 205 Conn. 166, 174-75, 530 A.2d 596 (1987). “There are no unbending rules as to the evidence by which [damages for breach of contract] are to be determined. ... In making its assessment of damages for breach of [any] contract the trier must determine the existence and extent of any deficiency and then calculate its loss to the injured party. The determination of both of these issues involves a question of fact which will not be overturned unless the determination is clearly erroneous.” (Citation omitted; internal quotation marks omitted.) L.F. Pace & Sons, Inc. v. Travelers Indemnity Co., 9 Conn. App. 30, 41, 514 A.2d 766, cert. denied, 201 Conn. 811, 516 A.2d 886 (1986).

In the present case, the plaintiff argues that there was no competent evidence of damages sustained by the defendants for the plaintiffs failure to consult with the defendants. “The general rule in breach of contract cases is that the award of damages is designed to place the injured party, so far as can be done by money, in the same position as that which he would have been in had the contract been performed. ... It has traditionally been held that a party may recover general contract damages for any loss that may fairly and reasonably be considered [as] arising naturally, i.e., according to the usual course of things, from such breach of contract itself.” (Citations omitted; internal quotation marks omitted.) West Haven Sound Development Corp. v. West Haven, supra, 201 Conn. 319.

The court adopted the reasoning of the referee with respect to the damages award based on a breach of contract theory. The referee found that “the value of the business opportunity was the $203,000 [that the] defendants were willing to pay (and the plaintiff was willing to accept). It is the opportunity to succeed that the defendants lost. The contract damages, from that perspective, are $203,000, less the $53,000 that was never paid. Under this analysis, the additional $23,000 proven to have been paid by the defendants would constitute consequential damages of the breach.” The referee concluded that the value of the investment before the breach was $173,000 and that the defendants had “lost the entire $150,000” paid into the initial investment, as well as the additional $23,000 paid for tools that they never received. On the basis of the evidence, we cannot conclnde that the court’s damages award was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants also filed four special defenses claiming that the plaintiff was not entitled to the requested relief because (1) he had misrepresented the degree of his involvement in the new business, (2) the agreement was unconscionable, (3) the agreement was illusory and was made without consideration, and (4) the defendants already had paid to the plaintiff certain sums as “consulting fees.” Because no appeal was filed in connection with the judgment on the plaintiffs complaint, those special defenses are not at issue.

       The referee recommended that interest should not be allowed on the award based on rescission and that no punitive damages or attorney’s fees should be allowed.

       We note that the plaintiff did not name the corporation as a defendant in the complaint.


author: LAVERY, C. J.

text:
    JAMES ELLIOTT v. MARY T. LARSON
    (AC 23923)
    Lavery, C. J., and Foti and Dranginis, Js.

      Argued October 27, 2003 —
    officially released February 10, 2004

      John K. McDonald, with whom, on the brief, was Melissa A. Scozzafava, for the appellant (defendant).

      Olga E. Zargos, with whom were Jeffrey L. Menl and, on the brief, Brenda M. Hamilton, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

In this negligence action, the defendant, Mary T. Larson, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, James Elliott. On appeal, the defendant claims that the court improperly (1) denied her motion for a directed verdict, (2) denied her motion for a judgment notwithstanding the verdict and (3) granted the plaintiffs motion for an additur. We affirm the judgment of the trial court. Because the defendant did not accept the court’s additur, a new trial is warranted.

The record discloses the following relevant facts and procedural history. On February 19, 2000, at approximately 6:30 p.m., the plaintiff, an officer with the Hartford police department, was operating his personal motor vehicle, a pickup truck, in a northerly direction on Cooke Street in Plainville. As he stopped his truck and waited to turn left onto Betsy Road, his truck was struck from behind by the defendant’s car, which also was traveling in a northerly direction on Cooke Street. The sky was dark at the time of the accident, and Cooke Street was covered with snow, ice and slush as a result of a storm that had ended a few hours earlier.

In May, 2001, the plaintiff commenced this negligence action against the defendant, seeking damages for personal injuries and other losses that he allegedly sustained in the accident. In his complaint, the plaintiff alleged, inter alia, that the defendant had been negligent in that she operated her vehicle at a rate of speed greater than was reasonable under the conditions in violation of General Statutes § 14-218a, she operated her vehicle with inadequate brakes in violation of General Statutes § 14-80h, she operated her vehicle too close to the rear of the plaintiffs vehicle and failed to apply her brakes in time to avoid the collision in violation of General Statutes § 14-240, and she failed to keep her vehicle under proper and reasonable control. The defendant filed an answer and special defenses claiming that the plaintiffs injuries and losses were the result of his negligence in that he had stopped suddenly without reasonable warning, failed to signal his intention to stop in a reasonable manner and failed to signal his intention to turn left.

The trial commenced on October 16, 2002. At the close of the plaintiffs case-in-chief, the defendant made an oral motion for a directed verdict on the ground that the plaintiff had failed to present sufficient evidence to establish that she had been negligent in the operation of her vehicle. The court denied the motion. Thereafter, the defendant proceeded to present her defense. On October 22, 2002, the jury returned a verdict awarding the plaintiff $18,338.70 in economic damages. The jury did not award any noneconomic damages. The damages award was reduced to $11,003.22 on the basis of the jury’s finding that the plaintiff had been 40 percent comparatively negligent.

On October 29, 2002, the plaintiff filed a motion to set aside the verdict or for an additur, and the defendant filed a motion for a judgment notwithstanding the verdict. On January 28, 2003, the court granted the plaintiffs motion for an additur, entering an additur of $12,000 in noneconomic damages for a total award of $30,338.70, which was reduced by 40 percent to $18,203.22 on the basis of the plaintiffs comparative negligence. The defendant did not accept the court’s additur. The court also denied the defendant’s motion for a judgment notwithstanding the verdict. This appeal followed.

I

The defendant first claims that the court improperly denied her motion for a directed verdict, which she made at the close of the plaintiff s case-in-chief. “[W]hen a trial court denies a defendant’s motion for a directed verdict at the close of the plaintiffs case, the defendant, by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court’s ruling. . . . The rationale for this rule is that, by introducing evidence, the defendant undertakes a risk that the testimony of defense witnesses will fill an evidentiary gap in the [plaintiffs] case. ... On appeal in such cases, the question becomes whether . . . there is evidence in the entire record to justify submitting the matter to a trier of fact. . . . Although we have questioned the continuing viability of the waiver rule in the criminal context ... we have never questioned its applicability in the civil context.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re James L., 55 Conn. App. 336, 340-41, 738 A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999).

The defendant has articulated no reason why the rationale underlying the “waiver rule” should not operate in this case. We conclude, therefore, that the waiver rule precludes our review of the defendant’s first claim. See id., 341.

II

The defendant next claims that the court improperly denied her motion for a judgment notwithstanding the verdict. Specifically, the defendant contends that there was insufficient evidence to permit a reasonable jury to conclude that the defendant was negligent in the operation of her vehicle. We disagree.

“Appellate review of a trial court’s refusal to render judgment notwithstanding the verdict occurs within carefully defined parameters. We must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial. . . . This standard of review extends deference to the judgment of the judge and the jury who were present to evaluate witnesses and testimony. . . . Judgment notwithstanding the verdict should be granted only if we find that the jurors could not reasonably and legally have reached the conclusion that they did reach.” (Internal quotation marks omitted.) Parker v. Slosberg, 73 Conn. App. 254, 263, 808 A.2d 351 (2002). In reaching its conclusion, “[a] jury often must rely on circumstantial evidence and draw inferences from it. . . . The drawing of inferences is peculiarly a jury function, the raison d’etre of the jury system.” (Citation omitted; internal quotation marks omitted.) Caprood v. Atlanta Casualty Co., 80 Conn. App. 338, 341, 835 A.2d 74 (2003).

“Negligence is conduct which creates an undue risk of harm to others.” (Internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., 191 Conn. 282, 299, 465 A.2d 294 (1983); 2 Restatement (Second), Torts § 463, comment (b), p. 506 (1965). “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. ” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). “To have proven his claim of negligence, the plaintiff must have established each of these elements by a preponderance of the evidence.” Preston v. Wellspeak, 62 Conn. App. 77, 81-82, 767 A.2d 1259 (2001).

“Because evidence of skidding is not, in and of itself, evidence of negligence . . . the plaintiff was required to prove other facts to support his allegation that the defendant breached a duty of care owed to him.” (Citation omitted; internal quotation marks omitted.) Id., 82. “If the [defendant] acted as would a reasonably prudent person, under the circumstances, he is not to be held negligent merely because the car skidded and did damage.” (Emphasis added.) James v. Von Schuckman, 115 Conn. 490, 493, 162 A. 3 (1932). Skidding may constitute a basis lor a finding of negligence, however, if it is proven that the car’s skidding was due to some negligent conduct on the defendant’s part or that the defendant was negligent after her car began to skid. See Nirenstein v. Sachs, 117 Conn. 343, 345, 167 A. 822 (1933).

At trial, the defendant testified that at the time of the accident, the sky was dark and Cooke Street was covered with snow, ice and slush. Sergeant Dean Cyr of the Plainville police department testified similarly that as he proceeded to the accident scene, he had to drive slowly and cautiously because the road conditions were icy. The defendant also testified that about two-tenths of one mile from the site of the accident, she took her eyes off the road as she drove through a school zone to glance down at her speedometer. She testified that she was traveling at approximately twenty miles per hour at that time.

In addition, the defendant testified that when she observed the plaintiffs truck slowing or stopped about 100 feet ahead of her car, she realized that she needed to attempt to stop. She testified that when she noticed that the gap was closing between her vehicle and the plaintiffs, she applied her brakes and her car began to skid because her brakes had locked. She testified that she still could direct her vehicle with the steering wheel but could not stop it from skidding and colliding with the plaintiffs truck. She also admitted that she had considered turning right onto Mel Street to attempt to avoid the accident, but decided not to do so because she noticed that on the comer of Mel Street and Cooke Street there was a telephone pole behind which two people were standing. Instead, she decided to try to negotiate her car to the right of the plaintiffs tmck because she “thought maybe [she] could get up onto the curve and just get by him that way.”

The plaintiff testified that prior to being struck from behind by the defendant’s car, he had been stopped for approximately thirty seconds waiting to turn left. He further testified that as a result of the impact of the collision, his tmck was moved across the center of the road into the other travel lane by “a quarter portion” of the tmck’s length and that the rear of his tmck was moved to the right “at least the entire length of the vehicle.”

Cyr testified that when he investigated the accident scene, he noticed skid marks of approximately fifty feet in the slush and snow. He further testified that the plaintiffs truck was damaged “from the [rear] bumper all the way to the front of the [vehicle].” The defendant testified with respect to the damage to her car that the mirror, bumper, paint and chrome around the bumper all had been damaged as a result of the collision. At trial, the jury viewed photographs that depicted the damage the two vehicles had sustained as a result of the collision.

Although the evidence of negligence was not overwhelming, the jury reasonably could have concluded that the defendant had been operating at a speed too fast for the weather and road conditions, that she did not have her car under proper control and, accordingly, that her negligence caused the accident. See DeAntonio v. New Haven Dairy Co., 105 Conn. 663, 667, 136 A. 567 (1927). We test the propriety of a motion for a judgment notwithstanding the verdict in accordance with the principle that we give the evidence at trial “the most favorable reasonable construction in support of the verdict to which it is entitled. . . . The most favorable reasonable construction must be given to the circumstantial as well as to the direct evidence of what actually transpired.” (Citation omitted; internal quotation marks omitted.) Caprood v. Atlanta Casualty Co., supra, 80 Conn. App. 345.

Thus, when viewed in the light most favorable to the prevailing party, the evidence and all the inferences drawn therefrom reasonably support the jury’s verdict. Accordingly, we conclude that the court did not abuse its discretion in denying the defendant’s motion for a judgment notwithstanding the verdict.

Ill

The defendant last claims that the court improperly granted the plaintiffs motion for an additur. Specifically, she argues that under the circumstances of this case, the jury’s decision to award all claimed economic damages but no noneconomic damages was reasonable and consistent and, therefore, the court abused its discretion in ordering an additur. We are not persuaded.

We first set forth our standard of review. In Wichers v. Hatch, 252 Conn. 174, 745 A.2d 789 (2000) (en banc), our Supreme Court stated that “the jury’s decision to award economic damages and zero noneconomic damages is best tested in light of the circumstances of the particular case before it. Accordingly, the trial court should examine the evidence to decide whether the jury reasonably could have found that the plaintiff had faded in his proof of the issue.” Id., 188-89. “Our review of the trial court’s decision is limited to whether the trial court properly exercised its discretion.” Schroeder v. Triangulum Associates, 259 Conn. 325, 330, 789 A.2d 459 (2002). We, therefore, “will not disturb a court’s decision ... to order an additur [in such cases] unless we conclude that the court has abused its discretion.” Wallace v. Haddock, 77 Conn. App. 634, 636, 825 A.2d 148 (2003).

In determining whether the court abused its discretion, “the court’s action cannot be reviewed in a vacuum. The evidential underpinnings of the verdict itself must be examined.” (Internal quotation marks omitted.) Wichers v. Hatch, supra, 252 Conn. 189. We are mindful, however, that “the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury.” (Internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995).

In its memorandum of decision granting the plaintiff s motion for an additur, the court stated: “In the present case, the jury not only awarded the plaintiff all of the claimed [medical expenses], but also his lost wages and lost overtime. The award of the plaintiffs lost wages must necessarily have flowed from the conclusion that he was injured, suffered pain and could not work. The failure to award noneconomic damages is inconsistent with the conclusion of injury and the award of lost wages. The plaintiff . . . had a preexisting condition, but the condition was congenital in nature, and the plaintiff was asymptomatic with a complete range of motion pain free. . . . [T]he evidence is clear that the plaintiff had not had any treatment for his back prior to this accident, and the plaintiff did not even know he had a preexisting condition. After reviewing the case law enunciated in Wichers v. Hatch, [supra, 252 Conn. 174], and Schroeder v. Triangulum Associates, [supra, 259 Conn. 325], the court is of the opinion that the facts of this case require this court to conclude that the plaintiff must have suffered pain accompanying his injury.”

After carefully reviewing the record and transcripts, we conclude that the court properly exercised its discretion in granting the plaintiffs motion for an additur. Because the defendant did not accept the court’s addi-tur, a new trial is warranted. See Semrau v. Herrick, 72 Conn. App. 327, 332-34, 805 A.2d 125 (2002); see also Schroeder v. Triangulum Associates, supra, 259 Conn. 334.

The judgment is affirmed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The court denied without prejudice the plaintiffs motion to set aside the verdict.

       Although the court did not specifically rule on the defendant’s motion for a judgment notwithstanding the verdict, we are satisfied that in granting the plaintiffs motion for an additur, the court implicitly denied the defendant’s motion. See State v. Ober, 24 Conn. App. 347, 351 n.1, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991); R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 215 n.3, 504 A.2d 542 (1986).

       General Statutes § 14-218a (a) provides in relevant part: “No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association ... at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions. . . . [T]hefact that the speed of a vehicle is lower than [the speed limit] shall not relieve the operatorfrom the duty to decrease speed when a special hazard exists with respect to .. . other traffic or by reason of weather or highway conditions.” (Emphasis added.)


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. SHERYL NICHOLS
    (AC 23095)
    Foti, Schaller and McLachlan, Js.
    Argued December 4, 2003 —
    officially released February 10, 2004

      Jeremiah Donovan, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were Timothy J. Liston, state’s attorney, and Barbara Hoffman, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Sheryl Nichols, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of alcohol in violation of General Statutes (Rev. to 2001) § 14-227a (a) (l) and operating a motor vehicle while having an elevated blood alcohol content (BAC) in violation of General Statutes (Rev. to 2001) § 14-227a (a) (2) (B). Because the defendant previously had been convicted of the same offense, she could be in violation of § 14-227a (a) (2) (B), as in effect at the time of the alleged violation, if her BAC reading was seven-hundredths of one percent or more. The defendant claims that the disclosure to the jury of her prior conviction so tainted the entire trial as to require that the judgment of conviction be reversed. We disagree and affirm the judgment of the trial court.

The record discloses the following facts. At approximately 5:55 p.m. on March 16, 2001, Clifford Barrows of the Old Saybrook police department stopped the defendant after the vehicle she was driving went through a red traffic signal at a high rate of speed. Barrows smelled alcohol inside the car, heard the defendant slur her speech and saw that she had difficulty with hand-eye coordination. He requested that she exit her car. Once outside the car, she failed three sobriety tests. The defendant’s actions also were captured by the videocamera that was mounted inside Barrows’ cruiser and witnessed by fellow officers who had been called to the scene. The defendant was placed under arrest and transported to the Old Saybrook police station. The defendant agreed to be tested by Breathalyzer. The first test administered at 6:44 p.m. indicated a BAC of .135 of one percent, and a second test administered approximately thirty-five minutes later indicated a BAC of .131 of one percent. Both tests were above the .07 of one percent legal limit set by § 14-227a (a) (2) (B).

The jury found the defendant guilty of operating a motor vehicle while under the influence of alcohol in violation of § 14-227a (a) (1) and operating a motor vehicle while having an elevated blood alcohol content in violation of § 14-227a (a) (2) (B). Upon being found guilty of counts one and two of the first part of the information, the defendant entered a guilty plea to the part B information, as a repeat offender. The defendant was committed to the custody of the commissioner of correction on the first count for a period of two years, execution suspended after eight months, with two years probation. The second count of the information was merged into the first count of the information. This appealed followed.

The defendant claims that the disclosure to the jury of her prior conviction so tainted the entire trial as to require that the judgment of conviction be reversed. Specifically, the defendant argues that the disclosure to the jury of the prior conviction was a violation of Practice Book §§ 36-14, 37-10 and 37-11, and her right to a fair and impartial trial before an unbiased fact finder. We disagree.

The facts and procedural history relevant to the defendant’s claim are as follows. The defendant, in a two pari; information, was charged in the first part with two counts of operating a motor vehicle while under the influence of alcohol and in part B with having a prior conviction pursuant to the same statute. On January 25, 2002, the prosecutor filed a substitute information charging the defendant with violating § 14-227a (a) (1) and (a) (2) (B). The charge alleged in count one that the defendant had been under the influence of drugs or alcohol or both. Count two alleged that “the ratio of alcohol in the blood of the defendant exceeded seven-hundredths of one percent of alcohol, and said defendant has been previously convicted of a violation of Section 14-227a (a) in violation of Section 14-227a (a) (2) (B) of the Connecticut General Statutes.” (Emphasis added.) The defendant objected to the substitute information because it alleged that she had been under the influence of both alcohol and drugs. The court struck the drug allegation from the first count. The corrected substitute information was then read to the jury with the reference to the defendant’s prior conviction.

Officer Michael Hartón of the North Haven police department testified outside the presence of the jury that he had arrested the defendant in November, 1999, on a charge of operating a motor vehicle while under the influence of alcohol. The state offered into evidence the certified judgment of conviction. The defendant filed a motion in limine to preclude evidence of the prior conviction because her guilty plea was made as a result of ineffective assistance of counsel and without an adequate canvass by the court. The court denied the motion, and the certified judgment of conviction was entered into evidence, but only after the state redacted references in the judgment of conviction that pertained to the nolle prosequi of another charge of making an unsafe start of her vehicle and an order of probation.

During the jury charge, the court instructed the jury not to consider the prior conviction in its deliberations. The court stated that the prior conviction was admitted “for the sole purpose of the attempt to prove the element of the offense within count two of this information that the defendant was previously convicted of [having violated] § 14-227a and for no other purpose. . . . For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: Number one, that the defendant was operating a motor vehicle at the time and place alleged; number two, that she was operating the motor vehicle on a public highway of this state; number three, she was operating it . . . while the ratio of alcohol in her blood is seven-hundredths of one percent or more of alcohol by weight; and number four, that the defendant had been convicted in the past of driving under the influence.”

Following the guilty verdict on the first two counts, the court ordered the jury to remain in the courthouse and then recessed to determine what action was necessary to resolve part B of the information. Thereafter, the defendant entered a guilty plea to the part B information.

The defendant did not properly preserve her claim that the disclosure of the prior conviction to the jury was a violation of our rules of practice and her right to a fair and impartial trial before an unbiased fact finder. The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. The defendant, however, has failed to address any of the prongs of Golding adequately. Therefore, we decline to review her unpreserved claim under Golding. We will review the defendant’s claim to determine if the court committed plain error.

“Practice Book § 60-5 provides in relevant part: The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. ... As we recently have reiterated, however, [pjlain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . [Thus, a] defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 146 n.128, 836 A.2d 224 (2003).

We must first address the state’s argument that the defendant waived her claim by explicitly agreeing that the evidence of the prior conviction was admissible once the court resolved certain collateral issues pertaining to the judgment of conviction.

“[The] Plain Error Rule may only be invoked in instances of forfeited-but-reversible error . . . and cannot be used for the purpose of revoking an otherwise valid waiver. This is so because if there has been a valid waiver, there is no error for us to correct. . . . The distinction between a forfeiture of a right (to which the Plain Error Rule may be applied) and a waiver of that right (to which the Plain Error Rule cannot be applied) is that [w]hereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” (Internal quotation marks omitted.) State v. Corona, 69 Conn. App. 267, 274-75, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). In this case, the defendant did not waive her right by explicitly agreeing that the evidence of the prior conviction was admissible. The defendant merely agreed with the court’s order that the state must redact all references in the prior judgment of conviction that pertained to the nolle prosequi of the charge of making an unsafe start of her vehicle and an order of probation, but continued to maintain that she had “other problems with the prior conviction . . . .” Such statements are not an intentional relinquishment or abandonment of a known right. Accordingly, the defendant did not waive her right, and we may conduct review under the plain error doctrine.

We next address whether the disclosure to the jury of the defendant’s prior conviction so tainted the entire trial as to require that the judgment of conviction be reversed.

Our review of the record reveals that any harm caused by the disclosure did not, in any way, undermine the validity of the guilty verdict. The jury found that the evidence presented sufficiently satisfied the state’s burden of proving guilt beyond a reasonable doubt. Our careful review of the evidence supports that conclusion. The defendant failed three sobriety tests, images of which were captured on videotape, and two separate Breathalyzer tests indicated that her blood alcohol level was almost twice the legal limit. We also cannot conclude, as a finding of plain error requires, that the court’s comments and the state’s offering into evidence the certified copy of the prior conviction implicated the public confidence in our judiciary. It would indeed be difficult to avoid mentioning the defendant’s prior conviction because of the unique language of § 14-227a (a) (2) (B), which sets forth a lower BAC threshold when a defendant previously has been convicted of operating a motor vehicle while under the influence of intoxicating liquor. The court also gave a curative instruction to the jury not to consider the prior conviction in its deliberations. We find nothing in the record that leads us to conclude that the verdict reached by the jury was unreliable or that it constituted a manifest injustice to the defendant. Accordingly, the defendant’s argument under the plain error doctrine is unavailing.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part,: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... (1) while under the influence of intoxicating liquor or any drug or both . . . .”

       General Statutes (Rev. to 2001) § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle ... (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means . . . (B) if such person has been convicted of a violation of this subsection, a ratio of alcohol in the blood of such person that is seven-hundredths of one per cent or more of alcohol, by weight.”
      Section 14-227a (a) (2) has been revised to define “elevated blood alcohol content” as “eight-hundredths of one per cent or more of alcohol, by weight.” The statute in effect in March, 2001, set the blood alcohol limit at ten-hundredths of a percent, but provided for a lower threshold blood alcohol level if a person had been convicted of a violation of that subsection in the past. The legislature reasoned that aperson who previously had been charged with operating a motor vehicle while under the influence of intoxicating liquor should act with a greater degree of caution and care because he or she previously had been found guilty of the offense.

       Under Golding, “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, supra, 213 Conn. 239-40. “It is well established that generally this court will not review claims that were not properly preserved in the trial court. . . . The defendant’s failure to address the four prongs of Golding amounts to an inadequate briefing of the issue and results in the unpreserved claim being deemed abandoned.” (Citation omitted; internal quotation marks omitted.) State v. Harvey, 77 Conn. App. 225, 230, 822 A.2d 360, cert. denied, 265 Conn. 906, 831 A.2d 252 (2003).