author: SHELDON, J.

text:
    LISA BRUNO v. REED WHIPPLE ET AL.
    (AC 33584)
    Beach, Bear and Sheldon, Js.

      Argued May 17
    officially released October 16, 2012

      Lisa Bruno, pro se, the appellant (plaintiff).

      Anthony L. Cenatiempo, with whom, on the brief, was Stephen P. Fogerty, for the appellee (named defendant).
   Opinion

SHELDON, J.

The plaintiff, Lisa Bruno, appeals from the summary judgment rendered by the trial court in favor of the defendant Reed Whipple on her claims of breach of contract, breach of the implied covenant of good faith and fair dealing and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., in connection with the construction by the defendant Heritage Homes Construction Company, LLC (Heritage Homes), a limited liability company owned by Whipple and his wife, of a new home for the plaintiff and her then husband, Stephen Bruno (Bruno), in Ridgefield. Although we affirm the court’s judgment as to the plaintiffs claims of breach of contract and breach of the implied covenant of good faith and fair dealing, we reverse it as to her claim of a violation of CUTPA.

On January 27, 2010, the plaintiff filed a six count amended second revised complaint against the defendants. In the complaint, the plaintiff alleged that the defendants, as parties to a contract with herself and Bruno to build the new home, had breached the contract and the implied covenant of good faith and fair dealing arising thereunder by conspiring with Bruno to launder his money through the project, and thus to deprive her of fair, just and reasonable alimony and division of assets in connection with the impending dissolution of her marriage. On that score, the plaintiff alleged, more particularly, that by December, 2005, when Bruno initiated marital dissolution proceedings against her, construction of the new home was nearly complete for what by then was the total sum of approximately $1,800,000. Thereafter, however, from December, 2005, to January, 2006, and from May, 2006, to July, 2006, Bruno paid the defendants additional sums totaling approximately $2,600,000, all purportedly for expenditures on the project that she did not authorize. On that basis, the plaintiff alleged that the defendants had colluded with Bruno to launder his money through the project, either by not performing all of the construction work they claimed to have performed on the project or by submitting multiple billings for the work they did perform. The plaintiff claimed as to Whipple that by engaging in such collusive conduct with Bruno, he not only breached the contract, as alleged in count one of the complaint, and the implied covenant of good faith and fair dealing arising under the contract, as alleged in count three, but he also committed unfair or deceptive acts or practices in the conduct of a trade or commerce that caused her to suffer ascertainable economic losses in violation of CUTPA, as alleged in count five.

On March 25, 2011, the plaintiff and, on March 28, 2011, the defendants filed motions for summary judgment. In support of their motion, the defendants argued, inter alia, that Whipple was entitled to judgment as a matter of law on each of the plaintiffs claims against him because all such claims were based materially upon alleged breaches of duties arising under a contract to which he was not a party. On that score, they argued that Whipple was not identified in the contract as a party and that, although he signed the contract in his representative capacity as a member of Heritage Homes, he did not sign it in his individual capacity. In support of that argument, the defendants submitted Whipple’s personal affidavit in which he averred that he had never individually entered into any contract with the plaintiff or Bruno, nor had he ever individually performed any work or provided any labor, services or material for either of them on his own behalf. In addition, with respect to the plaintiffs core allegation of wrongdoing against him in each of her claims — that he had engaged in money laundering on behalf of Bruno by returning money to him for work billed on the home construction project — Whipple averred that all work billed by Heritage Homes on the project was performed and fully paid for by Bruno pursuant to the contract, and that neither he nor Heritage Homes ever had returned any money to Bruno or laundered money for him through the project, as the plaintiff had alleged. The defendants supported their summary judgment motion with a memorandum of law and several exhibits, including Whipple’s affidavit and an unauthenticated copy of the subject contract.

In opposition to the defendants’ motion, the plaintiff filed, inter alia, a memorandum of law and several exhibits, including a copy of the contract that was textually identical to that submitted by the defendants and two personal affidavits. As grounds for opposing the defendants’ motion, the plaintiff argued, inter alia, that (1) the defendants had failed to support their motion by properly authenticated documents and materials; (2) Whipple was indeed a party to the contract in his individual capacity; (3) even if Whipple signed the contract only in his representative capacity, he nonetheless should be held hable for Heritage Homes’ tortious conduct, either as a direct participant in such conduct or as a person who so completely and pervasively controlled the company as to warrant piercing the corporate veil; and (4) the defendants’ documented interference with her ability to keep informed of and participate in the construction project’s planning and oversight after Bruno commenced marital dissolution proceedings against her, by dealing solely and exclusively with Bruno as to costly project modifications without her knowledge or consent, supports the inference that the defendants conspired with Bruno to launder his marital assets through Heritage Homes’ accounts, for Bruno’s benefit and to her own great financial loss.

After hearing oral argument on the parties’ motions for summary judgment, the court issued a memorandum of decision in which it granted the defendants’ motion as to all three of the plaintiff’s claims against Whipple. As to the plaintiffs threshold claim of breach of contract, un der count one of her complaint, the court relied upon the language of the contract, as submitted to it by both parties, to conclude that Whipple could not be found hable because “there is no genuine issue of [material] fact that Whipple was not a party to the contract as pleaded by the plaintiff.” As to the plaintiffs claims of breach of the implied covenant of good faith and fair dealing and a violation of CUTPA, under counts three and five of her complaint, the court determined that both of those claims were also “directly dependent upon the existence of the contractual relationship” between the plaintiff and Whipple, and thus that Whipple could not be held liable on either such claim due to his status as a nonparty to the contract. The court’s determination to this effect on the plaintiffs claim of breach of the implied covenant of good faith and fair dealing was based upon both settled case law, holding that such a claim can only be asserted against a contracting party, and its conclusion that the allegations of the third count failed to state any independent basis for establishing his liability in tort. By contrast, the court’s determination that the plaintiffs CUTPA claim against Whipple was directly dependent upon the existence of a contractual relationship was based simply upon its observation that all of the allegations of her breach of contract claim against him were realleged in support of the CUTPA claim.

Following the issuance of the court’s decision, the defendants asked that the decision be clarified as to whether it also was intended to apply to the plaintiffs claims against Heritage Homes, which had joined with the defendant in moving for summary judgment. In response to that request, the court promptly issued a corrected memorandum of decision in which it (1) restated nearly verbatim, in the first section of the corrected decision bearing only Whipple’s name and a specific reference to the three numbered counts against him (one, three and five), its prior decision granting the defendants’ motion as to each such count; and then (2) proceeded, in the second section bearing only the name of Heritage Homes and a specific reference to the three numbered counts against it (two, four and six), to deny the defendants’ motion with respect to count two, alleging breach of contract, but to grant the motion as to counts four and six, alleging breach of the implied covenant of good faith and fair dealing and a violation of CUTPA. With respect to counts four and six, in particular, the court concluded its analysis as follows: “While the plaintiff has alleged conduct that would support a finding of aggravating circumstances sufficient for a CUTPA claim or a claim for breach of covenants of good faith and fair dealing, that the defendants have engaged in a scheme to launder money through . . . Bruno through the construction contract, those allegations are conclusory and supported by no facts. The defendants have challenged those assertions in their motion for summary judgment together with supporting affidavits and documents. If the plaintiff has no evidence and her supporting documents are inadequate, the court is justified in granting summary judgment provided the defendants have met their burden of proof. . . . The plaintiff must demonstrate that a genuine issue of material fact exists through ‘counter affidavits and concrete evidence.’ . . . The court finds that the plaintiff has failed to meet that burden.” (Citations omitted.) Following the court’s later denials of the plaintiffs separate motions for reargument with respect to the court’s summary judgment as to Whipple and Heritage Homes, the plaintiff filed this appeal.

On appeal, the plaintiff claims, on divers grounds, that the court erred in rendering summary judgment in favor of Whipple on each of her three claims against him. We disagree with the plaintiff as to her claims of breach of contract and breach of the implied covenant of good faith and fair dealing and thus affirm the court’s summary judgment on those claims. We agree, however, with the plaintiff as to her CUTPA claim and thus reverse the court’s summary judgment on that claim and remand this case for further proceedings thereon.

We first set forth the applicable standard of review as to a motion for summary judgment. “Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. See Practice Book §§ [17-44 and 17-45]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. . . . A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.” (Citation omitted; internal quotation marks omitted.) Weiner v. Clinton, 106 Conn. App. 379, 382-83, 942 A.2d 469 (2008).

I

BREACH OF CONTRACT

The plaintiffs first claim on appeal is that the court improperly rendered summary judgment in favor of Whipple on her claim of breach of contract. The plaintiff claims, more particularly, that the court improperly determined that there was no genuine issue of material fact that Whipple was not a party to the subject contract because (1) he had no right to contest her claim of breach of contract on the ground that he was not a party to the subject contract without specially pleading that claim as a special defense, (2) the court improperly considered unauthenticated evidence in reaching its conclusion that Whipple was not a party to the contract and (3) the court improperly ignored the defendants’ alleged admission, in their answer to the complaint, that Whipple was in fact a party to the contract. For the following reasons, we reject each of these arguments.

A

The plaintiff initially argues that Whipple was not entitled to seek summary judgment on the ground that he was not a party to the subject contract because he failed to plead his nonparty status as a special defense. We disagree.

“As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway. . . . Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues.” (Citations omitted.) Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802, 646 A.2d 806 (1994). Consistent with this rule, and in light of its express purpose, a defendant has no obligation to specially plead facts tending to disprove any allegations of the plaintiffs complaint that he has not admitted in his answer because, by generally denying such allegations or leaving the plaintiff to her proof of them at trial, he gives the plaintiff clear notice that such allegations are disputed and will be at issue in the case.

In the present case, Whipple’s assertion that he was not a contracting party is completely inconsistent with the plaintiffs factual allegations against him, which included the allegation that he was a party to the subj ect contract. That allegation, of course, was essential to the plaintiffs claim of breach of contract, for it is a fundamental principle of contract law that liability for breach of contract is confined to contracting parties or those who consent to be bound by them. See FCM Group, Inc. v. Miller, 300 Conn. 774, 797, 17 A.3d 40 (2011).

Because the plaintiff had pleaded that Whipple was a party to the subject contract, he was entitled to disprove that allegation as a basis for seeking summary judgment without so pleading as a special defense.

B

The plaintiff next argues that it was improper for the court to rely on the copy of the construction contract that the defendants offered in support of their motion for summary judgment because that document was not authenticated. We disagree.

Whether a trial court should consider documentary evidence submitted by a party in relation to a motion for summary judgment presents an evidentiary issue to which we apply an abuse of discretion standard. See Wilderman v. Powers, 110 Conn. App. 819, 828, 956 A.2d 613 (2008) (claim that court should not have considered unauthenticated documents in assessing motion for summary judgment presents evidentiary issue).

Both parties submitted copies of the same signed, three page “construction contract” as evidence to be considered by the court in support of their respective positions on the defendants’ motion for summary judgment. Although the parties attached different documents to their respective copies of the contract, the texts of the two copies, with which both the plaintiff and Whipple admittedly were familiar, were identical in all respects. Because the parties were in full agreement as to the text of the subject contract, both can be understood to have admitted by their references to it in their affidavits, briefs and arguments that the contract before the court was in fact authentic. Therefore, we conclude that the court did not abuse its discretion in considering the parties’ contract when assessing the merits of the defendants’ motion for summary judgment.

C

The plaintiff finally argues that, notwithstanding the language of the contract or the soundness of the court’s interpretation of its essential terms, the court was bound to rule that there was at least a genuine issue of material fact as to whether Whipple was a party to it because he made a binding judicial admission to that effect in the defendants’ answer to the complaint. We disagree that Whipple made such a judicial admission, and thus we reject this aspect of the plaintiffs claim as well.

Practice Book § 10-19 provides as follows: “Every material allegation in any pleading which is not denied by the adverse party shall be deemed to be admitted, unless such party avers that he or she has not any knowledge or information thereof sufficient to form a belief.” Additionally, Practice Book § 10-48 provides in relevant part: “[A]ny pleader wishing expressly to admit or deny a portion only of a paragraph must recite that portion; except that where a recited portion of a paragraph has been either admitted or denied, the remainder of the paragraph may be denied or admitted without recital. ...”

In the present case, paragraph four of the plaintiffs complaint alleged as follows: “On October 28, 2004, the plaintiff and the defendants entered into a written contract for the construction of a private residence at 111 Spring Valley Road, Ridgefield, Connecticut, for a total price of $2,566,550.00.” In their answer to the complaint, the defendants responded to the foregoing allegation as follows: “As to the allegations in Paragraph 4, the defendants admit so much of the paragraph that there was a contract to build a residence at 111 Spring Valley Road, Ridgefield, Connecticut which is dated October 28, 2004. The defendants deny the rest of the paragraph.” By this response, the defendants, pursuant to Practice Book § 10-48, clearly admitted that portion of the allegation that stated that there was a contract to build the plaintiff and Bruno’s new residence but just as clearly denied the remainder of the allegation, including the statement that Whipple was a party to the contract. Therefore, the defendants did not admit in their answer that Whipple was a party to the contract.

D

Having determined that Whipple’s claim that he was not a party to the contract was a proper basis for seeking summary judgment, that the contract presented to the court was properly considered by the court as evidence supporting that claim and that the defendants’ answer to the complaint contained no judicial admission contradicting and requiring the rejection of that claim, we now turn to the specific language of the contract to determine if the court properly found that the plaintiff had failed to present evidence that Whipple was a party thereto. “A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity. . . . Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms.” (Internal quotation marks omitted.) Lawson v. Whitey’s Frame Shop, 241 Conn. 678, 686, 697 A.2d 1137 (1997).

In the present case, the court found that Whipple signed the contract as a member of Heritage Homes, a limited liability company. According to the contract’s terms, the only parties to it were the plaintiff and Bruno, as “the Owner,” and Heritage Homes, as “the Contractor.” There is no language in the contract identifying Whipple as a party thereto. On the basis of the written contract, the undisputed terms of which were properly before it, the court thus had a substantial basis for concluding that there was no genuine issue of material fact that Whipple was not a party to that contract and thus that he could not be held hable for its breach. For all of the foregoing reasons, we agree with the court that Whipple was entitled to the rendering of summary judgment in his favor on the plaintiffs claim of breach of contract.

II

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

The plaintiffs next claim is that the court improperly rendered summary judgment in favor of Whipple as to the third count of her complaint, alleging breach of the implied covenant of good faith and fair dealing.

A

On that score, although the plaintiff concedes, as she must, that a person cannot be held hable for breach of the implied covenant of good faith and fair dealing without being a party to a contract, she contends initially that the court erred in determining that there was no genuine issue of material fact as to whether Whipple was a party to the contract, and thus that he could not be held hable for breach of the implied covenant of good faith and fair dealing in this case. Because her argument on that issue is identical to her argument on the same issue with respect to her claim of breach of contract, it must be rejected for the reasons set forth in part I of this opinion.

B

Even, however, if the plaintiff cannot estabhsh Whipple’s liability for breach of the implied covenant of good faith and fair dealing under her third count because he was not a party to the subject contract, she claims that the allegations of that count are sufficient to state at least one potentially viable tort claim against Whipple as to which summary judgment should not have been granted. It was error, she claims, to have granted summary judgment as to any duly pleaded claim that was not in fact dependent upon Whipple’s status as a party to the subject contract, provided that she was entitled to recover on that claim from Whipple personally, either because he participated personally in the tortious conduct upon which the claim was based or because he so completely and pervasively controlled Heritage Homes and engaged in such conduct as to warrant piercing the corporate veil and making him personally hable for such conduct. She asserts that the court erred in granting summary judgment on the third count on the basis of its stated conclusions that she had failed to plead any tort claim in that count or any facts upon which she would be entitled to recover against Whipple personally on any such claim under the doctrine of piercing the corporate veil.

The plaintiff disputes the court’s finding that she failed to allege a potentially viable tort claim in her third count for two reasons. First, she claims that that finding is inconsistent with the prior ruling of a different trial court denying the defendants’ motion to strike that count. According to the plaintiff, the court’s ruling on the motion to strike expressly concluded that the facts alleged in that count were sufficient to state potentially viable tort claims against both defendants. Second, the plaintiff argues that, in the separate section of the court’s corrected memorandum of decision which addressed the motion for summary judgment as to Heritage Homes with respect to the virtually identical claim of breach of the implied covenant of good faith and fair dealing set forth against it in the fourth count of her complaint, the court discussed her core allegations of wrongdoing against “the defendants” in such a way as to suggest that she had in fact pleaded viable tort claims against them both.

Whipple disputes the notion that either the earlier denial of the defendants’ motion to strike the third count of the plaintiffs complaint or the court’s comments in its corrected memorandum of decision concerning the potential sufficiency of the allegations of the plaintiffs fourth count to support a claim of breach of the implied covenant of good faith and fair dealing against Heritage Homes lends any support to the plaintiffs present claim that the allegations of the third count are sufficient to state an independent claim against him sounding in tort. We agree.

To begin with, each ruling on which the plaintiff relies was based on the assumed or established fact that the person or entity to whom or which it applied was in fact a party to the subject contract. The ruling on the motion to strike, as addressed to the third count, was necessarily based upon the plaintiffs allegation in that count that Whipple was a party to the contract. Hence, the court’s discussion in that ruling concerned only the sufficiency of the pleaded allegations to hold Whipple liable for breach of the implied covenant of good faith and fair dealing if, as a contracting party, he was shown to have engaged in the conduct alleged against him in that count. The ruling cannot be understood to have addressed the different issue of whether Whipple also could be found liable in tort based upon a subset of those allegations if he was not in fact a party to the contract.

Similarly, the court’s comments about the legal sufficiency of the plaintiffs money laundering allegations against the defendants, as pleaded in her fourth count, to defeat the motion for summary judgment on that count by Heritage Homes, concerned only the sufficiency of such allegations as “aggravating circumstances” to support a viable claim of breach of the implied covenant of good faith and fair dealing against Heritage Homes, a party to the subject contract, which was the only party named in that count. That second section of the court’s corrected decision did not discuss the potential sufficiency of the allegations in question to state an independent tort claim, not based upon a contractual relationship, against either defendant. Apart, then, from loose language in the second section of the court’s decision referring generally to “the defendants,” rather than specifically to Heritage Homes, it is apparent that that section was never intended to apply to Whipple, whose potential liability was separately discussed in the first section of the corrected decision. Such language thus has no logical or legal bearing upon the sufficiency of the allegations of the plaintiffs third count to state a viable tort claim against Whipple as a nonparty to the contract.

Moreover, we note that the corut’s analysis of the challenged claim as a breach of the implied covenant of good faith and fair dealing arising under the subject contract was entirely consistent with the plaintiffs own characterization of that claim. In paragraph twenty of the third count of her complaint after repleading all nineteen paragraphs of her first count alleging breach of contract, as the first nineteen paragraphs of that count, the plaintiff pleaded simply as follows: “In the manner described above, the defendants breached their implied contract of good faith and fair dealing.” (Emphasis added.) In light of this tellingly miswritten description by the plaintiff of her own claim, nothing could be clearer than that she intended to base that claim upon the alleged breach of covenants arising under the contract. We thus conclude that Whipple was entitled to summary judgment on this count.

III

VIOLATION OF CUTPA

Finally, the plaintiff asserts that the court improperly rendered summary judgment in favor of Whipple on her CUTPA claim against him, as pleaded in the fifth count of her complaint. We agree.

The entire basis upon which the court rendered summary judgment on that claim was that the allegations of the fifth count were identical to those of the plaintiffs first count alleging breach of contract and thus, assert-edly, that the claim depended directly upon a contractual relationship between the plaintiff and Whipple. So concluding, the court ruled, as it had on the plaintiffs other claims against Whipple, that the CUTPA claim failed as a matter of law because there was no genuine issue of material fact that Whipple was not a party to the subject contract. The court thus never considered whether, apart from pleading a CUTPA violation against Whipple based upon his alleged breach of a personal contract with the plaintiff, the challenged count was sufficient to plead a CUTPA violation by Heritage Homes for which he could be held personally liable because he had personally engaged in the conduct by which the violation was committed. The plaintiff contends that such a claim is pleaded adequately in her fifth count and thus that the court’s rendering of summary judgment in favor of Whipple on that count should be reversed.

We note at the outset that because the trial court based its order of summary judgment on the sufficiency of the allegations of the challenged count to state a potentially viable CUTPA claim rather than the sufficiency of the plaintiffs evidence to raise a genuine issue of material fact in support of such a claim in the face of the Whipple’s averments to the contrary, our focus as well must be on the allegations of the challenged count. We note that both parties have acted consistently with this approach throughout the appellate process, having focused almost exclusively on the sufficiency of the plaintiffs complaint to state a CUTPA claim from the filing of her appeal through oral argument. The plaintiffs statement of issues in her brief, for example, states in relevant part as follows: “The court erred by rendering summary judgment in favor of . . . Whipple by . . . misconstruing the plaintiffs pleadings as sounding only in contract and not tort. . . .” Moreover, in her brief addressing the CUTPA claim, the plaintiff argued that “[s]imply because a plaintiff relies upon the same or similar factual allegations to support both a breach of contract claim and a tort or statutory (CUTPA) claim, does not render the tort and/or statutory counts insufficient. Rather, the necessary inquiry is to determine whether the factual allegations are sufficient to support both claims.” In response to these claims and arguments, Whipple argued in his brief as follows: “Two judges of the [S]uperior [C]ourt and the defendants read the complaint as a claim sounding in contract, and at the time the defendant[s] filed [their] motion to strike, the plaintiff agreed. The plaintiff would now have this court read her complaint in a manner that is unreasonable and inconsistent with the general theory of the case, i.e., breach of contract. As a non-party, the claims against Whipple must fail.” It is apparent from the record that the parties sought and opposed reversal of the court’s ruling on the plaintiffs CUTPA claim solely on the basis of the sufficiency of the plaintiffs fifth count to allege such a claim.

In evaluating the sufficiency of the pleadings, we are mindful of “[t]he modem trend, which is followed in Connecticut ... to construe pleadings broadly and realistically, rather than narrowly and technically. . . . Although essential allegations may not be supplied by conjecture or remote implication . . . the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Citations omitted; internal quotation marks omitted.) Lyons v. Nichols, 63 Conn. App. 761, 765, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001). “Whether a complaint gives sufficient notice is determined in each case with reference to the character of the wrong complained of and the underlying purpose of the rule which is to prevent surprise upon the defendant.” (Internal quotation marks omitted.) Stamford Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 274, 951 A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).

CUTPA provides in relevant part that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” General Statutes § 42-110b (a). “Connecticut courts, when determining whether a practice violates CUTPA, will consider (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). . . . Thus, a violation of CUTPA may be established by showing either an actual deceptive practice ... or a practice amounting to a violation of public policy. . . . Whether a practice is unfair and thus violates CUTPA is an issue of fact. . . . The facts found must be viewed within the context of the totality of the circumstances which are uniquely available to the trial court. . . . Additionally, our Supreme Court has stated that [a]ll three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a less extent it meets all three.” (Citation omitted; internal quotation marks omitted.) Monetary Funding Group, Inc. v. Pluchino, 87 Conn. App. 401, 413, 867 A.2d 841 (2005).

The plaintiff alleges in part in count five of her complaint that the defendants “either did not perform all of the construction work they claimed to have performed or submitted multiple billings for such work as was performed, and in fact conspired with Bruno to launder Bruno’s cash and thereby deprive the plaintiff of fair, just and reasonable alimony and division of assets in connection with the dissolution of the plaintiffs marriage to Bruno.” The plaintiff also alleges in count five that such conduct constitutes “unfair and deceptive acts and practices in trade and commerce in violation of [§] 42-110b . . . .”

These allegations, construed broadly and realistically, are sufficient to state a claim that Whipple, although not a party to Heritage Homes’ construction contract with the plaintiff and Bruno, personally colluded with Bruno on behalf of Heritage Homes by conspiring with him to submit multiple billings for work not actually performed under the contract in order to launder Bruno’s money through Heritage Homes’ accounts and secretly to return it to him in order to decrease Bruno and the plaintiffs apparent marital assets. The alleged purpose and effect of this collusive behavior, for which Whipple could be held personally hable to an injured third party even if, as alleged, he engaged in it as an officer or agent of Heritage Homes; see Cohen v. Roll-A-Cover, LLC, 131 Conn. App. 443, 467-69, 27 A.3d 1, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011); was to cause the plaintiff an ascertainable loss of money or other property, which she would otherwise have received in her dissolution action upon the court’s entry of its final financial orders. We conclude that such allegations of collusion and conspiracy, as pleaded, describe behavior by Whipple in the conduct of trade or commerce that, if proved at trial, would constitute a violation of CUTPA. Because such allegations are sufficient to state a viable CUTPA claim against Whipple that does not depend upon the existence of a contractual relationship between himself and the plaintiff, we reverse the trial court’s rendering of summary judgment in favor of Whipple on the fifth count of the complaint.

The judgment is reversed only as to the plaintiffs claim in the fifth count of her complaint alleging a violation of CUTPA and the case is remanded for further proceedings on that claim. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       This court dismissed the portion of this appeal in which the plaintiff challenged the trial court’s granting of summary judgment in favor of Heritage Homes on two of the plaintiffs three claims against it. Because of the continuing pendency in the trial court of the plaintiffs remaining claim against Heritage Homes, on which the defendants’ motion for summary judgment was denied, this court determined that the plaintiffs appeal must be dismissed in part for lack of a final judgment. Accordingly, for the purpose of this appeal, the only appellee is Whipple.

       The first such affidavit and eleven other exhibits originally filed in support of the plaintiffs motion for summary judgment were later redesignated as exhibits in opposition to the defendants’ motion in the plaintiffs memorandum of law in support of her objection to that motion, to which her second affidavit was attached.

       Whipple contends on appeal that the issue of authentication is not reviewable because the court’s summary judgment ruling did not address it. His claim is without merit. “Our review of the trial court’s decision to grant the . . . motion for summary judgment is plenary. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct ...” (Internal quotation marks omitted.) Navin v. Essex Savings Bank, 82 Conn. App. 255, 258, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004). In reaching our determination, we look to the evidence in the record, and, thus, the plaintiffs claim regarding the authentication of evidence is within our purview.

       The plaintiff attached as an exhibit to her motion for summary judgment, and later redesignated as an exhibit to her opposition to the defendants’ motion, a Heritage Homes cover letter and a spreadsheet of projected material and labor costs. The cover letter, printed on Heritage Homes’ letterhead, provides in relevant part as follows: “Dear Steve [Bruno], Enclosed please find copies of our standard construction management contract, latest budget, and sub-contractor agreement. As you are aware, our latest budget is not reflective of the new outbuilding that is currently being designed. Please let us know if you would like us to include that in our latest budget. Thanks, Reed [Whipple].” The defendants attached a similar, albeit different, expense spreadsheet to their motion but did not submit a copy of the cover letter.

       Whipple claims that, because the court did not address the defendants’ answer specifically in its summary judgment ruling, the plaintiff’s claim of admission is barred on appeal. On appeal, our review is plenary. See Navin v. Essex Savings Bank, supra, 82 Conn. App. 258. Hence, we address the plaintiffs argument that the defendants’ answer constituted an admission.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF CONNECTICUT v. LORENZO OSBOURNE
    (AC 32553)
    Lavine, Bear and Sheldon, Js.

      Argued April 9
    officially released October 16, 2012

      Jennifer Bourn, assistant public defender, for the appellant (defendant).

      Linda Currie-Zeffiro, assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Pamela J. Esposito, senior assistant state’s attorney, for the appellee (state).
   Opinion

SHELDON, J.

The defendant, Lorenzo Osbourne, appeals from the judgment of conviction rendered against him following a jury trial of three counts of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2), 53a-59 (a) (1) and 53-202k, and one count of interfering with an officer in violation of General Statutes § 53a-167a. On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction of three counts of attempt to commit assault in the first degree because the state failed to prove the essential elements of that offense beyond a reasonable doubt as to any of his alleged victims, three Bridgeport police officers; (2) the court erred in denying the jury’s request to replay the video of the events here at issue, as recorded by the camera on the Taser gun of one of the officers, in the privacy of the deliberating room; and (3) the court erred in failing to instruct the jury on the intent element of the offense of interfering with an officer. We affirm the judgment of the trial court.

Based upon the testimony of the state’s witnesses, the jury was presented with the following evidence upon which to base its verdict. On August 29, 2009, at approximately 4:30 p.m., two uniformed Bridgeport police officers, Jorge Larregui and Carlos Vasquez, responded to a burglar alarm call at a church located at the comer of Logan Street and Stratford Avenue in Bridgeport. As the officers drove toward the church in their marked police cruiser, they observed the defendant and another man standing on the comer near the church. While the officers were speaking to people in the church parking lot about the burglar alarm, they observed the defendant and the other man walk past them and enter an adjacent lot on which there was an abandoned building. Upon determining that the burglary call was a false alarm, the officers returned to their vehicle and resumed patrolling the area.

As they continued their patrol, the officers made further observations of the defendant and his companion. After several minutes, because the area was known for its high level of drug activity and the defendant and his companion had emerged from the empty lot, the officers determined that the men were suspicious and decided to investigate them. To that end, they stopped their cruiser approximately ten to twenty feet in front of the men and got out to approach them. When this occurred, the defendant and the other man immediately began to flee, prompting Vasquez to grab the defendant, who physically resisted and threw punches at him, and Lar-regui to detain the other man, who struggled with him until he drew his Taser gun and threatened to use it if the man continued to resist. When the Taser gun was turned on, its camera began to record the encounter as it unfolded. Officer Damien Csech, another uniformed Bridgeport police officer, then arrived at the scene and took control of the man with whom Larregui had been struggling, freeing Larregui to assist Vasquez in his efforts to subdue the defendant. After Csech handcuffed the other man and searched him for weapons, he too turned his attention to the defendant.

Vasquez responded to the defendant’s initial efforts to resist him by putting him in a choke hold and repeatedly ordering him to get down on the ground. Although Vasquez succeeded in getting the defendant down onto his hands and knees, the defendant continued to struggle with him and to defy his repeated orders to lie down on the ground. In the course of such continuing resistance, while both Vasquez and Csech were attempting to restrain the defendant physically, Larregui tased the defendant in the back, causing him to holler out in pain.

The officers testified, without objection, as to the operation and effects of a Taser gun. They explained that, when a Taser is deployed, it fires two prongs at the targeted person, which stay connected to the Taser gun by conductive wire. When the Taser is activated and the target is receiving an electrical shock from it, a loud, steady ticking sound can be heard. That ticking sound continues for the duration of each tasing cycle, which lasts approximately five seconds. Generally speaking, the shock from the Taser completely incapacitates the target for the duration of the cycle. At the end of the cycle, however, the target’s normal functioning is immediately restored.

After the first five second tasing cycle, when the defendant continued to struggle with Vasquez, Larregui tased him again. Immediately after that second cycle ended, the defendant quickly reached down to his right shorts pocket, from which he grabbed and partially removed a gun. Upon spotting the gun, which he first became aware of at that point, Vasquez immediately stepped in between the defendant’s right side and right arm, preventing the defendant from reaching downward again. Moments later, Larregui tased the defendant a third time.

Notwithstanding Vasquez’ position between the defendant’s right side and right arm from the time the gun first appeared until the initiation of the third tasing cycle, the officers testified that the defendant held the gun in his right hand during this third cycle until it fell to the ground and discharged. After the gun fell, Larregui testified that he kicked it out of the defendant’s reach. Thereafter, as the defendant continued to struggle, Lar-regui tased him twice more before he was finally placed in handcuffs.

The state also presented testimony from Marshall Robinson, a firearms examiner for the Bridgeport police department. Robinson testified, based upon his examination of the gun, that it was a five shot, .32 caliber revolver which, despite having a broken trigger return spring, was operable in either single action or double action mode. The hammer of the gun, which had to be cocked in order to be fired in either mode, could be cocked in two ways, either by pulling back the hammer manually or by pulling the trigger. Although the hammer was cocked when Robinson received the gun for examination, he could not say how or when it had been cocked. Even so, he opined that the hammer had not likely been cocked by accident. When Robinson was given the gun to examine, he was also given four five cartridges and one cartridge case from which a round had been discharged.

At the end of trial, the defendant was found guilty of three counts of attempt to commit assault in the first degree and one count each of carrying a pistol without a permit, criminal possession of a firearm, reckless endangerment in the first degree and interfering with an officer. The court sentenced the defendant on these charges to a total effective sentence of fifteen years incarceration, execution suspended after ten years, and three years probation, broken down as follows: on the three counts of attempt to commit assault in the first degree, concurrent terms of fifteen years incarceration, execution suspended after ten years, and three years probation; on the count of criminal possession of a firearm, a concurrent term of two years incarceration; and on the three separate counts of carrying a pistol without a permit, reckless endangerment in the first degree and interfering with an officer, concurrent terms of one year incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction of three counts of attempt to commit assault in the first degree because the state failed to prove the essential elements of that offense beyond a reasonable doubt as to any of his victims. We disagree.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable. . . .

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty. . . . Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts [that] establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . [A]ny such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [on] the evidence.” (Citation omitted; internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 656-58, 1 A.3d 1051 (2010).

As it applies to this case, § 53a-49 (a) (2) provides in relevant part that “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . intentionally does . . . anything which, under the circumstances as he believes them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Section § 53a-59 (a), in turn, provides in relevant part that “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon or a dangerous instrument . . . .” Accordingly, a conviction of attempt to commit assault in the first degree, in violation of §§ 53a-49 (a) (2) and 53a-59 (a) (1), requires proof beyond a reasonable doubt of two elements: (1) that while acting with the intent to cause serious physical injury to the victim by means of a deadly weapon or dangerous instrument, (2) the defendant intentionally took a substantial step in a course of conduct planned to cause such injury to the victim.

To understand the first element, the intent or purpose element of attempt to commit assault in the first degree, two statutory definitions must be considered. First, “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” General Statutes § 53a-3 (11). Second, “ ‘[sjerious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4). In light of these definitions, the intent or purpose element of attempt to commit assault in the first degree requires proof that, when the defendant engaged in the conduct claimed to constitute the offense, it was his conscious objective or purpose to cause serious physical injury, defined as aforesaid, to his victim.

To understand the second element, the substantial step or conduct element of attempt to commit assault in the first degree, as here alleged, three additional statutory definitions must be considered. First, to constitute a substantial step in a course of conduct planned to culminate in the commission of a crime, an actor’s conduct must be “strongly corroborative of the actor’s criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law ... (5) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (6) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances . . . .” General Statutes § 53a-49 (b). “This standard focuses on what the actor has already done and not what remains to be done. . . . The substantial step must be at least the start of a line of conduct which will lead naturally to the commission of a crime. . . . What constitutes a substantial step in any given case is a question of fact.” (Internal quotation marks omitted.) State v. Robinson, 127 Conn. App. 1, 7, 15 A.3d 648, cert. denied, 300 Conn. 942, 17 A.3d 477 (2011). Where, then, as here, the crime allegedly attempted was assault in the first degree in violation of § 53a-59 (a) (1), the act claimed to constitute a substantial step must be proved to have been strongly corroborative of the defendant’s alleged purpose of causing serious physical injury to his alleged victim by means of a deadly weapon or a dangerous instrument.

The term deadly weapon, as used in this case, means “any weapon, whether loaded or unloaded, from which a shot may be discharged . . . .” General Statutes § 53a-3 (6). The term dangerous instrument, in turn, is defined in relevant part to include “any instrument. . . which, under the circumstances in which it is used or attempted ... to be used, is capable of causing death or serious physical injury . . . .” General Statutes § 53a-3 (7). Under those definitions, an operable pistol or revolver is a deadly weapon, which, when used or attempted to be used to shoot and cause serious physical injury to another person, also constitutes a dangerous instrument. Thus, the state can satisfy the substantial step or conduct element of attempt to commit assault in the first degree by proving that the defendant, while acting with the conscious objective or purpose of causing serious physical injury to the alleged victim by shooting him with a gun, engaged in conduct strongly corroborative of that criminal purpose that was at least the start of a line of conduct that would lead naturally to the commission of that crime.

Here, the state argues that the defendant attempted to commit assault in the first degree as to each of his alleged victims because, while acting with the conscious objective or purpose of causing serious physical injury to the victim, he intentionally reached for and grabbed a cocked and loaded gun in the right pocket of his shorts at the end of the second tasing cycle. The state argues that this conduct, coming in the course of the defendant’s prolonged physical resistance to the officers’ efforts to subdue him, was strongly corroborative of his intent to secure the gun and use it against each of the officers in order to avoid being taken into their custody and control.

The defendant disputes the state’s contention on several grounds, noting initially that the defendant never threatened to shoot or kill any of the officers, never pointed the gun at any of them, and, of course, never fired a shot. Recognizing, however, that a defendant’s intent or purpose is usually proven by inference and that the state here sought to prove his intent to inflict serious physical injury upon the officers with a gun in rebanee upon other aspects of his alleged conduct during his encounter with them, he focuses his attack on what he claims to be two critical weaknesses in the state’s evidence against him. First, he claims that none of his proven conduct can be found to have been intentional because it was immediately preceded by painful and debilitating tasing, which assertedly disabled him from engaging in deliberate physical movement. Second, he claims that, even if his physical movements at the time of his alleged conduct could have been found to be deliberate, there are irreconcilable inconsistencies between the officers’ trial testimony about his encounter with them and the actual manner in which that encounter took place, as recorded by the camera on Larregui’s Taser gun. The defendant contends that the recording so clearly undermines the essential basis for the state’s attempt charges against him as to require the reversal of his conviction of those charges. We do not agree with either of the defendant’s contentions.

It is appropriate at the outset to observe both that the theoretical basis of the state’s underlying claim of criminal culpability against the defendant is legally sound and that the testimony of the three officers, if considered in the light most favorable to the state in support of that theory, is sufficient on its face to sustain the jury’s guilty verdict on all three counts of attempt to commit assault in the first degree. The ultimate measure of the sufficiency of the defendant’s conduct to constitute a substantial step in a course of conduct planned to culminate in the commission of assault in the first degree is not, to reiterate, how close in time or place or final execution his proven conduct came to the consummation of that crime, but whether such conduct, if at least the start of a line of conduct leading naturally to the commission of the crime, strongly corroborated his alleged criminal purpose. The defendant’s act of reaching quickly into his pocket and grabbing a cocked and loaded gun while struggling with uniformed police officers who were attempting physically and by verbal command to subdue him reasonably could have been found not only to have been the start of a line of conduct leading naturally to securing the gun and using it to shoot and cause serious physical injury to each of the three officers, but also to have been strongly corroborative of his alleged purpose to engage in such conduct and cause such results, and thus to commit assault in the first degree against each officer.

The jury also reasonably could have found that the defendant gave the officers stubborn physical resistance from the beginning of the incident until the end; that, although the defendant was being tased, and thus was incapable of voluntary physical movement until just before he reached for his gun, he was restored to full strength and function, with the capacity to engage in deliberate physical movement, as soon as each tasing cycle ended; and that, when the second tasing cycle ended, he immediately reached downward with his right hand to the right front pocket of his shorts, from which he grabbed and partially removed his cocked and loaded gun. Unless the evidence adduced at trial was such as necessarily to raise a reasonable doubt about any of these central aspects of the officers’ testimony, the defendant’s challenge to the sufficiency of the evidence to support his conviction of three counts of attempt to commit assault in the first degree must be rejected.

The defendant does not claim that he did not struggle with the three officers while they attempted to subdue him. The most he claims on that subject is that once he was tased, he lost all capacity to engage in deliberate physical movement. He claims, on that basis, that his alleged conduct of reaching toward his shorts pocket at the end of the second tasing cycle cannot be found to have been an intentional act, since he was still under the influence of the shock from the Taser at that time.

Other than the officers’ testimony and the video of the incident, no evidence was presented at trial as to the effects of a Taser gun on a target’s capacity for deliberate bodily movement. The officers explained that, although the target of a Taser is totally incapacitated while the Taser is deployed, he is restored to full function, and thus able to act deliberately, as soon as the tasing stops. If the jury accepted this testimony, as was their prerogative, the defendant reasonably could have been found to have acted deliberately when, as the officers testified, he reached for and grabbed the cocked and loaded pistol in his pocket between tas-ing cycles.

Even, however, if the evidence permitted the jury to find that the defendant was capable of engaging in deliberate physical movement at the time he is alleged to have reached for and grabbed the gun in his pocket, the defendant insists that the video of the incident definitively raises a reasonable doubt as to whether he actually grabbed the gun or pulled it from his pocket at that time, and thus that the state’s evidence against him is fatally undermined. With this claim in mind, we turn to the video, which was played during trial and intermittently paused so that each officer could describe the events depicted therein.

According to the defendant, “[t]he video establishes that the events occurred as follows: When the second [Taser] charge stopped at 00:28, the defendant’s hand had not come in contact with the gun, nor had his hand come in contact with the pocket containing the gun. At 00:28, the defendant had experienced nearly 11 straight seconds of intense pain, incapacitation and electrocution-like effects from the Taser. At 00:28, the defendant’s right hand can be seen near his pants pocket which contained the gun. The defendant did not touch the gun or pull it out of his pocket. At 00:29, the view of the defendant’s pocket is blocked for a fraction of a second and then (also at 00:29) when the pocket becomes visible again, we can see the defendant’s arm stretched out away from his body and the pocket. At 00:30, the video shows Larregui’s leg and foot in between the defendant’s arm and his body. At 00:30 to 00:31, the gun comes out of or falls from the defendant’s pocket on its own. At this time the defendant’s arm is still outstretched and not near his pocket or the gun. At 00:30 of the video, someone other than the defendant is heard saying to get the ‘fucking gun out of that pocket.’ The clicking from the Taser can be heard at the very end of the 00:31 mark, meaning Larregui has begun to [tase] the defendant for the third time. When the [tasing] starts, the defendant does not have, nor could he have, the gun. Thereafter, while the camera is pointed at the ground and the defendant is yelling in pain, someone other than the defendant says, 1 got the gun’ immediately before the gun discharges at 00:35. Confirming that someone other than the defendant picked up the gun and dropped it, a voice that is not the defendant’s is heard at 01:30 of the video saying, ‘Dude, I went to go grab it and it went right off. . . . It bounced right off the ground.”

If the jury saw and understood the video exactly as the defendant has described it, it might well have had questions about certain aspects of the officers’ trial testimony. The most significant of those questions might have concerned the defendant’s claim that the video fails to show his hand ever reaching into his pocket and grabbing a gun therefrom. The defendant would have us rely upon his description of the incident, as assertedly shown in the video, to discredit the officers’ testimony in its entirety. We reject this claim for two reasons. First, any alleged inconsistencies between the officers’ testimony and the video would not have required the jury to discount all of the officers’ testimony. It is axiomatic that “it is the jury’s role as the sole trier of the facts to weigh the conflicting evidence and to determine the credibility of witnesses. ... It is the right and duty of the jury to determine whether to accept or to reject the testimony of a witness . . . and what weight, if any, to lend to the testimony of a witness and the evidence presented at trial.” (Citations omitted; internal quotation marks omitted.) State v. Morgan, 274 Conn. 790, 802, 877 A.2d 739 (2005). The jury could have discounted those portions of the officers’ testimony that were inconsistent with the video and credited the remainder.

Second, the jury reasonably could have determined that the video does not necessarily raise reasonable doubt as to whether the defendant reached into his pocket and grabbed his gun after the second tasing cycle. The jury reasonably could have found that the video shows the defendant reaching toward his pocket and then a silver gun appearing at or near the pocket before falling to the ground beneath him. Viewing the video’s contents in this manner, the jury might reasonably have found that the reason the gun appeared at or near the defendant’s pocket immediately after he reached for it is that, in fact, he intentionally grabbed it, and thereby dislodged it, causing it to fail. On that basis, the jury reasonably could have found that the defendant took a substantial step in a course of conduct planned to culminate in the shooting of each of the officers with the gun. The evidence was thus sufficient to sustain the jury’s verdict of guilty of three counts of attempt to commit assault in the first degree.

n

The defendant also claims that the court erred in failing to allow the jury to take the video of the events at issue, which had been introduced as an exhibit, into the deliberating room, requiring them instead to view the video in the courtroom, in the presence of the court, counsel and all others attending the trial. The following additional facts are relevant to this claim.

After commencing its deliberations, the jury sent a note to the court asking to have the video replayed for it, first at full speed and then at one-half speed. In response to this request, the jury was returned to the courtroom, where the recording was first played in its entirety at full speed, then played at half speed to the point when the foreperson interrupted as follows: “Your Honor, we don’t need to see any more of the video, actually we’re going to go back in our room and discuss some of the other areas that we’d like to have replayed on the video.” The jury then exited the courtroom and resumed its deliberations. Thereafter, the jury sent the court another note, asking to view the video “in private. ” Before the jury was brought into the courtroom for the court’s response, the court informed counsel that, pursuant to State v. Gould, 241 Conn. 1, 15, 695 A.2d 1022 (1997), the video must be viewed “in open court under the supervision of the trial judge, in the presence of the parties and their counsel.” With no objection by the state or the defense to this procedure, the court summoned the jury and informed them that it could not grant their request. The foreperson responded that the jury would “be asking for [the video] to be replayed multiple times,” then specifically stated that the jury would like to see the first twenty seconds of the video, played at regular speed. After the court complied with that request, the foreperson immediately asked to see it again in slow motion. The court told the jury that it could see the video as many times as it would like, then complied with its request. The foreperson next asked the court to see the portion of the video from the fifteen second mark to the thirty-five second mark, at regular speed. Due to technical difficulties, however, the court and the parties discovered that the video could only be replayed from the beginning. So informed, the foreperson next requested a playback from the start of the recording to the thirty-five second mark. The court complied with that request and asked if the jury wanted to see it again. After the foreperson responded in the affirmative, the video was played three more times before the jury returned to the deliberating room. Shortly thereafter, the jury asked for certain parts of the video to be played back and asked if the first sixty seconds could be isolated and “played in a loop.” The court then adjourned for the day. The next morning, the court played the requested loop for the jury, first at regular speed, then again at one-quarter speed, then one more time at regular speed. The jury deliberated further and then sent several additional requests to the court, including a request to view the video from the twenty-five second mark to the thirty-five second mark. The video was played for the jury as requested, frame by frame, beginning at the twenty-three second mark until thirty seconds. The foreperson then asked to “go back frames,” specifically to the frames at the twenty-seven second to twenty-nine second marks. The frames were played back as requested. The foreperson then asked to “go back one,” and that request was again complied with. The video was then played again as requested by the jury and, at one point, the foreperson asked for the replay to stop so that a snapshot of a particular frame could be made, marked as an exhibit and provided to the jury. The court and counsel agreed that the video was the exhibit that had been introduced into evidence at trial, and that the admission of additional evidence at that point in the trial would be improper. The foreperson further asked if the contrast in the video could be adjusted, but the court indicated that it could not be, because that would alter the evidence that had been admitted. The foreperson then asked that the next frame be replayed and the video was played as requested. Thereafter, the jury returned to the deliberating room to resume its deliberations. The jury did not ask to see the video again.

At no time did the defendant ask that the jury be allowed to view the video in the deliberating room, nor did he take issue with the court’s denial of the jury’s request to do so. Consequently, the defendant concedes, as he must, that he did not preserve the present claim at trial. He nonetheless maintains that his claim is reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as constitutional error, and under the plain error doctrine. We disagree.

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.” (Emphasis in original.) Id., 239-40. We consistently have held that purely evidentiary claims fail the second prong of Golding as they are not of constitutional magnitude. See State v. Wells, 111 Conn. App. 84, 90, 957 A.2d 557 (“[t]he defendant can not raise a constitutional claim by attaching a constitutional label to a purely evidentiary claim or by asserting merely that a strained connection exists between the eviden-tiary claim and a fundamental constitutional right” [internal quotation marks omitted]), cert. denied, 289 Conn. 958, 961 A.2d 423 (2008).

Here, although the defendant’s claim is not a classic evidentiary claim, in that it does not challenge the admission or exclusion of evidence or limitations upon the uses to which admitted evidence lawfully could be put, it concerns the process by which admitted evidence was made available to the jury for its review and consideration in the course of deliberations. Addressed, as it is, to a practical issue of trial management, it does not concern whether the jury had unrestricted access to duly admitted evidence or an unencumbered opportunity to deliberate about such evidence in complete privacy, but how the passive viewing of certain trial evidence was facilitated during deliberations. The jurors were not required by the court’s challenged ruling to discuss the video evidence in the presence of the court and counsel or otherwise to discuss the case or deliberate in public. They were not limited in their access to the evidence, either by express order or by implicit judicial suggestion. Rather, they were invited to return to the courtroom as often as they wished to view and review the video, shown and reshown, in several different ways. We thus conclude that the claim fails under the second prong of Golding.

The defendant also asserts that his unpreserved claim should be reviewed under the plain error doctrine. See Practice Book § 60-5. We disagree. Our Supreme Court has explained: “The plain error doctrine is a rule of reversibility reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . [Thus, an appellant] 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.” (Citation omitted; internal quotation marks omitted.) State v. Roger B., 297 Conn. 607, 618, 999 A.2d 752 (2010).

On the basis of our review of the record, we cannot conclude that the court’s ruling requiring the jury to view the video in the courtroom constituted a manifest injustice. There is nothing in the record to suggest that the jury felt constrained in the manner in which it reviewed the video. Although the defendant contends that the “jury was unable to adequately view and consider a key piece of evidence in the trial,” his claim is belied by the fact that the jury viewed the video, or portions of it, no fewer than twelve times throughout its deliberations, often asking that specific portions be played and at various speeds. There is no indication in the record that the jury was exposed to any undue influence as a result of being required to view the video in the courtroom. The defendant has failed to demonstrate that the court’s denial of the jury’s request to view the video in the deliberating room constituted an obvious error that affected the integrity of the trial. Therefore, the defendant’s attempt to invoke the plain error doctrine in this case must fail.

m

The defendant finally claims that the court erred in failing to instruct the jury as to the intent element of the charge of interfering with a peace officer. The defendant acknowledges that he did not preserve this claim of instructional error at trial, and thus he seeks review of the claim under State v. Golding, supra, 213 Conn. 239-40. Although the defendant’s claim is reviewable under Golding because the record is adequate to review the court’s instructions and a claim that the court omitted an instruction concerning an essential element of the crime is of constitutional dimension, it is well settled that waived claims cannot satisfy Golding’s third prong. See, e.g., State v. Darryl W., 303 Conn. 353, 367-68, 33 A.3d 239 (2012). We conclude that this claim has been waived.

The following additional facts are relevant to the defendant’s claim of instructional error. On the morning of the last day of evidence, defense counsel informed the court that his next witness would not be available to testify until 2 p.m. that afternoon. The court dismissed the jury until that time and, in the interim, held a charge conference with the attorneys in this case. Although the charge conference was not held on the record, on the following morning, the court gave “an outline of what [was] covered ... in the charge conference” and told counsel that, “[i]f there’s anything you want to add or delete, please let me know.” The court then briefly recited the salient points of the conference, stating, inter alia, that “[t]here will be, as part of the charge and on the interfering with an officer, the concept of excessive force . . . .” Following this brief recitation, the court asked counsel if it had “cover[ed] the main points of what we went over,” and both parties responded in the affirmative. When the court instructed the jury, it instructed on intent in general, but omitted any instruction as to the requisite intent for interfering with an officer. At the conclusion of the court’s instructions to the jury, counsel for both parties indicated that they had no exceptions to the instructions as given.

Shortly after it began its deliberations, the jury asked the court to repeat its instruction on the interfering charge. Neither party expressed any objection to the repeated instruction as given. At the beginning of its second full day of deliberations, the jury again asked the court to repeat its instruction on interfering with an officer. The court repeated its previous instruction to the jury. After the court read the instruction, neither party raised an issue with that instruction. Defense counsel then asked to approach the bench and a brief side bar ensued, after which the court excused the jury to resume its deliberations. After the jury exited the courtroom, the court indicated: “Counsel has suggested that maybe that definition of interfering with an officer be typed up.” The court asked if both the state and defense joined in that suggestion. Thereafter, the court monitor transcribed the court’s repeated instruction on the interfering charge. The court again asked if both counsel agreed that the transcript could be given to the jury and both responded in the affirmative. The state asked the court to review the transcript of the instruction for accuracy before it was submitted to the jury. Neither party asked to review the transcript. The transcript of the court’s reinstruction was provided to the jury.

Our Supreme Court has explained: “[W]hen the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.” State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011).

Here, we conclude that defense counsel had a meaningful opportunity to review and address any deficiencies in the court’s instructions, yet failed to do so. Although the record does not reflect whether the court provided counsel with a written copy of its charge before it was given to the jury, the court held a charge conference before instructing the jury and it is discernible from the record that the court’s instructions to the jury were consistent with the instructions as discussed during the charge conference. The defendant did not object, nor take exception, to the court’s initial instruction, or to either of the court’s subsequent reiterations of that instruction; nor did the defendant object to the transcription of its instruction being provided to the jury. Because the court instructed on the interfering charge three times and then submitted a written copy of that instruction to the jury, it is reasonable to infer that defense counsel had knowledge of any potential flaws in the court’s instruction, yet he failed to raise any claims regarding those flaws before the trial court. We thus conclude that defense counsel implicitly waived any objection to the instruction as given.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant also was convicted of carrying a pistol without a permit in violation of General Statutes § 29-35 (a), criminal possession of a firearm in violation of General Statutes § 53a-217 (a) and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The defendant makes no claim on appeal with respect to his conviction of those charges.

       The court enhanced the defendant’s sentence on these counts pursuant to § 53-202k.

       We note that the testimony at trial indicated that it was Vasquez, not Larregui, who stepped between the defendant’s arm and his body. This inconsistency is immaterial in light of the active role of each of the officers in attempting to subdue the defendant.

       Following oral argument, we asked the parties to submit supplemental briefs addressing the unpreserved issue of whether, if the state’s evidence was found sufficient to support the jury’s guilty verdict of three counts of attempt to commit assault in the first degree, the defendant’s conviction of three separate counts of that offense should be upheld, or, instead, should be merged into a conviction of one count of attempt to commit assault in the first degree for which a single sentence should be imposed. In State v. Montgomery, 22 Conn. App. 340, 578 A.2d 130, cert. denied, 216 Conn. 813, 580 A.2d 64 (1990), this court affirmed a conviction of multiple counts of attempt to commit assault in the first degree against different intended victims based upon a single course of conduct found to have strongly corroborated the defendant’s alleged purpose of inflicting serious physical ipjury upon each such victim by means of a deadly weapon. The court in Montgomery explained: “A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore, when two or more persons are the victims of a single episode there are as many offenses as there are victims.” (Internal quotation marks omitted.) Id., 350. That is, the defendant can appropriately be convicted of attempt to commit assault in the first degree with respect to any alleged victim as to whom the state proves beyond a reasonable doubt that, while acting with the intent to cause serious physical ipjury to that victim with a deadly weapon or a dangerous instrument, he engaged in conduct constituting a substantial step in a course of conduct planned to culminate in the commission of that offense against that victim. Here, because the jury reasonably could have found that the defendant, while physically struggling with all three officers at close range throughout their concerted efforts to subdue him, reached quickly into his shorts pocket and dislodged therefrom a cocked and fully loaded five shot revolver, we conclude that the jury reasonably could have found that such conduct strongly corroborated the defendant’s alleged intent to use the gun to shoot each of the three officers in an attempt to overcome the officers’ efforts to subdue him and to escape from their custody and control. For that reason, we affirm the defendant’s conviction of each of the three counts of attempt to commit assault in the first degree.

       We note that Gould, the case upon which the court relied in denying the jury’s request to view the video in the deliberating room, concerned videotaped deposition testimony, not a trial exhibit like the video in this case. See State v. Gould, supra, 241 Conn. 9-15. We need not address the propriety of the court’s rebanee on Gould because no objection to that aspect of the court’s ruling was preserved for our review.

       Even assuming, arguendo, that the defendant’s claim in this regard could be construed as one of constitutional magnitude alleging the violation of his fundamental right to due process, we could not conclude that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial because the jury watched the video repeatedly and the defendant has not proved that he was deprived of a fair trial on the basis that the jury was required to view the video in the courtroom instead of the deliberating room. The defendant’s claim thus would also fail under the third prong of Golding.

       The defendant also suggests that the court’s error in this regard constituted a structural defect rendering the trial fundamentally unfair. Because we address this issue in our plain error analysis, we decline to analyze it further under a different guise.

       As to the content of the charge conference, the entirety of the discussion on the record was as follows:
      “The Court: We discussed inconsistent statements. One inconsistent statement from Officer Csech and one from Officer Larregui. We — there were no requests for lesser included offenses. There will be, as part of the charge and on the interfering with an officer, the concept of excessive force, there will be — I’m going to allow statements concerning consciousness of guilt, one having to do with a statement and another having to do with flight. Those are to be used only on the crimes charged of pistol without a permit and criminal possession of a firearm. There — I have asked the defense whether they wanted a self-defense charge and that was — the answer I got was no, that they don’t wish to have that charge. Does that — does that cover the main points of what we went over?
      “[The Prosecutor]: Yes, Your Honor.
      “[Defense Counsel]: Yes, Your Honor.”