author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. TONY NIEMEYER
    (AC 18590)
    Lavery, Spear and Sullivan, Js.

      Argued May 3
    officially released October 26, 1999

      Pamela S. Nagy, assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Paul Gaetano, assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Tony Niemeyer, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (C). He claims that the trial court improperly (1) admitted the testimony of the state’s expert witness on battered woman’s syndrome without a proper foundation, (2) committed plain error by not giving a limiting instruction, sua sponte, as to the expert’s testimony, (3) denied his motion for judgment of acquittal as to the kidnapping charge and (4) failed to instruct the jury on the specific intent required for kidnapping in the first degree. We affirm the conviction of assault in the first degree and reverse the conviction of kidnapping in the first degree.

The jury reasonably could have found the following facts. The defendant shared an apartment in Derby with his girlfriend, Dawn Siok, and her three children. On February 9, 1996, the defendant left the apartment to go to work on the 3:30 to 11 p.m. shift at Synthetic Products in Stratford. At approximately 11 p.m., Siok observed two individuals, known to her as Wayne and Joel, in her backyard. She invited them in and offered them a beer. The three then smoked a marijuana cigarette, and Joel left soon after. Shortly after midnight, the defendant returned and met Wayne, who was in the process of leaving.

The defendant believed that Wayne and Siok had been having an affair and demanded to know what Wayne was doing in the apartment. Siok started backing into the master bedroom. The defendant began hitting her in the stomach with a closed fist and calling her names. For the next two to three hours, the defendant repeated the cycle of assaulting Siok, leaving the room for a short time and then returning to assault her again. At approximately 3 a.m., the defendant stopped beating Siok and told her to take a shower. Siok showered and then went to sleep in her daughters’ bedroom.

Siok remained in bed for most of that day. She told the defendant in the morning that she needed to see a doctor and asked him in the afternoon to bring her to a hospital. At approximately 10:30 p.m., the defendant called an ambulance to take Siok to a hospital, but only on the condition that she promise not to have him arrested.

Winston Reed, an emergency room physician, examined Siok. He observed bruising on her left arm, and on the upper third of her chest and left ear. Siok’s eyes were black and blue, and she complained of severe pain in the upper portion of her abdomen. Reed contacted Guy Nicastri, chief surgeon at the hospital, and asked him to examine Siok. Nicastri decided to operate and found that Siok was bleeding internally from a severed artery to her liver.

The defendant remained with Siok during most of her time at the hospital. A few days after being admitted, however, Siok was alone with her mother and sisters and told them that the defendant had assaulted her. On February 15,1996, she told the police of the assault, and the defendant was subsequently arrested. Following a jury trial, the defendant was convicted of one count of assault in the first degree and one count of kidnapping in the first degree. This appeal followed.

I

The defendant first claims that the trial court improperly allowed the state to present expert testimony about battered woman’s syndrome. He asserts that (1) because there was no evidence that Siok was a battered woman, the testimony was irrelevant, (2) the testimony bolstered Siok’s credibility and, thus, invaded the province of the jury and (3) the prejudicial effect of the evidence outweighed its probative value. We disagree.

A

We first consider the defendant’s claim that the admission of expert testimony on battered woman’s syndrome was improper because there was no evidence that Siok was a battered woman and, therefore, the testimony was irrelevant.

Certain additional facts are necessary to our resolution of this claim. During cross-examination, defense counsel questioned Siok about several inconsistencies between her testimony and her conduct. Siok had testified that she was “deathly afraid” of the defendant, but on cross-examination revealed that she had moved in with him despite this fear and also had contacted him despite the existence of a protective order. Following the cross-examination, the state disclosed that it would present the expert testimony of Evan Stark, a sociologist, on the subject of battered woman’s syndrome.

The defendant filed a motion in limine to preclude Stark’s testimony. After conducting a hearing outside of the presence of the jury, the trial court allowed the state to present Stark’s testimony solely for the purpose of rehabilitation with respect to matters that were raised on cross-examination of Siok.

“Expert testimony is admissible if (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . [Ejvidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. . . . [T]he test of relevancy is not whether the answer sought will elucidate any of the main issues, but whether it will to a useful extent aid the court or jury in appraising the credibility of the witness and in assessing the probative value of the direct testimony.” (Citations omitted; internal quotation marks omitted.) State v. Battista, 31 Conn. App. 497, 513, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A. 2d 696 (1993). Our Supreme Court, has held that expert testimony concerning battered woman’s syndrome is relevant “to describe the behavior patterns typically ascribed to battered women’s syndrome.” State v. Borrelli, 227 Conn. 153, 174, 629 A.2d 1105 (1993). “Of course, expert testimony, like all other evidence, must be relevant to be admitted. State v. Wade, 96 Conn. 238, 248, 113 A. 458 (1921). Expert testimony on the subject of battered woman’s syndrome is not relevant unless there is some evidentiary foundation that a party or witness to the case is a battered woman, and that party or witness has behaved in such a manner that the jury would be aided by expert testimony providing an explanation for the behavior.” State v. Borrelli, supra, 172 n.15. Therefore, the claims that the expert testimony should not have been admitted because there was no evidence that Siok was a battered woman and because the testimony was irrelevant are one and the same.

Here, the defendant claims that the state must present evidence that Siok had been battered at least twice before she can be classified as a battered woman. In support of this proposition, the defendant cites several cases from other jurisdictions and a book by Lenore Walker, a psychologist and researcher who has written extensively on battered woman’s syndrome. The defendant fails, however, to cite any Connecticut case law establishing such a proposition as the law in this jurisdiction and we decline to adopt one now. While Walker writes that at least two cycles of abuse are required for the victim to be classified as a battered woman, Stark asserts that one cycle can be sufficient. In essence, the defendant is asking us to settle a dispute between two experts in the field of battered woman’s syndrome. As stated in Borrelli, before testimony about battered woman’s syndrome can be relevant, an evidentiary foundation must first be established that the victim is a battered woman. Id. The state clearly presented evidence that Siok was battered at least once by the defendant. Whether sufficient abuse occurred to constitute battered woman’s syndrome in the victim is not an evidentiary foundation question, but rather is a question of evidentiary weight.

It is important to note that the expert may testify only as to the general behavior of victims of domestic abuse. He may not give an opinion as to whether this particular victim, told the truth or whether this particular victim in fact suffered from domestic abuse. See id., 173. These questions are solely within the province of the jury. See State v. Ramos, 53 Conn. App. 720, 724, 732 A.2d 197 (1999). Stark’s testimony was offered to assist the jury in understanding whether Siok’s conduct was consistent with the pattern and profile of a battered woman. See State v. Borrelli, supra, 227 Conn. 174.

B

Our Supreme Court’s decision in State v. Freeney, 228 Conn. 582, 637 A.2d 1088 (1994), controls the defendant’s claim that Stark’s testimony bolstered Siok’s credibility and therefore invaded the province of the jury when he responded to hypothetical questions posed by the state. In Freeney, our Supreme Court held that it was not impermissible for an expert witness to respond to hypothetical questions about the behavior of sexual assault victims for the purpose of establishing that the victim’s behavior was generally consistent with that of such victims. Id., 592-93.

In Freeney, Barbara Moynahan, a psychotherapist, was allowed to answer hypothetical questions that tracked the testimony of the victim. She was “directed to assume that the details of the questions were established, and then she was asked if each individual reaction of the victim was ‘consistent with a typical reaction to physical and sexual assault trauma.’ Moynahan answered that each individual reaction of the victim as set out in the hypothetical questions was indeed ‘consistent’ with a typical victim reaction.” Id., 596-97 (Berdon, J., dissenting). Justice Berdon, in a dissenting opinion, wrote that while Moynahan did not directly testify that the witness was credible, “the inevitable effect of her testimony was to vouch for the credibility of the victim’s story, and therefore vouch for the credibility of the victim herself.” Id., 597-98.

In the present case, Stark was asked four hypothetical questions that tracked the facts giving rise to the assault and kidnapping charges. The defendant, in effect, asks us to adopt Justice Berdon’s dissent by holding that these questions were improper. It is axiomatic, however, that we cannot rule in accordance with a dissent that is contrary to a controlling majority opinion of our Supreme Court. See, e.g., State v. Sivri, 46 Conn. App. 578, 586, 700 A.2d 96, cert. denied, 243 Conn. 938, 702 A.2d 644 (1997) (declining to adopt dissenting view of Supreme Court holding). As in Freeney, “[t]he distinction between testimony about the general behavior of victims and an opinion as to whether the instant victim is telling the truth is critical.” State v. Freeney, supra, 228 Conn. 592. Stark did not give an opinion as to whether Siok had told the truth or whether she in fact suffered from battered woman’s syndrome. See id., 592-93. Stark’s expert testimony could have assisted the jury substantially in understanding whether Siok’s conduct was consistent with the pattern and profile of a battered woman. The testimony did not invade the province of the jury in determining the credibility of Siok.

C

The defendant’s last claim on this issue is that Stark’s testimony was more prejudicial than it was probative. We disagree.

“The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Wargo, 53 Conn. App. 747, 761, 731 A.2d 768, cert. granted on other grounds, 250 Conn. 922, 738 A.2d 662 (1999). As we have already concluded, Stark’s testimony could have assisted the jury substantially in understanding whether Siok’s conduct was consistent with the pattern and profile of a battered woman. The court reasonably could have concluded that the probative value of this evidence outweighed its prejudicial effect and, therefore, we are not persuaded that the court abused its discretion.

II

At trial, the defendant did not request a limiting instruction regarding the use of Stark’s testimony, but now claims that the failure of the trial court to instruct the jury, sua sponte, regarding the permissible use of the testimony constitutes plain error. There is no merit to this claim.

Practice Book § 60-5 (formerly § 4061) provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.

“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. . . .” “[Our Supreme Court] consistently [has] stated that review under the plain error doctrine is 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.” (Internal quotation marks omitted.) State v. Stephens, 249 Conn. 288, 291, 734 A.2d 533 (1999). While the defendant cites to several cases in which a limiting instruction has been given, he fails to provide any authority for the proposition that the court, sua sponte, must give a limiting instruction. We decline to consider this claim because it fails to meet the stringent standard required for plain error review.

Ill

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal at the close of the state’s case. The defendant did not present any evidence and renewed this motion prior to sentencing. He claims that the evidence was insufficient to support the conviction of kidnapping in the first degree. We agree and reverse the judgment of conviction.

“We employ a two part analysis in reviewing the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Faria, 47 Conn. App. 159, 186-87, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998).

General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually ... or (C) terrorize him or a third person . . . .” General Statutes § 53a-91 provides in relevant part: “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. ... (2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by . . . (B) using or threatening to use physical force or intimidation. . . .”

As the defendant points out, there simply was no evidence from which the jury reasonably could infer that he restrained or abducted Siok. Viewing the evidence in the light most favorable to the state, the jury reasonably could have found the following. The defendant and Siok shared an apartment. When the defendant arrived home and became angry at finding Wayne in his apartment, Siok started backing into the master bedroom. The defendant demanded to know what Wayne was doing in the apartment and hit her in the stomach with a closed fist while calling her various names. For the next two to three hours, the defendant repeated the cycle of assault, leaving the room for a short time and then returning to assault her again. At approximately 3 a.m., the defendant stopped beating Siok and told her to take a shower. Siok showered and then went to sleep in her daughters’ bedroom. Siok remained in bed for most of that day. She told the defendant in the morning that she needed to see a physician and asked him in the afternoon to take her to a hospital. At approximately 10:30 p.m., the defendant called an ambulance to take Siok to a hospital, but only on the condition that she promise not to have him arrested.

There was no evidence that the defendant restricted Siok’s movement in any manner. The defendant did not force Siok into the master bedroom, tell her to remain there, prevent her from leaving the room or threaten her with violence if she left. Siok did not testily that she tried to escape and was prevented from doing so. She did not testify that she was afraid of the defendant and for this reason did not try to escape. Cf. State v. Drake, 19 Conn. App. 396, 400-401, 562 A.2d 1130 (1989).

Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the state presented insufficient evidence that the defendant restrained or abducted Siok. Therefore, the trial court improperly denied the defendant’s motion for judgment of acquittal. Because we are reversing the kidnapping conviction, we need not reach the defendant’s last claim.

The judgment is affirmed as to the conviction of assault in the first degree; the judgment is reversed as to the conviction of kidnapping in the first degree and the case is remanded with direction to render a judgment of acquittal as to that count.

In this opinion the other judges concurred.

       The state’s questions and Stark’s responses in relevant part were as follows:
      “[Assistant State’s Attorney]: Assume that a woman is in a four year relationship with a physically stronger man. They have two children in common and they’ve lived together on and off. Assume that this woman had been punched, assaulted and verbally degraded by this man in the apartment for a period of time, meaning hours. ... He orders her to take a shower. She takes a shower. She complies with his wishes. Is this compliance and submission behavior that is consistent with behavior of a battered woman in that situation?
      “[Witness]: Yes, of course. . . .
      “Q. Can you explain why, please?
      “A. Well, which part of it in particular, counselor, do you want me to explain?
      “Q. The submission and compliance.
      “A. You don’t have to be a battered woman. I mean, if somebody assaulted me severely and then told me to taire a shower, I would take a shower. ... I think the situation of danger is such and, as you described it, is so proximate, so right there, and presumably in the hypothetical you posed to me the person who hurt me was still in the room and presumably is bigger and could hurt me again. A person is going to be afraid, is going to do what they are told.
      “Q. Assume further that this assault caused life-threatening injuries to the victim. And assume that this woman needed medical attention and that this man did not get her the medical attention she needed until some twenty-two hours after the assault began. Is it consistent with a battered women’s syndrome to abide by this man’s denial of medical assistance and not to seek it on her own?
      “A. Well, certainly. If you remember the case of Hedda Nussbaum, it was almost two days that she had a ruptured spleen in the apartment before she was allowed to go to the doctor. By the time she got there, she was almost dead. So that’s very typical.

        “Q. Assume further that this man is arrested for the assault. As a condition of his bond, he is ordered to have no contact with this victim. Assume further, doctor, that this man gets out of jail and that the victim and the defendant . . . have contact with each other. The victim at times initiates contad with this man after this incident. Is that behavior consistent with the behavior of a battered woman’s syndrome?

        “A. Yes, it is. It exhibits the fact, in my opinion—now there may be other explanations for this—that she feels so intimidated and so frightened that she shifted her focus from escape to survival and then being with the guy again—it may not feel to us as helpless—but it feels to her that she's safer in his presence and knowing where he is. I’ve had women who, after they get protective orders and the guy’s arrested, they move down the block from the guy and it drives everybody crazy who’s trying to help them. And she explains—that she feels safer knowing where he is, keeping an eye on him. So moving in is even a better way, from her standpoint, of keeping an eye on him, being able to control his behavior. See, she believes only she can control his behavior. She doesn’t believe anybody else, the police or the courts, can effectively do that for her.
      “Q. Why is that, doctor?
      “A. Because she’s been so severely hurt she can’t take a chance. Maybe they'll arrest him, maybe they’ll take him away, but in the time between that he might, almost, kill her again.
      “Q. Even assume further that she even claims she’s deathly afraid of him.
      “A. Again, I think it's because she’s deathly afraid that she does this. It's because she feels so much anxiety about him, what he’s going to do, that she does this. I know it’s very hard for people who haven’t had these experiences to understand. . . . You see this with kids in school systems all the time. . . . They get into fights against people they know are going to hurt them a lot just because they want to get it over with.
      “Q. Assume further in this situation that this victim is hesitant to call for help, even when she’s apparently free to do so. Is that consistent with—

        “A. Well, that’s the learned helplessness I was talking about earlier, counsel.
      “Q. Gan you explain that again? Why the victim in the hypothetical that I have given you would be so hesitant to call for help when she's apparently free to do so?
      “A. Well, assuming the batterer is not present at the time, in her mind his power is much greater than it would seem to be to us. We would think she would seize the first opportunity to call the police or call the hospital when in fact, when he leaves, she doesn’t feel any safer than when he’s present. So she's afraid of what the consequences would be if she does call the hospital or call the police. Even if she does call them, what’s going to happen then? Are they going to identify him? Are they going to arrest him? Is she going to be safe or is he just going to get more upset and hurt her worse? So the fact that he’s present or not present is not going to change her behavior.
      “The other thing, which is consistent with learned helplessness, is that she simply doesn’t believe anybody can help her effectively. They either won’t believe her or they’ll find something else about her that will discredit her story, or he’ll charm them into believing that he’s right and nothing serious has happened. And then when she leaves, wherever it is she leaves the hospital or police station, something worse will happen to her.
      “Q. Even though she may be in the company of a police officer, would that change?
      “A. Well, what’s interesting about battered women is that when they’re in the company of help providers or counselors, they actually become more anxious because what they’re afraid of more than anything else, what [the abuser has] threatened her with more than anything else, is what will happen if there’s disclosure. So when [victims] think the police might find out, that’s when their anxiety really gets extraordinary. They’ll say anything. I’ve had women confess [to police] to crimes that they’ve never committed simply because they didn’t want the batterer to hurt them.”


source: Caselaw Access Project

license: Public Domain

text:
    CARMELO RIVERA v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER ET AL.
    (AC 16976)
    Foti, Spear and Dupont, Js.

      Argued February 26
    officially released October 26, 1999

      Louis B. Blumenfeld, with whom, on the brief was William J. Scully, for the appellants (named defendant et al.).

      David W. Bush, for the appellee (plaintiff).
   Opinion

SPEAR, J.

Two of the defendants appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff on his medical malpractice claim. The defendants’ principal claim is that the court, relying on General Statutes § 51-241, improperly limited the defendants to a total of four peremptory challenges on the ground that they had a unity of interest. The defendants also claim that the court improperly precluded certain evidence regarding the plaintiffs felony record. We agree that the court improperly limited the number of challenges and reverse the judgment and remand this case for a new trial.

The following facts and procedural history are relevant to this appeal. In June, 1992, the plaintiff, Carmelo Rivera, brought a medical malpractice action against Saint Francis Hospital and Medical Center (Saint Francis) and thirteen physicians, alleging various acts of malpractice from September, 1985, through January, 1991. Several months after filing the complaint, the plaintiff withdrew the action against ten of the physicians. The plaintiff proceeded to trial against Saint Francis and three physicians, Timothy Sherry, Lori Greenwald and Greg Lareau.

Prior to the commencement of jury selection, the defendants requested four peremptory challenges for each of the four defendants. The court denied the request for the reasons that “the interests of the defendants were fundamentally congruent; they were all represented by the same lawyer and there were no cross claims against each other. Accordingly, [the trial court] found that there was a unity of interest.”

The plaintiff withdrew the claims against the defendant bureau prior to the verdict. The jury returned a verdict in favor of the defendant Sherry and against the defendants Greenwald and Saint Francis. This appeal followed.

I

The plaintiff first claims that the record is not adequate to review the defendants’ claim that the trial court improperly limited the number of peremptory challenges available to the defendants. The plaintiff claims that the court’s reasoning is simply conclusory and does not reveal the basis for its decision. We disagree.

It is axiomatic that the appellant has the burden of providing a record that is adequate for review. Practice Book § 4007, now § 61-10. We conclude that the record is adequate because we are able to discern the basis for the court’s decision. Accordingly, we will review the defendants’ claim.

Two cases from this court govern the resolution of this issue, Glass v. Peter Mitchell Construction Leasing & Development Corp., 50 Conn. App. 539, 718 A.2d 79, cert. granted, 247 Conn. 938, 723 A.2d 317 (1998) (appeal withdrawn July 6, 1999), and Beach v. Regional School District Number 13, 42 Conn. App. 542, 682 A.2d 118, cert. denied, 239 Conn. 939, 684 A.2d 710 (1996). “ [T]he decision of whether parties share a unity of interest lies in the trial court’s discretion. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. ” (Citation omitted; internal quotation marks omitted.) Glass v. Peter Mitchell Construction Leasing & Development Corp., supra, 543. “Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. ... It goes without saying that the term abuse of discretion does not imply a bad motive or wrong purpose but merely means that the ruling appears to have been made on untenable grounds.” (Internal quotation marks omitted.) Turk v. Silberstein, 48 Conn. App. 223, 225-26, 709 A.2d 578 (1998). We conclude that the court acted improperly because the interests of the several defendants were not substantially similar and, therefore, there was no unity of interest.

The plaintiff claims that there were no independent legal claims against Saint Francis and that the hospital was sued only under the doctrine of respondeat superior. This is so. The defendant physicians, however, were not agents or servants of each other. They were all employed by Saint Francis, but there was no unity of interest among or between them.

“Because the unity of interest issue was one of first impression for the Beach court . . . that court examined the legislative history of § 51-241 and found specific examples of where there may be substantially similar interests among parties. These examples included (1) the interest of an agent and principal, when agency is not denied, (2) the interest of a motor vehicle driver and motor vehicle owner when permission to use the vehicle is not in dispute, (3) where multiple plaintiffs were passengers injured in the same motor vehicle accident and (4) in an instance of respondeat superior where the employer is liable for the employee’s negligent activities. The legislative history cited by the Beach court also discusses an example involving an instance of medical malpractice, in which no unity of interest could be found because there were separate issues of liability for the hospital and the medical professionals involved.” (Citation omitted.) Glass v. Peter Mitchell Construction Leasing & Development Corp., supra, 50 Conn. App. 545-46. We conclude that there are separate issues of liability for each of the physician defendants and, therefore, there is no unity of interest among them.

The plaintiff underwent surgery at Saint Francis in September, 1985, May, 1990, November, 1990, and January, 1991. There was no surgical procedure in which all three physicians were allegedly involved. Sherry was the only one of the three physicians who was involved in the 1985 surgery. Sherry and Greenwald were involved in the May, 1990 surgery, in which Lareau was not a participant. Greenwald and Lareau participated in the November, 1990 surgery. Sherry was not involved in the 1991 surgery, although Greenwald and Lareau participated.

The plaintiff argues that the claims against each physician are identical, the defenses are identical and the same attorney represented all four defendants. We first note that the claims are not identical because of the differing dates on which each physician was allegedly involved in surgery. Moreover, in Beach we stated, “The fact that the plaintiffs complaint states the same counts of negligence against each defendant is not dispositive.” Beach v. Regional School District Number 13, supra, 42 Conn. App. 550. The Beach court went on to state: “The special defenses each defendant filed are not dis-positive of whether a unity of interest exists among the defendants.” Id., 551. “The jury might determine that each party was negligent, but each in a separate and distinct m,anner .... The liability of each, therefore, could differ.” (Emphasis in original.) Id., 550-51.

With respect to each surgical procedure, there are a number of allegations against the physicians involved. Many of the allegations with respect to each surgery involved claims that the physicians failed to remove “pieces of felt pledget or felt gauze from the plaintiffs body . . . when they knew or should have known of their presence,” and afailure to keep “an accurate count of all pledgets and gauze used during the operationfs].” The physicians’ interests may have become antagonistic with respect to who was responsible for counting and keeping track of these items in each surgery.

It is axiomatic that a plaintiff need not prove every single specification of negligence in a complaint where there are several allegations of negligence. If the plaintiff proves one specification of negligence and that it was a proximate cause of the injuries and damage, the plaintiff can recover. Because different physicians attended in different surgeries, their interests in the various specifications were not in unity. For example, a specification might be proven against one physician without proving that it was a proximate cause of the injuries, and another specification as against a different physician might be proven to be the proximate cause of the injuries.

On the basis of our review of the entire record, we are persuaded that the court should not have limited the defendants to four peremptory challenges. This conclusion necessitates a new trial. We are aware that the two remaining defendants, Saint Francis and Greenwald, will have a unity of interest at the new trial so that only four peremptory challenges will be allowed. A new trial is necessary, however, because the use of the challenges at the original trial can never be reconstructed. If each physician had had four challenges, a wholly different juiy panel might have been selected.

The plaintiff claims that because none of the accepted jurors was challenged for cause, there was no harm even if the court’s ruling was improper in limiting the number of challenges. Harm is implicit in the circumstances here. The four defendants, limited to a total of four challenges, had to confer and agree on what to do and to exercise peremptory challenges sparingly. There may well have been prospective jurors who could not have been successfully challenged for cause, but who might have been excused by a party using a peremptory challenge. Such challenges, unless prohibited, are precisely for the purpose of excusing prospective jurors when no cause can be stated.

11

The defendants’ next claim is that they should have been allowed to inquire into whether the plaintiff had been convicted not only of possession of narcotics, but possession of narcotics with intent to sell. Pursuant to the plaintiffs pretrial motion in limine to preclude any mention of his felony record, the court ruled that evidence would be allowed that the plaintiff had been convicted of “felonies relating to narcotics and controlled substances.” We will address this issue because it is likely to arise in a new trial.

On direct examination of the plaintiff, his counsel elicited the fact that the plaintiff had been convicted of felonies related to “the possession of narcotics.” The defendants wanted to inquire as to the element of intention to sell, but the trial court precluded that inquiry.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. State v. Castonguay, 218 Conn. 486, 497, 590 A.2d 901 (1991); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). [T]he trial court has broad discretion in ruling on the admissibility ... 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. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . State v. Coleman, 241 Conn. 784, 789, 699 A.2d 91 (1997). Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990) . . . State v. Beliveau, 237 Conn. 576, 592, 678 A.2d 924 (1996); State v. Colton, 227 Conn. 231, 260, 630 A.2d 577 (1993), on appeal after remand, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996).” (Internal quotation marks omitted.) State v. Smith, 49 Conn. App. 252, 257-58, 714 A.2d 1243, cert. denied, 247 Conn. 914, 722 A.2d 809 (1998).

Here, the trial court did not preclude all inquiry into the plaintiffs felony record. The court disallowed only the “intent to sell” aspect because the prejudice would outweigh the probative value of the evidence. “ ‘ “The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion.” ’ ” State v. Wargo, 53 Conn. App. 747, 761, 731 A.2d 768, cert. granted on other grounds, 250 Conn. 922, 738 A.2d 662 (1999). We cannot conclude that such a balancing of prejudice and probative value was an abuse of discretion under the circumstances here.

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

In this opinion the other judges concurred.

       The plaintiff withdrew his claim against one defendant, Greg Lareau, prior to the verdict, and the jury returned a verdict in favor of another defendant, Timothy Sherry. The defendants on appeal are Saint Francis Hospital and Medical Center and Lori Greenwald.

       General Statutes § 51-241 provides: “On the trial of any civil action to a jury, each party may challenge peremptorily three jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this section, a ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.”

       We decline to review the defendants’ claim that they were literally “ambushed” by the introduction of certain department of correction records during trial that had not been disclosed previously. Obviously, the defendants now have an opportunity to prepare for the introduction of those records before a new trial is held. Therefore, this claim will not arise in the new trial.

         We are not concerned here with whether the defendants had antagonistic defenses. This is unlike Beach where the plaintiff claimed that the fact that the defendants shared an attorney meant that there was a unity of interest because otherwise the attorney would be violating rule 1.7 of the Rules of Professional Conduct, prohibiting conflicts of interest. The Beach court disposed of that claim by stating that the plaintiff had no standing to argue a violation of the rule and even where the parties did not have a unity of interest the rule would not necessarily be violated. Beach v. Regional School District Number 13, supra, 42 Conn. App. 551.

        Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny rest riot peremptory challenges based on improper factors such as race and gender.


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. GARY POTTS
    (AC 18964)
    Foti, Lavery and Landau, Js.
    Argued June 8
    officially released October 26, 1999

      Elizabeth M. Inkster, assistant public defender, for the appellant (defendant).

      Bruce R. Lockwood, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington,
      state’s attorney, and Cecilia Wiederhold, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Gary Potts, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a. On appeal, the defendant alleges that the evidence was insufficient to prove beyond a reasonable doubt that he intended to cause the death of the victim. He also claims that the trial court’s instructions to the jury were improper as to (1) extreme emotional disturbance and (2) reasonable doubt and the presumption of innocence. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. On October 30, 1994, the victim, Tyshana King, was living in New Haven with her one year old daughter, Tynette. The defendant was the father of the child and the boyfriend of the victim. The defendant came to visit early in the evening and began to argue with the victim, who was speaking on the telephone. He wanted to know with whom she was speaking and believed that she was involved with another man. When she refused to tell him, he hit her on the side of her head with his beeper and then in the face with a clothes iron. When the victim attempted to call 911, he took the telephone from her and hit her on the head with it. He refused to leave and stated, “She don’t love me,” and “I’ll kill her, I’ll kill her, I’ll kill myself, too.”

The defendant then went into the pantry, rummaged through the silverware, selected a black-handled steak knife with a four and three-quarter inch, silver-colored blade, serrated on one side, and returned to where the victim was standing. The victim’s cousin, Nadine King, was standing between the defendant and the victim, who was holding the child. The defendant suddenly reached around Nadine King and plunged the knife into the victim’s neck, penetrating at least two and one-half inches and lacerating her internal jugular and subcla-vian veins.

When the police arrived, the defendant admitted stabbing the victim and stated that he “didn’t want nobody else to be with her.” The victim died on November 1, 1994. Additional facts will be set forth as necessary.

I

The defendant concedes that the evidence was sufficient to establish beyond a reasonable doubt that he had, in fact, caused the victim’s death. He claims, however, that the evidence was insufficient to demonstrate beyond a reasonable doubt that he intended to cause her death. We do not agree.

In reviewing a sufficiency of the evidence claim, we must 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994).

“It is well settled that in reviewing a defendant’s challenge to a verdict based on insufficient evidence, we defer to the jury.” State v. Brunori, 22 Conn. App. 431, 434-35, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). “We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). Our Supreme Court has stated that “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983).

It is well settled that the jury must find every element proven beyond a reasonable doubt to find the defendant guilty of the charged crime. State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997). The defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that he intended to kill the victim. “The specific intent to kill is an essential element of the crime of murder. To act intentionally, the defendant must have had the conscious objective to cause the death of the victim. . . . Intent is generally proven by circumstantial evidence because 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. . . . Furthermore, [ijntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, supra, 231 Conn. 126-27.

In this case, we conclude that the jury reasonably could have found that the defendant intended to kill the victim. Before the killing, the defendant stated that he would kill her. He selected a weapon, a steak knife with a serrated edge, that was well over four inches in length. He reached around another person and stabbed the victim in the neck, with some force, driving the blade at least two and one-half inches into her neck. The jury also had before it evidence of the violence that occurred before the killing and the defendant’s statement after the killing from which a motive, i.e., jealousy, could be inferred. We conclude that the cumulative effect of the evidence, which the jury obviously accepted, was more than sufficient to allow it to find beyond a reasonable doubt that the defendant intended to cause the victim’s death.

II

The defendant next argues that the trial court’s instruction on emotional disturbance was improper because it was “objectively based.” We do not agree.

The defendant submitted a request to charge on extreme emotional disturbance that was subjectively based. The court, however, instructed as follows: “If you find that the defendant acted under extreme emotional distress, as I have defined it, you must also find, for the affirmative defense to be established, that there was a reasonable explanation or cause for this disturbance, the reasonableness of which must be determined from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as the defendant believed them to be. Again, the reasonableness of the explanation or excuse for the defendant’s conduct under extreme emotional distress must be determined from the viewpoint of a reasonable person in the defendant’s situation under the circumstances as he believed them to be.” (Emphasis added.)

This matter is controlled by our Supreme Court’s decisions in State v. Ortiz, 217 Conn. 648, 654, 588 A.2d 127 (1991), and State v. Raguseo, 225 Conn. 114, 127-28, 622 A.2d 519 (1993). We are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. State v. Cole, 50 Conn. App. 312, 320, 718 A.2d 457, cert. granted on other grounds, 247 Conn. 937, 722 A.2d 1217 (1998). We conclude, therefore, on the basis of Supreme Court precedent, that the instruction was proper.

Ill

The defendant’s final claims is that the trial court improperly instructed the jury on reasonable doubt and the presumption of innocence. Specifically, he argues that the instruction that the state’s burden to prove guilt beyond a reasonable doubt is a “rule of law [which] is made to protect society and persons whose guilt has not been established beyond a reasonable doubt, not to protect those whose guilt has been so established” impermissibly diluted the presumption of innocence and the reasonable doubt standard in violation of the defendant’s rights to due process and a jury trial. We do not agree.

The defendant seeks review of this unpreserved claim pursuant to State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). This claim is controlled by our Supreme Court’s decision in State v. Schiappa, 248 Conn. 132, 168, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999) (en banc), in which the court held that the use of a similar charge, although disfavored, did not amount to a constitutional violation.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       Under General Statutes § 53a-54a (a), “in any prosecution [for the crime of murder], it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be . . . .”


author: DALY, J.

text:
    STATE OF CONNECTICUT v. FRANK BELL
    (AC 17999)
    O’Connell, C. J., and Sullivan and Daly, Js.
    Argued June 8
    officially released October 26, 1999

      Richard E. Condon, Jr., assistant public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, wdth whom, on the brief, were Mark S. Solak, state’s attorney, and Debra Hughes, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Frank Bell, appeals from the judgments of conviction, rendered after a trial to the court, of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3), criminal trespass in the first degree in violation of General Statutes § 53a-107 and falsely reporting an incident in violation of General Statutes § 53a-180. The defendant claims that (1) he was improperly convicted on the harassment charge because his telephone calls were protected speech, (2) § 53a-183 (a) (3) is unconstitutionally vague as applied to him, (3) the evidence was insufficient to support his conviction for harassment, (4) the evidence was insufficient to support his conviction for criminal trespass and (5) the evidence was insufficient to support his conviction for falsely reporting an emergency. We affirm two of the judgments and reverse the judgment of conviction of criminal trespass in the first degree.

The following facts are necessary for a proper resolution of this appeal. The defendant and Evelyn Grajaies, although unmarried, lived together and had two children. Grajaies also had a child from a previous relationship, who lived with her and the defendant. At some point, the couple’s relationship began to deteriorate. As a result, in April, 1996, Grajaies enrolled the children in the family preservation program of Quinnebaug Valley Youth and Family Services (program).

On April 2, 1996, the defendant began calling the program to express concern about it. Between April and August, 1996, the defendant made approximately forty-five telephone calls to various employees of the program. Thirty-six of the calls were voice mail messages that were recorded. In these messages, the defendant criticized employees and used language that made them feel threatened with bodily harm to themselves or to their families. Moreover, the defendant used language that the employees construed to mean that he could cause them to be fired, would embarrass them publicly or that they would be subject to divine justice. On September 11, 1996, the defendant was charged with harassment.

On November 4, 1996, the Superior Court entered an order requiring the defendant to vacate the apartment he shared with Grajaies and enjoining him from entering or remaining in the building anytime after November 11, 1996.

On November 17, 1996, the defendant went to the apartment complex. Grajaies saw him standing near the apartment abutting her apartment. Their children were in the yard of the apartment complex. When the defendant called to his children for a hug, Grajaies ordered him to leave and told him that he was violating the court order. She then entered her apartment and called the police, at which point the defendant left. The defendant later was charged with criminal trespass.

On December 16,1996, the defendant called Detective John H. Wackerman of the Willimantic police department and requested that the police send an officer to Grajales’ residence because he believed she was not giving the children an antibiotic that was prescribed for them. In response, Wackerman told the defendant to contact the department of children and families (department) with his complaint, and the defendant responded by hanging up the telephone. Wackerman then called the department and spoke with social worker Jeffrey Cushner, who said that after seeing the children earlier that day, he did not feel that there was a medical emergency with them.

About one hour later, the defendant again called the police. Wackerman, hearing the call on his radio, drove to meet with the defendant. The defendant told him that Grajales’ failure to give the children the antibiotic was a “medical emergency.” Believing that the defendant was making his second false report of the day, Wackerman arrested him.

I

The defendant first claims that the trial court improperly convicted him of harassment in the second degree because his telephone calls to the program were protected speech. Specifically, the defendant claims he was exercising his federal first amendment right to speak on matters of public concern, since his calls related to the safety and welfare of children. Alternatively, the defendant claims that his speech is protected because it “did not fall into an unprotected category.” We disagree.

Conceding that his claim is unpreserved, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review his claim pursuant to Golding because the record is adequate for review and the claim is of constitutional magnitude. The defendant’s claim, however, fails under the third prong of Golding.

General Statutes § 53a-183 (a) provides in relevant part that “[a] person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

“The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment. . . . Overbroad statutes, like vague ones, inhibit the exercise of constitutionally protected conduct. . . . A party has standing to raise an overbreadth claim, however, only if there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court . . . .” (Citations omitted; internal quotation marks omitted.) State v. Snyder, 49 Conn. App. 617, 623, 717 A.2d 240 (1998).

The appellate session of the Superior Court previously rejected a claim that § 53a-183 (a) (3) is facially overbroad. “As venerated a place as freedom of speech may hold in the constitutional scheme, reasonable regulation of the place and manner of its exercise has been upheld consistently. . . . Where the means of communication involves an intrusion upon privacy, the right of free expression must be balanced against the right to be let alone. ... A telephone is not a public forum where, in vindication of our liberties, unreceptive listeners need to be exposed to the onslaught of repugnant ideas. . . . The overbreadth principle is not violated by the unrestricted scope of the messages which the statute may ban because it is the manner and means employed to communicate them which is the subject of the prohibition rather than their content. The statute is not flawed because a recital on the telephone of the most sublime prayer with the intention and effect of harassing the listener would fall within its ban as readily as the most scurrilous epithet. The prohibition is against purposeful harassment by means of' a device readily susceptible to abuse as a constant trespasser upon our privacy. That words may be the instrument of annoyance does not insulate such wrongful conduct from criminal liability.” (Citations omitted.) State v. Anonymous (1978-4), 34 Conn. Sup. 689, 696, 389 A.2d 1270 (1978).

In a decision denying the petition filed by the defendant in Anonymous (1978-4) for a writ of habeas corpus, the United States Court of Appeals for the Second Circuit also determined that § 53-183 (a) (3) is not unconstitutionally overbroad. Gormley v. Director, Dept. of Probation, 632 F.2d 938, 942 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980). “Clearly the Connecticut statute regulates conduct, not mere speech. What is proscribed is the making of a telephone call, with the requisite intent and in the specified manner.” (Emphasis in original.) Id., 941-42. “The asserted overbreadth of the Connecticut statute is circumscribed by the elements of the offense it proscribes. To run afoul of the statute, a telephone call must be made not merely to communicate, but with intent to harass, annoy or alarm and in a manner likely to cause annoyance or alarm. Whether speech actually occurs is irrelevant, since the statute proscribes conduct, whether or not a conversation actually ensues.” (Internal quotation marks omitted.) Id., 942.

We conclude that the defendant’s telephone calls were not protected speech under the first amendment. Although the defendant claims that the statute prevents him from speaking out on matters of public concern, it merely prohibits purposeful harassment by use of the telephone and does not involve first amendment concerns. The statute proscribes conduct, not the content of the telephone calls. The risk that the statute will have a chilling effect on the exercise of free speech is therefore remote compared with the prevalent misuse of telephones to harass others and to invade their privacy.

II

The defendant’s second claim is that § 53a-183 (a) (3) is unconstitutionally vague as applied to him because “he reasonably acted in reliance on the reasonable belief that his conduct was lawful” in expressing his complaints to the program. We disagree.

“The doctrine [of vagueness] requires statutes to provide fair notice of the conduct to which they pertain and to establish minimum guidelines to govern law enforcement. State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). Our Supreme Court based its analysis in Indrisano on the three standards set out by the United States Supreme Court for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. . . .

“Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. . . . Therefore, a legislature [must] establish minimal guidelines to govern law enforcement. . . . Third, but related, where a vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms.” (Internal quotation marks omitted.) State v. Cummings, 46 Conn. App. 661, 667-68, 701 A.2d 663, cert. denied, 243 Conn. 940, 702 A.2d 645 (1997).

Because the defendant did not preserve this claim at trial, he seeks review pursuant to Golding. The state argues that review is impermissible because the defendant’s claim fails under the second prong of Golding. We disagree. To enable us to review a claim that a statute is vague as applied, the record must reflect that the defendant was convicted under the statute in question and the conduct that formed the basis of the conviction. State v. Indrisano, supra, 228 Conn. 800. Here, the record is sufficient for review. We therefore advance our analysis to the third prong of Golding, namely whether the defendant was deprived of his constitutional right to a fair trial because § 53a-183 (a) (3) is unconstitutionally vague as applied to his conduct.

We conclude that the statute is not unconstitutionally vague as applied to the defendant’s conduct. The defendant implausibly argues that he acted in reliance on the belief that his conduct was lawful and that a person of ordinary intelligence would not have a reasonable opportunity to know that he was engaging in prohibited conduct because he was merely expressing complaints and because the police did not tell him that he was engaging in unlawful conduct. We conclude that § 53a-183 (a) (3) is not unconstitutionally vague as applied to the defendant’s conduct.

Ill

The defendant’s third claim is that there was insufficient evidence of intent to support his conviction for harassment in the second degree. We disagree.

“When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all reasonable inferences that it yields, a trier of fact could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. ” (Citations omitted.) State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995).

“It is well established that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, aperson’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the [trier of fact] to decide.” (Internal quotation marks omitted.) State v. Watson, 50 Conn. App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999). “[I]n viewing evidence which could yield contrary inferences, the [trier of fact] is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “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 [fact finder’s] verdict of guilty.” Id., 134.

The defendant claims that the evidence was sufficient to prove only that his intent in calling the program was to express a complaint and not to harass. After construing the evidence in the light most favorable to sustaining the verdict, we conclude that the trial court reasonably could have found that the evidence was sufficient to find that the defendant intended to harass through his telephone calls. First, the defendant made approximately forty-five telephone calls over a five month period. Indeed, the defendant often called the same person more than once on a particular day and often called different people on the same day. Second, the court reasonably could have concluded that the content of the defendant’s calls was intended to harass. “Evidence of the language used in an alleged violation of the harassment statute is relevant to show the intent of the accused in making the telephone call as well as the likelihood of its causing annoyance or alarm.” State v. Lewtan, 5 Conn. App. 79, 83, 497 A.2d 60 (1985). The defendant used words in his telephone calls that reasonably could have been construed as threatening, which is relevant to show intent. See State v. Veal, 201 Conn. 368, 375, 517 A.2d 615 (1986). Accordingly, we conclude that the court reasonably could have concluded that the evidence was sufficient to prove that the defendant intended to harass or annoy the employees of the program.

IV

The defendant’s fourth claim is that the evidence was insufficient to support his conviction for criminal trespass because there was no evidence that he entered Grajales’ apartment building in violation of the court’s restraining order. We agree.

General Statutes § 53a-107 (a) provides in relevant part that “[a] person is guilty of criminal trespass in the first degree when: (1) Knowing that he is not licensed or privileged to do so, he enters or remains in a building or any other premises after an order to leave or not to enter personally communicated to him by the owner of the premises or other authorized person . . . .”

The state failed to offer any evidence that the defendant entered Grajales’ apartment building in violation of the court’s order. The testimony reveals only that the defendant was standing outside the building where he called to his children to ask for a hug. Once Grajales went inside to call the police, the defendant left the area. The court’s order prevented the defendant only from entering the building, not from being on the property. There is nothing in the record indicating that the defendant entered the building in contravention of the order.

The state does not contend that there was sufficient evidence indicating that the defendant entered the building. Instead, the state contends that because there was sufficient evidence indicating that the defendant was on the property, the defendant properly could have been convicted under § 53a-107 (a) (1). The court’s order, however, only prevents the defendant from entering the building, not from being on the property on which the building was located. The defendant, therefore, did not violate the court’s order and could not have violated § 53a-107 (a) (1).

The state further contends that once Grajales ordered the defendant to leave the premises, he was not entitled to remain on the grounds of the building. We disagree, however, because a tenant cannot be considered an “owner” with respect to an order to leave the premises for purposes of § 53a-107 unless the record reveals that the owner or an agent of the landlord conferred authority on the tenant, thereby permitting the tenant to prevent someone from being on the premises. See State v. LoSacco, 12 Conn. App. 172, 177-78, 529 A.2d 1348 (1987). Nothing in the record suggests that Grajales had the authority to prevent the defendant from being on the property outside of the building. Therefore, Grajales, as a tenant in a multi-unit apartment building, had no authority to order the defendant not to be on the property outside of the building. Accordingly, we find that the evidence was insufficient to convict the defendant under § 53a-107.

V

The defendant’s final claim is that the evidence was insufficient to support his conviction for falsely reporting an emergency. We disagree.

General Statutes § 53a-180 (a) provides in relevant part: “A person is guilty of falsely reporting an incident when, knowing the information reported, conveyed or circulated to be false or baseless, he . . . (3) gratuitously reports to a law enforcement officer or agency (A) the alleged occurrence of an offense or incident which did not in fact occur, (B) an allegedly impending occurrence of an offense or incident which in fact is not about to occur, or (C) false information relating to an actual offense or incident or to the alleged implication of some person therein.”

We conclude that the trial court reasonably could have found that the defendant knew that his report to Wackerman was baseless. The evidence indicated that the defendant called Wackerman to complain that Gra-jales did not provide his children with an antibiotic and therefore they were in immediate danger. After Wackerman told the defendant to contact the department with his concerns, the defendant ignored this instruction and called 911, again claiming that there was an emergency. Nothing in the record reveals that an actual emergency occurred or was about to occur. Accordingly, we conclude that the court reasonably could have found that the evidence was sufficient to convict the defendant of falsely reporting an incident.

The judgment of conviction of criminal trespass in the first degree is reversed and the case is remanded with direction to render judgment of not guilty of that crime. The judgments of conviction of harassment in the second degree and falsely reporting an incident are affirmed.

In this opinion the other judges concurred.

       Quinnebaug Valley Youth and Family Services provides various services to families and children.

       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.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant failed to raise his insufficiency claim at trial. We will, however, review his claim because the record is adequate for review and because the claim is of constitutional magnitude. See State v. Adams, 225 Conn. 270, 275-7(5 n.3, 623 A.2d 42 (1993).

       The judgment is unclear as to whether the defendant was convicted pursuant to § 53a-107 (a) (1) or (2). Subdivision (2) of § 53a-107 (a), however, is inapplicable to the facts of this case because that subdivision does not apply to restraining orders issued pursuant to General Statutes § 46b-121, which the court had issued against the defendant.

       The judgment is unclear as to which subsection of General Statutes § 53a-180 the defendant was convicted under. Further, the information is unclear as to which subsection the defendant was charged with having violated. The state, however, argued at trial that the defendant falsely reported an incident to a law enforcement officer, pursuant to § 53a-180 (a) (3), rather than to an official or quasi-official agency or organization having the function of dealing with emergencies, pursuant to § 53a-180 (a) (2). Moreover, a review of the transcripts reveals that the state, during closing argument, argued its case under § 53a-180 (a) (3). Accordingly, we will analyze the defendant’s claim under § 53a-180 (a) (3).