text:
    STATE OF CONNECTICUT v. PETER LEGRANDE
    (AC 18312)
    O’Connell, C. J., and Spear and Mihalakos, Js.

      Argued January 10
    officially released October 17, 2000

      Pamela S. Nagy, assistant public defender, with whom, on the brief, were Carrie Cereto and Lori A. Lastrina, certified legal interns, for the appellant (defendant).

      Nancy L. Chupak, deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin J. Murphy, assistant state’s attorney, for the appellee (state).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

SPEAR, J.

The defendant, Peter Legrande, appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes (Rev. to 1989) § 53-21, one count of sexual assault in the second degree in violation of General Statutes (Rev. to 1989) § 53a-71 (a) (1) and one count of sexual assault in the second degree in violation of General Statutes (Rev. to 1991) § 53a-71 (a) (1).

The defendant claims that the trial court improperly (1) admitted evidence of his uncharged misconduct to show a common scheme or design to sexually abuse young girls, (2) denied his motion for a judgment of acquittal on the ground that the evidence was insufficient to support his conviction of risk of injury to a child as to the victim M, (3) denied his motion for a new trial on the basis of newly discovered evidence, which was brought under Practice Book § 902, now § 42-53, (4) instructed the jury on how it could use his prior felony convictions to assess his credibility and (5) instructed the jury on reasonable doubt and the presumption of innocence. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. During a three year period, the defendant repeatedly had sexual contact with the two victims, M and S. The defendant was bom on April 19, 1958, and M was bom on March 7, 1974. The sexual contact involving M began three years after she began baby-sitting for the defendant’s two children. In the winter of 1989, shortly after the defendant purchased a home in West Hartford, the defendant took M to the third floor of his new residence and touched her breasts. When M started to cry, the defendant stopped and took her home.

On another occasion when M was sleeping at the defendant’s home, he told her to change into her pajamas in his presence. M protested, but the defendant insisted that he would not look at her. M took off her pants, shirt and bra, and put on a one piece nightgown. When M lay down in bed, the defendant laid down next to her, placed his hands underneath her nightgown, touched her breasts and vagina, and then inserted his finger into her vagina. When M asked the defendant to stop, he refused and responded that it would be all right.

The defendant’s conduct of touching M underneath her clothes and inserting his finger into her vagina continued until the end of 1989, and also progressed during that time to the defendant’s inserting his penis into M’s vagina. By Christmas, 1989, the defendant had had sexual intercourse with M between two and four times.

In the summer of 1990, S, who was bom on August 4,1977, began baby-sitting for the defendant’s children. During that summer, the defendant started calling S names that were inappropriate, touching her buttocks, and grabbing and kissing her. One day while S was baby-sitting, the defendant asked her to sit on his lap. When she did, the defendant touched her underneath her shirt, shorts and undeipants. He then inserted his finger into her vagina.

One night between the fall of 1990 and the summer of 1991, when S was baby-sitting and playing video games, the defendant came home and ordered her to stop playing the game and to come to the sofa. When S complied, the defendant laid down on the sofa and had her lie next to him. Afraid that the defendant was about to engage in sexual intercourse with her, S told him that she was not going to go any further. The defendant then got off the sofa and went into his room. S followed the defendant as he sat on his bed and cried. The defendant told S that he loved her and that he was sorry. He then asked her if she had ever told anybody, and when she said that she had not, he told her that she could never tell.

On another occasion, in an early morning in the summer of 1991, the defendant asked S to accompany him to a garage outside of West Hartford. On their way back from the garage, the defendant drove into the back of a parking lot of a movie theater. The defendant kissed S, touched her underneath her clothes and inserted his finger into her vagina. When S told the defendant to stop and said that she was not going to allow him to touch her, he became angry and started to drive home. On the way, he asked her if she was still a virgin and told her that the boy who “[takes] her virginity” was going to be lucky.

The final incident of sexual contact committed against M occurred on the day after Thanksgiving, 1991. That day, after the defendant and M returned from playing bingo at the Foxwoods Casino in Ledyard, the defendant led M to the third floor of his residence, kissed and touched M, took off her clothes and inserted his finger into her vagina. M became upset and asked the defendant to stop. The defendant refused to stop and, instead, penetrated M’s vagina with his penis. M started to cry, and the defendant responded by also crying. He then told her that he loved her and that she was special, and then asked her if she would ever turn him in.

The defendant was subsequently arrested and charged in connection with his conduct but, because of a statute of limitations bar, was not charged in connection with his actions committed against M prior to December 22, 1989. During trial, the court admitted testimony from M regarding the defendant’s uncharged sexual conduct that occurred prior to December 22, 1989, for the limited purpose of showing the defendant’s common plan or design to sexually abuse young girls. M also testified that although sexual contact by the defendant continued through 1990, she did not recall any one specific incident having occurred between December 22,1989, and March, 1990. After the presentation of evidence, the court instructed the jury on, inter alia, the use of the defendant’s prior convictions to assess his credibility, the presumption of innocence and the state’s burden of proving its case beyond a reasonable doubt.

The jury found the defendant guilty of two counts of risk of injury to a child and two counts of sexual assault in the second degree. A mistrial was declared with regard to the count of sexual assault in the first degree. After the verdict, the defendant filed a motion for a judgment of acquittal on the ground of insufficient evidence and a motion for a new trial under Practice Book § 902, now § 42-53, on the basis of newly discovered evidence. The court denied the defendant’s motions. This appeal followed.

I

The defendant first claims, on two grounds, that the court improperly admitted M’s testimony about his uncharged misconduct that occurred prior to December 22, 1989. We disagree.

“As a threshold matter, we set forth the standard by which this court reviews a challenge to a trial court’s [evidentiary ruling]. The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [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. Berger, 249 Conn. 218, 229, 733 A.2d 156 (1999).” (Internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 326, 746 A.2d 761 (2000).

A

The defendant claims that the court improperly determined that M’s testimony about his uncharged misconduct was relevant to show a common plan or design to sexually abuse young girls. We decline to review this claim.

The defendant failed to obj ect specifically to M’s testimony at trial on the ground of relevance, but argues on appeal that his claim was preserved at trial because he objected to her testimony on the ground that its prejudicial effect outweighed its probative value. “Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court]. . . . This court reviews rulings solely on the ground on which the party’s objection is based.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 791, 717 A.2d 1140 (1998). The defendant’s claim is, therefore, unpreserved.

The defendant alternatively argues that his unpre-served claim is entitled to review under the plain error doctrine. Practice Book § 60-5. “[R]eview 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). This claim does not meet that standard.

B

The defendant next claims that despite the relevancy of M’s testimony regarding his uncharged misconduct, the court improperly determined that the probative value of the evidence outweighed its prejudicial effect. He claims that M’s testimony that he had forced sexual intercourse with her and subjected her to sexual contact on numerous occasions inflamed the jury and ultimately led to his conviction of all charges relating to S. We are not persuaded.

“Relevant evidence of prior unchar ged misconduct that is prejudicial in nature is admissible if the trial court, in the exercise of its sound discretion, determines that its probative value, for one or more of the purposes for which it is admissible, outweighs its prejudicial impact on the accused. ” (Internal quotation marks omitted.) State v. Ortiz, 40 Conn. App. 374, 380, 671 A.2d 389, cert. denied, 236 Conn. 916, 673 A.2d 1144 (1996). “Of course, [a]ll adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993). The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . State v. Bush, 249 Conn. 423, 430, 735 A.2d 778 (1999).” (Citation omitted; internal quotation marks omitted.) State v. Copas, supra, 252 Conn. 329-30.

In this case, the court determined that M’s testimony about the defendant’s uncharged misconduct was relevant and admissible for the limited purpose of showing a common plan or design to sexually abuse young girls. Thereafter, the court determined that the admission of M’s testimony regarding the defendant’s uncharged misconduct was not unduly prejudicial because the jury was going to hear other similar testimony from M regarding the defendant’s charged misconduct. Finally, the court instructed the jury on three separate occasions that M’s testimony was to be used for the limited purpose of determining whether the defendant had a common plan or design, not as substantive evidence of his guilt. Under these circumstances, we do not see how the court abused its discretion by determining that the probative value of the admitted evidence outweighed its prejudicial effect or how there is an appearance, especially in light of the court’s numerous instructions to the jury, that an injustice has been done.

II

The defendant next claims that the court improperly denied his motion for a judgment of acquittal. He contends that the state failed to produce sufficient evidence to support the conviction of risk of injury to a child as to M. We agree.

“In reviewing [a] sufficiency [of the evidence] claim, 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. . . . [T]his court . . . will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. . . . State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 654-55, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

After reviewing the evidence and considering the inferences reasonably drawn therefrom in favor of sustaining the verdict, we conclude that the evidence does not reasonably support the jury’s conclusion that the defendant was guilty beyond a reasonable doubt of risk of injury to a child as to M. The circumstances in this case are substantially similar to those in State v. Owen, 40 Conn. App. 132, 145-46, 669 A.2d 606, cert. denied, 236 Conn. 912, 673 A.2d 114, cert. denied, 237 Conn. 922, 676 A.2d 1376 (1996), in which we reversed the judgment of conviction of sexual assault in the first degree on the ground of insufficient evidence. In Owen, the substitute information alleged that the defendant “engaged in sexual intercourse, specifically cunnilingus,” with the victim “during the months of October through December, 1989 . . . .” Id., 142. The testimony of the victim, who was the only witness, did not “present us with a specific date for the cunnilingus incident.” Id. We therefore held that “[t]he evidence [did] not support a conclusion that the jury could have reasonably concluded beyond a reasonable doubt that the act of cunnilingus occurred on or after October 1, 1989”; id., 145-46; the date on which the alleged behavior first constituted sexual assault in the first degree pursuant to Public Acts 1989, No. 89-359. Id., 142.

In this case, count one of the substitute information charged the defendant with violating § 53-21 and alleged “that on or between December 22, 1989, and March 6, 1990 . . . the defendant . . . did an act likely to impair the morals of a child, by engaging in sexual contact with [M] . . . .” The court had ruled that any alleged misconduct that had occurred piior to December 22,1989, was beyond the applicable statute of limitations, and M turned sixteen on March 7, 1990, so as to be beyond the protection of § 53-21. The state was therefore required to prove that the violation of § 53-21 had occurred during the applicable time frame. M’s testimony was the only evidence offered to prove that the offense occurred within the time frame alleged in the substitute information. M’s testimony, however, did not establish that the defendant engaged in sexual contact with her during the alleged time period. When the state asked M on direct examination whether sexual contact occurred during the relevant time period, she responded: “I can’t say that it definitely occurred.” Accordingly, under these circumstances, we cannot say that the evidence reasonably supported the juiy’s conclusion beyond a reasonable doubt that the defendant was guilty of risk of injury to a child as to M.

Ill

The defendant next claims that the court improperly denied his motion for a new trial, which was based on allegedly newly discovered evidence and brought under Practice Book § 902, now § 42-53. He claims that the court should have considered his motion in the interest of justice. This claim is completely without merit.

It is well established that to obtain a new trial on the ground of newly discovered evidence, a defendant must bring a petition under Practice Book § 42-55, formerly § 904. See State v. Jones, 205 Conn. 723, 729-30, 535 A.2d 808 (1988); State v. Murdick, 23 Conn. App. 692, 704-705, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991); State v. Servello, 14 Conn. App. 88, 101-102, 540 A.2d 378, cert. denied, 208 Conn. 811, 545 A.2d 1107 (1988); see also State v. Curley, 25 Conn. App. 318, 329-30, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991). “There is a significant difference between Practice Book [§§ 42-53 and 42-54, and § 42-55], Practice Book [§ 42-53] is concerned with motions for a new trial based on errors committed during the trial. ... On the other hand, [§ 42-55] provides: A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with [General Statutes § 52-270].” (Internal quotation marks omitted.) State v. Jones, supra, 729. Because the defendant failed to bring a petition for a new trial on the basis of newly discovered evidence pursuant to Practice Book § 904, now § 42-55, the court appropriately denied his motion.

rv

The defendant next claims that the court improperly instructed the jury on the use of his prior convictions to assess his credibility in violation of (1) his due process rights to a fair trial, (2) his right to testify on his own behalf and (3) his right to present a defense. He takes issue with the court’s instruction to the jury that “[i]f you find that [the defendant’s prior felony convictions bear] on his credibility, you must use the evidence of the earlier convictions to find that the defendant is not a credible witness and that, therefore, all or some of his version of the events in question is not true.” (Emphasis added.) The defendant claims that the court’s instruction improperly mandated that if the jury found that he was previously convicted of other crimes, it had to disbelieve his testimony. We disagree.

The defendant did not object to the court’s instruction at trial, but now seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). and the plain error doctrine. See footnote 3. Although the record is adequate for review, the defendant’s claim regarding the court’s instruction is not of constitutional magnitude, as it does not allege the violation of a fundamental right.

“The defendant’s claim involves one word out of [the] entire charge. He claims that the word ‘must’ . . . deprived the jury of its role in determining the defendant’s credibility. . . . The defendant cannot demonstrate a violation of his constitutional rights by culling this single word from the entire charge. State v. Turcio, 178 Conn. 116, 122-23, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Tropiano, 158 Conn. 412, 433, 262 A.2d 147 (1969), cert. denied, 398 U.S. 949, 90 S. Ct. 1866, 26 L. Ed. 2d 288 (1970).” State v. Jenkins, 29 Conn. App. 262, 266-67, 614 A.2d 1249, cert. denied, 224 Conn. 916, 617 A.2d 171 (1992). When read in context, it is reasonable to read the “must” language as limiting the use of the evidence to the jury’s assessment of the defendant’s credibility and not to the drawing of an inference of guilt of the crimes charged. The defendant’s claim, therefore, fails under the second prong of Golding. Further, because there was no manifest injustice, the defendant’s claim does not warrant plain error review. State v. Boles, 223 Conn. 535, 543, 613 A.2d 770 (1992).

V

The defendant finally claims that the court improperly instructed the jury on reasonable doubt and the presumption of innocence in violation of his fourteenth amendment due process right to a fair trial. We disagree.

The standard of review for constitutional claims of improper jury instructions is well settled. “In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Schiappa, 248 Conn. 132, 171, 728 A.2d 466 (1999); accord State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).” (Internal quotation marks omitted.) State v. Delvalle, 250 Conn. 466, 470, 736 A.2d 125 (1999).

The defendant claims that the court’s charge to the jury that “the law is made to protect society and persons whose guilt has not been established beyond a reasonable doubt and not to protect those whose guilt has been so established” diluted his presumption of innocence and the state’s burden of proof. Our resolution of this claim is governed by State v. Schiappa, supra, 248 Conn. 132, in which our Supreme Court, relying on its prior case law, rejected a defendant’s claim that an instruction virtually identical to the one in this case misled the jury and amounted to a constitutional violation. The court reasoned that the “court’s charge, when viewed in its entirety, adequately apprised the jury that the defendant was entitled to a presumption of innocence unless and until the state proved her guilty beyond a reasonable doubt.” Id., 173. We therefore conclude that the defendant was not deprived of a fair trial.

The judgment is reversed as to the conviction of risk of injury to a child as to M in the first count of the substitute information and the case is remanded with direction to render a judgment of acquittal on that count. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       One afternoon several months before S began baby-sitting for the defendant’s children, the defendant drove M to her home in West Hartford after M had watched the defendant’s children. When the defendant reached her home, instead of dropping M off, he made her wait in the car with the children so that he could go inside the house. S was the only one in the house at the time, and the defendant sent her into a bathroom to get him aspirin. The defendant followed S into the bathroom and asked her for a kiss. When S gave him a kiss, he told her that that was not the type of kiss you give to someone you love. The defendant then kissed her on the lips and stuck his tongue into her mouth.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       The defendant also argues that the admission of evidence about uncharged misconduct likely resulted in conviction because the evidence unfairly bolstered the credibility of both M and S. Because we conclude that the evidence properly was admitted for another limited purpose, we do not see how the credibility of any of the witnesses could have been unfairly bolstered.

       Although the defendant argues that the court “failed to consider the effect of this evidence on [S’s] case,” there is no indication in the record to support that claim.

       Before M’s testimony, the court instructed the jury in relevant part as follows: “The next section of evidence that we’re going to hear from the witness is being offered for a limited purpose. Normally, you hear evidence, you can use it for whatever purpose you think is relevant to the case. . . . But this evidence is being offered only for the purpose of—the state is attempting to show a common plan, scheme or design on the part of the defendant to abuse young girls . . . sexually.
      “You may find that to be correct or incorrect, that’s your choice. But this evidence is only being offered for that limited purpose and not for any other purpose or more generalized purpose. And it is only to be used by you for that limited purpose as to whether or not it does reveal, when considering all the evidence that’s going to be offered during the trial, a common scheme, plan or design.”
      After M’s testimony, the court repeated this instruction: “As I’ve said, ladies and gentlemen, the evidence that we’ve just heard is offered for a limited purpose as to whether . . . there’s a common scheme by the defendant to abuse sexually young girls. And it’s for that puipose and no other puipose that that evidence is being offered.”
      In its final charge to the jury, the court again gave an instruction regarding the defendant’s uncharged misconduct: “Now, during the trial, one of the witnesses that we referred to as [M] testified as to events that she claimed occurred with the defendant, and they took place prior to December 22nd
      of 1989. For reasons that relate to the statute of limitations that I’ll discuss in a moment, that evidence was offered for a limited purpose. The evidence was offered on the question of whether the defendant engaged in a common scheme or plan to sexually abuse young girls in their teenage years and is to be considered by you only for that limited puipose.”

       “It is to be presumed that the juiy followed the court’s . . . instructions unless the contrary appears.” (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999).

       Because we determine that the court properly admitted the challenged evidence, we do not need to engage, as the defendant suggests, in a harmless error analysis.

       The defendant argues that the motion should have been granted under the rationale of State v. Myers, 242 Conn. 125, 135-39, 698 A.2d 823 (1997), in which our Supreme Court held that a motion for a new trial was permitted in a case of juror misconduct pursuant to Practice Book § 902, now § 42-53. In the present case, the defendant has not claimed juror misconduct. Therefore, the rationale of Myers does not apply.

       The relevant portions of the court’s instruction to the jury are as follows: “I want to discuss the subject of credibility, by which I mean the believability of testimony. . . . The credibility, the believability of the witnesses and the weight to be given to their testimony are matters entirely within your hands. It is for you alone to determine their credibility. . . . The credibility of the witness and the truth of the fact is for you to determine.
      * ❖ **
      “You are entitled to accept any testimony which you believe to be true, and reject, either wholly or in part, the testimony of any witness you believe has testified untruthfully or erroneously. The credit that you give to the testimony offered is, as I have told you, something which you alone must determine. . . .
      “It is up to you to accept or reject all or any part of any witness’ testimony. If you find that a witness has been inaccurate in one respect, remember it in judging the rest of the witness’ testimony. Give to it that weight which your own mind leads you to think it ought to have and which you would attach to it in the ordinary affairs of life ... .
      “Now, in this case, the defendant . . . took the stand and testified. In weighing the testimony of the defendant, you should apply the same principles by which the testimony of other witnesses [is] tested. ... A defendant having taken the witness stand stands before you, then, just like any other witness. He is entitled to the same consideration, and you should measure his testimony in the same way as any other witness ....
      “You should judge the defendant’s credibility in the same way you judge any other witness’ credibility. You are at liberty, if you so decide, to disbelieve his testimony, to believe some of it and reject other parts, or to believe it entirely.
      “Now, evidence was introduced in this case to show that the defendant was convicted of certain crimes .... This evidence was offered and admitted for one purpose only: to be weighed by you in testing the defendant’s credibility. You may not use this evidence ... as evidence that the defendant is guilty of the crimes charged in this case. You may not infer that the defendant is likely to have committed the offense charged in this case because he was . . . convicted of crimes before. You may consider the defendant’s prior convictions only as they bear on his credibility. If you find that this evidence bears on his credibility, you must use the evidence of the earlier convictions to find that the defendant is not a credible witness and that, therefore, all or some of his version of the events in question is not true.
      “You are not required to disbelieve the defendant merely because he has previously been convicted of crimes. It is simply something that you may take into account in judging Ms credibility if you find that it bears on that credibility. The weight that you give to that evidence m tMs regard is for you to decide.”

       In Golding, the court held that “a defendant can prevail on a claim of constitutional error not preserved at trial oMy if aU of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magmtude 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 m origmal.) State v. Golding, supra, 213 Conn. 239-40.

       The defendant failed to object to the challenged instruction at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40. We will review this claim because the record is adequate, and the claim of instructional error regarding the burden of proof and presumption of innocence is constitutional in nature. See State v. Adams, 225 Conn. 270, 289, 623 A.2d 42 (1993).


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    ANTHONY S. NOVAK, TRUSTEE v. OMEGA PLASTICS CORPORATION, INC.
    (AC 19604)
    Landau, Hennessy and Zarella, Js.

      Argued June 9
    officially released October 17, 2000

      Keith R. Ainsworth, for the appellant (defendant).

      Michael S. Schenker, with whom, on the brief, was Dale H. King, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

In this contract action, the defendant, Omega Plastics Corporation, Inc. (Omega), appeals from the judgment rendered in favor of the plaintiff, Anthony S. Novak, trustee, following a trial to the court. On appeal, Omega claims that the court improperly (1) determined that the account concerning the payment of commissions due “on the twentieth of the month following the sale” was a mutual and open account and (2) refused to impose the six year statute of limitations applicable to a simple account for commissions due. We reverse the judgment of the trial court.

The plaintiff, with the permission of the United States Bankruptcy Court for the District of Connecticut, commenced an action against Omega on April 3, 1996. The revised complaint, which is the operative complaint, alleged three counts against Omega sounding in breach of contract and unjust enrichment. In its answer, Omega alleged three special defenses: laches, the applicable statute of limitations, and accord and satisfaction.

The following facts found by the court are necessary for our resolution of this appeal. On August 22, 1986, Richard J. Ponzo and Omega entered into a written agreement whereby Omega was to pay Ponzo a 5 percent commission on all sales of Omega’s products that he made to certain customers in a specific geographical region. Pursuant to their agreement, Omega was to pay Ponzo’s commission on the twentieth day of the month following the sale. Ponzo was a sales representative for Omega from August 22, 1986, through May 24, 1992, when Omega terminated the agreement.

Ponzo received commissions on sales to certain customers from May, 1989, through December 31, 1989. Omega then converted those particular customer accounts into “house accounts” and did not pay Ponzo $35,631.34 in commissions on the sales he made to those customers. In addition, Omega paid Ponzo only a 2.5 percent commission, rather than 5 percent, on sales to two customers from February 1,1991, through June 30, 1991. Ponzo therefore was paid only one half of the $2846.94 commission that was owed to him. Omega also paid Ponzo a 5 percent commission on only 98 percent of the full value of other customer sales; the difference is $8074.20.

The court concluded that the account concerning Ponzo’s commissions was not only an asset of Ponzo, but also an asset of Omega because Omega used the account to charge back returns from customers, thus reducing the amount of Ponzo’s commissions. The court also concluded that the statute of limitations did not start to ran until Omega made its last payment to Ponzo, which occurred in 1991. The court awarded statutory interest in addition to the claimed damages and rendered judgment for the plaintiff in the amount of $78,852.53. We disagree with the characterizations and conclusions of the court.

Although Omega raises two claims on appeal, our resolution of the first claim is dispositive of the matter. The key to our resolution of this appeal is the character of the account relied on by the parties to calculate the commissions that Omega owed Ponzo, which is controlled by the agreement between Omega and Ponzo, not by the manner in which the monthly commission due was calculated. Contract interpretation is a question of law, and our review is plenary. Empire Paving, Inc. v. Milford, 57 Conn. App. 261, 265, 747 A.2d 1063 (2000); Chance v. Norwalk Fast Oil, Inc., 55 Conn. App. 272, 280, 739 A.2d 1275, cert. denied, 251 Conn. 929, 742 A.2d 361 (1999); Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 124, 739 A.2d 280 (1999).

The agreement between Omega and Ponzo provided that Omega was to pay Ponzo his commission “at the rate of 5 percent ... on the twentieth of the month following the sale.” The agreement provided a time specific when Omega was to pay Ponzo. The account, therefore, was not open and running, as it had to be resolved every month. The fact that adjustments were made to the commission on the basis of charge-backs does not affect the fact that Omega was to discharge its debt to Ponzo for services rendered on the twentieth day of every month. The plaintiff does not claim that Omega did not pay on the twentieth day of the month; his dispute is with the amount of the payment. Ponzo’s cause of action accrued at the time he disputed the amount of his commission. The cause of action alleged, therefore, is one for breach of a simple contract. Consequently, the applicable statute of limitations is contained in General Statutes § 52-576 (a), which provides in relevant part: “No action for an account ... or on any contract in writing, shall be brought but within six years after the right of action accrues . . . .”

The facts here are similar to those in Hitchcock v. Union & New Haven Trust Co., 134 Conn. 246, 56 A.2d 655 (1947), the only difference being in the time in which the employee was to be paid. “The action before us is clearly one upon a simple contract where the plaintiff has fully performed, and it falls fully within [§ 52-576 (a)]. So far as appears in the complaint, the plaintiff was employed for an indefinite time at a weekly wage, and each week constituted a new employment; Mazzotta v. Mazzotta, 121 Conn. 149, 152, 183 A. 408 [1936]; any recovery based on services performed by the plaintiff more than six years before the action was brought is barred. Weadon v. First National Bank & Trust Co., 129 Conn. 541, 543, 29 A.2d 779 [1943], As, however, upon the basis of the dates alleged in the complaint only a part of the period of the plaintiffs service was more than six years before the bringing of the action, the Statute of Limitations is not a complete defense.” Hitchcock v. Union & New Haven Trust Co., supra, 259.

Here, the plaintiff commenced the action on April 3, 1996, and alleged that Omega failed to pay Ponzo commissions due in 1990 through May 24,1992. Section 52-576 bars some but not all of the plaintiffs claims.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The plaintiff is the trustee of the bankruptcy estate of Richard J. Ponzo.

       We look with disfavor on the manner in which Omega alleged its special defenses. Omega failed to allege its special defenses with reference to a specific count in the complaint as required by Practice Book § 10-51. Furthermore, Omega failed to identify the statute on which it was relying in alleging its statute of limitations special defense. Practice Book § 10-3 (a) provides in relevant part: “When any claim made in a . . . special defense ... is grounded on a statute, the statute shall be specifically identified by its number.”


author: MIHALAKOS, J.

text:
    THADDEUS SZCZERKOWSKI v. LINDA KARMELOWICZ
    (AC 18801)
    Lavery, C. J., and Spear and Mihalakos, Js.
    Argued June 1
    officially released October 17, 2000

      Irene P. Romanelli, for the appellant (defendant).

      Karen S. Gersten, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, Linda Karmelowicz, appeals from the judgment of the trial court granting motions by the plaintiff, Thaddeus Szczerkowski, to modify certain visitation and support orders thus increasing the plaintiffs visitation with the parties’ two minor children and applying his child support payments during summer visitation with them to his arrearages, and denying the defendant’s motions for reconsideration and for the appointment of counsel for the children. On appeal, the defendant claims that the court abused its discretion in (1) failing to find a substantial change in circumstances prior to modifying the visitation schedule, (2) making financial orders without having the parties’ financial orders and financial affidavits in evidence, and after indicating that it would not make financial orders and (3) not appointing counsel for the children. We affirm in part and reverse in part the judgment of the trial court.

Prior to this court’s analysis of the facts in this matter, we must consider whether we should review the appeal. The record does not contain a written memorandum of decision or a transcription of the oral decision by the court. “The duty to provide this court with a record adequate for review rests with the appellant.” Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998).

“It is incumbent upon the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Practice Book § 4061 [now § 60-5] .... It is not the function of this court to find facts. State v. Reagan, 209 Conn. 1, 8, 546 A.2d 839 (1988).” State v. Rios, 30 Conn. App. 712, 715-16, 622 A.2d 618 (1993). “Our role is ... to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by us respecting [the defendant’s claims] would be entirely speculative.” (Internal quotation marks omitted.) Chase Manhattan Bank/City Trust v. AECO Elevator Co., supra, 48 Conn. App. 608-609. We have reviewed the record in this case and conclude that it is adequate as to the visitation and financial orders issues to permit review by this court as to those issues.

The following facts and procedural history are necessary to the resolution of this appeal. The record reveals that the plaintiff and the defendant never have been married. They lived together and had two children, Eric, bom on January 22, 1985, and Adam, born on February 12, 1986. On July 22, 1988, the defendant was granted sole custody of the children. A myriad of motions, primarily concerning custody and visitation, were subsequently filed by the parties in the ensuing years. The motions that form the basis of this appeal were filed on August 11 and October 27, 1997, and heard by the court on May 4, 1998. By an oral decision from the bench on May 4, 1998, the court modified the prior visitation orders and provided, inter alia, that the plaintiffs summer visitation with the children would be increased to six weeks.

I

The defendant first claims that the court abused its discretion in modifying the plaintiffs visitation with the children because it failed to find that there was a substantial change in circumstances. We disagree.

At the outset, we set forth our standard of review. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties at the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Citations omitted; internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 174-75, 708 A.2d 949 (1998).

“[ I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Eldridge v. Eldridge, 244 Conn. 523, 534, 710 A.2d 757 (1998). “[W]e do not review the evidence to determine whether a conclusion different from the one reached could have been reached.” (Internal quotation marks omitted.) Crowley v. Crowley, 46 Conn. App. 87, 90-91, 699 A.2d 1029 (1997).

When a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard, as set forth in General Statutes § 46b-56 (b). Ireland v. Ireland, 246 Conn. 413, 452, 717 A.2d 676 (1998); Kelly v. Kelly, 54 Conn. App. 50, 57, 732 A.2d 808 (1999). We review that determination in light of whether the court abused its discretion. El Idrissi v. El Idrissi, 173 Conn. 295, 300-301, 377 A.2d 330 (1977); Wilson v. Wilson, 38 Conn. App. 263, 269, 661 A.2d 621 (1995).

Although the defendant claims that the court was required to find that a substantial change of circumstances existed before modifying the plaintiffs visitation, this is a misreading of our law. The defendant cites no case, and our independent research discloses none, that requires a court ruling on a motion to modify visitation to find as a threshold matter that a change of circumstances has occurred. Rather, the standard the court applies is that of the best interest of the child. See General Statutes § 46b-56 (b); Ireland v. Ireland, supra 246 Conn. 452; Kelly v. Kelly, supra, 54 Conn. App. 57. Our independent review of the record discloses that the court applied the best interest of the child standard in ruling as it did and that its decision does not constitute an abuse of discretion.

On the basis of the testimony of Kevin Connolly, a psychologist who met three times with the children as part of a court-ordered custody evaluation, the court in its oral decision from the bench found that the children had made “a simple request,” which was “to spend a little bit more time with” the plaintiff. Further, the court stated that the children were “getting a little bit older; their interests may dovetail more with [the plaintiffs] ,” and that “because the parents are geographically distant from one another and the children need to be understood to have a life, I think it’s important for the court to meet their needs.” Indeed, as the court succinctly stated, “[W]e’re trying to respond to the articulated needs of the children to spend more time with [the plaintiff].” No other rational reading of the court’s language is possible but that it was acting in the children’s best interests when it modified visitation to permit the plaintiff six weeks’ visitation in the summer months.

Although the defendant in her briefs disputes aspects of Connolly’s testimony, claiming that he “made no independent determination as to the extent of expanded visitation and had not inquired extensively into the children’s desires,” it is well established that the evaluation of a witness’ testimony and credibility is wholly within the province of the trier of fact. See, e.g., State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988) (“[i]t is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight”); National Folding Box Co. v. New Haven, 146 Conn. 578, 586, 153 A.2d 420 (1959) (“acceptance or rejection of an opinion of a qualified expert is a matter for the trier of fact unless the opinion is so unreasonable as to be unacceptable to a rational mind”). Further, the defendant’s reliance on cases such as Brubeck v. Burns-Brubeck, 42 Conn. App. 583, 585, 680 A.2d 327, 328 (1996), and Walshon v. Walshon, 42 Conn. App. 651, 657, 681 A.2d 376 (1996), for the principle that a court must find a material change of circumstances is misplaced. Those decisions dealt with modification of custody, not modification of visitation, as is the case here.

“In reviewing a decision as to what is in the best interests of a child, the trial court is vested with broad discretion. We cannot interfere with the exercise of that discretion in the absence of a showing that some legal principle or right has been violated . . . .” Person v. Slocum, 22 Conn. App. 802, 803, 576 A.2d 561 (1990). In this case, we discern no such legal principle or right of the defendant that has been violated. The court’s decision was amply supported by the evidence, and we conclude that it did not abuse its discretion in modifying the plaintiffs visitation with the children.

II

The defendant next claims that the court abused its discretion in making financial orders without having before it the parties’ financial affidavits. We agree.

The court ordered that the plaintiffs $140 per week child support payment during the time of his increased visitation with the children would be credited toward his arrearage in such payments. The record, however, reveals that no financial affidavits were filed such that the court could comply with General Statutes § 46b-86, which requires that there be a finding of a substantial change in the circumstances of either party before a change in the present order for periodic support can be made. The court could not make such a finding unless it had current financial affidavits or, at the veiy least, testimony from one or both of the parties as to their present financial circumstances. We conclude that the court abused its discretion in making financial orders without having the parties’ financial affidavits in evidence after indicating that it would not make financial orders.

Ill

The defendant’s final claim is that the court abused its discretion in not appointing counsel for the children. We do not agree.

This issue has not been adequately briefed by the defendant; she merely makes the bald assertion that the court abused its discretion. See Connecticut National Bank v. Giacomi, 242 Conn. 17, 44-45, 699 A.2d 101 (1997). “Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Internal quotation marks omitted.) Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996). We therefore decline to review this claim.

The judgment is reversed only as to the financial orders and the case is remanded for further proceedings on the plaintiffs motion to modify child support payments.

In this opinion the other judges concurred.

       Practice Book 4059, now § 64-1 (a), provides in relevant part: “The court shall state its decision either orally or in writing, in all of the following: (1) in rendering judgments in trials to the court in civil and criminal matters ... If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. . . .”

       This was a two week increase in the summer visitation that had been ordered on June 21, 1989.

       General Statutes § 46b-56 (b) provides in relevant part: “In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child . . . .”

       The defendant also claims that the portion of the court order allowing child support payments to reduce the plaintiffs support arrearage is an impermissible modification of child support. Our ruling in part II of this opinion is dispositive of that claim in that the court was without 1 he statutory authority to enter any financial orders, retroactive or present.


text:
    STATE OF CONNECTICUT v. CHARLES HARRIS
    (AC 19882)
    Foti, Spear and Mihalakos, Js.

      Argued June 7
    officially released October 17, 2000

      Robert E. Byron, special public defender, for the appellant (defendant).

      Timothy J. Sugrue, senior assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Francis J. McQuade, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Charles Harris, appeals from the judgment of conviction, rendered after a jury trial, of four counts of drug related charges—in count one, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b); in count two, possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b); in count four, possession of narcotics in violation of General Statutes § 2 la-279 (a); and in count five, possession of narcotics within 1500 feet of a school in violation of General Statues § 21a-279 (d). The defendant claims that the trial court improperly (1) instructed the jury concerning the defendant’s consciousness of guilt, (2) allowed the testimony of a lay witness regarding consciousness of guilt, (3) accepted the jury’s verdict of guilty with regard to counts one and four, thereby violating his rights against double jeopardy, and (4) accepted the jury’s verdict of guilty despite the fact that the state failed to prove the defendant’s guilt beyond a reasonable doubt. We affirm the judgment in part and reverse it in part.

The jury reasonably could have found the following facts. On August 18, 1998, Joseph Jackson, an officer in the Ansonia police department, was on foot patrol in the Olsen Drive Housing Project. While on patrol, Jackson received a tip from a previously reliable informant that the defendant was in the vicinity of building 1-19 of the Olsen Drive Housing Project and was then in possession of a gun. The informant described the defendant as wearing a black hat and red shirt. Jackson contacted Nathan Anderson, an officer who was patrolling the area in a police cruiser, and the two began surveillance of building 1-19 from Anderson’s vehicle.

As Jackson and Anderson watched, a car driven by Howard Washington, Sr., drove up to building 1-19 and stopped. A man wearing a black hat and red shirt, whom Jackson recognized as the defendant, then appeared and got into the car with Washington. Jackson and Anderson followed the car out of the housing project and pulled it over. As soon as the car stopped, the defendant got out of the vehicle and approached the police cruiser. Jackson and Earl Stanley, an officer who had been dispatched as back-up, both drew their service weapons. Jackson ordered the defendant to stop and place his hands on the cruiser. The defendant was frisked and no gun was found.

Washington exited his vehicle and stood beside it with his hands raised. Anderson approached and questioned Washington, who denied being in possession of either weapons or drugs. When Anderson asked for permission to search his car, Washington stated, “Yeah, go ahead. ... I have nothing to hide.” Anderson and Stanley both approached the car and discovered a bag containing seventy-one individual parcels of crack cocaine on the front seat. Both the defendant and Washington were arrested and charged with possession of the drugs.

At trial, Washington testified for the state and admitted ownership of the car in which the drugs were found, but denied that they were his. Washington claimed to have been unaware of the drugs until they were found by the police. Washington also testified that, after being arrested and placed in the back of the police cruiser, he asked the defendant about the drugs. The defendant replied to the effect that he had to get rid of the drugs to avoid going to jail, and that Washington should claim ownership of them since he had no criminal record and would receive a lighter sentence.

Deputy Chief Samuel Hourliak of the Shelton police department appeared as an expert witness for the state and testified that a person in a car carrying narcotics will sometimes exit the vehicle to distance himself from the drugs. Defense counsel objected to this testimony and to the court’s jury instruction regarding consciousness of guilt, for which Hourhak’s testimony was deemed probative.

Following a jury trial, the defendant was convicted of counts one, two, four and five and acquitted of count three, possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b). This appeal followed.

I

The defendant first claims that the trial court improperly instructed the jury concerning the defendant’s consciousness of guilt. The defendant’s second claim is that the court improperly admitted certain testimony regarding consciousness of guilt. These claims are so interrelated that we will address them as one. Specifically, the defendant argues that, after Washington testified, the court, over the defendant’s objection, permitted Hourliak to testify that a person in a car carrying narcotics will sometimes exit the car to distance himself from the drugs. It is further argued that Hourliak’s testimony imputes consciousness of guilt to an innocent act. Even if we assume that the defendant’s claims have merit, the court’s failure to sustain the defendant’s objections and its allegedly erroneous instruction do not implicate the defendant’s constitutional rights.

“Because this assumed trial court impropriety is not constitutional in nature, the defendant has the appellate burden to establish harm from the [evidentiary and instructional] error, in order to secure reversal of the judgment. We recognize that we have not been fully consistent in our articulation of the standard for establishing harm. One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. . . . Another line of cases states that the defendant must establish that the trial court error caused him substantial prejudice. State v. Askew, 245 Conn. 351, 371, 716 A.2d 36 (1998). We need not resolve this difference in formulation in the present case, nor need we determine whether there is any functional difference between the two formulations, because we conclude that the defendant has failed to sustain his burden under either standard.” (Citations omitted; internal quotation marks omitted.) State v. Shabazz, 246 Conn. 746, 759, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999). The defendant has failed to meet his burden of demonstrating harmfulness.

First, the most harmful testimony against the defendant was not the testimony of Hourliak, but rather the testimony of Washington, who testified as to the incul-patory statements made to him by the defendant. The defendant has failed to convince this court that the inclusion of Hourliak’s testimony, in any way, affected the result of the trial. The inclusion of Hourliak’s testimony did not affect, refute or impact Washington’s testimony, which, standing alone, was sufficient to convict the defendant. Similarly, the defendant has failed to offer any convincing argument that Hourliak’s testimony in any way caused him substantial prejudice.

II

The defendant next claims that the trial court improperly accepted the jury’s verdict of guilt with regard to counts one and four, thereby violating his rights against double jeopardy. We agree.

On appeal, the defendant has made two double jeopardy claims, one concerning counts one and four and the other concerning counts two and five. The state conceded that the evidence presented at trial on the element that the defendant must have the intent to sell narcotics at a specific location that is within the proscribed zone for the purposes of count two was insufficient. See State v. Denby, 235 Conn. 477, 481-82, 668 A.2d 682 (1995). A claim of double jeopardy cannot survive if one of the counts at issue disappears. While this court is not bound to accept concessions made by a party on appeal; see State v. Heinz, 193 Conn. 612, 616, 480 A.2d 425 (1984); it is clear from the record before us that we should accept the state’s concession with regard to count two. On remand, the conviction of possession of narcotics with intent to sell within 1500 feet of a school must be reversed with direction to render a judgment of acquittal on that count. Because count two must be reversed, no double jeopardy issue survives as to count five.

Similarly, the state further concedes that the defendant’s sentences on counts one and four, possession of narcotics with intent to sell by a person who is not drug-dependent and possession of narcotics, violates the prohibition against double jeopardy. Once again, there is sufficient evidence in the record to sustain this concession. See State v. Cecarelli, 32 Conn. App. 811, 826-28, 631 A.2d 862 (1993). We agree with the state on the issue of double jeopardy, and the case must be remanded with direction to vacate the sentence imposed on count four and to combine that conviction with the conviction on count one. See State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

Ill

The defendant’s final claim is that the state failed, as a matter of law, to prove his guilt beyond a reasonable doubt. Specifically, the defendant claims, inter alia, that there was no evidence of motive, there was no possession, no physical evidence to connect him to the drugs, and no direct evidence of any kind. We disagree.

“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).” (Internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997).

“In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995).

“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Newsome, 238 Conn. 588, 617, 682 A.2d 972 (1996). Moreover, “[i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence.” State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). “As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); 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 [jury], 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.” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, supra, 196; see also State v. Sivri, supra, 231 Conn. 134.

The evidence presented to the jury, which it could accept as credible, was that the defendant knew of the drugs when he told Washington that he, the defendant, had to get rid of the drugs and that he did not want to go to jail. There also was a beeper found on the defendant. The jury could easily infer from this evidence that the drugs belonged to the defendant and that he was in constructive control of them. See State v. Ober, 24 Conn. App. 347, 351, 508 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134,135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991). We conclude that there was sufficient evidence from which the juiy could reasonably conclude that the defendant was guilty beyond a reasonable doubt.

The judgment is reversed in part and the case is remanded with direction to render judgment of not guilty of possession of narcotics with intent to sell within 1500 feet of a school, to merge the defendant’s conviction of possession of narcotics with intent to sell by a person who is not drug-dependent with his conviction of possession of narcotics and to vacate his sentence on the crime of possession of narcotics. The judgment is affirmed as to the conviction of possession of narcotics within 1500 feet of a school.

In this opinion the other judges concurred.

       The defendant was acquitted of a fifth charge, count three, possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of § 21a-278a (b), which is not relevant to this appeal.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells . . . dispenses . . . transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by . . . transporting with intent to sell or dispense, possessing with the intent to sell or dispense . . . any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . .”

       General Statues § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars or be both fined and imprisoned.”

       General Statutes § 21a-279 (d) provides in relevant part: “Any person who violates subsection (a), (b) or (c) of this section in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school and who is not enrolled as a student in such school . . . shall be imprisoned for a term of two years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of subsection (a), (b) or (c) of this section.”

       The trial court’s instructions on this issue of consciousness of guilt provided in relevant part that “[i]n any criminal case it is permissible for the state to show that the defendant’s conduct after the time of the alleged offense may fairly have been influenced by the criminal act committed by the defendant. That is, the conduct of the defendant shows a consciousness of guilt on his part.” This instruction was given as a result of Hourliak’s testimony.

       The record documents the defendant’s total effective sentence as fifteen years, execution suspended after eight years. This appears to be a mathematical miscalculation, as the correct aggregate sentence was thirteen years execution suspended after eight years with five years probation. See State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990).


author: SCHALLER, J.

text:
    DICK GIARRANTANO v. ZONING BOARD OF APPEALS OF THE CITY OF NORWICH ET AL.
    (AC 19519)
    (AC 19527)
    Schaller, Spear and Hennessy, Js.

      Argued June 2
    officially released October 17, 2000

      Michael P. Carey, for the appellant (defendant Rodney Green).

      Marc Mandell, assistant corporation counsel, for the appellant (named defendant).

      Beth A. Steele, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant Rodney Green, in AC 19519, and the defendant zoning board of appeals of the city of Norwich (board), in AC 19527, appeal from the judgment of the trial court sustaining the appeal of the plaintiff, Dick Giarrantano, from the board’s decision to grant variances to Green that would permit him to build a thirty-six unit hotel on his commercially zoned property. The trial court determined that the record did not support the board’s conclusion that a hardship existed. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to a disposition of these appeals. The subject property in this case is located at 336-360 West Main Street, Norwich, in a general commercial zoning district. On or about October 10, 1996, Green acquired ownership of the property from a foreclosing bank. When Green acquired the property, a nonconforming residence existed on the property. Thereafter, it became Green’s intention to construct a thirty-six unit hotel on the property. On December 18, 1997, Green submitted an application to the board seeking variances from § 12.1 of the Norwich Zoning Code of Ordinances (code) to reduce the twenty foot front yard setback to fifteen feet, and from § 3.15 of the code to reduce the sixty foot buffer strip to twenty feet. A public hearing on the application was held on January 13, 1998, at which Green argued that because of the topography and narrowness of the property, a strict application of the code would deprive him of the reasonable use of his property, and that the variances were therefore warranted.

Michael Carey, attorney for Green, explained to the board that the buffer requirement “would in fact, in this case, under the circumstances, create an unusual hardship depriving the applicant reasonable use of the property.” Carey also stated that “it’s our position that the variances we seek here on this project under the conditions existing at this property, in particular this sort of slope and the narrowness of the lot, will create a project that is fully consistent, fully harmonious with the purposes and intent of the regulations that we ask you to vary. . . . It’s our contention [under § 19.1.3 (b) of the code], that because of [the slope and narrowness of the lot], if the variance isn’t granted and the regulations are applied in their strict letter that would in fact deprive the applicant of the reasonable use of his land in this case.” Green testified that “[i]f we were to follow the exact zoning regulations, if we did everything absolutely required, we would have setbacks, we would have buffers and everything, and you would have thirty-nine feet of land left to do anything. That makes it basically unusable. You’re in a situation where you try to make anything out of this abandoned, derelict property, something has to, and something’s got to give somewhere.” Green also testified that “[h]ardship is defined by the [code as] when a condition exists that prevents the reasonable use of the property. Doesn’t mean it’s taken from you, it doesn’t mean that you can’t do anything at all with it. It just says for reasonable use. There are things that we can do [there] on that property without being here before you people. There are a lot of things we can do.”

Regarding the nonconforming house, Green testified that “[t]here was no way to even to try to restore or save it. It had all been left abandoned, the utilities on it, the plumbing pipes burst, it was just a total nightmare.” Green also testified that he was first approached about the sale of the house about one and one-half years before the hearing and that the house was empty then. Negotiations ensued and Green, upon returning from vacation in January, 1997, returned a telephone call from the mortgage company at which time the house had been empty “for a good year, year and a half.” Green stated, “I had been on the property several times looking at it. . . seeing the condition of it. It was horrible. I mean it was absolutely horrible. I found it difficult to believe that people were living in there in the condition it was in. But they had been. We went and took possession . . . .” At the conclusion of the public hearing, the board granted the variances by a four to one vote on each.

The plaintiff, an abutting landowner, appealed to the Superior Court from the board’s decision. The plaintiff argued that the board had acted illegally, arbitrarily and in abuse of its discretion in that (1) Green had not established to the board the existence of a hardship and (2) the variances substantially affected the comprehensive zoning scheme.

In a memorandum of decision, the court sustained the plaintiffs appeal, concluding that “the record does not support the conclusion that a reduction in usable space would deprive [Green] of the reasonable use of his property, thereby creating a hardship.” The court noted that, although individual members of the board stated reasons for voting to grant the variances, the board did not state a collective reason for its action. Accordingly, the court searched the record to determine whether the evidence before the board supported its decision to grant the variances.

The court noted that a review of the record revealed that the only evidence of hardship that Green had presented to the board was the reduction in usable space that the code would impose due to the property’s topography. The court concluded from the record that “the board granted the variances because ‘the depth of the lot and topography of the land’ and the ‘shallowness of the lot’ required [relief].” The court further concluded that “[t]he [board’s] primary reason lor granting the variances . . . was the reduction in usable space due to the literal application of regulations [§§] 12.1 and 3.15.”

The court determined that the board’s conclusion was not supported by the record because (1) Green had stated before the board that “[t]here are things that we can do ... on that property without being before [the board] . . . [t]here are a lot of things we can do,” (2) a residential home currently exists on the property and the property may therefore be used for residential purposes as well as other commercial purposes besides the hotel without the variances and (3) the application of the code does not destroy the value of the property for any of the uses to which it could reasonably be put to the level of confiscation. Because the court concluded that the record did not support a finding of hardship, it did not address the plaintiffs arguments regarding whether the variances would substantially affect the comprehensive zoning plan. We granted the board’s and Green’s petitions for certification to appeal to this court, and these appeals followed. Additional facts will be set forth where necessary.

“In reviewing the actions of a zoning board of appeals we note that such a board is endowed with a liberal discretion, and its [actions are] subject to review by the courts only to determine whether [they were] unreasonable, arbitrary or illegal. . . . The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision. . . . In an appeal from the decision of a zoning board, we therefore review the record to determine whether there is factual support for the board’s decision, not for the contentions of the applicant.” (Internal quotation marks omitted.) Francini v. Zoning Board of Appeals, 228 Conn. 785, 791, 639 A.2d 519 (1994). If “a zoning authority has stated the reasons for its actions, the reviewing court ought to examine the assigned grounds to determine whether they are reasonably supported by the record and pertinent to the considerations the authority was required to apply pursuant to the zoning regulations.” Havurah v. Zoning Board of Appeals, 177 Conn. 440, 444-45, 418 A.2d 82 (1979). “Where a zoning board of appeals does not formally state the reasons for its decision, however, the [reviewing] court must search the record for a basis for the board’s decision. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 743, 626 A.2d 705 (1993).” Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).

As the trial court noted, the board did not formally state the reasons for its decisions regarding the variances. The decisions were based on Green’s hardship stemming from the reduction in usable space resulting from the strict application of the code. Accordingly, we must search the record to determine whether a basis exists for the decisions.

We first address the trial court’s standard of review regarding hardship. The court stated that “[t]he financial impact must be such that the board could reasonably find that the application of the regulations to the property greatly decreases or practically destroys its value for any of the uses to which it could reasonably be put and where the regulations, as applied, bear so little relationship to the purposes of zoning that, as to particular premises, the regulations have a confiscatory or arbitrary effect.” (Internal quotation marks omitted.) Under that standard, the court concluded that the property value was not destroyed in this case. The test applied by the trial court was adopted from Grillo v. Zoning Board of Appeals, 206 Conn. 362, 369, 537 A.2d 1030 (1988). As this court pointed out in Stillman v. Zoning Board of Appeals, 25 Conn. App. 631, 636, 596 A.2d 1, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991), “[t]his test is used in the extreme situation where the application of a regulation renders property practically worthless, and that loss of value alone amounts to a hardship. . . . Although satisfying this test is a valid means of establishing a hardship, it is not exclusive.” (Citation omitted.) Green did not argue before the board that the application of the code would destroy the value of his property, but that the literal application of the code would deprive him of the reasonable use of his land.

“A variance may be granted if the literal enforcement of a regulation causes exceptional difficulty or har dship because of some unusual characteristic of the property.” Id. Green testified that the application of the two ordinances sought to be varied would leave thirty-nine feet on which to build. The context of his testimony, together with the statements of his attorney, indicates that he attributed the deprivation of reasonable use to the peculiar narrowness and topography of the property. From Green’s evidence, the board was justified in finding that Green would suffer unusual hardship that would deprive him of the reasonable commercial use of his property if the code were applied strictly. The board’s findings regarding hardship are, therefore, not unreasonable, arbitrary or illegal.

The plaintiff argues, as the court concluded, that the existence of the nonconforming residence on the property affords Green a reasonable use to which the property may be put. Green and the board counter that the record establishes that the nonconforming use had been abandoned under the code with the passage of time and that because the code prohibits the revitalization of an abandoned nonconforming use, such use was not an option for Green.

We note that the board did not determine whether the nonconforming use had been legally abandoned. This question cannot properly be resolved by either this court or the trial court based on the record in this case. Such a determination, however, is not necessary to our resolution of this claim. A commercial use is clearly permitted as of right under the code because Green’s property is located in a commercial district. “His right to use the lot and building for a permitted use is protected by law.” Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 484, 408 A.2d 243 (1979). Therefore, although Green conceivably may have the right to use the land for residential purposes based on an existing nonconforming use, he does have the right under the code to use it for commercial purposes. The proper scope of the board’s inquiry regarding hardship is therefore whether he can reasonably do so. The record in this case demonstrates support for the board’s decision that Green was deprived of reasonable use of his property under the provisions of the code.

The granting of a variance has two basic requirements: “(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” (Internal quotation marks omitted.) Grillo v. Zoning Board of Appeals, supra, 206 Conn. 368; Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978); see footnote 1 of this opinion. As we have noted, the trial court, having found that the record did not support a finding of hardship, did not address or decide the plaintiffs claim that the variances substantially affected the Norwich comprehensive zoning scheme. Accordingly, we must remand the case to the trial court for a determination of this issue.

The judgment is reversed and the case is remanded for further proceedings to address the plaintiffs claims regarding the effect of the variances on the comprehensive zoning scheme.

In this opinion the other judges concurred.

       In setting forth the powers and duties of the board, § 19.1.3 of the code provides in relevant part: “To vary the strict application of any of the requirements of this ordinance in the case of an exceptionally irregular, narrow, shallow, or steep lot or other physical conditions for which strict application would result in exceptional difficulty or unusual hardship that would deprive the owner of the reasonable use of the land or building involved, but in no other cases. No variance in the strict application of any provision of this ordinance shall be granted by the [board] unless it finds:
      “(a) That there are special circumstances or conditions fully described in the findings of the board, applying to the land ... for which the variance is sought, which circumstances or conditions are peculiar to such land . . . and do not apply generally to land ... in the neighborhood . . .
      “(b) That, for reasons fully set forth in the findings of the board, the aforesaid circumstances or conditions are such that the strict application of the provisions of this ordinance would deprive the applicant of the reasonable use of such land . . . and the granting of the variance is necessary for the reasonable use of the land . . . and that the variance as granted by the board is the minimum variance that will accomplish this purpose; and
      “ (c) That the granting of the variance will be in harmony with the purposes and intent of these regulations, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. . . .”

       We note that Green’s statement that “[tjhere are things that we can do [there] on that property,” when heard in context, could well have been understood by the board to refer to uses that Green believed were not reasonable, although permissible.