author: FLYNN, C. J.

text:
    STATE OF CONNECTICUT v. ANTWON W.

    (AC 28150)
    Flynn, C. J., and Harper and Hennessy, Js.

      Argued September 10
    officially released December 1, 2009

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Patrick J. Griffin, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse and the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identify may be ascertained. See General Statutes § 54-86e.

   Opinion

FLYNN, C. J.

The defendant, Antwon W., appeals from the judgment of conviction, rendered following a jury trial, of one count of sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and one count of risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21 (a) (2), as amended by Public Acts 2002, No. 02-138, § 4. On appeal, the defendant claims that (1) his conviction of sexual assault in the first degree and risk of injury to a child constituted double jeopardy, (2) the trial court improperly allowed to be admitted constancy of accusation testimony, (3) the court improperly charged the jury with regard to constancy of accusation testimony, (4) the court improperly allowed to be admitted expert testimony and (5) the court improperly charged the jury with respect to the testimony of the state’s expert witness in child sexual abuse. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In December, 2002, the victim, who was twelve years old, and her mother moved into a house occupied by the victim’s uncle, aunt and cousins. At this time, the defendant, an eighteen year old son of the victim’s uncle and aunt, did not reside at the house, but he visited frequently and spent time in the basement, where he played video games. About two weeks after the victim and her mother moved in, the victim was doing laundry in the basement when the defendant came downstairs (first incident). The defendant said to the victim: “Do you do things like this?” Subsequently, he pulled down his sweatpants, revealing his penis. The defendant, who stood between the victim and the stairway, then told the victim that he would not let her leave until she touched his penis. Scared and wanting to leave the area, the victim touched the defendant’s penis briefly and then ran upstairs. The victim did not report the incident to anyone else immediately because she was scared and in shock.

Approximately one week later, the victim went downstairs to the basement and again encountered the defendant (second incident). The defendant grabbed the victim’s collar and ordered her to bend over, indicating that he would not allow her to leave until she complied. The victim bent over, and the defendant pulled her pants down and penetrated her vagina with his penis, causing the victim to feel “shocking pain” and pressure. Although the victim did not scream or fight the defendant because she was scared, she did try “tightening” herself up to prevent the defendant’s penetration. When the defendant had finished, the victim felt wetness and coldness on her vagina. The victim left the basement and proceeded upstairs to her bedroom. She did not reveal the incident to anyone light away because she was scared about what people might think of her and worried that the assault somehow was her fault.

By the summer of 2003, the victim and her mother had moved out of the house belonging to the victim’s uncle and aunt. However, the victim and her mother periodically returned to visit. On one of these visits in the summer of 2003, the victim was playing with her cousins in the swimming pool in the backyard. The victim became ill with a headache, and one of her cousins told her to go lie down in another cousin’s room, which was located in the basement (third incident). The defendant entered the room and asked the victim: “Which one?” The victim asked what the defendant meant, and the defendant repeated the statement, pointing to the victim’s vagina, anus and mouth. The victim understood the defendant to be asking either for her to “touch him” or to have the defendant “put his penis inside” her. Attempting to avoid the pain of penetration, the victim chose to touch the defendant, and the defendant lowered his pants. After the victim had touched the defendant’s penis, the defendant turned the victim over onto her stomach and penetrated her vagina. The victim tensed up in an attempt to prevent the penetration, but she felt the same pain and pressure as she had experienced during the previous incident. When the defendant had finished, the victim felt the same wet feeling in her vaginal area. Following the assault, the defendant left the room, and the victim went to sleep. The victim again did not report the assault immediately, as she felt scared and thought no one would believe that the defendant, her cousin, would do such a thing.

On another occasion during the summer of 2003, the victim was in an upstairs bedroom playing a game with one of her cousins (fourth incident). When the cousin left to go downstairs, the defendant entered the room and said to the victim, “I’ll pay you $13 if you suck my dick,” and he showed the victim the money. The victim refused and said she would scream. The defendant replied that he would break her jaw. This threat scared the victim, and she placed her mouth on the defendant’s penis. The defendant stood before the victim, who was seated on the bed, and placed his hands on her head, applying pressure and pushing her head up and down. The incident ended when the defendant heard someone coming up the stairs, and he put his penis back in his pants and sat down as if nothing had happened. Following the incident, the victim was scared and did not report it to anyone immediately.

In January, 2004, the victim revealed the defendant’s abuse to her cousin, T, her aunt, B, and her mother, S. S took the victim to the police department where she spoke with police officers and provided a statement. Thereafter, by way of a substitute long form information, the state charged the defendant with one count of sexual assault in the third degree in violation of § 53a-72a (a) (1) (A), three counts of sexual assault in the first degree in violation of § 53a-70 (a) (l), three counts of sexual assault in the first degree in violation of § 53a-70 (a) (2) and one count of risk of injuiy to a child in violation of § 53-21 (a) (2). Following trial, the jury found the defendant guilty of all counts. The court subsequently rendered a judgment of conviction and sentenced the defendant to an effective term of fifteen years incarceration and fifteen years of special parole. This appeal followed. Additional facts will be supplied where necessary.

I

DOUBLE JEOPARDY CLAIM

The defendant first claims that his conviction of three counts of sexual assault in the first degree in violation of § 53a-70 (a) (2) and one count of risk of injuiy to a child in violation of § 53-21 (a) (2) constituted a violation of his constitutional right not to be placed in double jeopardy. Specifically, he argues that both statutes require that the defendant be more than two years older than the victim and that both statutes require proof that the defendant committed an act “in a sexual and indecent manner likely to impair the morals” of the victim.

The defendant did not raise this claim before the trial court. He seeks review, therefore, pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Although the record is adequate for our review and the claim is of constitutional magnitude, the defendant cannot demonstrate that a constitutional violation clearly exists, and so his claim must fail. See id.

As a preliminary matter, we set forth the standard of review and principles of law underlying the defendant’s claim. A defendant’s claim that a conviction violated his constitutional right against double jeopardy raises an issue of law; our review of such a claim is plenary. State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009). The United States constitution contains the guarantee that “[n]o person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const., amend. V. The fifth amendment’s prohibition of double jeopardy applies to state prosecutions through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). The double jeopardy clause protects against a second prosecution for the same offense following acquittal, a second prosecution for the same offense after conviction and multiple punishments for the same offense. State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007). It is the final protection that is implicated in the present case.

In determining whether two offenses are the same offense for double jeopardy purposes, we apply a two part test. First, we must determine whether the offenses arose out of the same act or transaction. See State v. Alvaro F., 291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). Second, we must determine whether the charged crimes constitute the same offense. See id. Multiple punishments are a constitutional violation only where both conditions are met. Id.

To determine whether the offenses in question arose out of the same acts or transactions, we examine the language of the information. See State v. Edwards, 100 Conn. App. 565, 593, 918 A.2d 1008, cert. denied, 282 Conn. 928, 929, 926 A.2d 666, 667 (2007). The substitute long form information charged the defendant in counts three, five and seven with sexual assault in the first degree in violation of § 53a-70 (a) (2). In count three, the information alleged that “between the dates of approximately December 2002 and February 2003, at or near the basement” of the house of the victim’s uncle and aunt, the defendant engaged in vaginal intercourse with the victim, who was under the age of thirteen, and the defendant was more than two years older than the victim at the time. Count three thus pertained to the second incident. Count five contained the same allegation as count three but specified that the act charged occurred “on or about the summer of 2003, at or near the basement” of the house of the victim’s uncle and aunt. The act described by count five, therefore, was the third incident. The information alleged in count seven that the defendant, “on or about the summer of 2003,” engaged in sexual intercourse, namely, fellatio, at the house of the victim’s uncle and aunt. Count seven also charged that the victim at the time was under thirteen and that the defendant was more than two years older than the victim. That count described the fourth incident between the victim and the defendant.

Count eight of the information alleged a violation of § 53-21 (a) (2), specifying that “on or about dates between approximately December 2002 and the summer of 2003, at or near [the house of the victim’s uncle and aunt], the [defendant] did an act likely to impair the morals of a child, [the victim]: he had contact with the intimate parts of a child under the age of sixteen years of age and subjected a child under sixteen years of age to contact with his intimate parts, in a sexual and indecent manner likely to impair the morals of such child.” Count eight thus pertained to the second, third and fourth incidents. The acts underlying the charges of sexual assault in the first degree in counts three, five and seven are the same acts underlying the charge of risk of injury to a child contained in count eight. The offenses in counts three, five, seven and eight, therefore, arose out of the same acts or transactions.

We move thus to the second step in our double jeopardy analysis in which we must determine whether the charged crimes constitute the same offense. To make this determination, we apply the test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). Under Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id., 304. This technical test requires the court to examine only the statutes, charging instruments and bill of particulars rather than any of the evidence presented at trial. State v. Bletsch, supra, 281 Conn. 27-28.

To convict the defendant of sexual assault in the first degree under § 53a-70 (a) (2), the state must prove that (1) the defendant engaged in sexual intercourse with the victim, (2) the victim was under thirteen years old, and (3) the defendant was more than two years older than the victim. To convict the defendant of risk of injury to a child under § 53-21 (a) (2), the state must prove that (1) the defendant had contact with the intimate parts of, or subjected to contact with his intimate parts, (2) a child under the age of sixteen, (3) in a sexual and indecent manner likely to impair the health or morals of the child. Our review of these statutes leads us to conclude that each statute requires proof of a fact that the other does not.

Section 53a-70 (a) (2) requires proof that the defendant engaged in sexual intercourse with the victim. Section 53-21 (a) (2) does not require such proof. See State v. Rivera, 84 Conn. App. 245, 249-50, 853 A.2d 554 (sexual assault in second degree in violation of General Statutes § 53a-71 [a] [1] requires proof of sexual intercourse while risk of injury to child under § 53-21 does not), cert. denied, 271 Conn. 934, 861 A.2d 511 (2004). Although the crime of risk of injury to a child requires that the defendant have contact with the victim’s intimate parts, or subject the victim to contact with his intimate parts, it does not require the defendant to have sexual intercourse with the victim.

The statutory crimes also contain different elements with regard to the age of the victim. Section 53a-70 (a) (2) requires proof that the victim was under age thirteen; § 53-21 (a) (2) requires proof that the victim was under age sixteen. See State v. Morris, 49 Conn. App. 409, 419-20, 716 A.2d 897 (concluding victim age requirements of § 53-21 and General Statutes § 53a-73a [a] [1] [A] [under fifteen years of age] require proof of different facts for purposes of Blockburger), cert. denied, 247 Conn. 904, 720 A.2d 516 (1998).

Furthermore, a conviction of risk of injury to a child under § 53-21 (a) (2) requires proof that the contact be “in a sexual and indecent manner likely to impair the health or morals” of the victim. The state need not prove such an element to obtain a conviction of sexual assault in the first degree under § 53a-70 (a) (2). See State v. Ellison, 79 Conn. App. 591, 601-602, 830 A.2d 812 (comparing § 53-21 with § 53a-71), cert. denied, 267 Conn. 901, 838 A.2d 211 (2003).

The defendant’s arguments that sexual assault in the first degree and risk of injury to a child constitute the same offense are unavailing. Contrary to the defendant’s assertion, § 53-21 (a) (2) does not contain a requirement that the defendant be two years older than the victim. In State v. Jason B., 248 Conn. 543, 565, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999), our Supreme Court addressed this issue, concluding that “[t]he express language of § 53-21 . . . does not require any consideration of the age of the defendant for the purposes of determining criminal liability.” The court further noted it could discern no legislative intention to include such an age requirement for the defendant. Id. The defendant’s argument that § 53a-70 (a) (2) contains a requirement that the act in question be committed in a manner likely to impair the health or morals of the victim also is without merit. A plain reading of the statutory language reveals no such provision in the statute. Furthermore, our Supreme Court has stated that the requirement of § 53-21 of a “likelihood of impairment of the morals or health of a child, is not a necessary corollary of sexual intercourse.” State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982). This court has also determined that sexual assault in the second degree in violation of § 53a-71 (a) (I) does not require proof that the contact was made in a sexual and indecent manner likely to impair the health or morals of the child. State v. Rivera, supra, 84 Conn. App. 249. Although the statute in question is different here, the analysis of Rivera applies to sexual assault in the first degree under § 53a-70 (a) (2). On the basis of the foregoing analysis, we conclude that sexual assault in the first degree under § 53a-70 (a) (2) and risk of injury to a child under § 53-21 (a) (2) do not constitute the same offense, as each crime requires proof of a fact not required by the other. See Blockburger v. United States, supra, 284 U.S. 304.

Finally, our double jeopardy analysis concludes not with a comparison of the offenses but, instead, with consideration of legislative intent. Because the Blockburger test is a rule of statutory construction, it cannot control in the face of a clear indication of contrary legislative intent. State v. Alvaro F., supra, 291 Conn. 12. However, “[w]hen the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary.” Id., 12-13. The defendant has not met this burden, as his brief contains no analysis to demonstrate that the legislature did not intend the crimes described by §§ 53a-70 (a) (2) and 53-21 (a) (2) to be separate offenses.

We conclude that the defendant’s claim fails under the third prong of Golding because the constitutional violation he alleges does not clearly exist. See State v. Golding, supra, 213 Conn. 240.

II

EVIDENTIARY CLAIMS

The defendant next claims that the court improperly allowed to be admitted constancy of accusation and expert witness testimony. He argues that the admission of such testimony violated his right to a fair trial under the due process provisions of the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. We disagree.

A

The following additional facts and procedural history are required for our review of the defendant’s claim pertaining to constancy of accusation testimony. In January, 2004, the victim was speaking with her cousin, T, on the telephone. The victim told T, without providing further details, that the defendant had sexually assaulted her and told T that the information must remain a secret. T initiated a three way telephone conversation with the victim’s aunt, B, and told the victim to tell her aunt what had happened. The victim complied, telling B what she had told T. The following day, the victim told her mother, S, about the assaults, explaining that the defendant had raped her. S took the victim to the police department, where the victim spoke with police officers and gave a statement.

Prior to trial, the defendant filed a motion in limine seeking to preclude any evidence of constancy of accusation, and defense counsel argued the motion prior to the state’s offer of constancy of accusation witnesses. Defense counsel maintained that, in light of our Supreme Court’s decisions in State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), and State v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005), the theory behind the constancy of accusation doctrine was one that “no longer really bears any weight as far as the real world is concerned.” Defense counsel argued that allowing constancy of accusation testimony under the circumstances of the case would deny the defendant his right to a fair trial by placing an unfair burden on him because the lack of physical evidence rendered the trial a classic case of “ ‘he said, she said’ . . . .” He asked the court, therefore, to prohibit all such testimony whatsoever.

The court denied the defendant’s motion, holding that the evidence was proper pursuant to State v. Troupe, supra, 237 Conn. 284, and § 6-11 (c) of the Connecticut Code of Evidence. The court asked the prosecutor to identify beforehand any witness who was to provide constancy of accusation testimony and detailed the limiting instruction that it would give to the jury prior to any such testimony.

T, the victim’s cousin, testified that she had a telephone conversation with the victim in either January, 2004, or 2005 during which the victim revealed that the defendant had raped her in the house belonging to the victim’s uncle. T stated that the victim seemed reluctant and scared to tell T what had happened to her. T testified further that after the victim told her of the abuse, T called B, their aunt, thereby initiating a three way telephone conversation. B testified that she had spoken by telephone with the victim and T in a three way conversation in which the victim related that she had something to tell B, but that she was hesitant to do so. B testified that the victim eventually said that “something had happened between her and [the defendant]” and that she had been holding the information inside for a couple of months. B testified further that the victim told her that the defendant had “taken her down [to] the basement and made her do some things to him” that were sexual in nature and that this had occurred approximately four times. The victim’s mother, S, testified that in January, 2004, the victim had told her that the defendant sexually assaulted her on three or four occasions in the house of the victim’s uncle and aunt. Prior to each of these witnesses, the court instructed the jury as to the manner in which it could use the constancy of accusation testimony. Following S’s testimony, the court again reviewed its limiting instruction with the jury.

The defendant claims that the court improperly allowed to be admitted the testimony of the constancy of accusation witnesses. Adopting and reasserting the argument of trial defense counsel, the defendant maintains that admission of this testimony violated his right to a fair trial under both the federal and state constitutions. The introduction of constancy of accusation testimony for the purposes of corroborating the fact of a victim’s complaint does not violate the constitutional fair trial rights of defendants in sexual assault cases. State v. Troupe, supra, 237 Conn. 305. The defendant’s claim, therefore, is evidentiary in nature.

The defendant preserved this claim for appeal by way of his motion in limine, argued outside the presence of the jury prior to the testimony of the first constancy of accusation witness, in which he distinctly raised the issue. See Practice Book § 60-5. Our standard of review of an evidentiary claim depends on the function that the trial court is performing in issuing the challenged ruling. State v. Saucier, 283 Conn. 207, 219, 926 A.2d 633 (2007). When the admission of evidence is based on the court’s interpretation of a rule of evidence, the question raised is a legal one and our review is plenary. Id., 218. “For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review.” Id. A court’s decision to admit evidence premised on an accurate view of the law, however, we review for an abuse of discretion. Id., 218-19. The defendant here does not challenge the court’s characterization of the testimony of T, B and S as constancy of accusation testimony. Rather, the defendant in effect argues that under the facts and circumstances of the present case, the court improperly allowed constancy of accusation testimony to be admitted. The claim, therefore, implicates the discretion of the court, and we review the defendant’s claim to determine whether the court abused that discretion.

The constancy of accusation doctrine traces its roots to the common-law concept of “hue and cry” whereby victims of violent crime were “expected to cry out immediately and alert their neighbors that they had been violently assaulted.” (Internal quotation marks omitted.) State v. Troupe, supra, 237 Conn. 294. In the context of sexual assault, evidence of a victim’s “hue and ciy” was “a necessary prerequisite for a court to hear a rape case” such that a woman who had not so complained could not have her case prosecuted. Id. Until 1974 in Connecticut, the state was required to offer evidence corroborating a victim’s claims to obtain a conviction for sexual assault. See, e.g., General Statutes (Rev. to 1969) § 53a-68, which concerned certain sexual offenses and provided in relevant part: “A person shall not be convicted of any offense under this part, or of an attempt to commit such offense, solely on the uncorroborated testimony of the alleged victim, except as hereinafter provided. Corroboration may be circumstantial. . . .” The General Assembly repealed this requirement of corroboration in Public Acts 1974, No. 74-131. Despite the repeal of the corroboration requirement, in cases such as the present one, the state often seeks to offer evidence corroborating the victim’s complaint of sexual abuse.

In State v. Troupe, supra, 237 Conn. 293-306, our Supreme Court reviewed the state of the constancy of accusation doctrine from the common law to the present, reaffirming its basic elements. The court acknowledged that the necessity of the doctrine is to counter the “unwarranted, but nonetheless persistent, view that a sexual assault victim who does not report the crime cannot be trusted to testify truthfully about the incident.” Id., 303. The court detailed the rule, concluding that “a person to whom a sexual assault victim has reported the assault may testify only with respect to the fact and timing of the victim’s complaint; any testimony by the witness regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes. Before the evidence may be admitted, therefore, the victim must first have testified concerning the facts of the sexual assault and the identity of the person or persons to whom the incident was reported.” Id., 304-305; see also Conn. Code Evid. § 6-11 (c).

Turning now to the facts of the present case, we do not conclude that the court abused its discretion in allowing the constancy of accusation testimony to be admitted. The testimony of T, B and S was preceded by the victim’s testimony covering the facts of the assaults and the persons to whom she had reported them. The constancy witnesses’ testimony regarding the victim’s out-of-court statements properly was limited to the fact that the victim had complained, the timing of each complaint and necessary details connecting the complaints to the assaults. Importantly, the testimony contained no extraneous details of the assaults, and it pertained only to the approximate time and place the assaults had occurred and the defendant’s identity as the perpetrator. Such testimony is squarely within the parameters set forth in Troupe.

The defendant’s arguments at trial and in his appellate brief contain considerable discussion attacking the constancy of accusation doctrine. At oral argument before this court, however, the defendant clarified that his claim was directed at the doctrine only as applied. Our Supreme Court has upheld the constancy of accusation doctrine as stated in Troupe in a number of recent cases. See, e.g., State v. Burney, 288 Conn. 548, 954 A.2d 793 (2008); State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (2007); State v. McKenzie-Adams, 281 Conn. 486, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). Our review of the present case leads us to conclude that the challenged testimony did not exceed the limits of the doctrine as it presently exists. Therefore, the court did not abuse its discretion in allowing it to be admitted.

B

The defendant also challenges the court’s decision to allow expert testimony. The state called to testify Diane Edell, a licensed clinical social worker experienced in forensic interviewing of victims of sexual abuse. Edell testified as to factors common in cases of sexual abuse, including delayed disclosure of the abuse by the victim.

The defendant offered no objection at trial to Edell’s testimony, which renders this claim unpreserved. He seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40, or to prevail pursuant to the plain error doctrine. See Practice Book § 60-5. Our Supreme Court has stated that “[a] claim that the trial court improperly admitted the testimony of an expert is an evidentiary impropriety [and] not constitutional in nature . . . .” (Internal quotation marks omitted.) State v. Iban C., 275 Conn. 624, 640, 881 A.2d 1005 (2005). The defendant’s claim fails to satisfy Golding’s second prong, therefore, as it is not of constitutional magnitude.

Furthermore, we do not consider the court to have committed plain error in allowing the testimony to be admitted. The plain error doctrine, which provides a rule of reversibility, rather than reviewability, “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. Cutler, 293 Conn. 303, 326, 977 A.2d 209 (2009). Our review of the record does not convince us that admission of Edell’s testimony either compromised the fairness or integrity of the defendant’s trial or that it would diminish public confidence in our judicial proceedings.

Ill

INSTRUCTIONAL CLAIMS

The defendant also raises claims regarding the court’s jury instructions. He argues specifically that the court improperly instructed the jury concerning constancy of accusation and expert witness testimony. We address the defendant’s claims in turn.

A

Prior to the testimony of each constancy of accusation witness, the court provided the jury a limiting instruction describing the purpose for which the jury could consider the testimony. Following the close of evidence, the court charged the jury as follows: “Constancy of accusation. The complainant testified here in court before you. Her testimony in court you may use as evidence and proof of the facts asserted in that testimony and give it the weight you find is reasonable. The state offered evidence of out-of-court statements made by the complainant to other persons that the defendant sexually assaulted her. This court’s recollection of those persons to whom the alleged victim made such statements are [T], [B] and [S], Each of these people testified as to the statements the complainant made to each of them regarding the defendant’s alleged sexual assaulting of her. This evidence by each of these witnesses is admitted solely to corroborate or not corroborate the complainant’s testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant’s testimony given here in court.

“This evidence of out-of-court statements by the complainant of a sexual assault against her by the defendant is not to be considered by you to prove the truth of the matter asserted, the truth of what is said, in those out-of-court statements, but it is presented for you to consider in assessing the credibility you will give to the complainant’s in-court testimony.

“In determining whether these out-of-court statements are corroborative or not corroborative of the complainant’s testimony in court, you should consider all the circumstances under which these out-of-court statements were made and to whom and whether the statements made to those persons were or were not consistent with the complainant’s testimony in court.

“To the extent you find what she said outside the courtroom is consistent with her testimony in court, you may find the complainant’s testimony in court to be corroborated or supported. To the extent you find what the complainant has said outside the courtroom is inconsistent with her testimony in court, you may consider the degree of inconsistency which you may find, and you may consider the reasons you may find for the inconsistency in evaluating her testimony given here in court.”

The defendant argues on appeal that the foregoing instruction encouraged the jury to use the constancy of accusation testimony improperly, thereby compromising his right to a fair trial. He specifically objects to the language stating that the constancy of accusation witnesses’ testimony “is admitted solely to corroborate or not corroborate the complainant’s testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant’s testimony given here in court.” The defendant also takes issue with the instruction that “[t]o the extent you find what she said outside the courtroom is consistent with her testimony in court, you may find the complainant’s testimony in court to be corroborated or supported.” He maintains that these portions of the charge led the jury to consider the testimony as bolstering the victim’s substantive testimony regarding the assaults, rather than in the proper, limited manner of corroborating only the fact and timing of the victim’s complaint. The state, in opposition, argues first that the defendant’s claim, being unpreserved, is unreviewable. It further contends that the language of the instruction properly stated the law with regard to the constancy of accusation doctrine as set forth in Troupe.

Although the defendant raises a substantial question with this claim, review of the issue must wait for another day. The defendant failed to preserve this claim at trial, as he neither submitted a request to charge the jury on the issue, nor objected to the court’s instructions. See Practice Book § 16-20 (“[a]n appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered”). Review pursuant to Golding is inappropriate. Not every claim of instructional error is constitutional in nature. State v. LaBrec, 270 Conn. 548, 557, 854 A.2d 1 (2004). Our Supreme Court repeatedly has noted that it has recognized instructional claims as raising constitutional issues only in matters relating to the elements of an offense, burden of proof and the presumption of innocence. Id.; see also State v. Schiappa, 248 Conn. 132, 165, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Dash, 242 Conn. 143, 151-52, 698 A.2d 297 (1997); State v. Walton, 227 Conn. 32, 64-65, 630 A.2d 990 (1993). The defendant’s claim does not pertain to the elements of the offenses in question, the state’s burden of proof or the presumption of innocence, nor does the defendant make such an argument. Accordingly, it does not merit Golding review. See State v. Golding, supra, 213 Conn. 239-40.

The defendant also cannot prevail on his claim pursuant to the plain error doctrine. Although the issue raised is important, upon our review of the entire record, we cannot conclude that the present case presents one of the truly extraordinary situations in which the existence of the claimed error is so obvious that it affects the fairness and integrity of, and public confidence in, the judicial proceedings. See State v. Cutler, supra, 293 Conn. 326.

B

The defendant also challenges the court’s instruction regarding expert witness testimony. He argues that the charge improperly failed to include an instruction that Edell’s testimony was not intended to address the ultimate question of whether the victim’s allegations were true. Having failed to submit a request to charge the jury or to object to the court’s instruction, the defendant did not preserve this claim for review. We will not review the claim under Golding, as it is not of constitutional magnitude. See State v. LaBrec, supra, 270 Conn. 557. We further find nothing in the record to convince us that the issue merits reversal for plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .”

       General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”

       General Statutes (Rev. to 2001) § 53-21 (a), as amended by Public Acts 2002, No. 02-138, § 4, provides in relevant part: “Any person who ... (2) has contact wilh the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects' a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony for a violation of subdivision (2) of this subsection.”

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, a defendant may prevail on an unpreserved claim of error only if: “(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.”

       The defendant in Jason B. had argued that in amending General Statutes (Rev. to 1993) § 53a-71 (a) (1) to include “an exemption from criminal liability for those persons engaging in consensual sexual intercourse with persons not more than two years their junior,” the legislature also implicitly modified § 53-21 to include a similar age requirement for the defendant charged under the latter statute. State v. Jason B., supra, 248 Conn. 564.

       A conviction of sexual assault in the second degree under § 53a-71 (a) (1) requires proof that (1) the defendant engaged in sexual intercourse (2) with another person who was thirteen years of age or older but under sixteen years of age and (3) the defendant was more than two years older than such person.

       Section 6-11 (c) of the Connecticut Code of Evidence provides: “Constancy of accusation by a sexual assault victim. A person to whom a sexual assault victim has reported the alleged assault may testify that the allegation was made and when it was made, provided the victim has testified to the facts of the alleged assault and to the identity of the person or persons to whom the assault was reported. Any testimony by the witness about details of the assault shall be limited to those details necessary to associate the victim’s allegations with the pending charge. The testimony of the witness is admissible only to corroborate the victim’s testimony and not for substantive purposes.”

       For example, before the prosecutor began his examination of T, the court instructed the jury: “Ladies and gentlemen, before this testimony begins, I want to explain a couple of things to you. There are times when evidence is admitted for a limited purpose. You can use it for one purpose, but you can’t use it for another purpose. The testimony here is going to be one of those situations. So, I want to tell you at this point the purpose for which you can use the testimony that [T] is about to give. The evidence by this witness is admitted solely to corroborate or not corroborate the complainant’s testimony in court. It is to be considered by you only in determining the weight and credibility you will give to the complainant’s testimony given here in court. This evidence of out-of-court statement by the complainant of an alleged sexual assault against her, that is, the complainant, by the defendant, is not to be considered by you to prove the truth of the matter asserted, that is, the proof of what is said in those out-of-court statements, but it is to be presented for you to consider in assessing the credibility for you to give to the complainant’s in-court testimony.” The court gave substantially the same instruction prior to the testimony of B and S and also repeated a similar instruction following S’s testimony.


source: Caselaw Access Project

author: BISHOP, J.

license: Public Domain

text:
    JACKSON, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF AVON
    (AC 30401)
    Bishop, Lavine and Dupont, Js.

      Argued September 15
    officially released December 1, 2009

      Robert A. Fuller, with whom, on the brief, was Stuart D. Rosen, for the appellant (plaintiff).

      Michael A. Zizka, with whom, on the brief, was Lana M. Glovach, for the appellee (defendant).
   Opinion

BISHOP, J.

The plaintiff, Jackson, Inc., appeals from the judgment of the trial court dismissing its appeal from the decision of the planning and zoning commission of the town of Avon (commission). On appeal, the plaintiff claims that the court improperly determined that the commission had the authority to deny its subdivision application based only on one general provision in the town’s subdivision regulations when the plaintiff had complied with all of the specific provisions in the regulations. The plaintiff further contends that the court improperly concluded that there was substantial evidence in the record to support the commission’s reasons for the denial of the application. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts are relevant to the resolution of the plaintiffs appeal. The plaintiff filed an application with the commission seeking to subdivide a 155 acre parcel of land for residential uses. The original application proposed 110 building lots, but that number was later reduced to ninety-seven during the application process. The land consisted of large areas of wetlands, steep slopes and rocky ledges. The commission denied the plaintiffs application on the ground that it did not comply with § 1.11 of the Avon subdivision regulations (subdivision regulations), entitled “Character of the Land,” concluding essentially that the topography of the land rendered it unsuitable for the plaintiffs proposal. Thereafter, the plaintiff appealed to the Superior Court. The court dismissed the plaintiffs appeal, stating that the commission’s decision was not unreasonable, arbitrary or illegal and that it was supported by substantial evidence in the record. This appeal followed.

The plaintiff first claims that the court improperly concluded that the commission was entitled to deny the application solely on the basis of a general provision in the subdivision regulations, namely, § 1.11, when the plaintiff had complied with all of the specific provisions in the zoning and subdivision regulations. As part of this claim, the plaintiff asserts that § 1.11 of the subdivision regulations is so broad and vague that its application yields unbridled authority to the commission. Because the plaintiffs claim presents a question of law, our review is plenary. See Jewett City Savings Bank v. Franklin, 280 Conn. 274, 278, 907 A.2d 67 (2006).

Section 1.11 of the subdivision regulations provides: “Land which the Commission finds to be unsuitable for subdivision or development, due to flooding, improper drainage, steep slopes, rock formations, adverse earth formations or topography, utility easements, or other features will reasonably be harmful to the safety, health, and general welfare of the present or future inhabitants of the subdivision and/or its surrounding areas, shall not be subdivided or developed unless adequate methods are formulated by the developer and approved by the Commission, upon recommendation of the Town Engineer and Director of Health, to solve the problems created by the unsuitable land conditions. Such land shall be set aside for uses as shall not involve such a danger.” In dismissing the plaintiffs appeal, the court concluded that “the commission was dealing with a proposed subdivision on land that was unsuitable for subdivision development. The criteria for determining unsuitable land are set forth in § 1.11 of the [subdivision] regulations as land that is wet, rocky, steep and of adverse topography. Those criteria are objective and detailed. It is impossible or impractical to draft more precise standards that apply to such land. The many variables involved clearly preclude it. Section 1.11 recognizes that when a subdivision application is proposed on such a difficult land, the only practical way to deal with it is for the developer to present a plan that the commission in its best judgment can approve. Conced-edly, some discretion is left to the commission, but under the circumstances it is necessary. There is the possibility of arbitrariness. But the situation of such topography prevents no fixed or more detailed criteria to apply. . . . Thus . . . § 1.11 of the . . . subdivision regulations is reasonably precise and sufficient to guide both the plaintiff and the commission, and can be validly applied in this case.” (Citation omitted.)

We are aware, of course, that “[t]he subdivision regulations upon which the commission, acting administratively, should rule must contain known and fixed standards applying to all cases of a like nature .... The standard for determining the adequacy of subdivision regulations [therefore] is whether they are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations. . . . Although some standards may be general, the regulation must be reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases.” (Citation omitted; internal quotation marks omitted.) Harris v. Zoning Commission, 259 Conn. 402, 429, 788 A.2d 1239 (2002).

As the commission points out, our Supreme Court confronted a similar argument in Forest Construction Co. v. Planning & Zoning Commission, 155 Conn. 669, 236 A.2d 917 (1967). In Forest Construction Co., the town planning and zoning commission denied the subdivision application on the ground that the applicant proposed only one route of access into and out of the subdivision, thereby creating potential traffic hazards. Id., 673. In reaching its conclusion, the commission relied on a subdivision regulation providing that “[t]he commission reserves the right to reject applications for the development of land when such development might be hazardous to the health and welfare of the community.” (Internal quotation marks omitted.) Id., 675. Our Supreme Court held: “It is unrealistic to demand detailed standards which are impracticable or impossible. ... As the complexity of economic and governmental conditions increases, the modem tendency is liberal in approving broad regulatory standards so as to facilitate the operational functions of administrative boards or commissions. It is apparent that the regulations are within the purview of the enabling act, and the criteria contained in the commission’s regulations are as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations. . . . Although some of the standards may be general in their terms, they are reasonably sufficient to identify the criteria to be evaluated in their enforcement in order to meet the many variables involved since it would be impossible to establish one standard which would adequately cover all future cases.” (Citations omitted.) Id., 679-80.

Similarly, in Blakeman v. Planning Commission, 152 Conn. 303, 206 A.2d 425 (1965), the town planning commission denied a resubdivision application on the ground that the intersection of the proposed road with the existing road would not be safe because the roads would intersect on a slope, thus providing a “ ‘poor sight distance,’ ” and also because problems would arise with surface drainage on the existing road. Id., 305. The regulation relied on by the commission required that streets be designed to provide “ ‘safe and convenient’ ” access to proposed lots and a safe system for traffic. Id. The Supreme Court held: “The conditions which might make an intersection unsafe are many and varied. No one standard could ever be adopted to cover adequately all future cases. Judgment and experience must be applied in each instance, and an administrative agency such as the defendant may act upon its own knowledge and observation, as well as the evidence presented to it at a hearing.” Id., 307.

Here, it is clear that the intent of § 1.11 is to ensure that proper provisions be made for flooding, drainage and soil erosion, the extent of which depend on the topographic character of the land sought to be developed. It would be impractical to attempt to establish regulations that would address every possible concern regarding topographic or other natural conditions of land. Because the appropriate measures to be taken will necessarily vary with the character of the land subject to the subdivision application, we believe that the criteria contained in § 1.11 are “as reasonably precise as the subject matter requires and are reasonably adequate and sufficient to guide the commission and to enable those affected to know their rights and obligations.” Nicoli v. Planning & Zoning Commission, 171 Conn. 89, 93, 368 A.2d 24 (1976). Accordingly, we conclude that the failure to comply with § 1.11 is a sufficient basis for the denial of a subdivision application.

We next consider whether the evidence before the commission adequately supports the reasons given for its decision. “In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [c]onclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Internal quotation marks omitted.) Loring v. Planning & Zoning Commission, 287 Conn. 746, 756, 950 A.2d 494 (2008). “[Ejvidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Unistar Properties, LLC v. Conservation & Inland Wetlands Commission, 293 Conn. 93, 114, 977 A.2d 127 (2009).

Here, the record amply supports the commission’s decision. The commission heard evidence that more than 400,000 cubic yards of cuts and 400,000 cubic yards of fill would have to be moved about the subject property. The commission was also presented with evidence that a substantial amount of blasting and regrading would be required to develop the site. The plaintiff contends that this evidence, however, is not significant because it is not atypical, and its proposal is similar to other area subdivisions that the commission had approved. In regard to nearby sites, however, the commission noted that it had received reports of problems in those subdivisions related to drainage and erosion. Although § 1.11 does not contain specific proscriptions as to amounts of cutting, blasting, regrading or earth removal that would be regarded as excessive, the commission members are entitled to rely on their expertise and judgment concerning matters within their knowledge, particularly drawing on past experience for guidance. See Lee & Lamont Realty v. Planning & Zoning Commission, 112 Conn. App. 484, 488, 963 A.2d 98 (2009). On the basis of the foregoing and our thorough examination of the record, we conclude that the denial of the plaintiffs subdivision application was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the commission stated that it denied the plaintiffs application because “[s]ection 1.11 of the subdivision regulations, Character of the Land, has not been met:
      “CHARACTER OF THE LAND — Land which the Commission finds to be unsuitable for subdivision or development, due to flooding, improper drainage, steep slopes, rock formations, adverse earth formations or topography, utility easements, or other features will reasonably be harmful to the safety, health, and general welfare of the present or future inhabitants of the subdivision and/or its surrounding areas, shall not be subdivided or developed unless adequate methods are formulated by the developer and approved by the Commission, upon recommendation of the Town Engineer and Director of Health, to solve the problems created by the unsuitable land conditions. Such land shall be set aside for uses as shall not involve such a danger.
      “The number of requested building parcels and road configurations result in too great of a disturbance to the site with approximately 800,000 [cubic yards] of cuts and fills with a surplus of 65,000 [cubic yards] of material. The resulting blasting, crushing, and transporting of material may be reasonably harmful to the present inhabitants of the surrounding areas. Additionally, the intense development of similar sites within the Huckleberry Hill area have demonstrated the ongoing erosion problems which impact future inhabitants of the developments and surrounding areas.
      “The proposed development parcel should be reasonably developed with a road circulation pattern and individual building parcels configured to fit the topography and individual home styles also fitting the topography of the building parcels. A significant reduction in the number of building lots may result in a plan that does not require a road circulation pattern with the required connection to the Craigemore Circle/Lovely Street intersection. The public safety concerns may be addressed with individual residential fire suppression systems and the connection of Princeton Drive and the westerly future extension of the Wood Creek Road temporary cul-de-sac.”

       The plaintiff does not claim that the commission did not have the authority to enact § 1.11 of the subdivision regulations.


author: ALVORD, J.

text:
    SOPHIE ELLIS, EXECUTRIX (ESTATE OF JANE HUBERMAN) v. JEFFREY COHEN ET AL.
    (AC 30326)
    Harper, Alvord and Foti, Js.
    Argued September 23

    officially released December 1, 2009

      Michael Huberman, pro se, the appellant (plaintiff Michael Huberman, executor of the estate of Jane Huberman).

      James M. Tanski, with whom was Amy F. Goodusky, for the appellee (named defendant et al.).

      Andrew S. Wildstein, with whom, on the brief, was Frank H. Santoro, for the appellee (defendant Hartford Hospital).
   Opinion

ALVORD, J.

In this medical malpractice action, the plaintiff Michael Huberman, coexecutor of the estate of Jane Huberman, appeals from the trial court’s denial of his motion to vacate a judgment of nonsuit rendered in favor of the defendants. We dismiss the appeal.

The following facts and procedural history are relevant to our decision. In March, 2003, the plaintiff Sophie Ellis, as executrix of the estate of the decedent, Jane Huberman, brought this medical malpractice action against the defendants, Jeffrey Cohen and Scott Fec-teau, the decedent’s physicians, Hartford Hospital and Connecticut Surgical Group, Inc., alleging wrongful death in violation of General Statutes § 52-555. Michael Huberman, the son of the decedent and the brother of Ellis, was later made coexecutor of the estate and joined in the present action as a plaintiff. During pretrial litigation the estate was represented by three successive attorneys until January, 2008, when coexecutor Huber-man sought to provide exclusive representation to the estate. Huberman is not a lawyer.

On April 17, 2008, Huberman attempted to appear on behalf of the estate at a trial management conference. The court, McWeeny, J., sua sponte questioned the propriety of his appearance and, on April 21, 2008, prohibited Huberman from representing the estate. The court ordered a licensed attorney to appear for the estate by the next trial management conference scheduled for June 25, 2008. Huberman, however, continued to act without counsel, and, on June 27, 2008, the defendants moved for a judgment of nonsuit. The court granted the defendants’ motion on July 7, 2008.

On August 7,2008, Huberman filed a motion to vacate the court’s April 21, 2008 order prohibiting him from representing the estate and the July 7, 2008 judgment of nonsuit. The motion was denied on August 25, 2008. Thereafter, on September 15, 2008, Huberman filed this appeal. He claims that Judge McWeeny’s April 21, 2008 order and July 7,2008judgment violated his due process rights. We conclude that Huberman, as a nonlawyer, does not have authority to maintain an appeal on behalf of the estate. Consequently, we dismiss his appeal.

General Statutes § 51-88 (a) provides in relevant part that “[a] person who has not been admitted as an attorney under the provisions of section 51-80 shall not . . . [pjractice law or appear as an attomey-at-law for another, in any court of record in this state . . . .” Subsection (d), however, provides an exception for pro se litigants. It states that “[t]he provisions of this section shall not be construed as prohibiting . . . any person from practicing law or pleading at the bar of any court of this state in his own cause . . . .” General Statutes § 51-88 (d) (2). Huberman argues that this exception applies to his case. He contends that because General Statutes § 52-555 authorizes an executor to bring an action on behalf of an estate, it necessarily also authorizes the executor to self-represent the estate. Much like the plaintiff in Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, 34 Conn. App. 543, 551, 642 A.2d 62, cert. denied, 230 Conn. 915, 645 A.2d 1018 (1994), Huberman claims that he is the only real party in interest. He argues that the resignation of Ellis as coexecutrix eliminated any possible violation of § 51-88 (a) and, in effect, made the estate’s wrongful death action his own. We disagree.

“The authorization to appear pro se is limited to representing one’s own cause, and does not permit individuals to appear pro se in a representative capacity.” Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, supra, 34 Conn. App. 546. An estate is not a legal entity. Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 600, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985). It can neither sue nor be sued. Id. Like a corporation, it “speaks only by virtue of personification.” (Internal quotation marks omitted.) Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, supra, 547. Thus, § 52-555 creates a cause of action for wrongful death that is maintainable on behalf of the estate only by an executor or administrator. Although the statute vests standing to bring such action exclusively in the administrator or the executor, it does not create an individual right of action. Thus, an executor who brings an action pursuant to § 52-555 does so in his representative, fiduciary capacity, not as an individual plaintiff. Because the executor’s “own cause” is not before the court, he has no right of self-representation. Accordingly, Huberman’s “pro se” appearance before this court constitutes the unauthorized practice of law in violation of § 51-88.

The appeal is dismissed.

In this opinion the other judges concurred.

       Summary judgment was rendered in favor of Fecteau on January 8, 2008, and he is not a party to this appeal. References in this opinion to the defendants are to Cohen, Hartford Hospital and Connecticut Surgical Group, Inc.

       Huberman was named coexecutor in September, 2003, and was joined in his representative capacity as a plaintiff on November 10, 2003.

       The original complaint was filed by attorney Marjorie Drake. Drake was replaced on August 4, 2003, by Michael Walsh of Moukawsher & Walsh, LLC. Walsh withdrew as counsel on March 28, 2007. On the same day, Huberman filed his first “pro se” appearance. Although the record also reflects an additional, albeit brief, appearance by the Gallagher Law Firm from October 18, 2007, until January 28, 2008, Huberman has attempted to represent the estate without the assistance of a licensed attorney since the Gallagher Law Firm’s withdrawal.

       Cohen and the Connecticut Surgical Group, Inc., previously had moved to strike the appearance of Huberman, but their motion was denied on February 11, 2008, by the court, Bentivegna, J.

       The motion for nonsuit was filed by Cohen and the Connecticut Surgical Group, Inc., on June 27, 2008, and was joined by Hartford Hospital on June 30, 2008.

       Notice of the judgment of nonsuit issued on July 14, 2008.

       The defendants moved to dismiss Huberman’s appeal as untimely. They claimed that the court’s April 21, 2008 order was not an appealable final judgment. They also noted that Huberman’s August 7,2008 motion to vacate was filed more than twenty days after notice of the court’s July 7, 2008 judgment issued. As a result, they claimed that Huberman’s motion to vacate did not extend the appeal period and that the Huberman’s September 15, 2008 appeal is untimely as to the merits of the July 7, 2008 decision. We agreed and granted the defendants’ motion to dismiss as to the April 21, 2008 order and the July 7, 2008 judgment.
      Thus, the only possible issue that could be raised on its merits by Huber-man’s September 15, 2008 appeal is whether the court abused its discretion when it denied his motion to vacate. See Flater v. Grace, 291 Conn. 410, 419, 969 A.2d 157 (2009) (“[w]hen a motion to open is filed more than twenty days after the judgment . . . the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment” [internal quotation marks omitted]).

       This court sua sponte questioned whether Huberman’s attempted representation of the estate constituted the unauthorized practice of law and, if so, whether his appeal should be dismissed. The parties were notified to be prepared to address this issue at argument and were given additional time to brief the matter.

       General Statutes § 52-555 (a) provides in relevant part: “In any action surviving to or brought by an executor or administrator for injuries resulting in death . . . such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses . . . .”

       In Expressway Associates II, this court held that “an individual who is not an attorney and who is a general partner of a partnership may not appear and participate, pro se, in an appeal on behalf of a general partnership.” Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut, supra, 34 Conn. App. 551.

       On June 29, 2008, Ellis resigned as coexecutrix of the estate and disclaimed any property interest she may have had in the present action. Following Ellis’ resignation, Huberman became the sole executor of the estate.

       See Isaac v. Mount Sinai Hospital, supra, 3 Conn. App. 600-601 (“Death, at common law, is not a recoverable element of damage. ... It is only by reason of statute that a death action is maintainable in Connecticut. [General Statutes § 52-555] provides for the bringing of such an action by either an executor or an administrator; it does not confer on anyone else, including the parents of a decedent, any right to bring such an action individually.” [Citations omitted; internal quotation marks omitted.]).

       To the extent that Huberman argues that his pro se appearance should be allowed because he is really representing himself as a beneficiary of the estate, he is misguided. An executor has a fiduciary duty to maintain undivided loyally to the estate including its heirs, distributees and creditors. Hall v. Schoenwetter, 239 Conn. 553, 559, 686 A.2d 980 (1996). He cannot act in self-interest or use his position as executor to vindicate his personal interests as a beneficiary and skirt the narrow standing requirements of § 52-555.