author: MIHALAKOS, J.

text:
    MICHAEL BARIS v. SOUTHBEND, INC.
    (AC 21115)
    Schaller, Mihalakos and Daly, Js.
    Argued October 22, 2001
    officially released March 5, 2002

      James D. Diamond, for the appellant (plaintiff).

      Thomas F. Kelsey, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

Following the commencement of this negligence action by the plaintiff, Michael Baris, against the defendant company, Southbend, Inc., the trial court rendered judgment of nonsuit and dismissal against the plaintiff. The plaintiff challenges the subsequent denial of his motion for reargument and reconsideration of the judgment of nonsuit. The plaintiff claims on appeal that the court (1) prejudiced him with confusing actions and contradictory rulings, (2) set aside the judgment of dismissal as to the plaintiff when it granted an intervening plaintiffs motion to open the judgment of dismissal, (3) improperly denied his motion to set aside the judgment of nonsuit and (4) improperly denied his motion for reargument and reconsideration. We affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiff commenced this action on January 14, 1997. On April 18, 1997, the defendant served a discovery request on the plaintiff. On April 28, 1997, the plaintiff filed a motion seeking an extension of time of thirty days to respond to the discovery request. Meanwhile, on June 3, 1997, the plaintiffs employer, Connecticut Health Facilities, Inc. (intervening plaintiff), filed a motion to intervene in the action along with a complaint against the defendant seeking to recover $25,916, which the intervening plaintiff had paid in workers’ compensation benefits to the plaintiff. The court granted the motion to intervene on December 1, 1997.

On August 1, 1997, the defendant filed a motion for a judgment of nonsuit against the plaintiff. On March 23, 1998, the court granted the motion and rendered a judgment of nonsuit against the plaintiff for failure to answer the discovery request. On June 19, 1998, the court dismissed the case, pursuant to its dormancy policy and Practice Book § 14-3, for failure to prosecute the action with reasonable diligence. Notice of the dormancy dismissal issued on August 25, 1998, and specified that a motion to open the judgment of dismissal could be filed within four months of the date of notice. The plaintiff did not file such a motion within the time limitation.

Previously, however, on July 17, 1998, the plaintiff had filed a notice indicating that he had complied with the defendant’s one year old discovery request. At the same time, the plaintiff also timely filed a motion to open the judgment of nonsuit. In that motion, he argued that the judgment should be opened because the information sought by the discovery request had been unavailable and that he obtained it recently and responded accordingly. On August 17, 1998, the court denied that motion.

On September 23,1998, the intervening plaintiff filed a motion to open the judgment of dismissal. In its motion, the intervening plaintiff sought specifically to proceed alone against the defendant, arguing that it had an independent cause of action even in the absence of the nonsuited plaintiff. The court granted the motion on October 13, 1998, opening the case as between the defendant and the intervening plaintiff. Notice of the ruling issued on October 20, 1998.

From November, 1998, until June, 2000, the plaintiff and the defendant engaged each other and the court in procedural wrangling over the plaintiffs status in the underlying action. Two proceedings highlight the morass of filings that ensued during this time. First, on October 16, 1999, the plaintiff, in an objection to the defendant’s motion for order, argued that the December 1, 1997 ruling, which opened the judgment of dismissal as to the intervening plaintiff, also applied to him. The court denied the defendant’s motion on October 25, 1999, refusing to issue an advisory opinion on the plaintiffs status. Second, on January 10, 2000, the court ruled against the plaintiff in another round of competing motions regarding discovery requests and noted that the plaintiffs case had been nonsuited on March 23, 1998. Notice of this order issued on January 13, 2000.

On June 28, 2000, more than two years after the judgment of nonsuit, the plaintiff filed a motion requesting that the court delineate its findings of fact in support of its judgment of nonsuit and its denial of his motion to open that judgment. The plaintiff also filed a motion to set aside the judgment of dismissal and a motion for reargument and reconsideration of the judgment of nonsuit and the denial of his motion to open that judgment. On July 5, 2000, the defendant objected to the latter two motions, arguing that both were filed untimely. On July 17, 2000, the court effectively denied all three of the plaintiffs motions when it sustained the defendant’s objection and denied the plaintiffs motion for reargument and reconsideration. On August 9, 2000, the plaintiff appealed.

I

The plaintiff first contends that the court prejudiced him with confusing actions and contradictory rulings, which led him to believe that he was still an active party in the underlying action. We decline to address this claim. “[F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Citations omitted; internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 623, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001). Here, the plaintiff makes only the bare assertion that the court caused confusion, but he cites no legal authority relevant to or supporting the claim and fails to analyze the relationship of the law that he does cite with the facts of the case. We decline, therefore, to review this claim and deem it abandoned.

II

The plaintiff next argues that the court, in granting the intervening plaintiffs motion to open the judgment of dismissal, also set aside the judgment of dismissal as to the plaintiff. In support of this assertion, the plaintiff contends that when the court opened the judgment of dismissal it failed to state specifically to which parties its ruling applied. The plaintiff argues that as a result, he was misled by the court into believing that he was again an active party in the case. This claim is simply without merit.

The court dismissed the plaintiffs case on June 19, 1998, and issued notice of the dismissal on August 25, 1998, which instructed the plaintiff that he could file a motion to open the judgment of dismissal within four months of the date of notice. The plaintiff failed to file such a motion. Subsequently, the intervening plaintiff filed a motion to open the judgment of dismissal. That motion requested solely and specifically, however, that the court open the judgment as to the intervening plaintiff so that it could pursue its independent cause of action against the defendant, even in the absence of the plaintiff as a party. The intervening plaintiffs motion also noted particularly that the pleadings with regard to the plaintiff were closed “by virtue of the court’s having granted against said plaintiff a motion for nonsuit.”

Moreover, the plaintiff cites no authority supporting his assertion other than to state that courts have the inherent power to open judgments. It does not follow here that the court opened the judgment as to the plaintiff simply because it would have had that power if the plaintiff had filed a proper motion. See Practice Book § 17-4. Similarly, the court’s exercise of discretion in favor of the intervening plaintiff as to its timely filed motion to open the judgment of dismissal did not open the judgment as to the plaintiff just because the plaintiff desired it to have that effect. Thus, on this record, it is specious to claim that the court opened the judgment of dismissal as to the plaintiff, and we can find no authority that would suggest otherwise. We conclude, therefore, that the plaintiffs claim is baseless and of no avail.

Ill

The plaintiff next contends that the court improperly denied his timely motion to set aside the judgment of nonsuit. In support of this claim, the plaintiff points to the fact that he complied fully with the defendant’s year old discovery request and notified the court of that compliance. The plaintiff submits that he showed the court reasonable cause for his delay because he claimed in his motion that the information necessary for him to comply with the discovery request was not available to him ear lier. The plaintiff further claims that the judgment of nonsuit was an unduly harsh result and an abuse of the court’s discretion, especially in light of the facts that he complied with the discovery request and the court had less harsh remedies available even if he had not complied. The plaintiffs claim is without merit.

The plaintiffs motion to set aside the judgment of nonsuit was subject to the requirements of General Statutes § 52-212 and Practice Book § 17-43, which substantially follows the language of the statute. See Biro v. Hill, 231 Conn. 462, 466, 650 A.2d 541 (1994); McLaughlin v. Smoron, 62 Conn. App. 367, 372, 771 A.2d 201 (2001). To fulfill these requirements, a “plaintiff must establish that a good cause of action, the nature of which must be set forth, existed when the judgment of nonsuit was rendered, and that the plaintiff was prevented from prosecuting it because of mistake, accident or other reasonable cause. ... In ruling on a motion to open a judgment of nonsuit, the trial court must exercise sound judicial discretion, which will not be disturbed on appeal unless there was an abuse of discretion. ... In reviewing the trial court’s exercise of its discretion, we make every presumption in favor of its action.” (Citations omitted.) Biro v. Hill, supra, 467-68.

The plaintiff did not comply with the statutory mandates and the rules of practice in his motion. The plaintiff failed to have his motion verified under oath by himself or his attorney, neglected to state the nature of his action and ignored his obligation to present his reason for the delay with any degree of particularity. We have held that a court may decline to grant a motion to set aside a judgment of nonsuit that fails to conform to the requirements of § 52-212 or Practice Book § 17-43. See Bufferd v. Yost, 51 Conn. App. 1, 3-4, 719 A.2d 487 (1998). In addition, even if we assumed that the court could have imposed less harsh remedies on the plaintiff, “ [o]ur role as an appellate court is not to substitute our judgment for that of a trial court that has chosen one of many reasonable alternatives.” (Internal quotation marks omitted.) Hartford v. Pan Pacific Development (Connecticut), Inc., 61 Conn. App. 481, 487, 764 A.2d 1273, cert. denied, 256 Conn. 913, 772 A.2d 1126 (2001). Accordingly, we conclude that the court acted reasonably and did not abuse its discretion in denying the plaintiffs motion.

IV

The plaintiffs final claim is that the court committed a miscarriage of justice when it denied his motion for reargument and reconsideration because the judgment of nonsuit was an overly harsh remedy for his failure to comply with discovery and because the court’s actions and rulings were misleading. We disagree.

“Our standard of review regarding challenges to a trial court’s ruling on a motion for reconsideration is abuse of discretion.” (Internal quotation marks omitted.) Id. Furthermore, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Biro v. Hill, supra, 231 Conn. 465. In addition, where a motion is addressed to the discretion of the court, the burden of proving an abuse of that discretion rests with the appellant. See Allstate Ins. Co. v. Link, 35 Conn. App. 338, 345, 645 A.2d 1052, cert. denied, 231 Conn. 924, 648 A.2d 161 (1994).

The plaintiff argued in his motion for reconsideration that he still had a good cause of action because the court set aside the judgment of dismissal as to the plaintiff when it opened that judgment as to the intervening plaintiff. As discussed in part II of this opinion, this argument is of no avail to the plaintiff. Moreover, as discussed in part III of this opinion, the court reasonably imposed its judgment of nonsuit against the plaintiff. Furthermore, to the extent that in his motion for reconsideration the plaintiff made the same claims to the court regarding his compliance with the defendant’s discovery request as he made in his motion to open the judgment of nonsuit, we see nothing that would warrant the court’s opening of the judgment. See Taylor v. Taylor, 57 Conn. App. 528, 534, 752 A.2d 1113 (2000). Consequently, we conclude that the plaintiffs claim fails because he has not met his burden of proving that the court abused its discretion in denying his motion. See Allstate Ins. Co. v. Link, supra, 35 Conn. App. 345. The court did not, therefore, perpetrate a miscarriage of justice; rather, it served justice in accordance with its function.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs action for damages was based on allegations that, during the course of his employment, he suffered psychological distress, scarring and severe bums to his legs, feet and left hand from hot water that spilled from a defective convection steamer manufactured by the defendant.

       The extension of time lapsed with no response from the plaintiff.

       Practice Book § 14-3 (a) provides in relevant part: “If a party shall fail to prosecute an action with reasonable diligence, the judicial authority may ... on its own motion, render a judgment dismissing the action with costs. . . .”

       The plaintiff states in his brief that all three motions were denied eventually but he does not disclose when and the dates do not appear clearly in the record.

       Even if we were to consider the plaintiffs “confusion” claim, the record clearly indicates that he was no longer a party to this case after the court rendered its judgment of nonsuit. Thus, the allegedly confusing events, all of which occurred after the judgment of nonsuit, were irrelevant.

       For this proposition, the plaintiff relies accurately on Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 462 A.2d 1037 (1983). In that case, our Supreme Court stated: “Courts have an inherent power to open, correct and modify judgments. . . . A civil judgment of the Superior Court may be opened if a motion to open or set aside is filed within four months of the issuance of judgment. . . . While such a motion should not be readily granted nor without strong reasons, it ought to be when there appears cause for which the court acting reasonably would feel bound in duly so to do.” (Citations omitted; internal quotation marks omitted.) Id., 710-11.

       Practice Book § 17-4 (a) provides in relevant part: “Unless otherwise provided by law and except in such cases in which the court has continuing jurisdiction, any civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which notice was sent. . . .”

       General Statutes § 52-212 provides in relevant part: “(a) Any judgment rendered . . . upon a default or nonsuit in the Superior Court may be set aside within four months following the date on which it was rendered or passed, and the case reinstated on the docket . . . upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment. . . and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense.
      “(b) The complaint or written motion shall be verified by the oath of the complainant or his attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or defendant failed to appear. . . .”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    KENNETH YANCEY v. CONNECTICUT LIFE AND CASUALTY INSURANCE COMPANY
    (AC 21088)
    Lavery, C. J., and Schaller and Dranginis, Js.
    Argued October 22, 2001
    officially released March 5, 2002

      John R. Williams, for the appellant (plaintiff).

      David P. Friedman, with whom, on the brief, was Sarah W. Poston, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Kenneth Yancey, appeals from the judgment of the trial court rendered following the granting of the defendant’s motion for summary judgment on the plaintiffs claim of wrongful termination. The plaintiff claims on appeal that the trial court improperly concluded that the evidence he presented, including testimony regarding the defendant’s alleged motive for terminating his employment, did not raise a genuine issue of material fact. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On September 16, 1996, the defendant, Connecticut Life and Casualty Insurance Company, hired the plaintiff as an at-will employee to be its director of sales and marketing. In his position as director of sales and marketing, the plaintiff was expected to “lead the sales and service functions to capitalize on all of [the defendant’s] capabilities.” Specifically, this position required the plaintiff, inter alia, to expand a telemarketing force able to add a significant number of new prospects annually, to acquire and train agents, to implement a control program to monitor effectively the efforts of all sales and service personnel, and to accomplish the growth rates as outlined in the plaintiffs compensation program. On September 30, 1996, the defendant terminated the plaintiffs employment after a total of two weeks.

The defendant’s uncontroverted evidence established that during the two weeks in its employ, the plaintiff demonstrated a lack of skill with respect to not only his own responsibilities as a director, but also the basic skills required of the employees he was hired to train and supervise. The defendant asserts that it terminated the plaintiffs employment for that reason.

On April 20, 1999, the plaintiff filed a three count revised complaint alleging wrongful termination in violation of various Connecticut public policies, intentional infliction of emotional distress and negligent infliction of emotional distress. On June 22, 1999, the court granted the defendant’s motion to strike the second and third counts. See footnote 1. On June 7, 2000, the defendant moved for summary judgment on the remaining count. On July 24, 2000, the court granted the defendant’s motion for summary judgment.

We begin by setting forth the appropriate standard of review of a trial court’s decision to grant a motion for summary judgment. “On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).

“Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Citation omitted; internal quotation marks omitted.) Id., 380.

“A material fact is a fact that will make a difference in the outcome of the case. Hammer v. Lumberman’s Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue .... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § 380 [now § 17-45]. . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents.” (Internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn. App. 725, 729, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). With this standard in mind, we now determine whether the court’s conclusion that the plaintiff failed to establish the existence of a genuine issue of material fact as to why he was terminated was legally and logically correct.

In alleging that his termination was not premised on unsatisfactory performance, but rather in retaliation for his protesting company policies and programs that were unlawful or contrary to the public policy of the state of Connecticut, we note that the plaintiff relies on the exception to the general rule regarding the termination of at-will employees. Generally, “contracts of permanent employment, or for an indefinite term, are terminable at will.” Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 474, 427 A.2d 385 (1980). In Sheets, however, the court also “recognized a common law cause of action in tort for the discharge of an at will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy.” (Emphasis in original; internal quotation marks omitted.) Carbone v. Atlantic Richfield Co., 204 Conn. 460, 466-67, 528 A.2d 1137 (1987), quoting Sheets v. Teddy’s Frosted Foods, Inc., supra, 475. This exception has been narrowly construed. See Battista v. United Illuminating Co., 10 Conn. App. 486, 497, 523 A.2d 1356, cert. denied, 204 Conn. 803, 525 A.2d 1352 (1987). For example, we have recognized a limitation on this exception in that the plaintiff must also be otherwise without a remedy. Atkins v. Bridgeport Hydraulic Co., 5 Conn. App. 643, 648, 501 A.2d 1223 (1985).

To prevail on his claim under the Sheets exception, the plaintiff “has the burden of pleading and proving that his dismissal occurred for a reason violating public policy.” (Emphasis added.) Morris v. Hartford Courant Co., 200 Conn. 676, 679, 513 A.2d 66 (1986). “[E]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact. Wadia Enterprises, Inc. v. Hirschfeld, [224 Conn. 240, 250, 618 A.2d 506 (1992)].” (Internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., supra, 40 Conn. App. 732.

The plaintiff argues that he raised a genuine issue of material fact in the affidavit that he filed in opposition to the motion for summary judgment. In particular, the plaintiff asserts that he raised an issue concerning the reason for his termination. The defendant responds that the affidavit in question asserted only vague conclusions, rather than specific issues of fact. The court determined that the plaintiff failed to raise any reasonable legitimate factual questions in response to the defendant’s motion and granted the motion for summary judgment on that ground.

Our thorough review of the record reveals that the plaintiff has failed to present the necessary factual predicate to raise a genuine issue of fact under the Sheets exception, namely, that his dismissal occurred for a reason that violated public policy. The affidavits filed by the defendant detailed the plaintiffs deficient performance. In response, the plaintiffs affidavit, which consisted of a lengthy narrative, provided only vague generalizations concerning his dissatisfaction with the job and the defendant’s alleged motive for discharging him. It did not supply the factual predicate necessary to support his contention that he was discharged for a demonstrably improper reason. We agree with the trial court’s determination.

The uncontroverted evidence provided by the affidavits demonstrated that the defendant was entitled to judgment as a matter of law. Because the plaintiff failed to demonstrate the existence of a genuine issue of material fact, the trial court’s decision to grant the motion for summary judgment was legally and logically correct.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint contained two additional counts, intentional infliction of emotional distress and negligent infliction of emotional distress. The defendant filed a motion to strike those counts, which the court granted on June 22, 1999. After those two counts were stricken, the plaintiff did not replead. Therefore, because the remaining count has been disposed of by way of a motion for summary judgment, the plaintiffs appeal is taken from a final judgment. Breen v. Phelps, 186 Conn. 86, 91 n.7, 439 A.2d 1066 (1982).

       The court’s signed transcript provides in relevant part,: “The plaintiff is an employee who was employed for a period of two weeks at will, which he knew. The defendant found his performance to be unsatisfactory for a variety of specific reasons. In response to that, in order to support his claim, the plaintiff makes such vague statements that, in the court,’s opinion, do not raise any reasonable legitimate factual questions in response to the position of the movant. For those reasons, the motion for summary judgment is granted.”


author: STOUGHTON, J.

text:
    STATE OF CONNECTICUT v. GLENN JONES
    (AC 20990)
    Mihalakos, Flynn and Stoughton, Js.
    Argued December 11, 2001
    officially released March 12, 2002

      Lisa J. Steele, special public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Matthew C. Couloute, Jr., former assistant state’s attorney, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Glenn Jones, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a), criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). On appeal, Jones claims that the trial court improperly denied his motion for a new trial in which he claimed, inter alia, that the jury’s verdict was legally inconsistent in violation of his constitutional right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. For a number of years, Jones, codefendant Gary Bell and the victim, Edward Beltran, all had been selling narcotics on the comer of Harral Avenue and James Street in Bridgeport. Sometime before July 17, 1998, Beltran was involved in a dispute with a drug seller who worked for Jones. Jones subsequently learned of the dispute. At about midnight on July 17,1998, Beltran drove to Gonzalez’s Grocery with his former girlfriend, Paula Cifaldi, to purchase some items. The store is located at the comer of Harral Avenue and James Street. Beltran parked in front of the store on James Street, exited his car and entered the store after briefly talking with one or more persons who were standing outside. Cifaldi, who remained in the car, recognized Jones, who was standing with a group of people in front of the store. After Beltran entered the store, Cifaldi overheard Jones say to an unidentified person: “All these n—s, they ain’t gonna play me no more, they can’t come around and do this to me no more, watch, you all see, you all see.” At some point, Beltran came out to the car to check if Cifaldi was all right and then reentered the store. Sometime thereafter, Jones and Bell entered the store.

While Beltran was talking with a store employee, Jones stood behind Beltran and made a hissing sound. When Beltran turned to look at Jones, he shook his head and walked away. At that time, Bell was at the back of the store. Beltran continued talking with the store employee, unconcerned by Jones’ conduct, but when he looked out the door and saw Jones and Bell standing together in front of the store, he felt uneasy.

As Beltran left the store to return to his car, Jones and Bell were blocking the front door of the store. Beltran walked around them without incident, but as he opened the driver’s side door of the car, Jones and Bell, who were now standing on the sidewalk in front of the store, started firing handguns at the car, shattering the front windshield. Beltran ducked down beside the car and told Cifaldi to get down. He then called out that he had been hit in the hope that Jones and Bell would stop firing. A period of silence followed, during which Beltran again attempted to get into the car and Cifaldi started to get up, thinking the shooting had ended. Jones and Bell began firing again, and Beltran crouched down and moved to the back of the car on the driver’s side. Bell then jumped out into the middle of the street and fired at Beltran as he tried to hide behind the car. Bell shot Beltran five times, causing him to suffer wounds to his abdomen, right buttock, right thigh, right flank and left elbow.

After they stopped firing the second time, Jones and Bell fled the scene, running with guns in their hands along James Street toward Harral Avenue. Beltran managed to get into the car and drive to a nearby police station. At the station, he got out of the car and collapsed onto the ground. Soon thereafter, he was taken to a hospital, where he was treated for his gunshot wounds. Jones and Bell subsequently were arrested and charged in connection with the shooting.

After a jury trial, Jones was convicted of attempt to commit murder, assault in the first degree, conspiracy to commit murder, reckless endangerment in the first degree, criminal possession of a firearm and carrying a pistol without a permit. Prior to sentencing, Jones filed a motion for a judgment of acquittal and a motion for a new trial. The court denied both motions and sentenced Jones to a total effective term of twenty-six years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

Before we address the defendant’s claim, we first articulate the applicable standard of review. Our standard of review of the trial court’s denial of a motion for a new trial is well established. “[A] motion for a new trial is addressed to the sound discretion of the trial court and is not to be granted except on substantial grounds. . . . The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion.” (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999). Because Jones’ claim involves a question of law, however, our review is plenary. See State v. Morascini, 62 Conn. App. 758, 761, 772 A.2d 703, cert. denied, 256 Conn. 921, 774 A.2d 141 (2001).

Jones claims that the court improperly denied his motion for a new trial in which he claimed, inter alia, that the jury’s verdict was legally inconsistent in violation of his constitutional right to a fair trial. We disagree.

The following additional facts are necessary for our resolution of Jones’ claim. In his motion for a new trial, Jones argued that his conviction for reckless endangerment required the jury to find that he acted recklessly, and his conviction for attempt to commit murder, assault in the first degree and conspiracy to commit murder required the jury to find that he acted intentionally. He further argued that the mental states required for reckless endangerment and the specific intent crimes charged are mutually exclusive and, therefore, he could not be convicted of both because they concern the same factual circumstances and the same victim. In opposition, the state argued on the basis of the evidence presented at trial that the jury reasonably could have found that Jones acted with different mental states with respect to Beltran at different times during the incident. The court agreed with the state’s position and accordingly denied Jones’ motion.

To determine whether a jury verdict is legally inconsistent, “we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted. If that is the case, the verdicts are legally inconsistent and cannot withstand challenge. . . . Put more simply, we determine if there is a rational theory by which the jury could have found the defendant guilty of both crimes.” (Internal quotation marks omitted.) State v. Johnson, 65 Conn. App. 470, 484-85, 783 A.2d 1057, cert. denied, 258 Conn. 930, 783 A.2d 1031 (2001). “It is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as [the] different mental states relate to different results.” (Internal quotation marks omitted.) State v. Morascini, supra, 62 Conn. App. 762.

Jones relies primarily on State v. King, 216 Conn. 585, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991), for the proposition that, under the facts of his case, he may be convicted of the reckless charge or the intentional charges, but not both. Jones’ reliance on King is misplaced.

In King, the defendant was charged with the crimes of attempt to commit murder and assault in the first degree. Both counts were predicated on the same act carried out against the same victim. Id., 593. While the charge of attempt to commit murder required proof that the defendant intended to cause the victim’s death, the assault charge, as set forth in the information, required proof that the defendant recklessly created a risk of death to the victim. Id. Our Supreme Court, noting that the statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive, vacated the conviction of assault in the first degree and attempt to commit murder, and ordered a new trial on both counts. Id., 603-604. The court reasoned that “[w]here a determination is made that one mental state exists, to be legally consistent the other must be found not to exist. . . . By no rational theory could the jury have found the defendant guilty of both crimes. . . . Logically then, the jury verdicts convicting the defendant of two offenses each of which requires a mutually exclusive and inconsistent state of mind as an essential element for conviction cannot stand.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 594.

In the present case, the guilty verdict is distinguishable from that in King because the jury here was not required to find that Jones possessed the relevant mental states simultaneously with respect to his acts against Beltran. See State v. Fernandez, 27 Conn. App. 73, 94, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). Where, as here, there are multiple shots fired, a pause, and then more shots fired, the jury reasonably could have found that Jones committed one act or group of acts with one mental state and a second act or group of acts with a different mental state. See State v. Hawthorne, 61 Conn. App. 551, 555, 764 A.2d 1278 (2001); State v. Glover, 40 Conn. App. 387, 395, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). Indeed, there is a compelling case for finding that Jones’ and Bell’s actions constituted “different crimes that occurred on an escalating continuum.” State v. Mooney, 61 Conn. App. 713, 722, 767 A.2d 770, cert. denied, 256 Conn. 905, 772 A.2d 598 (2001); see also State v. Fernandez, supra, 94. For example, the jury reasonably could have found that when Jones and Bell fired the first fusillade of shots that shattered the windshield of Beltran’s car, they acted not with the specific intent to kill or injure Beltran, but rather with reckless indifference to Beltran’s safety. The jury reasonably could have found, however, that Jones’ and Bell’s mental states had changed to an intent to kill or seriously injure Beltran when they resumed firing after Beltran called out that he was hit and there was a pause in the shooting. That change in mental state is evinced by Bell’s jumping out into the street, presumably to get a better shot at Beltran, and then firing several shots directly at Beltran, hitting him repeatedly.

Although the parties presented two different scenarios of the incident, the jury chose to accept the state’s version and to reject Jones’. In such cases, we defer to the jury’s assessment of credibility. See State v. Barber, 64 Conn. App. 659, 666, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). “On issues where the evidence allows room for reasonable differences of opinion among fair-minded people, if the conclusion of the jury is one that reasonably could have been reached, it must stand even though the trial court [and this court] might have reached a different result. ... A verdict should not be set aside . . . where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.” (Internal quotation marks omitted.) Weiss v. Bergen 63 Conn. App. 810, 813-14, 779 A.2d 195, cert. denied, 258 Conn. 908, 782 A.2d 1254 (2001).

Because the jury was not required to find that Jones possessed two different mental states simultaneously with respect to his acts against Beltran, its verdict was not legally inconsistent. See State v. Glover, supra, 40 Conn. App. 395. We therefore conclude, on the basis of the evidence presented at trial, that the jury reasonably could have found that Jones acted with different mental states with respect to Beltran at different times during the incident. Accordingly, the court properly denied Jones’ motion for a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       Jones and Bell were tried in a,joint trial. Bell was convicted of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the first degree in violation of General Statutes § 53a-59 (a) (5), conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a (a), and reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). Bell has filed a separate appeal.

       At trial, Beltran testified that one of the guns was a Glock, which is a semiautomatic pistol manufactured by Glock, Inc. The state presented ballistics evidence that indicated that a Glock gun may have been used in the shooting.

       In his appellate brief, Jones, relying on State v. Hinton, 227 Conn. 301, 630 A.2d 593 (1993), identifies the right violated as his “state and federal due process right to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt.”

       The court stated: “I have been involved in many cases where this circumstance has come up. And, the cases have been pretty uniform in the past couple of years relating to this, that while it is true that a person normally could not act with specific intent to cause a result and act recklessly at the same time, there certainly could be situations where that would be present.
      “And, I think one of those situations exists here because the evidence as presented in this case, if you were to credit the evidence and the testimony of the state’s witnesses, would be to the effect that multiple shots were fired at the victim while he was attempting to get into his car and after he tried to get away from the shots and put himself in another position alongside of the back of the car. In other words, some time elapsed between the first

        and the last shot.
      “And since an intent can be formed within seconds, it is possible that [Jones] could be found to have acted with an intent to cause injury as well as an attempt to cause death, and also to have been acting recklessly at some point in time during that scenario.
      “Again, this is not a single act that we are talking about. It is a single series of events and conduct, but as indicated, people can form intentions within seconds and can act recklessly within seconds.
      “I find that it is perfectly proper for the jury to have . . . reached the conclusions that it did. The court does not make a determination as to whether ... I would have reached the same conclusions, that is not my position.
      “So long as there is evidence presented covering the elements of each of the crimes ... I will not interfere with that.”

       In his appellate brief, Jones also distinguishes State v. Hinton, 227 Conn. 301, 630 A.2d 593 (1993), and State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).
      In Hinton, our Supreme Court addressed the issue of whether a person could intentionally assault one victim and, in the same action, recklessly assault another victim. The defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (2), which requires that the defendant act intentionally, and assault in violation of § 53a-59 (a) (3), which requires that the defendant act recklessly. The court stated that the guilty verdict could be reconciled. “The jury could reasonably have concluded that, in attempting to injure or disfigure someone standing near [the victim], the defendant acted recklessly toward [the victim] and therefore recklessly caused injury to [the victim], satisfying the elements of subdivision (3). Although we said in State v. King, supra, [216 Conn. 585], that a person could not act intentionally and recklessly with regard to the same act and the same result, here we have two different victims and therefore two different results. The jury therefore could reasonably have found that when the defendant fired the shotgun at the group of ten to fifteen young men on the sidewalk, causing eight pellets to be fired, he intended to injure one or more of them and was reckless with regard to the rest, including [the victim].” (Emphasis added.) State v. Hinton, supra, 227 Conn. 314-15.
      “In Flynn, the defendant was convicted of, inter alia, assault on a police officer, which requires intentional conduct, and reckless endangerment, which requires reckless conduct. . . . The convictions resulted from an incident where the defendant, in a crowded bar, threw abeer bottle at several police officers. ... On appeal, the defendant claimed that the verdict was inconsistent, as he could not have acted intentionally and recklessly with regard to the same factual circumstances. . . . This court concluded that the verdict was not inconsistent because the mental states went to different results. Accordingly, the jury could have found that, by throwing the bottle at the police officers, the defendant acted intentionally with the conscious objective to prevent the officers from performing their duly, while at the same time, he acted recklessly with respect to the other patrons in the bar.” (Citations omitted.) State v. Morascini, supra, 62 Conn. App. 762.

       Jones and Bell were charged both as principals and as accessories in each of the charges. “To be found guilty of accessorial liability under [General Statutes] § 53a-8, this statute requires proof of a dual intent: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged.” (Emphasis in original; internal quotation marks omitted.) State v. Ortiz, 47 Conn. App. 333, 345, 705 A.2d 554 (1997), cert. denied, 244 Conn. 902, 710 A.2d 175 (1998).


text:
    STATE OF CONNECTICUT v. CHARLIE SENQUIZ
    (AC 19587)
    Foti, Mihalakos and Dranginis, Js.

      Argued October 29, 2001
    officially released March 12, 2002

      Martin Zeldis, senior assistant public defender, with whom, on the brief, were Pamela S. Nagy, assistant public defender, and Lynne Farrell and Martha Hansen, certified legal interns, for the appellant (defendant).

      Jo Anne SuliJc, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and James Killen, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Charlie Senquiz, appeals from the judgment of conviction, rendered after a jury trial, of one count of sexual assault in the first degree and two counts of risk of injury to a child in violation of General Statutes §§ 53a-70 (a) (2) and 53-21 (1) and (2), respectively. On appeal, the defendant claims that the trial court improperly (1) rendered the judgment of conviction because it was not sufficiently proven that the alleged acts occurred in Connecticut, (2) admitted a redacted version of a videotaped police interview with the alleged child victim as constancy of accusation evidence, (3) permitted testimony in two separ ate instances on redirect examination of the victim that went beyond the scope of cross-examination and (4) failed to give a proper unanimity instruction to the jury. Because the evidence was sufficient and properly admitted in the discretion of the court and because the unanimity charge did not sanction a nonunanimous verdict, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Between October 1, 1995, and May 9, 1997, the defendant lived in New Britain with his girlfriend and her children, including the victim, as a family. While in New Britain, the family lived in three different residences. From September, 1995, through June, 1996, the family lived in their first residence in New Britain, and the victim attended third grade at a local elementary school. When the victim was living at that residence and attending third grade in New Britain, the defendant sexually assaulted her by having vaginal intercourse with her in a bathtub. Near the end of November, 1996, the family moved to a new residence in New Britain, and the victim, then in the fourth grade, transferred to another school in town. The defendant sexually assaulted the victim during the process of moving from the first residence to the second residence by performing cunnilingus on her when the two returned to the first residence to pick up some items. The family moved again to a third residence in New Britain in February, 1997. At that residence, the defendant sexually assaulted the victim by attempting to have vaginal intercourse with her on a couch.

In May, 1996, the department of children and families (department) began monitoring the family. In April, 1997, after a one year period of frequent observation, the department decided to close the family’s case file. The victim made no mention of sexual abuse during the department’s span of observation although she did make other unrelated complaints. About two weeks later, the victim, who was then ten years old, reported to her teacher and then to a department investigator, as well as to the police and others, that the defendant had been sexually assaulting her for the past two years, with the most recent incident having occurred within the last two weeks. The victim and her siblings were subsequently removed from their home and placed into separate foster care homes.

On January 20, 1999, after a jury trial in which these facts came to light, the jury returned a verdict against the defendant, finding him guilty of all three counts. On March 10, 1999, the court sentenced the defendant to a total effective sentence of thirty years of incarceration, execution suspended after twenty years, with fifteen years of probation. On May 20, 1999, this appeal followed. Additional facts and procedural history will be provided as necessary.

I

We address the defendant’s sufficiency of evidence claim first because this claim, “if successful, would necessitate the entry of a judgment of acquittal . . . .” (Citation omitted.) State v. Murray, 254 Conn. 472, 478, 757 A.2d 578 (2000). The defendant argues that the court improperly convicted him on each count because the evidence at trial was not sufficient to prove that the alleged acts occurred in Connecticut and, therefore, the court lacked territorial jurisdiction in this case. The defendant contends that the victim’s testimony so intermingled alleged acts in Connecticut with alleged acts in New York (New York evidence) that it cannot constitute sufficient evidence of acts occurring in Connecticut. Alternatively, the defendant argues that a new trial should be granted because, even if there was sufficient evidence to convict him for acts occurring in Connecticut, the jury was likely to have used prejudicially the New York evidence in arriving at its verdict. We do not agree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000). Moreover, “[e]vidence is not insufficient . . . because it is conflicting or inconsistent. [The jury] is free to juxtapose conflicting versions of events and determine which is more credible. ... It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

Construing the evidence in the light most favorable to upholding the verdict, we conclude that the jury reasonably could have found that the defendant had sexually touched and assaulted the victim in her various residences in New Britain. Although originally arguing to the contrary, the defendant concedes in his reply brief that he misread the transcript of the victim’s testimony and that, therefore, the victim testified that the defendant had had vaginal intercourse with her in a bathtub and, by virtue of the same concession, performed cunnilingus on her in the first of the victim’s New Britain residences. The victim also testified that the defendant sexually assaulted her on the couch in her third New Britain residence. These events constitute sufficient evidence for the jury’s verdict, and, as a result, this court cannot undermine the jury’s determination. While the victim may have sometimes put forth confused, apparently forgetful, or even contradictory testimony, it was solely up to the jury to determine the weight of each part of the victim’s testimony. The jury, therefore, reasonably could have concluded that the cumulative force of the evidence established the defendant’s guilt beyond a reasonable doubt. For these reasons, we conclude that the defendant’s claim is unavailing.

The following additional facts are relevant to our determination that the defendant, in his alternative claim, has failed to show that the admission of evidence of events in New York was prejudicial. Before trial and at points during the trial, the defendant objected to the admission of any testimony related to criminal acts allegedly occurring in New York. The defendant argued that introducing such evidence would be confusing and prejudicial, that it would cause jurisdictional problems, that it would be difficult to cross-examine witnesses concerning such evidence and that it would implicate the unanimity of a jury verdict against the defendant. The court ordered and the parties agreed that questions posed to the victim would be framed in such a way as to limit her testimony to events occurring in Connecticut.

Outside the presence of the jury, the state indicated clearly and repeatedly to the victim that she should limit her testimony to Connecticut events occurring while she was in the third and fourth grades. When questioning of the victim resumed, the state focused the victim’s testimony on the appropriate time frame. On cross-examination, defense counsel asked the victim if she ever bled when the defendant sexually assaulted her, and she answered that she had in “New York on the couch.” Defense counsel asked the court immediately to instruct the jury, and the court ordered that the answer be stricken and for the jury to disregard it.

Later in the trial, over the objection of defense counsel, a ten minute redacted videotape made up of six short segments of the victim’s interview with a police officer on May 22, 1997, was admitted as constancy of accusation evidence and was played for the jury. The redacted videotape showed the victim stating that the defendant sexually harassed her from when she was eight until she was ten years old. The victim stated that this meant that the defendant raped her. In an effort to better understand the victim’s allegations, the police officer then pursued what the victim meant by the word “rape” in a number of exchanges shown on the videotape. During one of those exchanges, the police officer had the victim write down what “rape” meant to her, and he read it aloud afterward. Relating the victim’s definition of rape to her allegations, the remaining portions of the redacted videotape showed the victim stating specifically that the defendant raped her in March or April of 1997, in New Britain.

At the conclusion of the trial, the court instructed the jury that certain things are not considered evidence for the jury’s evaluation during deliberation. Elaborating on that instruction, the court further instructed the jury that the constancy of accusation evidence, specifically, the redacted videotape and the testimony of certain witnesses, was not admitted for the purpose of proving its truth and could not be used as substantive evidence to convict the defendant. Rather, the court instructed the jury that the only use for that evidence was to corroborate the in-court testimony of the victim.

The defendant must show, in challenging the evidentiary rulings of the court, that the court abused its discretion in a manner that resulted in substantial prejudice or injustice to him. See State v. Orhan, 52 Conn. App. 231, 237, 726 A.2d 629 (1999). Other than the victim’s stricken answer regarding bleeding in New York, which the court timely instructed the jury to disregard, the defendant has not shown that evidence of criminal events taking place in New York entered substantively into the trial, and there is no indication that any such extrajurisdictional evidence influenced the jury’s verdict. The jury was sufficiently instructed against any use of the extrajurisdictional testimony it heard and against the substantive use of the constancy of accusation evidence, and we presume, because nothing indicates otherwise, that the jury followed those instructions. See State v. Reddick, 224 Conn. 445, 454, 619 A.2d 453 (1993). In addition, the jury had sufficient evidence of illegal acts occurring in Connecticut on which to arrive at its verdict. The defendant has failed to show that the introduction of any New York evidence caused substantial prejudice or injustice to him, and his alternative claim, therefore, is unavailing.

n

The defendant next claims that the court improperly admitted as constancy of accusation evidence a redacted version of a videotaped police interview with the victim. In support of this contention, the defendant claims, per his objection at trial, that the redacted videotape exceeded the bounds of constancy of accusation evidence and prejudiced him by bolstering the victim’s in-court testimony through its impermissible use as substantive evidence. Further, the defendant contends that the redacted videotape was more prejudicial than probative because it showed the demeanor and actions of the victim. The defendant also claims that the segments of the full interview viewed by the jury prejudiced his right to a fair trial because they described, without the jury’s knowledge, sexual abuse that allegedly took place in New York. We disagree with the defendant.

“The constancy of accusation doctrine has its origins in common law. Since 1876, statements admitted under the constancy of accusation theory have been labeled by Connecticut courts as exceptions to the hearsay rule, and admitted only as corroborative evidence to strengthen the credit of the principal witness by showing constancy in her declarations.” (Internal quotation marks omitted.) State v. Bispham, 48 Conn. App. 135, 145, 708 A.2d 604, cert. granted on other grounds, 244 Conn. 929, 711 A.2d 728 (1998), appeal dismissed, 249 Conn. 264, 731 A.2d 294 (1999). In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc), our Supreme Court concluded 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 peipetrator. . . . Thus, such evidence is admissible only to corroborate the victim’s testimony and not for substantive purposes.” (Emphasis added.) Id., 304. The court noted, however, that the articulated doctrine “does not affect those cases in which the details of a sexual assault complaint are otherwise admissible . . . .” Id., 304 n.19. The court also held that “the trial court must balance the probative value of the evidence against any prejudice to the defendant.” Id., 305. Furthermore, our Supreme Court has recognized that a videotaped interview of a victim of a sexual assault, so long as it is not made for the puipose of preparing a victim for trial, is admissible at trial as constancy of accusation evidence. See State v. Marshall, 246 Conn. 799, 810-11, 717 A.2d 1224 (1998); State v. DePastino, 228 Conn. 552, 568-69, 638 A.2d 578 (1994).

The determination, therefore, of “[w]hether evidence is admissible under the constancy of accusation doctrine is an evidentiary question that will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Orhan, supra, 52 Conn. App. 243. “Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) Id., 237.

The defendant argues correctly that under State v. Troupe, supra, 237 Conn. 304, constancy of accusation evidence in a prosecution for sex related crimes is admissible solely to corroborate the victim’s testimony and not as substantive proof of the charges against the defendant. Our review of the record and the redacted videotape in comparison with the full videotape indicates, however, that the defendant is incorrect in his proposition that the redacted videotape exceeded the bounds of the Troupe standard. Based on the facts concerning the videotape, as discussed in part I of this opinion, it is apparent that the redacted videotape introduced only those details necessary to demonstrate the fact, timing and place of the reported sexual crimes and the identity of the perpetrator. In addition, the court exercised its discretion reasonably in allowing the victim’s definition of rape to be included on the redacted videotape, especially considering the age of the victim. The victim’s original statement on the videotape that the defendant was sexually harassing her may have been unclear for the jury, and the definition not only better identified the alleged crimes, but also cleared up any confusion as to what the victim was alleging.

For these reasons, the defendant also has failed to show that the videotape was used impermissibly as substantive evidence rather than simply to strengthen the credibility of the victim’s in-court testimony by showing constancy in her accusations. Moreover, the defendant has failed to show that the introduction of the videotape caused him substantial prejudice. It is reasonable to presume that the court took into account the victim’s demeanor and actions on the redacted videotape, and there is no indication that the court abused its discretion in admitting the videotape as constancy of accusation evidence under the circumstances here and the Troupe standard.

Furthermore, even if we were to conclude that the videotape or portions thereof were improperly admitted, we still could not conclude that the defendant has shown substantial prejudice or injustice. First, we presume, and there is no contrary indication, that the juiy followed the court’s instruction to use the videotape only as a means of corroborating the victim’s in-court testimony. See State v. Reddick, supra, 224 Conn. 454. Second, it is well established that “if erroneously admitted evidence is merely cumulative of other evidence presented in the case, its admission does not constitute reversible error.” (Internal quotation marks omitted.) State v. Bispham, supra, 48 Conn. App. 146. Here, the videotaped constancy of accusation evidence was merely cumulative because it was repeated during the testimony of other witnesses. Consequently, even if the admission of the videotape was improper, it does not follow that the admission was prejudicial or constituted reversible error. We conclude, therefore, that the court properly admitted the videotape as constancy of accusation evidence and that the defendant’s claim is without merit.

Ill

The defendant next claims that the court abused its discretion by twice permitting on redirect examination of the victim testimony that went beyond the permissible scope of cross-examination. The defendant contends that the testimony allowed during the redirect examinations amounted to unfair surprise and prejudice against the defendant because the victim described unmentioned sexual acts perpetrated by the defendant and it allowed the state to represent its case to the jury two more times. Furthermore, the defendant emphasizes that, dining a lunch break between the defendant’s cross-examination and the state’s redirect examinations, the prosecutor coached the victim to enter this new and prejudicial evidence into the trial. The defendant claims that by allowing this evidence the court foreclosed any opportunity that the defendant had to challenge the victim’s credibility and, thereby, any chance for his acquittal. We are not persuaded.

The following additional facts gleaned from the record are necessary for our resolution of this issue. During the victim’s direct testimony, she testified that the defendant sexually assaulted her multiple times “at different houses in different, rooms.” On cross-examination, defense counsel implied that the victim had made false accusations to the department because she was angry with the defendant for disciplining her and she knew that the department would react harshly to such accusations. Defense counsel also attempted to show that the victim asked fellow students at her school to hurt her. During the state’s redirect examination, and over the objections of defense counsel, the victim testified to an incident where the defendant had performed cunnilingus on her during a move from her first residence to her second residence in New Britain. The victim further testified that the defendant had vaginal intercourse with her in a bathtub at the first residence in New Britain when she was in third grade.

During its recross-examination, defense counsel explored the veracity of the victim’s earlier testimony, to whom she had made her allegations and why, other problems that she had at home and school, and the relationships between herself, her mother and the defendant. On re-redirect examination, over further defense objections, the victim identified photographs of her three New Britain residences, when she lived in each and in which residence the defendant’s various sexual assaults occurred. Finally, in the last cross-examination and subsequent redirect examination of the victim, the victim testified further about the sexual assault that occurred in the bathtub.

As with the defendant’s other challenges to the court’s evidentiary rulings, we review this claim under an abuse of discretion standard that requires a showing by the defendant of substantial prejudice or injustice. See State v. Orhan, supra, 52 Conn. App. 237. Our Supreme Court “has made it clear that a witness is permitted on redirect examination to explain or clarify any relevant matters in his testimony which may have been weakened or obscured by his cross-examination. . . . The extent and scope of redirect examination, however, may be limited within the discretion of the trial judge.” (Citation omitted.) State v. Conrod, 198 Conn. 592, 596, 504 A.2d 494 (1986). Moreover, “the court has discretion, even on redirect examination, to permit explanation or clarification of evidence given on the direct examination although not touched upon in the cross-examination.” Grievance Committee v. Dacey, 154 Conn. 129, 152, 222 A.2d 339 (1966), appeal dismissed, 386 U.S. 683, 87 S. Ct. 1325, 18 L. Ed. 2d 404 (1967). It is fundamental as well “that when the credibility of a witness is attacked on cross-examination, the other party has a right to rehabilitate his witness during redirect examination. Under our adversary system of trials the opponent must be given an opportunity to meet this attack ... by evidence sustaining or rehabilitating the witness.” (Internal quotation marks omitted.) State v. Daley, 11 Conn. App. 185, 187, 526 A.2d 14 (1987). An examination of the record is necessary, therefore, to determine if the court exercised its discretion properly in this case. State v. Conrod, supra, 596. We also note that child witnesses are often granted special accommodations regarding their testimony due to their young age and inexperience with the courts. See, e.g., State v. McPhee, 58 Conn. App. 501, 507-508, 755 A.2d 893 (no abuse of discretion in allowing child witness to hold stuffed animal while testifying), cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000); State v. Hydock, 51 Conn. App. 753, 765, 725 A.2d 379 (no abuse of discretion in allowing state to ask child sexual assault victim leading questions), cert. denied, 248 Conn. 921, 733 A.2d 846 (1999).

Our examination of the record shows that defense counsel attacked the credibility of the victim on cross-examination and that on redirect examination her testimony both responded to that attack and explained relevant matters brought out during direct examination. The evidence presented by the state through the victim’s testimony during redirect examination rehabilitated the victim’s credibility appropriately, and explained and clarified her less detailed direct testimony. As such, the victim’s testimony neither went beyond the permissible scope of cross-examination, nor did it visit unfair surprise on the defendant, as it was the defendant who repeatedly attacked the credibility of the victim and opened the door to rehabilitation evidence. Likewise, the testimony did not afford the state impermissible opportunities to prove its case or deprive the defendant of opportunities to refute the credibility of the victim. The defendant, in fact, had three full opportunities to cross-examine the victim. Furthermore, considering that the victim was a child witness, it was not an abuse of the court’s discretion to allow wide latitude during the entire course of her testimony. The defendant has failed to show substantial prejudice or injustice here, and we conclude, therefore, that the court acted well within its discretion in allowing the victim’s testimony as it proceeded.

IV

In this final claim, the defendant urges us to hold that the court improperly failed to give a unanimity instruction to the jury with regard to the charges against him. The defendant concedes that the court instructed the jury with a general unanimity charge requiring a unanimous decision as to his guilt or innocence. Nevertheless, the defendant claims that the court violated his constitutional rights to a unanimous verdict and a fair trial when it instructed the jury to consider as to each count whether it believed that the victim’s testimony, which related several separate acts of intercourse and inappropriate sexual touching by the defendant, supported a guilty verdict. The defendant argues that the court’s instructions in this regard sanctioned a non-unanimous verdict on each count because the court did not expressly require unanimity from the jury as to which specific acts, if any, established the defendant’s guilt under each count. As a result of this alleged failure “to promote a unanimous verdict,” the defendant submits that the jury could have disagreed about which acts supported the verdict and still have convicted him improperly by agreeing in general that he was guilty of each count. Because nothing in the court’s instructions to the jury sanctioned a nonunanimous verdict, we conclude that this claim is without merit.

The following additional facts are pertinent to the defendant’s claim. At the inception of its instruction to the jury, the court announced that it might refer to certain evidence for illustration and clarification, but that the jury would not be limited to considering that evidence alone or to accepting the court’s view of that evidence. The court then instructed the jury that the defendant “is presumed innocent unless, and until, he is proven guilty beyond a reasonable doubt.” The court instructed the jurors specifically on their “duty to accept the law . . . [and] to determine the facts.” The court also told them to “apply the law to those facts and render your verdict of guilfy or not guilty.” Furthermore, the court stated, “[I]f you find that the state has failed to prove, beyond a reasonable doubt, any one of the elements of a crime, you must then find the defendant not guilty of that crime.” The court urged the jury to “[r]emember, there are three counts in this case. . . . You must consider each count separately and render a verdict of guilty or not guilty on that count, depending upon your findings concerning the elements of that count.” Finally, the court stated to the jury that the verdict “has to be unanimous on each count.” The defendant took exception to the court’s instruction, stating that the court should have instructed the jury to be “unanimous as to what act they’re agreeing on for each count.”

A jury’s verdict in a criminal matter “shall be unanimous and shall be announced by the jury in open court. ” Practice Book § 42-29. Regarding a court’s instruction to a jury prior to its deliberations, “we have not required a specific unanimity charge to be given in every case .... We have instead invoked a multipartite test to review a trial court’s omission of such an instruction. We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” State v. Famiglietli, 219 Conn. 605, 619-20, 595 A.2d 306 (1991). This court is required to conclude, when reviewing a court’s instruction to the jury, that “[t]he absence of language expressly sanctioning a nonunanimous verdict means that the defendant has not met the first part of the Famiglietti test.” (Internal quotation marks omitted.) State v. Cramer, 57 Conn. App. 452, 461, 749 A.2d 60, cert. denied, 253 Conn. 924, 754 A.2d 797 (2000).

The defendant cites the court’s references to the victim’s testimony as language in the court’s instruction that sanctioned a nonunanimous verdict. We conclude that this language is inapposite and that there is a complete absence of language sanctioning a nonunanimous verdict. Indeed, after explaining the elements of each charge to the jury with reference to the victim’s testimony, the court reminded the jury to consider each count separately, to make findings related to each element of each count and to act unanimously on each count. We note also that “[a] trial court often has not only the right, but also the duty to comment on the evidence. . . . The purpose of [which] is to provide a fair summary of the evidence, and nothing more . . . .” (Internal quotation marks omitted.) State v. Roman, 67 Conn. App. 194, 204, 786 A.2d 1147 (2001). Given the court’s admonitions concerning unanimity, “we must presume that the jury, in the absence of a fair indication to the contrary . . . followed the court’s instruction as to the law.” (Internal quotation marks omitted.) State v. Reddick, supra, 224 Conn. 454. We conclude, therefore, that the defendant’s claim must fail because the court’s instruction to the jury did not expressly sanction a nonunanimous verdict. Having so concluded, we need not address the defendant’s arguments regarding the remainder of the Famiglietti test. See State v. Famiglietti, supra, 219 Conn. 619-20.

The judgment is affirmed.

In this opinion the other judges concurred.

       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 1997) § 53-21 provides: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child, or (2) has contact with 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 C felony.”

       Specifically, the state alleged in the information that the defendant committed the charged crimes “in the city of New Britain, on various dates between and including October 1, 1995, and May 9, 1997 . . . .”

       Our courts have territorial jurisdiction to adjudicate over criminal charges concerning acts occurring within Connecticut. General Statutes § 51-1a (b); see State v. Ross, 230 Conn. 183, 195, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). The state charged the defendant with crimes occurring in Connecticut. We need not address the defendant’s jurisdictional claim any further than to point to our conclusion in this part of the opinion that the jury had sufficient evidence regarding acts occurring in Connecticut on which to base, beyond a reasonable doubt, its verdict on each count. See generally State v. Beverly, 224 Conn. 372, 618 A.2d 1335 (1993). Given such evidence, the court clearly had territorial jurisdiction.

       The defendant’s reply brief provides in relevant part: “[T]he state argues that defendant’s claim that the ‘bathtub’ incident may have happened [when the victim] was in first grade ... is without merit . . . because the defendant has misread [the victim’s] testimony. The defendant maintains that [the victim’s] testimony is confusing and contradictory in many respects, but he acknowledges that a fair' reading of the relevant transcript citations demonstrate[s] that the state’s point is well taken. Specifically, the house . . . appears to be the first of three New Britain houses that [the victim] lived in . . . .” (Emphasis in original.) The defendant’s original argument was that the victim’s testimony during direct examination did not place the bathtub or the cunnilingus incidents within any of her homes in New Britain. In his reply brief, the defendant admits that he misread the victim’s testimony and that her testimony actually connected the incidents to her first residence in New Britain.

       A review of the unedited videotape reveals that the exchange shown in this portion of the redacted videotape does indeed follow references to an alleged sexual assault in New York, which the jury does not see on the redacted videotape. Nevertheless, the victim’s account of the New York incident was interrupted by the police officer’s request that she write down what the word “rape” meant to her. This subset of the larger exchange is the only part of that exchange that the jury did see. Furthermore, the police officer had asked the victim earlier in the interview, before discussing the alleged New York events, to tell him what “rape” meant to her. In this overall context, the victim’s definition of “rape” did not refer to any specific New York incident, even though it was juxtaposed with a description of alleged New York events. Instead, the victim’s written definition of “rape” consisted of an explanation of her basic allegations against the defendant. This inference is made all the more concrete by a portion of the unedited videotape, also not seen by the jury, in which the victim stated that she had been raped by the defendant in New Britain in the same manner as described in her written definition of rape. The jury, therefore, witnessed only the victim’s general definition of “rape,” even though the unedited videotape reveals that the victim applied the same definition to alleged New York events and Connecticut events.

       The defendant concedes, however, that he did not raise this issue at trial in this context. Consequently, the defendant argues that plain error review is required because the redacted videotape presents unique circumstances in that it was “rigged through splicing” to include extrajurisdictional evidence for the purpose of bolstering the victim’s credibility. Plain error review 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. Solman, 67 Conn. App. 235, 239, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002). We are not persuaded that plain error review is warranted here. Furthermore, “[t]o permit a party to raise a different ground on appeal than was raised during trial would amount to trial by ambuscade, unfair both to the trial court and to the opposing party.” (Internal quotation marks omitted.) State v. Romero, 59 Conn. App. 469, 477, 757 A.2d 643, cert. denied, 255 Conn. 919, 763 A.2d 1043 (2000). Moreover, although couching the claim in constitutional terms, the defendant makes no effort to analyze it under the Golding standard. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review under the abuse of discretion standard, therefore, only those of the defendant’s claims regarding the videotape that were raised at trial.

       The testimony of five witnesses offered similar accounts of the victim’s reports of sexual abuse in New Britain. A sixth witness, the victim’s younger sister, also offered testimony that the victim had reported to her the defendant’s sexual abuse in New Britain.

       The defendant maintains, however, that, in raising the “coaching incident,” he is not raising a prosecutorial misconduct claim against the state. Rather, the defendant claims only that the incident exemplifies the inherent prejudice of allowing new evidence to surface during redirect examination.

       We note, at the outset, that the record reveals that the court was quite aware that certain evidence, if admitted, could potentially prejudice the trial and that it took pains to direct counsel for both sides away from introducing such evidence. The court’s acknowledgment of the complexity of this case, however, did not prevent the court from allowing counsel wide latitude where it felt it was necessary to accomplish justice.

       The defendant’s reply brief also bears out that this attack on the victim’s credibility took place because defense counsel’s cross-examination placed the victim’s credibility in “grave doubt.”

       The defendant did not file a requested charge with the court before the court gave its instruction to the jury.


text:
    LEE GARY v. STATE OF CONNECTICUT, DEPARTMENT OF CORRECTION
    (AC 21540)
    Schaller, Mihalakos and Dranginis, Js.

      Argued October 16, 2001
    officially released March 12, 2002

      Lisa Guttenberg Weiss, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant).

      Ross T. Lessack, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant state of Connecticut, department of correction, appeals from the decision of the workers’ compensation review board (board) determining that the workers’ compensation commissioner (commissioner) had jurisdiction over the plaintiffs untimely hypertension claim. The defendant claims on appeal that the board improperly concluded that the commissioner had subject matter jurisdiction based on the defendant’s conduct subsequent to the untimely claim. We agree and reverse the decision of the board.

The following facts and procedural history are relevant to our disposition of the defendant’s appeal. The defendant hired the plaintiff, Lee Gary, as a correction officer in September, 1987. On August 10, 1993, while supervising an inmate cleaning crew, the plaintiff was exposed to fumes from chemical cleaning agents and became ill. He sought medical attention for his illness and was referred to a cardiologist, who diagnosed the plaintiff with high blood pressure and prescribed appropriate medication. On August 20,1993, the plaintiff went to the St. Mary’s Hospital emergency room in Waterbury, where he was diagnosed with malignant hypertension and admitted for treatment.

On November 8, 1993, the plaintiff filed a notice of claim for compensation, citing August 10, 1993, as the date on which he sustained hypertension. The defendant filed a form 43, contesting its liability for the claim. Over the next seven years, the parties attended various informal and formal hearings on the claim. During that period, the plaintiff received workers’ compensation benefits while the liability issue remained unresolved. During July, 1997, the defendant discovered that the plaintiff had been diagnosed with and treated for hypertension in 1989, four years prior to the date of injury cited in his claim. On the basis of that information, the defendant filed a motion to modify the award pursuant to General Statutes § 31-315, arguing first that it never accepted liability on the claim and, second, that even if it did, the commissioner lacked jurisdiction over the claim because the plaintiffs notice was untimely pursuant to General Statutes § 31-294c (a).

Formal hearings on the defendant’s motion followed and on March 8, 2000, the commissioner issued his finding on the motion. The commissioner found that the plaintiff had been diagnosed with hypertension and had been treated for that condition as of May 1, 1989. The commissioner also found that because of the treatment for hypertension in 1989, the plaintiff “had one year from May 1, 1989, within which to file a [hypertension] claim pursuant to [General Statutes § 5-145a].” Notwithstanding those findings, the commissioner further found that the defendant, through its subsequent actions and those of its third party claims administrator, had accepted the plaintiffs hypertension claim. Because the defendant had accepted the claim, the commissioner concluded that it was “estopped from revoking [its] acceptance . . . and seeking reimbursement from the [plaintiff],” regardless of the plaintiffs untimely notice.

On March 15, 2000, the defendant filed a motion to correct the commissioner’s findings, addressing, inter alia, the jurisdictional issue. The motion was denied in its entirety without comment. The defendant appealed to the board, which affirmed the commissioner’s findings on January 4, 2001. This appeal followed.

Before reaching the merits of the defendant’s appeal, we note our standard of review. Our Supreme Court has determined that a decision by the board “must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988). We also note that “because [a] determination regarding . . . subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999).

With that standard in mind, we now examine the dispositive issue in this appeal, which is whether the plaintiffs failure to file a workers’ compensation claim within one year of May 1, 1989, deprived the commissioner of subject matter jurisdiction. We conclude that it did.

“Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.” Castro v. Viera, supra, 207 Conn. 428. The plain language of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., requires one of four possible prerequisites to establish the commissioner’s subject matter jurisdiction over a claim: (1) a timely written notice of claim; General Statutes § 31-294c (a); (2) a timely hearing or a written request for a hearing or an assignment for a hearing; General Statutes § 31-294c (c); (3) the timely submission of a voluntary agreement; General Statutes § 31-294c (c); or (4) the furnishing of appropriate medical care by the employer to the employee for the respective work-related injury. General Statutes § 31-294c (c); see also Infante v. Mansfield Construction Co., 47 Conn. App. 530, 534-35, 706 A.2d 984 (1998).

The commissioner expressly found that the plaintiff had “one year from May 1, 1989, within which to file a claim pursuant to [§ 5-145a].” Our review of the record reveals that the only notice of claim ever filed by the plaintiff was the one filed on November 8, 1993, more than four years after the deadline established by § 31-294c, as found by the commissioner. Accordingly, the facts as found by the commissioner demonstrate unequivocally that the plaintiff failed to file his notice of claim in a timely fashion, as required by § 31-294c (a). Additionally, none of the parties has argued that the plaintiff was relieved of his statutory obligation to file a timely notice by any of the alternatives described in § 31-294c (c). For those reasons, we find that the commissioner lacked subject matter jurisdiction over the claim.

We next address the commissioner’s conclusion that the defendant was estopped from raising its jurisdictional challenge because of its acceptance of the claim. Without determining whether the defendant accepted the claim, we hold that the commissioner’s conclusion was an incorrect application of the law to the subordinate facts. See Castro v. Viera, supra, 207 Conn. 440.

Our Supreme Court has established that “[o]nce the question of lack of jurisdiction of a court [or administrative agency] is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case. . . . Subject matter jurisdiction, unlike jurisdiction of the person, cannot be created through consent or waiver. . . . [Id., 427-30].” (Internal quotation marks omitted.) Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5, 675 A.2d 845 (1996).

Applying that rule to the present appeal, we conclude that the commissioner improperly assumed jurisdiction over the plaintiffs claim on the basis of the defendant’s actions subsequent to the filing of the claim, whatever they may have been. Once the commissioner properly found that the plaintiff had failed to file his notice of claim within one year, as required by the act, the commissioner should have dismissed the claim for lack of subject matter jurisdiction.

The decision of the workers’ compensation review board is reversed and the matter is remanded to the board with direction to dismiss the plaintiffs claim.

In this opinion the other judges concurred.

       The defendant also claims that the board improperly denied its motion to correct the commissioner’s findings and failed to address its appeal from the commissioner’s denial of its claim for reimbursement. On the basis of our disposition of the defendant’s first claim, we need not address the defendant’s remaining claims on appeal.

       By February 24, 1998, the plaintiff had received $89,090.96 in indemnity benefits and $21,182.04 in medical payments.

       Although the commissioner and the board referred to the motion as a motion to reopen, the motion filed pursuant to General Statutes § 31-315 is described more accurately as a motion to modify. Section 31-315, entitled “Modification of award or voluntary agreement,” provides in relevant part: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon . . . that changed conditions of fact have arisen which necessitate a change of such agreement [or] award ... in order properly to carry out the spirit of this chapter. . . .”

       General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . . .”

       General Statutes § 31-294c (c) provides in relevant part: “Failure to provide a notice of claim . . . shall not bar maintenance of the proceedings if there has been a hearing or a written request for a hearing or an assignment for a hearing within a one-year period from the date of the accident or within a three-year period from the first manifestation of a symptom of the occupational disease, as the case may be, or if a voluntary agreement has been submitted within the applicable period, or if within the applicable period an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d. . . .”

       General Statutes § 5-145a provides in relevant part: “Any condition of impairment of health caused by hypertension or heart disease resulting in total or partial disability or death ... to state personnel engaged in guard or instructional duties in the Connecticut Correctional Institution[s] . . . shall be presumed to have been suffered in the performance of [their] duty and shall be compensable in accordance with the provisions of chapter 568 . . . .” We note that the one year time limit refers to the statute of limitations codified in General Statutes § 31-294c (a). See footnote 4.