author: LAVERY, J.

text:
    IN RE HELEN B.

    (AC 16404)
    Lavery, Spear and Daly, Js.

      Argued September 17
    officially released November 3, 1998

      Sara R. Martin, for the appellant (respondent).

      Michael H. Dardzinski, with whom was Robert A. Solomon, for the appellee (petitioner).

      Justino Rosado, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVERY, J.

The respondent father appeals from the judgment of the trial court removing him as guardian of Ms minor cMld, who was bom in 1983. On appeal, the respondent claims that (1) the trial court improperly permitted the petitioner to amend the petition after the matter was transferred from the Probate Court to the Superior Court, (2) he was derned due process of law and (3) the trial court improperly found that he had denied his child the care, guidance or control necessary for physical, educational, moral or emotional well-being as a result of acts of parental commission or omission to the present time pursuant to General Statutes § 45a-610 (3). We affirm the judgment of the trial court.

On December 24, 1992, the child’s mother and the petitioner, the cMld’s maternal aunt, filed two applications in the Court of Probate for the District of New Haven. One application sought the appointment of the petitioner as temporary custodian of the cMld; the other sought to remove the mother and the respondent as her guardians. At that time, the mother, who was terminally ill and unable to care for the child, consented to her removal as guardian of the child, as well as to joint custody of the child with the aunt. The child and her mother resided with the aunt. The mother died on November 10, 1993. On December 1, 1993, the Probate Court granted temporary custody of the child to the aunt, pending completion of a guardiansMp study to be prepared by the department of children and families pursuant to General Statutes § 45a-607.

In January, 1994, on the eve of the permanent custody hearing, the respondent moved, pursuant to General Statutes § 45a-623, to transfer the petition to the Superior Court. The original petition for removal of the respondent as the child’s guardian was based on the allegation of abandonment. General Statutes § 45a-610 (2). Following the transfer of the petition to the trial court, the petitioner moved to amend the petition to add allegations of acts of parental commission or omission; General Statutes § 45a-610 (3); as the basis for removal of the respondent as the child’s guardian. The trial court held a hearing on the removal petition on numerous days over an extended period of time and rendered judgment removing the respondent as guardian of the child for acts of parental commission or omission. This appeal followed.

The trial court found that until the child was eight years old, she resided with her parents and her half-brother and half-sister, both children of her mother. The parents’ relationship was marred by repeated episodes of domestic violence and substance abuse, particularly by the mother. The petitioner assisted the family by caring for the children when domestic violence or substance abuse prevented the mother from doing so.

The petitioner and the respondent were often in disagreement and conflict. In 1980, before the child was bom, the petitioner reported to the department that the respondent had sexually abused the half-sister, who was seven years old at the time. The half-sister left her mother’s home for a brief time, but the respondent’s sexual abuse of her continued from the time the girl returned home until she was fourteen. For a short period of time, the half-sister sold cocaine for the respondent.

The respondent has engaged in illegal activity over the years. He was arrested on numerous occasions for drug and weapons possession, although he was not convicted as a result of these arrests. He also sold liquor from the home he shared with the children and their mother. When the respondent ceased living with the child’s mother, he agreed to let the child stay with her mother and be assisted by the petitioner. The respondent made no effort to obtain custody of the child until her mother died. The respondent is unemployed and does not support the child. The respondent does, however, continue to visit the child and to buy her meals and clothing, and he has a warm and loving relationship with her.

The department and Anthony Campagna, a psychologist, conducted evaluations of the child and recommended that she live with the petitioner and visit the respondent. The child’s stated preference is to live with the petitioner and to visit with the respondent.

I

The respondent’s first claim is that the trial court improperly granted the petitioner’s motion to amend the removal of guardian petition because (1) the petitioner is not a person authorized to amend the petition, (2) the trial court is without authority to amend a removal petition and (3) the amendment was in violation of his right to due process. “We will not disturb the trial court’s decision to allow amendments to the petition unless there has been an abuse of discretion.” In re Angellica W., 49 Conn. App. 541, 548, 714 A.2d 1265 (1998).

A

First, the respondent claims that the petitioner is not among the class of persons permitted to amend a petition for removal of parent as guardian. General Statutes § 45a-614 applies, which provides in relevant part: “The following persons may apply to the court of probate for the district in which the minor resides for the removal as guardian of one or both parents of the minor: (1) Any adult relative of the minor, including those by blood or marriage . . . .” The petitioner is the child’s maternal aunt, a blood relative. Because the petitioner has standing to bring a petition to remove the respondent as the child’s guardian, she also has standing to move to amend the petition.

B

The respondent next claims that the trial court is without authority to amend a petition for removal of guardian that was commenced in the Probate Court. We disagree.

Section 45a-623 authorizes the transfer of a removal of guardian proceeding from the Probate Court to the Superior Court; rule 8 of the Probate Rules of Practice and Procedure provides the mechanism by which the transfer is to be accomplished. Following the transfer of the matter to the trial court, Practice Book § 1-1 (a) governs the proceedings on the petition. “The rules for the superior court govern the practice and procedure in the superior court in all civil and family actions whether cognizable as cases at law, in equity or otherwise, in all criminal proceedings and in allproceedings on juvenile matters. . . .” (Emphasis added.) Practice Book § 1-1 (a), formerly § 1. The case before us is a juvenile matter in the Superior Court and is therefore governed by the rules of practice for the Superior Court.

The applicable rule is Practice Book § 35-1 (c), formerly § 1055.1, which provides in relevant part: “A petition may be amended at any time by the judicial authority on its own motion or in response to the motion of any party prior to any final adjudication. When an amendment has been so ordered, a continuance shall be granted whenever the judicial authority finds that the new allegations in the petition justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”

Here, the timing of the trial court’s granting of the petitioner’s motion to amend is similar to that of In re Carl O., 10 Conn. App. 428, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987). In each case, the trial court granted a petitioner’s motion to amend at or near the start of trial. In each instance, the trial court, in accordance with § 35-1, offered to continue the trial so that the respondent could adequately prepare to respond to the amendment. In the present case, the start of trial was actually continued for approximately four months from the date of the granting of the motion to amend. This court recently decided another case concerning an amended petition, stating that “[t]he trial court . . . correctly pointed out that ‘actually, it’s a matter of proof . . . rather than whether they have the right to amend. I think they have the right to amend, to allege whatever they want and the burden is on them to prove whatever they allege.’ Furthermore, Practice Book § [35-1] provides that amendments to the petition may be made at any time prior to a final adjudication.” In re Angellica W., supra, 49 Conn. App. 548. Because the rules of practice permit amendment, the trial court had discretion to allow the petitioner to amend the removal petition.

C

The respondent’s final claim with respect to the amended petition is that the granting of the amendment denied him due process of law. We disagree.

The crux of the respondent’s argument is that the removal petition was based on abandonment and that was the basis on which the Probate Court granted the petitioner temporary custody of the child. For two years, the respondent prepared to defend the charge of abandonment only to learn four months before trial that the petitioner was going to proceed on a charge of parental acts of commission or omission, as well. As the trial court noted in In re Angellica W., supra, 49 Conn. App. 548, the issue is a matter of proof, not of amendment. The facts of this case did not change between the time the petitioner was granted temporary custody of the child and the date the trial on the removal petition began. In November, 1994, the petitioner believed the facts also supported a charge of acts of commission or omission, in addition to abandonment. At all times, the respondent was aware of the facts, including behavior on his part to which the petitioner objected, which were the basis of her legal theory to end his guardianship of the child.

The respondent also claims that continuing the trial from November, 1994, until March, 1995, constituted an unreasonable delay. The respondent has failed to identify, however, any authority to support his claim that the four month continuance under the circumstances was unreasonable, when the purpose of the continuance was to permit him to prepare adequately to defend against the amended petition. See Practice Book § 35-1 (c). This claim, therefore, is without merit.

II

The respondent’s second claim is that his right to due process was denied by the procedure and law applied by the trial court. The respondent, however, cited no law in support of his position. The only law cited by the respondent concerns termination of parental rights. As previously discussed in this opinion, the procedures employed by the trial court in this matter comport with the rules of practice and the laws of this state with respect to the removal of a parent as guardian.

Furthermore, the consequences of the removal of a parent as guardian of a minor child are far from the drastic results that occur when parental rights are terminated. See In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986) (“termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well”). Removal of a parent as guardian does not terminate the parent’s right to see the child and to be involved in the child’s life. In fact, General Statutes § 45a-612 specifically provides for the visitation rights of a parent removed as guardian. Moreover, General Statutes § 45a-611 provides for the reinstatement of a parent as guardian of the person of a minor, if appropriate. In this case, the trial court ordered that the petitioner be granted “the right of reasonable visitation . . . including such reasonable overnights, weekends and vacations as the father and child both request, for which permission shall not be unreasonably withheld.” The respondent’s right to due process with respect to his guardianship of his child has not been denied.

Ill

The respondent’s final claim is that the trial court improperly found that he denied the child the care, guidance or control necessary for her physical, educational, moral or emotional well-being as a result of his acts of parental commission or omission to the present time. See General Statutes § 45a-610 (3). Specifically, the respondent claims that the trial court improperly admitted evidence of his having been arrested for drug and weapons possession, and that there was no evidence that he denied the child care, guidance and control. We do not agree.

“The legislature has set the standard that governs a petition for the removal of a surviving parent as the guardian of his or her children.” Garrett’s Appeal from Probate, 237 Conn. 233, 235, 676 A.2d 394 (1996). “ ‘The father and mother of every minor child are joint guardians of the person of the minor .... If either father or mother dies . . . the other parent of the minor child shall become the sole guardian of the person of the minor.’ General Statutes § 45a-606. The court may remove a parent as guardian only if it finds by clear and convincing evidence that one or more of the grounds enumerated in General Statutes § 45a-610 have been proven by clear- and convincing evidence.” Garrett’s Appeal from Probale, 44 Conn. Sup. 169, 171, 677 A.2d 1000 (1994) aff'd, 237 Conn. 233, 676 A.2d 394 (1996). We are aware, however, that “[t]he provisions of sections 45a-603 to 45a-622, inclusive, shall be liberally construed in the best interests of any minor child affected by them, provided the requirements of such sections are otherwise satisfied.” General Statutes § 45a-605 (a).

“The award of the custody of a minor child is a matter within the sound discretion of the trial court. Scott v. Furrow, 141 Conn. 113, 120, 104 A.2d 224 [1954]; Morrill v. Morrill, 83 Conn. 479, 489, 77 A. 1 [1910]. We review the award to determine whether that discretion has been abused and whether the trial court, in the exercise of its discretion, has overlooked or misapplied some established principle of pertinent law. Anderson v. Anderson, 122 Conn. 600, 603, 191 A. 534 [1937]; Morrill v. Morrill, supra.” Antedomenico v. Antedomenico, 142 Conn. 558, 561, 115 A.2d 659 (1955).

A

The respondent’s first claim is that evidence of arrests not resulting in convictions is inadmissible. The respondent argues that his arrest record should not have been admitted to impugn his credibility or as evidence of his bad character or criminal tendencies. We are not persuaded because the evidence was not admitted for either of those purposes.

“At the outset, we note that we will set aside a trial court’s evidentiary ruling only where there has been a clear abuse of discretion.” In re Adalberto S., 27 Conn. App. 49, 57, 604 A.2d 822, cert. denied, 222 Conn. 903, 606 A.2d 1328 (1992). To determine whether the trial court abused its discretion, we are mindful of the criteria relevant in matters concerning the removal of the parent as guardian where the father is alleged to have denied his child the care, guidance or control necessary for her physical, educational, moral or emotional well-being as a result of parental habits or misconduct. See General Statutes § 45a-610 (3). When ruling on the admissibility of the police officers’ testimony concerning the respondents’ arrests for drug and weapons possession, the trial court was fully aware of the criteria and the nexus between evidence based on specific acts, which could be considered habits and misconduct, and the care and custody of the child. Furthermore, the testimony of one of the police officers was offered for his firsthand knowledge and observation concerning the respondent’s behavior to impeach directly the respondent’s testimony with respect to his involvement with drugs. Therefore, the trial court did not abuse its discretion in admitting evidence of the respondent’s arrest for drug and weapons possession.

B

The respondent’s final claim is that there is no evidence that he denied the child care, guidance or control as set forth in § 45a-610 (3). The essence of the respondent’s argument is that because the acts of commission or omission that the trial court attributed to him did not affect the child adversely, the trial court should not have removed him as the child’s guardian. The respondent’s argument is without merit.

“Appellate review of a trial court’s findings of fact is governed by the clearly erroneous standard of review. ‘The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” In re Michael A., 47 Conn. App. 105, 109, 703 A.2d 1146 (1997).

Our review of the record reveals that the trial court admitted in evidence, among other things, the reports of the department and Campagno, who conducted extensive evaluations of the child, the petitioner and the respondent, and heard testimony from the parties, the child’s half-sister and police officers familiar with the respondent. The trial court also interviewed the child twice in chambers. The trial court found by clear and convincing evidence that the respondent engaged in illegal activities. The respondent admitted to having a “beer buying club” and possession of cocaine on at least two occasions. On two occasions, the respondent was arrested on weapons charges, including once during the course of trial. The respondent admitted to participating in domestic violence when he lived with the child. He also sexually abused the child’s half-sister.

The trial court’s memorandum of decision makes clear that evidence concerning the respondent’s arrests was not admitted to discredit him or to establish his reputation among the community. Rather the trial court stated explicitly that “the [respondent’s] habits and misconduct . . . disrespect for the law and for the child’s need for a safe and secure home has been a continuing course of conduct throughout the child’s life, both while the child was in his care and continuing to the time of trial.” The trial court also found that the child has been denied the proper care necessary for her well-being as a result of the respondent’s habits and misconduct, and that it is not in the child’s best interest for the respondent to exercise parental duties at this time. The record supports these findings.

The recommendations of the department and Cam-pagna and, most important, the child’s personal preference are that the child remain in the custody of the petitioner. Therefore, the trial court found that it was in the child’s best interest to remain in the custody of the petitioner where the child has found comfort and security since the death of her mother.

Because the record supports the trial court’s conclusion that the evidence satisfies the clear and convincing standard of § 45a-610 as well as the best interest of the child standard of § 45a-605, we conclude that the trial court did not abuse its discretion in removing the respondent as guardian of the child and awarding custody to the petitioner.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 45a-623 provides: “In any proceeding under sections 45a-603 to 45a-622, inclusive, that is contested, the Court of Probate shall, upon motion of any party other than a party who made application for the removal of a parent as a guardian, under rules adopted by the judges of the Supreme Court, transfer the case to the Superior Court. Upon transfer, the clerk of the Court of Probate shall transmit to the clerk of the Superior Court the original files and papers in the case.”

       General Statutes § 45a-610 provides in relevant part: “If the Court of Probate finds that notice has been given or a waiver has been filed, as provided in section 45a-609, it may remove a parent as guardian, if the court finds by clear and convincing evidence one of the following ... (2) the minor child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility for the minor’s welfare; or (3) the minor child has been denied the care, guidance or control necessary for his or her physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the physical or mental incapability of the parent or conditions attributable to parental habits, misconduct or neglect, and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at this time . . . .”

       The respondent relied on General Statutes § 46b-129 for his position. We note that the respondent repeatedly relied on statutes and case law dealing with neglected, uncared-for or dependent children and termination of parental rights; General Statutes §§ 46b-120 through 46b-151g; rather than General Statutes §§ 45a-G03 through 45a-624g, which are the applicable provisions.

       Rule 8 is titled, “Transfers of Contested Petitions for Removal of Parent as Guardian from Courts of Probate to the Superior Court for Juvenile Matters.”

       In Antedomenico, the minor child’s father sought to regain custody of his son, who was then eleven years of age. The child was born shortly before his father entered the army in 1943. While the father was away, the mother lived with her mother and subsequently lost interest in both her husband and her child. The child’s maternal grandmother was granted custody. When the father returned, he divorced the child’s mother and subsequently remarried. The father then attempted to regain custody of the child, but the court determined that it was not in the best interest of the child to remove him from the custody of his grandmother, with whom he had resided since infancy. See Antedomenico v. Antedomenico, supra, 142 Conn. 563.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    GLEN O. JARRETT v. HARRIS ENTERPRISE CORPORATION
    (AC 17454)
    Lavery, Landau and Daly, Js.
    Argued September 16
    officially released October 20, 1998
   Per Curiam.

The judgment is affirmed.


text:
    CONNECTICUT INDEPENDENT LABOR UNION, LOCAL 24 v. CITY OF NORWICH
    (AC 17933)
    Foti, Landau and Sullivan, Js.
    Submitted on briefs September 18
    officially released October 20, 1998
   Per Curiam.

The judgment is affirmed.


text:
    MARY T. O’BRIEN v. LESTER J. O’BRIEN
    (AC 17521)
    Landau, Schaller and Sullivan, Js.
    Submitted on briefs September 18
    officially released October 20, 1998
   Per Curiam.

The judgment is affirmed.


text:
    PMG OCEAN ASSOCIATES, L.P. v. CITY OF NEW HAVEN
    (AC 17726)
    Landau, Schaller and Sullivan, Js.
    Submitted on briefs September 18
    officially released October 20, 1998
   Per Curiam.

The judgment is affirmed.


text:
    FIRST UNION NATIONAL BANK v. JOHN K. CANNON ET AL.
    (AC 17891)
    Landau, Spear and Hennessy, Js.
    Argued September 28
    officially released October 27, 1998
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM J. CLARK v. DAVID RIDBERG ET AL.
    (AC 17310)
    O’Connell, C. J., and Foti and Daly, Js.
    Submitted on briefs September 18
    officially released October 27, 1998
   Per Curiam.

The judgment is affirmed.


text:
    WILLIAM R. HUNT v. DIANE BEAUDOIN ET AL.
    (AC 17882)
    Foti, Lavery and Spear, Js.
    Submitted on briefs September 18
    officially released October 27, 1998
   Per Curiam.

The judgment is affirmed.


author: O’CONNELL, C. J.

text:
    SHELDON B. BUFFERD v. BYRON PAUL YOST ET AL.
    (AC 16918)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued September 25
    officially released November 10, 1998

      William C. Bieluch, Jr., for the appellant (plaintiff).

      Matthew D. Gordon, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals from the trial court’s denial of his motion to open a judgment of nonsuit that was rendered on July 1,1996. On November 7, 1996, the plaintiff moved to open the judgment of nonsuit. In response, the defendant filed an objection to the motion, claiming that (1) it was filed more than four months after the entry of the nonsuit, (2) it was not verified by the plaintiff or his attorney, (3) it did not state in general terms the nature of the plaintiffs claim, (4) it did not show reasonable cause or that a good cause of action existed at the time of the entry of the judgment against him and (5) the plaintiff failed to show that he was prevented by mistake, accident or other reasonable cause from prosecuting the action.

The trial court clerk noted on the defendants’ objection that it was sustained, but inconsistently noted on the motion to open that it was granted. When these conflicting notations were brought to the attention of the trial court, the trial court issued an order vacating the granting of the motion to open and denying the motion, explaining that it had always been the court’s intention to sustain the defendants’ objection and to deny the motion to open. This is the plaintiffs appeal from the denial of his motion to open the judgment of nonsuit. We affirm the trial court’s denial of the motion to open.

Pursuant to General Statutes § 52-212, a motion to set aside a judgment of nonsuit must be filed within four months of the date judgment was rendered. The trial court lacks jurisdiction to entertain a motion to open the judgment filed outside that four month period. Serrano v. Behar, 15 Conn. App. 308, 311, 544 A.2d 250 (1988). The motion in this case was untimely. Therefore, the trial court lacked jurisdiction to consider it. The trial court, however, could make clerical corrections. DiSimone v. Vitello, 6 Conn. App. 390, 392, 505 A.2d 745 (1986).

Additionally, we point out that the form of the motion was procedurally defective in that it did not comply with § 52-212 or Practice Book § 17-43.* We have previously held that when a defendant fails to comply with these requirements, the trial court may properly refuse to grant the motion to open a judgment by default. Dister Corp. v. Northco, Inc., 50 Conn. App. 764, 719 A.2d 485 (1998); Rocklen’s Auto Parts & Service, Inc. v. Rakiec, 6 Conn. App. 504, 506 A.2d 168 (1986).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-212 provides: “(a) Any judgment rendered or decree passed 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, on such terms in respect to costs as the court deems reasonable, 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 or the passage of the decree, 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.
      “(c) The court shall order reasonable notice of the pendency of the complaint or written motion to be given to the adverse party, and may enjoin him against enforcing the judgment or decree until the decision upon the complaint or written motion.”

       Practice Book § 17-43 provides: “(a) Any judgment rendered or decree passed upon a default or nonsuit may be set aside within four months succeeding the date on which notice was sent, and the case reinstated on the docket on such terms in respect to costs as the judicial authority deems reasonable, upon the 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 such judgment or the passage of such decree, and that the plaintiff or the defendant was prevented by mistake, accident or other reasonable cause from prosecuting or appearing to make the same. Such written motion shall be verified by the oath of the complainant or the complainant’s attorney, shall state in general terms the nature of the claim or defense and shall particularly set forth the reason why the plaintiff or the defendant failed to appear. The judicial authority shall order reasonable notice of the pendency of such written motion to be given to the adverse party, and may enjoin that party against enforcing such judgment: or decree until the decision upon such written motion.
      “(b) If the judicial authority opens a nonsuit entered pursuant to Section 17-31, the judicial authority as part of its order may extend the time for filing pleadings or disclosure. (See General Statutes § 52-212.)”


author: DALY, J.

text:
    STATE OF CONNECTICUT v. AURELIO GRACIA
    (AC 16586)
    Lavery, Spear and Daly, Js.

      Argued September 17
    officially released November 10, 1998

      Gerald M. Gallant, for the appellant (defendant).

      Lisa Herskowitz, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and John Kerwin, deputy assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (l). On appeal, the defendant claims that (1) article second of the constitution of Connecticut precludes the judiciary from exercising jurisdiction in this case, (2) the evidence was insufficient to sustain the conviction, (3) the trial court improperly admitted the defendant’s intoxilyzer results, (4) the trial court improperly admitted testimony pertaining to the defendant’s production of currency in response to a police officer’s request for a driver’s license, (5) the results of the roadside sobriety tests were inadmissible without expert testimony and (6) the defendant did not knowingly and intelligently waive his Miranda rights. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 11:30 p.m. on April 12, 1996, a passing motorist, Kevin Scanlon, found the defendant alone and asleep in the driver’s seat of his truck. The defendant’s truck was located on Commerce Drive in the left lane of traffic, near the intersection with Huntington Street in Shelton. Scanlon found the truck’s engine running with the headlights and taillights illuminated, the right turn signal flashing and the radio playing loudly.

Scanlon approached the truck and attempted to awaken the defendant. The defendant’s eyes were closed, his head was tilted downward toward the floor and his feet were under the steering wheel. The defendant was leaning against the driver side door with his head against the window. Unable to awaken the defendant, Scanlon went to summon the police. When he returned, Scanlon observed that the vehicle and the defendant were in the same positions that they had been in when he had left.

Scanlon tried again, unsuccessfully, to awaken the defendant. Looking inside the truck, Scanlon observed that the keys were in the ignition, the gearshift was in the drive position, and the heater and the radio were on. Scanlon moved the gearshift to park.

Officer Kevin Aheam of the Shelton police department arrived at approximately 11:50 p.m., spoke briefly with Scanlon and then attempted to awaken the defendant. Aheam shook and yelled at the defendant for approximately five minutes before the defendant woke up. Ahearn then inquired whether the defendant was ill or needed assistance. The defendant replied that he did not. Aheam reported that the defendant’s eyes appeared glassy and bloodshot, and that he detected an odor of alcohol.

When asked to produce his operator’s license, the defendant removed a $20 bill from his wallet and gave it to Aheam without saying anything. Aheam retained the bill as evidence. The defendant’s license was later retrieved from his wallet at the police station. The defendant was then asked to exit the tmck. The defendant responded by suggesting that Aheam must be “kidding” and that he should be allowed to go home. He then exited the vehicle and, as he did, fell forward, was unsteady, had to lean against the tmck to maintain his balance and spoke in a slightly slurred, loud and boisterous manner. Two field sobriety tests were then conducted. On the basis of his performance, the defendant was arrested on a charge of operating a motor vehicle while under the influence of intoxicating liquorpursuantto § 14-227aand was taken to the police station.

At the police station, the defendant was advised of his Miranda rights. When asked if he understood them, the defendant stared at Aheam and refused to sign the notification of rights form. The defendant was then advised of Connecticut’s implied consent law, General Statutes § 14-227b, and given the opportunity to contact an attorney. The defendant contacted his wife and then told the police that she was going to contact an attorney. Several minutes later, the defendant contacted his wife again and informed police that she was trying to contact “Pilsky.” Police waited a few more minutes and then administered the first of two intoxilyzer tests.

The first test, conducted at 12:56 a.m., resulted in a blood alcohol reading of 0.191 percent. The second, conducted at 1:32 a.m., resulted in a reading of 0.182 percent. Both readings were above the legal limit of 0.1 percent. The defendant was then asked a series of questions. During that time, he exhibited an indignant demeanor, slurred speech, and his eyes were red and glassy.

The defendant was originally charged with operating a motor vehicle while under the influence of intoxicating liquor pursuant to § 14-227a. After a motor vehicle license suspension hearing pursuant to § 14-227b, the state filed a two count substitute information charging the defendant in the first count with a violation of § 14-227a (a) (1) and in the second count with a violation of § 14-227a (a) (2). The jury convicted the defendant on the first count and acquitted him on the second. This appeal followed.

I

The defendant first claims that the judiciary is precluded from exercising jurisdiction in this case. Specifically, he argues that the trial court’s suspension of his license, pursuant to § 14-227a (h), violated the separation of powers provision of article second of the constitution of Connecticut. We disagree.

“A party challenging the constitutionality of a statute bears the heavy burden of establishing its unconstitutionality beyond a reasonable doubt. . . . The court will indulge in every presumption in favor of the statute’s constitutionality and, when interpreting a statute, will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” (Citations omitted.) State v. Campbell, 224 Conn. 168, 176, 617 A.2d 889 (1992), cert. denied, 508 U.S. 919, 113 S. Ct. 2365, 124 L. Ed. 2d 271 (1993).

Our Supreme Court has previously recognized that the powers of the three separate governmental branches inherently overlap, covering acts that are common to more than one branch. See University of Connecticut Chapter, AAUP v. Governor, 200 Conn. 386, 394, 512 A.2d 152 (1986), citing State v. Clemente, 166 Conn. 501, 510, 353 A.2d 723 (1974). Consequently, the court has consistently held that the separation of powers doctrine cannot be rigidly applied. Bartholomew v. Schweizer, 217 Conn. 671, 676, 587 A.2d 1014 (1991); University of Connecticut Chapter, AAUP v. Governor, supra, 394; State v. Darden, 171 Conn. 677, 679, 372 A.2d 99 (1976); Adams v. Rubinow, 157 Conn. 150, 155, 251 A.2d 49 (1968).

A separation of powers challenge will succeed if the statute “(1) confers on one branch of government the duties which belong exclusively to another branch . . . or (2) if it confers the duties of one branch of government on another branch which duties significantly interfere with the orderly performance of the latter’s essential functions.” (Citation omitted.) University of Connecticut Chapter, AAUP v. Governor, supra, 200 Conn. 394-95.

Here, the defendant contends that § 14-227a (h) is unconstitutional because it grants to the judicial branch jurisdiction over subject matter that is already within the exclusive purview of the executive branch. Specifically, he contends that under §§ 14-227a (h) and 14-227b (h) the department of motor vehicles, which is part of the executive branch, and the judiciary are both empowered to suspend operator licenses with respect to the same incident of conduct.

We have previously recognized, however, that “[t]he legislative scheme [of §§ 14-227a and 14-227b] establishes two separate and distinct proceedings. The administrative suspension of an operator’s license is under the jurisdiction of the department of motor vehicles and the prosecution of the underlying offense of driving while intoxicated falls within the jurisdiction of the criminal justice system.” State v. Washburn, 34 Conn. App. 557, 564 n.12, 642 A.2d 70, cert. denied, 230 Conn. 912, 645 A.2d 1017 (1994); see also State v. Hickam, 235 Conn. 614, 622, 668 A.2d 1321, cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996); Marshall v. DelPonte, 27 Conn. App. 346, 351, 606 A.2d 716 (1992). In Hickam, our Supreme Court concluded that an administrative suspension of an operator’s license does not bar criminal prosecution for an alleged violation of § 14-227a (a). State v. Hickam, supra, 628. Furthermore, we have previously stated that it is “beyond doubt” that the trial court has jurisdiction to decide drunken driving cases. See State v. Sitka, 11 Conn. App. 342, 346, 527 A.2d 265 (1987).

It is clear that the legislative scheme of §§ 14-227a and 14-227b intended two separate and distinct proceedings, each under the jurisdiction of a different governmental branch. Moreover, there is no evidence whatsoever that the suspension of drivers’ licenses pursuant to § 14-227a (h) “significantly interfere[s] with the orderly performance of the [court’s] essential functions.” University of Connecticut Chapter, AAUP v. Governor, supra, 200 Conn. 394-95. We conclude that the defendant’s claim is without merit. The trial court’s suspension of his license, pursuant to § 14-227a (h), does not violate the separation of powers provision of the constitution of Connecticut. Accordingly, the trial court properly exercised jurisdiction in this matter.

II

The defendant next claims that the evidence presented at trial was insufficient to support his conviction of operating a motor vehicle while under the influence of intoxicating liquor. We disagree.

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the jury’s verdict. See State v. Salz, 226 Conn. 20, 30-31, 627 A.2d 862 (1993). Accordingly, we inquire “whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty”; State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994); and not “whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence.” Id. “Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) State v. Crump, 43 Conn. App. 252, 256, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996), quoting State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).

Our decision in State v. Ducatt, 22 Conn. App. 88, 575 A.2d 708, cert. denied, 217 Conn. 804, 584 A.2d 472 (1990), addressed the issue of what constitutes operation of a motor vehicle within the meaning of § 14-227a (a) (1). We concluded that an individual “operates a motor vehicle within the meaning of General Statutes § 14-227a (a) when, while under the influence of alcohol or any drug and while in the vehicle and in a position to control its movements, he manipulates, for any purpose, the machinery of the motor or any other machinery manipulable from the driver’s position that affects or could affect the vehicle’s movement, whether the accused moves the vehicle or not.” State v. Ducatt, supra, 93. The statute does not require that intent to move the vehicle be established. Id.

Here, the defendant argued that no jury reasonably could have found that his vehicle was operable. The defendant argues that State v. Englehart, 158 Conn. 117, 256 A.2d 231 (1969), which is factually similar, is not controlling. In Englehart, the defendant was found by police slumped over the steering wheel of an automobile unconscious and intoxicated. The vehicle was located in the center of the roadway with its taillights and headlights illuminated, the key was in the ignition in the on position and the gearshift was in drive, although the engine was not running. Police later drove the car down the road and parked it. On these facts, our Supreme Court held that “[t]here can be no reasonable doubt that, in order to get to the spot where it was found, the car had to be driven, towed or pushed there. Since the car was found to be in good operating condition and since there were no facts indicating that it had been towed or pushed, there was no reasonable basis for an inference that it had not been operated by someone.” Id., 122. The reasoning in Englehart applies to the facts in the present case as well.

In the present case, while it is undisputed that the police did not move the vehicle, as was the case in Englehart, the defendant’s vehicle was found in similar circumstances. Specifically, the defendant was found alone and asleep in the driver’s seat with his feet under the steering wheel. The vehicle was stopped in the left lane of traffic, near an intersection, with its engine running and gearshift in drive. The right turn signal was flashing, the taillights and headlights were illuminated, and the heater and radio were also on. These facts clearly indicate that the vehicle was operable at the time it was found. Because there were no facts to suggest that the vehicle had been towed or pushed, and because it appeared to be operational, there was a reasonable basis for the inference that the vehicle had been operated by the defendant.

Viewing this evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have found that the defendant was driving while intoxicated and fell asleep on Commerce Drive, where he was found.

III

The defendant next claims that the trial court improperly admitted the intoxilyzer results and that such an improper admission requires the reversal of the judgment of conviction. We disagree.

Specifically, the defendant contends that General Statutes (Rev. to 1995) § 14-227a (d), as amended by Public Acts 1995, No. 95-314, § 1, precluded the trial court from admitting the intoxilyzer results with respect to the first count of the information because he did not request that the results be admitted and, consequently, the judgment of conviction must be reversed under our holding in State v. Cooper, 38 Conn. App. 661, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995). The defendant, however, overlooks two critical points.

First, as in Cooper, the defendant in the present case was also charged with the violation of both subdivisions of § 14-227a (a). Consequently, here, as in Cooper, the intoxilyzer results are admissible without the defendant’s request and, in fact, are necessary to prove a violation of § 14-227a (a) (2), pursuant to subsection (c). Second, unlike in Cooper, the trial court properly instructed the jury concerning the use of the chemical evidence and issued an appropriate limiting instruction. Here, the trial court instructed the jury that with regard to count one charging the defendant with violating § 14-227a (a) (1), the intoxilyzer results could not be considered. Additionally, with regard to the second count, charging a violation of § 14-227a (a) (2), the jury was advised that the defendant could not be convicted on that count unless the test results were found to be accurate and reliable.

In Cooper, the trial court gave an appropriate instruction as to the § 14-227a (a) (2) charge, but improperly instructed the juiy that it could consider the blood alcohol test results, in addition to other evidence, when determining whether to convict the defendant of violating § 14-227a (a) (1). Id., 671. In so doing, the trial court permitted the jury to consider the chemical evidence in determining the defendant’s guilt under § 14-227a (a) (1) in direct violation of the statute. Id., 673. No such problem exists here.

Accordingly, we conclude that there was no plain error and that the intoxilyzer results were properly admitted.

IV

The defendant next claims that the trial court improperly admitted testimony pertaining to his production of a $20 bill in response to the police officer’s request for his driver’s license because the evidence was more prejudicial than probative.

Trial courts have wide discretion with regard to evidentiary issues, and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. State v. Robinson, 227 Conn. 711, 732, 631 A.2d 288 (1993). Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion. State v. Kulmac, 230 Conn. 43, 61, 644 A.2d 887 (1994). Accordingly, we must determine whether the prejudicial effect of the testimony outweighed its probative value.

There are four situations where prejudice to the defendant could outweigh the probative value of evidence: “(1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). The defendant’s sole claim regarding the $20 bill is that the testimony falls within the first situation because it may have suggested to the jury that he attempted to bribe the police officer.

It was undisputed that the defendant’s production of a $20 bill instead of his license was highly probative of his level of impairment and ability to operate a motor vehicle safely. While the defendant contends that the testimony concerning his production of the currency was prejudicial because it was suggestive of an attempted bribe, the state never charged him with bribery.

Alternatively, even if the trial court improperly admitted the testimony, we conclude that any error was harmless. The defendant has not proven that harm resulted from the admission of the testimony. The testimonial evidence concerning the defendant’s production of currency was used to demonstrate that he was so inebriated that he was unable to distinguish between money and his license, not as evidence of an attempted bribe. Furthermore, the evidence already admitted was indicative of intoxication—difficulty maintaining balance, slurred speech, glassy and bloodshot eyes, and the odor of alcohol on the defendant’s breath. We conclude that it is unlikely that the jury would infer from the facts that bribery was committed, thereby prejudicing the defendant. Accordingly, we conclude that the trial court did not abuse its discretion in admitting the testimony pertaining to the $20 bill.

V

The defendant next claims that the trial court improperly admitted evidence concerning the field sobriety tests. He contends that field sobriety tests are scientific evidence that require expert testimony prior to their admission into evidence.

A

Before we discuss whether field sobriety tests constitute scientific evidence, we must first address the defendant’s contention that Miranda warnings were required prior to the administration of those tests.

The United States Supreme Court has held that questioning at the scene and conducting field sobriety tests does not involve custody for purposes of Miranda. See Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S. Ct. 205, 102 L. Ed. 2d 172 (1988). Indeed, we have noted that our case law presumes that such testing is “incident to the initial stop, based on the officer’s reasonable suspicion, rather than on the subsequent arrest.” State v. Lamme, 19 Conn. App. 594, 601, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990). We have concluded that such roadside testing and questioning based on “a reasonable, articulable suspicion in the absence of probable cause is ‘clearly warranted’ within the meaning of the Connecticut constitution.” Id.

Accordingly, we conclude that the defendant was not required to be advised of his Miranda rights prior to being administered the field sobriety tests.

B

We now address whether field sobriety tests constitute scientific evidence. Prior to our Supreme Court’s decision in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997) (en banc), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), Connecticut courts used the test outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), for determining the admissibility of scientific evidence. While the events at issue occurred prior to the Porter decision, we conclude that the Frye test is inapplicable to the field sobriety tests used in this case.

The Frye test was found to be appropriate when the “nature of the scientific evidence had the ‘potential to mislead lay jurors awed by an aura of mystic infallibility surrounding scientific techniques, experts and the fancy devices employed.’ ” State v. Borrelli, 227 Conn. 153, 164, 629 A.2d 1105 (1993), quoting State v. Hasan, 205 Conn. 485, 490, 534 A.2d 877 (1987). Satisfaction of the Frye test, however, was not required in all cases. See State v. Borrelli, supra, 164. Satisfying the Frye test is not required in cases where “ ‘the jury is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert’s assertions based on his special skill or knowledge. . . . Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories, the expert’s qualifications, and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence.’ ” Id., quoting State v. Hasan, supra, 491. Such a situation exists in this case.

The field sobriety tests administered here assessed the defendant’s balance, coordination and ability to follow directions. The tests were neither highly technical, nor did they require special skills or knowledge in order to be understood. As we previously stated in State v. Merritt, 36 Conn. App. 76, 90-91, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995), such field sobriety tests, unlike the horizontal gaze nystagmus test, are within the common knowledge of lay jurors. In the present case, the trial court admitted evidence of the field sobriety tests but limited the evidence to observations of the defendant’s behavior made by Aheam. Additionally, the court instructed the jury that the roadside sobriety tests were not scientific evidence, and that it should consider the observations made during the tests and use its common experience in determining whether the defendant was intoxicated.

As we have discussed previously, trial court rulings concerning evidentiary issues will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. See State v. Robinson, supra, 227 Conn. 732. Accordingly, because the field sobriety tests did not require expert testimony as a precondition of admission, we conclude that the trial court did not abuse its discretion by admitting evidence concerning those tests.

VI

The defendant’s final claim is that the trial court improperly denied his motion to suppress statements he made in response to a custodial interrogation by the police after he was advised of his Miranda rights. The defendant contends that he was intoxicated, and could not knowingly and intelligently waive his Miranda rights.

“To be valid, a waiver must be voluntary, knowing and intelligent.” (Internal quotation marks omitted.) State v. Smith, 42 Conn. App. 41, 46, 680 A.2d 1340 (1996), quoting State v. Stanley, 223 Conn. 674, 686, 613 A.2d 788 (1992). The state must establish, by a preponderance of the evidence, that the defendant knowingly and intelligently waived his Miranda rights. See State v. Santiago, 245 Conn. 301, 320, 715 A.2d 1 (1998); State v. Barrett, 205 Conn. 437, 449, 534 A.2d 219 (1987). In reviewing the validity of a waiver, “we look, as did the trial court, to the totality of the circumstances of the claimed waiver.” (Internal quotation marks omitted.) State v. Santiago, supra, 320; State v. Madera, 210 Conn. 22, 49, 554 A.2d 263 (1989). The trial court’s findings will be reversed only if they are clearly erroneous. State v. Smith, supra, 47.

After reviewing the record, we conclude that on the basis of the defendant’s conversations with the police and responses to questions posed by them, the state established a knowing and voluntary waiver.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state ... (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The defendant was not charged with bribery.

       During the telephone call, the defendant was heard to say, “They got me here. I’m at the police station. Call Pilsky.”

       Pilsky is taken to be the lawyer the defendant wanted his wife to contact.

       General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall: (1) For conviction of a first violation, (A) be fined not less than five hundred dollars nor more than one thousand dollars and (B) be (i) imprisoned not more than six months, forty-eight consecutive hours of which may not be suspended or reduced in any manner or (il l imprisoned not more than six months . . . and (C) have Ms motor vehicle operator’s license or nonresident operating privilege suspended for one year . . .

       Article second of the constitution of Connecticut, as amended by article eighteen of the amendments, provides: “The powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another. The legislative department may delegate regulatory authority to the executive department; except that any administrative regulation of any agency of the executive department may be disapproved by the general assembly or a committee thereof in such manner as shall by law be prescribed.”

       See footnote 5.

       General Statutes § 14-227b (h) provides in relevant part: “The commissioner shall suspend the operator’s license . . . and revoke the temporary operator’s license ... for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight . . . .”

       The defendant asserts two scenarios consistent with his innocence. In his brief, the defendant argues that (1) someone else drove the vehicle to the scene and left, leaving the defendant—originally a passenger—behind the wheel as he slumped over in his sleep, and (2) a passerby may have engaged the ignition, lights, and heater to provide warmth to the defendant, who appeared to need medical assistance. We need not examine these hypotheses. As we stated, we inquire “whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty”; State v. Sivri, supra, 231 Conn. 134; and not “whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence.” Id.

       The claim was not preserved at trial, but we review it as a claim of plain error that the statute was violated.

       General Statutes (Rev. to 1995) § 14-227a (d), as amended by Public Acts 1995, No. 95-314, § 1, provides in relevant part: “In any prosecution for a violation of subdivision (1) of subsection (a) of this section, reliable evidence respecting the amount of alcohol in the defendant’s blood ... at the time of the alleged offense, as shown by a chemical analysis of the defendant’s blood, breath . . . otherwise admissible under subsection (c) of this section, shall be admissible only at the request of the defendant.”

       General Statutes § 14-227a (c) provides in relevant part: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood ... at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath . . . shall be admissible and competent . . . .”

       Two tests were conducted: (1) the one-legged stand and (2) the walk and turn. The first requires that a person raise one leg six inches off the ground, hold both hands at the sides and count to thirty by “one thousands.” The second test requires a person to take nine steps forward, touching heel to toe, and then, keeping one foot on the ground, turn around and repeat the process back to the point of origin while counting the steps aloud.

       In Merritt, the defendant was subjected to the one-legged stand, walk and turn, and horizontal gaze nystagmus tests. State v. Merritt, supra, 36 Conn. App. 79 (horizontal gaze nystagmus test held to require Frye analysis prior to admission of evidence concerning test or its results).


author: PER CURIAM.

text:
    STANLEY FERBER, TRUSTEE OF THE VIRGINIA D’ADDARIO SPRAY TRUSTS v. TILCON CONNECTICUT, INC.
    (AC 17284)
    Schaller, Sullivan and Shea, Js.
    Argued October 1
    officially released November 10, 1998

      Allan M. Cane, for the appellant (plaintiff).

      II James Stedronsky, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiff, Stanley Ferber, Trustee of the Virginia D’Addario Spray Trusts, appeals from the judgment of the trial court denying his request for specific performance of a lease-sales agreement. We affirm the judgment of the trial court.

In May, 1974, the defendant’s predecessor in interest, Ashland Oil Company, and F. Francis D’Addario executed two separate leases with mandatory purchase provisions for two asphalt plants, one located in New-town and one in Danbury. In 1976, F. Francis D’Addario conveyed a 50 percent interest in the properties to five separate spray trusts for the benefit of his children. One of the children is deceased so that the four surviving children own the 50 percent interest in the properties in equal shares of 12 1/2 percent each. The remaining 50 percent interest in each property is held by the estate of F. Francis D’Addario, who died in 1986.

The sole issue in this appeal is whether the defendant must purchase a fractional interest in the properties under the terms of these leases.

Both leases called for an original term of twenty years with three renewals of ten years each. In the Newtown lease, this provision was set out in paragraph eighteen, and in the Danbury lease this provision was set out in paragraph sixteen. The Danbury lease provides as follows:

“16. REQUIRED PURCHASE
“At the end of the Primary Term of this Lease if Lessee elects not to exercise its option to extend this Lease in accordance with Paragraph 15 hereof, or at the termination of this Lease after the option or options to extend this Lease have been exercised, Lessee shall be obligated to purchase the Premises and the structures and improvements located thereon at a purchase price equal to the then fair market value of the Premises as an existing use permissible at that time under the Lease determined on the basis of the average of three separate appraisals; provided, however, that Lessee shall not be obligated to purchase the Premises in the event it elects to terminate this Lease pursuant to Paragraph 14 hereinabove. One of such appraisers shall be appointed by Lessor, one by Lessee and the third shall be appointed by the other two appraisers so appointed. All such appointments shall be made within sixty (60) days after the expiration of an option to renew by failure to exercise the same or if all options are exercised, within sixty (60) days prior to the expiration of the third renewal period.” The Newtown lease contained the same essential terms except for the location of the property involved.

Both leases gave the defendant lessee two choices at the end of each term. It could either purchase the properties described therein or extend the lease for another term. In any event, after the original lease period and the three extension periods expired, the defendant was required to pinchase the properties in accordance with the required purchase provisions of the lease. As the end of the original lease term approached, the defendant notified the lessor that it intended to exercise its right of purchase under said leases. None of the property owners, with the exception of the plaintiff, wanted to sell their interests. The plaintiff sought to have the defendant buy her one-eighth interest in the properties. The defendant refused to do so and instead signed an amendment to each lease with all of the owners except the plaintiff. As a result, the defendant has an amended lease for 87 1/2 percent of the ownership interest in each property. The plaintiff owns the remaining 12 1/2 percent in each property for which there is no lease agreement. The amendments to each lease provided more favorable terms to the defendant than does the original lease.

The plaintiff now seeks specific performance of the terms of the original leases, asking the court to mandate that the defendant purchase the trust’s one-eighth interest in each property and the structures and improvements located thereon. “If the parties have reduced their agreement to a writing, their intent ‘is to be determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. The question is not what intent existed in the minds of the parties but what intention is expressed in the language used.’ ” Tomlinson v. Board of Education, 226 Conn. 704, 722, 629 A.2d 333 (1993). “In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language is clear and unambiguous, the contract is to be given effect according to its terms.” (Internal quotation marks omitted.) Id.

We agree with the trial court that the only reasonable interpretation of the lease is that the defendant’s obligation to purchase becomes mandatory only if 100 percent of the property is sold. The defendant is not required to purchase a fractional share of the properties. Therefore, the trial court was correct when it denied the plaintiffs request for specific performance of the purchase agreement.

The judgment is affirmed.


author: FOTI, J.

text:
    ALEXANDER CHURCHILL ET AL. v. EUNICE ALLESSIO, EXECUTRIX (ESTATE OF EVA CHURCHELOW), ET AL.
    (AC 16646)
    O’Connell, C. J., and Foti and Hennessy, Js.

      Argued September 14
    officially released November 10, 1998

      Frederic E. Mascolo, with whom was Cheryl E. Heffeman, for the appellants (named plaintiff et al.).

      Gary P. Sklaver, with whom was Irving H. Perlmutter, for the appellees (defendants).
   Opinion

FOTI, J.

The plaintiffs Alexander Churchill, Jr., and John Churchill appeal from the judgment for the defendants, rendered after a jury trial, determining that the document offered by the defendants for probate as the last will and testament of Eva Churchelow was revoked by Churchelow and then revived under the doctrine of dependent relative revocation. The plaintiffs claim that the trial court improperly (1) applied the doctrine of dependent relative revocation throughout its rulings on the evidence and in its charge to the jury, (2) permitted the defendants’ handwriting expert to render an opinion before the jury based on unauthenticated, improperly admitted exemplars, (3) precluded the plaintiffs from introducing at trial the prior testimony of Helen Skjerding, a witness from another trial, and (4) deprived the plaintiffs of a fair trial by committing an accumulation of errors causing prejudice and bias in the jury’s deliberations. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The decedent, Eva Churchelow, died on April 29, 1985. Following her death, a document dated June 27, 1984, and purporting to be Churchelow’s last will and testament, was admitted to the Probate Court for administration. After the Probate Court admitted the will, Alexander Churchill, Jr., John Churchill and Marlene Ann Tosun, Churchelow’s grandchildren, appealed from that decision to the Superior Court. The case was tried to a jury, which returned a general verdict rejecting the 1984 document as Churchelow’s last will and testament. Thereafter, an appeal was filed in this court, and we affirmed the trial court’s rejection of the 1984 will. Churchill v. Skjerding, 31 Conn. App. 247, 624 A.2d 900, cert. denied, 226 Conn. 914, 628 A.2d 986 (1993).

Following this court’s ruling, the named defendant in the present matter, Eunice Allessio, who is Churchelow’s daughter, found a copy of another document purporting to be Churchelow’s last will and testament, which was dated May 17,1967 (1967 will). The original of this document was located and filed in the Probate Court for administration. After the will was admitted, Churchelow’s grandchildren appealed from that decision to the Superior Court claiming, inter alia, that the purported signature of Churchelow appearing on the 1967 will was a forgery. The case was tried to a jury, which found that while Churchelow’s signature did, in fact, appear on the 1967 will, she had later revoked the will. The jury concluded, however, that the will should nevertheless be accepted under the doctrine of dependent relative revocation. This appeal followed.

I

The plaintiffs first claim that the trial court improperly applied the doctrine of dependent relative revocation throughout its rulings on the evidence and in its charge to the jury. We disagree.

A

“The gist of the doctrine [of dependent relative revocation] is that if a testator cancels or destroys a will with a present intention of making a new one immediately and as a substitute and the new will is not made or, if made, fails of effect for any reason, it will be presumed that the testator preferred the old will to intestacy, and the old one will be admitted to probate in the absence of evidence overcoming the presumption. 1 Page, Wills (Lifetime Ed. [1941]) p. 885; 1 Schouler, Wills, Executors & Administrators (6th Ed. [1923]) § 632; 57 Am. Jur. 356, § 514; note, 24 A.L.R.2d 514, 554 [1952], The rule has been more simply stated in these words: ‘[W]here the intention to revoke is conditional and where the condition is not fulfilled, the revocation is not effective.’ Matter of Macomber, 274 App. Div. 724, 725, 87 N.Y.S.2d 308 [1949]. . . . [The rule] is applicable in cases of partial as well as total revocation. Gardner v. Gardiner, 65 N.H. 230, 232, 19 A. 651 [1890]; Schneider v. Harrington, 320 Mass. 723, 726, 71 N.E.2d 242 [1947]; In re Roeder’s Estate, 44 N.M. 578, 588, 106 P.2d 847 [1940]; 57 Am. Jur. 358, § 516.” (Citations omitted.) LaCroix v. Senecal, 140 Conn. 311, 315, 99 A.2d 115 (1953).

The plaintiffs claim that the trial court improperly prohibited them from exploring Churchelow’s true intent at the time of the revocation of her 1967 will, and subsequent drafting and execution of her 1984 will. This claim is based on the court’s refusal to admit into evidence the 1984 will of Churchelow, as well as evidence concerning the circumstances surrounding its making. The plaintiffs claim that these rulings “forced the [plaintiffs] to refrain from making any real inquiry into the mental state and intent of the testator at the time of the act of revocation and the drafting and filing of the 1984 will by examining the surrounding circumstances.”

“The trial court has broad discretion in determining the relevancy of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). We afford atrial court’s ruling on the admissibility of evidence great deference. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). Its evidentiary rulings will be set aside only where there has been a clear abuse of discretion. State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). Every reasonable presumption should be given in favor of the trial court’s ruling. State v. Shindell, 195 Conn. 128, 136, 486 A.2d 637 (1985).” State v. Reddick, 36 Conn. App. 774, 789, 654 A.2d 761, cert. denied, 232 Conn. 922, 656 A.2d 671 (1995). “Moreover, evidentiary rulings will be overturned on appeal only where there . . . [is] a showing ... of substantial prejudice or injustice.” (Internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 247 Conn. 24, 37, 718 A.2d 425 (1998).

Here, in ruling that the 1984 will, as well as testimony concerning the circumstances surrounding its drafting, was irrelevant and thus inadmissible, the trial court cited our opinion in Churchill v. Skjerding, supra, 31 Conn. App. 253, in which we upheld the jury’s general verdict that Churchelow’s 1984 will was not properly executed in accordance with General Statutes § 45a-251. In reference to the 1984 will, the trial court noted that “there cannot be any intention whatsoever on the part of [Churchelow] because either it was not her signature, she did not have the capacity to make the will or she had no intent because she operated under duress.”

Here, we cannot say that the trial court’s refusal to admit the 1984 will, as well as testimony concerning the circumstances surrounding its failed execution, was a clear abuse of discretion. It is axiomatic that “[e]vidence is admissible only if it is relevant.” Tomlinson v. Board of Education, 226 Conn. 704, 728, 629 A.2d 333 (1993). Given the prior determination that the 1984 will was not executed in accordance with § 45a-251 and, thus, was not Churchelow’s last will and testament, we cannot say that to preclude its introduction as irrelevant was improper.

Furthermore, an examination of the record reveals that testimony was elicited from Patrick Zailckas, the attorney scrivener of the 1984 will, concerning the circumstances surrounding the revocation of the 1967 will. For example, during cross-examination by the plaintiffs’ attorney, the following colloquy took place:

“[Plaintiffs’ Counsel:] Okay. And is it your testimony that you used [the 1967] will as a guide?
“[Zailckas:] Yes, sir.
“Q. And did you go over this will with her?
“A. Yes, sir.
“Q. And I show you page one on the third clause, did you cross out five acres—five—the term five acres to ten acres?
“A. Yes, sir.
“Q. And did Mrs. Churchelow object when you wrote on this will?
“A. She told me to do that.
“Q. She told you to do that?
“A. Yes, sir.
“Q. She told you to cross it out? Right?
“A. She gave me that because she was going to make a new will out. I was using that as a guide. . . .
“Q. She told you that she wanted to revoke this will, she wanted to change it?
“A. . . . [S]he wanted to change it, not revoke it, change it.
“Q. Well, she wanted a new will?
“A. She wanted a new will.
“Q. She wanted to get rid of this will?
“A. I don’t remember her mind. All I know is she wanted changes made, and that’s what I was doing.”

Therefore, it appears that the plaintiffs were not unduly limited in exploring the true intent of Eva Churchelow at the time of the revocation of the 1967 will. Given the limited evidentiary value of the 1984 will, as well as the evidence elicited concerning the revocation of the 1967 will, the plaintiffs cannot demonstrate that they suffered substantial prejudice by the trial court’s ruling.

B

The plaintiffs next claim that the trial court’s charge on the doctrine of dependent relative revocation was improper and misled the jury as to the application of that doctrine. We disagree.

“In reviewing the [plaintiffs’] claim, we adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 507, 481 A.2d 750 (1984). . . . We do not critically dissect the charge in order to discover possible inaccurate statements. Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933). Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues. . . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 566, 562 A.2d 1100 (1989). As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury; Kelley v. Bonney, 221 Conn. 549, 584, 606 A.2d 693 (1992); we will not view the instructions as improper. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial’s outcome. Id., 586; Blancato v. Randino, 30 Conn. App. 810, 816, 622 A.2d 1032 (1993).” (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 280-81, 640 A.2d 74 (1994).

In support of their claim that the trial court’s charge on the doctrine of dependent relative revocation was improper, the plaintiffs first claim that “[t]he court did not charge the jury that the defendants-proponents had to establish by clear intent that Eva Churchelow desired and wished to revive her 1967 will.” Under the doctrine of dependent relative revocation, however, the proponents of a will do not bear such a burden. According to the doctrine, “if a testator cancels or destroys a will with a present intention of making a new one immediately and as a substitute and the new will is not made or, if made, fails of effect for any reason, it will be presumed that the testator preferred the old will to intestacy, and the old one will be admitted to probate in the absence of evidence overcoming the presumption.” (Emphasis added.) LaCroix v. Senecal, supra, 140 Conn. 315. The revival of the old will is the result of the legal presumption that a testator would prefer an old, previously revoked will to intestacy. An actual intention to revive an earlier will need not be shown nor proven.

Additionally, the plaintiffs claim that in its charge, the trial court improperly placed on the plaintiffs the burden of proof on the issue of dependent relative revocation. In reviewing this claim, we are mindful that “the test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.” (Internal quotation marks omitted.) Holbrook v. Casazza, 204 Conn. 336, 351-52, 528 A.2d 774 (1987), cert. denied, 484 U.S. 1006, 108 S. Ct. 699, 98 L. Ed. 2d 651 (1988). An examination of the jury charge, as a whole, demonstrates that the burden was placed properly on the defendants, the proponents of the will.

II

The plaintiffs next claim that the trial court improperly permitted the defendants’ handwriting expert to render an opinion before the jury based on comparisons with unauthenticated, improperly admitted exemplars. We disagree.

At issue in this case was whether Churchelow’s signature actually appeared on the 1967 will. In an attempt to prove that Churchelow had, in fact, signed the 1967 will, the defendants retained a document examiner, John Sang, to authenticate the signature appearing on the 1967 will as Churchelow’s true signature. The plaintiffs claim that the handwriting exemplars relied on by Sang in his comparisons were, themselves, not properly authenticated and, therefore, could not have provided the basis for those comparisons.

“It is undisputed that where an issue is raised regarding the authenticity of a writing, proof of authenticity may be made by a comparison of the disputed writing with another writing, an exemplar, the authenticity of which has been established. Shakro v. Haddad, 149 Conn. 160, 163, 177 A.2d 221 (1961); Tyler v. Todd, 36 Conn. 218, 222 (1869). The authenticity of the exemplar may be proved by circumstantial evidence. McCormick, Evidence (3d Ed.) § 222; annot., 41 A.L.R.2d 575, 589 § 8.” State v. Jones, 8 Conn. App. 177, 184, 512 A.2d 932 (1986). “In general, a writing may be authenticated by a number of methods, including direct testimony, circumstantial evidence or proof of custody. [2 C. McCormick, Evidence (4th Ed. 1992)] §§ 219 through 228, pp. 38-58.” New England Savings Bank v. Bedford Realty Corp., 246 Conn. 594, 604, 717 A.2d 713 (1998).

Here, the defendants introduced circumstantial evidence from which it could have been established that the exemplars utilized by Sang to authenticate the signature appearing on the 1967 will were, themselves, authentic. For example, testimony was elicited that showed that the documents on which the exemplars appeared were found in a cardboard box under the foot of Churchelow’s bed. The defendant, Allessio, who is Churchelow’s daughter, testified that the signatures appearing on these documents looked “like my mother’s signature.” Additionally, although Allessio had not actually witnessed Churchelow sign her name on the documents, she had seen her mother sign her name on other occasions. In fact, she had helped teach Churchelow to write and to sign her name. Finally, the exemplar signatures appeared on documents such as cards and letters. Allessio testified that while Churchelow could understand and speak English, she could not read or write English and would often practice signing her name on such items.

While the plaintiffs claim that this evidence was insufficient to authenticate these signatures properly, the trial court nevertheless found them to be proper exemplars suitable for comparison. As stated above, “[t]he authenticity of the exemplar may be proved by circumstantial evidence.” State v. Jones, supra, 8 Conn. App. 184. Here, we cannot say that the trial court abused its discretion in finding that the exemplars utilized by Sang were authentic.

Ill

The plaintiffs next claim that the trial court improperly precluded the plaintiffs from introducing at trial the prior testimony of Skjerding, an unavailable witness who had testified at the 1984 will trial. We disagree.

Pursuant to General Statutes § 52-160, “[i]f any witness in a civil action is beyond the reach of the process of the courts of this state, or cannot be found, and his testimony has been taken by the court stenographer or reporter upon a former trial of the action, a transcript of the record of the testimony, verified by the oath of the stenographer or court reporter, shall be admissible in evidence, in the discretion of the court, upon any subsequent trial of the action, in the same manner and to the same extent as a deposition of the witness would be if legally taken.” (Emphasis added.) Here, it is clear that Skjerding’s testimony was taken during the trial of a different cause of action, the 1984 will trial, and, therefore, does not fall under the purview of § 52-160.

IV

The plaintiffs finally claim that the trial court committed an accumulation of errors that caused prejudice and bias in the jury’s deliberations. We are unpersuaded.

A

The plaintiffs initially assert that the trial court improperly prevented them from introducing into evidence the value of the property at issue in this case on the grounds of relevance. In general, “evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Hines, 243 Conn. 796, 801, 709 A.2d 522 (1998). The dispositive issue in this case was whether Churchelow had revoked, and then revived, her 1967 will. We cannot say that the trial court abused its discretion by refusing to allow the introduction of the value of Churchelow’s property, which was the subject of the 1967 will.

B

The plaintiffs’ next assertion centers on their failed attempt to introduce into evidence the deposition testimony of Zailckas for the purpose of impeaching him by prior inconsistent statements. Following an objection to the introduction of this testimony by opposing counsel, the trial court ruled that it had not “heard any inconsistent statements” and sustained the objection. The defendants assert that this comment, along with the trial court’s refusal to give a curative instruction, “invaded the province of the jury.”

“It is fundamental that for the purpose of impeaching the credibility of his testimony, a witness may be cross-examined as to statements made ... in other proceedings which contradict those made upon direct examination. . . . Falls v. Loew’s Theatres, Inc., 46 Conn. App. 610, 612, 700 A.2d 76 (1997).” (Internal quotation marks omitted.) State v. McKnight, 47 Conn. App. 664, 670, 706 A.2d 1003 (1998). “The trial court must determine, however, whether the statement or conduct is, in fact, sufficiently contrary to the position asserted at trial to justify its introduction as a prior inconsistent statement. State v. Piskorski, 177 Conn. 677, 710, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).” State v. Otto, 50 Conn. App. 1, 8, 717 A.2d 775, cert. denied, 247 Conn. 927, 719 A.2d 1171 (1998). Here, it was well within the trial court’s discretion to determine that the proffered testimony was not sufficiently contrary to Zailckas’ in-court testimony so as to render it admissible.

C

The plaintiffs’ final assertion concerns a comment made by the trial court to one of the plaintiffs’ attorneys. While one of the plaintiffs’ attorneys was questioning the plaintiffs’ handwriting expert, the trial court apparently thought that the plaintiffs’ cocounsel was also addressing the witness. The following short colloquy took place:

“The Court: I would appreciate it, counsel, if you did not talk to the witness while she was on the stand.
“[Plaintiffs’ Cocounsel]: Excuse me, Your Honor?
“The Court: I said I would appreciate it if you do not talk to the witness while she was on the stand.
“[Plaintiffs’ Cocounsel]: I didn’t, Your Honor.
“The Court: It looked like you did. If you didn’t do it, fine.”

The plaintiffs claim that the purpose of the trial court’s statements was to “prejudice the jury against that counsel and her clients.” The plaintiffs claim that this ruling, along with others by the trial court, “appear[ed] to demonstrate a bias on his part favoring one side and being against the other.” “Claims alleging judicial bias should be raised at trial by a motion for disqualification or the claim will be deemed to be waived. Barca v. Barca, [15 Conn. App. 604, 607, 546 A.2d 887, cert. denied, 209 Conn. 824, 552 A.2d 430 (1988)]. A party’s failure to raise a claim of disqualification at trial has been characterized ‘as the functional equivalent’ of consenting to the judge’s presence at trial. Timm v. Timm, 195 Conn. 202, 205, 487 A.2d 191 (1985).” Cahn v. Cahn, 26 Conn. App. 720, 732-33, 603 A.2d 759 (1992), aff'd, 225 Conn. 666, 626 A.2d 296 (1993). Here, since the defendants failed to raise the claim of judicial bias at trial, we will not review the merits of that claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Because we affirm the judgment of the trial court, we need not consider the defendants’ alternate grounds for affirmance, which they raised by way of cross appeal. See Practice Book §§ 61-8 and 63-4 (a) (1).

       We will refer to the document dated June 27, 1984, as the “1984 will,” even though we recognize that it was not properly executed as such.

       While Alexander Churchill, Jr., and John Churchill appealed from the judgment,, Marlene Ann Tosun did not and is not, a party to this appeal. We refer in this opinion to the Churchills as the plaintiffs.

       General Statutes § 45a-251 provides in relevant part: “A will or codicil shall not be valid to pass any property unless it is in writing, subscribed by the testator and attested by two witnesses, each of them subscribing in the testator’s presence . . . .” (Emphasis added.)

       The jury charge read in relevant part: “If, however, you find that Eva Churchelow did revoke her otherwise valid 1967 will, your inquiry does not end. An intent to revoke may be either absolute and final or depend on the existence or belief in the existence of certain circumstances. Accordingly, you must continue your deliberations to determine if despite that revocation the 1967 will nevertheless should be accepted and remain in full force and effect. This brings into play the legal doctrine known as dependent relative revocation.
      “Under the doctrine of dependent relative revocation, if a testator revokes his will intending to make a new will and a new will is not made or if it fails of effect for any reason, it will be presumed that the testator preferred the old will to intestacy and the old will would be admitted to probate in the absence of evidence overcoming this presumption. The doctrine is a rule of presumed intention which will prevail in the absence of sufficient rebuttal evidence. This rule can only apply when there is a clear intent of the testator that the revocation of the old will is made conditional upon the validity of the new will. The doctrine of dependent relative revocation is designed to carry out the probable intention of the testator when there is no reason to suppose that he intended to revoke his earlier will if the later will became inoperative.
      “The relevant evidence in this case indicates that Eva Churchelow met with Attorney Zailckas in 1984, when she was ninety-three years of age, in connection with the making of her new will; that new will, the purported 1984 will is a nullity. The revocation of a valid will may be so intimately connected with the making of a new will as to show a clear intent of a testator, here Eva Churchelow, that the revocation of the old will is made conditional upon the validity of the new' will so that the revocation fails to become operative if a new will is a nullity.

        ‘'The proponents of the 1967 will have the burden of proof by the fair preponderance of the evidence on this issue of dependent relative revocation. Their burden, however, will be satisfied by the presumption of validity that I have just described, the opponents [have] the burden of producing evidence sufficient to rebut this presumption. In order to rebut the presump1ion in this case, the opponents must have produced sufficient credible evidence showing a reason or reasons why the revocation of the 1967 will was absolute and final and not intended by Eva Churchelow to be dependent on the making of a valid new will.
      “If you find that the opponents have done so and thereby have rebutted the presumption, the burden shifts back to and remains on the proponents who must then satisfy the burden of proof without the benefit of the presumption. If you find that the proponents have satisfied the burden of proof on this issue of dependent relative revocation, whether by reason of the presumption of validity or without it, your verdict must enter in favor of the propcrnents. Otherwise, your verdict must enter in favor of the opponents for the revocation that you have previously found proved will have been absolute and final.” (Emphasis added.)

       We similarly reject the plaintiffs’ argument that the exemplars of Churchelow’s signature constituted inadmissible hearsay. “A statement made [out of court] that, is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible. State v. Packard, 184 Conn. 258, 274, 439 A.2d 983 (1981).” (Internal quotation marks omitted.) State v. Hoth, 50 Conn. App. 77, 88, 718 A.2d 28, cert. denied, 247 Conn. 922, 722 A.2d 811 (1998). Additionally, however, “an out-of-court statement that is not offered to prove the truth of the matter asserted therein is not hearsay. State v. Alvarez, 216 Conn. 301, 310-11, 579 A.2d 515 (1990).” State v. Jones, 44 Conn. App. 476, 485, 691 A.2d 14, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997). Here, the signatures were not out-of-court assertions being offered for their truth. Instead, the signature exemplars in this case were introduced so that their physical characteristics could be compared with the signature on the 1967 will. They do not, therefore, constitute hearsay.

       At the outset, we note that the plaintiffs assert that in addition to the particular claims of error enumerated in their brief, there were “numerous rulings not mentioned but represented in the trial transcript” that caused prejudice and bias in the jury’s deliberations. These additional claims of error were not briefed. “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.” (Internal quotation marks omitted.) Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994); see also Practice Book § 67-4, formerly § 4064C. Therefore, we will not review those claims.