author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. JOHN G.

    (AC 22494)
    Schaller, Flynn and West, Js.

      Argued May 30, 2003
    officially released January 6, 2004

      Martin Zeldis, senior assistant public defender, with whom, on the brief, was Debra Munson, certified legal intern, for the appellant (defendant).

      SusannE. Gill, senior assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victims or others through whom their identities may be ascertained. See General Statutes § 54-86e.

   Opinion

SCHALLER, J.

The defendant, John G., appeals from the judgment of conviction, rendered following a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 and risk of injury to a child in violation of General Statutes (Rev. to 1993) § 53-21. The defendant claims that the court improperly (1) admitted into evidence a letter written by the victim and (2) allowed a constancy of accusation witness to testify as an expert regarding the victim’s delay in reporting the abuse. We agree with the defendant that the court’s admission into evidence of the victim’s letter was improper because the information contained in that letter was both irrelevant to the central issues of the case and prejudicial. We reverse the judgment of conviction on that basis. Because our resolution of the defendant’s first claim is dispositive of this appeal and the second claim is not likely to recur on retrial, we need not address the remaining claim.

The following facts are relevant to the defendant’s appeal. The criminal charges against the defendant stem from allegations that he sexually molested his step-granddaughter during a nine month period while she was residing in his home. The alleged assaults began in September, 1993, one month prior to the victim’s twelfth birthday. The victim made the allegations of abuse during counseling sessions that she attended while she was a college freshman nearly seven years after the alleged abuse had occurred. According to the victim’s testimony, she began counseling because she was concerned about the safety of her younger sister and wanted to find ways that she could protect her from similar molestation. On the advice of a school counselor, the victim subsequently disclosed the alleged abuse to her parents and to the department of children and families. The department of children and families, in turn, advised the victim to contact the police, which she did.

The defendant was arrested in April, 2000, and was charged with sexual assault in the first degree and risk of injury to a child. The defendant pleaded not guilty to those charges. Following a trial to the jury, the defendant was convicted of both charges and was sentenced to a total effective term of ten years of incarceration suspended after two years.

I

The first claim that the defendant raises on appeal is that the court improperly allowed into evidence a letter written by the victim to her parents following his arrest. The defendant argues that the letter was irrelevant to the issues in the case and that its introduction was unduly prejudicial. The state argues that the letter was admissible pursuant to several different theories.

The following additional facts are necessary for our resolution of the defendant’s claim. During its direct examination of the victim, the state offered into evidence a letter written by the victim to her parents. The prosecution offered the letter under the state of mind exception to the hear say rule. That letter read: “Dear Mom and Dad, It’s killing me right now to write this letter but there are a few things I think you need to know. This is the only way I’ll be able to tell you. I have to start from the beginning.

“I’ve been sexually abused we all know that. By your father-in-law, Mom and Dad by your father. Yes, your father! Don’t try to defend him anymore. Let it go and accept that your father is a pig who has done your daughter very wrong. I have done nothing to deserve this then or now. I would walk to his house from the school bus and go inside say hi, kiss on the cheek, whatever. From what I remember, I would stand in front of his desk in his room, for whatever reason, and he would come from behind me and stick his hands down my pants and begin to touch me. Sometimes I would lay on the bed to get some rest (not for any sexual attention!!) and he would stand next to me and take my hands and rub his [genitals]. When you came to pick me up, Mom, I would say good-bye and give him a kiss, as we do to everyone else in the family, and he would try to stick his tongue in my mouth. I’ve been woken up at 6:30 in the morning to him performing oral sex on me. This man told me he loved me and would never do anything to hurt me, however I could not say anything to mom or dad. (Those were his words) So as my so called grandfather I did as he said and told no one. I was eleven and twelve years old. I knew absolutely nothing about this subject. All I knew is that he was my grandfather and I was to respect him.

“For years afterwards I pushed it to the back of my mind and denied it not realizing the multiple effects it was having on me. [Sophomore] year I got into a lot of trouble as you know. I was depressed, [suicidal], angry, hurt, stressed and was calling out for help and attention. Everything I did was to be noticed. This man confused me, traumatized me, robbed me of my childhood and made me just want to give up and die. But I pulled through it all, Thank God. Till this day, 7 years later, I am still angry, hurt, and very scared. I trust very little people and speak very little when there are people around that I’m not comfortable with. I have dealt with this too long by myself. For my little sister, one, and for myself, two, I will put this man, this pig of a man away with or without your help. Dad, counseling is not enough for him. If you could only understand what he has done. You are [supposed] to be my father and be protecting me. Well, right now you are only protecting him as if he is the victim. If it was anybody else who did this you would of went out and killed him already. So what is the difference. I can’t believe you would even come to me and ask me to drop charges. He has not been through nearly as much as I have. Some [embarrassment] and [humiliation] is nothing compared to what he has made me live with (and will have to live with for the rest of my life). As far as I am concerned you are worried about yourself and not about me at all. If your cousins are the cousins you say they are then they will help you in this too. You need to start thinking about your family and realize that you are pushing another one of your daughter’s away. Or am I different because I’m not your blood? Sometimes I wonder, if it was Annie how would you be acting?

“Mom, either [you’re] with me 100% or [you’re] not with me at all. All I want is your support. I don’t want you to come to court with me and start talking for me. That is what you did last week. You told the prosecutor what you and your husband want. Not what I want. This is my case and it is between me and ‘him.’ If your husband is going to keep you from supporting me 100% then I don’t need any support at all.

“Oh and right now the court and trial is out of my hands. He could have pleaded guilty and [faced] the consequences, but he wants to fight it all the way. So he is the one putting himself through all this. He wants to go to trial. So don’t blame me for what happens to him from here on.

“If you are wondering how I am feeling now, why I am not talking to you Dad — I am scared, I am angry, hurt and feel very alone. I feel betrayed by my own parents. I am not blaming you at all for what happened then, either one of you because it wasn’t my fault and it wasn’t your fault. But I am very angry and upset that I don’t have your support, from mom or dad. (If I don’t have all your support, then I don’t have any of it.) And the fact that I have not said anything to you, Dad, not have I looked at you in the past IV2 months, and you notice this but can not come to me and find out why. You had no problems talking to me about dropping the charges all 3 times! Why is it so hard for you to come talk to me about how I’m feeling. Or don’t you care? I am sorry, very sorry all this has happened but we can’t push it away and ignore it anymore. I have done that for far too long. As far as I’m concerned this household is very split and broken up because nobody wants to talk about what is bothering them. Everyone walks around like they are made of steel pretending not to have any problems (including myself but at least I am writing this letter which is a bit more than anyone else has done.) I love you both very much and ask for only, only your 100% support and stop pressuring me to do what is not possible.” (Emphasis in original.)

During its offer of proof, the state argued that the letter was relevant to show the victim’s state of mind with respect to why she waited to come forward with her allegations. The state also argued that the letter properly was admissible as nonhearsay constancy of accusation evidence pursuant to State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996) (en banc). Finally, the state attempted to justify admission of the letter under the state of mind exception to the hearsay rule on the ground that it was relevant to the establishment of an essential element of the charge of risk of ir\jury to a child. Specifically, the state argued that the description within the letter of her acting out and getting into trouble as a consequence of the defendant’s molestation was relevant to establishing that the defendant’s actions did have the effect of impairing her health or morals.

At one point during the state’s argument regarding the admission of the letter pursuant to Troupe, defense counsel stated that he “[didn’t] mind the [court’s] strict reading of Troupe, but that would negate 98 percent of the letter.” The court replied, “It may. It very well — ” Following some additional argument regarding the letter’s admissibility pursuant to the constancy of accusation doctrine, the court stated that it would allow the state to make an offer of proof regarding the reason that the victim wrote the letter and that the court then would make its ruling on the basis of the victim’s response.

Defense counsel reiterated that he had no problem with the letter’s being admitted pursuant to Troupe, provided that the letter was redacted in such a way that only the very limited information permissible under Troupe would be before the jury. Defense counsel, however, strenuously objected to the letter’s being admitted under the state of mind exception to the hearsay rule to prove impairment of the victim’s health and morals. The court stated that it would allow the letter into evidence under the state of mind exception to the hearsay rule as relevant to establish impairment of the victim’s morals.

Outside of the presence of the jury, the prosecution then posed some questions to the victim concerning the letter. Following the questioning of the victim, the court and counsel discussed the scope of the questions and responses that would be allowed. The prosecutor conceded that the victim had exceeded the scope of permissible testimony by divulging the actual details of the alleged assault pursuant to the letter. He stated that when he questioned the victim in front of the jury, he would instruct her to talk only about the general nature of the letter’s content. Defense counsel objected to questions posed to the victim by the state regarding her feelings over the years. The prosecutor claimed that the questions were relevant to the charge of risk of injury to a child, and the court overruled the defendant’s objection.

We begin our analysis of the defendant’s claim by setting forth the applicable standard of review. “The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion.” (Internal quotation marks omitted.) State v. Moody, 77 Conn. App. 197, 204, 822 A.2d 990, cert. denied, 264 Conn. 918, 827 A.2d 707 (2003).

A

We first address the defendant’s claim that the court improperly admitted the victim’s letter under the state of mind exception to the hearsay rule for the purpose of establishing an actual impairment of her health or morals under the charge of risk of injury to a child. In objecting to the admission of the letter on that ground, the defendant argued that it was not necessary to show an actual impairment of a victim’s health or morals to prove a violation of § 53-21. Rather, the defendant argued, all that is required is proof of a touching of a minor’s intimate parts. The state argues, inter alia, that the court’s admission of the letter was not improper because the letter was appropriate evidence that the defendant’s conduct impaired the victim’s morals and that such a factual finding was necessary for a conviction pursuant to § 53-21. Specifically, the state argues that the letter’s recitation of the victim’s “acting out” behavior was relevant to establish that the victim’s health or morals actually had been impaired pursuant to § 53-21. We agree with the defendant that the statements contained in the letter were not relevant to proving that element of the charged crime.

“[A]n out-of-court statement that is offered to establish the truth of the matter asserted is inadmissible hearsay unless the statement falls within a recognized exception to the hearsay rule. . . . One such exception provides that statements expressing a declarant’s present state of mind may be offered for the truth of the matter asserted, if relevant. See Conn. Code Evid. § 8-3 (4) . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Dehaney, 261 Conn. 336, 355-56, 803 A.2d 267 (2002), cert. denied, 537 U.S. 1217, 123 S. Ct. 1318, 154 L. Ed. 2d 1070 (2003). If a witness’ state of mind is not a relevant factual issue in the case, the state of mind exception does not apply. State v. Soto, 59 Conn. App. 500, 506, 757 A.2d 1156, cert. denied, 254 Conn. 950, 762 A.2d 906 (2000).

In 1993, at the time of the charged conduct, § 53-21 proscribed any person from doing “any act likely to impair the health or morals of any [child under the age of sixteen years] . . . .” General Statutes (Rev. to 1993) § 53-21. Section 53-21 was subsequently revised in 1995 to include an explicit proscription against having “contact with the intimate parts ... of a child under the age of sixteen years or [subjecting] a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . .” General Statutes § 53-21 (a). Notwithstanding the absence from the 1993 version of the statute of any mention of sexually explicit conduct, our case law at that time was abundantly clear that the touching of the private or intimate parts of a person younger than sixteen years of age constituted, per se, conduct “likely to impair the morals” of such child. See, e.g., State v. Perruccio, 192 Conn. 154, 159-61, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); State v. Pickering, 180 Conn. 54, 63-65, 428 A.2d 322 (1980). Thus, in the present case, all that was required to support the defendant’s conviction pursuant to § 53-21 was evidence that such touching of the victim’s intimate parts occurred and that it occurred in an indecent manner.

The state did not need to demonstrate actual impairment of the victim’s morals by introducing evidence of the victim’s subsequent actions or mental state. The state also did not need to introduce such evidence to support a finding that a defendant’s touching of the intimate parts of a person younger than sixteen years of age was conduct proscribed by the statute as likely to impair the morals of the victim. Consequently, the statements contained in the letter, reflecting the victim’s mental state at the time of trial, when it was written, were not relevant to prove whether the defendant’s actions were likely to impair her morals. Accordingly, we conclude that the court abused its discretion in admitting the letter into evidence to prove an actual impairment of the victim’s health or morals.

B

The state argues that even if the letter was admitted improperly as relevant to the issue of impairment of the victim’s morals, it was nevertheless admissible on alternate grounds. We recognize that a reviewing court may rely on alternate grounds for sustaining a judgment of the trial court. Friedman v. Meriden Orthopaedic Group, P.C., 77 Conn. App. 307, 317, 823 A.2d 364, cert. granted on other grounds, 265 Conn. 905, 831 A.2d 249 (2003). “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” (Internal quotation marks omitted.) Id. We therefore consider whether the letter would have been admissible under either of the two alternate grounds proposed by the state.

The first of the alternate grounds proposed by the state is that the letter was admissible under the constancy of accusation doctrine pursuant to State v. Troupe, supra, 237 Conn. 298. The state argues that the constancy of accusation doctrine was applicable because the letter contained references to the victim’s having reported the defendant’s actions to her parents. In support of its argument, the state cites our holding in State v. Bispham, 48 Conn. App. 135, 146-47, 708 A.2d 604 (1998), appeal dismissed, 249 Conn. 264, 731 A.2d 294 (1999), that a written statement, as well as an oral statement, made by a sexual assault victim is admissible as constancy evidence.

We agree that the dispositive factor in deciding whether a victim’s statement properly is admissible as constancy of accusation evidence is not whether such statement is written or oral. As we stated in Bispham, if a sexual assault victim’s statement otherwise satisfies the criteria for admission as constancy of accusation evidence, the fact that the statement is written rather than oral will not preclude its admissibility.

Constancy evidence, whether written or oral, however, must be limited strictly to “the fact and timing of the victim’s complaint; any [evidence] regarding the details surrounding the assault must be strictly limited to those necessary to associate the victim’s complaint with the pending charge, including, for example, the time and place of the attack or the identity of the alleged perpetrator.” State v. Troupe, supra, 237 Conn. 304. It is not appropriate for a party to use constancy evidence to place before the jury the details of an alleged sexual assault. Id., 304-305. “Additionally, to admit the constancy of accusation testimony, the trial court must nevertheless, balance the probative value of the evidence against any prejudice to the defendant.” (Internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 36, 770 A.2d 908 (2001).

The parties argued the admissibility of the letter pursuant to the constancy of accusation doctrine at some length. Although the court appears to have agreed that at least some portion of the letter might be admissible as constancy evidence, it cautioned the state that a great deal of the material would probably have to be redacted to comply with Troupe.

In the present case, the wholesale admission of the contents of the letter was a clear violation of the limiting strictures that our Supreme Court took great pains to impose on the scope of admissible constancy of accusation evidence. The letter contained references to the defendant’s touching the victim’s genitals and performing oral sex on the victim. Despite the court’s explicitly having conditioned the letter’s admission into evidence on significant redaction, the descriptions of the sexual assaults contained in the letter remained. See footnote 4.

The relevancy of the statements contained in the letter also was diminished significantly by the fact that the statements were made only after charges had been brought against the defendant. “The rationale [behind the constancy of accusation doctrine] stems from the ancient belief that a victim of a violent crime would naturally cry out immediately after an assault and that, by implication, if such a victim did cry out, her complaint was more likely true. . . . That belief led to the corresponding supposition that a jury would treat with skepticism one who did not cry out soon after she was attacked. ... So profound was the belief in that sociological phenomenon, and so entrenched was the distrust in a victim’s delayed complaint, that proof of ‘hue and cry’ became a formal prerequisite for the prosecution of any rape case. . . .

“With the advent of the hearsay rule in the early 1800s, an exception was carved out for those fresh complaints, partially as a means to dispel the jury’s inclination to distrust the victim if there were a delay in reporting. ... Its use thereby forestalled the inference that the victim’s silence was inconsistent with her present formal complaint of rape. ... In effect, the fresh complaint rule allowed a victim to testily that she had told others about an alleged sexual assault as anticipatory rebuttal against an attack on her credibility, either by the defendant or by the unspoken bias of jurors who, it was presumed, would tend to discredit a victim’s claims unless she offered testimony that she had complained soon after the assault.

“The fresh complaint rule, in turn, spawned our current constancy of accusation doctrine. Accordingly, those to whom a victim purportedly made a complaint are permitted to testify that such a complaint was, in fact, made to them. That testimony is permitted to corroborate the victim’s testimony that she made such a complaint.” (Citations omitted; internal quotation marks omitted.) State v. Samuels, 75 Conn. App. 671, 674-75, 817 A.2d 719, cert. granted, 263 Conn. 923, 823 A.2d 1216 (2003).

We recognize that contemporary empirical studies have discredited the fundamental assumption underlying the historical development of the fresh complaint and constancy doctrines, that it is natural for the victim of a sexual assault to complain promptly following an assault. See State v. Troupe, supra, 237 Conn. 300-306. Accordingly, any delay between the time of the assault and the time of the victim’s disclosure of it pertains to the weight of the constancy evidence rather than to its admissibility. Id., 298. When, as in the present case, however, the “constancy evidence” is comprised of statements made after a complaint has been made to the police and the trial has commenced, we cannot conclude that the evidence has any value in supporting the victim’s credibility or dispelling the suspicion of fabrication. See State v. Samuels, supra, 75 Conn. App. 685.

C

The state also argues, albeit rather cursorily, that the letter was admissible as nonhearsay because it demonstrated that the victim had experienced the type of mental or emotional state typical of a sexual assault victim. The state claims that the letter would be admissible as nonhearsay because it was not being offered for the truth of the matters asserted therein, but rather to illustrate circumstantially the victim’s mental state. Thus, the state argues that the letter was admissible because it was relevant to the ultimate issue of whether a sexual assault had occurred.

The state relies on State v. Brown, 59 Conn. App. 243, 247-48, 756 A.2d 860 (2000), appeal dismissed, 256 Conn. 740, 775 A.2d 980 (2001), in support of its argument. In Brown, we held that the testimony of the victim’s aunt regarding her observations of the victim’s conduct following a sexual assault was admissible as nonhearsay. Id. The state’s reliance on Brown, however, is misplaced. Our holding in Brown was predicated on the fact that the witness was testifying as to her observations of the victim’s nonassertive conduct. Id., 247 (conduct not intended as assertion not hearsay; thus, nonassertive conduct such as running to hide, or shaking and trembling, not hearsay). In the present case, however, we are not confronted with testimony concerning the victim’s observed nonassertive conduct, but rather with statements made by the victim herself. Those statements not only were assertive, but they were intended by the victim to be persuasive and, specifically, to provide a linkage between her claimed instances of “acting out” and the alleged sexual assault. In fact, the victim admitted that one of her reasons for writing the letter was to get her parents on her side. See footnote 4.

We also note that in Brown, unlike in the present case, testimony about the victim’s conduct, which was deemed admissible as proof that the sexual intercourse between the victim and the defendant was not consensual, was exhibited shortly after the alleged assault. See State v. Brown, supra, 59 Conn. App. 247 n.3. Here, the victim’s letter was written nearly seven years after the alleged assaults occurred and for the express purpose of marshaling her parents’ support during the ongoing criminal proceeding.

II

Having concluded that the victim’s letter was inadmissible under any of the theories advanced by the state, we must now determine whether the court’s admission of that letter into evidence was so prejudicial as to warrant reversal of the defendant’s conviction. See State v. Dehaney, supra, 261 Conn. 363-64.

“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) Id., 364. “[EJvidentiary 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.” (Emphasis added; internal quotation marks omitted.) Gombos v. Aranoff, 53 Conn. App. 347, 357, 730 A.2d 98 (1999).

Our Supreme Court has recognized that it has not been fully consistent in its articulation of the standard for establishing harm. State v. Dehaney, supra, 261 Conn. 364. “One line of cases states that the defendant must establish that it is more probable than not that the erroneous action of the court affected the result. ... A second line of cases indicates that the defendant must show that the prejudice resulting from the impropriety was so substantial as to undermine confidence in the fairness of the verdict.” (Citations omitted; internal quotation marks omitted.) State v. Young, 258 Conn. 79, 95, 779 A.2d 112 (2001).

Although our Supreme Court has not yet resolved that inconsistency, we conclude that the defendant has met his burden under either standard. We conclude that improper admission of the statements contained in the victim’s letter likely affected the outcome of the trial and was so prejudicial as to undermine confidence in the fairness of the verdict. The statements contained in the letter were not cumulative of other evidence properly before the jury. Cf. In re Latifa K., 67 Conn. App. 742, 752, 789 A.2d 1024 (2002) (evidence not harmful because merely cumulative). Indeed, the victim’s mother and stepfather both testified that they had supported the victim and the choices that she was making regarding the prosecution of the case. That testimony directly contradicted the accusations contained in the letter that the victim’s stepfather was attempting to protect the defendant and that her mother’s support was equivocal.

Although both the state and the defendant called several witnesses to testify, the case before the jury essentially involved a credibility contest between the victim and the defendant. The testimony of those witnesses who testified on the victim’s behalf was not offered for substantive purposes, but rather was admitted solely as constancy of accusation testimony. Even if we were to credit the letter’s assertions regarding the victim’s “acting out” behavior and were to conclude further that such behavior was relevant to establishing that the author had been the victim of a sexual assault, she did not offer any testimony to substantiate that she actually exhibited such “acting out” behavior. Indeed, the testimony of the victim’s mother established only that she become relatively less sociable toward the defendant during the relevant time period. Such behavior is quite different from the pattern of antisocial aggressiveness suggested by the letter.

Simply put, the improperly admitted statements in the victim’s letter did not bear at all on any relevant issue before the trier of fact. Indeed, their sole effect could be only to arouse the emotions and sympathies of the jury in favor of the victim, and to bring contempt and opprobrium on the defendant. The letter contained numerous attacks on the character of the defendant. The letter’s gratuitous name-calling directed at the defendant surely had the potential for impermissibly coloring the jury’s assessment and opinion. The letter also depicted the victim as being a victim, not only concerning the alleged sexual assaults, but also by virtue of betrayal resulting from her parents’ reaction to the allegations. It would be surprising if the letter, expressing the victim’s emotional pain and anger, and accusing her parents of not supporting her during the ordeal of the trial, did not have the natural effect of arousing pity and sympathy for the victim. In light of the grossly personal nature of the attacks on the defendant and the emotionally charged accusations raised against the victim’s parents, and the inevitable prejudicial impact on the jury of that evidence, we can have no confidence in the fairness of the resulting verdict.

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

In this opinion the other judges concurred.

       Prior to that time, she had not mentioned the abuse to anyone other than her boyfriend, to whom she had confided during her senior year of high school.

       The phrase “robbed me of my childhood” was redacted before the letter was published to the jury.,

       The following colloquy took place:
      “[The Prosecutor]: I’m going to show you what has been marked state’s exhibits la and 1.1 believe you identified these before, and what are those?
      “[The Witness]: The letter that I wrote to my parents.
      “[The Prosecutor]: Okay. Do you remember when it was that you wrote that letter?
      “[The Witness]: It was the end of summer.
      “[The Prosecutor]: Which summer was that? This summer or last summer or—
      “[The Witness]: Last summer.
      “[The Prosecutor]: The year 2000?
      “[The Witness]: Two thousand.
      “[The Prosecutor]: Okay. Did anybody force you to write that letter?
      “[The Witness]: No, it was suggested to me.
      “[The Prosecutor]: By whom?

        “[The Witness]: By the counselor that I was seeing.
      “[The Prosecutor]: Okay. And it makes reference, does it not, in that particular letter [to] certain things that occurred to you after the defendant had contact with you, things that occurred your sophomore year and things of that nature; is that a fair statement?
      “[The Witness]: I don’t understand the question.
      “[The Prosecutor]: Okay. I’ll withdraw it. And what was the purpose— let me backtrack. What was the purpose of writing that letter?
      “[The Witness]: To let my parents know what was really going on because I had never given them details.
      “[The Prosecutor]: Okay. And did you provide details to your parents about the events that occurred between you and your grandfather?
      “[The Witness]: In the letter?
      “[The Prosecutor]: Yes.
      “[The Witness]: Yes.
      “[The Prosecutor]: All right. And what was the general nature of that information that you gave to your mom and your dad?
      “[The Witness]: It was just to let them know pretty much how I was feeling at that time. Just, you know, to get them more on my side.
      “[The Prosecutor]: Okay. Let me backtrack a little bit. You said that you provided your parents — you provided in the letter more details to your parents as to what occurred between you and your — the defendant; is that a fair statement?
      “[The Witness]: Yes, yes.
      “[The Prosecutor]: In general terms, what was that information that you provided to them as to what took place between the defendant and yourself?
      “[The Witness]: When he had put his pants — his hands in my pants and touched my vagina, and when he did the oral sex.
      “[The Prosecutor]: In keeping with what you mentioned to us before when the jury was out here?
      “[The Witness]: Right.
      “[The Prosecutor]: And did you indicate in that letter, if you remember, did you tell your parents when it had happened?
      “[The Witness]: I told — it says during the school year—
      “[The Prosecutor]: And you are referring back to the school year—
      “[The Witness]: The seventh grade.
      “[The Prosecutor]: Now, did you also provide details in that letter about how you were affected by what occurred between you and the defendant?
      “[The Witness]: Yes.
      “[The Prosecutor]: And do you explain to them what you went through while you were growing up until the point that you told somebody about this?
      “[The Witness]: Yes.
      “[The Prosecutor]: Okay. Now, did the police ask you to write that letter?
      “[The Witness]: No.
      “[The Prosecutor]: Did your counselor ask you to write that letter?

        “[The Witness]: She never pushed me to. She said it would probably be helpful.
      “[The Prosecutor]: And your purpose in drafting that letter was for what, for what purpose?
      “[The Witness]: To let my parents know how I was feeling.
      “[The Prosecutor]: And is there not a reference in that letter that you spoke to the prosecutor. Is there a reference in that letter?
      “[The Witness]: No.
      “[The Prosecutor]: If you had a chance to look at that — there is no reference in there. Is that what you are saying?
      “[The Witness]: Um-hmm. (Affirmative.)
      “[The Prosecutor]: Well, let me ask you this. At any point in time, did you ever come down to the state’s attorney’s office to speak to me?
      “[The Witness]: Yes.
      “[The Prosecutor]: And last summer, did you ever do that?
      “[The Witness]: Yes.
      “[Prosecutor]: Okay. And at that point, did I make a request of you to draft a letter — to draft that letter?
      “[The Witness]: No.
      “[The Prosecutor]: I have nothing further, Your Honor.”

       Although the state concedes that no actual impairment need be proven to establish risk of injury to a child, the state nevertheless argues that such proof of actual impairment proves, a fortiori, the likelihood of impairment For the reasons previously given, we reject that argument and conclude that such proof of actual impairment is completely irrelevant under the risk of injury statute.

       We note as well that the court also ultimately failed to require the state to redact the letter significantly, despite conditioning the letter’s admission on such redaction. The court stated: “Yes, well, a good amount [of the letter] would have to be redacted. . . . [T]he court is agreeing to allow [the letter] in on that exception. But, again, to be redacted, and I have a feeling that it’s not going to be easily done.” In the end, only one phrase, “robbed me of my childhood,” was removed from the text before the letter was published to the jury.

       The state called to testify, in addition to the victim’s mother and stepfather, a school psychologist and staff counselor from the university she attended, and a retired police detective. The testimony of each was limited to the fact that the victim had disclosed to them the alleged incidents of molestation. Additionally, the victim’s parents testified as to her demeanor toward the defendant during the relevant time period.


source: Caselaw Access Project

author: McLACHLAN, J.

license: Public Domain

text:
    EAST HAVEN BUILDERS SUPPLY, INC. v. DAVID S. FANTON ET AL.
    (AC 23212)
    Bishop, West and McLachlan, Js.
    Argued September 16, 2003
    officially released January 6, 2004

      Ralph C. Crozier, for the appellant-appellee (named defendant).

      David C. Grimes, with whom, on the brief, was Bruce L. Elstein, for the appellee-appellant (plaintiff).
   Opinion

McLACHLAN, J.

The defendant David S. Fanton appeals and the plaintiff, East Haven Builders Supply, Inc., cross appeals, from the judgment of the trial court. David Fanton claims that the court lacked authority to vacate the judgment against him. On cross appeal, the plaintiff claims that, pursuant to Practice Book § 13-23, the defendant Maureen Fanton’s failure to deny specifically the matters in its request for admissions required the court to treat her responses as binding admissions. We affirm in part and reverse in part the judgment of the trial court.

These appeals originate in an ordinary commercial transaction between supplier and purchaser. On August 18, 1999, the defendants entered into a credit application agreement with the plaintiff, enabling them to purchase goods and materials on an open account. Following David Fanton’s subsequent purchases under the account, the balance due to the plaintiff as of January 1, 2000, was $38,705.40.

On June 8, 2000, after the defendants’ refusal to pay the balance, the plaintiff instituted an action predicated on an express promise to pay a definite sum. On January 12, 2001, the court granted the plaintiffs motion for default. The defendants filed their answer, special defense and counterclaim on January 17, 2001. The plaintiff served on the defendants a request for admissions dated January 19, 2001. On January 22, 2001, pursuant to General Statutes § 52-192a and Practice Book § 17-14, the plaintiff filed an offer of judgment to settle the matter with “the defendant, David Fanton and Maureen Fanton,” for $45,000.

On January 25, 2001, a bevy of documents critical to the resolution of these appeals were filed. First, the defendants filed their responses to the plaintiffs request for admissions. For roughly half of the eleven specified queries, the response was “admit as to David Fanton only.” David Fanton signed that response. The accompanying notice of filing stated in relevant part that “ [t]he defendants . . . have on this date filed their responses” and was signed by their attorney on behalf of “[t]he defendants.” Second, an acceptance of the plaintiffs offer of judgment was filed. That acceptance stated in relevant part that “the defendant, David Fan-ton, through his attorney, accepts the plaintiffs Offer of Judgment in the amount of Forty-Five Thousand Dollars ($45,000.00), settling any and all claims underlying this action and to stipulate to judgment in said amount . . . .” His attorney signed that document on behalf of “[t]he defendants.” Finally, Maureen Fanton filed a disclosure of special defenses.

On March 2, 2001, the court, Holzberg, J., ordered “[¡judgment to enter in accordance with the foregoing.” That order was handwritten on the face of the defendants’ acceptance, which was marked ‘filed’ on January 25, 2001. The plaintiff filed successive certificates of closed pleadings on May 9, July 10 and September 6, 2001. On October 25, 2001, the court, Pittman, J., granted Maureen Fanton’s motion to both set aside the default of January 12, 2001, and to strike the case from the hearing in damages list. The matter was dismissed by the court on May 3, 2002; on May 30, 2002, the court, Holzberg, J., vacated that dismissal order, thereby restoring the case to the docket. On June 12, 2002, a trial was conducted before the court, Scheinblum, J., which vacated the March 2, 2001 order and ruled in the plaintiffs favor as to David Fanton only, awarding $66,755.13 plus costs. These appeals ensued.

I

On appeal, David Fanton claims that the court lacked authority to vacate the order of judgment against him. We agree. As this issue presents a question of law, our review is plenary. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 77 Conn. App. 690, 720, 825 A.2d 153, cert. granted on other grounds, 266 Conn. 906, 907, 832 A.2d 71, 72 (2003).

The record reveals that on January 25,2001, an acceptance of the plaintiffs offer of judgment was filed. The acceptance stated in relevant part that “the defendant, David Fanton, through his attorney, accepts the plaintiffs Offer of Judgment . . . .” On March 2, 2001, the court, Holzberg, J., ordered “[j]udgment to enter in accordance with the foregoing.” As of that date, therefore, the plaintiff had a final judgment against David Fanton. At no time between that date and the trial of June 12, 2002, did either party contest the validity of that judgment.

When the matter returned to court on June 12, 2002, the court addressed the issue of whether the proceeding pertained to both Fantons or to Maureen Fanton only. Noting that judgment had been ordered pursuant to the offer of judgment, the court inquired:

“The Court: So, was Judge Holzberg’s order of judgment vacated, ever?
“[The Defendant’s Counsel]: No, Your Honor.
“[The Plaintiff’s Counsel]: No.
“The Court: So, there’s an outstanding judgment in this file, and you’re asking me now to — to make another judgment.
“[The Defendant’s Counsel]: Correct, Your Honor.
“[The Plaintiffs Counsel]: We have a judgment against David Fanton. We don’t have a judgment against Maureen Fanton. . . .
“The Court: Well, you see, these are all things, I mean, this isn’t part of this trial. And this is something that I think if I were counsel, I would’ve gone to Judge Holz-berg and I would’ve asked for a clarification, an articulation, I would’ve made a motion to reargue, I would’ve heard it on the short calendar. I don’t think this is the proper forum now to come in and tell me that the judgment entered by Judge Holzberg in March is invalid. I just don’t think this is the proper forum to do that in.
“[The Defendant’s Counsel]: Your Honor, that was March of 2001. It’s beyond the . . . four month period of time to reopen.
“[The Plaintiffs Counsel]: I — I’m not looking to reopen. I’ll accept my judgment against David Fanton.
“The Court: All right. Then—
“[The Plaintiff’s Counsel]: But — that point—
“The Court: But now you want a judgment against Maureen.
“[The Plaintiffs Counsel]: Absolutely.
“The Court: And you’re trying to tell me now that when he offered the acceptance in the name of David only, you agree you’re bound by that, but now you’re telling me you’re still entitled to get a judgment against Maureen.
“[The Plaintiffs Counsel]: Absolutely, Your Honor, because they — what they did was, they agreed for one but not the other. I’ll take that; I accepted it. But I didn’t accept it as — as—as to closing Maureen’s .... I don’t know that you can’t willy-nilly change the terms of an acceptance. So, either I have a judgment only against David, or I have a judgment against neither.
“The Court: Well, you have a judgment. You have a judgment ordered by Judge Holzberg, who is the presiding judge, civil, March, 2001, and that judgment was entered pursuant to an offer of judgment. The offer was made as to both defendants. The defendants, represented by the same counsel, accepted the offer of judgment, but only as to David. You come here now saying they had no right to vary your offer. I say to you, once Judge Holzberg entered the order of judgment as to David, you’re barred, you’re legally estopped.”

From that colloquy, two understandings emerge: First, both parties treated the court’s order of March 2, 2001, as binding as to David Fanton and neither thereafter contested its validity; second, the court, by its own language, had removed that matter from consideration in the proceeding.

Acknowledging that the parties had “continued on in prosecuting the case all along” despite the final judgment, the court decided to proceed with the trial. After conducting what it termed the “evidentiary portion” of the trial, which focused solely on the validity of Maureen Fanton’s signature on the credit application, the court posed the following proposition to counsel:

“The Court: All right. This is — this is the question, gentlemen: Do you want me to get to the meat of it or do you want me to decide this case on the basis of whether or not the judgment entered by Judge Holzberg in March, 2001, is dispositive?

“[The Defendant’s Counsel]: Your Honor, on behalf of the defense, we believe the meat of it will get rid of it, and the legal argument will only give rise to appeals which will cost money.

“The Court: What do you say?
“[The Plaintiffs Counsel]: I would like to get to the meat of it, Your Honor.
“The Court: Okay. Then I’m in agreement, and I’m ready to make my decision from the bench. The court finds, first of all, that Maureen did not sign the credit application. The court finds that despite his protestations to the contrary, that David forged Maureen’s signature on the credit application. The court finds that the plaintiff is entitled to a judgment against the defendant David Fanton only in the amount of $38,705.40 principal, interest through June 12, 2002, totaling $17,049.73. The court finds that a reasonable attorney’s fee is $11,000 plus costs subject to the filing of a bill of costs. Therefore, judgment shall enter for the plaintiff as to the defendant David Fanton in that amount. . . . That is the judgment of the court.
“[The Defendant’s Counsel]: If Your Honor pleases, the judgment has already been entered as to David on a stipulated judgment over a year ago from ....
“The Court: — because I have, by agreement of both counsel, effectively decided this on its merits. I am not holding Judge Holzberg’s judgment as being binding. And that is the order of this court.”

With that, the court vacated the order of March 2, 2001. We conclude that the court lacked authority to do so.

General Statutes § 52-212a provides in relevant part:

“[A] civil judgment or decree rendered in the Superior Court may not be opened or set aside unless a motion to open or set aside is filed within four months following the date on which it was rendered or passed. . . .” In Kim v. Magnotta, 249 Conn. 94, 104, 733 A.2d 809 (1999), our Supreme Court clarified that “§ 52-212a operates as a constraint, not on the trial court’s jurisdictional authority, but on its substantive authority to adjudicate the merits of the case before it.” Here, no motion to open and vacate the judgment was ever made by any party at any time.

In vacating the judgment of March 2, 2001, the court asserted that it had “by agreement of both counsel, effectively decided this on its merits.” Our review of the record leads us to conclude otherwise.

First, all parties at trial agreed that the judgment against David Fanton was final. As the plaintiffs counsel conceded: “I’m not looking to reopen. I’ll accept my judgment against David Fanton.” Second, prior to proceeding with the trial and inquiring whether the parties wanted to “get to the meat of it,” the court determined that “[David] accepted the offer of judgment .... You come here now saying they had no right to vary your offer. I say to you, once Judge Holzberg entered the order of judgment as to David, you’re barred, you’re legally estopped.”

Thus, the sole issue remaining when the trial resumed was the liability of Maureen Fanton. After hearing testimony from the plaintiff’s credit manager and both defendants as to whether Maureen Fanton had signed the credit application, the court proffered the following query to the parties: “[D]o you want me to get to the meat of it or do you want me to decide this case on the basis of whether or not the judgment entered Judge Holzberg, in March, 2001, is dispositive?” When read in the context of the entire proceeding of June 12, 2002, it becomes apparent that when the parties consented to “get to the meat of it,” they were consenting only to the court’s determination of Maureen Fanton’s liability. The moment the couit rendered its decision, the defendants’ counsel immediately objected on the ground that a final judgment already had been entered against David Fanton.

On the basis of our review of the record, we conclude that the parties never consented to the court’s opening and setting aside of the order of judgment of March 2, 2001, as to David Fanton. The court was therefore without authority to vacate that judgment. Accordingly, the judgment as to David Fanton is reversed and the matter is remanded with direction to reinstate the March 2, 2001 judgment in favor of the plaintiff against him.

II

On cross appeal, the plaintiff claims that, pursuant to Practice Book § 13-23, Maureen Fanton’s failure to deny specifically the matters in its request for admissions required the court to treat her responses as binding admissions. We disagree.

“It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings .... [They] will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” (Citation omitted; internal quotation marks omitted.) Baughman v. Collins, 56 Conn. App. 34, 35-36, 740 A.2d 491 (1999), cert. denied, 252 Conn. 923, 747 A.2d 517 (2000).

The request for admissions is an instrument of discovery. Requests for admissions are governed by Practice Book §§ 13-22 through 13-25. Section 13-23 (a) mandates in relevant part that “[e]ach matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22 (b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter .... The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. . . .” A party’s response to a request for admissions is binding as a judicial admission unless the judicial authority permits withdrawal or amendment. See Practice Book § 13-24; see also C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 2.3.3, p. 22. Similarly, a failure to respond timely to a request for admissions “means that the matters sought to be answered were conclusively admitted.” 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 124 (e), p. 121. Once a response has been filed, the party who has requested the admission may file a motion to determine the sufficiency of the answer or objection. See Practice Book § 13-23 (b)'.

On January 19,2001, the plaintiff served on the defendants a request for admissions. The defendants responded on January 25, 2001. For roughly half of the eleven specified queries, the response was “admit as to David Fanton only.” The accompanying notice of filing stated in relevant part that “[t]he defendants . . . have on this date filed their responses” and was signed by their attorney on behalf of “[t]he defendants.”

The plaintiff contends that as Maureen Fanton never explicitly replied to the request for admissions, her failure to do so must be deemed an admission. We recognize that Maureen Fanton’s answer did not “specifically deny the matter”; Practice Book § 13-23 (a); and, thus, failed to comply with the precise dictates of Practice Book § 13-23. The particularities of the litigation, however, forestall the fatality of that matter due to mere procedural defect.

The response “admit as to David Fanton only” contained an implicit denial on the part of Maureen Fanton. The accompanying notice of filing stated in relevant part that “[t]he defendants . . . have on this date filed their responses” and was signed by their attorney on behalf of “[t]he defendants.” (Emphasis added.) Moreover, Maureen Fanton that very day filed a disclosure of her special defenses, which directly refuted the statements at issue in the plaintiffs request for admissions. That filing provided notice to the plaintiff that Maureen Fanton was contesting her liability as to those specified issues.

In this case, the response to the request for admissions filed by the defendants was ambiguous, while Maureen Fanton’s filing of special defenses at the same time indicated a denial on her part. It was therefore incumbent on the plaintiff, as the party who had requested the admissions, to “move to determine the sufficiency of the answer or objection. . . .” Practice Book § 13-23 (b). The plaintiff made no such motion in this case, nor did it contact the defendants to discuss the apparent ambiguity. In light of the facts of this particular case, we conclude that Maureen Fanton sufficiently complied with the dictates of our rules of practice. The court did not abuse its discretion, therefore, by not treating Maureen Fanton’s “response” as an. admission.

The judgment is affirmed as to Maureen Fanton and reversed as to David Fanton and the case is remanded with direction to reinstate the judgment of March 2, 2001, in favor of the plaintiff as against David Fanton.

In this opinion the other judges concurred.

       As the court commented: “You know, because maybe the lawyers didn’t do what I think they should have done doesn’t prevent me as a judge from giving you a legal opinion as to what — where I think I’m stuck. Okay?” By its earlier comments, however, the court made clear that it was not “stuck” as to the liability of both defendants, but rather as to Maureen Fanton only.

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

       In Gardner v. Pilato, 44 Conn. App. 724, 692 A.2d 843, cert. denied, 241 Conn. 922, 696 A.2d 1265 (1997), we were presented with the question of whether “a trial court, on its own motion, has the power to open a judgment of dismissal more than four months after the judgment was rendered when it is clear that the judgment was originally rendered because of an administrative mistake and a timely motion to open had previously been made and denied.” Id., 725. Gardner is distinguishable from the present case because it authorizes a court to open a judgment, after it has denied a timely filed motion, to correct an administrative mistake that visits injustice on a party. Here, no party ever filed a motion to open the judgment, nor were they harmed by an administrative mistake.

       The plaintiff also argues that under Blakeslee Arpaia Chapman, Inc. v. El Constructors, Inc., 239 Conn. 708, 687 A.2d 506 (1997), both defendants were required to accept the offer of judgment. It is uncontested that David Fanton did so. Following that acceptance, the plaintiff filed no motion and raised no argument that this acceptance was invalid; rather, the plaintiff proceeded with its action against Maureen Fanton, culminating with the trial of June 12, 2002. At trial, the plaintiff insisted that it had accepted its judgment against David Fanton. When the plaintiff then accepted the court’s offer to determine the liability of Maureen Fanton, it waived the claim that she was bound by the offer of judgment. See MacKay v. Aetna Life Ins. Co., 118 Conn. 538, 547-48, 173 A. 783 (1934); General Accident Ins. Co. of America v. Powers, Bolles, Houlihan & Hartline, Inc., 50 Conn. App. 701, 711-12, 719 A.2d 77 (1998), aff'd, 251 Conn. 56, 738 A.2d 168 (1999).

       We note that in Blakeslee Arpaia Chapman, Inc. v. EI Constructors, Inc., 239 Conn. 708, 743 n.38, 687 A.2d 506 (1997), our Supreme Court stated in dictum that “if the offer of judgment is satisfied, by A and B collectively or by A or B unilaterally, the case would be terminated as against both defendants.” Nevertheless, such termination would not foreclose the parties from agreeing to open the judgment, however obtained, pursuant to General Statutes § 52-212a.

       The special defenses were that she never signed the credit application agreement and that her name was crossed off as a guarantor.

       We note the governing principle of Practice Book § 1-8, which provides: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. RICHARD KOSLIK
    (AC 23570)
    Foti, Dranginis and West, Js.

      Argued October 27, 2003
    officially released January 6, 2004

      Joaquina Borges King, special public defender, for the appellant (defendant).

      Eliot D. Prescott, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Richard Koslik, appeals from the judgment of conviction, rendered after a jury trial, of representing himself falsely as or impersonating a registered home improvement contractor in violation of General Statutes § 20-427 (b) (3) and offering to make home improvements without having a certificate of registration in violation of General Statutes § 20-427 (b) (5). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction, (2) the trial court improperly omitted necessary instructions from its charge to the jury, thereby depriving him of his due process rights, and (3) the court failed to act, sua sponte, to strike certain testimony and to deliver a limiting instruction to the jury with regard to certain evidence. We affirm the judgment of the trial court.

The facts underlying the conviction, as the jury reasonably could have found them, are as follows. The defendant was a registered home improvement contractor prior to August 26, 1998. On August 26, 1998, the department of consumer protection (department) suspended the defendant’s registration. In 1998, Christine Bums contacted the defendant to discuss his remodeling the kitchen and the bathroom in her single-family home. Bums did not hire the defendant to undertake the job until February, 2001. In the period leading to his being hired for the job, the defendant spoke with Bums and, less frequently, with her husband, Eric Bums, about the project and its cost. During those conversations, the defendant falsely represented himself as or impersonated a registered home improvement contractor and offered to make home improvements to the Bums’ home without having a current certificate of registration enabling him lawfully to do so.

Upon signing a written agreement with the defendant on February 8,2001, Christine Bums paid the defendant an initial deposit of $8500. On or about March 26, 2001, the defendant, along with two other individuals, performed demolition work in the Bums’ kitchen. The defendant and others thereafter performed more work at the home. By April 1, 2001, Christine Bums had paid the defendant in excess of $14,000. The defendant worked intermittently on the project during April and May, 2001, and Christine Bums repeatedly expressed to the defendant her displeasure with the pace of his performance. During May, 2001, the defendant stopped working on the project altogether.

Christine Bums spoke with the defendant via telephone. The defendant informed her that he needed more money and that she had lost her “time slot” in which he could complete her project. The defendant installed the cabinets in the kitchen, but left other aspects of the project, such as the installation of flooring and lighting in the kitchen, unfinished. The defendant also failed to perform any renovation in the bathroom that he had agreed to perform. Christine Bums obtained estimates from other contractors regarding the cost of completing the renovation. Those estimates ranged from between $13,000 and $15,000.

Frustrated by her failed attempts to get the defendant to return to her home to complete the remodeling project, Christine Bums filed a complaint with the department, and a department investigator looked into her complaint. The defendant’s arrest followed. After the jury returned its guilty verdict, the court sentenced the defendant to a total effective term of one year imprisonment, suspended after 180 days, with three years of probation. This appeal followed.

I

The defendant first claims that the evidence did not support his conviction of either charge. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. ... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Holmes, 75 Conn. App. 721, 739-40, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).

We shall first set forth some of the evidence that is relevant to the defendant’s conviction of the charges. We will then define the elements that are integral to each of the crimes of which the defendant stands convicted and determine if the jury reasonably could have found that the state met its burden of proving each element beyond a reasonable doubt.

A

The Evidence

Christine Bums testified that she contacted the defendant in 1998 after she saw signs with his advertisement on them in her neighborhood. She told the defendant that she wanted to “redo” the kitchen and the bathroom in her single-family home. She testified that after she called the defendant and inquired about the remodeling work that she wanted him to perform, she and the defendant kept in contact. Specifically, she testified that in 2000 or in early 2001, the defendant visited her at her home to discuss the remodeling that she wanted him to do. She testified that the defendant showed her “a book of all the work that he had [done and] of all the work that he could do, a display of what he did showing the work that he was doing.” She testified that there was an envelope in the back of this book in which “was a registration of some kind.” She further testified as to the conversation that she had with the defendant after she viewed that document: “I said, ‘Are you legitimate? Are you sure?’ [The defendant] says, ‘Are you crazy? Do you think I want to go to jail?’ He goes, ‘Sure.’ He goes, ‘If you don’t believe me, I’ll give you some references.’ ” She testified that the defendant “reassured” her and invited her to go to a home show to see examples of his handiwork on display.

The following exchange occurred between the prosecutor and Christine Bums:

“Q. Okay. Let me take a step back. So, when you referenced the card you were discussing in his book—
“A. In his book. In his display book.
“Q. Right.
“A. He had this one card with his license or registration in the book, in the back of the book.
“Q. Okay. So, did he direct you to that registration indicating that he was a registered home improvement contractor?
“A. Yes, because I asked him, ‘Are you legitimate?’ because I needed to know because you just can’t take anybody.
“Q. Right. And do you recall the registration number on the card that was in the back of the book that he showed you?
“A. I don’t remember, but he told me to call. He even said that I could check. He’d give me names of references and people that he did work for.”

Christine Bums also testified that on February 8, 2001, she and the defendant entered into a written contract entitled a “retail sales contract.” The contract, marked as a full exhibit at trial, listed various materials as well as detailed specifications for many of those materials, which Christine Bums agreed to purchase from the defendant. Those materials included custom cabinets, tile, skylights, flooring materials, a vanity, a toilet, a bathtub, shower walls, faucets and plumbing supplies, vinyl floorings, Sheetrock, a kitchen sink and various lighting fixtures. The contract contained the notation “no installation.”

Christine Bums testified about the circumstances under which the defendant drafted the contract: “[W]hat [the defendant] did was, as he was writing, he said to me, ‘I’m going to — this is the things that we’re going to do. Now, let’s write it together. I’m going to write down the things that I’m going to do in your home. ’ So, we sat there together, and he said he was going to do it. This thing on [the contract] where it says no installation, if that was there, he did not present that to me. He must have did that after upon my signing because this — how could he say no installation when he sat here with me and we went over the things that he was going to do because I had to tell him what I wanted done. Who was going to do it?”

The prosecutor asked Christine Bums if the defendant had discussed with her the need to “arrange for installation” of the items listed on the contract. She replied: “No, [the defendant] didn’t say that. He said that these are the things that he was going to do himself.” Christine Bums also testified that she observed the defendant, along with other individuals that she had neither hired nor paid directly, perform installation work at her home. Specifically, she recalled observing the defendant installing ceiling lights and cabinets in her kitchen.

Eric Bums testified that he, too, conversed with the defendant before his wife had hired the defendant. Eric Burns unambiguously testified that the defendant represented that he himself was going to do all of the installation at the Bums’ home. Eric Bums also testified that he observed the defendant perform initial demolition work, complete “the majority of the installation on the cabinets” and perform the wiring work for some of the light fixtures. Eric Bums further recalled that he observed other individuals, whom he had neither hired nor paid directly, work with the defendant on the project.

Finally, the defendant testified that in August, 1998, the department suspended his registration as a home improvement contractor. He also testified that when he first met Christine Bums in 1998, when he was still a registered home improvement contractor, he gave her his business card, which was inscribed with his home improvement registration number. The defendant further recalled subsequently showing Christine Bums his “display book” at some point in time, and testified that this book contained photographs and information concerning his “custom work.” The defendant testified that Christine Bums did not ask him if he was a registered home improvement contractor and that he did not “recall for a fact” if he removed his home improvement contractor registration certificate from his display book immediately after the department suspended his registration in August, 1998. The defendant testified that “maybe” he carried his home improvement registration certificate in that book in 1998, but testified that as of the time of trial, he no longer displayed that document in his display book.

B

Violation of § 20-427 (b) (3)

To obtain a conviction under § 20-427 (b) (3), the state bore the burden of proving beyond a reasonable doubt the following elements: (1) that the defendant represented himself as or impersonated a registered home improvement contractor and (2) that such representation or impersonation was false.

The defendant claims that the evidence was insufficient to sustain the conviction because there was no evidence that he falsely “represented or stated to [Christine Bums] that he was a registered home improvement contractor.” The defendant cites the written contract, which contains the notation “no installation,” as evidence that he did not represent himself as a home improvement contractor, but merely a salesman of the materials listed on the contract. The defendant testified at trial that he neither offered to perform nor performed any installation work at the Bums’ home.

The jury heard the Burnses testify concerning their conversations with the defendant and that the substance of those conversations pertained to his offer to supply and to install the materials they wanted to purchase for their home remodeling projects. In the context of those representations by the defendant, the jury also heard Christine Bums recount a conversation that she had with him just before she agreed to hire him. According to Christine Bums, the defendant showed her his “display book,” which, the jury reasonably could have found, contained his suspended home improvement contractor registration document. Christine Bums testified that she examined the book and specifically asked the defendant if he was “legitimate.” To that inquiry, the defendant responded that he was legitimate and directed her to look into the matter or to check his “references.”

The jury is entitled to draw reasonable inferences from the evidence before it and, in performing its function, the jury brings to bear its common sense and experience of the affairs of life. State v. Morgan, 70 Conn. App. 255, 283, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). Given the context of the conversation and the defendant’s actions in presenting Christine Bums with a book that contained a registration document that no longer was current, and in affirmatively representing his “legitimacy” in terms of the work that he offered to perform for her, we conclude that the jury reasonably could have found that the defendant falsely represented or impersonated a registered home improvement contractor.

Furthermore, the jury reasonably could have found that the evidence concerning the defendant’s work on the project after he signed the contract with Christine Bruns supported its finding that he falsely had represented himself as or impersonated a registered home improvement contractor. Several witnesses testified that they observed the defendant performing installation work at the home and not merely delivering materials to the job site.

The defendant argues that there was no evidence that he “represented or stated . . . that he was a registered home improvement contractor.” The defendant also posits that “[i]f Mrs. Bums viewed the defendant’s registration, anytime after August, 1998, she would have seen that the registration had expired, as this information is clearly identified on a registration certificate or she would have learned that it was suspended, if she checked with the state.” Those arguments are not persuasive. First, § 20-427 (b) (3) does not require the state to prove that the defendant actually stated that he was a registered home improvement contractor. The evidence was sufficient to support the conviction because the jury could have found beyond a reasonable doubt that the defendant falsely represented that he was registered or that he impersonated a registered home improvement contractor. Second, the defendant’s claim that Christine Bums could have learned that the registration document that he presented to her was not valid is irrelevant to our analysis. Such an occurrence would have no bearing on the criminal act that the defendant already had committed.

C

Violation of § 20-427 (b) (5)

To obtain a conviction under § 20-427 (b) (5), the state bore the burden of proving beyond a reasonable doubt the following elements: (1) that the defendant offered to make any home improvement and (2) that, at such time, the defendant did not have a current certificate of registration. The evidence before the jury and the reasonable inferences that the jury could have drawn from such evidence leads us to conclude that the state proved those elements beyond a reasonable doubt.

The defendant argues that the state failed to prove that he offered to perform any home improvements. In support of his claim, the defendant correctly points out that the written agreement between the parties, which was entitled “RETAIL SALES CONTRACT,” described the materials that the defendant agreed to deliver, specified a “delivery” date and contained the notation “no installation.” The defendant implicitly argues that this written contract, which contained no mention of labor, costs of labor or the date on which installation would begin or be completed, precluded the jury from finding that he had offered to perform any home improvement work. The defendant testified that he was a mere supplier of materials and that he neither offered to install such materials nor installed such materials.

On the basis of the cumulative effect of the evidence, the jury reasonably could have found beyond a reasonable doubt that the defendant had offered to make home improvements. The jury could have inferred, from the evidence of the conversations between the defendant and Christine Bums prior to the time at which she hired him, that the defendant, by expressing his readiness and willingness to perform the installation work if she agreed to hire him, offered to perform the installation work that she required.

The defendant’s heavy reliance on his written sales contract with Christine Bums is misplaced. The defendant makes much of the notation “no installation” on the contract. This action did not sound in breach of contract. In this criminal prosecution, the contract merely was some evidence relied on by the defendant in support of his assertions that he had not offered to make home improvements. The jury was bound to review the contract in light of all of the other evidence and testimony. Consequently, the jury reasonably could have rejected the defendant’s testimony and the notation on the contract. It also reasonably could have found, as Christine Bums testified, that the notation “no installation” on the contract appeared after she signed the contract. In the alternative, the jury reasonably could have found, as questioning dining the defendant’s cross-examination suggested, that such a notation was purely disingenuous. The issue of what the defendant offered to do was, essentially, a credibility contest between the Bums and the defendant. “It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses.” (Internal quotation marks omitted.) State v. Vassell, 79 Conn. App. 843, 846, 832 A.2d 99 (2003). Here, the jury clearly discredited the defendant’s evidence concerning what he had offered to do at the Bums’ home. On the basis of the evidence presented and the reasonable inferences that the jury could have drawn from such evidence, the jmy reasonably could have found that the state proved the necessary elements of the crime beyond a reasonable doubt.

II

The defendant next claims that the court improperly omitted necessary instructions from its charge, thereby depriving him of his due process rights. We disagree.

The record reflects that the court did not define “home improvement contract,” as provided in General Statutes § 20-419 (5), in its instructions with regard to either count. Further, the court inadvertently omitted a word from the statutory definition of “contractor” in its instructions with regard to each count. The defendant claims that those omissions “undermined [his] defense that the agreement was not subject to the Home Improvement Act [General Statutes § 20-418 et seq.]” and that the court did not provide the jury “with the legal authority and context for finding [him] not guilty as charged.”

The record reflects, and the defendant acknowledges, that he did not object at trial to those claimed errors in the court’s charge. Further, the record reflects that the defendant did not submit a written request that the court define either “home improvement contract” or “contractor” in its charge. Those failures render the defendant’s claims of instructional error unpreserved. See, e.g., State v. Ortiz, 79 Conn. App. 667, 672-73, 830 A.2d 802, cert. denied, 266 Conn. 933, 837 A.2d 806 (2003). Nevertheless, the defendant argues that those claimed instructional errors violated his due process rights, that they are reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and that they “amounted to ‘plain error.’ ”

We will treat the defendant’s claim for review under Evans as a request for review under the standard set forth in Evans and reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the claim under Golding because the record is adequate for review and the claim is of constitutional magnitude. See State v. L’Minggio, 71 Conn. App. 656, 671, 803 A.2d 408 (improper jury instruction as to essential element of crime charged may violate due process right to fair trial), cert. denied, 262 Conn. 902, 810 A.2d 270 (2002).

In reviewing an unpreserved claim of instructional error, we consider whether the substance of the charge as a whole misled the jury. The challenged instruction “is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Ingram, 73 Conn. App. 246, 251, 807 A.2d 1023 (2002).

We first consider whether the court’s omission of the word “improvement” in its definition of “contractor” possibly misled the jury. We have reviewed the court’s instruction with regal’d to the charge of offering to make home improvements without being a registered home improvement contractor in violation of § 20-427 (b) (5). As part of that instruction, the court read from § 20-427 (b) (5) and then defined the elements of the offense. In so doing, the court defined “home improvement” by reading the relevant statutory language of § 20-419 (4). Immediately thereafter, the court defined the term “contractor.” We also have reviewed the court’s instruction with regard to the charge of representing oneself falsely as or impersonating a registered home improvement contractor in violation of § 20-427 (b) (3). The court read the relevant statutory language and set forth the elements of the offense. As part of its instruction, the court stated: “Again, the law defines home improvement as I have already defined it for you. And also the law defines contractor; again, I have defined it previously

In defining “contractor,” the court used the term “home contracts;” see footnote 10; rather than correctly stating “home improvement contracts.” General Statutes § 20-419 (3) provides in relevant part: “ ‘Contractor’ does not include a person for whom the total cash price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months.” (Emphasis added.)

Having reviewed the court’s instructions as to each count in their entirety, rather than in artificial isolation, we conclude that the court’s misstatement was harmless. The issues before the jury concerned whether the defendant was a registered home improvement contractor, whether he had offered to make home improvements and whether he falsely had represented himself as or impersonated a registered home improvement contractor. The only type of contract in evidence and at issue during the trial was the defendant’s contract for home improvement with Christine Bums. “In reviewing a claim of error in a jury charge, [w]e must examine the issue or issues before the jury . . . and examine the charge in view of the factual posture of the case.” (Internal quotation marks omitted.) State v. Alston, 5 Conn. App. 571, 578, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). Under those circumstances, we conclude that it is not reasonably possible that the juiy was misled into believing that the court’s instruction pertained to anything other than a home improvement contract.

In regard to his second claim of instructional error, the defendant challenges the court’s charge in that it did not define the term “home improvement contract,” as defined in § 20-419 (5). We conclude that the court’s omission of that definition from its charge was inconsequential. The existence of a “home improvement contract” was relevant only to the issue of whether, under § 20-427 (b) (3), the defendant falsely represented himself as or impersonated a registered home improvement contractor. The statutory definition of “contractor” provides in relevant part: “ ‘Contractor’ does not include a person for whom the total cash price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months.” General Statutes § 20-419 (3).

The existence of a home improvement contract was not an essential element of either of the crimes with which the defendant stood charged. The defendant’s criminal acts were proven by evidence of what he offered to do and in what manner he represented himself. The evidence of a contract for home improvement between the defendant and Christine Bums was relevant, along with other evidence, to the issue of whether he committed those criminal acts, but it did not form the basis of his conviction.

The court’s charge guided the jury to a proper verdict. Neither claimed error detracted from the court’s proper recitations of and instructions concerning the elements of each offense.

Ill

The defendant finally claims that the court’s failure to act, sua sponte, to strike certain testimony and to deliver a limiting instruction with regard to certain evidence constituted plain error. We disagree.

The record reflects that during its case-in-chief, the state called Pamela Brown to testify. Brown testified that she was employed by the department as a special investigator and that she had worked in the department’s home improvement unit, where she investigated both civil and criminal violations of the Home Improvement Act and, specifically, Christine Bums’ complaint against the defendant. During the state’s questioning of Brown, the following colloquy, in relevant part, occurred:

“Q. Okay. And do you know the defendant . . . ?
“A. Yes, I do.
“Q. How do you know him?
“A. Since 1999, I’ve investigated other criminal and civil cases involving [the defendant] and his business, Ready Company.”

Shortly thereafter, during cross-examination, defense counsel presented Brown with an exhibit containing various documents and exhibits she compiled during her investigation, as well as a copy of her report. Defense counsel questioned Brown about the course of her investigation. Although defense counsel did not question Brown about it, Brown’s report contained a paragraph entitled “Executive Summary,” which included the following sentence: “Richard Koslik d/b/a Ready Company appears to be in violation of probation resultant from other home improvement criminal cases.”

The defendant claims that the aforementioned testimony of Brown, as well as that sentence from her report, “tainted [the jury] with the impression that [he] had similar prior violations of the Home Improvement Act” and that its admission deprived him of a fair trial. The defendant concedes that he did not object to either Brown’s challenged testimony or to the admission of the report. To the contrary, defense counsel introduced Brown’s report into evidence. The defendant now claims that the court, sua sponte, should have stricken Brown’s challenged testimony and delivered a limiting instruction to the jury concerning her report, and that its failure to take either step constituted plain error.

“To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and the public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 86, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003); see also Practice Book § 60-5.

Here, the claimed error is not obvious. The defendant has failed to cite any authority in support of his proposition that the court had a duty to strike Brown’s testimony or to deliver a limiting instruction with regard to the exhibit. Given the circumstances of this case, we conclude that the court was under no duty, sua sponte, to act. See, e.g., State v. Cator, 256 Conn. 785, 801-802, 781 A.2d 285 (2001).

Apart from failing to demonstrate that the court should have acted as he suggests, the defendant also has failed to demonstrate that any error “more likely than not” affected the verdict. See State v. Day, 233 Conn. 813, 852, 661 A.2d 539 (1995). Brown’s challenged testimony referred to her “investigation” of the defendant in prior civil and criminal cases. The challenged sentence from Brown’s report referred to the defendant’s apparent probationary status “from other home improvement criminal cases.” The defendant apparently posits that the admission of that evidence did not accord with the standard for admissibility applicable to prior convictions or to prior uncharged misconduct. See State v. Morgan, supra, 70 Conn. App. 271-73. Brown’s isolated and vague references did not specify whether the defendant had been convicted of a crime, what crime or crimes he had been convicted of or even when those acts occurred. Additionally, that evidence stands amid the testimony of the defendant and Brown that in August, 1998, the department suspended his registration. Applying common sense to that undisputed evidence, the jury would have inferred that the defendant’s suspension resulted from some type of inappropriate behavior on his part, thereby lessening the marginal, if any, impact of that evidence on the jury. For all of the foregoing reasons, we conclude that the defendant’s claim does not implicate the plain error doctrine.

The judgment is affirmed.

In this opinion the other judges concurred.

       As a special condition of the defendant’s probation, the court ordered him to pay restitution to Christine Bums and Eric Bums in the amount of $9434.

       In his principal brief, the defendant states his claim as one challenging the court’s denial of his motion for a judgment of acquittal. The defendant sought a judgment of acquittal at the close of the state’s case-in-chief. See Practice Book § 42-40. The court denied the motion, and the defendant elected to put on evidence following that ruling. That being the case, we shall conduct our review of the defendant's sufficiency claim in light of all of the evidence presented at trial. See State v. Feliciano, 74 Conn. App. 391, 395, 812 A.2d 141 (2002), cert. denied, 262 Conn. 952, 817 A.2d 110 (2003).

       The jury also had before it other evidence that the defendant performed installation work at the Bums’ home. For example, the defendant admitted that he had installed a faucet. The state also introduced two handwritten notes given by the defendant to Christine Bums. The first note stated, inter alia, “Chris If you buy a faucet 4 hole I’ll put it in Sat. and hook up dishwasher.” The second note stated, inter alia, “Chris: Be back Thursday will start on floor # PR 3140 Colonial Cherry Inlay. *Please put up shower curtain.*”

         There was no evidence that once the department suspended the defendant’s registration, the defendant informed Christine Bums to disregard that representation on his business card.

       General Statutes § 20-427 (b) provides in relevant part: “No person shall ... (3) represent himself falsely as, or impersonate, a registered home improvement contractor . . . .”
      The state did not charge the defendant with having violated that part of § 20-427 (b) (3) that makes it illegal to falsely represent oneself as aregistered home improvement salesman.

       General Statutes § 20-419 (4) provides: “ ‘Home improvement’ includes, but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation or sandblasting of, or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential rental property, in which the total cash price for all work agreed upon between the contractor and owner exceeds two hundred dollars. ‘Home improvement’ does not include: (A) The construction of a new home; (B) the sale of goods by a seller who neither arranges to perform nor performs, directly or indirectly, any work or labor in connection with the installation or application of the goods or materials; (C) the sale of goods or services furnished for commercial or business use or for resale, provided commercial or business use does not include use as residential rental property; (D) the sale of appliances, such as stoves, refrigerators, freezers, room air conditioners and others which are designed for and are easily removable from the premises without material alteration thereof; and (E) any work performed without compensation by the owner on his own private residence or residential rental property.”

       General Statutes § 20-419 (3) provides: “ ‘Contractor’ means any person who owns and operates a home improvement business or who undertakes, offers to undertake or agrees to perform any home improvement. ‘Contractor’ does not include a person for whom the total cash price of all of his home improvement contracts with all of his customers does not exceed one thousand dollars during any period of twelve consecutive months.”

       General Statutes § 20-427 (b) provides in relevant part: “No person shall ... (5) offer to make or make any home improvement without having a current certificate of registration under this chapter . . . .”
      The state did not charge the defendant with having violated that part of § 20-427 (b) (5) that makes it illegal for an individual to make any home improvement when he lacks a current certificate of registration.

       The defendant also claims that there was no evidence (1) that he offered to perform home improvement work that had a cash price exceeding $200 so as to satisfy the definition of “home improvement” in General Statutes § 20-419 (4); see footnote 6. We disagree. The jury reasonably could have found, as the Burnses testified, that for $17,000, the defendant agreed to purchase and to deliver the building materials that they wanted for their home and that he would install such materials. Although the defendant correctly points out that the written contract did not allocate that dollar amount in terms of materials and labor, the jury, applying its common sense and considering the scope of the work that he agreed to perform, reasonably could have found that he had offered to perform work having a total cash price exceeding $200.
      The defendant also claims that there was no evidence that the total cash price of all of his home improvement contracts with all of his customers exceeded $1000 during any period of twelve consecutive months so as to satisfy the definition of “contractor” in General Statutes § 20-419 (3); see footnote 7. The state did not bear the burden of proving that the defendant was a contractor; the state bore the burden of proving that the defendant improperly had represented himself as or impersonated a registered home improvement contractor and that he offered to make home improvements. Even were that not the case, on the basis of the agreement between the defendant and Christine Bums alone, the jury could have found that he had offered and agreed to perform a home improvement, and that the total cash price of his contracts exceeded $1000 during any period of twelve consecutive months.

       The court stated: “The law defines home improvement as follows: Home improvement includes but is not limited to the repair, replacement, remodeling, alteration, conversion, modernization, improvement, rehabilitation, or sandblasting of or addition to any land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place, or residential rental property or the construction, replacement, installation or improvement of driveways, swimming pools, porches, garages, roofs, siding, insulation, solar energy systems, flooring, patios, landscaping, fences, doors and windows and waterproofing in connection with such land or building or that portion thereof which is used or designed to be used as a private residence, dwelling place or residential property in which the total cash for all work agreed upon between the contractor and owner exceeds $200.
      “Home improvement does not include; A, the construction of a new home; B, the sale of goods by a seller who neither arranges to perform nor performs directly or indirectly any work or labor in connection with the installation or application of the goods or materials.
      “The law defines contractor as follows: Contractor means any person who owns and operates a home improvement business or who undertakes, offers to undertake, or agrees to perform any home improvement. The term contractor does not include a person for whom the total cash price of all of his home contracts with all of his customers does not exceed $1000 during any period of twelve consecutive months.”

       General Statutes § 20-419 (5) provides: “ ‘Home improvement contract’ means an agreement between a contractor and an owner for the performance of a home improvement.”

       Furthermore, even were we to conclude otherwise, we would conclude that the court’s charge adequately guided the jury to a proper verdict. In its instructions, the court defined “home improvement,” “contractor,” “owner” and “private residence.” Given the facts of this case and the issues actually before the jury, it strains credulity to posit that the jury could have inteipreted “home improvement contract” in any other way than to refer to an agreement between the defendant, as contractor, and Christine Bums, as owner, for the performance of a home improvement.

       Having concluded as we do, we likewise reject any claim that the court’s instruction constituted plain error.

       Further, insofar as the defendant introduced Brown’s report into evidence, we are mindful that “(a]n appellant . . . should not be allowed to claim as error that which his own action has induced.” (Internal quotation marks omitted.) Scott v. Barrett, 212 Conn. 217, 222, 561 A.2d 941 (1989).