text:
    STATE OF CONNECTICUT v. GARY GREEN
    (AC 22968)
    Dranginis, West and Hennessy, Js.
    Argued October 16, 2003 —
    officially released January 20, 2004

      Alice Osedach-Powers, assistant public defender, with whom, on the brief, was Mary Anne Royle, special public defender, for the appellant (defendant).

      Paul J. Narducci, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Peter A. McShane, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Gaiy Green, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). He claims that the court (1) improperly denied his motion for a judgment of acquittal, which he based on his claims that the court’s instructions on accessorial liability had misled the jury and that there was no basis to support a finding that he had acted as an accessory, (2) unconstitutionally placed him twice in jeopardy for the same offense, and (3) committed plain error by not reciting any of the elements of § 2 la-278 (b) in its accessory charge to the jury and by failing to instruct the jury that to convict him, he must not have been drug-dependent at the time the offenses were committed. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 29, 1999, the state police narcotics task force conducted an undercover investigation of street level narcotics sales in the Boswell Avenue-Lake Street section of Norwich. An undercover officer parked on Boswell Avenue and made eye contact with a black male, identified as Wayne Goggins, standing in front of 64 Boswell Avenue. Goggins approached and asked the officer what he needed. The officer requested “a twenty,” meaning $20 worth of crack cocaine. Gog-gins stated that “we just got a shipment in” and “they’re cooking it.” The officer indicated that he would wait.

According to the officer’s testimony, Goggins walked back to 64 Boswell Avenue and met with someone at the comer of the building located at that address. He returned to the officer’s car and apologized for the delay. Goggins then proceeded back to 64 Boswell Avenue again, entered the building and exited one minute later with the defendant in his company. The two men approached the car, but the defendant stopped approximately twenty feet short. Goggins continued to the car alone and handed the officer a quantity of crack cocaine. The officer paid Goggins $20 for the drugs. He then observed Goggins walk back to the defendant, hand him the $20 and walk with the defendant back into the budding at 64 Boswell Avenue.

At trial, the defendant’s motion for a judgment of acquittal was denied. The jury found him guilty on both counts. This appeal followed.

I

The defendant claims first that the court improperly denied his motion for a judgment of acquittal. His request for acquittal was based on his claims that (1) the court misled the jury by failing to distinguish between the elements of accessorial liability and conspiracy, leading it to believe that the two were interchangeable, which resulted in an inconsistent verdict, and (2) there was no legal basis for the court to instruct the jury on accessorial liability because there was no evidence that he had aided or abetted Goggins in the sale of narcotics. We disagree.

We first note the standard of review. “In reviewing the denial of a motion for judgment of acquittal, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether, from all of the evidence and the reasonable inferences drawn therefrom, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt.” State v. Salmon, 66 Conn. App. 131, 142-43, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002).

A

The defendant argues that the court improperly denied the motion for a judgment of acquittal on the first count, sale of narcotics in violation of § 21a-278 (b), because his conviction as both an accessory and as a conspirator was an inconsistent verdict under the facts of the case. He argues that the court improperly failed to instruct the jury that accessorial liability is legally inconsistent with conspiracy and that a finding of guilt under one offense precluded a finding of guilt under the other. We disagree.

“The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 748, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

At trial, defense counsel objected generally to an instruction on accessorial liability, but failed to raise the specific argument articulated here. The defendant, however, has requested Golding review. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id.

We will review the defendant’s claim because he satisfies the first two prongs of Golding. He fails to satisfy the third prong, however, because he was not clearly deprived of his due process right to a fair trial. First, the court’s charge concerning accessorial liability properly tracked General Statutes § 53a-8 and correctly explained that acting as an accessory merely is an alternative means of committing the substantive offense. Second, the defendant’s argument that the court failed to explain to the jury why he was charged as both an accessory and a conspirator is without merit. It is the prosecutor’s function, not the court’s, to explain to the jury why a defendant is charged with certain crimes. See State v. Kinchen, 243 Conn. 690, 699, 707 A.2d 1255 (1998). Third, the court gave a clear, accurate instruction on conspiracy.

Guilt as an accessory and conspiracy are not, as the defendant contends, legally inconsistent. “Ordinarily, a jury is precluded from finding a defendant guilty of two offenses that are inconsistent as a matter of law.” State v. Flynn, 14 Conn. App. 10, 26, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). “In such circumstances, the inconsistent offenses should be presented to the jury in the alternative.” Id. A verdict is legally inconsistent when “the essential elements for one offense negates the existence of the essential elements for another offense of which the defendant also stands convicted.” State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). For instance, a defendant cannot be convicted for both stealing and receiving the same goods. Milanovich v. United States, 365 U.S. 551, 554-55, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961).

The essential elements of the two offenses in this case, sale of narcotics and conspiracy to sell narcotics, did not negate each other.* ** The defendant’s reliance on State v. Flynn, supra, 14 Conn. App. 10, is misplaced. In Flynn, the defendant argued that the court improperly failed “to instruct the jury that it could not find the defendant guilty of both a crime requiring reckless conduct and a crime requiring intentional conduct for the doing of the same act.” (Emphasis added.) Id., 24. Acting as an accessoiy to a crime and conspiring to commit a crime, however, are not the same acts. One condemns giving intentional aid to another who engages in unlawful conduct, while the other condemns the act of agreeing to engage in criminal conduct. Moreover, we held in Flynn that “[i]t is not inconsistent ... to find that a criminal defendant possesses two different mental states, as long as these different mental states relate to different results.” Id., 27. Finally, we note that the intent requirements of the two offenses do not negate each other.

Therefore, the defendant’s argument that it was legally inconsistent to find him guilty both as an accessory to a crime and as a conspirator to commit the same offense is without merit. The instruction was proper and did not yield an inconsistent verdict.

B

The defendant also claims that there was no legal basis for the court to instruct the jury on the issue of accessorial liability because there was no evidence that he aided or abetted Goggins in selling the crack cocaine to the undercover officer. He argues that the officer’s observation of Goggins immediately handing him the proceeds of the drug sale and testimony from experienced officers on the fragmented nature of street level narcotics sales provided insufficient evidence to find the defendant guilty of the sale of narcotics either as a principal or as an accessory. We disagree.

The standard of review for challenges to jury instructions was recited in part I A. Because the claim of an improper jury instruction is predicated on a sufficiency of the evidence argument, we address that standard of review as well as that standard articulated in part I A. “In reviewing a sufficiency 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.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993).

Taking the cumulative impact of the facts presented in this case, there was sufficient incriminating evidence, both direct and circumstantial, to support the jury’s finding the defendant guilty of the sale of narcotics either as a principal or as an accessory. The undercover officer testified that the defendant had accompanied Goggins from 64 Boswell Avenue as the latter approached the officer’s car and completed the drug sale. Goggins then walked to the defendant, handed him the proceeds of the transaction and accompanied him back into the building at 64 Boswell Avenue. The jury also heard testimony from experienced officers on the nature of street level narcotics sales, with each describing the business as often divided into separate jobs performed by several active participants.

Therefore, as a matter of law, it was proper for the court to instruct the jury on accessorial liability as another way to commit the offense of sale of narcotics. The court properly denied the defendant’s motion for a judgment of acquittal on the accessory charge because, when considering all of the evidence in the light most favorable to sustaining the verdict, the jury reasonably could have concluded beyond a reasonable doubt that the defendant was guilty.

II

The defendant claims next that he was unconstitutionally punished twice for his conviction under count one, sale of a narcotic substance, and count two, conspiracy to sell narcotics. He argues that under the Blockburger test, both crimes arose from the same act and the same facts and, as charged in the information, one offense was similar to a lesser included offense of the other, thereby requiring that the conviction of the two charges be merged into the same offense for purposes of punishment. We disagree.

Although defense counsel filed a motion for a judgment of acquittal on both counts at the close of evidence, that motion did not raise the double jeopardy claim presented here. The defendant, however, has requested Golding review. See State v. Golding, supra, 213 Conn. 239-40. The first two prongs are satisfied, but with respect to the third prong, the alleged constitutional violation does not clearly exist.

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

The defendant argues that the two offenses, sale of narcotics and conspiracy to sell narcotics, arose out of the same act because both arose from the same facts. That is simply false. Each count charged a separate criminal act. Count one alleged the act of selling narcotics either as a principal or as an accessory. Count two alleged conspiracy to sell narcotics, that is, the act of entering into an agreement with another to sell narcotics. Committing a criminal offense and conspiring to do it are separate and distinct criminal acts. The crime of conspiracy to sell narcotics requires proof of facts that the crime of sale of narcotics does not. Conspiracy requires proof of an intentional agreement with another person to commit criminal conduct. “The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy.” (Internal quotation marks omitted.) State v. Gonda, 53 Conn. App. 842, 850, 732 A.2d 793, cert. denied, 250 Conn. 919, 738 A.2d 660 (1999). The defendant’s double jeopardy claim is without merit.

Ill

The defendant’s final claim is that the court committed plain error and misled the jury by not reciting any of the elements of § 21-278 (b), sale of a narcotic substance, when it delivered the accessorial liability charge and by failing altogether to recite the requirement that to be guilty under that statute, a person must not be drug-dependent. We disagree.

“A charge that demonstrates that the trial court has overlooked the applicable statute justifies consideration as plain error.” (Internal quotation marks omitted.) State v. Day, 233 Conn. 813, 849, 661 A.2d 539 (1995). “The defendant cannot prevail . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. We repeatedly have observed that plain error is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) Id.

“It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” (Internal quotation marks omitted.) State v. Allen, 216 Conn. 367, 383, 579 A.2d 1066 (1990). “The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Hall, supra, 66 Conn. App. 748.

The defendant argues that the court failed to instruct the jury on the key elements of the crime charged. The court, in fact, specifically referenced § 21a-278 (b) during its charge on the first count, sale of narcotics, which immediately preceded the accessory instruction. The court stated that “a person is guilty of [sale of narcotics] when any person sells to another person a narcotic substance. And for you to find the defendant guilty of this charge, the state must prove that the defendant knowingly sold to another person any narcotic substance. And again, each of those elements must be established beyond areasonable doubt.” The court then defined the word “sale” as it appears in General Statutes § 21a-240 (50), and proceeded to instruct the jury on accessorial liability. Therefore, the defendant’s claim that none of the elements for the offense of sale of a narcotic substance under § 21a-278 (b) were recited along with the accessory charge is without merit. The court referenced those statutory elements immediately preceding the accessory charge.

The defendant also argues that the court failed to instruct the jury that it had to find that he was not drug-dependent as an essential element of § 21a-278 (b). The law, however, is clear that the absence of drug dependency is not an element of the offense of sale of narcotics under § 21a-278 (b). State v. Marrero, 66 Conn. App. 709, 717-18, 785 A.2d 1198 (2001). “The absence of drug dependency is not an element of the offense of sale of narcotics by a person who is not drug-dependent in violation of § 21-278 (b). Rather, [like an affirmative defense] it is an exemption from liability under [General Statutes] § 2 1a-269. . . . Therefore, it [is] not necessary for the state to negate drug dependency . . . .” (Internal quotation marks omitted.) Id.

We therefore hold that, viewed in its entirety, the instruction to the juiy was proper and that the defendant has failed to show manifest injustice requiring reversal of the judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant framed two separate, but closely related, issues in support of this general claim that we address together.

       The defendant characterizes the first count as sale of narcotics as an accessory, but the court merely instructed the jury on accessory liability as another way to commit the substantive offense of sale of a narcotic substance.

       The court instructed the jury in relevant part as follows on accessory: “There’s another definition that I’m going to give to you, and that is the definition of accessory. A person is guilty of a crime either because he is the principal offender or because he is an accessory. Under the law, an accessory is . . . just as guilty as if he were the principal offender. Being an accessory to a crime is not a crime in and of itself, but it is only another way of committing a crime. The criminal responsibility of an accessory is provided by our General Statutes § 53-8, and it reads as follows . . .

       General Statutes § 53a-8 (a) defines accessorial liability as follows: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-48 (a) defines conspiracy as follows: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

        Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    OTIS C. KNIGHT v. COMMISSIONER OF CORRECTION
    (AC 23733)
    Lavery, C. J., and Flynn and Bishop, Js.
    Submitted on briefs November 21,2003 —
    officially released January 20, 2004

      Katharine S. Goodbody, special public defender, filed a brief for the appellant (petitioner).

      Michael Dearington, state’s attorney, Julia K. Con-lin, deputy assistant state’s attorney, and Michael A. Gailor, senior assistant state’s attorney, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Otis C. Knight, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus and denying his petition for certification to appeal to this court. On appeal, the petitioner claims that the habeas court (1) abused its discretion by failing to grant certification to appeal and (2) improperly found that he was not denied the effective assistance of counsel. We dismiss the petitioner’s appeal.

The following facts and procedural history are relevant to our resolution of the petitioner’s appeal. On March 2, 1998, the petitioner pleaded guilty under the Alford? doctrine to robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) and burglary in the first degree in violation of General Statutes § 53a-101 (a) (1). He was sentenced to a total effective term of imprisonment of thirteen years, suspended after nine years, and four years probation, in accordance with a plea agreement.

The petitioner subsequently filed an amended petition for a writ of habeas corpus based on a claim of ineffective assistance of counsel. Specifically, the petitioner claimed that his attorney, Martin Zeldis, was ineffective in that he (1) did not adequately advise the petitioner concerning options with regard to the guilty plea, (2) did not adequately advise the petitioner regarding options concerning potential defenses, (3) failed to challenge adequately the photographic identification procedure and eyewitness identification, (4) failed to pursue adequately his claim for exculpatory evidence, and (5) failed to ensure that the petitioner’s pleas were knowing, voluntary and intelligent. Following a hearing, the habeas court found that the petitioner had failed to prove any of his claims of ineffective assistance of counsel. The court stated that the petitioner had failed to prove that Zeldis’ representation was deficient in any of the ways alleged in the amended petition or in any other way. The court further found that the petitioner had failed to prove actual prejudice as a result of Zeldis’ representation. The court, therefore, dismissed the habeas petition and denied the petitioner’s petition for certification to appeal. The petitioner then filed the present appeal.

“In a habeas appeal, although this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) Bewry v. Commissioner of Correction, 73 Conn. App. 547, 548, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003). “Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits.” (Citations omitted.) Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . For the petitioner to prevail on his [underlying] claim of ineffective assistance of counsel, he must establish both that his counsel’s performance was deficient and that there is a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different.” (Citation omitted; internal quotation marks omitted.) Bewry v. Commissioner of Correction, supra, 73 Conn. App. 549.

After reviewing the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right. See id., 549-50. Additionally, the petitioner has failed to sustain his burden of persuasion that the court’s denial of his petition for certification to appeal was a clear abuse of discretion or that some type of injustice has been done. See id.; see also Simms v. Warden, supra, 230 Conn. 612.

The appeal is dismissed.

       Specifically, the petitioner claims that his trial counsel was ineffective in that he failed (1) to conduct an adequate pretrial investigation, (2) to challenge adequately the identification process and (3) to ensure that the petitioner’s plea was knowing, voluntary and intelligent Our review of the record reveals that at the habeas trial, the petitioner specifically abandoned his claims that counsel had “failed to conduct a sufficient investigation of the petitioner’s case and his defenses thereto,” and “failed to conduct a sufficient investigation into the petitioner’s consistent claims of innocence.” We therefore will not review the petitioner’s challenge to counsel’s pretrial investigation. See Henry v. Commissioner of Correction, 60 Conn. App. 313, 320, 759 A.2d 118 (2000) (declining to review claim not distinctly raised at trial).

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Several other claims of ineffective assistance of counsel were withdrawn at trial.


author: McLACHLAN, J.

text:
    HEMA MENON v. ANN DUX
    (AC 23563)
    Schaller, McLachlan and Berdon, Js.
    Argued October 22, 2003 —
    officially released January 20, 2004

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

      Kieran S. Cassidy, for the appellee (defendant).
   Opinion

McLACHLAN, J.

This appeal arises out of a negligence action brought by the plaintiff, Hema Menon, for the alleged liability of the defendant, Ann Dux, in causing an automobile collision. The plaintiff challenges both the trial court’s judgment in favor of the defendant, rendered after a jury verdict, and the court’s subsequent denial of her motion to set aside the verdict. On appeal, the plaintiff claims that the court improperly (1) excluded certain testimony relating to the cost of repairing the damage to her vehicle as a result of the collision, (2) instructed the jury concerning its discretion in determining the verdict and (3) denied her motion to set aside the verdict. We affirm the judgment of the trial court.

Following jury selection, the court bifurcated the trial into two phases, liability and damages. During their testimony in the liability phase, the plaintiff and defendant provided conflicting versions of the events leading to the accident, essentially offering competing accounts of the directions in which the vehicles were traveling and the manner in which the collision occurred. Officer Lawrence Frinton of the Danbury police department, who investigated the accident scene, also testified. In his original accident report, Frinton provided a diagram of the accident based on his conversations with the plaintiff and the defendant immediately following the accident, and on his observations of the scene. This diagram was consistent with the version of events advanced by the defendant. Frinton’s report also contained a narrative, however, which contained certain statements that contradicted the diagram and, in fact, supported the plaintiffs version of events. Frinton later filed a narrative supplement to the accident report in which he indicated that in his original report, he mistakenly described the position and directional movement of the defendant’s vehicle. He clarified that this description was in error and that in his opinion, the collision had occurred in the manner described by the defendant.

Following the conclusion of evidence in the liability phase, the jury returned a verdict in favor of the defendant. The plaintiff subsequently filed a motion to set aside the verdict, pursuant to Practice Book § 16-35, on the ground, inter alia, that the verdict was contrary to the evidence. The motion was denied, and judgment was rendered in favor of the defendant. The plaintiff now appeals.

I

The plaintiff first claims that the court improperly excluded evidence concerning the cost of repairing the damage to her vehicle as a result of the collision. The court excluded that evidence on the ground that although it would be appropriate in the damages phase of the trial, it was irrelevant to the liability phase. The plaintiff asserts for the first time on appeal that this testimony should have been permitted as circumstantial evidence showing that at the time of the collision, the defendant’s vehicle was traveling at a high rate of speed. We decline to review the claim.

The record reveals that on redirect examination, the plaintiffs counsel questioned the plaintiff about the damage to her vehicle. After the plaintiff explained the nature of the damage, counsel inquired as to the cost of repairing such damage. The defendant’s counsel objected to that question on relevancy grounds and, in sustaining the objection, the court reasoned that because the testimony was relevant only to the issue of damages, it should be postponed until the damages phase of the trial. In response to the court’s determination, the plaintiffs counsel articulated no rationale for permitting the testimony or any objection to the court’s ruling and, quite to the contrary, expressly acquiesced to the ruling.

The plaintiff now asserts that the testimony should have been permitted because the extent of damage to her vehicle comprised circumstantial evidence of the speed at which the defendant’s vehicle was traveling at the time of the collision. The plaintiff now maintains that because such testimony would have supported her argument that the defendant was speeding prior to the collision, the testimony was relevant to the issue of liability and, therefore, should have been permitted.

It is well established that “[t]his court will not review issues of law that are raised for the first time on appeal. . . . We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim.” (Internal quotation marks omitted.) Strouth v. Pools by Murphy & Sons, Inc., 79 Conn. App. 55, 62, 829 A.2d 102 (2003).

Although the plaintiff attempted to introduce testimony of the extent of the damage to her vehicle, she did not articulate any evidentiary rule on which such testimony was admissible. For this court now to consider her claim on the basis of a specific legal ground not raised during trial would “amount to trial by ambuscade, unfair both to the trial court and to the opposing party.” (Internal quotation marks omitted.) State v. Westberry, 68 Conn. App. 622, 628 n.3, 792 A.2d 154, cert. denied, 260 Conn. 923, 797 A.2d 519 (2002). Accordingly, we will not afford review to that unpreserved claim.

II

The plaintiff next claims that the court improperly instructed the jury concerning its discretion in determining a verdict. Specifically, the plaintiff claims that the court’s charge conveyed to the jury that it had unbridled discretion to disregard the law in reaching a verdict. The plaintiff concedes that she did not take exception to the jury charge at trial, and our review of the record reveals that she did not submit a written request to charge. Accordingly, the plaintiffs claim was not preserved for appellate review. See Practice Book § 16-20; Pestey v. Cushman, 259 Conn. 345, 372-73, 788 A.2d 496 (2002). Nevertheless, a party may prevail on an unpreserved claim under the plain error doctrine if such review is affirmatively requested. See Practice Book § 60-5; State v. Ramos, 261 Conn. 156, 171, 801 A.2d 788 (2002). As the plaintiff has requested plain error review, we must consider whether such review is warranted.

As we often have stated, “[p]lain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. ... A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice. . . . Furthermore, even if the error is so apparent and review is afforded, the defendant cannot prevail on the basis of an error that lacks constitutional dimension unless he demonstrates that it likely affected the result of the trial.” (Citation omitted; internal quotation marks omitted.) State v. Thompson, 71 Conn. App. 8, 12 n.4, 799 A.2d 1126 (2002).

The plaintiff has failed to demonstrate that the court’s instruction was so obviously erroneous that it affected the fairness and integrity of and public confidence in the judicial proceedings or that failure to grant the requested relief will result in manifest injustice. See id. We accordingly conclude that plain error review is unwarranted.

Ill

The plaintiff last claims that the court improperly denied her motion to set aside the jury’s verdict. Specifically, the plaintiff claims that the evidence adduced at trial demonstrated that the collision could not have occurred in the manner alleged by the defendant and subsequently accepted by the jury. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard. ... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . .

“A court is empowered to set aside a jury verdict when, in the court’s opinion, the verdict is contrary to the law or unsupported by the evidence. ... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion. ... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did. . . . On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled.” (Internal quotation marks omitted.) Carusillo v. Associated Women’s Health Specialists, P.C., 79 Conn. App. 649, 653, 831 A.2d 255 (2003). “We do not . . . determine whether a conclusion different from the one reached could have been reached. . . . A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Amone v. Enfield, 79 Conn. App. 501, 506, 831 A.2d 260, cert. denied, 266 Conn. 932, 837 A.2d 804 (2003).

The pivotal issue in the plaintiffs claim is the conflicting testimony offered by the plaintiff and the defendant as to the circumstances leading to the collision. Although the plaintiffs testimony roundly contradicted that of the defendant, and the jury reasonably could have elected to believe the plaintiff and not the defendant, our task is not to determine whether a conclusion different from the one arrived at could have been reached, but rather to determine if there was some evidence on which the jury might reasonably have reached its conclusion. See Carusillo v. Associated Women’s Health Specialists, P.C., supra, 79 Conn. App. 653.

Although it was not supported by the entire record, the version of events advanced by the defendant and accepted by the jury was adequately supported by the record. Not only was the defendant’s version consistent with the damage sustained by both vehicles, it also was bolstered by Frinton’s testimony that in his opinion, the accident occurred in the manner described by the defendant. We accordingly conclude that the jury’s verdict was not contrary to the evidence and that the court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       Also testifying at trial was the plaintiffs mother, a passenger in the plaintiffs vehicle. With respect to the circumstances surrounding the collision, her testimony essentially mirrored that of 1he plaintiff.

       The following colloquy occurred during redirect examination of the plaintiff:
      “[The Plaintiffs Counsel]: Do you recall what the damage estimate was to repair these areas?
      “[The Witness]: Yes.
      “[The Defendant’s Counsel]: Objection. That’s irrelevant, Your Honor.
      “The Court: At the present time in the status of the record, I have to sustain the objection.
      “[The Plaintiff’s Counsel]: I’m merely offering it—
      “The Court: It would be relevant to the question of the force of the collision—
      “[The Plaintiff’s Counsel]: Yes.
      “The Court: — which, that may become a question relevant as to the nature and extent of the damages. But seeing that we’re in a bifurcated trial, I don’t think it’s really relevant now as to the extent of the damage. It’s conceded that both vehicles came into contact, and, of course, there was a picture that showed damage to the front of the car.
      “[The Plaintiffs Counsel]: Okay.
      “The Court: So, for right now, why don’t we just postpone that?
      “[The Plaintiff’s Counsel]: All right.”

         We note that the plaintiff did not seek review of the unpreserved ground under the rubric of plain error. As we have consistently stated, “it is not appropriate to engage in a level of review that is not requested.” State v. Hermann, 38 Conn. App. 56, 65, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). We therefore do not consider whether review of the claim is warranted under the plain error doctrine.

       Practice Book § 42-16 provides in relevant part: “An appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. . . .”

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

       The specific portion of the jury instruction to which the plaintiff objects states: “As I said to you when you were first sworn in, you always do the right thing. You don’t have to worry about whether you did the wrong thing, so don’t worry about that.” That one sentence, considered in the context of the court’s thirty-one pages of instruction, does not rise to the level of the truly extraordinary situation for which we reserve plain error review.


author: MIHALAKOS, J.

text:
    STATE OF CONNECTICUT v. ROBERT CAMERA
    (AC 23117)
    Bishop, DiPentima and Mihalakos, Js.
    Argued October 29, 2003 —
    officially released January 20, 2004

      Theresa Soto and Linda Currie, certified legal interns, with whom were Lauren Weisfeld, assistant public defender, and, on the brief, G. Douglas Nash, public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, senior assistant state’s attorney, for the appel-lee (state).
   Opinion

MIHALAKOS, J.

The defendant, Robert Camera, appeals from the judgment of conviction, rendered after a jury trial, of reckless assault in the first degree in violation of General Statutes § 53-59 (a) (3). On appeal, the defendant claims that (1) the trial court failed to conduct an adequate hearing into potential jury bias and jury taint, (2) the court abused its discretion in admitting evidence of prior uncharged misconduct by the defendant and (3) he is entitled to a new trial because of prosecutorial misconduct. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of September 9, 1997, the victim and the defendant were at Dudley’s, a Wallingford bar. The two men were seated across the bar from each other after playing in a setback tournament. They were acquainted as former workers at Dudley’s and teammates on a softball team. The defendant remarked to Dicky Hominski, the owner of Dudley’s, “Since when do you let a_holes back into the bar?” Thereafter, the defendant said to the victim, “You have thirty seconds to drink your drink and get the f_out of the bar.” Approximately thirty seconds later, the victim felt a tap on his shoulder and was struck in the head by a bottle as he turned around.

The victim testified that he did not observe the defendant striking him, but that the defendant was standing behind him immediately after the attack. The state also produced witnesses who testified as to the defendant’s proximity to the victim after the attack. Richard Dom-broski testified that he heard the victim and the defendant “having words” across the bar and then observed the defendant walking across the bar with a bottle in his hand. He then heard a “pop” and turned to see the defendant standing next to the victim holding a broken beer bottle.

Richar d Remnick, who treated the victim at the Mid-State Medical Center in Meriden, testified that the victim’s injuries were consistent with a hard downward strike with a beer bottle. Ronald Gross, the physician who treated the victim at Hartford Hospital, also testified that the victim’s injuries were consistent with a strike on the head with a beer bottle.

Kevin Collins, another Dudley’s patron, testified that while he was attempting to stop the victim’s bleeding outside of the bar, the defendant rode up on his motorcycle and threatened the victim not to press charges. When Dombroski asked the victim who had attacked him, the victim responded “Bobbo.” When Dombroski asked the victim who “Bobbo” was, he said the defendant’s name. The victim at trial also identified the defendant as his assailant. The defendant himself, upon encountering the victim at a snack bar during a break from trial, said to the victim, “We all make mistakes that we regret.”

After the jury trial, the defendant was convicted of reckless assault in the first degree. The court sentenced the defendant to eight years incarceration, execution suspended, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court failed to conduct an adequate hearing into jury bias and taint, thereby depriving him of his constitutional right to a trial by an impartial jury. Specifically, he contends that the court did not sufficiently inquire into possible bias and potential jury taint resulting from that bias in accordance with the court’s duty to safeguard the defendant’s right to an impartial jury. We disagree.

The following additional facts are necessary for our resolution of that issue. Individual voir dire of V took place on January 18, 2002. On January 28, 2002, the court put on the record a conversation between V and the clerk of the court as recounted by the clerk. According to the clerk, on the same day that V underwent voir dire, V inquired of the clerk whether his name would be used in court. When the clerk asked him the reason for his question, V responded that he was concerned about the defendant’s knowing his name because V had family in the area with the same name. The clerk inquired as to whether it was going to be a problem that his name would be called when taking the roll, to which V responded that it would not be a problem and “to just forget it.”

At that point, counsel for the defendant requested an inquiry to determine whether V could be fair and impartial. The court summoned V to the courtroom and conducted an inquiry into whether he could serve as an impartial juror. V responded that he could remain a fair and impartial juror. Defense counsel expressed wony about whether V had spoken to the remaining jurors about his concerns, but did not request that the court take any further action. Defense counsel later returned to the issue, asking the court to inquire of V whether he had expressed his concerns to the remaining jurors. The court declined to make such an inquiry.

The law relating to alleged juror misconduct is well settled. State v. Feliciano, 256 Conn. 429, 447, 778 A.2d 812 (2001). “Jury impartiality is a core requirement of the right to trial by jury guaranteed by the constitution of Connecticut, article first, § 8, and by the sixth amendment to the United States constitution. . . [T]he right to a jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. . . . The modem jury is regarded as an institution in our justice system that determines the case solely on the basis of the evidence and arguments given [it] in the adversary arena after proper instructions on the law by the court.” (Internal quotation marks omitted.) Id., 447-48.

A court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality. State v. Brown, 235 Conn. 502, 526, 668 A.2d 1288 (1995) (en banc). “Any assessment of the form and scope of the inquiry that a trial court must undertake when it is presented with allegations of jury [bias or] misconduct will necessarily be fact specific. No one factor is determinative as to the proper form and scope of a proceeding. It is the trial court that must, in the exercise of its discretion, weigh the relevant factors and determine the proper balance between them. . . . Consequently, the trial court has wide latitude in fashioning the proper response to allegations of juror bias. . . . We [therefore] have limited our role, on appeal, to a consideration of whether the trial court’s review of alleged jury misconduct can fairly be characterized as an abuse of its discretion. . . . Although we recognize that trial [c]ourts face a delicate and complex task whenever they undertake to investigate reports of juror misconduct or bias . . . we nevertheless have reserved the right to find an abuse of discretion in the highly unusual case in which such an abuse has occurred. . . . Ultimately, however, [t]o succeed on a claim of [juror] bias the defendant must raise his contention of bias from the realm of speculation to the realm of fact.” (Citations omitted; internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 296-97, 750 A.2d 1059 (2000).

“Finally, when, as in this case, the trial court is in no way responsible for the alleged juror misconduct, the defendant bears the burden of proving that the misconduct actually occurred and resulted in actual prejudice.” (Internal quotation marks omitted.) State v. Bangulescu, 80 Conn. App. 26, 50, 832 A.2d 1187 (2003).

The defendant claims that the court failed to protect his right to an impartial jury by not fully developing the facts. He further contends that the court abused its discretion in that the scope of the inquiry was so limited as to deprive him of his due process right to a fair trial by an impartial jury. In particular, the defendant asserts that the court should have inquired as to any communication V may have had with his fellow jurors regarding his concerns about his name being read aloud in court.

Applying the principles previously set forth, we conclude that the defendant has failed to demonstrate that the inquiry conducted by the court was inadequate to safeguard his right to a trial before an impartial jury. The court expressly addressed the defendant’s concern about V’s impartiality in its questioning of V. Defense counsel specifically requested that the court inquire into V’s ability to be a fair and impartial juror, a request that the court fulfilled. It was not until later that defense counsel definitively asked that the court conduct further inquiry into whether V had expressed his concerns to the remaining jurors. The decision to extend the inquiry was firmly within the court’s discretion, and it cannot be said that the court’s decision not to extend the inquiry was an abuse of that discretion. State v. Mukhtaar, supra, 253 Conn. 296-97.

On the basis of our review of the record and applicable law, we conclude that the court did not abuse its discretion in declining to extend the scope of its inquiry into possible jury bias.

II

The defendant’s second claim is that the court abused its discretion by admitting evidence of his uncharged conduct because it was neither relevant nor material. In the alternative, he contends that the court abused its discretion because the probative value of the evidence did not outweigh its prejudicial effect. We disagree.

The following additional facts are necessary for our resolution of that issue. The state wanted to present evidence of two prior encounters between the defendant and the victim. After a hearing, the court ruled that the state could introduce the uncharged misconduct because it was relevant to the issues of identity, intent, motive and malice, and because the probative value of the evidence outweighed any possible prejudice.

The state presented that evidence during the direct examination of the victim and Thomas Doucet. The victim testified that the defendant had offered to sell him fake insurance cards for $20 each one year prior to the assault at issue in this appeal. The victim, on viewing the cards, decided against the purchase and left $20 at Dudley’s with a note thanking the defendant for his efforts. The defendant then came to the Pavilion, the victim’s workplace, demanding more money from the victim for the cards. When the victim refused, the defendant punched him in the mouth. One week or so later, while the victim was drinking beer with a man named “Billy,” the latter remarked, “Oh, that’s all [the defendant] did to you?” The defendant returned to the Pavilion and punched the victim again, remarking, “Is that good enough now?”

Doucet was present when the defendant came to the Pavilion. He observed the defendant pushing the victim in a hostile manner toward the kitchen. He heard the two struggling in the kitchen. When he entered the kitchen, he observed the victim with a cut lip and his back against the wall. The defendant was facing the victim and was not injured.

“We begin our review of the trial court’s action by noting that [a]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . Evidence of prior misconduct may be admitted, however, when the evidence is offered for a purpose other than to prove the defendant’s bad character or criminal tendencies. . . . Exceptions to the general rule precluding the use of prior misconduct evidence have been recognized in cases in which the evidence is offered to prove, among other things, intent, identity, motive, malice or a common plan or scheme. . . .

“In order to determine whether such evidence is admissible, we use a two part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of [the prior misconduct] evidence must outweigh [its] prejudicial effect .... Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of discretion is manifest or whe[n] an injustice appears to have been done. ... On review by this court, therefore, eveiy reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Merriam, 264 Conn. 617, 659-61, 835 A.2d 895 (2003); see also Conn. Code Evid. § 4-5.

Under the first prong of our analysis, we conclude that the court did not abuse its discretion in admitting the uncharged misconduct evidence because the evidence was relevant and material. “The first prong of the test requires the trial court to determine if an exception applies to the evidence sought to be admitted.” (Internal quotation marks omitted.) State v. Merriam, supra, 264 Conn. 661. In this case, the two prior encounters between the defendant and the victim were highly probative of intent, motive and identity.

As argued by the state, the evidence demonstrated a history between the two men over money for fake insurance cards, revealing the potential hostility that the defendant may have harbored toward the victim and, therefore, a motive to attack him on September 9, 1997. In addition, both incidents involved the same individuals involved in the present matter. Further, the defendant had attacked the victim on both occasions. The evidence also was probative of identity because there were no eyewitnesses to the September 9, 1997 assault.

The defendant specifically argues that the uncharged misconduct evidence was inadmissible for purposes of proving identity because the incidents did not rise to the level of a signature offense. He relies on State v. Figueroa, 235 Conn. 145, 665 A.2d 63 (1995), in making that contention. His reliance on Figueroa, however, is misplaced.

“The first threshold for the use of evidence of other crimes or misconduct on the issue of identity is that the methods used be sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other. . . . [Charles T. McCormick, the author of an evidence treatise] points out that in proffering other crime evidence [t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused . . . much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature. ... In order to determine if this threshold criterion for admissibility has been met, we must examine the proffered evidence and compare it to the charged offenses.” (Citations omitted; internal quotation marks omitted.) Id., 163.

A comparison of the crime charged with the incidents of uncharged misconduct reveal various similarities that make the evidence proper for the purpose of proving identity. On all three occasions, the defendant was the aggressor and assailant. His behavior also was directed at the victim in all three encounters. In addition, the three incidents occurred within one year of each other.

In accordance with the second prong of our analysis, we conclude that the probative value of the evidence outweighed its prejudicial effect. As stated, “[b]ecause of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. George B., 258 Conn. 779, 791, 785 A.2d 573 (2001).

The court held a hearing on the admissibility of the uncharged misconduct evidence. The court expressly concluded that the evidence was probative of identity, intent, motive and malice. The court further determined that even though the evidence may be prejudicial, the probative value outweighed any prejudicial effect. The court also gave a limiting instruction at the conclusion of that evidence. “Because the trial court weighed the probative value of the evidence against its prejudicial effect and gave the jury specific limiting instructions regarding the proper purpose of the evidence, it is reasonable to infer that . . . the probative value of the evidence outweighed any prejudicial effect the evidence might have.” State v. Figueroa, supra, 235 Conn. 166-67.

On the basis of our analysis, we conclude that the court did not abuse its discretion in admitting evidence of uncharged misconduct perpetrated by the defendant. The evidence satisfies both prongs of the applicable analysis in that it was both relevant and material, and its probative value outweighed its prejudicial effect.

m

The defendant’s last claim is that prosecutorial misconduct during his trial requires that he be granted a new trial. Specifically, he argues that the prosecutor improperly used both cross-examination and summation to shift the burden of proof to the defendant and to mislead the jury into believing that the defendant had a duty to assert his innocence, thereby violating his due process right to a fair trial. He argues that the prosecutor, during cross-examination, alluded to a duty on the defendant’s part to initiate contact with the police and that failure to do so was evidence of culpability. The defendant contends that the prosecutor returned to that theme during summation, which the defendant maintains was sufficient in and of itself to have deprived him of a fair trial. We disagree.

The following additional facts are necessary for our resolution of that final issue. The prosecutor, on cross-examination, probed into the defendant’s departure from Dudley’s after the assault. The prosecutor questioned him on why he left Dudley’s instead of explaining to the police that the incident was an accident, as the defendant claimed during trial. The defendant admitted that he left Dudley’s after the incident, but before the police arrived, to go to another bar while the victim was bleeding on the pavement outside of Dudley’s. He further testified on redirect examination that he spoke with the police on September 11, 1997, after being contacted by Officer Glenn Odelle of the Wallingford police department.

In her closing argument, the prosecutor revisited the defendant’s avoidance of the police, pointing out to the jury that the defendant left the scene of the assault rather than speak with the police or explain that the incident was an accident. The prosecutor also mentioned that the defendant did not speak with the police until they contacted him, whereupon he explained that the incident was an accident.

The defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because he did not object to the prosecutor’s remarks on the grounds now alleged. We decline to review the claim because we conclude that it fails the second prong of Golding.

The state argues that the defendant’s claims are evi-dentiary rather than constitutional in nature. It further contends that the prosecutor, in presenting evidence of the defendant’s flight from the scene of the assault, was developing an inference of consciousness of guilt. The state claims that referencing the defendant’s avoidance of the police on the night in question was proper in advancing such a theory.

“It has . . . been stated numerous times that consciousness of guilt issues are not constitutional and, therefore, are not subject to review under the [standard of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as modified by Golding]. ... It is well settled that the trial court can be expected to rule only on those matters that are put before it. . . . With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. ... To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) State v. Lacks, 58 Conn. App. 412, 424, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

We agree with the state’s characterization of the defendant’s claim as evidentiary rather than constitutional under the specific facts of this case. The references made by the prosecutor to the defendant’s departure from the scene before the police arrived and subsequent unwillingness to contact the police pertained to consciousness of guilt. Accordingly, the defendant’s claim is actually premised on the propriety of the prosecutor’s questioning on the subject of consciousness of guilt, rather than on alleged prosecutorial misconduct. In the context of this case, therefore, the defendant’s claim must be considered evidentiary rather than constitutional in nature.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant originally was charged in a two count information with intentional assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and reckless assault in the first degree in violation of § 53a-59 (a) (3). He was acquitted of intentional assault in the first degree.
      General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical iqjuiy to another person . . . .”

       “Setback” is a card game.

       We use initials for the venirepersons to protect their legitimate privacy interests. See State v. Jackson, 73 Conn. App. 338, 344 n.6, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002).

       The following is the conversation that took place between the court and V:
      “The Court: All right. Do you feel that you could be a fair juror in this case?
      “The Juror: Yes, sir.
      “The Court: All right. Did you have any concerns about your name being used and spoken?
      “The Juror: It was just a funny thing, I couldn’t remember if they did use my name or not, you know, during the questioning. I was just questioning that aspect of it.
      “The Court: Okay. All right. And that would have — the use of your name is necessary, of course, and the fact that your name has been used, would that affect in any way your concerns about being fair and impartial?
      “The Juror: No, sir.
      “The Court: All right.”

       Connecticut Code of Evidence § 4-5 provides in relevant part: “(a) Evidence of other crimes, wrongs or acts inadmissible to prove character. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.
      “(b) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony. . .

       The court instructed the jury as follows: “[L]adies and gentlemen, with respect to testimony that you have heard with respect to two incidents of punching claimed to have been done by the defendant against [the victim] and [Doucet’s] testimony as to what he observed at the Pavilion, this testimony is not offered to prove the good character or bad character of the defendant and not to show that he’s either a good person or a bad person. This evidence is limited only to the issues in this case of intent and identity and motive and malice relating to the incident on September 9, 1997. And to the extent you find . . . the incident did occur, you may give it such weight as you think is relevant on those issues and elements.”

       Our Supreme Court in Golding held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.'’ (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       Defense counsel objected on the grounds of repetitive and inflammatory questioning. Defense counsel did not object during the prosecutor’s closing argument.


text:
    STATE OF CONNECTICUT v. ARTHUR ESPOSITO
    (AC 23037)
    Dranginis, Flynn and Bishop, Js.
    Argued November 21, 2003 —
    officially released January 20, 2004

      Damon A. R. Kirschbaum, for the appellant (defendant).

      Margaret Gaffney Radionovas, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (plaintiff).
   Opinion

PER CURIAM.

In this criminal appeal from his conviction of sexual assault in the third degree, the defendant, Arthur Esposito, claims that (1) the evidence was insufficient for the jury to have found him guilty and (2) the trial court’s instructions to the jury relieved the state of its burden of proving beyond a reasonable doubt an essential element of the offense. We affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. At approximately 4 a.m. on November 11, 2000, as the female victim was walking home, she encountered the defendant, whom she did not know. As he began to talk to her, she attempted to ignore him and continued on her way at a faster pace. The defendant then ran after the victim and grabbed her from behind. In doing so, he placed one hand on her breast and used his other hand to cover her mouth. The defendant then attempted to force the victim into a driveway between houses. To prevent her from crying out, he put his fingers in her mouth. The victim bit his fingers, causing him to let go and flee. Shortly thereafter, the defendant was apprehended.

I

The defendant first claims that the evidence was insufficient to convict him of sexual assault in the third degree. We review the defendant’s sufficiency of the evidence claim by construing the evidence in the light most favorable to sustaining the verdict, and, in doing so, we determine whether, on the facts so construed and the inferences reasonably drawn, the jury reasonably could have concluded that the evidence established guilt beyond a reasonable doubt. State v. Berger, 249 Conn. 218, 224, 733 A.2d 156 (1999).

General Statutes § 53a-72a (a) provides in relevant part: “A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person . . . .” The term “sexual contact,” in turn, is defined in relevant part as “any contact with the intimate parts of a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person . . . .” General Statutes § 53a-65 (3). Although the defendant concedes for the purpose of this appeal that there was sufficient evidence to establish that he grabbed the victim’s breast, he contends that the evidence legally was insufficient for the jury to have found that he did so for the purpose of sexual gratification or to degrade or to humiliate the victim. We disagree.

It is axiomatic that a jury may infer intent from behavior. As our Supreme Court previously has stated, it is difficult to prove intent because “direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000). In this instance, the record amply supports the jury’s conclusion that after first trying to get the victim’s attention by calling to her, and then chasing her, the defendant grabbed the victim by the breast while attempting to prevent her from calling out, either for the purpose of sexual gratification or to degrade or to humiliate her.

II

The defendant next claims that the court improperly instructed the jury on the element of intent in the offense of sexual assault in the third degree. Specifically, the defendant claims that the instruction was improper in that it relieved the state of its burden of proving specific intent beyond a reasonable doubt because the court implied that in order to prove that he intended to gratify himself sexually or to cause humiliation to the victim, the state merely had to prove that he grabbed the victim’s breast. We are not persuaded.

At the outset, we note that the defendant did not raise his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He neither submitted a request to charge outlining the elements of the offense, nor excepted to the court’s charge. Because the record is adequate for our review and the defendant’s claim is of constitutional magnitude alleging the violation of a fundamental right, we will review his claim. See State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988) (“[i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of the crime charged”).

“[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was misled. ... [A] jury 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). Here, the defendant cannot demonstrate that it was reasonably possible that the jury was misled by the court’s instruction, as our careful review of the entire charge discloses that the court did, in fact, articulate and correctly charge on each essential element of the offense of sexual assault in the third degree, and the court did not, at any point in its instructions, suggest to the jurors that they could find “sexual contact,” as statutorily defined, solely from the act of grabbing the victim’s breast. We therefore conclude that the defendant has failed to establish that a constitutional violation clearly exists that clearly deprived him of a fair trial. Accordingly, his claims fails under Golding’s third prong.

The judgment is affirmed.

       At trial, the defendant was charged with kidnapping in the second degree in violation of General Statutes § 53a-94 (a), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (A), assault of public safety personnel in violation of General Statutes § 53a-167c (a) (1) and interfering with an officer in violation of General Statutes § 53a-167a (a). Although the defendant was convicted of all charged offenses, he has challenged only his conviction on the sexual assault charge.

        Golding held that a defendant may prevail on a constitutional claim unpreserved at trial only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.


author: FLYNN, J.

text:
    MICHAEL AMMIRATA ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF REDDING ET AL.
    (AC 20640)
    Foti, Flyim and Peters, Js.

      Argued November 17, 2003 —
    officially released January 20, 2004

      Peter S. Olson, with whom, on the brief, was Michael N. LaVelle, for the appellant (plaintiff).

      Paul L. Bollo, for the appellee (defendants).
   Opinion

FLYNN, J.

This appeal is before us on remand from the Supreme Court. It ruled in Ammirata v. Zoning Board of Appeals, 264 Conn. 737, 826 A.2d 170 (2003), that this court in Ammirata v. Zoning Board of Appeals, 65 Conn. App. 606, 782 A.2d 1285 (2001), improperly had declined to review, because of an inadequate record, the plaintiffs’ claim that the Redding zoning commission was barred by principles of res judicata and collateral estoppel from asserting zoning violations that it had litigated or had the opportunity to litigate in a prior zoning injunction action against the plaintiffs. We now decide these issues at the direction of the Supreme Court and affirm the judgment of the trial court.

We first address the plaintiffs’ claim that collateral estoppel bars the municipality’s enforcement orders citing a violation of a twenty-five foot paddock setback requirement and ordering the filing of a land management plan.

“Collateral estoppel, or issue preclusion . . . prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim. . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.” (Emphasis in original; internal quotation marks omitted.) R & R Pool & Patio, Inc. v. Zoning Board of Appeals, 257 Conn. 456, 466, 778 A.2d 61 (2001). We have carefully reviewed the copy of the injunction judgment that arose from the earlier case brought against the plaintiffs by Aimee Pardee, the zoning enforcement officer.

“To determine whether two claims are the same . . . we compare the pleadings and judgment in the first action with the complaint in the subsequent action.” Thorpe v. Commissioner of Correction, 73 Conn. App. 773, 777, 809 A.2d 1126 (2002). The stipulated permanent injunction prohibited the plaintiffs from “[maintaining] more than nine horses on the premises, unless the [plaintiffs] shall apply for and receive approval for a land management plan pursuant to the zoning regulations of the town of Redding permitting more than such number of horses . . . .” A review of the underlying complaint on which this judgment was rendered discloses that the issues of the twenty-five foot setback for paddocks and the municipality’s right to request future management plans were never litigated. The complaint dealt only with the number of horses and sign usage. We agree with the defendants that the underlying complaint and injunction judgment rendered on that complaint did not show that the parties had litigated the municipality’s authority under its regulations to require filing of a land management plan in the future.

We therefore conclude that the plaintiffs have failed to prove their claim of collateral estoppel because they have failed to prove that the parties actually litigated either the legality of the twenty-five foot paddock setback requirement or the municipality’s ability to require future land management plans to prevent other violations of the municipal zoning ordinance.

We next turn to the plaintiffs’ claim on appeal that res judicata is a bar to the defendant’s enforcement action. “The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction. ... If the same cause of action is again sued on, the judgment is a bar with respect to any claims relating to the cause of action which were actually made or which might have been made.” (Citations omitted.) Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 559-60, 436 A.2d 24 (1980).

We already have concluded in our analysis of the related defense of collateral estoppel that the parties did not litigate the questions of paddock setbacks or whether the municipality could require the filing of land management plans. There was no prior judgment as to the issues of the paddock and plan filing which would bar those claims. However, in their res judicata claims, the plaintiffs argue that the town of Redding could have litigated the paddock setback issue and the general requirement of the filing of a land management plan in the prior injunction action, and because it did not do so, it was barred by principles of res judicata.

The principal issue to be decided in this appeal is whether a municipality must prosecute all allegations of zoning violations on a premises that might exist at one time, when it has brought an injunction action as to some, or be barred by principles of res judicata from enforcing compliance with ordinances that it did not earlier enjoin. We conclude that in the present factual scenario, the defendant was not so barred, and, therefore, we affirm the judgment of the trial court.

We first observe that the plaintiffs have cited no authority in which res judicata has been applied in the way they argue it acts as a bar prohibiting a municipality’s enforcement of its zoning ordinances.

We next observe that it is the sense of our statutory scheme of land use regulation that a municipal zoning agency is not barred from later enforcement of its zoning regulations by virtue of the fact that it has earlier brought an injunction action against other distinct and separate violations of its ordinances. It is a “settled proposition that zoning regulations in general seek the elimination rather than the enlargement of nonconforming uses.” Raffaele v. Planning & Zoning Board of Appeals, 157 Conn. 454, 458, 254 A.2d 868 (1969). In fact, “[a] nonconforming use may not be established through an existing use of land which was commenced or maintained in violation of a zoning ordinance. ” (Internal quotation marks omitted.) In re Quatraro v. Zoning Board of Appeals, 277 App. Div. 2d 1001, 1002, 716 N.Y.S.2d 508 (2000). If a municipality could be barred from the prosecution of actual zoning violations by the res judicata doctrine merely because it did not join these violations in an earlier injunction proceeding against other violations, the effect would be to expand nonconforming uses of land rather than to eliminate them and, thus, would be contrary to our statutory scheme of zoning.

Furthermore, application of res judicata to administrative decisions is not encrusted with the rigid finality that characterizes the precept in judicial proceedings. Because the traditional concepts of res judicata do not work well in the context of zoning violation enforcement, they should be relaxed to prevent injustice to the municipality and its enforcement abilities. See Grose v. Cohen, 406 F.2d 823, 825 (4th Cir. 1969). “The doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.” (Internal quotation marks omitted.) Isaac v. Truck Service, Inc., 52 Conn. App. 545, 555, 727 A.2d 755 (1999), aff'd, 253 Conn. 416, 752 A.2d 509 (2000).

In addition, we are persuaded that in a case involving multiple, continuing or recurrent violations, a municipality must be permitted to enforce its ordinances. It is important to recognize that zoning violations often come to the attention of enforcement officials by complaint of other property owners ad seriatim. Both the municipality and any neighboring property owners should be able to enforce abatement of violations so that the purpose of zoning to have uniform uses within a given zone is carried out.

We also note that the bar of res judicata that the plaintiffs urge us to adopt would destroy the uniformity of our statutory zoning scheme. General Statutes § 8-2 (a) provides in pertinent part that when a municipality adopts zoning regulations and establishes zoning districts, “[a]ll such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district . . . .” Any need to vary from the uniformity of the regulations can be accomplished only by a variance issued by the zoning board of appeals pursuant to General Statutes § 8-6. It cannot be accomplished by a property owner’s violation of the terms of a regulation and the uniformity it provides, followed by a claim of a vested right to continue the violations because the municipality did not seek to abate it in an earlier enforcement action brought for other reasons.

Finally, a necessary implication of the plaintiffs’ res judicata argument is that a property owner’s statutory right to appeal to the Superior Court from a zoning board of appeals’ refusal to grant relief from an enforcement of a cease and desist order could be frustrated, vitiated and trumped by a municipality bringing a separate injunction proceeding. Such a result would offend due process rights to appeal, which the General Assembly guaranteed to aggrieved property owners when it enacted General Statutes § 8-8.

We do not have a situation before us in which the municipality brought two successive actions at law and where the present plaintiffs sought to bar the second such action. The municipality brought the injunction first in September, 1998, concerning the number of horses and the use of signs when the plaintiffs did not abate violations, which were cited in the cease and desist order. While that injunction was pending, the municipality issued a cease and desist order as to the twenty-five foot paddock setback. From that, the plaintiffs appealed to the zoning board of appeals, and when they obtained no relief, they brought a statutory appeal under § 8-8.

The exclusive remedy to object to a cease and desist order is an administrative appeal to a zoning board of appeals and potentially to the Superior Court, pursuant to General Statutes §§ 8-6,8-7 and 8-8. A property owner must exhaust his administrative remedies before he will be allowed to use an injunction to resolve the dispute. See Cretaro v. Equitec Real Estate Investors Fund XII, 6 Conn. App. 317, 318-19, 505 A.2d 22 (1986); Totino v. Zoning Board of Appeals, 41 Conn. Sup. 398, 401, 578 A.2d 681 (1990). The “rationale for the exhaustion doctrine is: (1) to effectuate the legislative intent that the issue in question be handled in the first instance by local administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the local board’s judgment . . . and (2) to relieve courts of the burden of prematurely deciding questions that may be resolved satisfactorily through the administrative process.” (Internal quotation marks omitted.) McDonnell v. Falco, 66 Conn. App. 508, 513, 784 A.2d 1051 (2001). If issues that could have been raised in an injunction proceeding are barred by res judicata in an ongoing administrative zoning appeal, the result would be a circumvention of the appeal process by either the property owner or the municipality, in effect allowing the injunction to bypass the statutory appeal on issues that were never litigated or decided. This would weaken a municipality’s zoning enforcement abilities, enlarge the number of nonconforming uses in a municipality and stand in opposition to our statutory scheme of land use regulation and statutory appellate process.

We conclude that where there is no finding or record of piecemeal enforcement resulting in harassment of a property owner, a municipality does not have to prosecute all allegations of zoning violations existing on a premises at one time or else risk being barred by principles of res judicata as to any violations it later seeks to prosecute that it did not earlier enjoin.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court did not address either the claim of collateral estoppel or res judicata in its decision, nor did it explain why it did not do so. Neither party sought an articulation.
      On September 9, 2003, this court ordered simultaneous supplemental briefs from the parties addressing (1) what particular portions of the record would allow this court to decide the collateral estoppel and res judicata issues, and (2) factual matters to which the parties had agreed when they were before the Supreme Court.
      The plaintiffs never pleaded that the zoning enforcement action against them, which was the subject of their administrative appeal, was barred by the effect of the stipulated judgment of July 23, 1999, nor did they plead that the municipality’s enforcement action was collaterally estopped by that same judgment. Although permitted to do so pursuant to General Statutes § 8-8 (i) and (k), neither the plaintiffs nor the defendants requested that the trial court amend or supplement the return of record with the stipulated judgment rendered in the separate injunction case, nor did they ask the court to take judicial notice of it, nor was a certified copy of it entered into evidence. Although the plaintiffs, who bore the burden of proof, followed none of these procedures in the trial court, they did attach a certified copy of the stipulated judgment to their brief. While it is not clear from the supplemental appellate briefs we ordered on remand exactly what the parties agreed to before the Supreme Court, we note from the transcript of the oral argument made on appeal from our decision to the Supreme Court that the parties did agree that the trial court had necessarily decided the issues of collateral estoppel and res judicata.

       The timeline for the two actions is as follows:
      INJUNCTION
      September, 1998 — Zoning enforcement officer files action for injunction regarding number of horses and sign usage.
      APPEAL
      October 21, 1998 — Zoning enforcement officer sends a letter requiring that the plaintiffs file a land management plan and abide by the twenty-five foot paddock setback.
      February 11,1999 — Cease and desist order sent to plaintiffs regarding paddock setback and failure to file a land management plan.
      February 25, 1999 — Plaintiffs file an appeal from the cease and desist order with the zoning board of appeals.
      March 16, 1999 — Appeal denied.
      April 7,1999 — Plaintiffs appeal the denial by the zoning board of appeals to the trial court.
      July 23, 1999 — Stipulated injunction judgment limiting the number of horses to nine and ordering compliance with sign usage ordinances.
      January 7, 2000 — Trial court upheld zoning board of appeals decision.

       The mere fact that Pardee, in her capacity as the zoning enforcement officer for the town of Redding, and not the zoning board was named in the earlier action does not bar this appeal because a judgment in connection with an agency officer in his or her official capacity is binding on the agency. See Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 561, 436 A.2d 24 (1980).

       In addition, this court previously has determined, and no certification to appeal was granted as to the determination, that a nonconforming use does not exempt the plaintiffs from the zoning requirement that they submit a land usé plan because a municipality may regulate a nonconforming use under its police powers. Ammirata v. Zoning Board of Appeals, supra, 65 Conn. App. 612-15; see Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 242-43, 662 A.2d 1179 (1995).

       “For res judicata purposes, a judgment is final if no further judicial action by [the] court rendering judgment is required to determine [the] matter litigated.” (Internal quotation marks omitted.) Marone v. Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998). “A final award is [o]ne which conclusively determines the matter submitted and leaves nothing to be done except to execute and carry out the terms of [the] award.” (Internal quotation marks omitted.) Id. In this case we are presented with two actions that simultaneously were pending. In pending actions, it is not required that the judgment be rendered before the subsequent action is commenced, but only that final judgment is rendered before the judgment of the second action becomes final. See 1 Restatement (Second), Judgments § 14, comment (a) (1982).

       We have nothing in the record before us to indicate that the municipality’s purpose was to harass the plaintiffs by enforcing its ordinances in two separate actions.