author: Landau, J.

text:
    State of Connecticut v. Michael Stinson
    (10306)
    Lavery, Landau and Freedman, Js.

      Argued September 29
    decision released November 23, 1993

      Paul Martin Tymniak, special public defender, with whom, on the brief, were David A. Kollmann, and Christine M. Mihalik, special public defenders, for the appellant (defendant).

      Linda N. Howe, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ bSa-Bña and 53a-55 (a) (l). The defendant claims that the trial court improperly con-eluded that the state did not fail to disclose exculpatory evidence in a timely manner so as to prejudice the defendant’s right to a fair trial. We agree with the trial court and affirm the judgment.

The jury could have reasonably found the following facts. At approximately 7 p.m., on July 18, 1989, the defendant and Richard Gardner were selling drugs to a third party at the P. T. Barnum apartment complex in Bridgeport. During the course of the drug transaction, the defendant and Gardner argued over money and the defendant announced his intention to return and shoot Gardner.

Gardner went to the Barnum apartment of a friend, Tony Bell, following the argument with the defendant. He told Bell that “some guy wanted to shoot him over a couple of dollars.” When Gardner left the building, he was followed by the defendant, who was carrying a handgun. Bell followed them, and saw and heard Stinson fire several shots in the victim’s direction. When the defendant ran away, Bell discovered Gardner facedown in the street with a bullet wound in his back. Another friend of the victim, Robert Bowens, brought Gardner to the hospital where he was pronounced dead at approximately 7:30 p.m.

Several witnesses gave statements to the police implicating the defendant. Six bullet casings were recovered from the crime scene. All were fired from the same gun and matched the caliber and manufacturer of the bullet taken from the victim’s body.

The defendant claims that, in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the state’s untimely disclosure of material evidence favorable to him violated his constitutional right to a fair trial. He argues that Bowens’ testimony, which contradicted Bell’s version of the events leading up to Gardner’s death, was exculpatory information and not timely disclosed to the defendant, and that, by the time he discovered this evidence in trial preparation, he had been denied the effective use of it, thereby depriving him of a fair trial. The state maintains that it did not disclose evidence in an untimely manner. It claims that all of the police reports and other material in the prosecution’s possession were disclosed to the defense when requested, and that its file did not contain information that alerted it to the possibility that Bowens’ knowledge was favorable to the defendant’s case.

Further facts are necessary for the resolution of this claim. Prior to trial, the defendant moved to compel the state to disclose all exculpatory evidence pursuant to Brady v. Maryland, supra. The motion was granted and the state complied. The disclosures included police reports that stated that Bowens had transported the victim to the hospital and that he had heard shots fired. Bowens did not give a signed statement to the police before or after the defendant’s arrest because he was reluctant to involve himself with the case.

At trial, Bowens testified for the defense as to his recollection of the events. There were some discrepancies in the testimony of Bowens and Bell. Bowens testified that he was talking to the victim when the defendant appeared and chased the victim. He did not see a weapon in the defendant’s hand as the defendant ran past him. Bowens claimed that when he heard shots, Bell was visible in a second floor window of the adjacent apartment building, and not outside following the chase as Bell stated in his testimony.

Whether the state made a late disclosure is in dispute; we will assume, arguendo, that the state’s disclosure was late. It is clearly established that Brady v. Maryland, supra, prohibits the suppression of evidence that is favorable to the defendant and material to either the defendant’s guilt or punishment. Id., 87. “The purpose of the rule is to ensure that a defendant is not deprived of a fair trial. United States v. Bagley, 473 U.S. 667, 674-75, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Evidence is not suppressed within the meaning of Brady, however, if it is disclosed at trial as it was here. State v. Rasmussen, 225 Conn. 55, 91, 621 A.2d 728 (1993); State v. Walker, 214 Conn. 122, 126, 571 A.2d 686 (1990); State v. Dolphin, 195 Conn. 444, 455-56, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985). In such a situation, the defendant must demonstrate that the timing of the disclosure prejudiced him to the extent that he was deprived of a fair trial. State v. Walker, supra, 127; State v. Reddick, 197 Conn. 115, 122, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986). The central issue in this claim, therefore, is whether the evidence was disclosed in sufficient time for the defendant to have effectively used it at trial. State v. Pollitt, 199 Conn. 399, 414, 508 A.2d 1 (1986). This is essentially a factual determination for the trial court. Id., 414, 416-17; see State v. Pollitt, 205 Conn. 132, 531 A.2d 125 (1987).” State v. Harris, 32 Conn. App. 476, 478-79, 629 A.2d 1166 (1993).

The defendant claims that the prejudicial late disclosure deprived him of a fair trial. He asserts that the state’s late disclosure limited his ability to locate and prepare Bowens for trial and that he was limited in any investigations that might have produced other evidence corroborating Bowens’ version of the facts. The defendant also claims that earlier disclosure would have allowed the defense to cross-examine Bell more effectively by revealing inconsistencies in his testimony. We are not persuaded by the defendant’s argument.

Although Bowens’ testimony was not suppressed as the term is used in Brady, we still must determine whether the late disclosure of evidence prejudiced the defendant. “[T]he rules governing suppressed evidence are instructive and applicable in our determination of prejudice. Accordingly, we evaluate the [defendant’s] claim by examining the evidence within the broad context of the entire trial. ‘[T]he courts must avoid concentrating on the suppressed evidence in isolation. Rather, we must place it in the context of the entire record. Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory.’ State v. Shannon, 212 Conn. 387, 399-400, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).” State v. Harris, supra, 481-82.

The defendant’s culpability in the death of the victim was clearly established at trial with or without Bell’s testimony. Lawrence Gathers, Kennneth Geter and Jerry Johnson all testified that, on the evening of the shooting, the defendant chased the victim and was carrying a weapon. They heard shots and discovered the victim fatally wounded. The defendant’s employer, Frank Sparks, was present at the crime scene that evening. He also observed the defendant chase and fire a gun at the victim. The defendant’s claim does not substantiate a claim of prejudice. The statement in question differs from the testimony of only one witness with regard to that witness’ location. The jurors’ attention was drawn to the inconsistent nature of the witnesses’ testimony, giving them the opportunity to decide the issue of credibility. We conclude that the timing of disclosure of Bowens’ testimony was not prejudicial to the defendant and, therefore, did not deprive him of a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-55a (a) provides “A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.”

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

       “The unmistakable tone of Brady is that evidence required to be disclosed must be disclosed at a time when it can be used. ... No denial of due process occurs if Brady material is disclosed ... in time for its effective use at trial. . . . State v. Pollitt, 199 Conn. 399, 413-14, 508 A.2d 1 (1986); State v. Harris, 32 Conn. App. 476, 479, 629 A.2d 1166 (1993).” (Citations omitted; internal quotation marks omitted.) State v. Daugaard, 32 Conn. App. 483, 491, 630 A.2d 96 (1993).

       Bowens’ version of the events contradicts only Bell’s testimony. It does not contradict the testimony of other witnesses to the crime. Therefore, if earlier disclosure had allowed the defendant to exploit Bowens’ version to the point of fully discrediting Bell, the remaining evidence still supports the verdict.


source: Caselaw Access Project

author: Cretella, J.

license: Public Domain

text:
    Tracy Fisher v. State of Connecticut
    (11570)
    Foti, Schaller and Cretella, Js.
    Argued October 4
    decision released November 30, 1993

      Pamela A. Mitchell, with whom, on the brief, was Carolyn Koch, for the appellant (petitioner).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and James E. Thomas, state’s attorney, for the appellee (state).
   Cretella, J.

The petitioner was convicted, after a jury trial, of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The judgment of conviction was sustained on appeal to the Supreme Court. State v. Fisher, 210 Conn. 619, 556 A.2d 596 (1989).

Subsequent to the petitioner’s conviction, at the trial of his coconspirator, Michael Walker, the state called Dion Smith to testify as a rebuttal witness. At the time of the petitioner’s trial four months earlier, Smith could not be located to testify. Smith’s testimony conflicted with that of Lehman Brown, the state’s only eyewitness at the petitioner’s trial, who had testified that he observed the petitioner and his coconspirator commit the crimes of which they were convicted. Smith’s testimony prompted the petitioner to file a petition for a new trial, pursuant to General Statutes § 52-270 and Practice Book § 904, based on newly discovered evidence. Following an evidentiary hearing, the trial court denied the petition, ruling that the petitioner failed to meet his burden of proving the probability that the newly discovered evidence would change the result in a second trial. We agree.

“The standard that governs the granting of a petition for a new trial based on newly discovered evidence is well established. The petitioner must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Asherman v. State, 202 Conn. 429, 434, 521 A.2d 578 (1987); see also Kubeck v. Foremost Foods Co., 190 Conn. 667, 670, 461 A.2d 1380 (1983); Burr v. Lichtenheim, 190 Conn. 351, 355, 460 A.2d 1290 (1983). “This strict standard is meant to effectuate the underlying ‘equitable principle that once a judgment is rendered it is to be considered final,’ and should not be disturbed by posttrial motions except for a compelling reason.” Asherman v. State, supra, quoting Steve Viglione Sheet Metal Co. v. Sakonchick, 190 Conn. 707, 713, 462 A.2d 1037 (1983); see also Besade v. Interstate Security Services, 212 Conn. 441, 452, 562 A.2d 1086 (1989). “In determining the potential impact of new evidence, the trial court must weigh that evidence in conjunction with the evidence presented at the original trial.” Asherman v. State, supra; see also Kubeck v. Foremost Foods Co., supra, 669. “It is within the discretion of the trial court to determine, upon examination of all the evidence, whether the petitioner has established substantial grounds for a new trial, and the judgment of the trial court will be set aside on appeal only if it reflects a clear abuse of discretion.” Asherman v. State, supra; see also Kubeck v. Foremost Foods Co., supra, 670. The petitioner has not established such abuse.

The petitioner seeks, by his petition for a new trial, to attack the credibility of a witness who identified him as a participant in the crime. He seeks a new trial to discredit Brown. It is within the province of the jury, as the trier of fact, to determine credibility and assess the weight to be accorded the evidence submitted. State v. Baldwin, 224 Conn. 347, 364, 618 A.2d 513 (1993); State v. Battista, 31 Conn. App. 497, 505, 626 A.2d 769, cert. denied, 227 Conn. 907, 632 A.2d 696 (1993); State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990). The jury in this case had ample opportunity to observe the conduct, demeanor and attitude of the witnesses and to assess their credibility at trial. By convicting the petitioner, the jury accepted the testimony of three witnesses who identified the petitioner as a participant in the crime. It is not the function of the trial court, on a petition for a new trial, to consider whether the jury was correct in its evaluation of the credibility of witnesses.

New trials are not granted upon newly discovered evidence that discredits a witness unless the evidence is so vital to the issues and so strong and convincing that a new trial would probably produce a different result. Burr v. Lichtenheim, supra. The trial court reviewed and considered all of the evidence including the impact of Smith’s testimony in the Walker trial. Such review was well within the discretion of the trial court, which properly concluded that the evidence was not so compelling as to warrant a new trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       A jury convicted Walker of murder in connection with the same incident. The Supreme Court sustained Walker’s conviction. State v. Walker, 214 Conn. 122, 571 A.2d 686 (1990).

       Lehman Brown is also known as Landon Brown.


author: Dupont, C. J.

text:
    State of Connecticut v. Rodney J. Suplicki
    (12053)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 21
    decision released November 30, 1993

      Kevin A. Randolph, deputy assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Barbara Hoffman, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment following his conviction by a jury of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). His sole claim is that, contrary to the mandate of General Statutes § 54-84 (b), the trial court failed to instruct the jury that no adverse inference could be drawn against him because of his failure to testify at trial. We agree that the omission of that instruction was improper, reverse the defendant’s conviction and remand the case for a new trial.

The jury reasonably could have found certain relevant facts. On April 1,1992, at approximately 9 p.m., two Clinton police officers were dispatched to the Holiday Motel in Clinton, where Vagshi Keshwala, the motel manager, complained that he had been assaulted by the defendant. Keshwala told the officers that he had gone to collect rent from the defendant, a tenant of the motel, when the defendant pulled Keshwala into his room and punched him in the face. Both officers reported that Keshwala’s eyeglasses were broken and his face was swollen and discolored. He did not request medical attention, however. When confronted by the two officers, the defendant denied striking Keshwala.

In addition to describing the events of April 1,1992, Keshwala testified that he suffered from a preexisting medical condition that caused pain and discomfort in his face, but he did not mention swelling and discoloration as symptoms. The defendant did not testify.

The defendant claims on appeal that the trial court erroneously failed to give a “no adverse inference” instruction to the jury in accordance with the requirements of General Statutes § 54-84 (b), and that as a consequence he should be awarded a new trial. Section 54-84 (b) mandates: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” It is undisputed that no such language was included in the court’s charge to the jury, and that it was improper for the court not to give that instruction. State v. Sinclair, 197 Conn. 574, 583-84, 500 A.2d 539 (1985). It is also undisputed that the defendant made no objection to the omission of the “no adverse inference” instruction at trial. He attempts to raise this issue for the first time on appeal under either the “plain error” doctrine or the four-pronged test for constitutional error enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In State v. Thurman, 10 Conn. App. 302, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), we were faced with a defendant who, like the defendant in this case, did not testify at trial and neither requested a “no adverse inference” instruction pursuant to General Statutes § 54-84 (b) nor objected to the court’s failure to provide one. The defendant in Thurman claimed on appeal that such failure constituted a violation of his rights to due process and against self-incrimination under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, and a violation of his rights under § 54-84 (b). We found his constitutional claim to be reviewable under State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973), and his statutory claim to be reviewable under the plain error doctrine. State v. Thurman, supra, 306; see State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988); State v. Sinclair, supra, 582; State v. Tatem, 194 Conn. 594, 595-96, 483 A.2d 1087 (1984); State v. Burke, 182 Conn. 330, 331, 438 A.2d 93 (1980); see also State v. Carpenter, 19 Conn. App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989).

It is clear from existing case law that the defendant’s request for plain error review must be granted. State v. Carpenter, supra, 55; State v. Thurman, supra, 308-10. “[Njoncompliance with § 54-84 (b) is plain error .... We have regularly characterized as error any but the most minor departure from the language that § 54-84 (b) requires.” State v. Sinclair, supra, 582-83. Cases holding the failure to instruct the jury properly under § 54-84 (b) to be plain error include State v. Townsend, supra; State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986); State v. Sinclair, supra, 582; State v. Tatem, supra, 595; State v. Carpenter, supra; State v. Thompson, 17 Conn. App. 490, 493-94, 554 A.2d 297 (1989); and State v. Thurman, supra, 309. We hold that the trial court’s failure to give the statutorily required instruction was plain error in this case as well.

We next consider the state’s argument that the failure of the trial court to instruct the jury properly should be considered harmless error in light of what the state claims to be overwhelming evidence against the defendant. A harmless error analysis has been undertaken in cases in which a “no adverse inference” instruction that deviated from the language of the statute was given. See State v. Townsend, supra; State v. Cobb, supra; State v. Tatem, supra; State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982); State v. Thompson, supra; State v. Carpenter, supra.

In cases where the trial court totally omitted the “no adverse inference” instruction, however, the propriety of a harmless error analysis has been questioned, although the issue has not been expressly decided. “It would be entirely reasonable to conclude that the principle of harmless error may be inconsistent with the unconditional language of the statute that the legislature has enacted for the protection of the right not to testify.” State v. Sinclair, supra, 585; see also State v. Cohane, 193 Conn. 474, 484, 479 A.2d 763, cert. denied, 496 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984).

In State v. Thurman, supra, 310-13, this court observed that State v. Burke, 182 Conn. 330, 438 A.2d 93 (1980), and. State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980), had determined that the complete omission of a “no adverse inference” instruction was reversible error without consideration of a harmless error analysis. We then noted that State v. Sinclair, supra, 585-86, considered the applicability of harmless error analysis in such a case, but expressly left the question of its propriety open. We also declined to rule on that question, determining that even if a harmless error analysis were undertaken, the state had not proven beyond a reasonable doubt that the trial court’s noncompliance with § 54-84 (b) was harmless. State v. Thurman, supra, 313-16.

We now rule on the question and hold that the total omission of the “no adverse inference” instruction is plain error that is not subject to a harmless error analysis. The unconditional language of the statute is a legislative mandate and the failure to use that language is a pivotal aspect of the defendant’s privilege against self-incrimination. The statutory language is based on a constitutional right, and its omission can never be harmless. See Arizona v. Fulminante, U.S. , 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986); State v. Hamilton, 30 Conn. App. 68, 76-78, 618 A.2d 1372, cert. granted on other grounds, 225 Conn. 910, 621 A.2d 290 (1993); State v. Payne, 12 Conn. App. 408, 414-15, 530 A.2d 1110 (1987).

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

In this opinion the other judges concurred.

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), was the precursor to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). State v. Thurman, 10 Conn. App. 302, 523 A.2d 891 (1987), was decided prior to the release of the Golding decision.

       The United States Supreme Court has yet to pass on the question of whether, after a request by a defendant, a trial judge’s refusal to give a “no adverse influence” instruction in violation of Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981), can ever be harmless error. James v. Kentucky, 466 U.S. 341, 351-52, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984); see also Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) (some constitutional violations are subject to harmless error analysis). In Hunter v. Clark, 934 F.2d 856, 860 (7th Cir.), cert. denied, U.S. , 112 S. Ct. 388, 116 L. Ed. 2d 338 (1991), the Seventh Circuit decided in a six to five decision that in light of overwhelming evidence against the defendant, the refusal of the state trial judge to provide a requested “no adverse influence” instruction was harmless error. See also Finney v. Rothgerber, 751 F.2d 858, 863 (6th Cir.), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 310 (1985); Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir. 1984); United States v. Eiland, 741 F.2d 738, 743 (5th Cir. 1984). These cases, however, do not deal with whether the omission in a jury charge of a statutorily mandated “no adverse inference” instruction is subject to a harmless error analysis.


author: Per Curiam.

text:
    Mac’s Car City, Inc. v. Pelino S. DiLoreto et al.
    (12373)
    Foti, Landau and Heiman, Js.
    Argued November 4
    decision released November 30, 1993

      Vincent F. Sabatini, with whom was Paul M. Cramer, for the appellants (named defendant et al.).

      Michael P. Barry, for the appellee (plaintiff).
   Per Curiam.

The defendants Pelino DiLoreto and Joanne DiLoreto appeal from the summary judgment rendered against them on the plaintiff’s complaint and on their special defenses in this foreclosure action.

In its complaint, the plaintiff sought foreclosure of a judgment lien placed on real estate, possession of the premises, attorney’s fees, costs, a receiver of rents and such other relief as the court deemed equitable. In its judgment, the trial court decreed that there was no genuine issue of material fact and that the plaintiff was entitled to summary judgment. The trial court has yet to fix the amount of the debt, to determine the amount of attorney’s fees or even to determine whether the foreclosure shall be strict or by sale. In short, the court did not determine the myriad of issues that must be resolved in order to render an effective final judgment of foreclosure.

This matter is controlled by our decision in Essex Savings Bank v. Frimberger, 26 Conn. App. 80, 597 A.2d 1289 (1991). A judgment such as the one rendered herein is interlocutory in character and is not a final judgment from which an appeal properly lies. Id., 80-81. Further, the interlocutory judgment in this case does not fall within either of the narrowly defined exceptions to the general rule that proscribes appeals from judgments that are not final. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The lack of a final judgment implicates the authority of this court to hear the appeal because it is a jurisdictional defect. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 86, 495 A.2d 1063 (1985); Southington v. Pierce, 29 Conn. App. 716, 722, 617 A.2d 929 (1992). Even though the parties may expressly agree to have this case decided by us, their action cannot confer jurisdiction on this court where it does not exist. State v. Curcio, supra, 30. Thus, even where the appellee fails to bring to our attention the lack of final judgment, either by motion to dismiss or in its brief, or at oral argument, we must, nonetheless, act sua sponte. Essex Savings Bank v. Frimberger, supra, 81.

The appeal is dismissed, sua sponte, for lack of a final judgment.

       While the plaintiff’s complaint names other defendants, they are not parties to this appeal. Therefore, we refer to Pelino DiLoreto and Joanne DiLoreto as the defendants.


author: Foti, J.

text:
    State of Connecticut v. James Grant, Jr.
    (11421)
    Foti, Lavery and Heiman, Js.
    Argued September 28
    decision released November 30, 1993

      Herbert R. Scott, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Cara F. Eschuk, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sexual assault in the second degree in violation of General Statutes § 53a-7V and four counts of risk of injury to a child ■ in violation of General Statutes § 53-21. The defendant claims that the trial court improperly (1) permitted him to be tried jointly for offenses arising out of two different cases, (2) held that penetration of the vagina of a child with a finger or fingers constituted an act of sexual assault in the second degree, and (3) allowed the admission of certain photographic evidence. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. The defendant and his wife were married in 1973 and separated in 1988. The defendant moved into the house of his mother and stepfather in Waterbury and a visitation schedule was agreed on allowing him to visit with his four children, a son and three daughters. Visitation included overnight stays on weekends at his parents’ home.

Around Easter, 1988, the defendant began sexually molesting his daughter A, who was then seven years old. It began by the defendant taking A into his bedroom, alone, and tickling her between her legs while she was clothed. He told her she was all right when she told him to stop and began crying. A couple of weeks later, he called A into his bedroom, took her pants off and started playing with her vagina by putting his fingers inside. After the incident, A refused to go upstairs with the defendant when asked until he began yelling at her. Sometimes, she would resist further by going into the bathroom. The defendant would knock on the door and tell her to come out; when she did, he would take her into the bedroom, shut the door, and put his fingers inside her vagina. When he did this A would cry and tell him to stop and “that she did not like that.” The defendant responded that “it was all right; that [she] was his little girl; [and] that he wasn’t going to hurt her.”

Thereafter, the defendant began inserting his penis inside A’s vagina. A would sit on the bed and the defendant would tell her to lie down. When A complied, the defendant took off her pants, took down his own pants, and spread A’s legs apart. The child would close her eyes; she knew her father was putting his penis inside her because “it was hard,” “it hurt” and “it didn’t feel like his fingers anymore.” The defendant positioned himself above her, keeping himself up, pushing on the bed so he would not fall on her, and moved his penis back and forth. A could feel the bed move. She cried because it hurt, more than when the defendant put his fingers inside her. The defendant told A she was “a big girl” and that “everything was going to be all right.” After about five minutes, the defendant pulled up his pants and went into the bathroom. A noticed that the bed was a little wet but she did not know why it was wet. After the defendant left the bathroom, A went in and cleaned herself up with a washcloth. Sexual attacks occurred on almost every visit until sometime in August or September, 1988.

On March 4,1991, A gave a statement to a police officer about the sexual assaults. She had not told anyone about the episodes earlier because she did not want to talk about it and did not want anyone, including her mother, to know. She did not tell her mother because she did not “really think it was really any of her business.”

The younger victim, T, testified about two incidents in which the defendant penetrated her vagina using a washcloth while he was bathing her. One of the incidents occurred while T and her siblings were visiting the defendant at his parents’ home in Waterbury. T was six years old at the time. On that occasion, the defendant touched her in the vagina with a washcloth. The defendant washed her and she complained that it hurt because he pushed the washcloth in her vagina. She told him that it hurt and the defendant responded that it was okay. T did not think he was just washing her because he pushed the washcloth “really hard.”

I

The defendant first claims that the trial court improperly granted the state’s motion to consolidate. He argues that combining the two cases, which were extremely detrimental to each other, so prejudiced the jury as to deprive him of his right to due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.

General Statutes § 54-57 and Practice Book § 829 permit a defendant to be tried jointly on charges arising from separate cases. “When a defendant stands accused of two or more similar offenses, they may be joined at trial if they are based on related acts that evince a common scheme, intent or motive. State v. Greene, 209 Conn. 458, 464-65, 551 A.2d 1231 (1988). The question of joinder or severance rests on the sound discretion of the trial court. State v. Boscarino, 204 Conn. 714, 720, 529 A.2d 1260 (1987); State v. Carpenter, 19 Conn. App. 48, 62, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989). The defendant bears the heavy burden of showing that a denial of severance resulted in substantial injustice beyond the curative power of jury instructions. State v. Herring, 210 Conn. 78, 95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). Whether a joint trial will be substantially prejudicial to the rights of the defendant means something more than that it will be less advantageous to the defendant. State v. Bell, 188 Conn. 406, 411, 450 A.2d 356 (1982).” State v. Rose, 29 Conn. App. 421, 429-30, 615 A.2d 1058, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992).

Evidence that the defendant had engaged in sexual activity with one daughter would have been admissible in a trial involving the other daughter for purposes of showing a common scheme or plan. See State v. Morowitz, 200 Conn. 440, 444, 512 A.2d 175 (1986); State v. Hart, 26 Conn. App. 200, 202-203, 599 A.2d 748 (1991). The incidents were sufficiently similar to demonstrate a pattern of action. See State v. Hart, supra. “Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.” (Emphasis in original.) State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

“A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” Id. The evidence in this case was presented to the jury in an orderly fashion, distinguishing the acts involving each child in a logical and separate manner. The two cases were presented separately. Each of the seven counts was tendered independently, with separate instructions from the court to the jury as to the elements of each, and an indication as to which child a particular count referred. Our review of the record also discloses that the matters were not so complex, nor so brutal or shocking, in the sense of being inordinately violent or callous, as to have mandated severance.

The trial court did not manifestly abuse its discretion in granting the state’s motion to consolidate; the defendant was not substantially prejudiced by joinder of the offenses for a single trial.

II

The defendant next claims that the evidence was insufficient to sustain a conviction for sexual assault in the second degree under § 53a-71 because penetration of the vagina with a finger or fingers does not fall within the definitions of sexual intercourse as defined by General Statutes § 53a-65 (2). He argues that a finger cannot be an “object manipulated by an actor.” While the defendant concedes that a dictionary definition of “object” may include a finger, he argues that, within the meaning of the statute, the word “manipulated” causes the word “object” to mean something separate and apart from the hand. We do not agree.

“It is fundamental that statutory construction requires us to ascertain the intent of the legislature and to construe the statute in a manner that effectuates that intent.” All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194, 567 A.2d 1156 (1989); Green v. Warden, 178 Conn. 634, 637-38, 425 A.2d 128 (1979). A statute must be applied as its words direct. New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 785 (1975). Words in a statute must be given their plain and ordinary meaning and be interpreted in their natural and usual sense unless the context indicates that a different meaning was intended. Caldor, Inc. v. Heffernan, 183 Conn. 566, 570, 440 A.2d 767 (1981).

The defendant urges us to adhere to a strict construction and to adopt a narrow and technical definition of “manipulate” to mean “operate or treat by the hand.” In the context of the statute, the phrase “object manipulated by an actor” does not lead us to conclude that because a finger is part of the hand, it cannot be operated or treated by the hand. We do not go beyond the plain words of the statute. Even accepting the definition proposed by the defendant, since “manipulate” is not expressly defined in the penal code, we cannot conclude that an actor cannot manipulate his finger by using his hand.

“Although we recognize the fundamental principle that criminal statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent.” (Internal quotation marks omitted.) State v. Stevens, 224 Conn. 730, 736-37, 620 A.2d 789 (1993). “In order to ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. . . .” (Citations omitted.) Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 1 (1990). A construction that fails to attain a rational and sensible result bearing directly on the purpose the legislature sought to achieve must be avoided. Jones v. Mansfield Training School, 220 Conn. 721, 726, 601 A.2d 507 (1992). When interpreting a statute, “we will adopt the more reasonable construction over one that is unreasonable.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297 (1991).

The general purpose of the statute in question is to protect children from being sexually violated. The statute proscribes sexual intercourse — the act of penetration, however slight. Thus, the statutory purpose is met regardless of what particular object is used to accomplish that penetration. Further, the statute elsewhere specifically prohibits penetration using other parts of the actor’s body. It would be unreasonable to conclude that penetration by an actor’s tongue or penis constitutes sexual intercourse, while penetration by a finger does not. Statutes should be construed so as not to reach an absurd or unreasonable result. State v. Campbell, 180 Conn. 557, 563, 429 A.2d 960 (1980). The trial court properly concluded that penetration of the child’s vagina by the defendant’s finger constituted sexual intercourse by an “object manipulated by an actor” for purposes of the statute.

Ill

Lastly, the defendant claims that the trial court improperly admitted into evidence photographs of the victim’s vagina taken almost three years after the alleged assault.

At trial, the state sought to have admitted into evidence two photographs of A’s vagina taken with a colposcope in support of the testimony of a witness, the nurse who examined A at the Child Abuse Diagnostic Clinic at St. Francis Hospital in February and March, 1991. The defendant argued that the evidence was grossly inflammatory, prejudicial and remote. The court allowed the evidence, having determined that it was relevant and that its probative value far outweighed its prejudicial effect.

“The trial court is given broad discretion in determining the relevancy of evidence and its decision will not be disturbed absent a clear abuse of that discretion.” State v. Holliman, 214 Conn. 38, 50, 570 A.2d 680 (1990). The determination of remoteness, like relevancy, is left to the trial court’s broad discretion. State v. Payne, 219 Conn. 93, 112, 591 A.2d 1246 (1991); State v. Maldonado, 193 Conn. 350, 365, 478 A.2d 581 (1984). “The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992).

The defendant has assumed a heavy burden in seeking to reverse the exercise of judicial discretion. The purpose of the offer was to demonstrate, through the photographs, the physical indications on the hymen, tending to show penetration. Under the circumstances of this case, the trial court could reasonably have concluded that the effects of vaginal penetration of a seven year old child still present and observable through photographs taken at the age of ten, were relevant to a material fact, highly probative, and not remote. We cannot conclude that the trial court abused its discretion in admitting the photographs.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-71 provides in pertinent part: “(a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”
      Section 53a-71 was amended by Public Acts 1993, No. 93-340, § 2. Since the defendant was convicted under the prior version of the statute and the amendment does not affect the statutory construction issue on appeal, we deal only with the language of the statute prior to its amendment.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does an act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
      Five counts, two counts under General Statutes § 53a-71 and three counts under § 53-21, involved the victim A, while the remaining two counts, one each under §§ 53a-71 and 53-21 involved the victim T.

       T testified to a second, similar incident that took place in Philadelphia. This incident was not at issue in the case since the court instructed the jury that Pennsylvania crimes are not actionable in Connecticut.

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 829 provides: “The judicial authority may, upon his own motion or the motion of any party, order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.”

       See State v. Boscarino, 204 Conn. 714, 723, 529 A.2d 1260 (1987) (duration and complexity of trial enhances likelihood that jury would weigh evidence against defendant cumulatively, rather than independently in each case).

       See State v. Boscarino, 204 Conn. 714, 723-24, 529 A.2d 1260 (1987) (holding that trial court improperly consolidated four separate incidents of first degree sexual assault involving use of knife); State v. Silver, 139 Conn. 234, 240-41, 93 A.2d 154 (1952) (“Substantial injustice might result to a defendant where the evidence of one of the several crimes charged will show such brutality on his part that it is apt to arouse the passion of the jury against him to such an extent that they probably would not give fair consideration to the evidence relating to the other charges. Such a situation, however, is rare.”).

       General Statutes § 53a-65 provides in pertinent part: “DEFINITIONS. As used in this part, except section 53a-70b, the following terms have the following meanings:
      “(1) ‘Actor’ means a person accused of sexual assault.
      “(2) ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. . . .”

       We note that only one count, count two of the substitute information, which involved the victim A, alleges penetration of the vagina by “finger or fingers.” Count six, involving the victim T, charges penetration with “an object.” The evidence presented could reasonably have allowed the jury to find that object to be a washcloth. The defendant does not contest that a washcloth can be an object.


author: O’Connell, J. Dupont, C. J.,

text:
    State of Connecticut v. Eddie Ford
    (11940)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued September 30
    decision released November 30, 1993

      Robert G. Golger, special public defender, for the appellant (defendant).

      Jacqueline J. Footman, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Clark, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), robbery in the second degree in violation of General Statutes § 53a-135 (a) (l) and tampering with a witness in violation of General Statutes §§ 53a-151 and 53a-8. The defendant was acquitted of a second count of tampering with a witness.

The defendant claims that (1) his conviction of both robbery in the first degree and robbery in the second degree violated his privilege against double jeopardy, (2) there was insufficient evidence to convict him of tampering with a witness and (3) there was insufficient evidence to support a jury charge of tampering with a witness on the theory of accessory liability. We affirm the trial court’s judgment in part and reverse it in part.

The jury could have reasonably found the following facts. On January 30,1991, the defendant and a companion entered Store 24 located at 25 Broadway in New Haven. The defendant approached clerk Carlos Robles, pointed a knife at him and ordered him to open the cash register. Robles had difficulty doing so and during his attempts the defendant handed the knife to his companion, who walked around the counter and threatened to kill Robles if he did not open the register quickly. The defendant then became impatient, grabbed the register and fled with it to his girlfriend’s apartment. Factual details giving rise to the witness tampering charge are included in the analysis of that claim.

I

Double Jeopardy

The defendant’s first claim is based on the fifth amendment to the United States constitution, the relevant portion of which provides, “[n]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” This constitutional provision applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

In order to prevail on a double jeopardy claim, a defendant must satisfy a two-pronged test. First, the charges must arise out of the same act or transaction. Second, the charged crimes must be the same offense. State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

A double jeopardy issue may arise in either of two ways. First, it may involve successive prosecutions; Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); or, second, it may involve simultaneous double jeopardy, where simultaneous prosecution for two nominally distinct crimes violates the constitutional privilege. See id.; State v. Chicano, supra. The present case implicates simultaneous double jeopardy. The defendant claims that he was given multiple punishments for the same crime in the same trial.

The seminal case in double jeopardy law is Blockburger v. United, States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). In Blockburger, the United States Supreme Court held that “[t]he 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.” Id., 304. Our Supreme Court has stated the rule as follows: “[I]f the elements of one offense as defined by the statute include the elements of a lesser offense; or if one offense is merely nominally distinct from the other; then double jeopardy attaches.” State v. McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982). The Blockburger rule does not bar the conviction of two offenses arising out of the same criminal incident if each crime contains an element not found in the other. State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991).

The first degree robbery count charged that “on January 30,1991, at approximately 1:40 a.m. at Store 24, 25 Broadway in New Haven, the accused committed a robbery and in the course of commission of the crime, he or another participant in the crime used or threatened the use of a dangerous instrument, a knife, in violation of General Statutes § 53a-134 (a) (3).” (Emphasis added.) The second degree robbery count charged that “on January 30, 1991, at approximately 1:40 a.m. at Store 24,25 Broadway in New Haven, the accused committed a robbery, and was aided by another person, Michael Jones, actually present, in violation of General Statutes § 53a-135 (a) (1).” (Emphasis added.)

It is readily apparent that each count required proof of an element that the other did not. The first degree robbery count required proof that the defendant or another participant in the crime used or threatened the use of a dangerous instrument. The second degree robbery count required proof that the defendant was aided by another person actually present.

Despite the clear differences in the proof required under the two counts alleged in the information, the defendant urges us to extend our analysis beyond the charging information to the evidence. He argues that such analysis would demonstrate that, under the facts of the present case, second degree robbery did not require proof of an additional fact beyond those required for first degree robbery. We are required, however, to determine the existence of double jeopardy by comparison of the statutes and not by examination of the evidence. Blockburger v. United States, supra.

The defendant contends that State v. Lonergan, 213 Conn. 74, 77, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990), permits us to look beyond the statutes in question and to examine the evidence. The Lonergan court held that if the same evidence that had been offered to prove a crime is later used to prove a different crime, that prosecution of the second crime is barred on double jeopardy grounds. The flaw in the defendant’s argument is that Lonergan is applicable only to successive trials and not to multiple punishments in a single trial (i.e., simultaneous double jeopardy). See State v. Tweedy, supra; State v. Chicano, supra, 707; State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). We do not have the factual predicate for the reasoning of Lonergan in the present case.

The defendant properly points out that the Block-burger test is not a conclusive presumption, but rather is a rule of statutory construction. Missouri v. Hunter, 459 U.S. 359, 367, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); State v. Delgado, 19 Conn. App. 245, 251, 562 A.2d 539 (1989). In light of this, the defendant claims that a conviction of both offenses is contrary to the intent of the statutes. To rebut the Blockburger rule of statutory construction, there must be “a clear indication of contrary legislative intent.” (Emphasis in original; internal quotation marks omitted.) State v. Delgado, supra. The defendant has not brought any relevant legislative history to our attention that indicates that the legislature intended these two crimes be punished as one. We conclude that there was no double jeopardy violation.

II

Tampering with a Witness

On June 1, 1993, Robles, the store clerk, received four telephone calls in which the caller threatened that Robles would be a “dead man” if he testified against the defendant. Robles did not recognize the caller’s voice and could not remember the name given in one of the calls, which was collect. He was certain, however, that it was not the defendant’s name. The collect call was traced to a telephone located in the cell-block where the defendant was confined at the time of the call. The cellblock telephone is intended for use by inmates and can be used only for outgoing collect calls. The correctional center rules require that prior to using the phone, an inmate must register the intended call with a correctional officer, who records the information in a daily log. No collect call to Robles was recorded in the correctional officer’s log book. An administrative officer of the correctional facility testified that, despite the rule, it was not uncommon for prisoners to use the telephone without first registering the call with a correctional officer.

In his second claim, the defendant argues that there was insufficient evidence to convict him of tampering with a witness and in his third claim he argues that there was insufficient evidence to justify a jury instruction on being an accessory to tampering with a witness. We will consider both claims together.

In reviewing an insufficiency of evidence claim in a jury case we employ a two-step analysis. First, we review the evidence construing it in the light most favorable to sustaining the facts impliedly found by the jury. Next, we decide whether, on the basis of the facts and the inferences reasonably drawn therefrom, the jury could have reasonably concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991).

The state never claimed to have proved that the defendant personally tampered with a witness. In fact, in his closing argument the prosecutor disavowed proving that the defendant actually made the offending phone call. Accordingly, we agree with the defendant’s second claim that the evidence is insufficient to convict him of tampering with a witness on count four. This conclusion avails the defendant nothing, however, because the fourth count is framed so as to charge the defendant with also being an accessory to tampering with a witness.

The state claims to have proved that the defendant caused another person to make a threatening call to the state’s principal witness, warning him not to appear in court. The applicable statute imposes criminal liability on any person “who solicits, requests, commands [or] importunes . . . another person” to commit a crime. General Statutes § 53a-8. In this case, the record is completely devoid of evidence that the defendant engaged in any of the enumerated acts in order to obtain the services of another person in making the threatening phone call. Merely being the intended beneficiary of the call is not enough.

“ ‘[Although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture.’ ” State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980). In the present case, it is speculation that the defendant solicited, requested, commanded or importuned another person to make the phone call.

The trial court must not submit any issue to the jury on which the evidence would not support a finding. State v. Adams, 225 Conn. 270, 283, 623 A.2d 42 (1983); Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986). Because the evidence in the present case would not have supported a guilty verdict on the charge of accessory to tampering with a witness, the trial court improperly instructed the jury thereon.

The judgment is reversed only as to the conviction of tampering with a witness and the case is remanded with direction to render judgment of not guilty of that crime.

In this opinion Lavery, J., concurred.

Dupont, C. J.,

dissenting. I respectfully dissent from that portion of the majority’s opinion that concludes that there was insufficient evidence to convict the defendant of tampering with a witness as an accessory. The two-step analysis of State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991), would lead me to conclude that, construing the evidence in a way most favorable to upholding the conviction, the cumulative effect of the direct and circumstantial evidence and the logical inferences arising from that evidence could establish the defendant’s guilt beyond a reasonable doubt of being an accessory to the crime of tampering with a witness.

There was undisputed direct evidence from which a jury could conclude reasonably that at least two people had attempted to induce a witness, Carlos Robles, to withhold his testimony or to absent himself from the defendant’s trial. The question, however, is whether a jury could also conclude reasonably that the direct and circumstantial evidence and the logical inferences to be drawn from that evidence that it was the defendant who had solicited or requested those persons to tamper with that witness.

Four phone calls were made, one from the cellblock in which the defendant was confined, and the others from places unknown. The person who called from the correction center knew when Robles would be testifying, a fact known to the defendant and very few others. This call and the other calls were made to the witness at his home and not to the store that was the scene of the alleged robbery. Robles’ name was listed in the telephone directory as “Santos-Robles.” It could be inferred by the jury that the only person knowing how to find the witness’ telephone number in a directory or how to communicate with the witness directly and who also had a motive to induce the witness not to testify was the defendant.

On the basis of these facts and on the facts as stated by the majority, I would affirm the defendant’s judgment of conviction of a violation of General Statutes §§ 53a-151 and 53a-81.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (3) uses or threatens the use of a dangerous instrument . . . .”

       General Statutes § 53a-135 (a) provides in relevant part: “A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and (1) he is aided by another person actually present It

       General Statutes § 53a-151 (a) provides: “A person is guilty of tampering with a witness if, believing that an official proceeding is pending or about to be instituted, he induces or attempts to induce a witness to testify falsely, withhold testimony, elude legal process summoning him to testify or absent himself from any official proceeding.”

       General Statutes § 53a-8 (a) provides: “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.”

       In Ms statement of issues, the defendant mistakenly appealed Ms conviction under count three of the state’s information, which was an unrelated tampering charge of which he was acquitted. His second and third claims on appeal seek reversal of his tampering conviction under General Statutes §§ 53a-151 and 53a-8, properly identified as count four of the state’s information.

       During closing argument, the state’s attorney stated the following: “Did Eddie Ford walk to the phone and get signed in? Does it matter? The answer is it doesn’t matter because in this case the state had charged him as an accessory. You don’t have any direct evidence that Eddie Ford actually made the phone call and we don’t claim that we have proven that Eddie Ford actually made the phone call. You’re going to hear from Judge Hadden the accessory statute. What it says is if someone arranges for something to happen, if they aid, solicit, importune or intentionally aid someone else to commit a crime, the crime of making the phone call threatening the witness to keep him from court . . . they are equally liable as if they had done the act themselves. Who would possibly want that call made other than Eddie Ford who happens to be in the same block? Who else in the jail could possibly know Carlos Robles was scheduled to testify on Thursday.” (Emphasis added.)

       See footnote 4.


author: Heiman, J.

text:
    Nancy P. Spicer, Executrix (Estate of John M. Spicer) v. William C. Spicer III
    (12081)
    Foti, Heiman and Schaller, Js.

      Argued September 29
    decision released December 7, 1993

      Andrew J. Brand, with whom, on the brief, was Raymond J. Baribeault, Jr., for the appellant (defendant).

      James G. Green, Jr., with whom were Ann Walker and, on the brief, Robert M. Barrack, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from an order entered pursuant to General Statutes § 52-410, granting the plaintiffs application to compel the defendant to proceed with arbitration. We affirm the judgment of the trial court.

The trial court found the following facts. The defendant and the plaintiffs decedent were brothers and had, for a number of years, operated various businesses in the areas of Groton and Noank through a partnership and a corporation. On November 30,1983, the defendant and the plaintiffs decedent executed a buy-sell agreement setting forth a method for the resolution of their interests in both the partnership and the corporation in the event of the death or disability of either party. The agreement further contained provisions relating to the sale of the interest of either party in either the partnership or corporation during their lifetimes. The sale provision stated that “[i]n the event that any Owner shall elect to sell his business interests during his lifetime, in whole or in part, he shall give the other Owner written notice of his intention to sell, including the business interests which he intends to sell, and the remaining Owner shall, if permitted by law, purchase such shares within ninety (90) days from the date of such notice. Any purchase under this paragraph shall be made at a price not greater than that determined as set out in Schedule A attached.” Schedule A set the combined value of the companies at $1,500,000.

The agreement also contained an arbitration clause that stated: “In the event there is any disagreement between the Owners hereto as to the value of the businesses, or in any other matter connected with this Agreement, it shall be settled by arbitration.”

On January 12, 1990, the defendant and the plaintiff’s decedent executed a “memo of understanding” effective January 1, 1990, because the “relations between John M. Spicer and William C. Spicer, 3rd, have changed to a point detrimental to the continued operation and survival of their businesses.” In the memorandum, the defendant agreed to purchase, and the plaintiff’s decedent agreed to sell, the decedent’s interest in the partnership and corporation. The memorandum set forth the terms of the sale, including the sale price, interest rate, payment schedule, and postsale insurance provisions. The memorandum valued the combined worth of the companies at $4,400,000. The memorandum of understanding did not refer to the buy-sell agreement.

After the parties executed the memorandum of understanding, the plaintiff’s decedent withdrew from the management of the partnership and corporation and the defendant began making payments to the plaintiff’s decedent in accordance with the terms of the memorandum. The plaintiffs decedent died on April 30,1991. Shortly thereafter, the defendant ceased making the installment payments.

On June 24,1992, the plaintiff, the widow of the decedent and the executrix of his estate, filed a petition for an order to appoint an arbitrator pursuant to General Statutes § 52-411 and for an order to proceed with arbitration pursuant with § 52-410. The plaintiff alleged that the memorandum of understanding was in furtherance of the buy-sell agreement. The plaintiff also alleged that a dispute arose under the buy-sell agreement, which required arbitration.

On October 26, 1992, the trial court held a hearing on the complaint. The two agreements were marked as full exhibits and the plaintiff testified as to the dispute. The trial court ordered simultaneous briefs on the issue of the arbitrability of the memorandum of understanding and the buy-sell agreement. The defendant neither objected to this order nor requested an additional evidentiary hearing on the issue of arbitrability.

On December 29,1992, the trial court issued a memorandum of decision. The trial court found that the memorandum of understanding did not supersede the buy-sell agreement as a novation because the “memorandum does not contain terms that are either wholly or substantially inconsistent with the agreement, but merely provides the details for one of the contingencies contemplated in the agreement, namely, an inter vivos transfer of one partner’s assets to the other partner.” The trial court then ordered arbitration of the matter because “under the broad language of [the arbitration clause], whether a dispute as to any matter connected with the agreement is arbitrable is itself a question for the arbitrator to decide.” The trial court also found that “the memorandum is a matter connected to the agreement and the court orders that any disagreement as to the memorandum be submitted to arbitration.”

On appeal, the defendant claims that the trial court improperly ordered the parties to proceed with arbitration by (1) concluding that the memorandum of understanding did not supersede the buy-sell agreement but was in furtherance of it, (2) concluding that the memorandum of understanding required the parties to arbitrate, and (3) failing to hold a full evidentiary hearing on the plaintiffs petition for arbitration instead of deciding the issue as a matter of law. We affirm the judgment of the trial court.

As a threshold matter, we note that “[a]n order directing the parties to proceed with arbitration is a final judgment from which one can appeal. Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381 (1953).” Delio v. Earth Garden Florist, Inc., 28 Conn. App. 73, 79-80, 609 A.2d 1057 (1992); see Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 769, 613 A.2d 1320 (1992). Thus, we have the requisite jurisdiction.

I

The defendant first claims that the trial court improperly ordered the parties to proceed with arbitration by concluding that the memorandum of understanding did not supersede the buy-sell agreement but was in furtherance of it. In determining the scope of a contract, “[t]he plain, clear language of the contract must be accorded its logical effect.” Four D’s, Inc. v. Mattera, 25 Conn. App. 308, 313, 594 A.2d 484 (1991). “ ‘The intention of the parties to a contract is to be determined from the language used interpreted in the light of the situation of the parties, and the circumstances connected with the transaction. The question is not what intention existed in the minds of the parties but what intention is expressed in the language used.’ " E & F Construction Co. v. Rissil Construction Associates, Inc., 181 Conn. 317, 320, 435 A.2d 343 (1980); Balboa Ins. Co. v. Zaleski, 12 Conn. App. 529, 535, 532 A.2d 973, cert. denied, 206 Conn. 802, 535 A.2d 1315 (1987). “As we have stated, in situations in which the parties have their agreement in writing, their intention is to be determined from its language and not on the basis of any intention either may have secretly entertained . . . .” (Citations omitted; internal quotation marks omitted.) Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130-31, 523 A.2d 1266 (1987). “Normally, a determination of what the parties intended by contractual commitments is ‘a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion it had reached’; Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, [supra]. . . .” Gaynor Electric Co. v. Hollander, 29 Conn. App. 865, 872, 618 A.2d 532 (1993).

The trial court determined that the memorandum of understanding was not a novation. “A ‘novation’ is a term used to refer to the introduction of a new party into a new contract. Riverside Coal Co. v. American Coal Co., 107 Conn. 40, 44, 139 A. 276 [1927], To succeed on its claim of novation, the defendant was required to prove that ‘the one in the position of creditor, in this case the [decedent], had accepted a new debtor . . . in the place of the defendant to which [he] would look for fulfillment of the . . . obligation owing to [him]. Norwalk Tire & Rubber Co. v. Manufacturer’s Casualty Ins. Co., 109 Conn. 609, 614, 145 A. 44 [1929]. In addition, it requires proof that the [decedent] had agreed to a discharge of the defendant’s obligation to [him]. Windsor Cement Co. v. Thompson, 86 Conn. 511, 513, 86 A. 1 [1913].’ ” Ruwet-Sibley Equipment Corporation v. Stebbins, 15 Conn. App. 21, 26, 542 A.2d 1171, cert. dismissed, 209 Conn. 806, 548 A.2d 437 (1988). This was a question of fact to be determined by the trial court. Id. On the basis of the evidence, we conclude that the trial court could reasonably have found as it did.

The evidence supports a finding that the memorandum of understanding was a modification of the buy-sell agreement. “Parties may alter any term of an existing contract by entering into a subsequent contract.” Manzin v. United Bank & Trust Co., 6 Conn. App. 513, 516, 506 A.2d 169 (1986). The contract as modified becomes a new contract between the parties. 17A Am. Jur. 2d 527, Contracts § 513 (1991). The language of the memorandum of understanding when read together with the language of the buy-sell agreement provides sufficient foundation for the trial court reasonably to find that the memorandum of understanding only modified the provisions of the sale of the business clauses without modifying or abrogating the buy-sell agreement in toto. The memorandum of understanding implicated only the inter vivos provision of the buy-sell agreement and did not affect any other portion.

II

The defendant next claims that the trial court improperly ordered the parties to proceed to arbitration by concluding that the memorandum of understanding required the parties to arbitrate. “Arbitration is a creature of contract. ... It is designed to avoid litigation and secure prompt settlement of disputes and is favored by the law. . . . But a person can be compelled to arbitrate a dispute only if, to the extent that, and in the manner which, he has agreed so to do. . . . No one can be forced to arbitrate a contract dispute who has not previously agreed to do so. . . . The issue of whether the parties to a contract have agreed to arbitration is controlled by their intention. . . . The intention of the parties is, in turn, a question of fact. . . . The trial court’s finding on that issue is not reversible by this court unless it was a finding that the court could not reasonably have made. . . . The [defendant] can prevail on appeal, therefore, only if [he] is able to demonstrate that the trial court’s interpretation of the amended contract was clearly erroneous. . . .

“The cardinal rule in construing contracts is to ascertain the intention of the parties. . . . [Interpretation of an agreement [by a court] is a search for the intent of the parties. ... A contract is to be construed [by the trier of fact] according to what is fairly to be assumed to be the understanding and intent of the parties. . . . Such a determination of what the parties intended is normally a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion that it had reached. . . . The intent developed is alone material, and when that is ascertained it is conclusive. . . .” (Citations omitted; internal quotation marks omitted.) A. Dubreuil & Sons, Inc. v. Lisbon, 215 Conn. 604, 608-10, 577 A.2d 709 (1990).

The issue, therefore, of whether the arbitration clause in the buy-sell agreement applied to the memorandum of understanding is a question of fact for the trial court. “ ‘A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . ” (Citations omitted.) Dalia v. Lawrence, 226 Conn. 51, 71, 627 A.2d 392 (1993); Central Connecticut Teachers Federal Credit Union v. Grant, 27 Conn. App. 435, 437-38, 606 A.2d 729 (1992).

Since we concluded that the memorandum of understanding modified the buy-sell agreement only as to the provisions for the sale of the business, the arbitration clause was still effective. The contract, as modified, became the new contract between the parties and contained the arbitration clause. 17A Am. Jur. 2d 527, supra. Therefore, the trial court decision was not clearly erroneous.

Ill

The defendant next asserts that the trial court improperly ordered the parties to proceed to arbitration without holding a full evidentiary hearing on the plaintiffs petition. The record on appeal fails to disclose any request by the defendant to the trial court for a full evidentiary hearing. Further, the defendant, at the hearing, failed to object to the court’s request for briefs on the arbitration issue.

“This court will not review issues of law that are raised for the first time on appeal.” State v Harvey, 27 Conn. App. 171, 186, 605 A.2d 563, cert. denied, 222 Conn. 907, 608 A.2d 693 (1992). “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. ...” (Citations omitted; internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 750, 557 A.2d 525 (1989); Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985); Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). “The purpose of the rule is to provide the trial court with an opportunity to pass on claims of error which may become the subject of an appeal.” Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986). Accordingly, we decline to review this claim. Nor does it rise to the level of plain error. Practice Book § 4185. Such 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.” Saporoso v. Aetna Life & Casualty, 221 Conn. 356, 363, 603 A.2d 1160 (1992); Solomon v. Levitt, 30 Conn. App. 125, 128, 618 A.2d 1389 (1993). When we apply this standard, it is clear that the trial court did not commit plain error.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-410 provides in pertinent part: “(a) A party to a written agreement for arbitration claiming the neglect or refusal of another to proceed with an arbitration thereunder may make application to the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated ... for an order directing the parties to proceed with the arbitration in compliance with their agreement. . . .
      “(c) The parties shall be considered as at issue on the allegations of the complaint unless the defendant files [an] answer thereto within five days from the return day, and the court or judge shall hear the matter either at a short calendar session, or as a privileged case, or otherwise, in order to dispose of the case with the least possible delay, and shall either grant the order or deny the application, according to the rights of the parties.”

       General Statutes § 52-411 provides: “(a) If, in a written agreement to arbitrate, a method of appointing an arbitrator or arbitrators or an umpire has been provided, the method shall be followed.
      “(b) If no method is provided therein, or if a method is provided and any party thereto fails to use the method, or if for any other reason there is a failure in the naming of an arbitrator or arbitrators or an umpire, or if any arbitrator or umpire dies or is unable or refuses to serve, upon appli-

        cation by a party to the arbitration agreement, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall appoint an arbitrator or arbitrators or an umpire, as the case may require. A person so appointed an arbitrator or umpire shall act under any arbitration agreement with the same force and effect as if he had been specifically named or referred to therein. Unless otherwise provided in the agreement, the arbitration shall be by a single arbitrator.
      “(c) An application under this section and the proceedings thereon shall conform to the application and proceedings provided for in section 52-410, except that such changes shall be made in the complaint as may be necessary to correctly and concisely state the plaintiff’s claim.”


author: Schaller, J.,

text:
    State of Connecticut v. Pasquale Villano
    (11515)
    Foti, Schaller and Cretella, Js.
    Argued October 4
    decision released December 7, 1993

      Deborah DelPrete Sullivan, assistant public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Schaller, J.,

The defendant, Pasquale Villano, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of corrections. The trial court imposed the four and one-half years suspended portion of a sentence that the defendant had received for his 1987 conviction of risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court (1) improperly found that the defendant had violated the special condition of his probation pursuant to General Statutes § 53a-32, and (2) abused its discretion by revoking the defendant’s probation. We affirm the judgment of the trial court.

On May 28,1987, the defendant pleaded guilty under the Alford doctrine to the charge of risk of injury to a child, and, on May 29,1987, the court sentenced the defendant to ten years in prison, suspended after five and one-half years, with five years probation. The defendant began his probationary period on May 29, 1991. On that date, the defendant and his probation officer signed a form titled “Conditions of Probation.” This document outlined the standard conditions of the defendant’s probation, and also listed as a special condition the defendant’s participation in a sex offender treatment program.

His probation officer then referred the defendant on May 31, 1991, to special services at The Connection Agency, Inc. (Connections), an organization in Middle-town that offers treatment for sexual behavior problems. Lisa Heitmann, a treatment specialist at Connections, completed an evaluation of the defendant in July, 1991, which resulted in Heitmann’s recommendation that the defendant initially take part in the “cognitive lab,” a twelve week psycho-educational program that would prepare the defendant for group therapy.

In February, 1992, the probation officer caused a warrant to be issued for the defendant’s arrest pursuant to General Statutes § 53a-32, alleging that the defendant had violated the condition of his probation that he receive sex offender treatment. The warrant detailed the defendant’s probation history and alleged specifically that the defendant failed to report to Connections on January 16,1992, and failed to meet with Heitmann on January 29,1992, in order to discuss his treatment plan and to sign the papers necessary for him to take part in the treatment program. The warrant also stated that Connections discharged the defendant from its treatment program due to “noncompliance and avoidance of treatment.”

At the probation revocation hearing, the probation officer, Heitmann and the defendant testified. The following evidence was presented. Connections scheduled the defendant to begin the cognitive lab in August, 1991, but the defendant then asked his probation officer to allow him to seek a second evaluation through Catholic Family Services. The defendant testified on cross-examination that he sought the second opinion because he and Heitmann “were [not] clicking too well.” The probation officer agreed to the second opinion, despite her awareness that, although Catholic Family Services had the capacity to evaluate the defendant, it did not have a program for the treatment of sex offenders. The defendant participated in the evaluation at Catholic Family Services from August until December, 1991.

Since Catholic Family Services could not treat the defendant as a sex offender, he was referred again to Connections. In order for the defendant to begin actual treatment at Connections, he had to sign a contract with that agency. Connections originally scheduled the defendant for an appointment at the New Haven probation office on January 15,1992, in order to sign the contract. The defendant did not appear for this appointment. Connections then scheduled the defendant to sign the contract and to begin the cognitive lab treatment at Connections on January 16,1992. The defendant twice called Heitmann on January 16 and told her that he was unable to obtain transportation from his home in New Haven to Connections in Middletown. The defendant did not sign the contract or attend the cognitive lab on that date.

A pair of appointments to sign the contract and to begin treatment at Connections was set for January 23, 1992. On that date, the defendant was scheduled to arrive at approximately 3:45 p.m. to meet with Heitmann to sign the contract, and to begin the cognitive lab at 4:30 p.m. The defendant did not arrive at Connections until approximately 4:10 p.m., and claimed that he was late because he had been lost. Since the defendant missed his 3:45 appointment with Heitmann, he could not sign the contract. He was permitted, however, to take part in the cognitive lab on that date.

On January 23, 1992, Heitmann made an appointment for the defendant to sign the contract at the probation office in New Haven at 1 p.m. on January 29, 1992. She informed the defendant that if he did not sign the contract at that time, he would not be allowed into treatment. On January 29, 1992, the defendant met with his probation officer at 10 a.m. for his regular probation meeting. Heitmann was at the probation office at that time and spoke briefly with the defendant. The defendant informed Heitmann that he had to be at work at 1 p.m., and requested that he be allowed to sign the contract at that time. Heitmann told the defendant that she had other appointments, that he could not then sign the contract, and that he would have to return at 1 p.m. The defendant failed to return to the probation office at 1 p.m., and never signed the contract.

On January 30,1992, the defendant went to Connections to take part in the cognitive lab. Since the defendant had not signed the contract at the previously scheduled appointments, he was informed that he had been terminated from further treatment at Connections. Heitmann sent a letter to the probation department on February 7,1992, informing the department of the defendant’s status. At that time, the defendant had been on probation for over eight months.

On the basis of this evidence, the trial court found that the defendant had violated the special condition of his probation that he receive sex offender treatment, and ordered the defendant to serve four and one-half years. The defendant contends that there was insufficient evidence of a violation of the special condition of his probation, and that, even if a violation occurred, the trial court abused its discretion in revoking his probation. We disagree.

“A revocation of probation hearing has two distinct components and two purposes. A factual determination by a trial court as to whether a probationer has violated a condition of probation must first be made. If a violation is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. Black v. Romano, [471 U.S. 606, 611, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985)]; United States v. Czajak, 909 F.2d 20, 22 (1st Cir. 1990).” State v. Davis, 29 Conn. App. 801, 805, 618 A.2d 557, cert. granted, 225 Conn. 918, 623 A.2d 1024 (1993) (certiorari limited to issue of standard of proof necessary to establish violation of probation); State v. Scott, 31 Conn. App. 660, 667, 626 A.2d 817 (1993). Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing. State v. Davis, supra.

I

A trial court initially makes a factual determination of whether a condition of probation has been violated. “In making its factual determination, the trial court is ‘entitled to draw reasonable and logical inferences from the evidence.’ Payne v. Robinson, [10 Conn. App. 395, 403, 523 A.2d 917 (1987).]” State v. Davis, supra, 811. Our review is limited to whether such a finding was clearly erroneous. Practice Book § 4061; State v. Davis, supra, 805. “ ‘A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. . . .’ ” Pollio v. Conservation Commission, 32 Conn. App. 109, 115, 628 A.2d 20 (1993); see Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). “In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling. State v. Amarillo, 198 Conn. 285, 313-14, 503 A.2d 146 (1986).” State v. Davis, supra, 806; State v. Scott, supra, 668.

Pursuant to General Statutes § 53a-32 (b), a trial court cannot revoke probation unless a “violation is established by reliable and probative evidence.” This court has determined that the standard of proof for a violation of a condition of probation is that of “reasonable satisfaction.” State v. Davis, supra, 809. In Davis, the court defined the standard as “a rational belief of a trial court that the evidence is adequate or sufficient to prove a violation.” Id., 811.

The defendant completed two evaluations, but had not enrolled in the actual sex offender treatment program offered by Connections. The defendant missed appointments on January 15, 16, 23, and 29, to execute the papers necessary to take part in a treatment program at Connections, as well as an appointment on January 16 to begin the cognitive lab treatment. The defendant was then terminated from Connections and did not receive sex offender treatment. Under the evidence presented in this case, we conclude that the trial court could reasonably have found, by the standard of “reasonable satisfaction,” that the defendant was in violation of the special condition of his probation that he receive sex offender treatment.

II

The defendant next contends that, even if a violation of his special condition of probation was established, the court should not have revoked his probation since the beneficial purposes of that probation were still being served. Our standard of review here is “whether the trial court exercised its discretion properly by reinstating the original sentence and ordering incarceration. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973); State v. Johnson, 11 Conn. App. 251, 257, 527 A.2d 250 (1987).” State v. Davis, supra, 806. “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.” (Citation omitted; internal quotation marks omitted.) State v. Reddick, 224 Conn. 445, 467, 619 A.2d 453 (1993).

“A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence.” State v. Davis, supra, 811. “The ultimate question in the probation process is ‘whether the probationer is still a “good risk”. . . . This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.’ (Citations omitted.) State v. Smith, [207 Conn. 152, 177, 540 A.2d 679 (1988).]” State v. Jacobs, 30 Conn. App. 340, 343, 620 A.2d 198, cert. granted on other grounds, 225 Conn. 920, 625 A.2d 822 (1993).

In this case, the special condition of the defendant’s probation required that he receive sex offender treatment as part of an effort to prevent him from repeating the criminal conduct for which he had previously been convicted. The sex offender treatment was a key component of the rehabilitative process. The trial court reasonably could have found that, without the treatment, the likelihood of the defendant’s again committing such crimes had not decreased, and that the goals of rehabilitation had faltered. We conclude, therefore, that the trial court did not abuse its discretion in revoking the defendant’s probation and in imposing the suspended portion of the defendant’s sentence.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The defendant also requests that we reconsider our decision in State v. Baxter, 19 Conn. App. 304, 563 A.2d 721 (1989). In that case, we determined that there is no constitutional requirement that the trial court must find that a violation of probation was willful, except in the limited circumstances set forth in Beardon v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983) (where an indigent defendant fails to pay a fine or restitution, willful disobeyance of the condition of probation must be shown). We decline to reconsider our decision in Baxter.

         North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       During this period, the defendant did not attend any programs at Connections. The probation officer testified that she did not expect the defendant to attend any programs at Connections until the defendant completed the Catholic Family Services evaluation. Personnel at Connections apparently believed that the defendant would continue treatment at Connections, and when the defendant did not appear, Connections terminated the defendant from its program. At the request of the probation officer, however, the defendant was reinstated.

       This date was not included in the warrant for the defendant’s arrest pursuant to General Statutes § 53a-32.

       This date, also, was not listed in the arrest warrant.

       Although January 15, was not listed on the warrant as a date on which the defendant had missed an appointment, the court stated that it would “just consider [the date] as evidence of his intent, whether he intended to attend the other sessions that he missed.”

       Defense counsel noted that this date was not mentioned in the warrant, but no further remarks were made concerning the propriety of the court in considering this date.

       The question of the proper standard of proof for finding a violation of a condition of probation will be reviewed by our Supreme Court. State v. Davis, 29 Conn. App. 801, 805, 618 A.2d 557, cert. granted, 225 Conn. 918, 623 A.2d 1024 (1993). This court has determined that the proper standard of proof for a violation of a condition of probation is that of “reasonable satisfaction.” In his dissent from the majority opinion in that case, Judge Freedman expressed his belief that the “due process clauses of both the federal and state constitutions require nothing less than a finding that a violation of the conditions of probation must be established by, at least, a preponderance of the evidence.” State v. Davis, supra, 816 (Freedman, J., dissenting). Our Supreme Court has stated that the preponderance of the evidence test “means simply that ‘the evidence must, when considered fairly and impartially, induce a reasonable belief that the fact in issue is true.’ Conley v. Board of Education, 143 Conn. 488, 497, 123 A.2d 547 [1956]; Beckwith v. Stratford, 129 Conn. 506, 507, 29 A.2d 775 [1942]; Darrow v. Fleischner, 117 Conn. 518, 520, 169 A. 197 [1933].” State v. Warren, 169 Conn. 207, 213, 363 A.2d 91 (1975). On the basis of the evidence presented in this case, we also conclude that the trial court could reasonably have found, by the standard of preponderance of the evidence, that the defendant violated the special condition of his probation.