author: MIHALAKOS, J.

text:
    MOULTON BROTHERS, INC. v. JOHN J. LEMIEUX ET AL.
    (AC 22638)
    Mihalakos, Flynn and Bishop, Js.
    Argued October 30
    officially released December 31, 2002

      John H. Parks, for the appellants (defendants).

      Bruce D. Tyler, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendants, John J. Lemieux and Alyson M. Lemieux, appeal from the judgment of the trial court, rendered in favor of the plaintiff, Moulton Brothers, Inc., on the defendants’ counterclaim, in this action to foreclose a mechanic’s lien. On appeal, the defendants claim, among other things, that the court improperly (1) determined that the third count of their counterclaim failed to allege a claim for breach of contract and (2) failed to award damages resulting from the breach of contract. We affirm in part and reverse in part the judgment of the trial court. Specifically, we reverse the judgment as to the third count of the defendants’ counterclaim and affirm the judgment in all other respects.

The following facts and procedural history are relevant to our resolution of the defendants’ appeal. The plaintiff brought this action to foreclose a mechanic’s lien filed against real property owned by the defendants. The defendants filed a four count counterclaim, seeking a discharge of the lien and damages for “negligence and misrepresentation,” and alleging violations of the Home Solicitation Sales Act, General Statutes § 42-134a et seq. (HSSA), and the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. During trial, the HSSA claim was dismissed. After trial, the court found in favor of the defendants on the plaintiffs foreclosure claim and, pursuant to the first count of the counterclaim, discharged the mechanic’s lien. The court found in favor of the plaintiff on the remaining counts of the defendants’ counterclaim, the “negligence and misrepresentation” and CUTPA counts. This appeal followed.* **4 Additional facts and procedural history will be provided as necessary.

The defendants’ first claim on appeal is that the court improperly determined that the counterclaim failed to allege a count or claim for breach of contract. The defendants argue that the third count of their counterclaim properly sets forth alternate theories of recovery arising from the same predicate facts and that it includes a claim for breach of contract. We agree.

In that portion of the court’s memorandum of decision discussing the third count of the defendants’ counterclaim, the court determined that “the counterclaim contains no count of breach of contract.” The court viewed the third count of the defendants’ counterclaim as alleging “intentional or negligent misrepresentation” and, after analyzing the evidence adduced at trial, concluded that the defendants failed to prove their misrepresentation claim. The court, therefore, did not address the evidence adduced at trial to determine if it supported a claim for breach of contract.

“Pleadings have their place in our system of jurisprudence. While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them.” (Internal quotation marks omitted.) Moore v. Sergi, 38 Conn. App. 829, 841, 664 A.2d 795 (1995). The purpose of a complaint or counterclaim is to limit the issues at trial, and such pleadings are calculated to prevent surprise. New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). “It is fundamental in our law that the right of a [parly] to recover is limited to the allegations in his [pleading], . . . Facts found but not averred cannot be made the basis for a recovery.” (Citations omitted; internal quotation marks omitted.) Moore v. Sergi, supra, 841-42.

Thus, it is clear that “[t]he court is not permitted to decide issues outside of those raised in the pleadings.” Yellow Page Consultants, Inc. v. Omni Home Health Services, Inc., 59 Conn. App. 194, 200, 756 A.2d 309 (2000). It is equally clear, however, that the court must decide those issues raised in the pleadings.

Although no count of the defendants’ counterclaim is labeled “breach of contract,” the allegations contained in their third count do sound in contract. Specifically, in the third count, labeled “negligence and misrepresentation,” the defendants alleged, among other things, that they relied on the plaintiffs representations as an experienced builder of quality homes, sought the plaintiffs services and signed a proposal for the construction of a home by the plaintiff. They further alleged that once construction commenced, they complained to the plaintiff about numerous defects in the plaintiffs work,* **** and, despite the plaintiffs assurances that the defects would be remedied, the plaintiff failed to cure the defects. Finally, the defendants alleged that they “claim damages as a result of one or more of the following . . . breach of the plaintiffs obligations in the proposal . . . incomplete work, unworkmanlike construction, construction with unsuitable materials [and] construction or design which are not in accordance with sound engineering standards . . . .”

We conclude that those allegations sound in contract. The court’s determination that “the counterclaim contains no count of breach of contract,” therefore, was improper. The court was required to evaluate the claim in light of the evidence.

The defendants’ second claim on appeal is that the court failed to award damages resulting from the plaintiffs breach of contract. The defendants assert that the court did not evaluate the evidence proffered at trial to determine if it supported an award of damages for breach of contract. As previously discussed, the court improperly determined that the issue of breach of contract was not raised by the pleadings and, therefore, it never reached the issue of whether to award any contract damages. We consider that claim to be subsumed within the defendants’ first claim.

As to the defendants’ remaining claims, we note that “[f]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Where the parties cite no law and provide no analysis of their claims, we do not review such claims.” (Internal quotation marks omitted.) Wittman v. Krafick, 67 Conn. App. 415, 416, 787 A.2d 559 (2001), cert. denied, 260 Conn. 916, 797 A.2d 516 (2002). Moreover, “[wjhere a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” State v. Sewell, 38 Conn. App. 20, 29, 658 A.2d 598, cert. denied, 234 Conn. 918, 661 A.2d 98 (1995).

Practice Book § 67-4 sets forth the required content and organization of the appellants’ brief.* The defendants’ have failed to follow the dictates of our rules of practice. Their brief does not contain any references to the pages where the issues are discussed. It is not divided into as many parts as there are issues to be presented. It does not include a statement of the standard or standards of review that the defendants believe should be applied to their issues. It contains no appendix, although there are references to an appendix in the brief, and the table of authorities does not contain any references to the pages of the brief where the citations appear. Furthermore, the defendants have not clearly and fully set forth their arguments in their brief. Consequently, after examining the record, briefs and the arguments of the parties, we cannot judiciously and efficiently consider the defendants’ remaining claims on appeal. Because the defendants have failed to brief those remaining claims adequately, we decline to review them.

The judgment is reversed only as to the third count of the defendants’ counterclaim and the case is remanded for a hearing on the merits of the defendants’ claim for breach of contract. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The plaintiff filed a cross appeal, but withdrew it on July 8, 2002.

       Additionally, the defendants claim that the court improperly (3) failed to address their counterclaim for negligence, (4) failed to award damages resulting from negligence, (5) denied two motions to dismiss they raised during trial, (6) issued a memorandum of decision on December 12, 2001, without having conducted a hearing or having ruled on a motion to dismiss they filed on December 1,2001, (7) failed to dismiss the plaintiffs complaint, (8) prohibited the defendant Alyson M. Lemieux from retaking the witness stand, immediately after the plaintiff argued its motion to dismiss, to testify regarding misrepresentations purportedly made by the plaintiff and (9) failed to mark an affidavit they offered as an exhibit at trial.

       The third count of the defendants’ counterclaim is labeled “negligence and misrepresentation.”

       In its memorandum of decision, the court made the following factual findings: “In June, 1997, the defendants wished to have a new residence built .... They approached Leslie Moulton, who was and is the owner, president and manager of the plaintiff, a corporation. . . . Moulton expressed interest in constructing the home for the defendants. . . .
      “Using the floor plan supplied by the defendants, Moulton, on June 18, 1997, completed a five page draft of preliminary plans for the defendants. The parties exchanged proposals and counterproposals. . . .
      “On or about April 28, 1998, the parties finally agreed that the plaintiff would erect the home in accordance with the specifications and blueprints prepared by Moulton for a sales price of $162,752. The written contract called for installment payments that became due as construction progressed. Because the defendants procured financing through a lender, however, payments were made only as funds became available at the lender’s pace rather than in response to billing by the plaintiff. . . .
      “During construction, disputes arose concerning the qualify of the work and whether that work met the contract specifications. Eventually, the defendants withheld substantial payments until these differences could be resolved. Despite these disputes, and the incomplete state of construction, the defendants moved into the house on September 21, 1998. The plaintiff continued to work on the house in September and October, 1998, after the defendants began residing there.
      “On October 24, 1998, lengthy discussion and negotiation produced a second accord among the parties. They orally agreed to certain credits, deductions and additional charges, and that the defendants would pay, on that date, $54,075 in satisfaction of the work done by the plaintiff up to that point. That sum was fully paid on that date. It was further agreed that when the plaintiff satisfactorily addressed all the deficiencies on a written ‘punch list,’ comprising twenty-eight items, the defendants would pay another $14,700 to the plaintiff.
      “In the days following this agreement, Moulton rectified around ten of the twenty-eight deficiencies. Moulton requested that John Lemieux sign off on the punch list as each item was addressed, but Lemieux was unwilling to engage in piecemeal confirmation of the work. An argument ensued, and, on October 28, 1998, Moulton stormed off the premises. The plaintiff did no further work on the site. The defendants have never paid any of the additional $14,700.
      “On November 30, 1998, the plaintiff filed a mechanic’s lien certificate on the Stafford land records, which certificate was served on the defendants on December 1, 1998.”

       On July 8,2002, the defendants filed a motion seeking to file a substitute appellate brief, to which the plaintiff objected. The defendants apparently filed the motion as a result of the plaintiffs argument in its brief that the defendants inadequately briefed the nine issues contained in their statement of issues. The plaintiff objected to the motion, arguing that the rules of practice do not provide for substitute briefs. The plaintiff also claimed that because the defendants did not attach a copy of the proposed substitute brief to their motion, it could not be determined whether the substitute brief would be adequately briefed in compliance with Practice Book § 67-4 and other rules of appellate procedure. Additionally, the plaintiff claimed that the defendants did not show good cause for their request. On September 19, 2002, we denied the defendants’ motion.

       The plaintiff argues that we should not consider any of the defendants’ claims or issues on appeal because they have not been adequately briefed pursuant to Practice Book § 67-4. We consider the plaintiffs argument to be pertinent to the defendants’ third, fourth, fifth, sixth, seventh, eighth and ninth claims and, accordingly, we will address it in our resolution of those claims.

         “We have uniformly approved the use of a single count to set forth the basis of a plaintiff’s claims for relief where they grow out of a single occurrence or transaction or closely related occurrences or transactions, and it does not matter that the claims for relief do not have the same legal basis. It is only when causes of action, that is, the groups of facts upon which the plaintiff bases his claims for relief, are separate and distinct that separate counts are necessary or indeed ordinarily desirable.” (Internal quotation marks omitted.) Burns v. Koellmer, 11 Conn. App. 375, 387, 527 A.2d 1210 (1987).

       In thirty-seven subparagraphs, the defendants specify the nature and types of defects in the plaintiffs construction, materials, design and workmanship.

       At trial, the defendants proffered testimonial and other evidence relating to the issue of damages, including testimony by expert witnesses and reports of their findings.

       See footnote 2.

       The appellants must provide “[a] concise statement setting forth, in separately numbered paragraphs, without detail or discussion, the principal issue or issues involved in the appeal, with appropriate references to the page or pages of the brief where the issue is discussed . . . Practice Book § 67-4 (a). The appellant also must divide the argument “under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. . . Practice Book § 67-4 (d). Further, “[t]he argument on each point shall include a separate, brief statement of the standard of review the appellant believes should be applied.” Practice Book § 67-4 (d). The appellants also must include “[a] table of authorities . . . with references to the page or pages of the brief where the citations to those authorities appear. . . .” Practice Book § 67-4 (b). Additionally, “[w]hen error is claimed in any evidentiary ruling . . . the brief or appendix shall include a verbatim statement of the following: the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; and the ruling.” Practice Book § 67-4 (d) (3).


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CURTIS WIDLAK
    (AC 22325)
    Foti, Mihalakos and Dranginis, Js.

      Argued October 21
    officially released December 31, 2002

      Tashun Bowden-Lewis, deputy assistant public defender, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

      Thomas M. DeLillo, special deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Curtis Widlak, appeals from the judgment of the trial court revoking his probation. On appeal, the defendant claims that the judgment is improper because (1) the court improperly found that he had violated the terms of his probation by committing the criminal conduct of interfering with an officer in violation of General Statutes § 53a-167a when such conduct occurred during a period of time when the terms of his probation were not in effect, (2) the evidence adduced at trial did not support the court’s finding that he committed the criminal conduct of disorderly conduct in violation of General Statutes § 53a-182 and (3) the evidence adduced at trial did not support the court’s finding that he failed to inform his probation officer of his whereabouts. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On February 4, 1998, the defendant, after entering a guilty plea, was found guilty of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The court sentenced the defendant to a term of nine years imprisonment, suspended after time served, with three years of probation.

In June, 1998, the defendant violated the terms of his probation by failing to report to his probation officer. On October 21, 1998, the defendant admitted that offense, and the court continued his probation. The defendant met with a probation officer on that same date and signed a form entitled “conditions of probation.” The defendant, by virtue of signing the form, acknowledged that his probation officer had reviewed with him the conditions listed thereon and that he would abide by those conditions.

The defendant thereafter met with Patricia Maloney, the probation officer assigned to supervise him. As a condition of the defendant’s probation, he was instructed to report to Maloney for a meeting on October 27, 1999. The defendant did not appear at that scheduled meeting and did not contact Maloney or her office to explain his absence or to seek to be excused from the meeting.

On November 21, 1999, the defendant and his girlfriend, Donna Gawel, became involved in a loud and heated dispute in their apartment. The commotion drew the attention of several of the defendant’s neighbors, who came out of their apartments and congregated near the defendant’s apartment. The defendant eventually left the apartment, and Gawel called the police. Upon arriving at the scene, Christopher Williams, an officer with the New Britain police department, discovered Gawel, crying and upset Minor swelling marked the left side of Gawel’s face. Her hair was disheveled, and several loose strands of her hair were on her bathrobe. It appeared as if someone had pulled those strands of hair from her head. Despite declining to make a formal statement, Gawel asked Williams to arrest the defendant.

Shortly after Williams left the immediate scene, Gawel reported that the defendant had returned to the apartment. Williams apprehended and arrested the defendant while he was attempting to flee through one of the apartment building’s rear doors. The defendant was charged with assault in the third degree in violation of General Statutes § 53a-61 and disorderly conduct in violation of § 53a-182.

The defendant was released on bond shortly after his arrest in the early morning of November 22, 1999. He failed to appear in court, however, for his arraignment later that day. The court issued a rearrest warrant and ordered that his bond be forfeited. Gawel thereafter spoke with Maloney. Maloney was unaware of the defendant’s whereabouts, but Gawel informed her that the defendant no longer resided at his old address. On February 4, 2000, the court issued a warrant for the defendant’s arrest on the basis of his having violated . the terms of his probation.

On June 28, 2000, the police attempted to serve the warrant at the defendant’s new apartment where he resided with Gawel. When Gawel observed the police approaching the apartment, she yelled to the defendant to flee. Officers attempted to gain access to the defendant’s apartment but, despite their banging on the door and announcing their purpose, Gawel did not let them enter. The officers gained access through a rear door. They searched the apartment several times and called to the defendant. Ultimately, they discovered the defendant, attempting to evade arrest by hiding under the cushions of a foldout sofa.

The arrest warrant application listed four separate violations of probation: (1) that the defendant failed to report as directed to his probation officer, (2) that the defendant did not keep his probation officer apprised of where he was living, (3) that the defendant committed criminal conduct that constituted disorderly conduct and (4) that the defendant committed criminal conduct that constituted a wilful failure to appear to answer the charge of disorderly conduct in violation of § 53a-182. On March 16, 2001, the state filed a notice of intent to rely on a fifth ground to establish a violation of probation, to wit, that the defendant committed criminal conduct that constituted interfering with an officer, in violation of § 53a-167a.

After conducting an evidentiary hearing, the court found that the state had proven all five grounds alleged by a fair preponderance of the evidence and that the defendant, therefore, had violated the terms of his probation. The court thereafter, inter alia, sentenced the defendant to nine year s imprisonment, suspended after five years and eighteen days served, followed by four years of probation. This appeal followed.

I

The defendant first claims that the court improperly found that he had violated his probation by committing criminal conduct by interfering with a police officer when such conduct occurred during a period of time when the terms of his probation were not in effect. He argues that his probationary term was not in effect on June 28, 2000, the date on which the state alleged that he committed the conduct. He also argues that his term of probation was “interrupted” by the “previous [February 4, 2000] issuance of the arrest warrant.” The defendant posits that General Statutes § 53a-31 (b) stops for all purposes, not merely for the purpose of the statute of limitations, the running of his probationary term. The defendant concludes, on that basis, that “the state cannot maintain that [he] breached a probation that no longer was running, but was interrupted,” as to his alleged violation by interfering with an officer.

Although we find the defendant’s argument interesting, we must conclude that this issue is not relevant to our determination as to whether the court properly revoked his probation. That is because the court’s finding that the defendant committed the criminal conduct of interfering with an officer was not the sole basis for its conclusion that he violated the terms of his probation. As previously stated, that conduct was one of five grounds on which the court based its judgment.

“[T]o support a finding of probation violation, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002). Our law does not require the state to prove that all conditions alleged were violated; it is sufficient to prove that one was violated.

The defendant concedes that if evidence presented at the probation hearing is sufficient to support any single ground, it is sufficient to support a finding that he violated his probation. He nonetheless argues that if the court improperly found that the state had proven even one of those grounds, it would not necessarily exercise its discretion on remand in the same way it did in the sentencing phase of the proceeding in deciding “whether to revoke probation and its subsequent decision on how much of the unexecuted portion of the prior sentence to impose.”

The defendant challenges only three of the five grounds relied on by the state in seeking to revoke his probationary status; two of the grounds remain unchallenged in this appeal. The defendant cites no authority for his assertion that if the court improperly found that he committed criminal conduct by interfering with a police officer, such finding affected the sentence imposed. We decline to address that inadequately briefed claim, which is based on speculation as to how the court might have sentenced the defendant if it had not found that the state had proven each of the five violations alleged. See State v. Holmes, 70 Conn. App. 4, 5 n.2, 796 A.2d 561 (2002).

Accordingly, we decline to address the defendant’s first claim because doing so would be academic under the circumstances of this case.

II

The defendant next claims that the evidence adduced at trial did not support the court’s finding that he committed the criminal conduct of disorderly conduct in violation of § 53a-182. We disagree.

In a probation revocation proceeding, the state bears the burden of proving by a fair preponderance of the evidence that the defendant violated the terms of his probation. State v. Daniels, 248 Conn. 64, 74, 726 A.2d 520 (1999). This court may reverse the trial court’s finding that a defendant violated the terms of his probation only if such finding is clearly erroneous. State v. Samuel, 57 Conn. App. 64, 68, 747 A.2d 21, cert. denied, 253 Conn. 909, 753 A.2d 942 (2000); State v. Welch, 40 Conn. App. 395, 401, 671 A.2d 379, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996). “A finding of fact is clearly erroneous when there is no evidence to support it . . . or . . . the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ... In making this determination, every reasonable presumption must be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Rollins, 51 Conn. App. 478, 482, 723 A.2d 817 (1999). This court defers to the trial court’s discretion in matters of determining credibility and the weight to be given to a witness’ testimony. See Beede v. Beede, 186 Conn. 191, 195, 440 A.2d 283 (1982); see also 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 125a. Furthermore, “[i]n making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.” (Internal quotation marks omitted.) State v. Jones, 55 Conn. App. 243, 247, 739 A.2d 697 (1999), cert. denied, 253 Conn. 922, 754 A.2d 798 (2000).

The defendant argues that the evidence presented as to whether he had committed disorderly conduct merely supported a finding that he and Gawel had engaged in a verbal argument. He claims primarily that the evidence was insufficient to prove criminal conduct because the state failed to prove that he possessed the criminal intent required for the commission of the crime. We do not agree.

To prove that a defendant possessed the requisite intent to violate § 53a-182, the state must prove that “the predominant intent [of the actor] is to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm. In order to sustain a conviction for disorderly conduct, the state must begin by demonstrating that the defendant had such a state of mind.” State v. Indrisano, 228 Conn. 795, 810-11, 640 A.2d 986 (1994).

As is often stated, “[i]ntent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Vasques, 68 Conn. App. 194, 207, 792 A.2d 856 (2002).

In the present case, the court heard Gawel’s testimony concerning the incident. Gawel testified that on November 21, 1999, she and the defendant became engaged in an argument that was “very loud.” She testified that she and the defendant were having a “very heated” dispute that involved “a lot of commotion” and that during the incident, many of her neighbors came out of their apartments. Gawel also testified that she went to a neighbor’s apartment to call the police.

The court also heard Williams’ testimony about the incident. Williams testified that when he arrived on the scene, Gawel was upset and crying. Williams testified that Gawel told him that the defendant had discovered her speaking on the telephone with a male acquaintance and became very upset. Gawel also told Williams that the defendant “grabbed her by the hair and slapped her in the face.” Williams further testified that he observed swelling on Gawel’s face and loose strands of hair on her bathrobe consistent with her allegations. Williams also testified that Gawel did not want to make a written statement, but that she wanted police to arrest the defendant.

From that evidence, the court reasonably and logically could infer that the defendant had engaged in an unreasonably loud argument with Gawel and engaged in physically abusive conduct in striking her in the face and pulling her hair. That conduct also constitutes ample circumstantial evidence of the defendant’s intent and supports the court’s finding that he possessed the requisite intent to violate § 53a-182 (a).

The evidence permitted the court to find, by a fair preponderance of the evidence, that the defendant violated § 53a-182 (a); the court’s findings were not clearly erroneous. We note, however, as we did in part I, that even if we were to have concluded otherwise on this claim, such decision would not have given us occasion to upset the corut’s judgment because it rests on a finding that he violated the terms of his probation in five distinct ways.

Ill

Finally, the defendant claims that the evidence adduced at trial did not support the court’s finding that he failed to inform his probation officer of his whereabouts. We disagree.

The evidence adduced at the hearing demonstrated that the defendant resided at a LaSalle Street address in New Britain on October 6, 1999, the time of his last meeting with Maloney. The defendant failed to report to his scheduled meeting with Maloney on October 27, 1999. In November or December, 1999, the defendant, along with Gawel, moved to a Davis Street address in New Britain. Maloney testified that prior to trial, October 6, 1999, was the last date on which she had any contact with the defendant. Maloney also testified that at the time that she presented the court with the application for an arrest warrant, she “had no information as to his current whereabouts.”

We review the defendant’s claim in the same manner that we reviewed his claim in part II. From the evidence presented at trial, the court reasonably could infer that the defendant did not notify the office of adult probation of his change of address. Further, there was evidence presented that the arrest warrant, once issued, could not be served for a four month period due to a lack of information by the probation office as to the defendant’s address.

Accordingly, we conclude that the court’s finding that the defendant failed to inform his probation officer of his whereabouts was not clearly erroneous.

IV

The record amply supports the court’s finding that the defendant violated the conditions of his probation requiring him not to violate any criminal law of this state, to keep his probation officer informed of his whereabouts and to give such officer immediate notice of any change of address. We again note that the defendant has not contested on appeal his having been found in violation of probation for not reporting to probation as directed or for his wilful failure to appear in court, which the court noted as a “repetition.”

“In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” Payne v. Robinson, 10 Conn. App. 395, 403, 523 A.2d 917 (1987), aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988).

Once the court determined that the defendant had violated one or more of the conditions of his probation, terms which the defendant agreed to observe, it proceeded to the dispositional phase of the hearing, in which the court found that the beneficial purposes of the defendant’s probation no longer were being served and that it should be revoked. The court could have sentenced the defendant to serve the full unexecuted portion of the sentence, but rather imposed a sentence of a little more than half of the defendant’s unserved sentence. The court’s considerations, in imposing sentence, as appear of record, were an appropriate exercise of judicial discretion. The defendant has failed to satisfy his heavy burden to prove any abuse of discretion by the court in imposing sentence, even if the court based such sentence on a violation of a single condition of his probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       It appears from the record, and the court noted, that the defendant conceded that the state had proved that ground. In any event, the evidence demonstrated that in October, 1998, the defendant failed to report to a scheduled meeting with his probation officer. The court continued his probation after he admitted his failure to report. The defendant failed, as well, to report to his October 27, 1999 meeting and, as the court found, that as of October 6,1999, and for approximately ten months thereafter, the defendant failed to report to his probation officer at all. The defendant does not challenge those findings on appeal.

       The defendant does not challenge that finding on appeal.

       General Statutes § 53a-31 (b) provides: “Issuance of a warrant or notice to appear for violation pursuant to section 53a-32, shall interrupt the period of the sentence as of the date of such issuance until a final determination as to the violation has been made by the court. During the interrupted period, the court may impose any of the conditions of release set forth in section 54-64a. In the absence of a warrant or notice to appear for violation pursuant to section 53a-32, if the defendant has failed to comply with any of the conditions of probation or conditional discharge, such failure shall not relieve the Office of Adult Probation from the responsibility of supervising the defendant.”

       The defendant made that concession during oral argument before this court.

       General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise . . . .”

       Apart from arguing that the state failed to demonstrate that he possessed the mental state necessary to violate General Statutes § 53a-182, the defendant also claims that the state failed to prove that he engaged in behavior that violated the statute. We disagree. From the aforementioned evidence before the court and the inferences reasonably drawn therefrom, the court reasonably could have found by a fair preponderance of the evidence, as it did, that the defendant engaged in fighting or in violent, tumultuous or threatening behavior; General Statutes § 53a-182 (a) (1); that by exhibiting offensive or disorderly conduct, he annoyed or interfered with another person; § 53a-182 (a) (2); and that he made unreasonable noise. General Statutes § 53a-182 (a) (3). The defendant’s arguments to the contrary reflect a view of the evidence that was not shared by the finder of fact, the court. Further, we note that a finding that the defendant had violated even one of those subdivisions of the statute would have constituted a violation of the statute and, consequently, of his probation.


text:
    STATE OF CONNECTICUT v. KIRK R.

    (AC 21921)
    Foti, Mihalakos and Bishop, Js.

      Argued October 25
    officially released December 31, 2002

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, Richard F. Jacobson, special assistant state’s attorney, and Stephen J. Sedensky III, supervisory assistant state’s attorney, for the appellee (state).

       In accordance with the spirit of General Statutes § 54-86e, and to protect the victim’s legitimate privacy interests, we will not use the defendant’s full name or the names of the victims in this opinion.

   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the first degree in violation of General Statutes (Rev. to 1997) § 53a-70 (a) (2) and two counts of risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2). The defendant was sentenced to a total effective term of twenty years incarceration, execution suspended after fifteen years, with thirty-five years of probation. The trial court, relying on § 53a-70 (b), imposed ten years of the fifteen year sentence of confinement as a mandatory minimum sentence. The defendant claims that as to the conviction of sexual assault in the first degree, the court improperly (1) removed a finding of an aggravating factor required under § 53a-70 (b) from the jury, thereby committing plain error, and (2) allowed the state to proceed with an information that failed to provide him with notice that he was exposed to a ten year mandatory minimum sentence in violation of his constitutional rights under article first, § 8, of the constitution of Connecticut and the sixth amendment to the United States constitution. The defendant also claims that the court improperly instructed the jury regarding how any questions it might have during its deliberations were to be presented to the court. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant sexually assaulted his stepdaughters several times between July, 1997, and September, 1998. One of the victims turned eight years old and the other turned four years old during that time. Additional facts will be stated as necessary.

I

The defendant first claims that the court could not impose a mandatory minimum sentence of ten years pursuant to § 53a-70 (b) without having first submitted to the jury for its determination the question of the victims’ ages and that the failure to do so constituted plain error. We do not agree.

Before discussing the merits of the defendant’s claim, we note our standard of review. The defendant concedes that his claim was not properly preserved at trial. The defendant does not seek review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), nor would such review be available because, as he also concedes, his claim is not one of “constitutional magnitude alleging the violation of a fundamental right”; id., 239; and therefore fails to satisfy the second prong of Golding.* **** Nevertheless, we agree with the defendant that we may review his claim under the plain error doctrine as set forth in State v. Velasco, 253 Conn. 210, 218-19 n.9, 751 A.2d 800 (2000); see also State v. Pierce, 69 Conn. App. 516, 521-22, 794 A.2d 1123, cert. granted, 261 Conn. 914, 806 A.2d 1056 (2002).

In Velasco, the defendant claimed that facts supporting a violation of General Statutes § 53-202k, which authorizes a nonsuspendable five year addition to the sentence of one who is convicted of an underlying class A, B or C felony with a firearm, must be found by the jury rather than by the sentencing court. State v. Vel-asco, supra, 253 Conn. 213. Although the claim was unpreserved at trial, our Supreme Court reviewed the claim under the plain err or doctrine because it determined that the claim was essentially one of statutory interpretation. Id., 219 n.9.

On the basis of its statutory analysis, the Velasco court held that the legislature intended for the jury, not the court, to make the factual determinations required by the statute and that to do otherwise was error. The court’s analysis, however, did not end with its determination of plain error. Relying on Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), the court further reviewed whether the error nonetheless was harmless. After determining under the facts of the case that the error was not harmless; State v. Velasco, supra, 253 Conn. 236; the court reversed the judgment, in part, directed that the sentence under § 53-202k be vacated and remanded the case for a new trial on that issue alone. Id., 249.

The defendant in the present case would have us decide, as in Velasco, that on the basis of statutory construction, the determination of whether a victim of sexual assault is younger than age ten is a question of fact that the court should give to the jury to determine beyond a reasonable doubt. Further, the defendant urges, on the basis of Velasco, that we should hold that the court committed plain error by sentencing him to serve a ten year minimum sentence wholly on the basis of the court’s own determination that the victims were younger than age ten. We decline to do so.

At issue is whether the legislature intended the fact that the victims were younger than ten years of age to be treated as an element of the offense that must be found by a jury or whether the legislature intended that to be merely a sentencing factor to be decided by the court. See Harris v. United States, 536 U.S. 545, 565, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). For the following reasons, we find the latter to be true.

“Statutory construction is a question of law and, therefore, our review is plenary. . . . [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . .

“Several additional tenets of statutory construction guide our interpretation of a penal statute. . . . [C]rim-inal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . [U]nless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Citations omitted; internal quotation marks omitted.) State v. Velasco, supra, 253 Conn. 219-20.

The defendant does not argue that the language of § 53a-70 is in any way unclear or ambiguous. Section 53a-70 (a) is the substantive section of the statute and provides the elements that constitute sexual assault in the first degree. Section 53a-70 (b) is the penalty portion of the statute and provides that a violation of the statute is a class B felony, and includes a two year mandatory minimum sentence of imprisonment for all defendants unless the victim is less than ten years of age, in which case the mandatory minimum sentence is increased to ten years imprisonment. Nowhere in § 53a-70 does it provide for a penalty that would exceed the twenty year statutory maximum sentence set forth in General Statutes § 53a-35a; therefore, it cannot be construed as a sentence enhancement statute.

We note that the legislature added the increased mandatory minimum sentence to § 53a-70 in 1995. The statute contains no express language that suggests whether the legislature intended the jury or the sentencing court to determine whether the relevant aggravating fact existed. Additionally, our review of the legislative debate on the amendment does not reveal any “ ‘evident legislative intent ....’” State v. Velasco, supra, 253 Conn. 220. Structurally, however, the legislature added the aggravating factor to the sentencing portion of the statute, separated from the substantive elements of the crime. That suggests an implicit intent to make the age of the victim a sentencing factor.

As we have stated, § 53a-70 is unlike § 53-202k in that § 53-202k is a sentence enhancement statute whereas § 53a-70 imposes only a mandatory minimum sentence. The court’s statutory analysis in Velasco turned on its finding of a “well established practice of submitting to the jury the ultimate fact that triggers the application of a sentence enhancement statute.” Id., 226. Because, as the defendant concedes, § 53-70 is not a sentence enhancement statute, Velasco's rationale cannot be applied in this case.

More applicable to the present action is the holding of the United States Supreme Court in Harris that specific factual findings necessary for the court to impose a sentence within the range permitted by statute, but not beyond the maximum permitted by the statute, may be found by the court at sentencing. See Harris v. United States, supra, 536 U.S. 565. We have stated that “[t]here is a difference between a ‘sentencing factor’ and a ‘sentencing enhancement.’ ”State v. Pierce, supra, 69 Conn. App. 527. A sentence enhancement increases the maximum statutory penalty contingent on certain factual findings that are now “element[s] of an aggravated crime” and, under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), must be found by the jury. Harris v. United States, supra, 557. In contrast, “[i]f the facts judges consider when exercising their discretion [in sentencing] within the statutory range are not elements [of the crime], they do not become as much merely because legislatures require the judge to impose a minimum sentence when those facts are found — a sentence the judge could have imposed absent the finding. . . . These facts, though stigmatizing and punitive, have been the traditional domain of judges . . . .” (Citations omitted.) Id., 560. Thus, they are sentencing factors that a court may determine.

The Harris court’s rationale for that distinction is that the aggravating fact in a sentence enhancement “extend[s] the power of the judge, allowing him or her to impose a punishment exceeding what was authorized by the jury,” whereas a sentencing factor “restraints] the judge’s power, limiting his or her choices within the authorized range. It is quite consistent to maintain that the former type of fact must be submitted to the jury while the latter need not be.” Id., 567. We find that rationale persuasive.

It is implicit from the structure and language of § 53a-70, that the legislature intended only to limit the court’s range of possible minimum sentences in those egregious sexual assault cases in which the victim is younger than the age of ten, but not to create a separate, aggravated offense. Additionally, the age of the victim is a traditional factor that a judge likely would consider in sentencing someone convicted of sexual assault or any other violent crime. Because we conclude that a finding that the victim was younger than age ten is not an element of the crime provided for in § 53a-70 (a) for which a jury must make a factual determination, but a sentencing factor capable of determination by the sentencing court, we ultimately conclude that the court did not commit plain error in not submitting the issue to the jury.

II

The defendant next alleges a violation of his constitutional right to be informed of the nature and cause of the accusation against him under the sixth amendment to the United States constitution, and article first, § 8, of the constitution of Connecticut. That claim was not raised at trial. Therefore, the defendant seeks review pursuant to State v. Golding, supra, 213 Conn. 239-40.

“The sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution guarantee a criminal defendant the right to be informed of the nature and cause of the charges against him with sufficient precision to enable him to meet them at trial.” State v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). “When the state’s pleadings have ‘informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.’ ” State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984). “The constitutional mandate is fulfilled where the state has set forth the statutory designation of the crime, leaving to the defendant the burden of moving for a bill of particulars where [he] wishes greater detail regarding the manner in which [he] committed it. . . . The defendant bears the burden of establishing why additional particulars were necessary to the proper preparation of [his] defense.” (Citations omitted.) State v. Nita, 27 Conn. App. 103, 117-18, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992).

The state argues that our review of the merits of the defendant’s claim will lead us to conclude that it fails under both the third and fourth prongs of Golding in that the defendant failed to establish that a constitutional violation clearly existed that clearly deprived him of a fair trial and also that the state has demonstrated that the error, if any, was harmless beyond a reasonable doubt. Because we agree with the state that the defendant’s claim fails under the third prong of Golding, we need not consider prong four.

The defendant maintains that the information charging him with sexual assault in the first degree under § 53a-70 (a) (2) failed to provide him with notice that he was exposed to a ten year mandatory minimum sentence upon conviction and therefore violated his sixth amendment right to notice of “the nature and cause of accusation . . . .” U.S. Const., amend. VI. We disagree.

The amended information clearly stated that the defendant was being accused of violating § 53a-70 (a) (2). As discussed in part I, that statute is in two parts. The first part, § 53a-70 (a), describes what constitutes a violation of the statute, and the second part, § 53a-70 (b), describes the penalty, including the possibility of a mandatory minimum sentence. The information provided the defendant with the particular statute he was accused of violating in a manner sufficient for him to prepare a defense. As we held in part I, whether the victims were younger than age ten is a sentencing factor, not an element of the crime, and therefore those facts did not need to be included in the information. See Harris v. United States, supra, 536 U.S. 568.

Further, the defendant’s defense at trial was to deny outright that he had assaulted the victims. The ages of the victims never were contested. The defendant, in fact, admits in his brief that as the victims’ stepfather, he “may be presumed to have known that the victims were under the age of ten years at the time of the alleged assaults.” He was aware, therefore, of all facts necessary to inform him that the mandatory minimum sentence might apply. We agree with the state that notice of •violation of the statute is notice of the possibility of an enhanced minimum sentence. We conclude, therefore, that the defendant’s claim fails under the third prong of Golding because the defendant has failed to establish clearly a constitutional violation that clearly deprived him of the opportunity for a fair trial.

Ill

The defendant last posits that he is entitled to a new trial on all counts because the court improperly instructed the jury that any questions for the court during deliberations should be presented in writing by the foreperson. We find no merit to that claim.

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort .... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . .

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected .... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Internal quotation marks omitted.) State v. Morales, 71 Conn. App. 790, 820-21, 804 A.2d 902, cert. denied, 262 Conn. 902, 810 A.2d 270 (2002).

Relying solely on State v. Fletcher, 10 Conn. App. 697, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988), the defendant claims that the instruction given to the jury regarding the procedure for asking questions that might arise during deliberations “effectively prohibited an individual juror from requesting guidance on the nature and elements of the crimes charged without the prior approval of the foreperson,” thus depriving the defendant of due process.

In Fletcher, we stated: “The duty of the trial court in [a criminal] case is to instruct the jury on the law applicable to the case.” Id., 698. “The defendant is entitled to a jury which is correctly and adequately instructed.” (Internal quotation marks omitted.) Id., 701. “[E]ach juror, through the foreperson, must be able to apply to the trial judge for the purpose of obtaining a clarification of the applicable law.” Id., 704.

The constitutional error we addressed in Fletcher, however, was the court’s refusal to reinstruct, after being asked to do so by the jury, on the basis of the court’s belief that the question at issue in that case was not a unanimous request by all jurors. In the present action, there was no refusal to reinstruct the jury; Fletcher is inapplicable here. We find nothing in the court’s instruction that would impede an individual juror from posing a question to the court. The court properly sought to establish an orderly and procedurally fair system for dealing with jurors’ questions. The jury, in fact, made five requests to have testimony read back and the court complied with each request.

There is no evidence that suggests that any juror’s ability to ask any question was frustrated by the court’s instruction or that the court denied any request of the jury. On the basis of our review of the instruction as a whole, we conclude that the court’s instruction was proper and did not mislead the jury or otherwise violate the defendant’s right to due process.

The judgment is affirmed.

In this opinion the other judges concurred.

       Specifically, the trial court sentenced the defendant to a term of twenty years incarceration, suspended after fifteen years, followed by thirty-five years of probation on the first count, which alleged violations of General Statutes (Rev. to 1997) § 53a-70 (a) (2), ten years suspended with thirty-five years of probation on the second count, which alleged risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21 (2), twenty years suspended after fifteen years followed by thirty-five years of probation on count three, which alleged a violation of § 53a-70 (a) (2), and ten years suspended with thirty-five years probation on the fourth count, which alleged risk of injury to a child in violation of § 53-21 (2). The sentences on the first and third counts were ordered to be concurrent, and the sentences on counts two and four were ordered to be consecutive to each other and to the sentences on counts one and two.

       General Statutes (Rev. to 1997) § 53a-70 (b) provides in relevant part: “Sexual assault in the first degree is a class B felony for which ... if the victim of the offense is under ten years of age . . . ten years of the sentence imposed may not be suspended or reduced by the court . . . .”

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

       General Statutes § 53-202k is a sentence enhancement provision that can increase the sentence permitted for the underlying crime beyond the statutory maximum, whereas General Statutes § 53a-70 (b) provides only for a mandatory minimum sentence. See State v. Velasco, supra, 253 Conn. 229-30 nn.14-15. In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), the United States Supreme Court held that under the sixth amendment’s notice and jury trial guarantees, and as a matter of due process, “any fact (other than prior conviction) that increases the

        maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” (Emphasis added; internal quotation marks omitted.) Id., 476. The Supreme Court recently clarified, however, that the Apprendi rule is inapplicable where facts that the court may find at sentencing, which are not elements of the underlying crime, are utilized to impose a mandatory minimum sentence but not to exceed the maximum sentence for the crime. See Harris v. United States, 536 U.S. 545, 557, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002). The defendant concedes that, here, the aggravating factor did not extend the punishment for the underlying felonies beyond the statutory limit for these crimes, and he therefore does not claim a violation of his due process rights by the trial court’s removal of this finding from the jury.

       Because we conclude that even if we were to find an error such error would be harmless; see footnote 13; the defendant’s claim also would fail to satisfy the fourth prong of Golding.

       The Velasco court noted: “[PJlain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... An important factor in determining whether to invoke the plain error doctrine is whether the claimed error resulted] in an unreliable verdict or a miscarriage of justice. . . . Plain error review may be appropriate where consideration of the question is in the interest of public welfare or of justice between the parties. . . . Plain error review is also appropriate in matters involving statutory construction because the interpretation of [a] statute and the resolution of [the] issue does not require further fact-finding .... Under such circumstances, the parties are not prejudiced by our review of the underlying claim. ” (Citations omitted; internal quotation marks omitted.) State v. Velasco, supra, 253 Conn. 219 n.9.

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       The Velasco opinion was released on May 16, 2000, just prior to the release of the opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), which was decided on June 26,2000. Although faced with essentially the same issue as in Apprendi, the Velasco court’s holding is based on statutory construction, not constitutional analysis, as in Apprendi.

       In Neder, the United States Supreme Court held that if an element of a criminal offense was erroneously omitted from a jury charge, this was not a structural error requiring automatic reversal but was subject to harmless error analysis. See State v. Price, 61 Conn. App. 417, 423-25, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001). “Under the Neder harmless error test, the omission of an essential element from a jury charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that jury verdict would have been the same absent the error . . . .” (Internal quotation marks omitted.) Id., 424; see also State v. Montgomery, 254 Conn. 694, 737-38, 759 A.2d 995 (2000); State v. Velasco, supra, 253 Conn. 232-33.

      A class B felony has a maximum penalty of twenty years imprisonment. See General Statutes § 53a-35a, which provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows ... (5) for a class B felony other than manslaughter in the first degree with a firearm under section 53a-55a, a term not less than one year nor more than twenty years . . . .”

       Public Acts 1995, No. 95-142, which primarily established Connecticut’s sex offender registration law (Megan’s Law), also amended General Statutes § 53a-70 (b) to include that ten years of the sentence imposed may not be suspended or reduced by the court if the victim is younger than ten years of age. Representative Andrew M. Norton introduced the change as an amendment to the bill in response to the highly publicized case of Emily H., a nine month old who was raped by a Hartford man on March 13, 1995. The House adopted the amendment on May 17, 1995, and the Senate did so on May 25, 1995. See 38 H.R. Proc.., Pis. 7-8, 1995 Sess., pp. 2589-2698; 38 S. Proc., Pt. 10, 1995 Sess., pp. 3444-47.

       We note that Harris was decided after the defendant had submitted his brief. “Whether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt. When the judge sentences the defendant to a mandatory minimum, no less than when the judge chooses a sentence within the range, the grand and petit juries already have found all the facts necessary to authorize the Government to impose the sentence. The judge may impose the minimum, the maximum, or any other sentence within the range without seeking further authorization from those juries — and without contradicting Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)].” Harris v. United States, supra, 536 U.S. 565.

       Even if we were to hold that General Statutes § 53a-70 does require that the jury and not the sentencing court make the determination of whether the victim is younger than age ten, in the present case, the defendant’s claim nevertheless would fail because, as in Velasco, we still would need to employ harmless error analysis. See State v. Velasco, supra, 253 Conn. 232-33; see also State v. Davis, 255 Conn. 782, 793-94, 772 A.2d 559 (2001); State v. Montgomery, supra, 254 Conn. 738. After our review of the record, we conclude that the fact that the victims were younger than ten was “uncontested and supported by overwhelming evidence . . . .” (Internal quotation marks omitted.) State v. Price, 61 Conn. App. 417, 424, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001). Any error therefore would have been harmless.

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
      The defendant’s state constitutional claim is rooted in article first, § 8, of the constitution of Connecticut, which provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel .... No person shall be . . . deprived of . . . liberty . . . without due process of law . . . .”
      We limit our analysis to the federal constitutional claim because the defendant “has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised.” (Internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 69 n.11, 762 A.2d 1278 (2000). Consequently, we see no reason, on the facts of this case, to analyze independently the defendant’s argument as it relates to the state constitution. Id.

       See footnote 4.

       The court instructed and directed the jury, in part, as follows: “[Y]ou do have the right to ask questions of the court once you are in deliberations. If you have any question, it has to be presented, it must be presented by way of a written note. We do not communicate orally once you are in your deliberations. If you have a question that you need to ask of the court, I would ask that you have [the] foreperson write it out regardless of which juror is posing the question. All of you, of course, individually have the right to pose questions to submit to the court. However, the court prefers to know that you have discussed it first among yourselves before the question is given to the court. If each of you are just going to sit down and write notes and send [them] out without sharing with the other jurors, then I would have no way of knowing whether you discussed it among yourselves before the note was sent out to the court, and your oath requires that you do discuss every aspect of your deliberation with each other. Of course, most often what happens is, one, the question is posed, and after you have discussed it among yourselves, you normally can resolve it yourselves. That is the preferred practice. If, however, after this kind of discussion you still can’t resolve it, then you may submit the question to the court. But again, as I have requested, have the foreperson write it out. I would ask whoever is [the] foreperson not to resist writing out a question that may be asked by another juror. This would allow for some consistency and again assures me that you have discussed it among yourselves.”


text:
    STATE OF CONNECTICUT v. LUIS FELICIANO
    (AC 23063)
    Foti, Mihalakos and Hennessy, Js.

      Argued October 29
    officially released December 31, 2002

      Kirstin B. Coffin, special public defender, for the appellant (defendant).

      Eileen F. McCarthy, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Luis Feliciano, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). The defendant was sentenced to the custody of the commissioner of correction for a period of forty-five years, plus five years consecutive and nonsuspendable, pursuant to General Statutes § 53-202k, for a total effective sentence of fifty years. On appeal, the defendant claims that the court improperly (1) denied his motion for a judgment of acquittal, (2) instructed the jury regarding consciousness of guilt, (3) instructed the jury regarding certain hearsay testimony and (4) imposed an enhanced sentence of five years incarceration pursuant to § 53-202k. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On November 2, 1998, the defendant, along with Alexander Figueroa, was selling drugs at the intersection of Park and Wadsworth Streets in Hartford. In the early hours of that morning, a friend of Figueroa, Edwin Soler, and Soler’s girlfriend, Brenda Morales, drove to that location and picked up the defendant and Figueroa. The four then drove to a lot across from the Wadsworth greenhouses. At approximately 3:20 a.m., the victim, Karl Beverley, approached the car seeking to buy $20 worth of drugs. The four had no drugs to sell, but the defendant told his friends that he would take the victim’s money anyway. The defendant exited the car, and a fight took place with some gunshots being fired. Beverley somehow managed to take the defendant’s gun and run. As a result of the fight, the defendant suffered a huge blood clot on his hand from the hammer of his gun.

The defendant and his three acquaintances then drove to a location at Park and Wadsworth Streets, where the defendant obtained a revolver. They then proceeded to drive around looking for Beverley. When Beverley was seen, the defendant got out of the car with his weapon and shot the victim, causing him to fall to the ground. The defendant then walked to him and shot him again. He then returned to the car and stated: “I think I killed him.”

After the shooting, the group drove the wrong way on West Street, and fled the city by way of Interstate 91 going south. They exited the interstate in Wethers-field and proceeded north on the Silas Deane Highway, eventually returning to Hartford by city streets.

The victim was found lying in a driveway of a parking lot on West Street. A baseball cap and a .22 caliber revolver were found near him on the ground. He was killed by two gunshots to the chest and abdomen fired from a .38 caliber revolver.

The following day, the defendant was heard bragging that he had “caught his first prior,” which meant he had committed his first killing. Further, the defendant was heard to say that if his friends talked, he would bring them down with him. Additional facts will be set forth as necessary.

I

The defendant alleges that the court improperly denied his motion for a judgment of acquittal because there was insufficient evidence to sustain the jury’s verdict. The defendant claims in his principal brief that because “there was absolutely no physical evidence linking [him] to the offense” and because the “state’s entire case consisted of questionable eyewitness testimony,” the evidence was insufficient, particularly in light of the testimony from defense witnesses, who included the defendant. We do not agree.

Because the defendant elected to put on evidence following the denial of his motion for a judgment of acquittal, which he made after the close of the state’s case-in-chief, our review of his sufficiency of the evidence claim must be conducted in light of all the evidence presented at trial. State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984); State v. Wright, 62 Conn. App. 743, 748-49, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001).

“The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong[ed] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the juiy to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citation omitted; internal quotation marks omitted.) State v. Wright, supra, 62 Conn. App. 749-50.

“We do not sit as a thirteenth juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. . . . Rather, we must defer to the jury’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. . . . State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the juiy’s verdict.” (Internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 258, 681 A.2d 922 (1996).

The basis of the defendant’s claim appears to be that the jury should have believed his witnesses and not those of the state. It is the jury’s function, however, to weigh the evidence, pass on credibility and find facts; that responsibility belongs exclusively to the jurors “as the sole triers of fact and credibility . . . .” (Internal quotation marks omitted.) State v. Provost, 251 Conn. 252, 256, 741 A.2d 295 (1999), cert. denied, 531 U.S. 822, 121 S. Ct. 65, 148 L. Ed. 2d 30 (2000); State v. Pratt, 235 Conn. 595, 604, 669 A.2d 562 (1995).

We can discern no benefit from reciting in detail the evidence presented by the state and the testimony elicited. Suffice it to say that the issue presented to the jury was one of credibility. The state presented three eyewitnesses who testified that they saw the defendant shoot the victim. The defense presented evidence suggesting that those witnesses’ accounts were either inconsistent or biased. Keeping in mind our deference to the jury’s determination of credibility and viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient for the jury reasonably to have found that the defendant was guilty beyond a reasonable doubt. Therefore, the court properly denied the defendant’s motion for a judgment of acquittal.

II

The defendant next alleges that the court improperly instructed the jury on consciousness of guilt. The defendant makes two claims. Specifically, he first claims in his principal brief that the court should have instructed the jury “that innocent explanations may have existed” and that the jury should consider the defendant’s explanations for the flight, for example that “Soler drove away.” That claim was preserved properly for our review. The defendant failed to preserve his second claim, which is that the court improperly instructed the jury on consciousness of guilt regarding statements he had made after the murder. Nevertheless, he claims that the charge merits review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

As to that claim, the court instructed the jury as follows: “Now, in any criminal trial, it is permissible for the state to show that conduct or statements made by a defendant after the time of the alleged offense may fairly have been influenced by the criminal act. That is, the conduct or statements show a consciousness of guilt. The state alleges that certain acts of the defendant may constitute consciousness of guilt in this case. The state alleges that the defendant fled the scene immediately following the alleged crime. The state contends that this flight from the scene evidences consciousness of guilt.

“Additionally, the state alleges that certain statements made by the defendant regarding keeping Edwin Soler quiet about the events of November 2, 1998, also tend to show a consciousness of guilt on the part of the defendant. The alleged flight of the defendant from the scene and the defendant’s alleged statements regarding Edwin Soler do not raise a presumption of guilt. It is entirely up to you as judges of the facts to decide whether conduct or statements of the defendant reflect consciousness of guilt or not and to consider such in your deliberations in conformity with these instructions.”

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).

“A jury charge in which the court removes from the jury’s consideration an issue that is one of the essential elements of the crime, and thereby relieves the state of the burden of proving every element beyond a reasonable doubt” is unconstitutional. (Internal quotation marks omitted.) State v. Washington, 28 Conn. App. 369, 373, 610 A.2d 1332, cert. denied, 223 Conn. 926, 614 A.2d 829 (1992); see Sandstrom v. Montana, 442 U.S. 510, 514-27, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). “A proper instruction on flight as consciousness of guilt, however, merely identifies a permissive inference that the jury might draw from the defendant’s conduct.” State v. Washington, supra, 373. Similarly, where the jury has been instructed on a defendant’s statement as evidence of consciousness of guilt, our Supreme Court has stated that “[a]n instruction about consciousness of guilt is not so directly related to an essential element of the crime as to warrant plenary discussion of whether the claim is of constitutional magnitude alleging [the] violation of a fundamental [right . . . .]” (Internal quotation marks omitted.) State v. Tillman, 220 Conn. 487, 504, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992).

Because no constitutional issue is raised, we review the entire charge to determine if it is correct in law and whether the court’s instructions presented the case to the jury so that no injustice would result. See State v. Roman, 67 Conn. App. 194, 204-205, 786 A.2d 1147 (2001), cert. granted on other grounds, 259 Conn. 920, 791 A.2d 567 (2002).

“[F]light, when unexplained, tends to prove a consciousness of guilt. . . . Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the jury’s consideration. . . . The fact that the evidence might support an innocent explanation as well as an inference of a consciousness of guilt does not make an instruction on flight erroneous. . . . Moreover, [t]he court was not required to enumerate all the possible innocent explanations offered by the defendant.” (Internal quotation marks omitted.) State v. Figueroa, 257 Conn. 192, 196-97, 777 A.2d 587 (2001), citing State v. Freeney, 228 Conn. 582, 593-94, 637 A.2d 1088 (1994).

Turning to the case before us, although the court could have referenced the defendant’s “explanations” of flight, the court was not required to do so. See State v. Hines, 243 Conn. 796, 813, 709 A.2d 522 (1998). As previously stated, an improper flight instruction does not raise a constitutional issue. We conclude that the court correctly instructed the jury in accordance with the law regarding the defendant’s flight from the scene of the murder.

The defendant’s second claim, that the court improperly instructed the jury as to certain statements he made after the murder, was not preserved and also is not of constitutional magnitude. We therefore cannot review the claim under Golding because it fails to satisfy Golding’s second prong. Our review of the entire charge leads us to conclude that it is correct in law and presented the case to the jury so that no injustice resulted.

Ill

The defendant next claims that the court improperly instructed the juiy regarding the restricted and permissible uses of certain hearsay testimony from a defense witness, Daniel Santiago, concerning what Soler allegedly had told Santiago when both men were incarcerated.

The facts relevant to the defendant’s claim are as follows. Santiago testified on direct examination that Soler had told him, while both were incarcerated, that Soler, and not the defendant, had shot the victim. Following a sidebar conference with counsel, the court, without defense objection, gave a limiting instruction to the jury that it should consider that testimony not for the truth of who killed Beverley, but rather solely to impeach or to undermine Soler’s credibility, as Soler also had testified that he never had told Santiago that he, Soler, had killed Beverley. The defendant also did not object to the court’s renewing that instruction during the court’s final charge to the jury. He now seeks Golding review of his unpreserved claim.

The state claims that the record is inadequate for a full review of the defendant’s claim. In its principal brief, the state posits that “[although the hearsay nature of Santiago’s testimony was discussed on the record several times, the issue appears either to have been resolved in a sidebar [conference] between the court and counsel, resolved in the course of a chambers conference, was never ruled on or was waived by the defendant.” We agree.

“It is the responsibility of the appellant to provide an adequate record for review . . . .” Practice Book § 60-5; Practice Book § 61-10. On the basis of our review of the record, we conclude that although the issue of Santiago’s hearsay testimony had been discussed earlier in the trial proceedings, the record contains no ruling as to the admissibility of the testimony or any objection by the defendant on the matter, either during or after trial. If the parties discussed or resolved the issue during a sidebar conference, it was the duty of the defendant to ensure that this was preserved for the record. We conclude that the record is inadequate for review and, therefore, that the defendant’s claim fails to satisfy the first prong of Golding.

Even if we were to conclude that the record is adequate, we recognize that the defendant’s claim is an evidentiary one made under the guise of “instructional” error. The standard for an unpreserved claim involving an evidentiary ruling is well settled.

“This court is not bound to consider claims of law not made at the trial. ... In order to preserve an evi-dentiary ruling for review, trial counsel must object properly. . . . Our rules of practice make it clear that when an objection to evidence is made, a succinct statement of the grounds forming the basis for the objection must be made in such form as counsel desires it to be preserved and included in the record. ... In objecting to evidence, counsel must properly articulate the basis of the objection so as to apprise the trial court of the precise nature of the objection and its real purpose, in order to form an adequate basis for a reviewable ruling. . . . Once counsel states the authority and ground of his objection, any appeal will be limited to the ground asserted. . . .

“These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act. . . . Assigning error to a court’s evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.” (Citations omitted; internal quotation marks omitted.) State v. Bush, 249 Conn. 423, 427-28, 735 A.2d 778 (1999).

“Regardless of how the defendant has framed the issue, he cannot clothe an ordinary evidentiary issue in constitutional garb to obtain appellate review. . . . Although this court will review an unpreserved constitutional claim if it satisfies the criteria of State v. Golding, [supra, 213 Conn. 239-40], unpreserved evidentiary claims are not afforded the same protection.” (Citation omitted; internal quotation marks omitted.) State v. McHolland, 71 Conn. App. 99, 108, 800 A.2d 667 (2002).

In the present case, the defendant asks us to conclude that although Santiago’s statement was hearsay, it was, nonetheless, sufficiently reliable and trustworthy such that the court should have allowed the jury to consider it for its truth, namely, that the defendant was not the shooter; therefore, the defendant claims, the court improperly limited the purpose for which the juiy could consider the testimony. That clearly is an evidentiary issue that should have been raised at trial, not for the first time on appeal. As previously discussed, the record is silent as to the resolution of the hearsay issue. Because the defendant’s claim is unpreserved and evi-dentiary in nature, it does not present a claim of constitutional magnitude and, therefore, fails to satisfy the second prong of Golding.

rv

The defendant claims finally that the court improperly enhanced his sentence by imposing a consecutive five year term of imprisonment pursuant to § 53-202k. Because his claim is unpreserved, the defendant seeks Golding review. In his principal brief, the defendant claims that although “the trial court put the issue of whether the offense was committed with a firearm to the jury, [it] did not specifically put the issue of § 53-202k to the jury.” The defendant argues that the “evidence that [he] utilized a firearm was neither overwhelming nor uncontested” and that “the murder weapon was not found, and the jury could only speculate that some type of ‘firearm’ was used . . . .”

Although the jury, under § 53-202k, is required to make the determination of whether a defendant used a firearm in the commission of a class A, B or C felony, the failure by the court to submit the issue to the jury is subject to a harmless error determination. State v. Montgomery, 254 Conn. 694, 736-38, 759 A.2d 995 (2002); see also Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). The Montgomery court explained that application of § 53-202k depends on factual findings concerning the two elements of that statute: (1) that the defendant committed a class A, B or C felony and (2) that the defendant committed such felony with the use of a firearm. State v. Montgomery, supra, 737-38. That court further explained that the jury in that case clearly had made a factual determination regarding the first element of the statute because it had convicted the defendant of the crime of murder, a class A felony. Id., 738. It further reasoned that the jury necessarily had resolved the factual determination underlying the second element in the state’s favor because the state’s case concerning the commission of the felony was closely linked to the defendant’s use of a firearm. Id. The state in Montgomery had alleged that the defendant committed the murder with the use of a firearm, and the trial court expressly referenced that allegation in its charge to the jury. Id., 737.

Applying the standard set forth in Montgomery to the present case, we conclude that the court’s failure to submit the issue of the applicability of § 53-202k to the jury and its imposition of an enhanced sentence under the statute was harmless error. The jury convicted the defendant of murder, a class A felony. As in Montgomery, the information expressly alleged that the defendant had committed murder with the use of a firearm. The juiy, therefore, necessarily had to have found that the defendant committed the murder with that firearm. Further, in instructing the jury on the elements of murder, the court stated that to find the defendant guilty, the jury had to find that he had caused the death of the victim by means of the discharge of a firearm. The defendant never contested that the crime was carried out with the use of a firearm; he merely denied that he was the shooter. Our review of the record and briefs shows that the evidence of the use of a firearm to kill the victim was uncontroverted and supported by overwhelming evidence.

Those reasons lead us to the inescapable conclusion that by finding that the defendant had committed the murder with which he was charged, the jury necessarily found that he had committed that crime with the use of a firearm. Accordingly, we find that although the court should have put the issue of § 53-202k to the jury, the error was harmless. The defendant’s claim therefore fails under the fourth prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”

       General Statutes § 53-2021c provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       “[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       See footnote 3.

       See footnote 3.