author: STOUGHTON, J.

text:
    PHILIP SULLIVAN ET AL. v. MARYANNE DELISA, TRUSTEE OF THE MARY E. CROWELL FAMILY HOME TRUST, ET AL.
    (AC 25730)
    Schaller, McLachlan and Stoughton, Js.

      Argued January 10
    officially released June 5, 2007

      Philip Sullivan, pro se, and Charlotte Sullivan, pro se, the appellants (plaintiffs).

      Edward G. McAnaney, for the appellees (defendants).
   Opinion

STOUGHTON, J.

The pro se plaintiffs, Philip Sullivan and Charlotte Sullivan, appeal from the judgment in favor of the defendants, Maryanne Delisa and Kathryn Hyland, trustees of the Mary E. Crowell family home trust, and Mary E. Crowell, settlor of the Mary E. Cro-well family home trust, rendered after a trial to the court, on an entry and detainer action and related claims. The plaintiffs claim that the court improperly determined that (1) they were not in possession of the premises at issue on September 7, 2000, pursuant to General Statutes § 47a-43 et seq., the entry and detainer statutes, (2) they were not tenants of the defendants on September 7, 2000, (3) they were not entitled to the equitable remedy of a constructive trust imposed on the disputed premises, (4) the defendants did not take the plaintiffs’ personal property in violation of General Statutes § 52-564, the civil theft statute, and (5) the defendants did not breach a stipulation providing the plaintiffs access to their personal property located on the premises. We affirm the judgment of the trial court.

The court found the following facts relevant to the plaintiffs’ appeal. Philip Sullivan is the son of the defendant Crowell. Sullivan and his wife, Charlotte Sullivan, moved into Crowell’s home in Farmington, on a temporary basis, on September 1, 1970. The court stated in its memorandum of decision: “The plaintiffs intended to stay for a few months but ended up staying for thirty years.” The plaintiffs primarily used the master bedroom and the family room, but their possession of these rooms was not exclusive, and Crowell and others had access to them. The plaintiffs brought items of their own into the home while there, and Philip Sullivan parked an old bulldozer he owned in the yard, where it resided for about fifteen years. Over the course of the thirty year occupancy, the plaintiffs made a few repairs and improvements to the premises. Crowell paid for the materials, though the plaintiffs appear to have supplied the labor. The plaintiffs made periodic payments to Crowell in order to assist with household expenses, as did other family members when they stayed in the house.

On June 27, 2000, Delisa, a daughter of Crowell and sister of Philip Sullivan, told the plaintiffs that Crowell had decided to move to a retirement center. She further informed the plaintiffs that they could purchase the premises if they wanted to do so. Otherwise, it would be sold. Philip Sullivan testified that the price offered by the defendants was below the fair market value. The plaintiffs declined the offer on July 6, 2000. A dispute erupted between the plaintiffs and Delisa and Hyland, who is also a sister of Philip Sullivan. The argument between the parties resumed the following day, this time joined by Crowell. The defendants informed the plaintiffs that they must move out of the premises. On July 7, 2000, the plaintiffs left the premises and temporarily resided with other relatives. They left some of their personal belongings at the premises, including Philip Sullivan’s bulldozer. After staying at several locations, the plaintiffs entered into a lease for an apartment in Newington on August 1, 2000, where they still lived at the time of the trial. Although the plaintiffs went to the premises on several occasions after July 7, 2000, they never again stayed there. On July 20, 2000, Crowell instructed the plaintiffs to remove their personal property by August 6, 2000, because she had rented the premises. The plaintiffs refused to remove their property. On July 31, 2000, Crowell again told the plaintiffs to remove their personal belongings and informed them that she intended to change the locks after August 6, 2000. On September 7, 2000, the plaintiffs returned to the premises and found that the locks had indeed been changed. Most of the plaintiffs’ personal belongings had been removed to the garage, except for Philip Sullivan’s bulldozer, which had been sold at Crowell’s direction. The plaintiffs brought a five count complaint against the defendants on September 18, 2000. They later amended their complaint and added an additional three counts. The trial court rendered judgment in favor of the defendants on all counts on September 14, 2004.

“It is well established that [o]ur review of questions of fact is limited to the determination of whether the findings were clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Wagner & Wagner Auto Sales, Inc. v. Tarro, 93 Conn. App. 376, 383-84, 889 A.2d 875, cert. granted on other grounds, 277 Conn. 932, 896 A.2d 103 (2006).

I

The plaintiffs first claim that the court improperly determined that they did not have actual possession of the premises on September 7, 2000, as required to prevail on a forcible entry and detainer claim brought pursuant to § 47a-43 et seq. Specifically, they argue that the court used an incorrect legal standard to determine that they had “abandoned” the premises and reached a conclusion that was against the weight of the evidence.

A determination of actual possession pursuant to the entry and detainer statutes; § 47a-43 et seq.; is a determination of fact, and, thus, our review is limited to determining whether the court’s finding was clearly erroneous. Fleming v. Bridgeport, 92 Conn. App. 400, 404, 886 A.2d 1220 (2005), cert. granted on other grounds, 277 Conn. 922, 895 A.2d 795 (2006).

“A plaintiff suing under the forcible entry and detainer statute must prove his actual possession of the land or property from which he claims to have been dispossessed.” Communiter Break Co. v. Scinto, 196 Conn. 390, 393, 493 A.2d 182 (1985). The traditional rule in Connecticut is that the proper inquiry is whether the plaintiff exercised actual possession of the premises in question and that the legal right of the parties to possess the premises is not dispositive. Bliss v. Bange, 6 Conn. 78, 80 (1826) (“[t]he statute designedly excludes the examination and decision of the question of title”); Carrier v. Carrier, 85 Conn. 203, 206-207, 82 A. 187 (1912) (“[t]he statute against forcible entry and detainer . . . makes it unlawful for the owner, or one having the right of possession of land, to forcibly and with strong hand enter and dispossess a person who has the actual, peaceable possession of such land, although the latter has no right of possession” [citation omitted]); Fleming v. Bridgeport, supra, 92 Conn. App. 404 n.5 (“[w]e note that an illegal possessor may be in actual possession of property and may commence an action in entry and detainer”). “Generally, the inquiiy [of actual possession] is whether the individual has exercised the dominion and control that owners of like property usually exercise. . . . [I]t is not necessary that there be a continuous personal presence on the land by the person maintaining the action. There, however, must be exercised at least some actual physical control, with the intent and apparent purpose of asserting dominion.” (Citations omitted.) Communiter Break Co. v. Scinto, supra, 394.

First, the plaintiffs argue that the court used an improper legal standard to determine that they had “abandoned” the premises by September 7, 2000. They argue that the facts found by the court do not satisfy the statutory definition of abandonment pursuant to General Statutes § 47a-llb or pursuant to case law. The plaintiffs cite Daddona v. Liberty Mobile Homes Sales, Inc., 209 Conn. 243, 550 A.2d 1061 (1988); Berlingo v. Sterling Ocean House, Inc., 203 Conn. 103, 523 A.2d 888 (1987); Communiter Break Co. v. Scinto, supra, 196 Conn. 390; and McManus v. Roggi, 78 Conn. App. 288, 826 A.2d 1275 (2003).

The plaintiffs’ argument rests on a faulty premise. As stated previously, the plaintiffs, under the entry and detainer statute, had the burden to prove actual possession of the premises at the relevant time. The abandonment statute cited by the plaintiffs governs circumstances when the defendant bears the burden to prove abandonment of some legal right, specifically, when a landlord defendant must prove, as a special defense, that a former tenant has abandoned a tenancy held pursuant to avalidlease. See, e.g., Calder v. Lufkin, Superior Court, judicial district of New London at Norwich, Housing Session, Docket No. 14872 (February 7, 2006). Two of the cases cited by the plaintiff are similarly inapplicable because they involve the abandonment of a legal right. In McManus v. Roggi, supra, 78 Conn. App. 288, and Daddona v. Liberty Mobile Homes Sales, Inc., supra, 209 Conn. 243, the defendants had the burden to demonstrate that the plaintiffs had abandoned their legal rights to an easement and to ownership of a mobile home, respectively. It is not clear for what proposition the plaintiffs cite Berlingo v. Sterling Ocean House, Inc., supra, 203 Conn. 103, and they have provided no analysis in support thereof.

Communiter Break Co. is also not dispositive. In that case, our Supreme Court determined that it was not clearly erroneous for a trial court to consider the presence of personal property maintained on the premises when determining whether the plaintiff had actual possession of the premises, even when the plaintiff did not have a continuous personal presence on the premises. Communiter Break Co. v. Scinto, supra, 196 Conn. 394. The court did not hold that the presence of such personal property, alone, was sufficient to show actual possession. Rather, it determined whether the trial court properly found that the plaintiff exercised sufficient dominion and control over the property to constitute actual possession.

We conclude that the court did not use an incorrect legal standard in evaluating, and ultimately rejecting, the plaintiffs’ claim that they had actual possession of the premises on September 7, 2000.

The plaintiffs also argue that the court’s determination that they did not actually possess the property was against the weight of the evidence. Specifically, they note that they had left some personal items behind at the premises after they departed on July 7, 2000, that they departed from the house only because they felt threatened while there and that they intended to return at some later point. The presence of personal property is not itself dispositive. The court had the discretion not to credit the plaintiffs’ reasons for their prolonged absence from the premises. The court had before it evidence that the plaintiffs had entered into a long-term lease for an apartment in another town on August 1, 2000. The court also heard testimony that the plaintiffs had not stayed at the premises since July 7, 2000. In sum, the court found that on July 7, 2000, the plaintiffs said they were moving, did so and soon resided in their own apartment in Newington. From this the court reasonably could conclude that the defendants did not have actual possession of the premises on September 7, 2000.

II

The plaintiffs next claim that the court improperly found that the parties were not in a landlord and tenant relationship on September 7, 2000, and so concluded that the plaintiffs were not entitled to the protections accorded to tenants under General Statutes § 47a-16. The plaintiffs argue that it was inconsistent for the court to determine that the plaintiffs were lawful possessors of the premises on July 7, 2000, but not tenants of the defendants on September 7, 2000, and that its determination that there was no landlord-tenant relationship was against the weight of the evidence. We disagree.

The plaintiffs first argue that the court’s decision is inconsistent. The plaintiffs, however, reach this conclusion because they misinterpret the meaning of the court’s finding that they were lawful possessors of the property until July 7,2000. The court found, while evaluating the plaintiffs’ entry and detainer claim, that the plaintiffs were “possessors” of the property as that term is used in § 47a-43 et seq. As discussed previously, that statute required the plaintiffs to prove that they were in “actual possession” of the premises. The court’s finding that the plaintiffs were lawful possessors on July 7, 2000, was a determination that they were in “actual possession,” pursuant to § 47a-43 et seq. The existence of a tenancy, in contrast, depends on the intent of the parties to deliver the right of possession to the alleged tenant. 1 Restatement (Second) Property, Landlord and Tenant § 1.2, comment (a), pp. 9-10 (1977). Thus, there is nothing inconsistent, as such, about the court’s determining that the plaintiffs had actual possession of the premises, but not a legal right to possess the premises.

The plaintiffs next argue that the court’s determination that they were not tenants of the defendants on September 7, 2000, was against the weight of the evidence. In order for a tenancy to form, the parties must have agreed, at least implicitly, that the alleged tenant should have a right to possess the property. Id., § 1.2, p. 9. Possession of property typically includes, among other things, the power to exclude others from entering the premises. Id. Because the intent of parties making an agreement, particularly in the absence of a memori-alization of the agreement, is a question of fact, our review is limited to determining whether the court’s conclusion was clearly erroneous.

The court determined that the plaintiffs did not occupy the premises pursuant to an agreement whereby the parties intended that the plaintiffs should have the right to exercise a power of exclusion against the defendants. Thus, it concluded, there was no tenancy.

As stated previously, the court reasonably determined that the parties were not in actual possession of the property. The court also considered testimony from Crowell that she did not intend to create a tenancy, nor did she believe that the plaintiffs had any right to exclude her from the rooms they claimed to have held. Crowell testified that she occasionally would enter the master bedroom without first obtaining the permission of the plaintiffs. From this, it was not clearly erroneous for the court to conclude that Crowell did not intend that the plaintiffs should have the right to exert the power of exclusion and, thus, the right to possession, on September 7, 2000. Therefore, we conclude that the court did not abuse its discretion in determining that there was no landlord-tenant relationship between the parties.

Ill

The plaintiffs next argue that the court improperly refused to impose a constructive trust on the premises for their benefit. We conclude that the court’s finding that there was no unjust enrichment to support such an award was not clearly erroneous and, therefore, that the court did not abuse its discretion in denying the relief sought.

The imposition of a constructive trust is an equitable remedy, the granting of which is within the equitable discretion of the court. As such, the court’s conclusion that no constructive trust should be imposed will be reversed only if the conclusion is an abuse of discretion. See Stornawaye Properties, Inc. v. O’Brien, 94 Conn. App. 170, 175, 891 A.2d 123 (2006).

“[A] constructive trust arises . . . against one who, by fraud, actual or constructive, by duress or abuse of confidence, by commission of wrong, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience, either has obtained or holds the legal right to property which he ought not, in equity and good conscience, hold and enjoy. . . . Moreover, the party sought to be held liable for a constructive trust must have engaged in conduct that wrongfully harmed the plaintiff.” (Citations omitted; internal quotation marks omitted.) Wendell Corp. Trustee v. Thurston, 239 Conn. 109, 113-14, 680 A.2d 1314 (1996). “The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment.” (Internal quotation marks omitted.) Giulietti v. Giulietti, 65 Conn. App. 813, 856, 784 A.2d 905, cert. denied, 258 Conn. 946, 947, 788 A.2d 95, 96, 97 (2001); see also Restatement, Restitution, Quasi Contracts and Constructive Trusts § 160, comment (c), p. 642 (1937).

There is no question in this case that Crowell held good title to the premises. There is no allegation that she took title from the plaintiffs by fraud or otherwise. The plaintiffs allege that they made several repairs and improvements to the premises during the thirty years in which they resided there. By receiving the benefit of these repairs, the plaintiffs argue, the defendants were unjustly enriched. The court, to the contrary, determined that the repairs and improvements were gifts.

“Ordinarily, where services are rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, there will be no such implication from the mere rendition of services. . . . The reason for this exception to the ordinary rule is, that the household family relationship is presumed to abound in reciprocal acts of kindness and good-will, which tend to the mutual comfort and convenience of the members of the family, and are gratuitously performed . . . .” (Internal quotation marks omitted.) Cotter v. Cotter, 82 Conn. 331, 332, 73 A. 903 (1909); see Davis v. Davis, 128 Conn. 243, 247, 21 A.2d 393 (1941); Daly v. Blinstrubas, Superior Court, judicial district of Waterbury, Docket No. CV-99-0156584-S (December 12, 2002).

The plaintiffs argue that the improvements were made pursuant to an agreement between the parties and that as evidence of this agreement, Crowell promised them a three year future estate in the property after the termination of her own life estate. The plaintiffs do not allege that this agreement itself was ever memorialized and produced no writing containing such agreement. The court considered the testimony of Cro-well that there was no agreement to pay for the repairs and improvements. It also considered the relationship between the parties, that of mother, son and daughter-in-law. Finally, the court noted that the plaintiffs had enjoyed use of the premises, at minimal cost, for more than thirty years. From this the court concluded that the defendants were not unjustly enriched by any improvements the plaintiffs may have made to the premises. We conclude that the court’s determination that there was no unjust enrichment was not clearly erroneous, and, therefore, its denial of the plaintiffs’ request to impose a constructive trust was not an abuse of its equitable discretion.

IV

The plaintiffs next claim that the court improperly determined that they were not entitled to treble damages under the civil theft statute, § 52-564. The plaintiffs argue that they proved the elements necessary to demonstrate civil theft and that the court’s determination to the contrary was an abuse of discretion. We conclude that the defendants’ taking of the plaintiffs’ property was not “wrongful” and that the court properly determined that the plaintiffs should not recover treble damages.

The underlying facts relevant to the plaintiffs’ claim, as found by the court, are undisputed. Crowell had allowed Philip Sullivan to keep his bulldozer on her land for many years while the plaintiffs resided in Crowell’s home. On July 20, 2000, after the plaintiffs had left the home, Crowell notified the plaintiffs that they must remove their personal belongings, including the bulldozer. The plaintiffs informed Crowell that they had no intention of removing any of their personal property. Crowell told the plaintiffs again on July 31, 2000, to remove their belongings. Some time prior to September 7, 2000, “Crowell gave the order to have the bulldozer removed from her property. Crowell admitted that she instructed Thomas Delisa to remove and sell the bulldozer. Crowell testified that she received $200 for the scrap value of the bulldozer and kept the money.” The court found that the plaintiffs had a reasonable opportunity to remove the bulldozer from the laud before Cro-well ordered it sold.

The elements that the plaintiffs must prove to obtain treble damages under the civil theft statute, § 52-564, axe the same as the elements required to prove larceny, pursuant to General Statutes § 53a-119. Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 770-71, 905 A.2d 623 (2006). The elements of civil theft are also largely the same as the elements to prove the tort of conversion, but theft “requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.” (Internal quotation marks omitted.) Id., 771. “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. ... It must be shown that (1) there was an intent to do the act complained of, (2) the act was done wrongfully, and (3) the act was committed against an owner.” (Internal quotation marks omitted.) State v. Spillane, 54 Conn. App. 201, 217-18, 737 A.2d 479 (1999), rev’d on other grounds, 255 Conn. 746, 770 A. 2d 898 (2001). “The essential cause of action is a wrongful exercise of dominion over personal property of another.” Semon v. Adams, 79 Conn. 81, 82, 63 A. 661 (1906). It is not wrongful “to commit an act which would otherwise be ... a conversion if the act is, or is reasonably believed to be, necessary to protect the actor’s land . . . and the harm inflicted is not unreasonable as compared with the harm threatened.” 1 Restatement (Second) Torts, § 260 (1), p. 490 (1965). The plaintiffs here stated explicitly that their claim was not for conversion.

Here, the defendants did not wrongfully take the bulldozer. After Crowell revoked her permission to keep the bulldozer on her property and allowed the plaintiffs a reasonable period to remove it, she was free to use reasonable means to remove it from her land herself. Her means were reasonable in light of the fact that she gave the plaintiffs sufficient notice that the bulldozer must be removed, the plaintiffs did not make any attempt to remove the bulldozer and instead informed the defendants that they had no intention to remove it, and the plaintiffs knew that Crowell was preparing the house and land for sale to third parties. Therefore, we conclude that the court correctly determined that the plaintiffs were not entitled to treble damages.

V

Finally, the plaintiffs claim that the court improperly found that the defendants fulfilled their obligations under a stipulation entered into by the parties on September 27, 2000. Specifically, the plaintiffs argue that the court misconstrued the stipulation, erroneously found that the defendants had complied with the stipulation prior to January 1, 2001, and improperly denied the plaintiffs’ request to admit a letter into evidence.

“[A] stipulation of the parties is to be regarded and construed as a contract. ... In giving meaning to the terms of a contract, we have said that a contract must be construed to effectuate the intent of the contracting parties.” (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 97 Conn. App. 541, 555, 905 A.2d 1214, cert. denied, 280 Conn. 942, 943, 912 A.2d 479 (2006). We review the court’s determination of the parties’ intent, when the language of the stipulation is ambiguous, as we would review a factual conclusion. See Krane v. Krane, 99 Conn. App. 429, 431, 913 A.2d 1143 (2007). We will uphold the court’s factual findings unless those findings are clearly erroneous. Auto Glass Express, Inc. v. Hanover Ins. Co., 98 Conn. App. 784, 789, 912 A.2d 513 (2006), cert. denied, 281 Conn. 914, 916 A.2d 55 (2007).

The plaintiffs first argue that the defendants violated the stipulation because the plaintiffs’ personal property was packed so tightly into the garage that they were unable to assess the items individually without first removing at least some of the items from the garage. The plaintiffs appear to argue that the stipulation required the defendants to store the plaintiffs’ property in such a way that the plaintiffs would be able to inspect each piece of their property without having to move any of the items prior to conducting the inspection. The stipulation does not state how tightly the property could be packed. The court’s interpretation that the stipulation was satisfied as long as the plaintiffs had the ability to assess the items individually, even if such an assessment would require the plaintiffs to take some of the items out of the garage, was not clearly erroneous.

The plaintiffs next argue that the court’s determination that they had access to their personal property before January 1,2001, was clearly erroneous. The court found, as stated in an articulation of its July 8, 2004 opinion, that the plaintiffs had access to their belongings on September 28 and October 3, 2000. The court had before it photographs of the garage and the plaintiffs’ personal property contained therein. The plaintiffs themselves introduced these photographs and claimed to have taken them on September 28, 2000. The photographs clearly show the garage door open and the property accessible. We agree with the court’s finding that the plaintiffs had access to their property prior to January 1, 2001.

Finally, the plaintiffs assert that the court improperly denied their request to enter into evidence a letter describing a meeting one of the defendants allegedly had with an inspector from the criminal justice division of the office of the state’s attorney. The plaintiffs do not offer any legal analysis supporting their assertion that the court’s evidentiary determination was improper. Therefore, we decline to review this argument. See Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130, 884 A.2d 7 (2005). We conclude that the court’s determination that the defendants abided by the stipulation was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       Following trial, but before judgment was rendered, the defendant Mary E. Crowell died. In this opinion, we refer to her as a defendant.

       The plaintiffs also challenge the court’s determination that the defendants were not liable to the plaintiffs pursuant to an intentional infliction of emotional distress theory. The court, in rejecting the plaintiffs’ claim, found that the plaintiffs failed to prove that the defendants intended to harm the plaintiffs. See Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). The plaintiffs have failed to provide reasons supporting their bare assertion that the defendants’ actions were “calculated to cause and did cause plaintiffs overwhelming mental distress” and, thus, do not provide reasons supporting their claim that the court’s determination was improper. Therefore, we decline to review this claim. See Turner v. American Car Rental, Inc., 92 Conn. App. 123, 130, 884 A.2d 7 (2005).

       General Statutes § 47a-43 (a) provides in relevant part: “When any person . . . having made a peaceable entry [into any land, tenement, or dwelling unit], without the consent of the actual possessor, holds and detains the same with force and strong hand . . . or . . . when the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the Superior Court.”
      General Statutes § 47a-45a (a) provides in relevant part: “If it is found (1) that a forcible entry has been made into the . . . dwelling unit, or (2) that the same [is] detained with force and strong hand, or . . . (4) that the party put out of possession would be required to cause damage to the premises or commit a breach of the peace in order to regain possession, as complained of, the judge shall render judgment that the complainant be restored to, and reseized of, the premises or that the personal property removed or detained be returned to the complainant, and shall award a writ of restitution accordingly. . . .”

       The plaintiffs additionally argue that the court relied on evidence that was not in the record. Specifically, they note that the court stated in its memorandum of decision: “After the argument, the plaintiffs indicated to Crowell that they were moving from the property. . . . The court credits the testimony of Crowell that the plaintiffs indicated that they were moving from the property.” After reviewing the record, we conclude that the plaintiffs are correct in their observation that Crowell did not testify that the plaintiffs told her they were moving out of the house. Instead, the testimony was provided by Hyland during Philip Sullivan’s redirect examination of her on July 25, 2003. Any mistake the court made in misstating the source of the testimony was harmless and does not justify a new trial.

       The plaintiffs also allude to the contracts clause of the United States constitution; U.S. Const., art. I, § 10; stating that the court’s determination that there was no tenancy violates that clause. The plaintiffs have not provided the legal basis for this assertion, however, and, therefore, we decline to afford it review.

       The plaintiffs also appear to invite us to consider whether they were tenants of the defendants on July 7, 2000. Their complaint, however, is limited to September 7, 2000, and, therefore, we limit our consideration to the relationship of the parties on that date.

       General Statutes § 47a-l (l) defines a tenant as “the lessee, sublessee or person entitled under a rental agreement to occupy a dwelling unit or premises to the exclusion of others or as is otherwise defined by law.”

       The plaintiffs also argue that the court improperly determined that the defendants were not liable pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., for locking the doors to the premises on September 7, 2000. The plaintiffs’ sole argument as to their CUTPA allegation is that the court’s determination that they were not tenants of the defendants on the relevant date was incorrect. Because we conclude that the court was correct that the plaintiffs were not tenants of the defendants on September 7,2000, we agree with the court’s determination of the CUTPA claim. We need not determine whether the claim would fail for other reasons.

       In regard to their requested remedies arising from alleged unjust enrichment, the plaintiffs challenge only the court’s decision denying their request for a constructive trust; they do not challenge the court’s denial of any request for monetary damages that they may have raised and so have waived any such argument.

       Because of our resolution of this claim, we need not address whether, even if there was unjust enrichment, the plaintiffs would be allowed to seek the imposition of a constructive trust grounded solely on a claim of lack of payment for improvements to the property. See Restatement, Restitution, Quasi Contracts and Constructive Trusts § 161, comment (a), p. 651 (1937) (“where a person makes improvements upon the land of another under circumstances which entitle him to restitution, he may have an equitable lien upon the land, but he cannot charge the owner of the land as constructive trustee of the land for him and compel the owner to transfer the land to him” [citation omitted]).

       The plaintiffs also claimed at trial that they were entitled to treble damages because the defendants had moved the plaintiffs’ other personal property into the garage. The plaintiffs do not clearly challenge the court’s determination. In any case, the court properly held that the plaintiffs could not recover treble damages under the statute because they had not shown that the defendants intended to deprive them permanently of their other personal belongings. Cf. State v. Calonico, 256 Conn. 135, 162, 770 A.2d 454 (2001).

       Because we conclude that the defendants did not wrongfully take the bulldozer, we decline to review the plaintiffs’ arguments regarding Crowell’s intent at the time she ordered the bulldozer sold.

         The stipulation states in relevant part: “Plaintiffs shall be allowed access to garage and family room at their convenience, in order to assess the condition of their personal property; plaintiffs shall provide report of assessment to their attorney in order for it to be forwarded to defendants’ attorney by October 11, 2000.”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CARLOS BATISTA
    (AC 27123)
    Bishop, Harper and Peters, Js.
    Argued February 13
    officially released June 5, 2007

      Annacarina Del Mastro, senior assistant 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, and Joseph J. Harry, senior assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The principal claim in this criminal appeal is that a jury mistakenly identified the defendant as the person who committed certain acts constituting robbery in the first degree, burglary in the first degree and reckless endangerment in the first degree. The defendant maintains that, even if the jury found credible his partial identification as the robber by one of the victims, and his having been referred to by name dining the robbery, his guilt of the crimes with which he was charged was not proven beyond a reasonable doubt. We disagree and affirm the judgment of the trial court.

In an amended information filed on August 17, 2005, the state charged the defendant, Carlos Batista, with four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), one count of burglary in the first degree in violation of General Statutes § 53a-101 (a) (l) and five counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a). The jury found the defendant not guilty on count one but found him guilty of the remaining three counts of robbery in the first degree, one count of burglary in the first degree and five counts of reckless endangerment in the first degree. The court accepted the jury’s verdict and sentenced the defendant to a total effective term of ten years imprisonment and five years of special parole. The defendant has appealed.

I

SUFFICIENCY OF THE EVIDENCE

The defendant claims, for a variety of reasons, that the evidence was insufficient as a matter of law to support his conviction of robbery, burglary and reckless endangerment. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Hicks, 101 Conn. App. 16, 21, 919 A.2d 1052 (2007). “[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.” (Internal quotation marks omitted.) State v. Mulero, 91 Conn. App. 509, 513, 881 A.2d 1039 (2005), cert. denied, 277 Conn. 912, 895 A.2d 792, cert. denied, 549 U.S. 862, 127 S. Ct. 149, 166, L. Ed. 2d 108 (2006).

The jury reasonably could have found the following facts. On April 27, 2004, at some time between 12:15 and 12:30 a.m., five men were occupying a basement apartment located at 117 Shelton Street in Bridgeport. The outside door to the apartment was closed but not locked.

Three masked male intruders, at least one of whom was carrying a shotgun, entered the apartment and ordered all the occupants to get on the floor and to hand over their money. The subsequent discharge of the shotgun into the cement floor of the apartment resulted in personal injury to Ivan Jairo Perez Ruiz, one of the occupants.

The intruders specifically ordered four of the occupants, Marino Ruiz Ramirez, Elíseo Ruiz Perez, Orsini Mateos-Hemandez and Eleazar Hernandez, to surrender their wallets and threatened all of them with being shot if they moved. Marino Ruiz Ramirez heard one of the intmders say to one of the others, “Carlos, if they move, shoot.” Orsini Mateos-Hemandez heard one of them say, “Chino, hurry up.” Eleazar Hernandez similarly heard one of the intmders referred to by the name Carlos.

The police quickly were called to the scene by the occupants of the apartment immediately above the basement apartment. Alerted by his wife of a disturbance, Felix Martinez observed the intmders as they fled from the building in a red car that had what he described as a raised back. One of the men whom he saw was wearing a mask and holding a firearm. His son immediately called the police.

Responding to the police call, Officer Abe Konoval drove to the scene in his police cmiser. At the nearby intersection of Ogden and Williams Streets, he observed a red car with a rear spoiler coming toward him. Kono-val stopped the car, handcuffed the defendant and placed him in the back of the police cmiser pending further investigation. Konoval observed and collected a shotgun shell from the backseat of the red vehicle. Another police officer, Richard Cretella, who joined Konoval, noticed Robert Encamación, the defendant’s brother, in the vicinity. Upon questioning, Encamación told Cretella that the keys in the red car were his. Martinez and his wife identified the red car that Konoval stopped as the car they had seen at the scene of the crime. Eleazar Hernandez made an identification of the defendant at the scene of the stopped car based on the defendant’s pants and boots.

The defendant claims that the evidence adduced at trial was insufficient as a matter of law to convict him of robbery in the first degree because the state did not prove that he acted as a principal in the robberies. In his view, the circumstantial evidence produced at trial, namely, Eleazar Hernandez’ identification of him and the victims’ testimony that they heard the shooter referred to as Carlos, was not sufficient as a matter of law to convict him. The defendant also challenges the jury’s reliance on the identification made by Eleazar Hernandez because Orsini Mateos-Hemandez gave conflicting testimony regarding the shooter’s clothing and appearance. We are not persuaded by the defendant’s arguments.

In order to find the defendant guilty of robbery in the first degree, the jury had to find, beyond a reasonable doubt, that the evidence showed that the defendant “in the course of the commission of the crime of robbery as defined in section 53a-133 ... or another participant in the crime ... (4) represented] or threatenfed] the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” General Statutes 53a-134 (a) (4). “It [is] not necessary, [however] that the state prove the defendant actually compelled [the victims] to deliver up the property or to aid in the larceny; it [is] only necessary to prove that the defendant used or threatened force for that purpose.” State v. Horne, 19 Conn. App. 111, 135, 562 A.2d 43 (1989), rev’d in part on other grounds, 215 Conn. 538, 577 A.2d 694 (1990).

In this case, in addition to the testimony describing the person brandishing the shotgun as Carlos, the state linked the defendant to the robberies through testimony that the spent shotgun cartridge found inside the basement apartment was fired from the same firearm as three of the loaded cartridges found inside the red car in which the defendant was apprehended while driving away from the scene of the crimes. Buttressed by Eleazar Hernandez’ identification of the defendant because of the clothes he was wearing, this evidence, although not overwhelming, was sufficient to support the defendant’s robbery convictions. “[I]t does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542-43, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

Furthermore, “[i]t is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.” (Internal quotation marks omitted.) State v. Falcon, 90 Conn. App. 111, 132, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). In this case, it was not unreasonable for the jury to choose to believe the testimony of two of the victims who both heard the shooter referred to as Carlos and to discount conflicting testimony by Orsini Mateos-Hemandez with respect to the shooter’s clothing and tattoo. See footnote 9. We therefore affirm the defendant’s conviction of robbery in the first degree.

We also affirm the defendant’s conviction of burglary in the first degree and reckless endangerment in the first degree. The defendant’s claim that the state did not present sufficient evidence to convict him of these crimes is, in effect, a restatement of his claim that the evidence did not support the jury’s finding that he was the shooter. Having concluded that this claim is unpersuasive with respect to his robbery conviction, we necessarily conclude that it is unpersuasive with respect to the conviction of burglary and reckless endangerment as well.

II

JURY INSTRUCTIONS

The defendant claims that the court misinstructed the jury by not including a specific intent instruction for the robbery and the burglary charges. He argues that, by failing to do so, the court’s instructions unconstitutionally diluted the state’s burden of proof and misled the jury. We disagree.

The defendant concedes that he failed to file a written request to charge on the matter of specific intent or to take exception to the questioned language. Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), unpreserved claims of instructional error are reviewable on appeal if the defendant can establish that he has been deprived of his constitutional right to a fair trial. “[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.” (Emphasis in original.) Id.

The defendant’s claim of instructional error is reviewable under Golding because he has provided an adequate record for review and because his claim of an improper instruction on the elements of a crime is of constitutional magnitude. State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) (“an improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant’s due process right to a fair trial”). We conclude, however, that the defendant cannot prevail because he has failed to establish a clear constitutional violation.

“Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that [unmistakably] deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction. . . . The standard of review for constitutional claims of improper jury instructions is well settled. In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . 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. . . . 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.” (Internal quotation marks omitted.) State v. Hicks, 97 Conn. App. 266, 269-70, 903 A.2d 685, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006).

In explaining to the jury that a robbery was “a larceny that is committed by force or threat of force,” the court initially focused on the elements of a larceny. The court then explained, no fewer than five times, that the proof of larceny must include “the intent to deprive the owner of the property.” The court also gave numerous explanations of the requirement that the force used during the robbery must be used with the intent to deprive another of property or to overcome resistance.

Despite the trial court’s multiple references to the specific intent requirements of robbery, the defendant maintains that the court misinstructed the jury by failing specifically to inform the jury that the state had to prove this intent element for each count of robbery. The defendant’s reading of the court’s instructions is, however, unsustainable because it ignores the court’s specific instruction that the jury consider each of the four charges of robbery separately. After reviewing the record, we cannot say that the court’s instructions created even the slightest probability, let alone a reasonable one, that the jury would be misled. We conclude, therefore, that the court’s instructions were proper.

Ill

PROSECUTORIAL IMPROPRIETY

The defendant’s final claim is that he was deprived of a fair trial because the prosecutor improperly referred to facts that were not in evidence during closing argument. Despite the defendant’s failure to object to these statements at trial, his claim is reviewable in light of State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004). In Stevenson, our Supreme Court held that “following a determination that prosecutorial [impropriety] has occurred, regardless of whether it was objected to, an appellate court must apply the . . . factors [set forth in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987)] to the entire trial.” State v. Stevenson, supra, 575.

Before we review the challenged remarks, we set forth our standard of review. “Prosecutorial [impropriety] claims invoke a two step analysis. First, the reviewing court must determine whether the challenged conduct did, in fact, constitute [an impropriety]. Second, if [an impropriety] occurred, the reviewing court must then determine if the defendant has demonstrated substantial prejudice. ... In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the [impropriety] so infected the trial with unfairness as to make the conviction a denial of due process.” (Citation omitted; internal quotation marks omitted.) State v. Pedro S., 87 Conn. App. 183, 187, 865 A.2d 1177, cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005).

“Because the claimed prosecutorial [impropriety] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) State v. Farr, 98 Conn. App. 93, 106, 908 A.2d 556 (2006).

The defendant enumerates six instances of prosecu-torial impropriety in which the state allegedly referred to facts that were not in evidence during its closing argument. The defendant claims that the state improperly argued that: (1) the front passenger seat of his car was soaking wet from the rain and that from this the jury could reasonably infer that the passenger door had been recently left open, (2) Encamación told the police that he was out at 1 a.m. looking for a friend even though Encamación himself had said he was looking for his brother, (3) Encamación responded to the accusation by the police of having been one of the robbers by stating, “How could I be identified if they all had masks on?” even though this statement was not in evidence, (4) two people received minor injuries even though there was evidence of only one person’s having received an injury, (5) the jury could infer that the defendant was armed simply based on one of the perpetrators saying, “Carlos, shoot them if they move,” and (6) Eleazar Hernandez identified the defendant “as being that individual that had him on the ground at gunpoint,” even though Hernandez’ testimony did not specifically indicate that the defendant was the actual robber.

A

Impropriety

As noted, the first step in our analysis is to determine whether any of these statements properly can be characterized as an impropriety. In so doing, we must bear in mind that a prosecutor properly may ask the jury to draw reasonable inferences based on the evidence at trial. State v. Farr, supra, 98 Conn. App. 110. Nonetheless, “[o]ur cases indicate that improper unsworn testimony generally contains the suggestion of secret knowledge ... on the part of the prosecutor.” (Citation omitted; internal quotation marks omitted.) State v. Holliday, 85 Conn. App. 242, 260, 856 A.2d 1041, cert. denied, 271 Conn. 945, 861 A.2d 1178 (2004).

We conclude that the only statement made by the prosecutor that could be considered unsworn testimony, and therefore an impropriety, was the sixth statement, in which the prosecutor misstated Eleazar Hernandez’ testimony. At trial, Hernandez never testified that there was a gun pointed at his head. Furthermore, although Hernandez identified the defendant by his pants and shoes, he did not identify him as the person who held a gun to his head. The prosecutor nonetheless stated, in closing, that Hernandez testified that “[t]he clothing in the photo was the individual that was holding the gun on me while I was on the ground.” This statement was improper.

B

Prejudice

Although we agree with the defendant that the prosecutor mischaracterized the testimony of Eleazar Hernandez, he is not entitled to a new trial on this ground unless the prosecutor’s impropriety caused him to suffer substantial prejudice. Our analysis of the relevant factors under the circumstances of this case persuades us that the defendant’s due process rights were not violated.

“In determining whether prosecutorial [impropriety] was so serious as to amount to a denial of due process, [our Supreme Court] has focused on several factors. Among them are the extent to which the [impropriety] was invited by defense conduct or argument . . . the severity of the [impropriety] . . . the frequency of the [impropriety] . . . the centrality of the [impropriety] to the critical issues in the case . . . the strength of the curative measures adopted . . . and the strength of the state’s case.” (Citations omitted.) State v. Williams, supra, 204 Conn. 540.

Applying the Williams factors to the circumstances of this case, we note that the prosecutor’s misstatement occurred only once. It follows that there was no pattern of impropriety on the part of the prosecutor. See State v. Young, 29 Conn. App. 754, 766, 618 A.2d 65, cert. denied, 225 Conn. 904, 621 A.2d 287 (1993).

The one misstatement made by the prosecutor cannot properly be characterized as a severe misstatement because it did not misrepresent unique proof of a fact that the state had to establish to obtain the defendant’s conviction. Testimony that Hernandez was held at gunpoint supplemented other evidence adduced by the state to show the defendant’s use of force in the robberies and his continued disregard for the safety of others in the apartment. In particular, the state relied on the spent shotgun shell for proof that the defendant had used a weapon during the robbery.

We conclude that the defendant cannot prevail on his claim of prosecutorial impropriety. The occurrence of one isolated impropriety did not deprive the defendant of his right to a fair trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged . . .

       General Statutes § 53a-101 (a) provides in relevant part: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (1) [h]e is armed with ... a deadly weapon or dangerous instrument . . . .”

       General Statutes § 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.”

       The victims’ names were Orsini Mateos-Hemandez, Ivan Jairo Perez Ruiz, Eliseo Ruiz Perez, Marino Ruiz Ramirez and Eleazar Hernandez. For clarity, we will refer to the victims by their full names.

       In the defendant’s argument on his motion for a judgment of acquittal, the defendant acknowledged the evidence given by Eleazar Hernandez, in his statement to the police as well as in his testimony at trial, that “they took our wallets.” He did not, therefore, argue that there was insufficient evidence to support the jury’s findings that three robberies had occurred.

       When Officer Richard Cretella arrived at the scene to back up Konoval, an individual identifying himself as Roberto Encamación approached and informed him that he was the brother of the individual in the back of the police cruiser. He also indicated that he had left his keys in the car.

       Returning to the apartment, the police therein found a spent, .410 shotgun shell. Unused .410 shotgun shells were found in the trunk of the red car, and an unused twelve gauge shotgun shell was recovered from its backseat.
      At trial, a ballistics expert testified for the state that the shotgun shells recovered from the trunk of the red car had been loaded into the same gun from which spent shell had been fired.

       Encamación subsequently pleaded guilty to participating in the robbery.

       Orsini Mateos-Hemandez testified at trial that the shooter had been wearing shorts instead of pants. He also testified that the shooter had a tattoo with green lettering on the right side of his neck.

       The defendant claims that the court’s instruction that the defendant had the “purpose” of depriving the victim of his property is not equivalent to an instruction on intent. Specifically, the defendant challenges the court’s instruction that “[t]he state must prove beyond a reasonable doubt that the defendant took property from another, the owner of the property, for the purpose of keeping the property permanently.” As this court has noted before when we have interpreted the larceny statute, General Statutes § 53a-133, “[t]he term purpose is synonymous with the terms ‘object’ and ‘intent.’ ” State v. Latorre, 51 Conn. App. 541, 545, 723 A.2d 1166 (1999).

       The court gave the following instruction to the jury: “There are four charges of robbery, and you must evaluate each charge. ... So, there has to be stealing of property, there has to be use of force to compel the giving up of the property or to prevent resistance, and there has to be the displaying of a firearm. And you have to go through the same analysis for all four charges.”

       The defendant also claims that the court’s instruction on the use of force had a reasonable probability of misleading the jury. This claim borders on frivolous. The defendant challenges that part of the court’s instructions in which the court repeated, verbatim, the language of the robbery statute, General Statutes § 53a-133. We do not understand how the reading of the statutory definition of robbery, which is an essential element of robbery in the first degree, can be improper.
      The defendant also claims that there was a genuine risk that the jury would have been confused by the court’s failure to define “unanimity” for the purposes of the jury’s returning its verdict. Reading the instructions as a whole, as we must in light of the principle that the instructions are to be read as a whole; see State v. Hicks, supra, 97 Conn. App. 269-70; we are not persuaded of the existence of such a risk.

       In State v. Fauci, 282 Conn. 23, 26 n.2, 917 A.2d 978 (2007), our Supreme Court determined that “the term ‘prosecutorial impropriety’ ... is more appropriate than the traditional term of ‘prosecutorial misconduct ....’”

       We fail to see how the other alleged misstatements by the state were improper.
      The defendant’s first claimed impropriety was nothing more than an invitation for the jury to draw a reasonable inference. Kovonal testified that the inside of the car was wet from rain on the passenger’s side. The state, in closing argument, stated that this was “[a] reasonable inference that the door had been recently opened and left open.” Although this may not have been the only means by which the front passenger seat could have gotten wet, it was a reasonable inference that the prosecutor could ask the jury to draw.
      The defendant’s second claim of impropriety warrants little discussion because the alleged impropriety was, in fact, a restatement of the sworn testimony of one of the investigating police officers. In closing, the state indicated that Encamación was looking for a friend. Although Encamación may have in fact been looking for his brother, Cretella’s testimony was that Encamación asked “if that was his friend or brother-in-law.”
      The defendant’s third claimed impropriety was not improper because it was an accurate characterization of Encamacion’s testimony. Although the defendant claims that the state indicated that Encarnación had testified: “How could I be identified if they all had masks on?” the record reveals otherwise. The state, in closing, referred not to Encamacion’s statement but to Encamacion’s denial, while on the witness stand, to making that statement to police. The state said, “And his—he denied, you heard him, I never asked him, well, how could I be identified if they all had masks on?” The state was not referring to the statement as having been made by Encarnación but, rather, as not having been asked on direct examination.
      The defendant’s fourth claim of impropriety rests on the state’s statement that two people were injured when, in fact, one individual suffered two injuries. Although this was a misstatement of the evidence, we do not see how this minor confusion amounts to an impropriety. Moreover, the defendant has failed to prove how he was deprived of a fair trial by this misstatement. According to the defendant, this misstatement could have prejudiced the jury on the charges of reckless endangerment. Actual ii\jury, however, is not an element of reckless endangerment in the first degree; see General Statutes § 53a-63 (a); and therefore could not possibly have prejudiced or misled the jury.
      The defendant’s fifth claim of impropriety is that the state argued that the jury could reasonably infer from the statement, “Carlos, if they move, shoot,” that the defendant was the shooter. As discussed previously, this was a reasonable inference that the jury could draw from the testimony of the victims. See part I. As such, it was reasonable for the state to ask the jury to draw this inference.


author: McLACHLAN, J.

text:
    MARLIN BROADCASTING, LLC v. LAW OFFICE OF KENT AVERY, LLC, ET AL.
    (AC 27550)
    McLachlan, Lavine and Peters, Js.

      Argued February 20
    officially released June 12, 2007

      Kent Avery, for the appellants (defendants).

      Kevin M. Ahem, with whom, on the brief, were Julia B. Morris and Sandi Beth Girolamo, for the appellee (plaintiff).
   Opinion

McLACHLAN, J.

The defendants, the Law Office of Kent Avery, LLC (law firm), and Kent Avery, appeal from the judgment of the trial court granting the plaintiffs application for a prejudgment remedy as to both defendants in the amount of $35,250. On appeal, the defendants claim that the court improperly (1) denied their request to dismiss the application for lack of subject matter jurisdiction on the ground that the plaintiff lacked standing to bring the action, (2) awarded a prejudgment remedy against Avery and (3) did not assign the proper weight or apply the correct standard to the defendants’ defenses. We affirm the judgment of the trial court.

This case arises out of a contractual dispute between the defendants and a local radio station, WCCC-FM, 106.9 “The Rock” (WCCC), for the defendants’ nonpayment of on air advertisement services. On February 18, 2006, the plaintiff, Marlin Broadcasting, LLC, pursuant to General Statutes § 52-278c, filed an application for a prejudgment remedy against the defendants with supporting documentation. In the complaint, which was attached to the prejudgment remedy application, the plaintiff alleged breach of contract as to the law firm and unjust enrichment and quantum meruit as to both defendants.

According to the affidavit in support of the prejudgment remedy application, WCCC is an affiliate of the plaintiff. As set forth in the complaint, Avery is the sole attorney member and principal of the law firm. The plaintiff alleged that between the period of July 14, 2004, through June 14, 2005, Avery, on behalf of the law firm, entered into a series of contracts with the plaintiff, under which the defendants agreed to pay the plaintiff to air commercials advertising the law firm. The plaintiff provided these services to the defendants between approximately July, 2004, and November, 2005. The plaintiff alleged that the defendants owe an outstanding balance of $35,250, which they have failed to pay, in breach of these contracts.

On April 3, 2006, the matter came before the court for a hearing on the plaintiffs application for the prejudgment remedy. Mark Savage, an account executive for WCCC, and Kathy Ann Roche, WCCC’s business manager, testified for the plaintiff. Demetra Giatas, general office manager for the law firm, testified for the defendants. The court also admitted various exhibits, including the contracts entered into by the parties, as well as invoices documenting services rendered by WCCC to the defendants, and text versions of the on air advertisements and correspondence between the parties. At the hearing, the defendants also filed a memorandum of law in opposition to the application for the prejudgment remedy setting forth various defenses and arguing that, even if probable cause supported the application, any prejudgment remedy award take into account these defenses.

At the conclusion of the hearing, the court, after discussing the defendants’ defenses, issued an oral decision finding that the plaintiff had established, by probable cause, that a judgment should be rendered in the plaintiffs favor in the amount of the prejudgment remedy sought and granting the plaintiffs application. The court ordered the defendants to post a bond in the amount of $35,250 by April 24, 2006. This appeal followed.

I

We first address the defendants’ claim of lack of standing, as this claim presents a question of the trial court’s subject matter jurisdiction. See Castro v. Viera, 207 Conn. 420, 429, 541 A.2d 1216 (1988) (“once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case” [citations omitted; internal quotation marks omitted]). “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., 77 Conn. App. 578, 581, 823 A.2d 1271 (2003). The scope of review of a trial court’s factual decisions related to the issue of standing on appeal is limited to a determination of whether they are clearly erroneous in view of the evidence and pleadings. DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 374, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

“Standing is established by showing that the party claiming it is authorized by statute to bring an action, in other words statutorily aggrieved, or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: [F]irst, the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in [the challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action]. . . . Aggrievement is established if there is a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected.” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 538, 893 A.2d 389 (2006).

The defendants’ first argument related to standing is evidentiary. The defendants claim that the court improperly permitted Roche to testify regarding the corporate relationship between WCCC and the plaintiff without an adequate foundation. According to the defendants, because Roche’s improper testimony was the only evidence that established a nexus between the plaintiff and WCCC, the court improperly determined that the plaintiff had standing to bring the matter. We disagree.

“We review evidentiary claims pursuant to an abuse of discretion standard. Generally, [t]rial courts have wide discretion with regard to evidentiary issues and their rulings will be reversed only if there has been an abuse of discretion or a manifest injustice appears to have occurred. . . . Every reasonable presumption will be made in favor of upholding the trial court’s ruling, and it will be overturned only for a manifest abuse of discretion.” (Internal quotation marks omitted.) Stanley v. Lincoln, 75 Conn. App. 781, 785, 818 A.2d 783 (2003).

Roche testified that she is the business office manager at “WCCC, Marlin Broadcasting,” and that she has held that position for more than three and one-half years. In this position, Roche testified, she manages various financial tasks for the plaintiff and created the filing system at WCCC. She also testified that she had twenty-five year s of prior experience as a bookkeeper for various companies. Although the defendants objected on foundation grounds when the plaintiff sought to introduce this testimony, they failed to request permission to conduct a voir dire examination of Roche or further seek to develop the record on cross-examination with respect to Roche’s basis of knowledge for testifying regarding the relationship between WCCC and the plaintiff. On the basis of Roche’s testimony regarding her knowledge and experience, we conclude that the court’s decision to permit Roche to testify about the business relationship between the plaintiff and WCCC does not constitute a manifest abuse of discretion.

The defendants’ second argument in the context of their standing claim is that the court improperly determined that the plaintiff could assert the claims of WCCC. The defendants cite Cardi Materials Corp. v. Connecticut Landscaping Bruzzi Corp., supra, 77 Conn. App. 578, for the proposition that a corporation lacks standing to assert claims on behalf of an affiliate corporation. In Cardi Materials Corp., the defendant challenged the standing of the plaintiff, Cardi Materials Corporation, to sue on a contract entered into by an affiliate, Cardi Corporation, a distinct corporate entity. Id., 580. We vacated the judgment of the trial court and remanded the case with direction to dismiss the action on the ground that the plaintiff, a separate and distinct entity that was not a party to the contract, did not have a specific, personal and legal interest in the matter. Id., 581-82. In doing so, we noted that “[n]o evidence was produced at trial that demonstrated any specific, personal and legal interest in the contract by the plaintiff.” Id., 582 n.3.

Unlike the situation in Cardi Materials Corp., in the present matter, we are unable to discern from the limited record before us that the plaintiff and WCCC are separate and distinct legal entities. To the contrary, there was direct testimony that the two businesses are not separate entities. Moreover, the plaintiff presented evidence that it suffered direct injury by way of economic losses in the amount of $35,250 from outstanding invoices that the defendants have failed to pay to the plaintiff. Relying on this evidence, the court properly found that the plaintiff had standing to pursue the matter. On the basis of the evidence set forth in the record, we conclude that the court’s factual findings were not clearly erroneous and that its ultimate conclusion was legally and logically correct.

II

The defendants next claim that the court improperly determined that Avery, as a member of the law firm, a limited liability company, could be held personally liable to the plaintiff under the theories of unjust enrichment and quantum meruit. The defendants argue that the plaintiff did not allege a piercing of the corporate veil and that Avery was therefore shielded from personal liability. See General Statutes § 34-133 (a). The plaintiff argues that notwithstanding Avery’s status as a member of a limited liability company, the advertisements, which solicited direct contact with Avery and repeatedly broadcast his name and personal experience, thereby allowing potential customers to become familiar with him in his individual capacity, unjustly conferred a personal benefit on him to the detriment of the plaintiff. As such, the plaintiff argues that the court properly determined that probable cause existed that a judgment will be rendered in the matter in favor of the plaintiff against Avery.

At the outset, we emphasize that “prejudgment remedy proceedings are not involved with the adjudication of the merits of the action brought by the plaintiff or with the progress or result of that adjudication. They are only concerned with whether and to what extent the plaintiff is entitled to have property of the defendant held in the custody of the law pending adjudication of the merits of that action.” (Internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., 73 Conn. App. 267, 273, 812 A.2d 1 (2002), rev’d on other grounds, 268 Conn. 264, 842 A.2d 1113 (2004). This limited evidentiary proceeding contrasts sharply with, for example, the detailed and substantive arguments and conclusions that must be addressed in a motion to strike. See William Beazley Co. v. Business Park Associates, Inc., 34 Conn. App. 801, 805, 643 A.2d 1298 (1994).

“The purpose of the prejudgment remedy of attachment is security for the satisfaction of the plaintiffs judgment, should he obtain one. ... It is primarily designed to forestall any dissipation of assets by the defendant and to bring [those assets] into the custody of the law to be held as security for the satisfaction of such judgment as the plaintiff may recover .... The adjudication made by the court on [an] application for a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action. It is independent of and collateral thereto . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Cahaly v. Benistar Property Exchange Trust Co., supra, 73 Conn. App. 274-75.

“General Statutes § 52-278d (a) provides in relevant part that a hearing on a prejudgment remedy shall be limited to a determination of . . . whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought, taking into account any defenses, counterclaims or set-offs, will be rendered in the matter in favor of the plaintiff .... If the court, upon consideration of the facts before it and taking into account any . . . [defenses] . . . finds that the plaintiff has shown probable cause that such a judgment will be rendered in the matter in the plaintiffs favor in the amount of the prejudgment remedy sought and finds that a prejudgment remedy securing the judgment should be granted, the prejudgment remedy applied for shall be granted as requested or as modified by the court.” (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn. App. 746, 750-51, 829 A.2d 68 (2003).

“The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. . . .

“This court’s role on review of the granting of a prejudgment remedy is very circumscribed. It is not to duplicate the trial court’s weighing process, but rather to determine whether its conclusion was reasonable. In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 752.

In its oral ruling on the plaintiffs application for a prejudgment remedy, the court noted that the probable cause standard is very low. In granting the application as to Avery, the court found, inter alia, that the evidence supported the plaintiffs claim that the advertisements benefited him in his personal capacity, as well as the law firm. The court did not articulate specifically what bearing this finding had on either the plaintiffs claim for unjust enrichment or quantum meruit.

Quantum meruit and unjust enrichment are common-law principles of restitution that are noncontractual means of recovery without a valid contract. Sidney v. DeVries, 215 Conn. 350, 351 n.1, 575 A.2d 228 (1990). Consistent with the principles of equity, unjust enrichment is a broad and flexible remedy. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283, 649 A.2d 518 (1994). A plaintiff seeking recovery for unjust enrichment must prove “(1) that the defendants were benefited, (2) that the defendants unjustly did not pay the [plaintiff] for the benefits, and (3) that the failure of payment was to the [plaintiffs] detriment.” (Internal quotation marks omitted.) Id.

In arguing that the court’s ruling was improper, the defendants concede that a benefit was conferred on them and presented no evidence to dispute that the outstanding balance of $35,250 had not been paid. Nonetheless, the defendants argue that any benefit to Avery, who could not be held personally liable on the contracts, was incidental to the contracts and that justice should not require him to compensate the plaintiff for such a benefit. See Chatfield v. Fish, 126 Conn. 712, 10 A.2d 754 (1940) (no equitable ground on which plaintiff could recover in quasi-contract against defendant lessor after plaintiff provided services and furnished materials to occupant of certain property and later sought compensation from lessor who knew services were being rendered and material furnished to benefit of property). The defendants further argue that the plaintiff, having contracted directly with the law firm without obtaining a personal guarantee from Avery and having failed to allege facts supporting a piercing of the corporate veil, cannot now circumvent the liability shields established by law to protect Avery. Thus, the defendants argue that under the plaintiffs theory of unjust enrichment, an individual member of a single member limited liability company would always be held personally liable for advertising services, which would eviscerate the liability protections afforded by § 34-133 (a). Finally, the defendants argue that Avery, an attorney bound by Connecticut’s Rules of Professional Conduct, is professionally required to state his name in any advertisement and that it would be inequitable to impose liability on him individually merely for complying with the Rules of Professional Conduct. See Rules of Professional Conduct 7.2 (d). We disagree.

At the hearing, the plaintiff presented evidence that the advertisements personally benefited Avery and that such a benefit was not derived solely by virtue of the fact that he is a member of the law firm. Specifically, the plaintiff presented uncontested evidence that the radio advertisements featured the voice of Avery and directed prospective customers to contact directly “defense attorney Kent Avery.” The advertisements further stated that “Kent Aveiy knows the laws concerning license suspension appeals.” On the basis of this evidence, the court reasonably could have concluded that, for the purposes of granting the application for a prejudgment remedy, the advertisements conferred a direct benefit on Avery in his individual capacity and go beyond the disclosure required by the Rules of Professional Conduct.

The court’s conclusion that probable cause supported the finding that Avery received a benefit in his individual capacity does not end the inquiry, however, as the plaintiff must still make a showing that the enrichment was unjust. See Restatement of Restitution § 1, comment (c), p. 13 (1937) (“Even where a person has received a benefit from another, he is liable to pay therefor only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for him to retain it. The mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.”). Here, the plaintiff presented evidence of Aveiy’s direct involvement through all stages of the business relationship between the parties, including evidence that Avery played an integral part in creating the advertisements that benefited him personally. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 284 n.4 (pertinent facts relevant to defendant’s liability for unjust enrichment included defendants’ direct involvement in placing and design of advertising program). The court made no specific finding as to whether Avery was acting in his individual capacity or as an agent of the law firm, and the defendants did not request an articulation to clarify the basis of the court’s ruling. See Practice Book § 66-5. Accordingly, we will not presume that the court acted improperly, and, therefore, we cannot conclude that the court improperly determined that probable cause supported the imposition of liability on Avery as a personal beneficiary of the agreements.

Thus, we conclude that at this stage of the proceeding and based on the limited record before the court, it reasonably could have concluded that the evidence established that the defendants unjustly did not pay the plaintiff for the advertisements to the plaintiffs detriment. Essentially, the plaintiff presented evidence that Avery received a benefit, separate and distinct from the benefit conferred on the law firm, without paying for it. For these reasons, it was not improper for the court to attach the assets of Avery on the basis of the evidence and allegations in the complaint. Thus, we conclude that the court’s findings are not clearly erroneous and that there was probable cause to attach the assets of Avery on the basis of our review of the transcript of the hearing and the exhibits.

III

Finally, the defendants claim that the court assigned an improper weight and applied an incorrect standard to their defenses. At oral argument before this court, the defendants conceded that they could cite no specific portion of the court’s oral ruling to support their argument. Rather, the defendants rely on the bald assertion that had the court applied the correct standard, they would have prevailed on some of their defenses.

“It is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision . . . [or] to clarify the legal basis of a ruling .... In the absence of any such attempts, we decline to review this issue.” (Internal quotation marks omitted.) State v. Hunter, 99 Conn. App. 736, 743, 916 A.2d 63 (2007).

Here, the defendants failed to seek an articulation from the trial court with respect to whether the court applied the appropriate standard. Because the defendants failed to attempt to clarify the court’s ruling, we decline to review the issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 52-278Í (a), the granting of a prejudgment remedy is a final judgment for purposes of appeal.

        Cardi Materials Corp. is aligned with case law setting forth the general proposition that a parent corporation cannot create a subsidiary and then ignore its separate corporate existence whenever it would be advantageous to the parent. See Bross Utilities Service Corp. v. Aboubshait, 618 F. Sup. 1442, 1445 (S.D.N.Y. 1985); see also Carey v. National Oil Corp., 592 F.2d 673, 676 (2d Cir. 1979); In re Beck Industries, Inc., 479 F.2d 410, 418 (2d Cir. 1973); Pennsylvania Engineering Corp. v. Islip Resource Recovery Agency, 710 F. Sup. 456, 465 (E.D.N.Y. 1989).

       Roche testified, for example, that she was employed by, “WCCC, Marlin Broadcasting.” On cross-examination, the following occurred:
      “[The Defendants’ Counsel]: [W]ith regard to WCCC, you said it was [a] wholly owned subsidiary. What do you mean?
      “[The Witness]: “WCCC —Marlin Broadcasting owns all of the assets and liabilities of WCCC.
      “[The Defendants’ Counsel]: [W]hen you say subsidiary, you don’t mean a separate entity.
      “[The Witness]: “No.
      “[The Defendants’ Counsel]: There is no separate entity, WCCC?
      “[The Witness]: No.”

       General Statutes § 34-133 (a) provides: “Except as provided in subsection (b) of this section, a person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager, under a judgment, decree or order of a court, or in any other manner, for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.”

       The defendants have not requested any such articulation.

       Rule 7.2 (d) of the Rules of Professional Conduct provides in relevant part: “Any advertisement or communication made pursuant to this Rule shall include the name of at least one lawyer admitted in Connecticut responsible for its content. . . .”

       We note that neither the complaint nor the evidence that was presented in a limited fashion at the hearing allege or demonstrate that the plaintiff was mistaken or that Avery somehow misrepresented or implied that he was personally liable on the contract. See, e.g., Chatfield v. Fish, supra, 126 Conn. 713 (“There was no mistake on the part of the plaintiff in rendering the services to and upon the credit of [a third party], or any other equitable ground upon which he can found a right to recover in quasi-contract. [The plaintiff] voluntarily chose to proceed at the request of [the third party], without thought of liability on the defendant’s part. If the defendant was enriched by the services rendered and materials furnished, she has not been enriched under such circumstances that she ought equitably to be required to compensate the plaintiff.”).
      Because a prejudgment remedy is not part of the proceedings ultimately to decide the validity and merits of the plaintiffs cause of action, however, we render no opinion in this decision as to whether the plaintiffs equitable cause of action against Avery will falter at a later juncture. Further, we do not decide that the plaintiff could recover against Avery on equitable grounds in the event that the plaintiff is successful in the breach of contract cause of action against the law firm. See Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., supra, 231 Conn. 284 (“lack of a remedy under the contract is a precondition for recovery based upon unjust enrichment”).


text:
    STATE OF CONNECTICUT v. RAYMOND BAGLEY
    (AC 25500)
    Schaller, McLachlan and Stoughton, Js.
    Argued January 10
    officially released June 12, 2007

      Jane E. Carroll, special public defender, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Slacey M. Haupt and Brian J. Leslie, assistant state’s attorneys, for the appellee (state).
   Opinion

STOUGHTON, J.

The defendant, Raymond Bagley, has appealed from the judgment of conviction rendered after a trial to the jury. The jury found him guilty of risk of injury to a child in violation of General Statutes § 53-21 (a) (2) and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1). The only claim made by the defendant on appeal is that the trial court abused its discretion in finding him competent to stand trial. We affirm the judgment of the trial court.

The jury reasonably could have found that on July 25, 2001, the victim, a minor female, went to the defendant’s apartment to play with her brother. She fell asleep on the defendant’s bed and awoke to find that the defendant was on top of her and that he had his mouth on her breast. The defendant does not challenge the sufficiency of the evidence adduced against him but claims that the court improperly found that he was competent to stand trial on the charges against him, in violation of his due process rights.

The standard we use to determine whether a defendant is competent under state law to stand trial, as set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him. State v. Wolff, 237 Conn. 633, 663, 678 A.2d 1369 (1996). This standard has been codified at General Statutes § 54-56d (a), pursuant to which a defendant is not competent if he is unable to understand the proceedings against him or to assist in his defense. General Statutes § 54-56d (a); State v. Wolff, supra, 663. The defendant does not claim that he lacked a factual understanding of the proceedings against him. Instead, the defendant claims that he lacked the ability to consult with his lawyer with a reasonable degree of rational understanding and that he lacked a rational understanding of the nature of the proceedings.

Because a defendant is presumed to be competent, § 54-56d (b) provides that if he raises his competency as an issue, he must prove incompetence by a preponderance of the evidence. Competence is a legal question, which, pursuant to § 54-56d (f), must be determined by the trial court. State v. DeAngelis, 200 Conn. 224, 229, 511 A.2d 310 (1986). We review a determination of competency under the abuse of discretion standard. State v. Williams, 65 Conn. App. 59, 84, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001). In the application of that standard, we make every reasonable presumption in favor of the correctness of the action of the trial court. State v. Garcia, 81 Conn. App. 294, 300, 838 A.2d 1064 (2004). To the extent that the defendant argues that the court used an incorrect legal standard in evaluating his competency, one that is lower than the constitutional minimum required by the Dusky standard, our review is plenary. See State v. Johnson, 253 Conn. 1, 22 n.23, 751 A.2d 298 (2000).

The following additional facts are necessary for our resolution of the defendant’s claim. The defendant refused to participate in his defense at trial, stating that his religious beliefs, as a Jehovah’s Witness, prevented him from either defending himself or assisting others to defend Mm. When asked about Ms case, the defendant would typically either remain silent or cite passages from the Bible that he believed supported Ms position.

The record reveals that the defendant was evaluated for competency five times between 2002 and 2004. He was found incompetent but restorable on April 29,2002, and committed to the Connecticut Valley Hospital in Middletown. On June 18, 2002, the competency momtor and treatment team at the hospital reported that he was uncooperative with their attempts to evaluate his competency and therefore suggested that the defendant be evaluated for an additional sixty days. On August 21, 2002, it was reported that the defendant was competent, and he was released from the hospital. On December 8, 2003, competency evaluators again concluded that the defendant was not competent to stand trial, largely because he refused to discuss Ms legal situation. Finally, on January 29, 2004, the competency momtor and the treatment team reported their diagnosis that the defendant was able to understand the charges against him and to assist in his defense if he chose to do so. The team concluded that the defendant’s refusal to commumcate with his lawyer was “a deliberate choice and it [was] not a function of any psycMatric impairment.”

At the resulting competency hearing, the defendant offered all of the competency reports and produced, as the only witness at the hearing, Susan McKinley. McKLMey is a licensed climcal social worker and a competency momtor for the WMting Forensic Division of the hospital. She had helped to prepare the report of January 29, 2004, and had reviewed all of the other reports except for the first report dated April 29, 2002.

McKinley explained her report and described her largely unsuccessful attempts to interview the defendant and her observations of him. He was generally uncommumcative when team members tried to talk to him about his case. He had been fully cooperative, however, with the admission procedure and interacted well on a daily basis with other staff and patients. It was McKinley’s opinion and the opinion of every member of the evaluating team that the defendant was malingering.

The court concluded on the basis of all the evidence that the defendant was silent only when he was about to be interviewed by someone who was going to determine his competency or by his defense counsel and that it was his conscious choice to remain uncooperative and mute. The court concluded that the defendant was competent and had the ability to understand the nature of the proceedings against him and to assist in his defense.

The defendant first argues that the court ignored the evidence in the reports in which he was determined to be incompetent. To the contrary, the court stated specifically that it had looked at all of the reports. We thus conclude that the court did review the reports.

Next, the defendant argues that the court used a lower standard to review his competency to stand trial than the Dusky standard. Specifically, the defendant argues that the court failed to evaluate his religious beliefs and to make any determination of whether they were psychotic in nature and prevented him from having a rational understanding of the proceedings against him. After reviewing the transcript of the court’s oral decision, we conclude that the court did use the correct legal standard to review the defendant’s competency. First, the court properly summarized the legal standard as “whether or not the defendant is unable to understand the proceedings and unable to assist in his defense.” The court then considered the various reports and testimony bearing on the defendant’s ability to rationally understand the proceedings against him. It specifically reviewed whether the defendant’s unwillingness to conununicate with his attorney was a conscious, voluntary choice.

Finally, the defendant claims that the court abused its discretion in concluding that he was competent to stand trial. The report of January 29, 2004, stated that the religious ideas that previously might have interfered with the defendant’s thinking had not resurfaced and in any event were not psychotic in nature and did not impair his ability to think rationally about his situation. Further, the defendant’s sole witness, McKinley, testified that the defendant’s religious beliefs were not the result of a psychiatric illness. She further testified that his refusal to assist in his defense was a conscious choice. The court was free to credit and to rely on the testimony of McKinley and to accept the January 29, 2004 report. We conclude that the court did not abuse its discretion in finding the defendant competent to stand trial.

The judgment is affirmed.

In this opinion the other judges concurred.

       In accordance with our policy of protecting the privacy interests of the victims of sexual assault and risk of injury to a child, we decline to identify the victim or others through whom her identity may be ascertained pursuant to General Statutes § 54-86e.

       General Statutes § 54-56d (a) provides: “A defendant shall not be tried, convicted or sentenced while the defendant is not competent. For the purposes of this section, a defendant is not competent if the defendant is unable to understand the proceedings against him or her or to assist in his or her own defense.”