author: HENNESSY, J.

text:
    WILLIAM FARNUM v. COMMISSIONER OF CORRECTION
    (AC 28966)
    Bishop, Gruendel and Hennessy, Js.
    Argued October 15
    officially released December 29, 2009

      Gennaro Bizzarro, special public defender, for the appellant (petitioner).

      Richard K. Greenalch, Jr., special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

HENNESSY, J.

The petitioner, William Farnum, appeals following the habeas court’s denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. The petitioner claims that the court abused its discretion in denying his petition for certification to appeal and improperly rejected his claim that his trial counsel and appellate counsel rendered ineffective assistance. We conclude that the court properly denied the petition for certification to appeal and, accordingly, dismiss the petitioner’s appeal.

The following facts and procedural history, as set forth in State v. Farnum, 275 Conn. 26, 28-29, 878 A.2d 1095 (2005), provide the necessary facts for the disposition of the petitioner’s appeal: “On January 24, 2002, a branch of the American Savings Bank, located at 747 Farmington Avenue in New Britain, was robbed. After pushing aside a customer, the robber approached Agnes Ksiazak’s teller station. He told her to ‘make it quick,’ and handed her a note demanding all of her $20, $50 and $100 bills, and warning that he had a gun. Ksiazak then handed the robber $2310, and he departed.

“The following week, on January 31, 2002, a second New Britain branch [located at 587 Hartford Road] of the American Savings Bank was robbed. The robber approached Nadine Narog’s teller window and gave her a note stating that he had a gun and that he wanted all of her $50 and $100 bills. He told her that she should ‘make it quick . . . .’ Narog then gave the robber $200, and he left the bank.

“The [petitioner] subsequently was charged in connection with both robberies. As a result of the January 24 robbery, the [petitioner] was charged in an information with one count of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and one count of larceny in the third degree in violation of General Statutes § 53a-124 (a) (2). As a result of the January 31 robbery, the [petitioner] was charged in a second information with one count of robbery in the first degree in violation of § 53a-134 (a) (4) and one count of larceny in the sixth degree in violation of General Statutes § 53a-125b (a). The two cases were later consolidated and tried to the court.”

At trial, the petitioner moved the court to suppress identification evidence concerning the January 31, 2002 robbery obtained as a result of a photographic array because the array was allegedly improperly suggestive. Additionally, the petitioner moved the court for judgments of acquittal, claiming that the evidence was not sufficient to establish that he was the perpetrator of the robberies. The trial court denied the motions, finding the petitioner guilty beyond a reasonable doubt of both robberies. Subsequently, the court rendered judgments of conviction on all counts, sentencing the petitioner to twenty-four years of incarceration.

The petitioner appealed to this court from the judgments of conviction, arguing that the trial court improperly denied (1) his motion to suppress identification evidence obtained from the photographic array and (2) his motion for judgments of acquittal, which alleged that the evidence was insufficient to support his convictions. We concluded that the photographic array was not overly suggestive but reversed the petitioner’s conviction for the January 24 robbery because of insufficient evidence. State v. Farnum, 83 Conn. App. 326, 328, 849 A.2d 393 (2004), rev’d in part, 275 Conn. 26, 878 A.2d 1095 (2005). Our Supreme Court granted the state’s petition for certification to appeal, limited to whether “the evidence was insufficient to prove that the [petitioner] was the perpetrator of a robbery of the Farmington Avenue branch of the American Savings Bank in New Britain on January 24, 2002 . . . .” (Internal quotation marks omitted.) State v. Farnum, supra, 275 Conn. 31. The Supreme Court reversed our judgment, holding that sufficient evidence existed to support the trial court’s conviction as to the January 24, 2002 robbery. Id., 37-38.

The petitioner subsequently brought this petition for a writ of habeas corpus. In his amended petition, the petitioner asserted several claims of ineffective assistance of both his trial counsel, Douglas S. Pelletier, and his appellate counsel, Joaquina Borges King. The habeas trial was held on May 18, 2007. During that proceeding, the court heard testimony from appellate counsel and the petitioner. In an oral decision, the court denied the petition, finding that the petitioner failed to prove that he was denied the effective assistance of trial or appellate counsel under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). On June 25, 2007, the court denied the petition for certification to appeal. This appeal followed.

Preliminarily, we set forth the proper standard of review and applicable legal principles that govern our resolution of the petitioner’s appeal. “Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits.

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Internal quotation marks omitted.) Bloomfield v. Commissioner of Correction, 111 Conn. App. 752, 756, 960 A.2d 1093 (2008), cert. denied, 290 Conn. 912, 964 A.2d 547 (2009).

“We examine the petitioner’s underlying claimfs] of ineffective assistance of counsel in order to determine whether the habeas court abused its discretion in denying the petition for certification to appeal. Our standard of review of a habeas court’s judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . .

“In Strickland v. Washington, [supra, 466 U.S. 687], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel’s assistance was so defective as to require reversal of [the] conviction .... That requires the petitioner to show (1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel’s mistakes, the result of the proceeding would have been different]. . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” (Internal quotation marks omitted.) Parrott v. Commissioner of Correction, 107 Conn. App. 234, 236, 944 A.2d 437, cert. denied, 288 Conn. 912, 954 A.2d 184 (2008). Furthermore, “[i]n a habeas corpus proceeding, the petitioner’s burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities.” (Emphasis added; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).

On appeal, the petitioner asserts that the court abused its discretion in denying his petition for certification to appeal because the resolution of the following claims involves issues that are debatable among jurists of reason and could be decided in a different manner: (1) whether trial counsel was ineffective in failing to object to the consolidation of the robbery cases; (2) whether trial counsel was ineffective in advising the petitioner to proceed by way of a court trial; (3) whether trial counsel was ineffective in failing to conduct an adequate pretrial investigation; (4) whether appellate counsel was ineffective in failing to file a cross petition for certification to appeal with the Supreme Court on the issue of the trial court’s denial of the motion to suppress the photographic array; and (5) whether appellate counsel was ineffective in failing to challenge on direct appeal the trial court’s decision to grant the state’s motion to consolidate.

We first address the petitioner’s claim that trial counsel was ineffective in failing to object to the consolidation of the robbery cases. The petitioner argues that consolidation was not permissible under the factors set forth in State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), because the evidence in the robberies would not have been cross admissible had the cases been tried separately. Additionally, the petitioner argues that if trial counsel properly objected to the motion to consolidate, the state would have been compelled to conduct two separate trials. The habeas court found that the “petitioner has failed to prove that the cases should not have been consolidated and that had they not been consolidated he would have been acquitted on both.”

Under Connecticut law, regardless of whether the evidence is cross admissible, joinder is appropriate if the defendant will not suffer substantial prejudice and, in turn, be afforded a fair trial. See State v. McKenzie-Adams, 281 Conn. 486, 520, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S. Ct. 248, 169 L. Ed. 2d 148 (2007). In determining whether such prejudice exists, we have examined “(1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial.” (Internal quotation marks omitted.) State v. Virgo, 115 Conn. App. 786, 793-94, 974 A.2d 752, cert. denied, 293 Conn. 923, 980 A.2d 914 (2009). The petitioner concedes that the robberies involved distinct events. During each robbery-, the petitioner was not violent and did not engage in brutal or shocking conduct. The petitioner’s criminal trial lasted four days. On our review of the record, we conclude that the petitioner did not suffer substantial prejudice as a result of the consolidation of the robbery cases, and, thus, the habeas court did not abuse its discretion in rejecting this claim.

The petitioner’s second claim on appeal alleges that his trial counsel was ineffective in advising him to waive his right to a jury trial. The petitioner contends that he relied entirely on trial counsel’s advice in deciding to waive his right to a jury trial and that he did not understand the judge during the trial court’s canvass. He argues that his trial counsel’s “failure to ensure that [the petitioner] clearly understood the significance of waiving his constitutional right to trial by jury amounts to deficient performance by any standard. . . . [Furthermore, had he elected a jury trial] it is likely that at least one of the jurors would have found . . . that the state had not met its burden on at least one, if not all, of the charges.” Although the habeas court stated that waiving a jury trial in a criminal case was perhaps unusual, the court found that the petitioner was properly canvassed, that he properly waived his right to a jury trial and that he had “failed to prove that he would have fared better in front of a jury rather than a judge.” On the basis of our review of the record, it is clear that the habeas court did not abuse its discretion in this determination.

The next claim by the petitioner is that his trial counsel failed to conduct an adequate pretrial investigation. He argues that trial counsel did “very little in the way of investigating what could have been multiple, successful defense strategies. His failure to investigate resulted in prejudice to the petitioner. But for [trial counsel’s] conduct, the jury may have heard crucial evidence that could have altered the outcome of the trial . . . .” Although the habeas court did not address this claim in detail, it stated that it did not hear any evidence that would permit it to conclude that the petitioner was deprived of the effective assistance of either appellate or trial counsel. We agree with the habeas court’s conclusion. Because the petitioner has not reasonably demonstrated that but for trial counsel’s alleged inadequate investigation, the result of the proceedings would have been different, we cannot say that the habeas court abused its discretion in this regard.

The petitioner also asserts that his appellate counsel provided ineffective assistance because counsel failed to file a cross petition for certification to appeal with the Supreme Court on the issue of the trial court’s denial of the petitioner’s motion to suppress the photographic array. Specifically, he argues that “[h]ad the Supreme Court ruled in the petitioner’s favor on the issue of the photographic array, the trial court’s [judgment of conviction] would have been overturned for failure to identify conclusively the petitioner as the robber.” The habeas court rejected this claim, as the decision not to file a cross petition for certification to appeal on the photographic array issue was a strategic decision by counsel, and, additionally, no prejudice was shown.

“[A] habeas court will not, with the benefit of hindsight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue. . . . [Multiplying assignments will dilute and weaken a good case and will not save a bad one. . . . The effect of adding weak arguments will be to dilute the force of the stronger ones.” (Internal quotation marks omitted.) Watson v. Commissioner of Correction, 111 Conn. App. 160, 169, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).

We conclude that appellate counsel’s decision not to file a cross petition for certification to appeal to the Supreme Court falls within “the wide range of reasonable professional assistance”; Strickland v. Washington, supra, 466 U.S. 689; and did not constitute deficient performance. Accordingly, the petitioner has failed to establish that the habeas court abused its discretion in denying the petition for certification to appeal. See, e.g., Coleman v. Commissioner of Correction, 108 Conn. App. 836, 838, 949 A.2d 536, cert. denied, 289 Conn. 913, 957 A.2d 876 (2008).

The last claim on appeal involves the petitioner’s contention that appellate counsel was ineffective in failing to challenge on direct appeal the trial court’s decision to grant the state’s motion to consolidate. The habeas court also rejected this claim, finding no basis to offer habeas relief. The petitioner’s trial counsel did not object to the state’s motion to consolidate the robbery cases. Consequently, the issue of consolidation was not properly preserved for appeal, and because the claim is not of constitutional magnitude, this court could not afford it review. See State v. Vallejo, 102 Conn. App. 628, 633-34, 926 A.2d 681, cert. denied, 284 Conn. 912, 931 A.2d 934 (2007); State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Furthermore, because we concluded that joinder was appropriate on the merits, the petitioner has failed to show prejudice. As a result, we cannot say that the habeas court abused its discretion when it concluded that the petitioner’s appellate counsel was not ineffective in failing to challenge on direct appeal the consolidation of the robbery cases.

After carefully reviewing the record and briefs, we agree with the habeas court’s decision that the petitioner was not deprived of the effective assistance of counsel, in any respect, at any stage of the proceedings. Considering the record in light of Strickland,, we are not convinced that the issues presented in this appeal are debatable among jurists of reason, that a court could resolve them in a different manner or that the questions raised deserve encouragement to proceed further. See Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991); Simms v. Warden, supra, 230 Conn. 616. Consequently, we conclude that the petitioner failed to establish that the court abused its discretion in denying the petition for certification to appeal. See, e.g., Coleman v. Commissioner of Correction, supra, 108 Conn. App. 838.

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner’s trial counsel did not object to the state’s motion to consolidate the robbery cases. Following consolidation, the petitioner waived his right to a jury trial.

       The petitioner’s trial counsel was unavailable as a witness at the habeas trial because, after retiring to Florida, he developed a physical condition that prevented his traveling to Connecticut.

       We note the different principles that apply to the review of ineffective assistance of appellate counsel claims. “When applying the two part Strickland analysis in the context of a claim of ineffective assistance of appellate counsel, the petitioner must first establish that appellate counsel’s representation fell below an objective standard of reasonableness considering all of the circumstances. . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions. . . .
      “After demonstrating deficient performance, the petitioner must then satisfy the prejudice prong of Strickland by establish[ing] that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. ... In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel’s deficient performance, but also that there is a reasonable probability that the trial verdict would have been different.” (Citation omitted; internal quotation marks omitted.) Watson v. Commissioner of Correction, 111 Conn. App. 160, 168, 958 A.2d 782, cert. denied, 290 Conn. 901, 962 A.2d 128 (2008).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    JOHN A. LOVETERE ET AL. v. HAROLD E. COLE
    (AC 30355)
    Beach, Alvord and Borden, Js.
    Argued October 29
    officially released December 29, 2009

      Andrew W. Skolnick, with whom, on the brief, was Catherine A. Cuggino, for the appellant (defendant).

      William C. Franklin, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

This is an action to quiet title and for slander of title brought by the plaintiffs, John A. Lovetere and Nancy D. Lovetere, against the defendant, Harold E. Cole, an adjoining landowner. After a trial to the court, the court found that the plaintiffs held record title to the land in question and that the defendant had committed statutory slander of title by recklessly recording a deed that he knew was false, with the sole purpose of slandering the plaintiffs’ title. Accordingly, the court rendered judgment quieting title in the plaintiffs and awarding damages for slander of title. The defendant has appealed. We affirm the judgment of the trial court.

The defendant does not challenge any of the findings or conclusions of the court on the merits of the case. His sole claim on appeal is that the court abused its discretion in granting the plaintiffs’ pretrial motion to preclude the expert testimony of an attorney whom the defendant had engaged to search the titles of the parties’ properties.

The defendant claims that the court abused its discretion because (1) he had made adequate disclosure of the expert, (2) the expert was retained and disclosed within a reasonable time prior to trial, (3) the disclosure did not cause undue prejudice to the plaintiffs, (4) the disclosure did not cause undue interference with the orderly progress of the trial, (5) there was no bad faith delay on the part of the defendant in disclosing the expert and (6) the court’s sanction was disproportionate to the claimed violation of the discovery rules. The plaintiffs respond that (1) the absence of an articulation by the court of its decision to preclude the defendant’s expert witness precludes appellate review of the decision, (2) the expert witness was not properly disclosed, (3) the court did not abuse its discretion in precluding the expert from testifying and (4) any error was harmless because the record does not establish what, if anything, the purported witness’ opinion would have been.

We have fully considered the entire record, the claims of the defendant and the responses of the plaintiffs. We conclude that the court’s ruling was well within its discretion and, furthermore, that there is nothing in the record to indicate what, if anything, the expert’s opinion would have been had the court ruled otherwise. Ordinarily, an appellant must show, not only that the court made an improper ruling, but also that the impropriety was serious enough to require reversal of the judgment and a new trial. “[E]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 161, 971 A.2d 676 (2009). Therefore, we have absolutely no basis for reversing the judgment and ordering a new trial.

The judgment is affirmed.


text:
    ROGER L. SIMON ET AL. v. HAROLD E. COLE
    (AC 30354)
    Beach, Alvord and Borden, Js.
    Argued October 29
    officially released December 29, 2009

      Andrew W. Skolnick, with whom, on the brief, was Catherine A. Cuggino, for the appellant (defendant).

      Stuart A. Margolis, with whom, on the brief, were Pasquale Young and Daniel C. Bums, for the appellees (plaintiffs).
   Opinion

PER CURIAM.

This appeal is a companion case to Lovetere v. Cole, 118 Conn. App. 680, 984 A.2d 1171 (2009), decided today. The plaintiffs Roger L. Simon and Mary Ellen Simon brought this action against the defendant, Harold E. Cole, an adjoining land owner, to quiet title to certain property. After a trial to the court, the court found that the plaintiffs held record title to the land in question. Accordingly, the court rendered judgment quieting title in the plaintiffs. The defendant has appealed. We affirm the judgment of the trial court.

The defendant does not challenge any of the findings or conclusions of the court on the merits of the case. His sole claim on appeal is that the court abused its discretion in granting the plaintiffs’ pretrial motion to preclude the expert testimony of an attorney whom the defendant had engaged to search the titles of the parties’ properties.

The defendant claims that the court abused its discretion because (1) he had made adequate disclosure of the expert, (2) the expert was retained and disclosed within a reasonable time prior to trial, (3) the disclosure did not cause undue prejudice to the plaintiffs, (4) the disclosure did not cause undue interference with the orderly progress of the trial, (5) there was no bad faith delay on the part of the defendant in disclosing the expert and (6) the court’s sanction was disproportionate to the claimed violation of the discovery rules. The plaintiffs respond that (1) the absence of an articulation by the trial court of its decision to preclude the defendant’s expert witness from testifying prevents appellate review of that claim, (2) the expert witness was not properly disclosed and (3) the court did not abuse its discretion in precluding the expert from testifying.

We have fully considered the entire record, the claims of the defendant and the responses of the plaintiffs. We conclude that the court’s ruling was well within its discretion and, furthermore, that there is nothing in the record to indicate what, if anything, the expert’s opinion would have been had the court ruled otherwise. Ordinarily, an appellant must show, not only that the trial court made an improper ruling, but also that the impropriety was serious enough to require reversal of the judgment and a new trial. “[E]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 161, 971 A.2d 676 (2009). Therefore, we have absolutely no basis for reversing the judgment and ordering a new trial.

The judgment is affirmed.


author: HARPER, J.

text:
    EDWARD A. LEHAN, JR. v. JANE E. LEHAN
    (AC 28663)
    Flynn, C. J., and Harper and McDonald, Js.
    Argued December 2, 2008
    officially released January 5, 2010

      Steven R. Dembo, with whom, on the brief, was P. Jo Anne Burgh, for the appellant (defendant).

      Gerald A. Roisman, with whom, on the brief, was Edith F. McClure, for the appellee (plaintiff.
   Opinion

HARPER, J.

The defendant, Jane E. Lehan, appeals from the judgment of the trial court rendered following the granting of a motion for contempt and a motion for modification filed by the plaintiff, Edward A. Lehan, Jr. On appeal, the defendant claims that the court improperly (1) found the defendant in contempt for failure to pay child support, (2) modified the child support order when the plaintiffs motion for modification did not request such a relief, (3) found a child support arrear-age, (4) entered financial orders after the plaintiff explicitly waived a claim to certain types of relief, (5) awarded attorney fees and unreimbursed medical expenses to the plaintiff and (6) modified the defendant’s alimony award. We reverse the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the appeal. The parties were married on August 14, 1981. The court, Barall, J., dissolved the parties’ marriage by a memorandum of decision filed on March 2, 2000 (dissolution judgment). At the time of dissolution, the parties had two minor children. The court found that the marriage had broken down irretrievably as a result of the defendant’s abuse of alcohol and entered various financial orders. In relevant part, it ordered: “The defendant/wife will not be required to pay child support up to one year if she enrolls in hairdressing school within 60 days. If the defendant/wife does not enroll within 60 days, on day 61, [she] will be obligated to pay $56 per week as child support plus 8 V2 [percent] of the day care and unreim-bursed medical expenses for the child based on a minimum wage, 40 hour week. Further, if the defendant/ wife does not enroll in hairdressing school, there will be a hearing scheduled within 90 days from the date of the judgment to determine if, given her education, what reasonable efforts she has made to secure employment that would bring her beyond the minimum wage categorization.” It further ordered the plaintiff to pay to the defendant periodic alimony for eight years, such that $825 per week was ordered for the first two years and $700 per week was ordered for the remaining six years.

On January 14, 2002, the plaintiff filed two motions. He filed a motion for determination of child support, wherein he requested the court to enter an order determining the amount of child support that the defendant was to be ordered to pay. He also filed a motion for restraining order of the defendant from the plaintiff on the basis of harassment and threats. On March 26, 2002, the court, Brennan, J., granted the plaintiffs motion for restraining order but denied the plaintiffs motion for determination of child support. It appears from the file that Judge Brennan granted and denied the motions without comment. Both parties undisputedly assert that the plaintiffs motion for determination of child support was denied due to a lack of evidence of the defendant’s income.

The case was dormant until 2006, whereupon the plaintiff filed two additional motions. He first filed a motion for modification of alimony on the basis of the defendant’s cohabitation and noncompliance with the court’s order to pay child support. He then filed a motion for contempt and counsel fees on the basis of the defendant’s failure to pay child support from the date the dissolution judgment was rendered. On September 15, 2006, the court, Caruso, J., held a hearing on both motions and filed a memorandum of decision on January 10, 2007. The court found the defendant in wilful contempt for failure to pay child support and granted the plaintiffs motion for modification to decrease alimony payments. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly found her in contempt of the dissolution judgment’s child support order. Specifically, the defendant contends that she was not obligated to make child support payments because the child support order only required her to make payments if she failed to enroll in hairdressing school. We agree that she could not be held in contempt because of the ambiguity of the child support order if, in fact, the defendant had enrolled in hairdressing school.

“[0]ur analysis of a judgment of contempt consists of two levels of inquiry. First, we must resolve the threshold question of whether the underlying order constituted a court order that was sufficiently clear and unambiguous so as to support a judgment of contempt. . . . Second, if we conclude that the underlying court order was sufficiently clear and unambiguous, we must then determine whether the trial court abused its discretion in issuing, or refusing to issue, a judgment of contempt, which includes a review of the trial court’s determination of whether the violation was willful or excused by a good faith dispute or misunderstanding.” (Citations omitted.) In re Leah, 284 Conn. 685, 693-94, 935 A.2d 1021 (2007).

The defendant argues that the dissolution judgment only required her to pay child support if she failed to enroll in hairdressing school. Consequently, the defendant argues that because she was enrolled in hairdressing school within sixty days, the dissolution judgment did not impose an obligation to pay child support. She asserts that the dissolution judgment did not impose an amount or start date for her child support obligations after her enrollment in hairdressing school.

Our analysis requires us to interpret the dissolution judgment. The construction of a judgment is a question of law for the court, such that our review of the defendant’s claim is plenary. “As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment. . . . The interpretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . Effect must be given to that which is clearly implied as well as to that which is expressed. . . . The judgment should admit of a consistent construction as a whole.” (Citation omitted; emphasis added; internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 91-92, 952 A.2d 1 (2008).

The dissolution judgment stated: “The defendant/ wife will not be required to pay child support up to one year if she enrolls in hairdressing school within 60 days. If the defendant/wife does not enroll within 60 days, on day 61, the defendant/wife will be obligated to pay $57 per week as child support plus 8 k percent of the day care and unreimbursed medical expenses for the children based on a minimum wage, 40 hour week. Further, if the defendant/wife does not enroll in hairdressing school, there will be a hearing scheduled within 90 days from the date of the judgment to determine if, given her education, what reasonable efforts she has made to secure employment that would bring her beyond the minimum wage categorization.” The defendant focuses on the lack of language in the dissolution judgment expressing what the child support order required of her if she did enroll in hairdressing school. She emphasizes that the dissolution judgment focuses solely on her obligations if she did not enroll in hairdressing school.

We thoroughly have reviewed the court’s written and oral ruling on the parties’ dissolution. In its oral ruling, the court explained the defendant’s obligation to pay child support. Specifically, in the defendant’s presence, the court stated: “If Mrs. Lehan were working at minimum wage at forty hours a week, the court has calculated that her net pay . . . under the court guideline would be, approximately, $211.00 and she would be obligated to pay approximately $57.00 per week support plus 8 k percent of the other expenses such as day care and medical unreimbursed. . . . The court noted in the file that [the defendant] . . . would prefer rather than teaching to go into hairdressing school and get a new type of career. And that she can do that by attending, in one year, and that she has also investigated, and I find that was credible, that her spectrum could be anywhere from twenty-some-odd thousand dollars all the way up to fifty-thousand dollars of earnings. . . . The court looked at the issue and believes that the appropriate thing to dealing with — is that Mrs. Lehan is . . . capable of getting a new career but that she needs some time to be rehabilitated, and, therefore, the court will award her an amount of money for a period of time reasonably necessary to accomplish that. . . . They brought two children into the world; they have an obligation to support, both, to their respective abilities, and, therefore, she should be given that opportunity . . . .”

The court further stated: “And I’ve broken out, essentially, a mechanism to deal with that. ... If she, in fact, enrolls in hairdressing school within the next sixty days, that’s the time line — that; should be ample time since the testimony was that she could enroll at any time — then she will not be required to pay child support for the period of time that she’s in school full time. And it’s anticipated that could be up to a year so, essentially, it’s one year without. If she doesn’t enroll in sixty days, then effective the sixty-first day she’ll be required to pay support. That will initially be based upon her being employed at forty hours per week at the minimum wage of $6.50 an hour.” (Emphasis added.)

As noted above, the written ruling provided: “The defendant/wife will not be required to pay child support up to one year if she enrolls in hairdressing school within 60 days.” (Emphasis added.) The language fails to clearly reflect what the defendant would owe if she enrolled in hairdressing school. The language solely focuses on when and what the defendant would owe if she did not enroll in hairdressing school. We agree with the defendant’s claim that the child support order did not provide a clear obligation to pay child support if she enrolled in hairdressing school. We conclude that the only reasonable interpretation of the dissolution judgment is that the defendant was obligated to pay child support based on a minimum wage forty hour work week if she did not enroll in hairdressing school. However, the dissolution judgment becomes unclear as to the defendant’s obligation if she enrolled in hairdressing school. We are left with one clear and one unclear reading of the dissolution judgment’s child support order that is dependent on whether the defendant enrolled in hairdressing school. Accordingly, we conclude that the child support order was unclear and, thus, could not support a finding of contempt if the defendant enrolled in hairdressing school.

Our conclusion leads us to the defendant’s second and third claim relating to the child support order in which the defendant asserts that the court lacked evi-dentiary support to find that she did not enroll in hairdressing school. The court articulated that it found the “defendant lacked credibility on whether or not she enrolled in hairdressing school within 60 days of the [dissolution] judgment .... Other than her claim at the hearing that she did enroll, she failed to provide any evidence of such enrollment. Further, the plaintiff testified credibly [that] he had no knowledge of such enrollment. In addition, the defendant’s own testimony of her earnings before 2005 do not support her claim that she was enrolled and completed the course.”

“[F] actual findings of atrial court . . . are reversible only if they are clearly erroneous. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at that conclusion, to determine whether it is legally correct and factually supported.” (Citation omitted; internal quotation marks omitted.) Muller v. Muller, 43 Conn. App. 327, 338, 682 A.2d 1089 (1996). “[W]here the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, these facts are clearly erroneous.” Moreira v. Moreira, 105 Conn. App. 637, 640, 938 A.2d 1289 (2008).

Our review of the files that were before the court revealed that on January 14, 2002, the plaintiff filed a motion for determination of child support. In the motion, the plaintiff asserted that the defendant had enrolled in hairdressing school and had failed to pay child support from the date of the dissolution judgment. In light of this statement by the plaintiff in 2002, the court’s finding that the defendant did not enroll in hairdressing school is unsupported by the pleadings and is clearly erroneous.

Accordingly, as noted above, the dissolution judgment has two orders: one if the defendant enrolled in hairdressing school and one if the defendant did not enroll in hairdressing school. The court improperly found that the defendant did not enroll in hairdressing school. Because the dissolution judgment was unclear as to what the defendant’s child support obligation would be if she did enroll in hairdressing school, and Judge Brennan had previously denied a child support motion in 2002, then the defendant could not be found in wilful contempt. Furthermore, we need not address the defendant’s remaining claims relating to the child support order in light of our conclusion that there was no clear definitive child support order in place.

II

Next, the defendant claims that the court improperly awarded the plaintiff relief for child support, unreim-bursed medical expenses, day care costs and attorney fees because the plaintiff expressly had waived his claim to such relief. In light of our conclusions in part I of this opinion, that there was no child support order in place and that the contempt was not properly found, and our conclusion in part IV of this opinion, that the court improperly granted the plaintiffs motion for modification, we need not consider whether the plaintiff waived his claim to such relief.

Ill

Next, the defendant claims that the court improperly ordered her to pay the plaintiffs counsel fees and the children’s unreimbursed medical expenses. Specifically, the defendant asserts that the court lacked eviden-tiary support to make any finding on the amounts for each order. We will address each order in turn.

A

The defendant argues that the court improperly awarded attorney fees without evidence to support the underlying amount. We need not reach this claim, in light of our conclusions, in part I and part IV of this opinion, that the court improperly granted both the plaintiffs motion for contempt and motion for modification of alimony.

B

Lastly, the defendant argues that the court improperly ordered her to pay 35 percent of the children’s unreim-bursed medical expenses. We need not reach this claim, in light of our finding, in part I of this opinion, that the dissolution judgment was unclear as to the defendant’s child support obligation if she did enroll in hairdressing school.

IV

Next, the defendant claims that the court improperly granted the plaintiffs motion for modification of alimony on the basis of cohabitation. We agree.

The court found that the defendant’s testimony on whether she cohabitated was not credible. Further, it found that while the defendant was working as a hairdresser with an annual salary ranging from $11,000 to $11,900, her income exceeded her expenses by $525 per week. The defendant argues that the plaintiff failed to produce sufficient evidence to support a claim of cohabitation. Specifically, the defendant argues that the plaintiff failed to prove the requirements of cohabitation under General Statutes § 46b-86 (b). We will address the requirements for cohabitation in turn.

Section § 46b-86 (b) is commonly known as the cohabitation statute in actions for divorce. Cushman v. Cushman, 93 Conn. App. 186, 198, 888 A.2d 156 (2006). In accordance with the statute, “before the payment of alimony can be modified or terminated [on cohabitation grounds], two requirements must be established. First, it must be shown that the party receiving the alimony is cohabit [ing] with another individual. If it is proven that there is cohabitation, the party seeking to alter the terms of the alimony payments must then establish that the recipient’s financial needs have been altered as a result of the cohabitation.” (Internal quotation marks omitted.) Id., 199.

The first requirement is a finding that the defendant cohabitated with another individual. The record reflects that both parties provided testimony on that question. The plaintiff testified that two messages were left on his voicemail. He testified that one message was left by the defendant’s boyfriend, in which the boyfriend stated that he had lived with the defendant for ten years. He then testified that the second message was left by the defendant, in which she recited her boyfriend’s phone number as her home number. In response to the plaintiffs testimony, the defendant testified that she always has lived alone and maintained her own residence. The court did not find the defendant’s testimony credible.

When the court is faced with conflicting evidence, “[i]t is well established that evaluating witness’ credibility is the exclusive function of the trier of fact. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) Eberhart v. Meadow Haven, Inc., 111 Conn. App. 636, 644, 960 A.2d 1083 (2008). Accordingly, in choosing to believe the plaintiffs testimony over that of the defendant, the court acted well within its province. We cannot reevaluate the conflicting testimony on whether the defendant cohabitated with another individual. See id.

The second requirement is that the plaintiff establish that the defendant’s financial needs have been altered as a result of the cohabitation. “We begin our analysis by noting that . . . the purpose of alimony [is] the obligation of support that spouses assume toward each other by virtue of the marriage. . . . This court has stated that [a]limony is always represented by money and is damages to compensate for loss of marital support and maintenance. ... In other words, alimony represents the court’s finding, measured in dollars, of the financial needs of the receiving spouse at the time of the dissolution.” (Citations omitted; internal quotation marks omitted.) Blum v. Blum, 109 Conn. App. 316, 323-24, 951 A.2d 587, cert. denied, 289 Conn. 929, 958 A.2d 157 (2008).

For purposes of § 46b-86 (b), the plaintiff must demonstrate that the defendant’s financial needs, as quantified by the court in setting the alimony award pursuant to General Statutes § 46b-82, have been altered by her living arrangements. See id., 324. “Although the alteration need not be substantial . . . the difference must be measurable in some way before the court can conclude whether a difference, in fact, exists. ... In other words, the court must have the ability to compare the [defendant’s] financial needs at different points in time in order to determine whether those needs either have increased or have decreased over time. Because the court, in setting the alimony award pursuant to § 46b-82, quantified the [defendant’s] financial needs in terms of dollar amounts at the time of dissolution, we conclude that the proper way for the court to determine whether the [defendant’s] financial needs have changed as a result of her cohabitation is to quantify her financial needs in terms of dollar amounts during the period of cohabitation.” (Citations omitted.) Id., 324-25.

During the hearing on the plaintiffs motions, the plaintiff, through solicitation of testimony from the defendant, presented to the court evidence of the defendant’s expenses prior to when she obtained employment with the government of the Virgin Islands at an annual salary of $29,000 in 2006. The testimony revolved around the defendant’s financial affidavit for 2002. The testimony provided that when the defendant was a hairdresser, with an annual salary of $11,000 to $11,900 and an annual alimony of approximately $36,000, she maintained, in excess of her expenses, approximately $500 per week. Nonetheless, “[t]he party moving for a change in the court’s alimony order . . . must adduce some evidence from which the court reasonably could infer the value of the cohabitant's contributions. The alternative improperly would require courts to speculate as to the values of various goods and resources.” (Emphasis added.) Id., 325; see also, Cushman v. Cushman, supra, 93 Conn. App. 199 (“it is the [moving party’s] burden to prove that the [nonmoving party’s] living arrangements caused a change of circumstances so as to alter the [nonmoving party’s] financial needs”). In this case, the plaintiff did not demonstrate that any change in the defendant’s financial needs occurred due to her cohabitant’s contributions or demands on her financial resources. Accordingly, the court improperly granted the motion for modification on the basis of cohabitation or upon her employment with the government of the Virgin Islands.

The judgment is reversed and the case is remanded with direction to deny the plaintiffs motion for contempt and for attorney’s fees and motion for modification of alimony.

In this opinion the other judges concurred.

       By its terms, the alimony award was “nonmodii'iable as to length except in the event of the death of either party, the remarriage of the defendant/ wife or cohabitation under the statute.”

       Although the defendant’s claims can be viewed as distinct and separate, our consideration of the first claim regarding the motion for contempt on the basis of the child support order necessarily implicates the second and third claim relating to the child support order, and, consequently, we will address the defendant’s first three claims together.

       Section 46b-86 (b) provides: “In an action for divorce, dissolution of marriage, legal separation or annulment brought by a husband or wife, in which a final judgment has been entered providing for the payment of periodic alimony by one party to the other, the Superior Court may, in its discretion and upon notice and hearing, modify such judgment and suspend, reduce or terminate the payment of periodic alimony upon a showing that the party receiving the periodic alimony is living with another person under circumstances which the court finds should result in the modification, suspension, reduction or termination of alimony because the living arrangements cause such a change of circumstances as to alter the financial needs of that party.”


author: DUPONT, J.

text:
    STATE OF CONNECTICUT v. NATHANIEL D. REEVES
    (AC 30301)
    Bishop, Lavine and Dupont, Js.

      Argued September 15, 2009
    officially released January 5, 2010

      Cameron R. Dorman, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert F. Mullins, Sr., deputy assistant state’s attorney, for the appellee (state).
   Opinion

DUPONT, J.

The defendant, Nathaniel D. Reeves, appeals from the judgment of conviction, rendered after a trial to the court, of unlawful restraint in the first degree in violation of General Statutes § SSa-95 and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). The defendant also was charged, in a part B information, with being a persistent offender of assault under General Statutes § 53a-40d. After the trial court’s finding of guilty, as to the substantive offenses, the defendant pleaded guilty to the charge of being a persistent offender. On appeal, the defendant claims that the court (1) improperly admitted impermissible hearsay statements in violation of § 8-2 of the Connecticut Code of Evidence and (2) violated his right to present a defense by precluding him from presenting testimony from his alibi witnesses at trial. We affirm the judgment of the trial court.

In its oral decision, the court cited the testimony of four witnesses for the state and one for the defendant. The court discussed its decision, concluding, after deliberation, that the elements of the offenses were proven beyond a reasonable doubt, noting especially that the testimony of the victim, Kimberly Gillette, was credible. Gillette testified that during an altercation with the defendant on February 25, 2007, he pushed her to the ground, got on top of her and used his hands to choke her. As a result of the defendant’s choking her, Gillette felt pain in her neck. She testified that she could not breathe, felt dizzy and was scared that she would die. Eventually, she managed to flee from the defendant and called the Hartford police department. The police directed Gillette to go to the Saint Francis Hospital and Medical Center emergency room, where she was seen by medical personnel. A staff nurse at the hospital, Harvey A. Ginsberg, testified that Gillette had scratches or some red marks on her neck. He also testified that Gillette’s injuries were consistent with her having been choked.

I

The defendant first claims that the court improperly allowed the state to introduce certain testimony in violation of § 8-2 of the Connecticut Code of Evidence. Specifically, the defendant claims that he was not allowed to object to improperly admitted hearsay statements, namely, the testimony of Gillette regarding statements that the defendant’s sister made to Gillette. We disagree.

The following additional facts are relevant to the defendant’s claims. Gillette testified that on the night of the assault, she had received a telephone call from the defendant asking her to pick him up at his sister’s home in New Britain. When she arrived there, at approximately 11 p.m., the defendant asked her to drive him to his brother’s home at 61 Evergreen Avenue in Hartford. She did not want to take him there but, rather, wanted him to come to her home in Massachusetts. The state then questioned Gillette about the defendant’s drug use, as follows:

“[The Prosecutor]: You were in a relationship with [the defendant] for two years?
“[The Witness]: Over two years.
“[The Prosecutor]: Over two years. And during that time did you know that he had a drug problem?
“[The Witness]: Yes, I did.
“[The Prosecutor]: And how did you become aware of that?
“[The Witness]: His sister told me. I’ve seen him use drugs. I’ve seen him go to the drug house to purchase drugs. I’ve picked him up from the drug house. I’ve never been inside, but I’ve been outside.
“[Defense Counsel]: Objection, Your Honor, hearsay. . . .
“The Court: Now, what is your objection? Is hearsay as to the last one?
“[Defense Counsel]: The witness is testifying as to what the sister said to her, Your Honor, an out-of-court statement.
“The Corut: Well, that was already asked and answered and we’re past that, so the question outstanding referred to an answer concerning the drug house.
“[Defense Counsel]: Yes, Your Honor, which information was, which the witness is testifying to, was told to her by the sister of the defendant.
“The Court: Yes, but you didn’t object to that.
“[Defense Counsel]: Thank you, Your Honor.
“The Court: Objection is overruled.
“[The Prosecutor]: Thank you, Your Honor.”

Gillette then testified, without objection, as to facts regarding the defendant’s drug use, stating that she personally had seen the defendant use crack cocaine and had previously taken him to 61 Evergreen Avenue where, he told her, he had bought and used drugs. She did not want to take him there because he would get high. She testified that “[t]hat’s the only thing he did there.” Gillette then testified that if the defendant went inside to get high, she would not take him to her home because when he got high, he was paranoid, delusional and scaiy. On cross-examination by defense counsel, Gillette testified that 61 Evergreen Avenue is a known drug house where the defendant resided off and on when using drugs. Gillette continued to see the defendant after February 25, 2007, the night on which the crimes occurred, “[t]o try and get him to come back and get clean from drugs.”

There was only one objection by the defendant concerning Gillette’s entire statement. The defendant claims that Gillette’s first statement, “his sister told me,” is inadmissible hearsay. The defendant also claims that Gillette’s subsequent statements regarding the “drug house” are potentially hearsay.

The defendant first claims that the court abused its discretion by allowing Gillette’s hearsay statement, “his sister told me,” into evidence because his objection was untimely. We disagree.

We first set forth our standard of review of the court’s denial of the defendant’s objection to inadmissible hearsay on the basis of an untimely objection. “We review the trial court’s decision to admit [or exclude] evidence, if premised on a correct view of the law . . . for an abuse of discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . The trial court has wide discretion to determine the relevancy [and admissibility] of evidence .... In order to establish reversible error on an evi-dentiary impropriety . . . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse. “ (Citations omitted; internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 818-19, 970 A.2d 710 (2009).

“The generally accepted rule as to when [an] objection to a question must be interposed has been stated to be: ‘For evidence contained in a specific question, the objection must ordinarily be made as soon as the question is stated, and before the answer is given; unless the inadmissibility was due, not to the subject of the question, but to some feature of the answer.’ 1 Wigmore, Evidence (2d Ed.) 175, § 18, a, (1). This rule, however, is to be reasonably applied. Thus in an opinion quoted by Wigmore in this connection, the court, in referring to a rule of court of similar import, said: ‘It must have a reasonable interpretation. The object is to prevent a party from knowingly withholding his objection, until he discovers the effect of the testimony, and then if it turns out to be unfavorable to interpose his objection.’ ” Hackenson v. Waterbury, 124 Conn. 679, 683, 2 A.2d 215 (1938); see also State v. McClelland, 113 Conn. App. 142, 156, 965 A.2d 586 (“[i]n general, objections to the answer to a question should be made before the next question”), cert. denied, 291 Conn. 912, 969 A.2d 176 (2009).

Therefore, to evaluate the defendant’s claim, we first need to assess whether the question asked of Gillette was one that would likely elicit an answer involving hearsay, and, if not, we need to assess the speed with which the objection should have been made if it became apparent that the answer contained hearsay.

On the basis of the prior testimony regarding the long-term relationship between Gillette and the defendant, the question as to how she became aware of the defendant’s drug problem likely would not involve statements of others but would involve her own knowledge. Thus, the question itself would not reasonably be expected to elicit an answer that would contain hearsay. The defendant, therefore, need not have objected as soon as the question was asked.

The defendant objected prior to the next question, but his objection was untimely because he waited until Gillette’s entire answer was forthcoming before objecting. A party may not wait to discover the effect of the answer and then object. Hackenson v. Waterbury, supra, 124 Conn. 683. We, therefore, find no abuse of discretion for the court not to strike the answer or to overrule the defendant’s objection. See State v. Gonzalez, 75 Conn. App. 364, 373-74, 815 A.2d 1261 (2003), rev’d on other grounds, 272 Conn. 515, 864 A.2d 847 (2005). Even if improperly left to stand, Gillette’s answer that the defendant’s sister told her about the defendant’s drug abuse was cumulative of other validly admitted testimony from Gillette. Consequently, any impropriety in the admission of the sister’s knowledge of the defendant’s drug use was harmless error and does not require reversal of the judgment of conviction. State v. Gonzalez, 272 Conn. 515, 528-29, 864 A.2d 847 (2005).

The defendant next claims that Gillette’s other statements in her answer to how she became aware of his drug problem that referred to the “drug house,” are potentially hearsay. Specifically, the defendant argues that “[w]ith regard to the defendant’s objection that the nature of the drug house was information obtained from the defendant’s sister, the trial court completely ignored his objection. As a result, the trial court improperly admitted the potential hearsay regarding the drug house.” We disagree.

“To the extent [that] a trial court’s admission of evidence is based on an interpretation of the Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. . . . We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Citations omitted.) State v. Saucier, 283 Conn. 207, 218, 926 A.2d 633 (2007). Accordingly, in the present case, our standard of review is plenary.

“Hearsay means a statement, other than one made by the declarant while testifying at the proceeding, offered in evidence to establish the truth of the matter asserted. Conn. Code Evid. § 8-1 (3). Hearsay is generally inadmissible unless an exception in the Code of Evidence, the General Statutes or the rules of practice applies. Conn. Code Evid. § 8-2.” (Internal quotation marks omitted.) State v. Foster, 293 Conn. 327, 334, 977 A.2d 199 (2009).

Nothing in Gillette’s statements indicates that her knowledge that 61 Evergreen Avenue was a known “drug house” was obtained from anyone else or that it was not made from her own observations. The prosecutor did not continue to question Gillette to determine whether her statements about the “drug house” were hearsay. Nor did defense counsel cross-examine Gillette as to whether she relied on statements of others for her testimony. Furthermore, Gillette’s statements, on their face, do not indicate that she relied on statements made by the defendant’s sister or others. We conclude that the court properly admitted Gillette’s statements regarding the “drug house.”

II

The defendant also claims that the court violated his right to present a defense by refusing to permit his alibi witnesses to testily. We disagree.

Because the defendant did not preserve his claim at trial, he requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. See Practice Book § 60-5. “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. King, 289 Conn. 496, 502-503, 958 A.2d 731 (2008). The first two prongs of Golding involve a determination of whether the claim is reviewable, and the second two involve a determination of whether the defendant may prevail. State v. Whitford, 260 Conn. 610, 621, 799 A.2d 1034 (2002).

In this case, there is an adequate record and a claim of constitutional magnitude alleging the violation of a fundamental right. “The defendant’s right to present his own witnesses to establish a defense ... is a fundamental element of due process of law. . . . This includes the right to present alibi witnesses. . . . The sixth amendment right to compulsory process includes the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies.” (Citation omitted; internal quotation marks omitted.) State v. Salters, 89 Conn. App. 221, 226, 872 A.2d 933, cert. denied, 274 Conn. 914, 879 A.2d 893 (2005).

However, “[a] court’s preclusion of alibi evidence as a sanction for failure to comply with the rules of discovery does not violate a defendant’s constitutional rights per se. If the court’s preclusion of alibi evidence reflects a sound exercise of discretion, the defendant cannot claim that a constitutional violation exists.” Id., 227; see also State v. McIntyre, 242 Conn. 318, 330-31, 669 A.2d 911 (1997); State v. Boucino, 199 Conn. 207, 213-14, 506 A.2d 125 (1986). Thus, although the first two Golding conditions are met, we must next consider whether a constitutional violation clearly exists and whether the defendant was clearly deprived of his right to a fair trial.

The defendant’s claim fails under the third Golding prong because a constitutional violation does not clearly exist, and the defendant was not clearly deprived of a fair trial. The record is completely devoid of any evidence that the court refused to permit the defendant’s alibi witnesses to testify. On April 10, 2008, the defendant indicated to the court that a witness would be available to testify that day. When the witness did not appear to testify, the court inquired how the defendant wanted to proceed, and the defendant responded by voluntarily resting his case. The defendant did not request a continuance to allow any alibi witnesses to testify. Thus, there is no evidence that the court precluded any alibi witnesses of the defendant from testifying. Accordingly, the defendant has not shown that a constitutional right clearly exists and was clearly violated, and his claim therefore fails under the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-95 (a) provides: “A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.”

       General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person . . . .”

       Interspersed in the defendant’s appellate brief, discussing the first issue, are claims of judicial bias. The claims are inadequately briefed, and we decline to address them. “We are not obligated to consider issues that are not adequately briefed. . . . Whejn] an issue is merely mentioned, but not briefed beyond a bare assertion of the claim, it is deemed to have been waived. ” (Internal quotation marks omitted.) 418 Meadow Street Associates, LLC v. One Solution Services, LLC, 117 Conn. App. 651, 655, 980 A.2d 345 (2009).
      We also note that the claim of bias is patently unfounded. The defendant makes the blanket assertions that bias was shown because evidentiary rulings against him were based on a standard different from similar eviden-tiary rulings in favor of the state and that defense counsel was admonished with respect to minor procedural matters, such as the need to stand when making an objection. An adverse ruling by a court does not automatically imply bias or prejudice. If bias were to be implied because of an adverse ruling or because of the insistence of a court that formalities be observed in a courtroom, the conclusion that bias was shown would be inevitable.
      A court’s ruling adverse to a party may occur because it was the correct ruling as a matter of law or because of the ineptitude of the party claiming bias. The defendant did not file a motion for recusal, disqualification or mistrial. The unpreserved claims of judicial bias do not qualify as plain error, and the conduct questioned does not reasonably give an appearance of impropriety. The claims are nothing more than an assertion that adverse rulings constitute evidence of bias. Such a claim does not demonstrate bias. See Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 26, 961 A.2d 1016 (2009).

       Section 8-2 of the Connecticut Code of Evidence provides: “Hearsay is inadmissible, except as provided in the Code, the General Statutes or the Practice Book.”

       It is clear from the record that the court believed that the defendant’s objection was untimely because it was under the impression that another question had been asked of Gillette after her statement, “his sister told me.” If defense counsel knew that only one question had been asked of Gillette at the time of his objection, he should have clarified this fact to the court. See State v. Thornton, 112 Conn. App. 694, 710, 963 A.2d 1099 (if defense counsel believed court’s ruling was unclear, it was defense counsel’s obligation to seek further clarification), cert. denied, 291 Conn. 914, 969 A.2d 175 (2009).

       To the contrary, the record discloses that the court was willing to allow the defendant’s alibi witnesses to testify. Specifically the court stated:
      “The Court: Okay. Now [defense counsel], what is your situation concerning your witnesses?
      “[Defense Counsel]: I do have one witness here today, Your Honor, and I have two witnesses who are not here today and are absolutely to be here Monday and maybe tomorrow. I’m trying to get them in here—
      “The Court: Well, I should inform you that I’m not going to be here Monday.
      “[Defense Counsel]: I understand.
      “The Court: And I’ll be gone Friday through the following week.
      “[Defense Counsel]: I see.
      “The Court: So, this would have — if you’re unable to get your witness for tomorrow, it has got to be rescheduled to a date in the future.
      “[Defense Counsel]: Yes, Your Honor.
      “The Court: All right. Now, is there any objection to taking the defense witness that [defense counsel] is going to have out of order?
      “[The Prosecutor]: No, Your Honor. However, [defense counsel] just advised me today about a witness that is going to testify as to alibi defense 1hat was not previously disclosed as an alibi witness, Your Honor, to the state. The state has complied with discovery, as far as the witnesses that the state is going to call, and the state believes that, at this point, to call an alibi witness at this date and time as the trial is starting is prejudicial to the state.
      “The Court: [Defense counsel].
      “[Defense Counsel]: Your Honor, the defense was only notified before trial on April 2; it is now April 9. We do have three witnesses as to an alibi defense and as this — right, there are three. And at the earliest opportunity that I could notify the state about this, I did, Your Honor, and unfortunately, it was this morning. And again, those are the witnesses which are scheduled for tomorrow or Monday at the latest.
      “I’m sorry, and [Cynthia] Rankins, it was on the list for the defense with her date of birth. She was noted as an alibi defense witness, but she was on the list. So, that just leaves two witnesses, which also, are to testily as to alibi defense.
      “The Court: All right. [Prosecutor], did you make a written demand for an alibi defense?
      “[The Prosecutor]: I did not, Your Honor. . . .
      “The Court: Okay. Well, this certainly is late in the game to be bringing an alibi witness. However, Practice Book § 40-21 does say upon written demand filed by the prosecutor concerning alibi defense. In order to get the time period set forth the prosecutor has to file a written notice — a written demand of alibi defense, and if that wasn’t filed, I think that sort of makes it difficult for you, [the prosecutor], because the Practice Book clearly says upon written demand.
      “All right. However, what I will do is, if this alibi defense is going to require investigation, you may ask for a continuance to perform investigation. I’ll also order that the defense immediately disclose the names and addresses of the witnesses that he intends to use to establish an alibi.”

       The following colloquy occurred:
      “[Defense Counsel]: I indicated yesterday, Your Honor, I have two or three witnesses that can come in on Monday at the earliest, and I don’t have any witnesses for today, Your Honor.
      “The Court: I thought they were coming today. . . .
      “[Defense Counsel]: And I was intending to have one witness today, and then I would need a continuance for the other two witnesses actually.
      “The Court: Where’s the one witness. Well, then you can proceed with the one witness.
      “[Defense Counsel]: [T]he witness is not here ....
      “[The Prosecutor]: Your Honor, the state was under the impression as well that there was, at least, to be one witness today. I think, in light of the fact that the defendant has failed to appear here after having been called by defense counsel, it would appear as though he has no intention of returning to court and has failed to cooperate in his defense, Your Honor. So, the state will leave the matter to the court’s discretion.
      “The Court: All right. What I’m going to do is, I’m going to recess until two o’clock. I expect you to have at least one witness here at two o’clock. Because it was my recollection that you were going to have at least one witness.
      “[Defense Counsel]: Yes, Your Honor.”

       The following colloquy occurred:
      “[Defense Counsel]: Your Honor, my witness this afternoon has notified me that she doesn’t intend to move forward with her testimony and has made herself unavailable in this trial.
      “The Court: All right. What is your intention, counselor?
      “[Defense Counsel]: Well, I’m inclined to rest my case at this point, Your Honor.
      “The Court: All right. All right, then, I’ll note that the defense has rested. [Prosecutor], do you have any rebuttal?
      “[The Prosecutor]: At this time, no, Your Honor.
      “The Court: All right. All right, then, we have completed the evidentiary portion of this matter. Are we prepared to move on to the final arguments?
      “The Prosecutor: Yes, Your Honor.
      “The Court: All right.
      “[Defense Counsel]: Yes, Your Honor.”

       The defendant also requests review of this claim under the plain error doctrine. Practice Book § 60-5 provides in relevant part: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      . . . The court may in the interests of justice notice plain error not brought to the attention of the trial court.” “The plain error doctrine is not ... a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that tliis court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.
      . . . Plain error is a doctrine that should be invoked sparingly. . . . [I]nvo-cation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review.” (Internal quotation marks omitted.) State v. Cutler, 293 Conn. 303, 326, 977 A.2d 209 (2009). Nothing in the record of this case leads us to conclude that plain error exists.


author: BEACH, J.

text:
    STATE OF CONNECTICUT v. MICHAEL KOWALYSHYN
    (AC 29336)
    Lavine, Beach and Hennessy, Js.

      Argued October 19, 2009
    officially released January 5, 2010

      Glenn W. Falk, special public defender, with whom, on the brief, was Emilia, W. Vandenbroek, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, were Patricia M. Froehlich, state’s attorney, and Mark A. Stabile, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Michael Kowalyshyn, appeals from the judgment of conviction, following a jury trial, of attempt to commit assault in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-60, threatening in the second degree in violation of General Statutes § 53a-62, reckless endangerment in the second degree in violation of General Statutes § 53a-64, intimidation based on bigotry or bias in the second degree in violation of General Statutes § 53a-181k and disorderly conduct in violation of General Statutes § 53a-182. The defendant claims that (1) the court improperly denied his motion to suppress certain statements he made following his arrest and (2) there was insufficient evidence to support his conviction of intimidation based on bigotry or bias in the second degree. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant. In September, 2005, Scott Beattie was living in Willimantic in a tent in a wooded area behind a museum. The defendant, with whom Beattie was acquainted, set up his tent in the same area. Beattie moved his tent to different spots in the wooded area numerous times, and the defendant persisted in moving his tent next to Beattie’s tent.

On September 12, 2005, the defendant, Beattie and an unidentified man, who had indicated that he was homosexual, consumed alcohol together in a park for approximately one hour beginning at noon. The unidentified man indicated that he wanted to go to the campsite as well but did not go. While back at the campsite, the defendant informed Beattie that he did not want “ ‘fags’ ” around the campsite.

That evening, Beattie drank vodka and soda, along with beer, in his tent but was not drunk. Later in the evening, the defendant sat outside Beattie’s tent, and they drank together. Between approximately 10:15 and 10:20 p.m., Beattie and the defendant began arguing. At some point, Beattie removed some or all of his clothes. The defendant began yelling at Beattie that “he must be a fag” because “[o]nly a fag would take his clothes off in front of another man” and because he had been “hanging around” with the unidentified man who had stated he was homosexual. Beattie yelled back at the defendant that he was not a “fag.” The two men wrestled or fought for approximately fifteen to twenty minutes. Sometime during the argument, while Beattie was on his hands and knees with his back turned, the defendant poured vodka on Beattie. The defendant attempted to ignite a handheld lighter but was unable to do so. At that point, Beattie grabbed the defendant by the throat, and the defendant put Beattie in a headlock. Before leaving, the defendant told Beattie that he would be back to “bum you with gasoline; I’ll do it right this time.” Beattie was afraid that the defendant would return and, as a result, stayed awake during the night. Beattie did not try to leave the wooded area because he had night blindness, and the only exit was through a path that crossed in front of the defendant’s tent.

The following morning, Beattie walked into town and told the director of a local soup kitchen about the incident, and subsequently Beattie telephoned the police. Beattie then went to the Willimantic police department, was interviewed and gave a statement. After an officer investigated the campsite, the police arrested the defendant.

After reviewing and executing a waiver of rights, the defendant made oral and written statements to the police. The defendant used the derogatory term “fag” numerous times in his statement and indicated that when Beattie removed his clothes, he yelled at Beattie that “he must be a fag” because “[o]nly a fag would take his clothes off in front of another man” and because he had been “hanging around” with the unidentified man who had stated he was homosexual. Following a jury trial, the defendant was convicted of attempt to commit assault in the second degree, threatening in the second degree, reckless endangerment in the second degree, intimidation based on bigotry or bias in the second degree and disorderly conduct. The defendant was sentenced to eight years imprisonment followed by two years of special parole. This appeal followed.

I

The defendant first claims that that the court improperly denied his motion to suppress certain statements he made following his arrest. The defendant challenges the court’s conclusion that probable cause existed to justify a warrantless arrest. He argues that probable cause did not exist because, in making the arrest, the police relied on Beattie’s statement and Beattie was not reliable. The defendant argues that because the police lacked probable cause to arrest him, the statements he made following his arrest were fruit of the poisonous tree which should have been suppressed. We disagree.

Prior to trial, the defendant filed a motion to suppress his postarrest written and oral statements as “fruits of an unlawful arrest. ” After holding a hearing, the court, in its memorandum of decision on the motion to suppress, found the following facts. “[0]n September 13, 2005 . . . Beattie came to the Willimantic police headquarters to complain that he had been assaulted by the defendant. In a written, notarized statement, Beattie claimed that the night before he and [the defendant], both homeless and drunk, argued and then engaged in physical fighting which, he said, [the defendant] initiated by dumping vodka on him and threatening to set him afire. After the investigating officer obtained Beat-tie’s statement, he went to the scene of the crime. He observed the campsite area and an empty vodka bottle consistent with . . . Beattie’s sworn statement. . . . The arresting officer found [the defendant] in a soup kitchen and placed him under arrest. Following his arrest, [the defendant] was brought to the Willimantic police department. After reviewing and executing a waiver of rights, [the defendant] made the oral and written statements which he [sought later] to suppress.”

After setting forth the applicable law, the court, citing State v. Bolanos, 58 Conn. App. 365, 369, 753 A.2d 943 (2000), noted that citizen informers are presumptively reliable if they are identifiable. The court concluded that the officers had probable cause to arrest the defendant and, accordingly, denied his motion to suppress.

We first set forth our standard of review. “Our standard of review of atrial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843, 955 A.2d 43 (2008).

Under the exclusionary rule, evidence must be suppressed if it is found to be the “ ‘fruit’ ” of prior police illegality. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). “[T]he [exclusionary] rule does not distinguish between physical and verbal evidence . . . [it] extends to evidence that is merely derivative of the unlawful conduct, or what is known as the fruit of the poisonous tree.” (Citations omitted; internal quotation marks omitted.) State v. Brunetti, 279 Conn. 39, 72, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S. Ct. 1328, 167 L. Ed. 2d 85 (2007). “It is well established that statements obtained through custodial interrogation following the seizure of a person without probable cause, in violation of the fourth amendment, should be excluded unless intervening events break the causal connection between the arrest and the confession.” State v. Northrop, 213 Conn. 405, 413, 568 A.2d 439 (1990).

“In order for a warrantless felony arrest to be valid, it must be supported by probable cause. . . . The determination of whether probable cause exists under the fourth amendment to the federal constitution . . . is made pursuant to a totality of circumstances test. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test then is an objective one.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 286 Conn. 427, 435-36, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S. Ct. 236, 172 L. Ed. 2d 144 (2008).

The defendant argues that certain factors undermine Beattie’s reliability, such as the fact that he was trespassing by living in a tent on property owned by a power company and that he admitted drinking on the night in question. Trespassing, even if true, does not necessarily affect credibility. Consumption of alcohol, though relevant, does not necessarily destroy credibility. The investigating officer, John Reed, met with Beattie in person, took his statement and was able to observe his demeanor and to consider his credibility. Reed also investigated the campsite where he found corroborating evidence. He apparently deemed Beattie to have been credible.

Some factors support Beattie’s reliability. A factor supporting an inference of Beattie’s reliability or veracity is the fact that he was not anonymous. See id., 438. The fact that his identity was known to police is significant because he could expect adverse consequences if the information that he provided was erroneous. See id. Additionally, the fact that Beattie was an individual with whom police had met face-to-face renders him “more reliable because the police can observe the informant’s demeanor to determine his . . . credibility . . . .” (Internal quotation marks omitted.) Id. In addition, Beattie was not an anonymous or “underworld” informer. “Although anyone who gives information to the police in confidence might be called a ‘confidential informant,’ the term is usually employed in a more restricted sense to describe a person who is himself in the underworld, so that he is particularly well placed to know its secrets. Courts have properly distinguished between such ‘confidential informants’ and the average citizen who, as a victim or a witness, happens to have information useful to the police. Such ‘citizen informers’ are considered more deserving of credibility than are underworld informers, and courts have accordingly tended to examine the basis and sufficiency of a citizen informer’s information more closely than his credibility.” State v. Barton, 219 Conn. 529, 542 n.10, 594 A.2d 917 (1991). “[A] citizen-informer . . . is more deserving of belief than the typical informant from a criminal mileu. ... It is generally agreed . . . that a comparable showing is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or a witness.” (Citations omitted; internal quotation marks omitted.) State v. Daley, 189 Conn. 717, 723-24, 458 A.2d 1147 (1983).

Additionally, a police officer went to the scene and observed facts that were not inconsistent with Beattie’s statement, such as the campsite area and an empty bottle of vodka. The defendant argues that this partial corroboration was not enough and that “[g]iven the frequent drinking that occurred at the campsite, an empty vodka bottle is scarce evidence of a felony assault.” He also argues that the investigating officer testified that he did not observe any bruises on Beattie consistent with the violent fight he had described. Partial corroboration, however, is a way to establish reliability. State v. Johnson, supra, 286 Conn. 439-40. “[C]orroboration of apparently innocent activity can establish the reliability of the informant because the activity might come to appear suspicious in light of the initial tip.” Id., citing United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005).

The court properly concluded that probable cause existed to arrest the defendant. As a result, the defendant’s claim that his statements should have been suppressed as fruit of the poisonous tree fails. The court properly denied the defendant’s motion to suppress.

II

The defendant next claims that there was insufficient evidence to support his conviction of intimidation based on bigotry or bias in the second degree because the state failed to prove beyond a reasonable doubt that the defendant had the requisite specific intent to intimidate or to harass Beattie because of Beattie’s actual or perceived sexual orientation. We disagree.

Section 53a-181k (a) provides: “A person is guilty of intimidation based on bigotiy or bias in the second degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following: (1) Causes physical contact with such other person, (2) damages, destroys or defaces any real or personal property of such other person, or (3) threatens, by word or act, to do an act described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.” Specific intent involves a “conscious objective ... to cause [a] result . . . .” (Internal quotation marks omitted.) State v. Holmes, 75 Conn. App. 721, 737, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jason B., 111 Conn. App. 359, 363, 958 A.2d 1266 (2008), cert. denied, 290 Conn. 904, 962 A.2d 794 (2009).

“It is well established that the question of intent is purely a question of fact. . . . Intent may be, and usually is, inferred from the defendant’s verbal or physical conduct. . . . Intent may also be inferred from the surrounding circumstances. . . . The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. . . . Intent may be gleaned from circumstantial evidence such as . . . the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Saez, 115 Conn. App. 295, 302-303, 972 A.2d 277, cert. denied, 293 Conn. 909, 978 A.2d 1113 (2009).

The defendant takes issue only with the element of intent. He argues that the only evidence relating to sexual orientation was the defendant’s September 13, 2005 statement to the police in which he frequently used the derogatory term “fag.” His use of that term, he argues, is not sufficiently linked to any act that would violate the statute, namely, any physical contact with Beattie, damage done to Beattie’s real or personal property or threat to violate the statute.

We begin our analysis by noting that the court instructed the jury on the issue of intent, and the defendant does not claim instructional error. The court first explained the conduct that could constitute a violation of § 53a-181k and instructed the jury that the state also must prove beyond a reasonable doubt that “the defendant had an improper motive for his actions, that being the sexual orientation of the other person. With respect to intent, again, intent relates to the condition of mind of the person who commits the act, that is, their purpose in doing it. A person acts intentionally, with respect to a result or conduct, when their conscious objective is to cause that result or to engage in that conduct.” The jury was instructed that it was required to find that the defendant acted with specific intent to harass or to intimidate Beattie in order to find the defendant guilty of that offense.

Under the facts of this case, there is sufficient evidence from which the jury reasonably could have determined that the defendant had the requisite specific intent to intimidate or to harass Beattie on the basis of Beattie’s actual or perceived sexual orientation. First, from the defendant’s statement, which is replete with disparaging remarks against homosexuals, including his statement that he did not want “fags” at the campsite, the jury was free to infer that the defendant was biased toward homosexuals. Second, the jury also was free to believe, on the basis of the defendant’s statement, that he believed that there was some question as to whether Beattie was homosexual. In his statement, the defendant said that because Beattie had removed his clothes in front of him and had hung around with the unidentified homosexual man, Beattie “must be a fag” and that he told Beattie so. Third, the jury reasonably could have found from the defendant’s statement that shortly before the fracas, the defendant stated that he did not want the unidentified man at the campsite because he was homosexual. Just prior to the incident, the defendant announced that Beattie was homosexual, a characterization Beattie denied. The two men fought. The jury reasonably could have found that sometime during the fight, the defendant attempted to set Beattie on fire and warned Beattie that he would bum his tent if he did not move the tent by the following day. On the basis of this cumulative evidence, the jury could have inferred that the defendant acted with intent to harass or to intimidate Beattie because of his actual or perceived sexual orientation. “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Salmon, 66 Conn. App. 131, 143, 783 A.2d 1193 (2001), cert. denied, 259 Conn. 908, 789 A.2d 997 (2002). “It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . [W]e do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record.” (Citations omitted; internal quotation marks omitted.) State v. Winter, 117 Conn. App. 493, 507, 979 A.2d 608 (2009).

It is indeed true that “hate crimes,” such as the one at hand, typically implicate first amendment issues. With some rare exceptions, the use of offensive language in itself is, as a rule, protected speech. We must be careful to ensure that our courts do not apply the law in such a way as to chill protected speech. See, e.g., State v. DeLoreto, 265 Conn. 145, 155-56, 827 A.2d 671 (2003). Each case must be carefully evaluated on its facts. On the other hand, we are obligated to recognize and to effectuate legislative intent so far as such action is constitutionally permitted. Where values are potentially in conflict, courts have in analogous situations required careful jury instructions. We affirm the judgment today because the instructions are not at issue in this case and because there were sufficient facts before the jury to sustain the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was also charged with and found not guilty of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59.

       The defendant did not testify at trial. His statement was read into evidence by a police officer who was present when the defendant made the statement. It also was admitted as an exhibit. In his statement, the defendant gave the following version of events: “On September 12, 2005 around noon I was sitting with Scott Beattie and some black guy who said he was a homosexual, next to the [Jillson Square movie theaters]. We drank for about an hour or so. All three of us then went to the benches in front of the park. The black guy was arguing with Scott about some checks. We drank a pint of vodka and a [six] pack of beer. Scott took off to the campsite we live at. The black guy stayed. I went to work on Carey Street for about one half hour. I bought a quart of vodka at the Elm’s Package [Store]. I went back to the park benches. The black guy was lying on the bench passed out. The black guy wanted to go to the campsite. He wanted Scott to come get him and bring him back to the campsite. I only stayed a few minutes before I left to go to the campsite.
      “At the campsite I told Scott I didn’t want the fucking fags around our campsite. We went back to the park bench and found out that the police had arrested the black fag for public intoxication. I then went to [Harry’s] house on Spring Street to get some batteries. I went back to the campsite around 4:00 p.m. Scott was at the campsite. Scott went to the soup kitchen and brought back some food around 5:00 p.m. We started to hook up our battery powered television. We started listening to the radio. We had a quart, of vodka, a pint of vodka and [five] beers. Around 10:30 p.m. we started arguing. At one point Scott took all his clothes off and [laid down] in his

        tent. I was sitting in the doorway. I started yelling at him that he must be a fag. Only a fag would take his clothes off in front of another man. I also said that he must be a fag, because he was hanging around with that black fag. I had told him earlier that I didn’t want him to bring that black fag to the campsite.
      “Scott started bugging out. He was yelling that he wasn’t [a] fag. He grabbed me by the throat. I pulled his hand from my throat and pinned his arms down until he calmed. I had to hold him down for about five minutes. I took my quart bottle back to my campsite. I sat up and drank for a while before going to sleep. When I woke up Scott was already gone.
      “While we were drinking last night, arguing and fighting I had dumped some of my vodka on his tent floor. I told him to get his tent out of my campsite area. I did yell that if he didn’t move his tent tomorrow that I would bum his tent.
      “This morning I went to the soup kitchen. Scott was there. He was talking shit to everybody about me. He started up with me. He said he was going to the police that I attacked him. He said that I assaulted him. I said that I just held him down. He said that I didn’t kick his ass, because I couldn’t kick his ass. Crawford, an Access Agency Counselor, heard what was said.”

       Beattie did not testify as to any bigotry or bias. The jury, however, was free to infer such bigotry and bias from the defendant’s statement to the police.