text:
    NANCY P. TYLER v. RICHARD J. SHENKMAN-TYLER
    (AC 30812)
    Harper, Alvord and Mihalakos, Js.
    Argued April 24
    officially released July 7, 2009

      William F. Gallagher, with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).

      Norman A. Pattis, with whom, on the brief, was Nancy P. Tyler, pro se, for the appellee (plaintiff).
   Opinion

ALVORD, J.

This appeal arises from the judgment of the trial court dissolving the parties’ marriage. The defendant, Richard J. Shenkman-Tyler, claims that the court improperly denied his motions to continue the dissolution trial until after the disposition of a pending criminal case charging him with intentionally setting fire to property owned by the plaintiff, Nancy P. Tyler. He argues that the court’s denials deprived him of the opportunity to present a defense in the dissolution action, thereby depriving him of his constitutional due process rights, because he invoked his fifth amendment privilege against self-incrimination. We disagree and affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. The parties were married on September 13, 1993, in Cheshire. The plaintiffs daughter and son from a previous marriage were adopted by the defendant in 1998. During the marriage, the parties purchased a summer cottage in Niantic. Most of the deposit funds came from the plaintiffs bank account, and she held title to the property solely in her name. The defendant owned a house in South Windsor, where he had resided prior to the marriage, and the family resided in South Windsor and used the Niantic property as a vacation home.

The parties’ relationship deteriorated, and the plaintiff and the children left the marital home in South Windsor on January 23, 2006. In April, 2006, the parties attempted to reconcile, but the plaintiff decided shortly thereafter that she wanted to pursue the separation. On July 19, 2006, the plaintiff filed her complaint to dissolve the marriage. At that time, she also filed a restraining order to remove the defendant from the Niantic property, which was granted by the court. The ensuing litigation was protracted and contentious.

On January 9, 2007, the court, Solomon, J., entered orders pursuant to an agreement between the parties that allowed the defendant access to and use of the Niantic property the weekend of March 2, 2007. On the morning of Monday, March 5,2007, the East Lyme police and fire departments were called to the property due to a structural fire. The defendant and his two dogs were rescued from the roof of the first floor porch. The house and its contents were totally destroyed. On May 10, 2007, after an investigation, the defendant was arrested and charged with arson in the first degree and reckless endangerment in the first degree.

On July 5, 2007, the defendant filed a motion to continue the dissolution trial that had been scheduled for July 19, 2007, until after the disposition of his criminal case. The plaintiff filed an objection to that motion, and the court held a hearing on July 11, 2007. At the conclusion of the parties’ arguments, the court, Solomon, J., granted only a three month continuance “to allow [the defendant] and his defense team, both in the domestic matter and in the criminal matter, to develop a strategy on how they want to deal with the [fifth amendment] privilege issue.” The trial date was rescheduled to November 7, 2007. On September 21, 2007, the defendant filed another motion to continue the dissolution trial until the resolution of the pending criminal action, claiming that the continuance was necessary to protect his federal and state constitutional privileges against self-incrimination or his federal and state constitutional rights to due process. The court, Simon, J., denied the motion on September 27, 2007.

A trial was held on March 18, 19, 20 and 24, 2008. The plaintiff, along with several witnesses, testified on her behalf, and she submitted numerous exhibits. The defendant elected to exercise his fifth amendment privilege against self-incrimination and did not testify at the trial. No witnesses testified on his behalf, and he submitted one exhibit. He did, however, cross-examine the plaintiffs witnesses. The court issued its memorandum of decision on July 2, 2008, in which it dissolved the parties’ marriage and entered orders dividing the marital assets. This appeal followed.

The issue raised in the defendant’s appeal is whether the defendant, who invoked his fifth amendment privilege against self-incrimination and declined to testify at his dissolution trial, was denied his constitutional due process rights by the court’s denials of his motions to continue the civil proceeding until after the completion of the criminal proceeding. The defendant argues that those rulings prevented him from presenting a defense at the dissolution trial and that his property rights were taken away without the opportunity for him to be heard at a meaningful time and in a meaningful manner.

Ordinarily, a reviewing court analyzes a denial of a motion for a continuance in terms of whether the trial court abused its discretion. If, however, the refusal to grant a continuance interferes with a specific constitutional right, the analysis will involve whether there has been a denial of due process. In re Shaquanna M., 61 Conn. App. 592, 601-602, 767 A.2d 155 (2001). The constitutional right alleged to have been violated must be shown, not merely alleged. Id., 603. “A denial of constitutional due process, when shown by the particular facts, does not involve discretion because due process is an absolute right guaranteed by the constitution and allows the court no choice. . . . [W]hen an act is shown by reliable facts to affect a specific constitutional right . . . the analysis should turn on whether a due process violation exists rather than whether there has been an abuse of discretion.” (Internal quotation marks omitted.) Id., 604.

In the present case, there is no question that the defendant had the right to assert his fundamental constitutional right against self-incrimination. See Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 146-47, 470 A.2d 246 (1984); Almedina v. Commissioner of Correction, 109 Conn. App. 1, 6, 950 A.2d 553, cert. denied, 289 Conn. 925, 958 A.2d 150 (2008). The fifth amendment privilege against self-incrimination not only protects an individual from being called involuntarily as a witness against himself in a criminal proceeding, but also affords him the right to refuse to answer questions in a civil proceeding where the answers might incriminate him in a future criminal proceeding. See Olin Corp. v. Castells, 180 Conn. 49, 53, 428 A.2d 319 (1980). Here, the defendant exercised his privilege and was not compelled to testify. His fifth amendment privilege is intact and has not been waived in connection with his future criminal proceeding.

With respect to the constitutional right not to be deprived of property without due process of law, the defendant fails to recognize that it was his decision not to testify at his dissolution trial. The court did not compel him to exercise his fifth amendment privilege, and the court did not compel him to forgo presenting a defense. Although he may have been faced with difficult choices under those circumstances, he was not deprived of a constitutional right. That conclusion is supported by this court’s recent decision in State v. Easton, 111 Conn. App. 538,959 A.2d 1085, cert. denied, 290 Conn. 916, 965 A.2d 555 (2009).

In Easton, the defendant argued that his constitutional right to due process was violated when he was forced to make an election between his sixth amendment right to present a defense in his violation of probation hearing and his fifth amendment right to refrain from compulsory self-incrimination in his other pending criminal matters. We concluded that he had not been deprived of his due process rights. “So long as the defendant is neither forced to exercise nor prevented from exercising his right to testify, the right to present a defense is not burdened by the strategic choice or resulting adverse consequences.” Id., 541. Under such circumstances, the fact that a defendant has to make a difficult choice between two constitutional rights does not deprive him of due process. Id., 543. “Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” (Internal quotation marks omitted.) State v. Ayuso, 105 Conn. App. 305, 310 n.2, 937 A.2d 1211, cert. denied, 286 Conn. 911, 944 A.2d 983 (2008).

We note that the defendant has cited no case or authority that recognizes an absolute constitutional right to a continuance under either amendment when a party has made the decision to remain silent in a civil proceeding to preserve his right against self-incrimination in a collateral criminal proceeding. In fact, case law is to the contrary. “[T]he Constitution . . . does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings.” (Internal quotation marks omitted.) Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986), quoting Securities & Exchange Commissions. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C. Cir.), cert. denied, 449 U.S. 993, 101 S. Ct. 529, 66 L. Ed. 2d 289 (1980); see Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976).

Having concluded that the court’s denial of the defendant’s motions to continue indefinitely the dissolution trial did not deprive him of a specific constitutional right, we now review the court’s denials using the abuse of discretion standard. See Bove v. Bove, 93 Conn. App. 76, 87, 888 A.2d 123, cert. denied, 277 Conn. 919, 895 A.2d 788 (2006); In re Shaquanna M., supra, 61 Conn. App. 601-602. The issue is whether the court so abused its discretion in refusing to grant the motions for continuance that it deprived the defendant of due process. “The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. . . . There axe no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in each case, particularly in the reasons presented to the trial judge at the time the request is denied.” (Internal quotation marks omitted.) Watrous v. Watrous, 108 Conn. App. 813, 827, 949 A.2d 557 (2008).

Although no appellate decisions of this state have addressed the factors to be considered in determining whether to grant a continuance in a civil proceeding when a collateral criminal proceeding is pending, we have examined federal case law, Superior Court decisions and cases from other jurisdictions that we have found to be instructive. In all of these cases, the courts held that when there are parallel civil and criminal proceedings, the courts have discretion to stay discovery in a civil proceeding or to stay the action in its entirety if required by the interests of justice. See Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir.), cert. denied, 516 U.S. 827, 116 S. Ct. 94, 133 L. Ed. 2d 49 (1995); Kashi v. Gratsos, supra, 790 F.2d 1057; Bridgeport Harbour Place I, LLC v. Ganim, 269 F. Sup. 2d 6, 8 (D. Conn. 2002); Trustees of the Plumbers & Pipefitters National Pension Fund v. Transworld Mechanical, Inc., 886 F. Sup. 1134,1138 (S.D.N.Y. 1995); Wilcox v. Webster Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV-07-5010093-S (January 11, 2008) (44 Conn. L. Rptr. 786); Doe v. Lenarz, Superior Court, judicial district of Hartford, Docket No. CV-05-4012970-S (July 5, 2006) (41 Conn. L. Rptr. 586); State v. Tomasso, 49 Conn. Sup. 327, 334-35, 878 A.2d 413 (2004); Farricielli v. Dept. of Environmental Protection, Superior Court, judicial district of Hartford at New Britain, Docket No. CV-96-5386369 (January 8, 1997); People in the Interest of D.A.J., 757 N.W.2d 70, 71-72 (S.D. 2008). The propriety of a stay is determined on a case-by-case analysis.

The factors that have been weighed by the various courts in making such a determination are basically the same. The parties in this case referred the trial court to Bridgeport Harbour Place I, LLC, for guidance, both in their briefs and at the July 11, 2007 hearing on the motion for a continuance. “In determining whether to impose a stay . . . the court must balance the interests of the litigants, nonparties, the public and the court itself. . . . The factors a court should consider include: [1] the interests of the plaintiff in an expeditious resolution and the prejudice to the plaintiff in not proceeding; [2] the interests of and burdens on the defendants; [3] the convenience to the court in the management of its docket and in the efficient use of judicial resources; [4] the interests of other persons not parties to the civil litigation; and [5] the interests of the public in the pending civil and criminal actions.” (Citation omitted.) Bridgeport Harbour Place I, LLC v. Ganim, supra, 269 F. Sup. 2d 8.

In the present case, the court set forth the factors it considered when it issued its ruling granting “a one time continuance” for three months for the defendant to develop a strategy to accommodate his interests in the civil and criminal proceedings. It first noted that it had read the memoranda of law submitted by the parties and had reviewed the cited case law in reaching its determination. It then listed the considerations it had taken into account, which included the age of the case, the belief that matrimonial cases generally should be resolved within one year because of the harm caused to the litigants and children if left to linger, the fact that the delay sought was unknown due to the nature of criminal proceedings, the defendant’s “great hostility” and “total lack of cooperation with [the] court,” the court’s perception that the defendant “has no interest in moving the case along,” the difficulty the two children were having in “watching their parents’ lives fall apart” and the fact that the arson charge was but one issue in a nonjury dissolution proceeding.

Although Bridgeport Harbour Place I, LLC, is not binding authority, the stated factors in that case can be helpful to a court in deciding whether to stay a civil proceeding pending the outcome of a related criminal proceeding. We conclude that in this case, the court considered appropriate factors in balancing the interests of the parties, the court and those affected by the litigation in reaching the conclusions that it did, which were amply supported by the record. At the time the court denied the defendant’s motion to have the matter continued until the outcome of the criminal proceeding, the dissolution proceeding had been pending for almost one year, and no date had been set for the criminal trial. The record gives no indication as to how quickly the criminal trial might have taken place thereafter and, in fact, the criminal proceeding is still pending. Under the circumstances of this case, the court properly could have concluded that it would be unreasonable to postpone a dissolution trial for such an excessive period of time. Accordingly, we cannot conclude that the court abused its discretion in denying the indefinite continuances as requested by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       The daughter was twenty-two years old and the son was eighteen years old at the time of the judgment of dissolution.

       In his appellate brief, the defendant states that on appeal, he is challenging the orders denying his motions to continue the dissolution trial indefinitely and the judgment that was rendered on July 2, 2008. The court’s ruling on the first motion is contained in the transcript of the hearing held July 11, 2007, and the court sets forth the reasons for its decision. The court’s ruling on the second motion filed September 21,2007, consists of the notation “denied,” the handwritten date of September 27, 2007, and the signature of the judge on the defendant’s motion in the court file. It appears that the second motion was decided on the papers.

       “It is a fundamental tenet of due process of law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 10, of the Connecticut constitution that persons whose property rights will be affected by a court’s decision are entitled to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Bartley v. Bartley, 27 Conn. App. 195, 197, 604 A.2d 1343 (1992).

       As of the time of oral argument, the criminal case against the defendant was still pending.

       A preliminary question must be the extent to which the issues in the criminal case would overlap with those in the civil case, because self-incrimination is more likely if there is a significant overlap. Trustees of the Plumbers & Pipefitters National Pension Fund v. Transworld Mechanical, Inc., supra, 886 F. Sup. 1139. Here, in the defendant’s criminal case, the issue is whether he intentionally set fire to the plaintiffs property. The dissolution proceeding involves the distribution of the parties’ marital assets, one of which would be the subject property in Niantic. Although there is some limited overlap, they are not parallel proceedings. Furthermore, the defendant’s blanket refusal to testify at the dissolution trial did not automatically result in his forfeiting the outcome of the civil proceeding.

       We are referring to the defendant’s motion filed July 5, 2007, which was heard on July 11, 2007. We do not provide a separate analysis for the court’s denial of the defendant’s motion filed September 21, 2007, because there is no court transcript or ruling provided by the defendant to review. It was the defendant’s burden to provide this court with an adequate record for our review. See Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); Practice Book § 61-10.


source: Caselaw Access Project

author: FLYNN, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. EDITH J. VARELA
    (AC 28070)
    Flynn, C. J., and DiPentima and Foti, Js.
    Argued March 16
    officially released July 7, 2009

      Neal Cone, senior assistant public defender, for the appellant (defendant).

      Roeco A. Chiarenza, special deputy assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Kevin Murphy, senior assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Edith J. Varela, appeals from the judgment of conviction, rendered after a trial by jury, of accessory to larceny in the first degree in violation of General Statutes §§ 53a-8 and 53a-122 (a) (2), conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 and 53a-122 (a) (2) and accessory to burglary in the third degree in violation of General Statutes §§ 53a-8 and 53a-103. On appeal, the defendant claims that the evidence was insufficient to sustain her conviction on each of the charges because the state could not prove her involvement in the crimes. We affirm the judgment of the trial court.

The following facts reasonably could have been found by the jury. As of February 22, 2005, the defendant had worked for Check Stop of Connecticut (Check Stop) for approximately three years. Check Stop is licensed by the state, and it has several branch locations throughout the state. Check Stop provides traditional banking services, such as check cashing, money orders and bill payment for its customers, all for a fee. The defendant was the store manager for the New Britain branch of Check Stop (store), located at 121 Main Street.

The front entrance of the store had two glass doors, separated by a steel pole that enabled the locking system to function. The lobby of the store, which was the only area in which customers were allowed, was eighteen feet long by sixteen feet, ten inches wide. To gain entrance to the back area, employees had to be buzzed in or had to use a key. Once they entered the first secure area, they entered what was known as a “mantrap,” which was similar to a small closet. The employees then had to enter another door that also could be accessed only with a key or via a buzzing system. In the employee area, there was a small bathroom on one side of the room and what was known as the “safe room” on the other side. The safe, which had a dial lock combination system, was located in the safe room. There also were motion sensors throughout the store, but the store did not have security cameras. There was no exit from the employee area except through the mantrap into the lobby. No one, other than an employee, was allowed in the employee area, including the bathroom, without the permission of the general managers, Christopher Pierce and Gabrielle Pierce.

Christopher Pierce thought the defendant had been a good employee and that she was very trustworthy. However, shortly before Christmas in 2004, Christopher Pierce noticed that the defendant had changed since she began dating a store customer. Christopher Pierce noticed that the defendant’s attitude changed and that she began breaking store rules, including allowing her boyfriend into the employee area and cashing checks for him without charging the required fee.

On February 22, 2005, the defendant was working at the store. For a few hours that day, Luis Escalera, a part-time employee, covered for the defendant because she had an appointment with her attorney. Although unusual for a Tuesday, the Pierces arrived while Escalera was working that day, and they remained at the store until approximately ten minutes after the defendant returned to work at about 1:30 p.m. While working, Escalera remained at the teller window in the secure area the entire time, and he did not allow anyone other than the Pierces and the defendant into that area. He left the store shortly after the defendant returned to work and before the Pierces left. The defendant was the only employee remaining at the store after the Pierces departed, except that Christopher Pierce testified that he may have returned for a short time just to drop off some $1 bills, but he was not certain of that.

When her shift was nearing completion at the end of the day, at approximately 6 p.m., the defendant proceeded to count all of the money in the store, including that which was in the safe. The defendant counted approximately $248,000. At about that time, the defendant received a cellular telephone call from Alex Breton, a former district manager of Check Stop, who also was the former boyfriend of Gabrielle Pierce. Breton had trained the defendant and other employees while serving as district manager. Breton had been fired from the Meriden Check Stop in 2003 or 2004, before that store had been burglarized. That burglary has never been solved. The defendant received calls from Breton’s cellular telephone at 2:18 p.m. and at 6:01 p.m. on the day of the burglary, despite having denied to Christopher Pierce that she stayed in contact with Breton. Cellular telephone records revealed that Breton’s New York registered cellular telephone was in the New Britain area when he made a call to the defendant’s cellular telephone at 6:01 p.m. Someone using Breton’s Manhattan landline telephone called the defendant’s cellular telephone at 7:38 p.m. and, then, called Breton’s cellular telephone at 7:53 p.m.; at that time, Breton’s cellular telephone was in the New Haven area.

At 6:45 p.m., the defendant printed the transactions list for the day, closed the safe and sent a facsimile report to the main office. She punched out shortly after 7 p.m., telephoned Christopher Pierce, as she did at the end of every workday, to tell him that she was leaving the store, and she activated the alarm system using her personal pass code. Christopher Pierce heard the defendant enter her pass code because the buttons make a beeping sound when pressed. The alarm company recorded the alarm being set at 7:04:56 p.m.

At 7:33 p.m., the alarm company received notification that the alarm on the door to the safe had been triggered. A few seconds later, the motion sensor in the rear of the store was triggered, followed by the motion sensor in the front of the store, in the mantrap and at the front door. All of this took approximately twelve seconds. The alarm company notified the Pierces, who were very concerned because the series of alarms indicated that the safe alarm was the first to have been triggered. Gabrielle Pierce telephoned the defendant and asked her to respond to the store immediately and to let in the police, which the defendant agreed to do, explaining that she was nearby, behind the store, with her boyfriend, who had a liquor store on nearby Arch Street. The Pierces left their Enfield home and drove to the store.

When the police arrived, they found no evidence of forced entry, but the front door was opened. When the defendant arrived, she let police into the secure areas using her key, where they discovered that the safe was open and the money was gone. The defendant did not appear surprised. Gabrielle Pierce and an employee of the alarm company testified that one need only close the safe and the doors in the store before setting the alarm and that, as long as the doors were closed, even if they were not locked, the alarm would not go off until either the safe or one of the doors was opened.

On April 5, 2005, the New Britain police arrested the defendant for her role in the store burglary. Subsequently, the state charged the defendant with accessory to larceny in the first degree, conspiracy to commit larceny in the first degree and accessory to burglary in the third degree. After a jury trial, the defendant was convicted on all counts and sentenced to a total effective term of fifteen years incarceration, execution suspended after seven years, followed by five years of probation. The defendant thereafter filed a postverdict motion for a judgment of acquittal, which the court denied. This appeal followed. Following oral argument in this appeal, we requested the parties to submit supplemental briefing addressing each element of the crimes charged and what evidence, if any, there was to support those elements.

On appeal, the defendant claims that the evidence presented at trial was insufficient to sustain a conviction for any of the crimes with which she was charged and convicted. The defendant explains that the “gist of the state’s theory of the case was that because the safe alarm went off first and the front door alarm last, someone had to have been in the safe room or work area before the security system was armed by the defendant, and that [the defendant] would have had to know of this, which meant that she helped bring about a plan to steal the money in the [store] on February 22, 2005.” She argues, however, that the jury improperly found her guilty on the basis of mere speculation, without sufficient evidence. The defendant concedes that the money was missing from the safe and that its taking was an inside job. She challenges, however, the sufficiency of the evidence to prove that she knowingly participated in the theft. Although the evidence in this case was scant, we conclude that there was sufficient evidence to sustain the conviction. Because the defendant concedes that all of the elements for each crime were proven, with the exception of proving that it was she who knowingly permitted a person to remain in the store for the purpose of taking the money, we address only the issue of the evidence related to identity in this appeal.

“The standard of review we apply to a claim of insufficient evidence is well established. 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. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact’s] verdict of guilty. ” (Internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 542-43, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

Nevertheless, “[b]ecause [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. ... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . [T]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.” (Internal quotation marks omitted.) State v. Elsey, 81 Conn. App. 738, 744-45, 841 A.2d 714, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004).

The defendant argues that the jury found her guilty on the basis of mere speculation. She makes much of the fact that the evidence demonstrated that there was no place that an individual could have hidden in the store other than in the bathroom if the door was closed and that the prosecutor argued to the jury, with no basis in the evidence, that it would be “ridiculous” to conclude that the defendant could have been at work from 1:30 p.m. to 7 p.m. and not have used the bathroom, that someone could have hidden in there all of that time or that the defendant would not have been concerned because the bathroom door was closed. She argues that the prosecutor’s argument caused the jury to speculate, with no basis in the evidence, that the bathroom door normally was opened, that the defendant would have known if there was someone hiding in the bathroom, that the defendant could not go five and one-half hours without using the bathroom and that it would be impossible for a person to have hidden in the bathroom all of that time. The defendant contends that it is very reasonable that a woman would not have to use the facilities for five and one-half hours and that a look at scientific literature reveals the reasonableness of this assertion. She further argues that there were three other people in the store on February 22, 2005, who could have let someone into the bathroom unbeknownst to the defendant and that many people leave their bathroom doors closed in their workplace. The state responds that the defendant is asking us to retry the case on appeal. We agree with the state and, mindful of our standard of review, which requires us to view the evidence in the light most favorable to sustaining the jury’s verdict; see State v. Ledbetter, supra, 275 Conn. 542; we conclude that the evidence was sufficient to sustain the defendant’s conviction.

The evidence reasonably reveals that there were four people who entered the secure area of the store on February 22,2005: the defendant, the Pierces and Escalera. When the defendant left for her appointment, Escalera covered for her, and he did not let anyone else into the secure area. After Escalera and the Pierces left the store, the defendant was the only person in the store with the ability to let anyone into the secure area. Christopher Pierce testified that he may have returned to the store later in the day to bring $1 bills, but he was not certain. The defendant spoke with Breton twice during the day in question, including once shortly before she left work, despite denying to Christopher Pierce that she remained in contact with him. Breton, who had been fired shortly before another Check Stop store had been burglarized, telephoned the defendant while in the New Britain area at 6:01 p.m. At about that same time, the defendant went to the safe, counted and totaled all of the money. The defendant remained at the store until just after 7 p.m., when she set the alarm, which included the motion sensors, and left the store. Just after 7:30 p.m., the safe alarm was triggered, which meant that someone had been in the safe room area. Then, in close sequence, the alarms for the motion detectors for the rear of the store and the front of the store, as well as the alarms for the mantrap door and the front door, respectively, were triggered. Records showed that the defendant received a call from someone using Breton’s Manhattan landline telephone at 7:38 p.m., and that the same telephone was used to call Breton’s cellular telephone at 7:58 p.m., and that Breton’s cellular telephone was no longer in the New Britain area but was then in the New Haven area.

When the police arrived at the store, there was no evidence of forced entry, and one of the front doors was opened. When notified by Gabrielle Pierce that she needed to return to the store, the defendant stated that she was nearby and would be there in just a few minutes. The defendant quickly returned and, according to the police, did not appear surprised by the burglary. A police investigation revealed that there was no area in the store in which a person could have hidden except for the bathroom. Further, when the police reenacted the crime, it took fourteen seconds to get from the safe to the front door of the store. When the crime was committed, however, it took only twelve seconds from the time the safe alarm was triggered until the alarm on the front door was triggered, suggesting that the money may have been prepackaged for a quick pickup.

On the basis of this evidence and the inferences reasonably drawn therefrom, we conclude that the jury could have inferred that it was the defendant who knowingly was involved in the plot to take the money from the store and that she permitted someone to remain in the area of the safe after she set the alarm and departed the store on the evening of February 22, 2005.

The judgment is affirmed.

In this opinion the other judges concurred.

       Employees were allowed to cash one check per week for a member of their immediate family without charging a fee.

       Specifically, the prosecutor argued: “And, you’re going to tell me that [the defendant] sat there in this work area by herself, because that’s her job, for five and one-half hours without using the bathroom or without wondering why that door [was] closed. . . . And, then—so, I—again, you have to use your common sense, there was nobody in there. . . . This is not like going into Shaw’s [supermarket] and using the bathroom and hiding in the bathroom there, or a convenience store where you can go into the bathroom, and maybe the person there doesn’t know that you’re there, maybe forgets to check the bathroom. ... I mean, it’s ridiculous. The idea that somebody sitting in this bathroom for five and one-half hours, waiting for this business to close, is as ludicrous as saying that they were beamed there by Martians.”

       Citing cases from the United States Courts of Appeal for the fifth, eighth and eleventh circuits, the defendant also argues that “[c]ourts of appeal consider the countervailing evidence as well as the evidence that supports the verdict in assessing the sufficiency of the evidence” and that “[t]he evidence equally or nearly equally contradicts the state’s theory that [the] defendant would necessarily have known if someone was hiding in the bathroom that day.”
      We disagree with the defendant’s assertion as to our standard of review. Our Supreme Court has been very clear concerning the standard to be employed in assessing a sufficiency of the evidence claim on appeal. We first begin by construing the evidence in the light most favorable to sustaining the jury’s verdict. State v. King, 289 Conn. 496, 520, 958 A.2d 731 (2008); State v. Davis, 283 Conn. 280, 329, 929 A.2d 278 (2007); State v. Ledbetter, supra, 275 Conn. 542; State v. Morgan, 274 Conn. 790, 799, 877 A.2d 739 (2005). Should the defendant believe that this standard is improper, her redress is with our Supreme Court, as we are bound by the precedent it sets. See West Hartford v. Murtha Cullina, LLP, 85 Conn. App. 15, 24, 857 A.2d 354 (“It is axiomatic that . . . this court [is] without authority to overrule the decisions of our Supreme Court. In the absence of direction by our Supreme Court, inferior courts must continue to adhere to its decisions.”), cert. denied, 272 Conn. 907, 863 A.2d 700 (2004).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ANTHONY W. OLIPHANT
    (AC 29362)
    Gruendel, Harper and Foti, Js.

      Argued April 13
    officially released July 7, 2009

      Laljeebhai R. Patel, for the appellant (defendant).

      Melissa L. Streeto, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Joseph R. LaMotta, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Anthony W. Oliphant, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for six and one-half years. The defendant claims that the court improperly (1) restricted his cross-examination of the complaining witness, (2) refused to apply the exclusionary rule, (3) concluded that the evidence was sufficient to determine that he had violated his probation and (4) revoked his probation. We affirm the judgment of the trial court.

At the outset, we must consider whether there is an adequate record for review. An adequate record usually includes either a memorandum of decision or a transcript signed by the trial judge. Practice Book § 64-1. Also, the appellant is responsible for providing such to this court. Chase Manhattan Bank/City Trust v. AECO Elevator Co., 48 Conn. App. 605, 607, 710 A.2d 190 (1998); Practice Book § 61-10. The defendant did not provide this court with either a memorandum of decision or a signed transcript. He did provide, however, an unsigned transcript of the proceeding. “On occasion, we will entertain appellate review of an unsigned transcript when it sufficiently states the court’s findings and conclusions.” In re Anthony E., 96 Conn. App. 414, 417, 900 A.2d 594, cert. denied, 280 Conn. 914, 908 A.2d 535 (2006). We have reviewed the transcript of this case and conclude that it provides an adequate record for our review.

On September 1, 1995, the defendant was sentenced for a conviction of larceny in the first degree to fifteen years incarceration, execution suspended after seven years, followed by five years probation. The defendant’s probation commenced on August 30,2002, subsequent to his release from prison. In the early hours of September 25, 2006, Robert Villano, a Hamden police officer, responded to a report of an assault on Rhonda Dixon, who was, at the time, the defendant’s girlfriend. Villano met Dixon at the Ebony Lounge and took a signed statement from her about the assault. She alleged that the defendant physically attacked her at his residence after he accused her of stealing his wallet and became enraged. Villano referred the victim to a hospital for treatment of the injuries she sustained to her right eye from the assault. Subsequently, Villano secured an arrest warrant for the defendant on a charge of assault in the third degree.

On October 6, 2006, at approximately 5:30 p.m., Mark Sheppard, a Hamden police officer, went to the defendant’s residence, 130 Cherry Ann Street, New Haven, to effectuate an arrest. Sheppard, dressed in his police uniform, was driving in an unmarked police vehicle and had with him a photograph of the defendant. Sheppard did not see the defendant’s vehicle, a red Ford Escort, in the driveway. He parked on the street in front of the defendant’s residence and waited in his vehicle to see if the defendant returned. Sheppard soon saw the defendant’s vehicle driving down Cherry Ann Street toward his residence. Sheppard recognized the defendant as the driver of the vehicle as it passed him and turned into the driveway of 130 Cherry Ann Street. Sheppard radioed for assistance, then drove his vehicle into the driveway, exited and approached the passenger’s side of the defendant’s vehicle. Through the open window, Sheppard informed the defendant that there was a warrant for his arrest and asked that he turn off the motor and step out of the vehicle. The defendant was non-compliant, became verbally abusive toward Sheppard and reached into his waistband. Sheppard unholstered his gun, pointed it at the defendant and directed him to put his hands on the steering wheel. The defendant still did not comply with Sheppard, rolled up his windows, placed the car into gear and backed up several feet onto the lawn of his residence. Because the defendant’s car windows were tinted, Sheppard broke the passenger window with his baton so as to keep the defendant visible and, again, directed the defendant to turn the motor off. William Onofrio, a Hamden police officer, arrived soon after at the scene to assist Sheppard.

Onofrio opened the driver’s side door of the vehicle, at which time the defendant exited the vehicle. The defendant complied initially with the directive to lie face down on the ground, and Onofrio attempted to handcuff him. Onofrio managed to secure only the defendant’s right wrist with the handcuff when he became noncompliant and combative with the officers. Sheppard used his Taser gun on the defendant to no effect. The defendant then stood up and struck Onofrio on the head with the unsecured handcuff. The defendant remained combative and nonresponsive to the officers’ directives. Sheppard then fired his Taser gun at the defendant, but the defendant removed the probes from his chest before Sheppard could deliver an electric charge. The defendant then ran toward a wooded area behind his house. Onofrio and Sheppard pursued him and repeatedly directed the defendant to cease resisting their efforts to arrest him. The defendant picked up a large tree branch, held it like a baseball bat and threatened the officers. Sheppard and Onofrio trained their weapons on the defendant and ordered him to drop the branch. The defendant took several steps toward the officers before relinquishing the branch. He then ran back toward the residence. The officers pursued the defendant and attempted to restrain him as he continued to resist their efforts and to punch the officers. It was not until two more police officers arrived at the scene and assisted Sheppard and Onofrio that the defendant was fully handcuffed and in police custody.

A violation of probation hearing was held, after which the court revoked the defendant’s probation on the basis of the evidence presented and committed him to the custody of the commissioner of correction for six and one-half years. In its oral ruling after the adjudicative phase of the hearing, the court found that the state had presented reliable and probative evidence and had proven by a preponderance of the evidence that the defendant had violated his probation by committing the crime of assault in the third degree for his attack on Dixon on September 25, 2006. The court also found that the defendant had committed the crimes of assault in the second degree, interfering with an officer and threatening for his actions on October 6, 2006, when Sheppard and Onofrio attempted to effectuate his arrest. The court found that the defendant had violated the standard condition of his probation that he not violate any criminal law of the United States, this state or any other state or territory. The court then conducted the dispositional phase of the hearing and determined that the beneficial aspects of probation were no longer being served. The court revoked the defendant’s probation and sentenced the defendant to serve six and one-half years incarceration. This appeal followed. Further facts will be set forth as necessary.

I

The defendant first claims that the court improperly restricted his cross-examination of the complaining witness. Specifically, the defendant argues that the court abused its discretion in not allowing him to recall the complaining witness for further cross-examination. We disagree.

The following additional facts are relevant to the defendant’s claim. Initially, the defendant was represented at the hearing by attorney Omar Williams. On September 24, 2007, Williams cross-examined Dixon, the complaining witness for the September 25, 2006 incident. On September 28, 2007, the defendant requested that the court allow him to represent himself. The court found, after an extensive canvass of the defendant, that he was competent to waive counsel and that his waiver was knowing, intelligent and voluntary. The court also appointed Williams as standby counsel. Soon after, the defendant conducted the cross-examination of Villano. During the cross-examination, the defendant questioned Villano about the fact that both his report detailing the incidents of September 25, 2006, and his affidavit in support of the arrest warrant for the defendant, stated that Dixon ran from the defendant’s home to the Ebony Lounge after the assault.

On October 22, 2007, during his case-in-chief, the defendant sought to recall Dixon as a witness. The court noted that the witness had already been subject to direct and cross-examination. The state objected and requested that the court require the defendant to make an offer of proof to establish a valid reason for his recalling Dixon. The court then recessed to allow the defendant to confer with standby counsel to prepare an offer of proof. After the court reconvened, the defendant, essentially, stated that he wanted to recall her for two reasons: (1) to impeach her through her past conduct that revealed her to be a self-destructive “serial sexual predator” and (2) to explore apparent discrepancies between her testimony and Villano’s affidavit in support of the defendant’s arrest warrant as well as an affidavit Dixon signed in support of her request for a protective order. The court sustained the state’s objection to the defendant’s request to recall Dixon. Citing State v. Lambert, 58 Conn. App. 349, 754 A.2d 182, cert. denied, 254 Conn. 915, 759 A.2d 507 (2000), the court ruled that the defendant was not allowed to impeach Dixon with conduct that was merely illustrative of general bad behavior because it was not relevant to her credibility. The court also ruled that the apparent discrepancies alluded to by the defendant were covered extensively by Williams during his cross-examination of Dixon. Moreover, the court concluded, not only had Dixon been subjected to cross-examination that adequately demonstrated any possible motive, interest or bias on her part, but the defendant also presented extensive testimony that supported his contentions involving her credibility.

“The trial court has broad discretion in determining whether to permit a witness to be recalled. ... In determining whether the trial court abused its discretion, every reasonable presumption should be given in favor of the trial court’s ruling.” (Citations omitted; internal quotation marks omitted.) State v. Wegman, 70 Conn. App. 171-72,798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). “Reversal is required only where an injustice appears to have occurred. ... To establish an abuse of discretion, it must be shown that restrictions imposed on cross-examination were clearly prejudicial.” (Internal quotation marks omitted.) State v. Lewis, 25 Conn. App. 354, 360, 594 A.2d 489, cert. denied, 220 Conn. 914, 597 A.2d 336 (1991); see also State v. Price, 61 Conn. App. 417, 429, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001); State v. Oliver, 41 Conn. App. 139, 145, 674 A.2d 1359, cert. denied, 237 Conn. 920, 676 A.2d 1374 (1996). Applying these principles to the present matter, we are not persuaded that the court abused its discretion.

We note first that the lengths to which the court went in an effort to accommodate the defendant’s response to the state’s objection to recalling the complaining witness, and throughout the hearing, were considerable. The court gave ample time for the defendant to confer with standby counsel concerning the matter and was solicitous in considering his offer of proof. The court also gave a reasoned response to the defendant’s offer of proof that was supported by relevant and sound decisional law and our rules of evidence. Moreover, the court concluded appropriately that Dixon was subjected to a thorough cross-examination by Williams that served the appropriate function of cross-examination— the exposure of Dixon’s potential motive, interest, bias or prejudice. See State v. DeJesus, 270 Conn. 826, 835, 856 A. 2d 345 (2004). On the basis of the record before us, we conclude that the restrictions placed on the defendant were not clearly prejudicial, and, therefore, the court did not abuse its discretion.

II

The defendant next claims that the court improperly refused to apply the exclusionary rule. This court, however, recently has stated that under our Supreme Court’s reasoning in Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), the exclusionary rule does not apply to probation revocation hearings. State v. Moore, 112 Conn. App. 569, 578, 963 A.2d 1019, cert. denied, 291 Conn. 905, 967 A.2d 1221 (2009). The defendant’s claim, therefore, must fail.

III

The defendant next claims that the court improperly concluded that the evidence was sufficient to determine that he had violated his probation. We disagree.

“[A] probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. . . . Since there are two distinct components of the revocation hearing, our standard of review differs depending on which part of the hearing we are reviewing.” (Citation omitted; internal quotation marks omitted.) State v. Bouteiller, 112 Conn. App. 40, 51, 961 A.2d 995 (2009). “[A] trial court may not find a violation of probation unless it finds that the predicate facts underlying the violation have been established by a preponderance of the evidence at the hearing—that is, the evidence must induce a reasonable belief that it is more probable than not that the defendant has violated a condition of his or her probation.” State v. Davis, 229 Conn. 285, 302, 641 A.2d 370 (1994). “In making its factual determination, the trial court is entitled to draw reasonable and logical inferences from the evidence.” (Internal quotation marks omitted.) State v. McElveen, 69 Conn. App. 202, 205, 797 A.2d 534 (2002). “A challenge to the sufficiency of the evidence is based on the court’s factual findings. The proper standard of review is whether the court’s findings were clearly erroneous based on the evidence. ... A court’s finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support [the court’s finding of fact] ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75,80-81, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003).

During the adjudicatory phase of the hearing, the court heard considerable testimony from Dixon, Villano, Sheppard, the defendant, the defendant’s neighbors and the defendant’s mother, among others concerning the events of September 25 and October 6, 2006, after which it set forth its findings. It found, in relevant part, that the defendant physically attacked Dixon on September 25, 2006. It further found that the defendant, on October 6, 2006, repeatedly failed to comply with police directives, struck both Onofrio and Sheppard, menaced them with a tree branch and repeatedly struggled with the officers. We have thoroughly reviewed the record, and it amply supports the court’s factual findings. The defendant does not claim that those findings, if reasonable, were insufficient to support the finding that he violated his probation. On appeal, the defendant argues that the court erred in crediting the testimony of Dixon and Sheppard and not crediting his testimony or that of his neighbors. Although the defendant couches his argument in terms of insufficiency of the evidence, he confuses the issues of sufficiency and credibility. “As the sole finder of fact in the probation revocation proceeding, however, the court was entitled to arrive at its own conclusion regarding the witnesses’ credibility and what weight to afford their testimony.” State v. Gauthier, 73 Conn. App. 781, 787, 809 A.2d 1132 (2002), cert. denied, 262 Conn. 937, 815 A.2d 137 (2003). Because the weight to be given to the credibility of a witness is within the sole province of the trier of fact and will not be reviewed on appeal; Sanders v. Dias, 108 Conn. App. 283, 294, 947 A.2d 1026 (2008); we cannot say that the court’s decision was clearly erroneous.

We conclude, therefore, that the court had before it sufficient evidence to support its finding, by a fair preponderance of the evidence, that the defendant committed the crimes of assault in the third degree, assault in the second degree, threatening and interfering with an officer. Accordingly, the court properly found that the defendant had violated his probation.

IV

Last, the defendant claims that the court improperly revoked his probation. Specifically, he argues that the evidence produced did not support the court’s finding that the rehabilitative purpose of probation could not be fulfilled. We disagree.

We have stated that “[i]f a violation [of probation] is found, a court must next determine whether probation should be revoked because the beneficial aspects of probation are no longer being served. . . . On the basis of its consideration of the whole record, the trial court may continue or revoke the sentence of probation . . . [and] . . . require the defendant to serve the sentence imposed or impose any lesser sentence. ... In making this second determination, the trial court is vested with broad discretion.” (Internal quotation marks omitted.) State v. Bouteiller, supra, 112 Conn. App. 53. “Our determination of whether the trial court abused its discretion in revoking the defendant’s probation is guided by the following principles. We previously have recognized that [t]o a greater or lesser degree, it is always true of probationers . . . that they do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special [probation] restrictions. . . . These restrictions are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large. . . .

“A revocation proceeding is held to determine whether the goals of rehabilitation thought to be served by probation have faltered, requiring an end to the conditional freedom obtained by a defendant at a sentencing that allowed him or her to serve less than a full sentence. . . . [T]he ultimate question [in the probation process is] whether the probationer is still a good risk .... This determination involves the consideration of the goals of probation, including whether the probationer’s behavior is inimical to his own rehabilitation, as well as to the safety of the public.” (Internal quotation marks omitted.) State v. Fagan, 280 Conn. 69, 105, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007).

Our review of the record reveals that the court did not abuse its discretion in revoking the defendant’s probation. Specifically, we conclude that the court properly considered whether the beneficial aspects of probation were being served. We note that the court took into consideration the favorable testimony of the defendant’s sister, the fact that the defendant had, in the time he was on probation, secured gainful employment, attended college and paid restitution. It also considered the defendant’s extensive criminal history, the fact that he previously had violated his probation, the violent nature of the incidents that led to the revocation hearing and his demonstrated lack of remorse about those incidents. It then found that the beneficial aspects of probation were no longer being served and revoked the defendant’s probation. Because the court was entrusted with the decision as to whether the defendant was meeting the goals of his probation and we must afford every reasonable presumption in favor of the correctness of that decision; see State v. Bouteiller, supra, 112 Conn. App. 56; on the basis of the record before us, we cannot say that it abused its discretion in finding that the rehabilitative purpose of probation could no longer be served. The court, therefore, did not abuse its discretion in revoking the defendant’s probation.

The judgment is affirmed.

In this opinion the other judges concurred.

       In the defendant’s direct appeal, this court affirmed the conviction. See State v. Oliphant, 47 Conn. App. 271, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).

       According to the testimony provided to the court, Cherry Ann Street is located in both New Haven and Hamden. Moreover, the testimony revealed that the defendant’s residence is directly adjacent to the boundary between New Haven and Hamden. The court found that each officer reasonably believed that the defendant’s residence was located in Hamden when they attempted to arrest him on October 6, 2006.

       Sheppard testified that in this application of the Taser gun, he “delivered one cycle from his department issued Taser in a drive stun capacity, which is when the probes aren’t used.”

       Sheppard testified that the branch was approximately fifty-three and one-half inches long and about one and three-quarter inches in diameter.

       The defendant also claims that the court’s ruling deprived him of his right to confront the witnesses against him under the federal and state constitutions. We note that a “ ‘[Revocation of [probation] is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to [probation] revocations.’ Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).” State v. Young, 63 Conn. App. 794, 799-800, 778 A.2d 1015, cert. denied, 258 Conn. 903, 782 A.2d 140 (2001).
      The defendant does not provide any legal basis or analysis from which we could conclude whether his rights under the federal or state constitution were implicated under the court’s ruling. “[W]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failing to brief the issue properly.” (Internal quotation marks omitted.) Papic v. Burke, 113 Conn. App. 198, 222, 965 A.2d 633 (2009). Moreover, at trial, the defendant objected to the court’s ruling solely on evidentiary grounds and has not argued on appeal, under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or otherwise, that he is entitled to extraordinary review of an unpreserved, alleged constitutional claim. See State v. Longo, 106 Conn. App. 701, 709, 943 A.2d 488 (2008) (appellate court will not engage in level of review not requested). We, therefore, decline to review this separate claim.

       On September 24, 2007, Dixon testified that she had driven to the Ebony Lounge from the defendant’s home after the assault.

       Specifically, the state requested that “the [defendant] provide an offer of proof regarding what extra evidence [that] hasn’t been covered in the direct and cross that will come out [and] that’s admissible, addresses the issues and the legal grounds under which it would be admissible. [The state] did, for the purposes of this offer of proof, obtain a transcript of . . . Dixon’s testimony. [The state has] a copy for [standby] counsel and [the defendant].”

       The court stated: “Okay . . . what I’m going to do is this. I’m going to give you some time now, fifteen minutes, to discuss with [your standby counsel] since [the witness] is, for want of a better word, a complaining witness, what it is exactly that you want to ask her that is in any way different than what was already covered [on] direct and cross-examination . . . because there’s got to be a basis upon which I’m going to permit you to again have her up here, when she’s already been subject to cross-examination, to go through that again.
      “Now, if there’s some other—other areas that haven’t been covered, that’s one tiling. I’ll hear you on that, but to simply have her up there and go through the entire thing all over again without hearing any—a basis for that, I will consider [the state’s] claim.”


text:
    STATE OF CONNECTICUT v. REGINALD L. BOYD
    (AC 28992)
    Flynn, C. J., and Bishop and Borden, Js.

      Argued January 20
    officially released July 7, 2009

      Mary Anne Royle, special public defender, for the appellant (defendant).

      Laurie N. Feldman, special deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Charles M. Stango, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, C. J.

The defendant, Reginald L. Boyd, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1) and threatening in the second degree in violation of General Statutes § 53a-62. On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury on the doctrine of nonexclusive possession with regard to the firearm and (2) the evidence was insufficient to sustain his conviction. We affirm the judgment of the trial court. We conclude that the court’s charge sufficed to guide the jury and that it is not reasonably possible that the jury was misled. We further conclude that the evidence and the reasonable inferences to be drawn therefrom sufficed to establish that the defendant constructively possessed the firearm found in the vehicle in which he was a passenger and subsequently threatened its driver, Keenan Sneed.

The jury reasonably could have found the following facts. On September 4, 2005, at approximately 1 a.m., fifteen year old Sneed drove a minivan in Bridgeport with his friend, Evan Sheffield, who was approximately seventeen or eighteen years old, as a passenger. Sneed believed the van belonged to Sheffield’s uncle, from whom Sheffield had borrowed the vehicle; in fact, the van was registered to another man whom Sneed did not know. Although Sneed did not possess a driver’s license, Sheffield asked him to drive because Sheffield had a headache.

Sneed and Sheffield proceeded to a McDonald’s restaurant on North Avenue. Prior to the trip, the two searched the van looking for tools or “blades” belonging to Sheffield’s uncle. Sneed testified that he searched the front of the van and Sheffield the remainder and they found nothing on the floor of the van. After leaving the restaurant, they encountered the defendant on Vine Street. The defendant asked for a ride to the east side of town, and Sneed agreed to transport him a portion of the way. The defendant entered the van and seated himself behind the driver’s seat in the backseat, where he was the only passenger.

Shortly after Sneed resumed driving, he saw the flashing lights of a police car and realized he was going to be stopped. The defendant told Sneed to “[k]eep driving,” but Sneed stopped the van and put it into park. The police officers made the traffic stop due to the fact that Sneed appeared to be too young to be driving, became nervous when he saw the policemen and failed to signal properly when making a turn. The officers determined that Sneed did not have an operator’s license and ordered him, Sheffield and the defendant out of the vehicle. One of the officers, David Riehl of the Bridgeport police department, noticed a handgun, later determined to be an operable, loaded Walther .25 caliber semiautomatic weapon, on the floor of the van beside the defendant’s right foot. When asked to describe the location of the firearm in relation to the defendant, Riehl testified that the handgun was “[h]alf an arm’s length . . . basically, right at his feet.” When he exited the van, the defendant was in possession of a forty ounce bottle of beer and had an odor of alcohol about him, but two officers testified that he did not appear to be intoxicated.

The defendant, Sneed and Sheffield were taken into custody and transported to the police station. Sneed testified that at the police station the defendant told him to “take the blame” and “say the gun was [his].” When Sneed refused to do so, the defendant threatened him, saying, “I’m going to have my people come and see you.” Sneed took the defendant’s words to mean that the defendant would have him killed. Sneed also testified that the gun was not his and that the first time he became aware of it was when the officers announced that they had found it. After being given Miranda warnings, the defendant provided the police a written statement in which he denied ownership and possession of the gun.

The defendant thereafter was charged with criminal possession of a firearm pursuant to § 53a-217 (a) (1), possession of a weapon in a vehicle without a permit pursuant to General Statutes § 29-38 and threatening in the second degree pursuant to § 53a-62. The defendant also was charged, by way of a part B information, with being a persistent serious felony offender under General Statutes § 53a-40 (2) (c). Following the presentation of the state’s case, the parties stipulated to the fact that, on the date in question, the defendant was a convicted felon. The defendant moved for a judgment of acquittal on all charges on the ground that the state had not presented sufficient evidence for conviction. The court denied the motion. The jury found the defendant guilty on both possession charges as well as on the threatening charge. Following the guilty verdict, the defendant entered a guilty plea on the part B information.

Prior to sentencing, the court granted the defendant’s motion for a judgment of acquittal as to the charge of possession of a weapon in a motor vehicle without a permit. The defendant was sentenced to a total effective term of six years incarceration, with a two year mandatory minimum, to run consecutively to a sentence he already was serving. The present appeal followed. Additional facts will be provided where necessary.

I

The defendant first claims that the court improperly failed to instruct the jury on the doctrine of nonexclusive possession with regard to the firearm. As a result of this failure, he argues, it is reasonably probable that the jury was misled into inferring impermissibly that the defendant actually or constructively possessed the firearm solely because he was present in the automobile. We disagree.

After reading to the jury the relevant portions of § 53a-217 (a) (l), the court charged the jury as follows: “ ‘Possess’ as defined in § 53a-3 (2) of the [General] Statutes means to have physical possession or otherwise to exercise dominion or control over tangible property. The law recognizes two kinds of possession, actual possession and constructive possession. Actual possession means that the defendant knowingly and intentionally had the firearm on his person or in his hands, that he had actual physical control over it. It is not necessary, however, that the defendant has actual possession of the firearm. It is also sufficient if he had constructive possession of it. Constructive possession means that the defendant knew of the nature of the firearm, that he knew of its presence, and that he exercised dominion and control over it. Constructive possession means that the defendant, although not in actual possession, knowingly had the power and the intention in exercising dominion and control over the firearm.

“Having dominion or control over it means that there was a continuing relationship between the defendant and the firearm. Control is the power or authority to guide or manage. The essence of exercising control is being in a position of control coupled with the knowledge of the nature of the item and with the intent to have control over it. As long as the firearm was in a place where it was subject to the defendant’s dominion and control where he could if he wished go and get it, it was in his constructive possession and that possession was illegal if the defendant knew of the nature of the firearm and knew of its presence.

“Whether the defendant had possession of the firearm in this case is a question of fact for you to decide, and you may, as I have told you, draw reasonable and logical inferences from the evidence. If you find that the state has proven beyond a reasonable doubt each of the elements of the crime of criminal possession of firearm, then you shall find the defendant guilty. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one of the elements, you shall find the defendant not guilty.” (Emphasis added.)

The defendant’s failure either to request a charge on nonexclusive possession or to object to the instruction as given renders his claim unpreserved. See Practice Book § 42-16. He therefore seeks to prevail pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. See Practice Book § 60-5. The record is adequate for review, and the claim is of constitutional magnitude, alleging the violation of a fundamental right. “[I]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Internal quotation marks omitted.) State v. Fleming, 111 Conn. App. 337, 350, 958 A.2d 1271, cert. denied, 290 Conn. 903, 962 A.2d 794 (2008). However, the defendant has not demonstrated that a constitutional violation clearly exists and that he was clearly deprived of a fair trial. We therefore conclude that his claim is without merit.

Our standard of review with regard to claims of instructional error is well established. “[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict . . . and not critically dissected in a microscopic search for possible error.” (Internal quotation marks omitted.) State v. Jackson, 283 Conn. 111, 117, 925 A.2d 1060 (2007). “Where . . . the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict.” (Internal quotation marks omitted.) State v. Fabricatore, 281 Conn. 469, 477, 915 A.2d 872 (2007).

The defendant does not argue that the court improperly instructed the jury with regard to the elements of the crime of criminal possession of a firearm. Instead, he essentially contends that, under the facts and circumstances of this case, the court had a duty to instruct the jury further on the doctrine of nonexclusive possession. We conclude, following a thorough review of the entire jury charge in light of the evidence presented at trial, that the court properly instructed the jury on the elements of the crime.

Our Supreme Court has defined the doctrine of nonexclusive possession as follows: “Where the defendant is not in exclusive possession of the premises where the [illegal item is] found, it may not be inferred that [the defendant] knew of the presence of the [illegal item] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . The doctrine of nonexclusive possession was designed to prevent a jury from inferring a defendant’s possession of [an illegal item] solely from the defendant’s nonexclusive possession of the premises where the [illegal item was] found. . . . When the doctrine applies, an instruction focuses the jury’s attention on the defendant’s knowledge and intent to possess, precluding it from Inferring possession from the mere fact that the defendant, along with others, occupied or had access to the premises wherein the contraband was found.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Williams, 258 Conn. 1, 7-8, 778 A.2d 186 (2001).

The jury reasonably could not have been misled by the court’s charge in the manner asserted by the defendant. The court clearly instructed the jury that to find that the defendant had possessed the firearm, whether actually or constructively, it would have to determine that he had knowledge of the nature of the weapon, of its presence within the vehicle and either had it on his person or in a position to exercise dominion and control over it. Importantly, the court instructed the jury not only that the defendant had to have such knowledge, but also that he must have acted intentionally. In another portion of the jury instruction, the court explained fully the definition of intent. This focus on the defendant’s knowledge and control and intentional action with regard to the firearm properly directed the jury and precluded it from considering that the mere presence of the defendant was enough to satisfy the elements of the crime. The given instruction, though not explicitly addressing nonexclusive possession, nonetheless covered the most important protective elements of a charge on the doctrine, as noted by the court in Williams: the defendant’s knowledge and intent to possess the weapon. See id., 8.

Furthermore, this is not a case in which the court declined a requested instruction; the defendant made no request of the court to charge the jury on the doctrine of nonexclusive possession. A defendant’s right to due process is implicated by a court’s failure to instruct the jury on the essential elements of the crime charged. State v. Cote, 286 Conn. 603, 626, 945 A.2d 412 (2008). However, “[a] trial court has no independent obligation to instruct, sua sponte, on general principles of law relevant to all issues raised in evidence .... Rather, it is the responsibility of the parties to help the court in fashioning an appropriate charge.” (Citation omitted; internal quotation marks omitted.) State v. Arena, 235 Conn. 67, 75, 663 A.2d 972 (1995); see also State v. Crawley, 93 Conn. App. 548,568,889 A.2d 930 (rejecting defendant’s claim that court sua sponte should have instructed jury on doctrine of nonexclusive possession where defendant failed to request such charge and failed to object to its absence), cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). Because we conclude that the defendant has not demonstrated that a constitutional violation clearly existed depriving him of a fair trial, his claim must fail. See State v. Golding, supra, 213 Conn. 240.

II

The defendant next argues that the evidence was insufficient to support the jury’s guilty verdict with regard to both the criminal possession of a firearm charge and the threatening charge. We are not persuaded.

Our analysis is guided by the familiar standard of review for sufficiency of the evidence claims. We undertake a twofold inquiry: “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . .

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . We 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. . . . Furthermore, [i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant’s innocence. . . . Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier’s] verdict of guilty.” (Citations omitted; internal quotation marks omitted.) State v. Fleming, supra, 111 Conn. App. 342-43. We now proceed to the defendant’s claims, which we address in turn.

A

The defendant claims that the evidence was insufficient to support the jury’s guilty verdict on the charge of criminal possession of a firearm pursuant to § 53a-217 (a) (1). He specifically contends that though the “evidence at trial showed a temporal and spatial nexus between [him] and the handgun,” it was insufficient to prove that he had possessed the firearm. We do not agree.

Pursuant to the statute, the state’s burden is to prove beyond a reasonable doubt that the defendant, who must be a convicted felon, possessed a firearm. Because the defendant stipulated to the fact that he was a convicted felon on the evening of the incident, the only question with regard to the sufficiency of the state’s evidence pertains to the possession element.

Upon a thorough review of the record, and viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient to sustain the defendant’s conviction. Contrary to the implications of the defendant’s argument, there was significant evidence beyond the defendant’s mere presence in the van and the simultaneous presence of the firearm nearby. There was evidence that Sneed and Sheffield had searched the van looking for tools or “blades” prior to the defendant’s entering the van. Sneed testified that they found nothing and that the floor of the van was empty. After Sneed and Sheffield searched the vehicle and after the defendant entered it, the police found the handgun near the defendant’s feet when the van was stopped. The evidence showed that the defendant was the only occupant of the backseat of the van, where the firearm was located. The firearm was found within the immediate proximity of the defendant, as close as a “[h]alf an arm’s length . . . basically, right at his feet.” Sneed also testified that the weapon was not his and that he had no knowledge of the weapon’s presence before it was found by the police. Further, Sneed’s testimony regarding the defendant’s insistence that he continue driving after the police had signaled for Sneed to stop and his testimony regarding the defendant’s threatening demands that Sneed take responsibility for the firearm may have been considered by the jury properly as evidence of the defendant’s possession of the weapon. Viewing the evidence in the light most favorable toward sustaining the verdict, as we are required to do, we conclude that the evidence was sufficient to support the jury’s verdict on the charge of criminal possession of a firearm.

B

The defendant also challenges the sufficiency of the evidence proffered on the charge of threatening in the second degree. Specifically, he argues that the evidence was insufficient because the circumstances made a threat of imminent harm by the defendant toward Sneed an impossibility because the defendant spoke the words in question while in custody at the police station. We disagree.

General Statutes § 53a-62 provides in relevant part: “(a) A person is guilty of threatening in the second degree when: (1) By physical threat, such person intentionally places or attempts to place another person in fear of imminent serious physical injury . . . .” With regard to this statute, this court has stated: “It is not the danger or risk of injury, but the victim’s perception, which is essential to the . . . crime.” (Internal quotation marks omitted.) State v. Gibson, 75 Conn. App. 103, 123, 815 A.2d 172 (2003), rev’d in part on other grounds, 270 Conn. 55, 850 A.2d 1040 (2004).

The defendant focuses on the location where he spoke to Sneed, the police station, and contends that his words could not have put Sneed in “imminent harm” because Sneed also was in custody and the defendant was “not in a position to carry out any threat. ” However, this argument misses the point. “[T]he law does not equate imminent with immediate. A threat does not require immediate menace of violence or acts showing a present ability and will to execute the threat. ... A threat imports the expectation of bodily harm, thereby inducing fear and apprehension in the person threatened. A threat, unlike an assault, is not limited by time or distance.” (Internal quotation marks omitted.) State v. Gibson, supra, 75 Conn. App. 123-24.

The jury in the present case heard testimony that, upon being stopped by the police and found with a firearm, the defendant attempted to get Sneed to take responsibility for the weapon. The evidence further showed that upon Sneed’s refusal to comply, the defendant told him: “I’m going to have my people come and see you.” Sneed testified as to his understanding of these words, i.e., that the defendant would have someone try to kill him. Under § 53a-62 and the interpretive case law thereof, it was not necessary that the defendant attempt to harm Sneed immediately or even be able to harm him that soon. We conclude that the evidence was sufficient to sustain the jury’s verdict on that charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant moved for acquittal on the charge of possession of a weapon in a motor vehicle without a permit on the ground that no evidence had been presented bearing on whether he in fact had been licensed to carry a firearm on the night in question. Acknowledging the lack of evidence, the state offered no objection. The court granted the defendant’s motion.

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .”

       The court stated: “Intent relates to the condition of mind of the person who commits the act [and] his purpose in doing it. As defined by our statute[s], a person acts intentionally with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct. What a person’s intention is has usually been ... a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain intention to do harm to another. The only way in which a jury can ordinarily determine what a person’s intention was at any given time, aside from that person’s own statements or testimony, is by determining what the person’s conduct was and what the circumstances were surrounding that conduct and from that, infer what his intention was.”

       The Williams court noted: “[I]n order to establish possession of the firearm for a conviction under § 53a-217 by constructive possession, [the state] was required to prove beyond a reasonable doubt that the defendant had exercised intentional dominion and control over the firearm and that he had knowledge of its character.” State v. Williams, supra, 258 Conn. 12.

       The defendant also seeks to prevail on his claim under the plain error doctrine. “It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. ... A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest iiqustice.” (Internal quotation marks omitted.) State v. Jackson,
        73 Conn. App. 338, 386, 808 A.2d 388, cert. denied, 262 Conn. 929, 814 A.2d 381 (2002). Having concluded that the defendant was not deprived of a fair trial when the court did not sua sponte instruct the jury on nonexclusive possession, we also conclude that the claim does not warrant application of the plain error doctrine.