author: Schaller, J.

text:
    State of Connecticut v. Irving Nixon
    (11201)
    Heiman, Freedman and Schaller, Js.

      Argued May 5
    decision released July 27, 1993

      Kathleen M. Paul, certified legal intern, with whom were Timothy H. Everett and, on the brief, Mark Shee-han and Rachel L. Todd, legal interns, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, was Patricia Swords, state’s attorney, for the appellee (state).
   Schaller, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to assault an employee of the department of correction; General Statutes §§ 53a-48 and 53a-167c (a) (l); assault of an employee of the department of correction; General Statutes §§ 53a-8 and 53a-167c (a) (1); second degree assault; General Statutes §§ 53a-8 and 53a-60 (a) (5); and rioting at a correctional institution; General Statutes § 53a-179b.

The defendant claims that the trial court (1) should have stricken the added counts charged by the state in the substitute information and granted the defendant a continuance, (2) arraigned the defendant in the presence of the jury in violation of his right under the fifth amendment to the United States constitution not to be compelled to testify against himself, (3) allowed cross-examination that was irrelevant and beyond the scope of direct examination, (4) convicted and sentenced the defendant in violation of the double jeopardy clause of the fifth amendment to the United States constitution, (5) improperly instructed the jury on issues of concurrency and unanimity, (6) should have set aside the conviction of rioting due to insufficient evidence, and (7) improperly instructed the jury on the charge of rioting. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was incarcerated in the segregation unit of the Somers correctional institution. On the morning of January 11, 1991, correction employees Moses Williams, John Pearson, Stewart Felton and Michael Rutkowski were on duty when the defendant returned to his cell unit.

When he reentered the segregation unit, the defendant proceeded to cell number seventy-eight where another inmate, Francis Anderson, was incarcerated. Anderson was a particularly dangerous inmate. While correction employees were attempting to cuff Anderson’s hands behind his back and shackle his feet, the defendant yelled “pop seventy-eight,” a term used to request a correction employee to open a cell. In response, a prison employee mistakenly heeded the defendant’s request. Anderson emerged from the cell unrestrained and proceeded toward a staircase. He ignored repeated orders to return to his cell.

Pearson sought to restrain the defendant, but the defendant was unwilling to cooperate and obey orders. Pearson was concerned that the defendant posed a greater threat than did Anderson. As the defendant began to walk away, he asked Anderson to assault a correction employee in exchange for $200 in cash. Anderson agreed and punched Pearson in the jaw. Anderson tried to strike Pearson again while several other employees attempted to restrain him. In the course of the scuffle, Anderson threw Williams from his back and struck Rutkowski. As a result of Anderson’s punch, Rutkowski sustained an injury to his forehead. Finally, with the help of the defendant, the officers regained control of Anderson and returned him to his cell.

After the jury returned a guilty verdict, the defendant filed a motion for judgment of acquittal. The court denied the motion, and this appeal ensued.

I

The defendant claims that the trial court improperly refused to strike the state’s substitute information or, alternatively, to grant the defendant a continuance. The defendant’s argument is predicated on the assertion that by bringing additional charges immediately before jury selection, the state prejudiced the defendant’s substantive rights. We disagree.

On May 7,1991, the state charged the defendant with four criminal offenses: two counts of conspiracy to assault a correction employee and two counts of conspiracy to commit second degree assault. On October 28, 1991, the day before jury selection, the state filed a substitute information that set forth three new charges: accessory to assault of a correction employee, accessory to second degree assault, and rioting.

Before jury selection, the defendant objected to the additional charges and sought a continuance. While defense counsel stated to the court that the added counts would affect his questioning of potential jurors, he did not specify at any time how the new charges would affect the voir dire. The court overruled the defendant’s objection and noted an exception to the ruling. The state called its first witness seven days later.

“[F]or purposes of Practice Book §§ 623 and 624, a criminal trial begins with the voir dire of the prospective jurors.” State v. Cole, 8 Conn. App. 545, 551-52, 513 A.2d 752 (1986). Before the commencement of a criminal trial, § 623 controls the alteration of charges brought against a criminal defendant. This section provides that “[i]f the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information. Upon motion of the defendant, the judicial authority, in [its] discretion, may strike the amendment or added counts or substitute information, if the trial or the cause would be unduly delayed or the substantive rights of the defendant would be prejudiced.” (Emphasis added.) Practice Book § 623.

In this case, it is undisputed that the substitute information was filed prior to the commencement of the voir dire. Consequently, § 623 governed the trial court’s analysis. State v. Cole, supra. The critical question therefore is whether the substitute information prejudiced the defendant’s rights to the extent that the trial court abused its discretion when it chose not to strike the added counts or to grant the defendant a continuance.

In State v. Huff, 10 Conn. App. 330, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987), this court considered a similar issue in a virtually identical context. In Huff the state originally charged the defendant with robbery in the first degree. Id., 344. Immediately prior to the voir dire, however, the state filed a substitute information and added the charge of assault in the second degree. The defendant moved to strike the added count or, alternatively, for a one week continuance. The trial court denied both motions, and the presentation of evidence began two days later. Id., 346-47.

The issue before this court in Huff was whether the added charge prejudiced the defendant’s substantive rights. Id., 345. We held that it did not, reasoning that (1) the additional count involved the same “factual matrix” as the first count, (2) the defendant was able to prepare sufficiently for the trial on the basis of his access to police reports in the state’s attorney’s file, and (3) the defendant did not dispute the commission of the crime, but rather claimed that he was not involved. Id., 346.

In the present case, the trial court’s ruling is fully consistent with our decision in State v. Huff, supra, 344-47. Clearly, the added counts of accessorial liability and rioting arose out of the same factual matrix as the initial charges. Further, because the defendant at all times knew of the alleged facts underlying the added crimes and because he had notice of the added charges a full week prior to the commencement of the state’s case, we are convinced that the defendant had ample opportunity to prepare for trial. Moreover, the defendant never claimed that Anderson did not commit the assault of the correction employee. Instead, he claimed that he was not involved with the commission of the crime. We conclude that the sound reasoning of State v. Huff, supra, is equally applicable to the present case.

The defendant argues that the trial court’s decision impeded his ability to conduct a meaningful voir dire, especially since the new counts subjected him to significantly greater sentencing exposure. We reject this contention for several reasons. First, the defendant never explained to the trial court how the added counts would alter his questioning of the potential jurors. We noted in State v. Waterman, 7 Conn. App. 326, 334-35, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986), that the defendant must make a specific showing of prejudice to establish a violation of due process. Here, the defendant’s bare assertion of prejudice was not enough to establish a violation of due process.

Second, while it is true that the state did not officially apprise the defendant of the added charges until shortly before voir dire, the defendant had an opportunity to question the potential jurors on matters pertaining to the added charges during the voir dire. Additionally, we are aware that the state has broad authority to amend its charge prior to voir dire. State v. Cole, supra, 550. Indeed, § 623 of our rules of practice offers the state a vehicle through which to expose a defendant to greater criminal liability, provided that the state does not prejudice the defendant’s substantive rights.

We conclude that, in light of State v. Huff, supra, the added criminal charges did not prejudice the defendant’s substantive rights. The trial court acted within its discretion, and we will not substitute our judgment for that of the trial court. See Fisher v. Fisher, 28 Conn. App. 483, 487, 611 A.2d 440 (1992).

II

The defendant claims that his arraignment in the presence of the jury violated his constitutional right not to be compelled to testify against himself. We disagree.

On November 5, 1992, the trial court arraigned the defendant on the substitute information. First, the trial court swore in the jury. Then, the court clerk read each of the five counts of the substitute information. In the presence of the jury, the defendant indicated that he was pleading not guilty as to each count. The defendant now claims that this procedure violated his fifth amendment right not to be compelled to testify against himself.

As a threshold matter, we note that the defendant never raised this claim with the trial court. He now seeks to bypass this deficiency via the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In order to prevail on a claim of constitutional error that has not been adequately preserved at trial, the defendant must meet all of the following conditions: “(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.” Id., 239-40; State v. Plud, 30 Conn. App. 527, 536-37, 621 A.2d 1342 (1993). “We may, however, dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Plude, supra, 537.

Notwithstanding the defendant’s invocation of the fifth amendment, the defendant’s claim does not implicate a clear constitutional right. The fifth amendment to the United States constitution provides that no person “shall be compelled in any criminal case to be a witness against himself . . . .” (Emphasis added.)

In this case, the record is devoid of any indication that the defendant was compelled to enter a plea of not guilty in the presence of the jury. With the advice of counsel, the defendant could well have chosen not to answer the question or asked his attorney to enter the plea of not guilty on his behalf. Moreover, the defendant’s plea of not guilty in this fashion may have served a tactical purpose in allowing the jury to observe him deny the commission of the crimes. While we do not approve of the plea process at issue in this case, we conclude that the defendant cannot prevail under State v. Golding, supra.

Ill

The defendant next claims that the trial court improperly allowed cross-examination that was irrelevant and beyond the scope of direct examination. We disagree.

Robert Carra, an inmate account supervisor at the Somers correctional institution, testified as a witness for the defense. On direct examination, he explained that in 1991, the defendant had not transferred any funds to Anderson. Further, according to Carra, the defendant’s account did not exceed $117.78 in that year. Carra also testified that, within the correctional facility, cash is considered contraband and accordingly is subject to confiscation.

On cross-examination, the state elicited testimony regarding other forms of contraband at the prison. For example, Carra testified that drugs, liquor and weapons are considered contraband and are present at the prison. The defendant objected to this line of inquiry as beyond the scope of direct examination and immaterial to the issues at trial. In response, the state argued that it was attempting to rebut the suggestion on direct examination that the defendant did not have the means to pay Anderson for the assault. The trial court overruled the objection.

We initially note that our review of a trial court’s evidentiary ruling is limited. “ ‘Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.’ ” State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990). In considering whether the trial court abused its discretion, “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness . . . .” Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979).

It is well settled that the scope of cross-examination is limited to matters covered in the direct examination, except as they involve credibility. State v. Ireland, 218 Conn. 447, 590 A.2d 106 (1991). “The court has wide discretion to determine the scope of cross-examination.” State v. Hernandez, 224 Conn. 196, 208, 618 A.2d 494 (1992). A question is within the scope of the direct examination if it is intended to “rebut, impeach, modify or explain any of the defendant’s direct testimony . . . .” State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977). “Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject.” State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986); see also State v. Hernandez, supra, 206.

In the present case, the trial court reasonably concluded that the state’s cross-examination of Carra was appropriate. Defense counsel elicited from Carra evidence that the defendant did not have sufficient funds in his account to pay Anderson for the assault. Carra’s testimony further established that prison officials regarded cash in the possession of inmates as contraband. Through cross-examination, the state sought to rebut the effect of this evidence by eliciting evidence that inmates possessed other forms of contraband. This evidence was offered for the purpose of creating the inference that the defendant could have offered cash or other forms of contraband to Anderson in lieu of a payment from his account. We conclude that the trial court acted within its discretion in allowing the state to pursue this line of inquiry.

IV

The defendant next claims that his punishment for assault of an employee of the department of correction and second degree assault violates the double jeopardy clause of the fifth amendment to the United States constitution. We disagree.

The defendant did not raise his claim of double jeopardy with the trial court, but seeks this court’s review under the doctrine of State v. Golding, supra. Our Supreme Court has held that double jeopardy claims arising in the course of a single trial and raised for the first time on appeal are re viewable. State v. Chicano, 216 Conn. 699, 705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). Accordingly, we consider whether the convictions at issue are the same offense for double jeopardy purposes.

The double jeopardy clause of the fifth amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The fifth amendment thus prohibits multiple punishments for the same offense in the same trial. State v. Anderson, 212 Conn. 31, 34-35, 561 A.2d-897 (1989); State v. Raymond, 30 Conn. App. 606, 608-609, 621 A.2d 755 (1993); see also Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).

When a defendant alleges multiple punishment for the same offense, he bears the burden of demonstrating (1) that the charges arise out of the same act or transaction and (2) that the crimes are the same offense. State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988); State v. Raymond, supra, 609. The defendant must satisfy both of these conditions. Because there is no dispute in this case that the charges arose out of the same transaction, the sole issue is whether the crimes constitute the same offense. See State v. Raymond, supra.

Our courts have repeatedly invoked the test in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), to decide whether two offenses constitute the same offense for double jeopardy purposes. State v. Chicano, supra, 706-707; State v. Raymond, supra; State v. Nita, 27 Conn. App. 103, 114-15, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329 (1992). The inquiry under Blockburger involves a comparison of the elements of the two offenses. If the comparison reveals that each crime contains an element not found in the other, the defendant may be convicted of both crimes arising out of the same criminal incident. State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990); State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983); State v. Nita, supra, 115. “We determine whether each crime contains an element not found in the other by examining only the relevant statute, the information and the bill of particulars, and not the evidence presented at trial. . . .” (Citations omitted; internal quotation marks omitted.) State v. Nita, supra.

In the present case, each of the crimes of assault of a department of correction employee and assault in the second degree contains an element that the other does not. A comparison of the intent elements of these crimes reveals a critical difference between the two statutes. An assault of an employee of the department of correction under § 53a-167c (a) (1) occurs when (1) a person intends to prevent a reasonably identifiable employee of the department of correction from performing his duty and (2) the person causes physical injury to a correction employee. Intent to cause physical injury is not a prerequisite to culpability under this statute. Thus, for example, if a person restrains a reasonably identifiable correction employee and intends to interfere with the performance of the employee’s duty, any resulting injury to that employee, whether intentional or otherwise, would give rise to a violation of § 53a-167c (a) (1).

By contrast, assault in the second degree under § 53a-60 (a) (5) occurs when a person “with intent to cause physical injury to an employee of the department of correction . . . causes physical injury to such employee.” (Emphasis added.) Under this statute, if a person restrains a correction employee, any resulting injury to that employee will not give rise to criminal liability unless the person intended to cause injury.

In short, § 53a-167c (a) (1) requires intent to interfere with a correction employee, while § 53a-60a (5) does not. At the same time, § 53a-60 (a) (5) requires intent to cause physical injury, an element not incorporated into § 53a-167c (a) (1). It is clear that each crime contains an element not found in the other. We therefore presume that the legislature intended the two crimes to warrant distinct punishments.

Relying by analogy on State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988), the defendant argues that we cannot presume that the legislature intended to treat assault of a correction employee and assault in the second degree as separate offenses under the Blockburger test. In Flynn, we held that General Statutes §§ 53a-167a (a) and 53a-167c (a) (1) and (2) are the same offense for double jeopardy purposes. The court reasoned that “a person could not commit the greater offense of assault on a peace officer without having committed the lesser offense of interfering with a peace officer.” Id., 19.

In this case, we are presented with an entirely different scenario. A person can commit assault of a correction employee, the greater offense, without committing assault in the second degree, the lesser offense. For example, a person is guilty under § 53a-167c (a) (1) if he intends to prevent a reasonably identifiable correction employee from performing his duty and, in doing so, causes injury to the employee. Under the same circumstances, however, the person may not be in violation of § 53a-60 (a) (5) unless he intended to cause the injury. We conclude that the defendant’s reliance on State v. Flynn, supra, is misplaced.

“Our analysis does not end here, however. The Block-burger test is a rule of statutory construction and its application does not result in a conclusive presumption.” State v. Russell, 25 Conn. App. 243, 251, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991). Clear legislative intent may indicate that the two crimes are to be treated as one for double jeopardy purposes and thereby rebut the presumption under Blockburger. Id.

In this case, the intricate historical discussion offered by the defendant is ultimately inconclusive with regard to the intent of the legislature. The defendant relies on the following legislative history. Prior to 1971, General Statutes § 53-16a made it an offense to assault a correction employee. In 1971, the legislature enacted Public Acts 1971, No. 871, § 18, which was codified as General Statutes (Rev. to 1973) § 53a-60 and which superseded § 53-16a. In its original form, § 53a-60 set forth two provisions for penalizing acts by inmates that result in injuries to correction employees. First, under subdivision (3), a person was guilty of assault in the second degree when with the intent to prevent a peace officer from performing his duty, that person caused physical injury to the peace officer. Second, under subdivision (6), a person committed second degree assault when he intentionally injured a correction employee.

In 1973, the legislature deleted subdivision (3) and incorporated its language into a new statute, General Statutes § 53a-167c (a) (1). See Public Acts 1973, No. 73-639, § 19. In doing so, the legislature upgraded the offense from a class D to a class C felony. The legislature, however, did not eliminate subdivision (6) of General Statutes (Rev. to 1973) § 53a-60. This subdivision instead became subdivision (5) when subdivision (3) was deleted.

In 1990, the legislature brought § 53a-167c to its current form. It added “employee of the department of correction” and subsection (b) to the statute. Subsection (b) requires, “[i]f any person who is confined in an institution or facility of the department of correction is sentenced to a term of imprisonment for assault of an employee of the department of correction under this section, such term shall run consecutively to the term for which the person was serving at the time of the assault.”

The defendant argues that in light of the history underlying §§ 53a-60 (a) (5) and 53a-167c (a) (1), the legislature clearly intended to upgrade all prisoner assaults on correction employees to class C felonies and to mandate consecutive sentences. Thus, the legislature intended to treat the two offenses as one for double jeopardy purposes. This argument is tantamount to claiming that the legislature’s failure to delete § 53a-60 (a) (6) in 1973 was an oversight — a proposition that we find unpersuasive.

The legislature created § 53a-167c using language from the 1973 version of § 53a-60. The legislature enacted § 53a-167c (a) (1), knowing full well that § 53a-60 (6) would exist as a separate provision for assault of a correction employee. It is a basic tenet of statutory construction that the legislature acts with full knowledge of existing statutes and that it intends to create one body of law. Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989); Housing Authority v. Olesen, 31 Conn. App. 359, 365, 624 A.2d 920 (1993). That rule is particularly applicable where, as here, one statute is derivative of another.

We conclude that the defendant’s historical analysis has not established a clear legislative intent to treat §§ 53a-167c (a) (1) and 53a-60 (5) as one offense for double jeopardy purposes. Having failed to rebut the presumption under Blockburger, the defendant cannot prevail on his double jeopardy claim.

Y

The defendant next argues that the trial court, in its instructions to the jury, failed to explain the constitutional requirements of concurrency and unanimity. This claim is directed to the counts of assault of a correction employee and assault in the second degree.

A

We first address the defendant’s argument that the trial court was required to instruct the jury on concurrency. The issue is whether §§ 53a-60 (a) (5) and 53a-167c (a) (1) require the actual victim to be the object of the defendant’s intent. The defendant never raised this claim with the trial court. Nevertheless, even when reviewed under the doctrine of State v. Golding, supra, the defendant’s claim does not withstand analysis because it is clear that the argument rests on a faulty premise — -a misinterpretation of these two statutes.

A defendant commits the offenses of assault of a correction employee and assault in the second degree when, with the intent to prevent an employee from performing his duties or with the intent to injure an employee, the defendant causes injury to such employee. General Statutes §§ 53a-167c (a) (1) and 53a-60 (a) (5). Relying on the legislature’s use of “such,” the defendant argues that these statutes impose criminal liability only if the victim is the specific person with whom the defendant intended to interfere or injure. We disagree.

The legislature’s use of “such” in a given statute does not necessarily parallel the dictionary definition of this word; instead we construe the word “such” to effectuate the intent of the legislature. Nichols v. Warren, 209 Conn. 191, 197, 550 A.2d 309 (1988); Verrastro v. Sivertsen, 188 Conn. 213, 221 n.7, 448 A.2d 1344 (1982); Bahre v. Hogbloom, 162 Conn. 549, 556, 295 A.2d 547 (1972). Here, it is obvious from the language of both statutes that the legislature has sought to circumscribe punishment for an inmate who inflicts harm on a correction employee when the inmate intended either to prevent a correction employee from performing his duty, § 53a-167c (a) (1), or to injure a correction employee, § 53a-60 (a) (5). Therefore, the legislature’s use of “such” refers to the requirement that the victim be a correction employee, but not necessarily the specific employee to whom the defendant directed his intent.

Under the defendant’s interpretation of §§ 53a-167c (a) (1) and 53a-60 (a) (5), an inmate who attempts to injure one correction employee but instead harms another employee has not violated either statute. This result would entirely undercut the clear intent of the legislature. Under the foregoing scenario, the inmate has performed an act that the legislature sought to proscribe through §§ 53a-167c (a) (1) and 53a-60 (a) (5), namely, the injury of a correction employee.

We hold that the use of “such” in § 53a-167c (a) (1) does not relieve a defendant of criminal liability if, with the intent to prevent a reasonably identifiable correction employee from performing his duty, the defendant causes physical injury to a correction employee. Similarly, under § 53a-60 (a) (5), a person is guilty of assault in the second degree if that person, with the intent to injure a correction employee, injures a correction employee. It follows that the trial court’s failure to instruct the jury in accordance with the defendant’s interpretation of these statutes was not improper. To hold otherwise would be to allow a defendant to escape liability because fortuitously he injured one correction employee and not another, even though he possessed the requisite intent under each statute.

B

In a related claim, the defendant asserts that the trial court did not adequately instruct the jury on the requirement of unanimity. The defendant’s claim is predicated on his concern that the jury may not have agreed on (1) which officer the defendant intended Anderson to assault and (2) whether the victim of the assault was the specific correction employee that the defendant intended Anderson to assault. According to the defendant, an adequate jury instruction explaining the requirements of unanimity would have alleviated this purported constitutional infirmity.

In instructing the jury, the trial court repeatedly explained that the jury’s verdict had to be unanimous. For example, the court stated, “[Y]our verdict must be unanimous and you must all agree and you must be unanimous and that is the requirement of the law. . . . I now instruct you that your verdict must be unanimous.” When the jury returned a verdict of guilty on all counts, the court clerk asked, “Ladies and gentleman, and each of you do say unanimously that the accused is guilty of the crime of assault on a corrections officer, second count; this is your verdict say you allT’ (Emphasis added.) The jurors responded, “Yes.” The jury responded similarly to the court clerk’s question regarding the guilty verdict for assault in the second degree.

We initially note that the defendant neither filed a request to charge nor objected to the court’s instructions with respect to the issue of unanimity. The defendant, however, asserts that his claim is renewable under the doctrine of State v. Golding, supra, because it calls into question the fairness of the trial.

In recent years, our Supreme Court has delineated a test for determining the necessity of a unanimity charge. State v. Reddick, 224 Conn. 445, 453-54, 619 A.2d 453 (1993); State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991); State v. Anderson, 211 Conn. 18, 35, 557 A.2d 917 (1989). “We first review the instruction that was given to determine whether the trial court has sanctioned a nonunanimous verdict. If such an instruction has not been given, that ends the matter. Even if the instructions at trial can be read to have sanctioned such a nonunanimous verdict, however, we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” (Emphasis added.) State v. Famiglietti, supra.

In the present case, the jury instructions are devoid of any indication that the trial court expressly sanctioned a nonunanimous verdict — quite the contrary. The jury charge is replete with statements underscoring the requirement that the jury return a unanimous verdict. While the trial court never specifically required the jurors to agree on whom the defendant intended Anderson to assault or whether the victims were the objects of the defendant’s intent, we cannot interpret the court’s silence as sanctioning a nonunanimous verdict.

Having determined that the court never expressly sanctioned a nonunanimous verdict, our analysis of the defendant’s claim does not proceed further. “[T]he court must inquire into the conceptual distinction between the alternative acts charged, and whether the state had presented evidence to support each alternative act, only if the trial court expressly sanctioned a nonunanimous verdict.” (Emphasis in original.) State v. Reddick, supra, 454, citing, State v. Anderson, supra. We conclude that the trial court’s instructions were not fundamentally unfair to the defendant and that the defendant accordingly cannot prevail under the bypass of State v. Golding, supra.

VI

The defendant also claims that the evidence is insufficient to sustain the judgment of conviction of rioting at a correctional institution. The thrust of the defendant’s position is that because only two persons were involved in the assault of the correction employees, the defendant could not be convicted under General Statutes § 53a-179b. We disagree.

Having failed to raise this claim with the trial court, the defendant seeks appellate review under State v. Golding, supra. It is axiomatic that “|w]hen the record substantiates the fact that the state has not proved every element of the crime with which the defendant has been charged, Evansf-Golding] review is warranted.” State v. Aleksiewicz, 20 Conn. App. 643, 645 n.1, 569 A.2d 567 (1990). We thus consider whether the state has proved beyond a reasonable doubt that the defendant violated § 53a-179b.

Pursuant to § 53a-179b, a “person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” “In order for a defendant to be found guilty of rioting at a correctional institution, he must plan or lead, or take part in the disturbance at the correctional institution.” State v. Rivera, 30 Conn. App. 224, 232, 619 A.2d 1146 (1993).

In this case, the defendant seeks to engraft upon the statute the common law definition of rioting. Relying on 2 Z. Swift, A System of the Laws of the State of Connecticut (1796), pp. 339-40, the defendant argues that our modern rioting statute should be construed as requiring a minimum of three participants. By its express terms, however, our statute is not limited to the defendant’s proposed construction. Instead, § 53a-179b subjects to criminal punishment a person who plans or leads a disturbance, disorder or riot at a correctional facility, irrespective of the number of participants.

In developing Connecticut’s criminal code, the legislature has promulgated provisions with numerical prerequisites to liability. See, e.g., General Statutes § 53a-175 (first degree riot); General Statutes § 53a-176 (second degree riot); General Statutes § 53a-177 (unlawful assembly). Section 53a-179b, however, does not include a requirement of this kind. As previously stated, the legislature is presumed to act with knowledge of other statutory provisions, particularly those related to the statute in question. Kinney v. State, supra; Housing Authority v. Olesen, supra. The absence of a numerical requirement in § 53a-179b thus reveals the legislature’s intent not to restrict the offense of rioting at a correctional institution by specifying a particular number of participants. We conclude that the record substantiates the judgment of conviction under § 53a-179b, despite the state’s failure to offer evidence indicating a third participant in the offense.

The defendant also claims that “organized disobedience with the rules and regulations of [the] correctional institution” is an element of the offense under § 53a-179b. According to the defendant, the state failed to offer evidence establishing this purported element of the crime, thereby failing to prove a violation of the statute. This argument assumes that the phrase “other organized disobedience to the rules and regulations of [the correctional] institution” modifies “disorder,” “disturbance,” “strike” and “riot.” The language of the statute, however, does not support the defendant’s interpretation.

A person is guilty of rioting at a correctional institution if he or she leads, plans or participates in a “disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.” (Emphasis added.) General Statutes § 53a-179b. Phrased in the disjunctive, the statute proscribes alternatively organized disobedience to the rules of the correctional institution. The statute does not require disobedience of the rules as an element of the offense in all instances. We therefore conclude that the defendant cannot prevail under Golding because the record substantiates the fact that the state has proved every element of § 53a-179b.

VII

The defendant’s final claim is that the trial court improperly instructed the jury on the offense of rioting at a correctional institution. In challenging the trial court’s instructions, the defendant points to the court’s failure to explain adequately (1) the definition of disorder and disturbance and (2) the meaning of specific intent. The defendant’s arguments in this regard are not persuasive.

The defendant again seeks review under State v. Golding, supra, claiming that the failure to charge on an essential element of a crime is a constitutional defect. See State v. Tweedy, 219 Conn. 489, 510-11, 594 A.2d 906 (1991); State v. Hamilton, 30 Conn. App. 68, 74, 618 A.2d 1372, cert. granted, 225 Conn. 910, 621 A.2d 290 (1993). In deciding if the defendant can prevail under Golding, “the test is whether it is reasonably possible that the jury was misled.” State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988). “We do not evaluate a contested portion of an instruction in artificial isolation from the overall charge. [State v. Quintana, supra]. Instead, we examine the charge in its entirety. State v. Hopkins, 222 Conn. 117, 130, 609 A.2d 236 (1992); State v. Grullon, 212 Conn. 195, 204, 562 A.2d 481 (1989).” State v. Channer, 28 Conn. App. 161, 171-72, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992).

The defendant’s claim of instructional error with respect to the definition of disorder or disturbance is predicated on the same argument that we rejected in part VI of this opinion, namely, that rioting under § 53a-179b requires a minimum of three participants. For the reasons stated in part VI of this opinion, we conclude that it is not reasonably possible that the trial court’s discussion of disorder and disturbance misled the jury.

We also reject the defendant’s assertion that the trial court failed to instruct the jury adequately that specific intent to cause a disorder or disturbance is an essential element of § 53a-179b. In deciding whether a criminal statute requires general or specific intent, our Supreme Court regularly has invoked the following distinction. “When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent. State v. Shine, 193 Conn. 632, 638, 479 A.2d 218 (1984), quoting State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971); State v. Pascucci, 164 Conn. 69, 74, 316 A.2d 750 (1972); State v. Husser, 161 Conn. 513, 515, 290 A.2d 336 (1971); 21 Am. Jur. 2d, Criminal Law, §§89 through 91.” (Emphasis added; internal quotation marks omitted.) State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988).

In State v. Pascucci, supra, our Supreme Court considered whether inciting to riot at a correctional institution is a specific intent crime. The statute at issue in Pascucci, General Statutes (Rev. to 1968) § 53-167a, punished “any person who incites, instigates, organizes, connives at, causes, aids, abets or takes part in any disorder, disturbance or other organized disobedience to the rules and regulations of the institution.” This statute was the predecessor to General Statutes § 53a-179c (inciting to riot at a correctional institution) and contains essentially the same language as the rioting statute at issue in the present case.

The court in Pascucci rejected the defendant’s claim that inciting to riot at a correctional institution is a specific intent crime. Id., 73-75. The court first noted that the statute made no reference to a specific intent requirement. Id., 73. From a policy standpoint, the court reasoned that “[t]he dangers which the statute seeks to obviate could arise from acts which, although in no way intended to produce danger, readily could give rise to disorder, disturbance, strike or riot . . . .’’Id.

Applied to the present case, the decision in Pascucci militates against the defendant’s claim of instructional error. The statute at issue in Pascucci is essentially the same as the statute now in question. The offense of rioting at a correctional institution does not expressly provide for any particular scienter requirement. Moreover, the same policy rationale articulated in Pascucci applies to § 53a-179b. In light oí Pascucci, it is clear that rioting at a correctional institution is not a specific intent crime. We conclude that it was not reasonably possible that any failure by the trial court to explain the meaning of specific intent misled the jury. The defendant accordingly cannot prevail under State v. Golding, supra.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167e (a) (1) provides in pertinent part: “A person is guilty of assault of a . . . employee of the department of correction when, with intent to prevent a reasonably identifiable . . . employee of the department of correction from performing his duty, and while such . . . employee is acting in the performance of his duties, (1) he causes physical injury to such . . . employee . . .

       General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when ... (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction . . . and with intent to cause physical injury to an employee of the department of correction ... he causes physical injury to such employee or member.”

       General Statutes § 53a-179b (a) provides: “A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.”

       In addition, the defendant raises this claim under the state constitution. Because he does not offer a separate analysis of the state constitution, however, we will not review this aspect of the claim. State v. Campbell, 224 Conn. 168, 181 n.10, 12, 617 A.2d 889 (1992).

       In addition, the defendant raises this claim under the state constitution. Because he does not offer a separate analysis of the state constitution, however, we will not review this aspect of the claim. See footnote 4, supra.

       According to the testimony of Williams, the defendant told Anderson, “I’ll give you $200 if you trash this white hoy.” Felton testified that the defendant told Anderson, “I’ll give you $200 to hit that CO Pearson, Rutkowski.”

       The trial court set aside the verdict of guilty of conspiracy to commit second degree assault.

       The defendant represented that he did not receive the substitute information until the morning of October 29,1991, just before the commencement of jury selection. With respect to the rioting count, the state represented to the court, “I notified [the defendant] prior to even the start of this trial that we were going to proceed on the rioting count.”

       The substitute information included only two of the four original conspiracy counts. The net effect of the change was to bring five instead of four counts against the defendant. In terms of the sentences accompanying the new charges, however, the state increased the defendant’s exposure by thirty-five years.

       The defendant never contested the fact that Anderson hit two correction officers. Defense counsel stated in closing argument that “there’s really no question, there’s really not an issue as to whether Mr. Anderson hit Officer Pearson and there’s no question that he hit Rutkowski.”

       We assume without deciding that the defendant’s plea of not guilty before the jury was testimonial in nature.

       See discussion in part I of this opinion regarding the analysis under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

       When General Statutes § 53a-60 was originally enacted, “peace officer” was defined to include correction employee.

       We further note that our interpretation of General Statutes §§ 53a-167c (a) (1) and 53a-60 (a) (5) mirrors the doctrine of transferred intent, a doctrine applicable to both civil and criminal cases. Altieri v. Colasso, 168 Conn. 329, 334 n.4, 362 A.2d 798 (1975); see also General Statutes § 53a-4 (providing that criminal code does not displace other principles of criminal law not statutorily circumscribed).

       After the trial court’s initial charge to the jury, the defendant requested the trial court to emphasize that the verdict be unanimous. The trial court had in fact instructed on unanimity generally, but neither the trial court nor the parties could recall the court’s doing so. The defendant never mentioned the claims that it now asserts, namely, that the trial court must specifically instruct on unanimity to ensure concurrency. The trial court, therefore, called the jury back to the courtroom and instructed it to return a unanimous verdict. It is clear, that the defendant has not preserved the claims he now raises.

       See discussion in part I of this opinion regarding the analysis under Golding.

       See discussion in part I of this opinion regarding the analysis under Golding.

       See discussion in part I of this opinion regarding the analysis under Golding.


source: Caselaw Access Project

author: Foti, J. Schaller, J., dissenting.

license: Public Domain

text:
    George M. Capozzi v. Liberty Mutual Fire Insurance Company
    (11477)
    Foti, Landau and Schaller, Js.

      Argued February 16
    decision released August 3, 1993

      William I. Garfinkel, with whom, on the brief, was Garrett M. Moore, for the appellant (plaintiff).

      James E. Keman, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the decision of the trial court confirming an arbitration award in favor of the defendant. The plaintiff claims that the court improperly (1) concluded that he had waived the issue of untimeliness and (2) affirmed the arbitrators’ finding that he was not operating a replacement vehicle when he was injured. We affirm the judgment of the trial court.

The pertinent facts are as follows. On June 10,1988, the plaintiff was injured in an accident with an uninsured motorist. At the time, he had two separate policies of insurance with the defendant. One policy insured a 1980 Honda automobile; the other was purchased to insure a 1985 Honda motorcycle. Each policy excluded uninsured motorist coverage for injuries sustained in an uninsured vehicle that is owned by the injured party. At the time of the accident, the plaintiff was driving a 1986 Suzuki motorcycle. Whether the Suzuki was uninsured for the purposes of the uninsured motorist exclusion is determined by the policy provisions that defined the insured vehicle to include “any miscellaneous type vehicle of the same type shown in this Schedule or Declarations.” The provision stated that it would apply to another vehicle “only if: a. you acquire a vehicle during the policy period; b. you ask us to insure it within 30 days after you become the owner; and c. With respect to a pickup or van, no other insurance policy provides coverage for that vehicle. If the vehicle you acquire replaces one of the same type shown in the Schedule or in the Declarations, it will have the same coverage as the vehicle it replaced. . . .”

The plaintiff purchased the Suzuki motorcycle on May 2,1988, and took possession of it on June 4,1988. He continued to operate the Honda motorcycle sporadically after May 2, 1988, and before the accident of June 10, 1988. On September 8, 1988, the plaintiff informed the defendant that he had acquired the Suzuki. At no time before the accident did the plaintiff notify the defendant that he had acquired the Suzuki or that he was removing the Honda motorcycle from service. Following the accident, the plaintiff brought a claim for uninsured motorist benefits under his two policies of insurance with the defendant. The parties submitted the coverage issue to compulsory arbitration before a three person panel. By a two to one vote, the arbitrators found the issue for the defendant. The plaintiff then appealed to the Superior Court, which confirmed the majority arbitrators’ decision.

I

The plaintiff first claims that the arbitrators’ award must be vacated because it was not rendered within the time period allowed by General Statutes § 52-416, and the plaintiff had not agreed to the delay and had filed a timely motion to vacate the award. The following facts are necessary to resolve this issue.

The parties agreed to a bifurcated arbitration procedure by which the arbitrators would first decide the coverage issues and, if necessary, consider other issues at a later date. They asked the chairman of the arbitration panel to establish a briefing schedule, and requested a forty-five day period for initial simultaneous briefs and another fifteen days for reply briefs. The chairman of the panel thereafter set August 12,1991, for submission of briefs, and August 28,1991, for reply briefs. He further scheduled September 11, 1991, as the date of the arbitrators’ meeting, and notified both parties and the other panel members of the time and place. On July 3, 1991, the parties notified the chairman that they had agreed to a later date for the submission of their reply briefs, that date being September 6, 1991.

On September 6, 1991, the panel chairman notified the other panel members that the meeting scheduled for September 11, 1991, had to be cancelled because of conflicting trial schedules of two arbitrators; a revised meeting date of October 7, 1991, was suggested. Both parties were sent copies of the chairman’s September 6 letter. On September 10,1991, one of the arbitrators advised the panel that he was unavailable on October 7; he suggested a meeting for one of the following two Mondays. Both parties received copies of this correspondence, as well.

On November 18, 1991, the arbitrators met and reviewed evidence consisting of the two insurance policies and the plaintiff’s deposition. They also considered the briefs submitted by the parties. A majority opinion, dated November 18,1991, was sent to the parties on or about November 27,1991. The dissent carries the date of December 6, 1991.

The plaintiff claims that the statutory deadline of thirty days, mandated by General Statutes § 52-416, ran from the date set for submission of the parties’ reply briefs. He argues that the arbitrators did not render the award for more than two months after receiving the reply briefs. The defendant argues alternatively that (1) the award was timely rendered because the hearing took place on November 18,1991, (2) the plaintiff failed to file his application to vacate the award on this basis within thirty days of the notice as required by General Statutes § 52-420, and (3) the plaintiff, by his conduct, waived the requirements of General Statutes § 52-416. The trial court concluded that the plaintiff had waived any right to object to the untimeliness of the award. We agree.

General Statutes § 52-416 requires that the rendering of an arbitration award and notification of the award both be given within the thirty day period from the date the hearing or hearings are completed. Hayes v. Travelers Indemnity Co., 26 Conn. App. 418, 421, 601 A.2d 555 (1992). In Hayes, there was “no indication that the parties waived the thirty day . . . period.” Id., 423. Here, on the other hand, the trial court found that there was such an indication. The trial court found that when the parties extended the time for filing their reply briefs with the arbitrators, they also extended the thirty day period for rendering a decision to October 7, 1991. Thereafter, the parties knew, through receipt of copies of various communications, that the arbitrators would not be meeting until an undetermined date after October 7, 1991.

Both parties clearly knew, through counsel, that the arbitrators were attempting to choose a meeting time and date acceptable to all three of them, that the arbitrators had not met within thirty days of the submission of the reply briefs and that, at the time of the last correspondence, the thirty days, if counted from the date the reply briefs were due, had already transpired. During this period, the plaintiff raised no objection on the basis of timeliness. Instead, he waited to determine whether the decision was favorable before raising such an objection. Our Supreme Court has “made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967). This same principle has been applied in the arbitration context, where the court has held that a plaintiffs failure to raise the issue of timeliness prior to the issuance of an arbitration award operates as a waiver of the right to assert the award’s lack of timeliness. AFSCME v. New Britain, 206 Conn. 465, 468, 538 A.2d 1022 (1988). In Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 554, 560 A.2d 419 (1989), the court rejected the plaintiff’s belated objection to the timeliness of an award, stating adamantly that it would not reward such conduct where the plaintiff attempted “to manipulate the arbitration process by reserving objection until after the announcement of the arbitral award. . . .”

In this case, neither party objected to the arbitrators’ delayed meetings; the parties manifested an agreement that the award would be delayed. “The party challenging an arbitration award . . . bears the burden of demonstrating that the award violates the parties’ agreement.” Hartford v. IAFF, Local 760, AFL-CIO, CLC, 24 Conn. App. 254, 257, 587 A.2d 435 (1991). Waiver is a question of fact; New York Annual Conference v. Fisher, 182 Conn. 272, 300, 438 A.2d 62 (1980); and we will not disturb the trial court’s factual findings unless they are clearly erroneous. Naftzger v. Naftzger & Kuhe, Inc., 26 Conn. App. 521, 526, 602 A.2d 606 (1992).

Because the trial court properly found that the parties had waived any right to object to the untimeliness of the award, we need not address the defendant’s alternative arguments.

II

The plaintiff next claims that the trial court improperly affirmed the arbitrators’ conclusion that at the time of the accident the plaintiff was not operating a “replacement vehicle” and therefore was not covered by the uninsured motorist provisions of the policies issued by the defendant.

The trial court properly concluded that the determination of whether the plaintiff was operating a replacement vehicle as defined by the provisions of an automobile insurance policy involves more than factual issues; it also involves a question of law requiring the interpretation of provisions of the policy. The court therefore properly conducted a de novo review. Chmie-lewski v. Aetna Casualty & Surety Co., 218 Conn. 646, 667, 591 A.2d 101 (1991); Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 576, 609 A.2d 1008 (1992), aff’d, 225 Conn. 257, 622 A.2d 572 (1993). After examining cases from other jurisdictions, the trial court identified two approaches to the definition of replacement vehicle. The first, the “formalistic” approach, requires that the vehicle described in the policy be disposed of or otherwise rendered inoperable at the time of the replacement. The second, “alternative” approach, looks to the insured’s intent and conduct in the totality of the circumstances to determine if the newly acquired vehicle is a replacement vehicle. The trial court assumed that this alternative approach prevails in Connecticut. The court then concluded that even under this more liberal approach, the plaintiff was properly denied coverage because the arbitrators’ factual findings were supported by substantial evidence.

Under the alternative approach adopted by the trial court, the insured’s intent is an important factor in determining whether a newly acquired vehicle is a replacement vehicle. Under the facts of this case, intent must be determined as of June 4, 1988, the date the plaintiff took possession of the Suzuki motorcycle, not May 2, 1988, the date he purchased the vehicle.

The issue to be determined is whether the trial court properly concluded that there was substantial evidence supporting the arbitrators’ finding that it was not the plaintiff’s intent as of June 4, 1988, that the Suzuki, rather than the Honda motorcycle, should be the insured vehicle. “The substantial evidence test in the context of arbitration requires that a court determine whether substantial evidence exists in the ‘record to support the arbitration panel’s findings of basic fact and whether the conclusions drawn from these facts are reasonable. . . . Substantial evidence will be found to exist if the . . . record supplies a substantial basis of fact from which the court reasonably can infer the fact in issue.’ ” Lawrence v. New Hampshire Ins. Co., 29 Conn. App. 484, 490, 616 A.2d 806, cert. denied, 224 Conn. 923, 618 A.2d 528 (1992).

“In its common usage, the term ‘replaced’ includes ‘substituted.’ See Webster’s Third New International Dictionary . . . .” (Citations omitted.) S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 319, 617 A.2d 1388 (1992). If the Suzuki did not “replace” the Honda motorcycle, then it was not covered for insurance purposes unless the plaintiff requested coverage within thirty days of becoming the owner. There is no claim that the plaintiff made such a request before his accident.

The record supports the arbitrators’ finding that the plaintiff did not intend to substitute the Suzuki for the Honda motorcycle. The deposition testimony of the plaintiff as to his use of the Honda was conflicting; he stated both that he rode the Honda throughout May and June of 1988 and that the vehicle was inoperable on the street. The arbitrators obviously resolved this factual conflict by determining that the plaintiff drove the Honda sporadically after May 2,1988, and before the accident. From this, they inferred “that it was not the [plaintiff’s] intent, as of May 2,1988, that the Suzuki, rather than the motorcycle he continued to drive, should be the insured vehicle.”

Although the arbitrators determined the plaintiff’s intent “as of May 2, 1988,” we do not view this finding as limited to that day alone. May 2,1988, is merely the starting point. The determination is that at no time, from May 2,1988, the date the plaintiff purchased the Suzuki, through June 10,1988, the date of the accident, did he intend to replace the Honda with the Suzuki. Because June 4, 1988, the date of possession of the Suzuki, falls within that time frame, any error resulting from the arbitrators’ use of the term “as of May 2, 1988” is harmless. The plaintiff’s sporadic use of the Honda motorcycle throughout May and June permits the conclusion that he did not intend to “replace” the Honda with the Suzuki, even after coming into possession of the Suzuki.

Intent is a question of fact for the trier. State v. Woh-ler, 30 Conn. App. 571, 577, 621 A.2d 751 (1992). We will not reverse the trier’s determination of intent unless the trier could not reasonably have arrived at the conclusion that it reached. Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 65, 485 A.2d 1296 (1985).

“Intention is a mental process, and of necessity it must be proved by the statements or actions of the person whose act is being scrutinized. ... A person’s intention is to be inferred from his conduct.” (Citations omitted.) State v. Patterson, 213 Conn. 708, 721, 570 A.2d 174 (1990). The plaintiff argues that he did not intend to continue operating the Honda motorcycle. There was, however, substantial evidence, from which reasonable inferences could be drawn, that permitted the arbitrators to reach a contrary conclusion as to the plaintiff’s intent.

The arbitrators, as fact finders, have the right to believe or disbelieve the evidence presented in whole or in part. See Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991); Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 640, 583 A.2d 906 (1990). On the basis of the evidence presented, the arbitrators reasonably concluded that it was not the plaintiffs intent to replace the Honda with the Suzuki motorcycle. The trial court therefore properly confirmed the arbitration award in favor of the defendant.

The judgment is affirmed.

In this opinion, Landau, J., concurred.

Schaller, J., dissenting.

I respectfully disagree with the result reached in part II of the majority opinion. There, the majority concludes that “the arbitrators reasonably concluded that it was not the plaintiffs intent to replace the Honda with the Suzuki motorcycle.” On that basis, the majority affirms the decision of the trial court which, itself, confirmed the decision of the two majority arbitrators on the ground that there was substantial evidence to support their finding concerning the plaintiff’s intent.

I agree with the majority that the issue in this case is whether the trial court properly concluded that substantial evidence supported the arbitrators’ finding that the plaintiff did not intend to replace the Honda with the Suzuki. It is important to note, however, that the arbitrators’ finding of intent is focused on the May 2, 1988 date at which time the plaintiff had not yet taken possession of the Suzuki.

While I believe that the majority has applied the correct standard in determining this issue, I strongly disagree that the record supports the arbitrators’ finding regardless of whether the May 2,1988 date or the correct June 4, 1988 date is used as the fulcrum for the determination. To the contrary, I believe the record thoroughly supports the plaintiffs position that he intended the Suzuki to be a replacement vehicle within the language of the insurance policy at issue.

I

It is well settled that “[bjecause it is the insurance company that has drafted the terms of the insurance policy, any ambiguity contained therein is traditionally construed against the insurer and in favor of insurance coverage.” S&S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., 224 Conn. 313, 320, 617 A.2d 1388 (1992); Kelly v. Figueiredo, 223 Conn. 31, 36-37, 610 A.2d 1296 (1992); Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 375, 593 A.2d 498 (1991); Beach v. Middlesex Mutual Assurance Co., 205 Conn. 246, 250, 532 A.2d 1297 (1987).

In the present case, it is critical to note that the insurance policy, which was prepared by the defendant, failed to provide any definition of what constitutes a replacement vehicle under the policy. While the policy language discusses generally the replacement of an insured vehicle, there is no specification of the duties and responsibilities of the insured concerning that event. Most certainly, there is no requirement in the policy that the originally insured vehicle must be disposed of or inoperable after a replacement vehicle is acquired by the insured.

II

An additional issue in this case is whether Connecticut recognizes the “formalistic” or “alternative” approach in defining “replacement vehicle.” In its memorandum of decision, the trial court examined case law from other jurisdictions in discussing the two existing approaches to the definition of replacement vehicle. That was necessary because neither this court nor our Supreme Court has adopted any test concerning that subject. The trial court assumed that the “alternative approach” applied and determined that, even under this more liberal approach, the plaintiffs case fails. The majority, while declining to adopt either approach, makes a similar assumption for purposes of this case.

I believe it is appropriate for this court to adopt expressly the more liberal, flexible “alternative approach” in determining whether a vehicle has been replaced. Numerous jurisdictions have adopted this approach as it clearly represents the fairest approach to this problem. See, e.g., Government Employees Ins. Co. v. Berry, 724 F. Sup. 872, 876 (D. Ala. 1989); Continental Ins. Co v. Entrikin, 9 Kan. App. 2d 384, 680 P.2d 913 (1984); Adams v. Covenant Security Ins. Co., 465 S.W.2d 32 (Mo. App. 1971); Filaseta v. Pennsylvania Threshermen & FarmersMutual Casualty Ins. Co., 209 Pa. Super. 322, 228 A.2d 18 (1967); Rowland v. State Farm Mutual Automobile Ins. Co., 9 Wash. App. 460, 512 P.2d 1129 (1973). The alternative approach is based on an examination of the totality of the circumstances to ascertain the intent of the insured. See, e.g., Government Employees Ins. Co. v. Berry, supra; Rowland v. State Farm Mutual Automobile Ins. Co., supra. By focusing on whether the insured intended a replacement, the alternative test operates to yield a fair interpretation of “replacement.”

From a policy standpoint, the formalistic approach serves the benefit of avoiding difficult ad hoc determinations regarding the intent of the insured. See Kelly v. State Farm Mutual Automobile Ins. Co., 256 F. Sup. 978, 981 (E.D. Tenn. 1966). The doctrine’s reliance on a limited number of formal criteria, however, may engender an inaccurate result. It seems clear, for example, that an insured should be able to prove that a replacement has occurred without first establishing that the vehicle is either inoperable or out of the insured’s possession as the formalistic approach would demand.

By contrast, the alternative approach, “is applied to the replacement clause to reach a usual and ordinary meaning of the word ‘replace’ — that is to provide or produce a substitute or equivalent in place of a person or thing.” Government Employees Ins. Co. v. Berry, supra. The flexible, intent-based Berry approach is premised on two traditional insurance doctrines. The first is that “courts should give the words in a contract the meaning they have in common, everyday usage— that is, the meaning probably held by the layperson who bought and paid for the policy.” Id., citing Rowland v. State Farm Mutual Automobile Ins. Co., supra. The second is that “where some doubt exists as to the proper construction of an insurance policy term, courts should resolve the doubt by interpreting the term favorably to the insured.” Government Employees Ins. Co. v. Berry, supra, citing Iowa National Mutual Ins. Co. v. McGhee, 292 F. Sup. 176, 181 (W.D.Va. 1968), aff’d, 408 F.2d 4 (4th Cir. 1969); see also S & S Tobacco & Candy Co. v. Greater New York Mutual Ins. Co., supra.

The purpose of the intent-based theory is to provide a flexible, common sense approach to determining the insured’s intent as to replacement under the circumstances of the particular case. Accordingly, in this case4 where the language of the policy is ambiguous with respect to the meaning of “replace,” the approach most likely to be fair and accurate is to ascertain from the totality of the circumstances whether the insured intended to replace the insured vehicle.

In the present case, as both the trial court and the majority indicated, the plaintiff’s intent must be determined as of June 4, 1988, the date when the plaintiff actually took possession of the Suzuki, rather than May 2, 1988, when he purchased it, since it is undisputed that the Suzuki was in a repair shop until June 4, 1988.

The only direct evidence of intent presented to the arbitrators was the insured’s own testimony that he intended to replace the Honda. The only other evidence relating to intent was circumstantial in nature and consisted of the insured’s testimony to the effect that he had driven the Honda after the purchase of the Suzuki and before the accident. On the basis of that testimony, the majority arbitrators found that “[t]he claimant admits that he drove the Honda at various times, although sporadically, after May 2,1988 and before the accident.” They further determined, on that basis, that “it was not the claimant’s intent, as of May 2, 1988, that the Suzuki, rather than the motorcycle he continued to drive, should be the insured vehicle.”

The arbitrators, of course, in focusing on the May 2 date, failed to address the crucial June 4, 1988, to June 10,1988 period. The testimony of the plaintiff on which that determination of the arbitrators was based did not indicate how often or under what circumstances the Honda was operated. More important is the absence of evidence that the Honda was operated after June 4, the date when the plaintiff took possession of the Suzuki, and before June 10, the date on which the accident occurred. Since the majority arbitrators erroneously used the May 2 date, rather than the June 4 date, as the starting point for the Suzuki use by the plaintiff, no reasonable inference can be drawn that the Honda was used during the period from June 4 to June 10. The majority arbitrators thus improperly relied on the sporadic use of the Honda at unspecified times prior to June 10 to conclude that the plaintiff continued to use the Honda after he took possession of the Suzuki.

Further, while there was testimony from the insured that he operated the Honda after the June 10 accident, that use can have no legitimate bearing on the issue concerning preaccident use. After June 10, the Suzuki was disabled and, because the policy imposed no requirement that the plaintiff dispose of his original vehicle, his subsequent use cannot fairly be interpreted to prejudice his position. The uncontroverted evidence indicated that, at the time the Suzuki was first possessed by the plaintiff, the Honda was essentially inoperable. While the plaintiff obviously was able to make some sporadic use of it at some unspecified times prior to the accident and then again for a time after the accident, the evidence before the arbitrators strongly militated toward a conclusion that the Suzuki was acquired to replace the Honda. In essence, the record provides no support for the majority arbitrators’ precise finding that “it was not the claimant’s intent, as of May 2, 1988, that the Suzuki, rather than the motorcycle he continued to drive, should be the insured vehicle.” (Emphasis added.)

The trial court, in my view, improperly sustained the decision of the majority arbitrators. Where the language in the insurance policy that was prepared and provided by the defendant insurer failed to provide any definition of replacement vehicle, or any guidelines for determining whether replacement had occurred, that policy language must be construed in the insured’s favor. Applying the intent-based approach to the facts of this case, I conclude that a fair interpretation of the evidence reveals unmistakably that the plaintiff effected a replacement of the Honda. I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent.

       An effective award may be rendered by a majority of the arbitrators. General Statutes § 52-414 (a).

       General Statutes § 52-416 provides: “(a) If the time within which an award is rendered has not been fixed in the arbitration agreement, the arbitrator or arbitrators or umpire shall render the award within thirty days from the date the hearing or hearings are completed, or,‘if the parties are to submit additional material after the hearing or hearings, thirty days from the date fixed by the arbitrator or arbitrators or umpire for the receipt of the material. An award made after that time shall have no legal effect unless the parties expressly extend the time in which the award may be made or by an extension or ratification in writing.
      “(b) The award shall be in writing and signed by the arbitrator or arbitrators, or a majority of them, or by the umpire. Written notice of the award shall be given to each party.”

       The plaintiff presents this timeliness issue as an alternative to his main argument. We address it first because it is a challenge to the arbitrators’ authority to render an award.

       While the parties had agreed to a revised date of September 6, 1991, for submission of reply briefs, the plaintiff actually submitted his brief on August 28, 1991, and the defendant submitted its brief on September 2, 1991.

       The plaintiff first raised Ms untimeliness claim in a reply brief he filed with the trial court on February 18,1992, approximately three months after the arbitrators’ award. The court agreed with the defendant that this issue was not timely raised pursuant to General Statutes § 52-420.

       General Statutes § 52-420 provides: “(b) No motion to vacate, modify or correct an award may be made after thirty days from the notice of the award to the party to the arbitration who makes the motion.”

       The court noted that “proceeding with arbitration without objection after knowledge the arbitrators will not render the award within the time provided constitutes a waiver of any objection pursuant to . . . AAA rules. . . . The American Arbitration Association, Commercial Arbitration Rules § 38 provides: ‘WAIVER OF RULES. Any party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state objection thereto in writing, shall be deemed to have waived the right to object.’ ” Diamond Fertiliser & Chemical Corporation v. Commodities Trading International Corporation, 211 Conn. 541, 553 n.8, 560 A.2d 419 (1989).

       The trial court relied on cases of our Supreme Court generally indicating that ambiguous conditions and provisions in an insurance policy should be afforded a liberal construction in favor of the insured. See, e.g., McGlinchey v. Aetna Casualty & Surety Co., 224 Conn. 133, 617 A.2d 445 (1992); Middlesex Ins. Co. v. Quinn, 27 Conn. App. 573, 609 A.2d 1008 (1992), aff’d, 225 Conn. 238, 622 A.2d 555 (1993). The court also relied on its conclusion that, under the facts, “the plaintiff could not recover under the ‘formalistic approach.’ ”

       At his deposition, the plaintiff was asked by the defendant’s counsel, “[D]id you drive [the Honda] throughout May and June 1988?” He stated, “Very sporadically. It wasn’t running — barely running, I should say.” When asked, “[D]id you drive it up until the time you sold it [in 1989],” he stated that he “stopped riding it shortly after the accident. . . .”
      Later, when asked by his attorney whether, on June 10,1988, the Honda was still running and if he was “able to use it on the street,” the plaintiff stated, “No, no. When I say running, it would start. . . .”
      The plaintiff also stated that between the time he took possession of the Suzuki on June 4 and the day of his accident on June 10, he did not ride the Suzuki.

       Although the arbitrators did not define the term “replace,” the trial court determined that under neither the “alternative” nor the more liberal “formalistic” approach could the plaintiff prevail, in view of the arbitrators’ factual findings. A remand for the purpose of determining which approach the arbitrators used to define “replace” is therefore unnecessary.