author: SCHALLER, J.

text:
    HELEN D. LEGNOS v. PETER J. LEGNOS
    (AC 20492)
    Foti, Schaller and Flynn, Js.
    Argued January 10
    officially released June 11, 2002

      Nicholas J. Gorra, with whom, on the brief, was Walter J. Sidor, Jr., for the appellant (defendant).

      Helen A. Dickie, pro se, the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Peter J. Legnos, appeals from the judgment of the trial court finding him in contempt and ordering the modification of child support. The defendant claims on appeal that the court improperly (1) found that he wilfully failed to pay the amounts owed pursuant to the dissolution judgment, (2) modified the existing support order and (3) awarded the plaintiff the sum of $3000 in lieu of transfer of a motor vehicle pursuant to the dissolution judgment. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. The marriage of the parties was dissolved on December 13,1994. At that time, in accordance with a written agreement of the parties, the trial court entered various orders pertaining to child support, alimony and a division of property. Three of the orders in the dissolution decree are the subject of the contempt order. First, the decree ordered the defendant to make installment payments to the plaintiff for her interests in various parcels of real estate that she conveyed to the defendant pursuant to the decree. Second, the decree ordered the defendant to pay child support, as well as a portion of the unreimbursed medical expenses of the children, and to maintain life insurance for the benefit of the minor children. Third, the decree ordered the defendant to transfer a Dodge motor vehicle to the plaintiff. The original decree was modified on several occasions pursuant to agreement of the parties prior to the contempt proceeding at issue in this appeal.

In September, 1996, the plaintiff filed a motion for contempt that was heard by the trial court, Hon. D. Michael Hurley, judge trial referee, on January 2,1997. After the court denied the defendant’s motion to modify the property distribution, it continued the contempt motion for sixty days with an order that the defendant present to the court a proposal as to how he would fulfill his obligations under the judgment. In March, 1997, the plaintiff filed another motion for contempt alleging that the defendant had failed to present any such proposal. She also alleged that the defendant was in arrears as to child support payments, had failed to pay his portion of unreimbursed medical expenses, had failed to verify that the required life insurance was in force, had failed to make regular installment payments for the property interests as ordered, had not made the other required debt payments and had failed to provide personal property awarded to the plaintiff. After the plaintiff filed her motion for contempt, the defendant filed various motions for contempt, all of which the trial court denied.

On November 19, 1999, the trial court, Solomon, J., held a hearing on the March, 1997 motion for contempt. The court rendered an oral decision followed by a written memorandum also dated November 19, 1999. In its decision on the motion for contempt, the trial court found that “the defendant has failed to pay the sums required by the decree with respect to [the real estate property], I further find that as of September 30, 1997, at the latest, the defendant had the ability to pay and that, therefore, his failure to pay subsequent to that date was wilful.” In addition, the court ordered the defendant to pay the plaintiff the sum of $3000 in lieu of transferring the Dodge motor vehicle, which he had failed to do.

On December 8, 1999, the defendant filed a motion to reargue the court’s November 19, 1999 decision. The court denied this motion on January 14, 2000, as its final order in the matter. In addition to denying the defendant’s motion, the court also considered on January 14, 2000, a motion for modification of support that the plaintiff had filed earlier in the proceedings. The court ordered the defendant to pay $214 per week as child support commencing on February 23, 1999. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court improperly found that he wilfully failed to pay the amounts owed on the property installments after September 30, 1997. Specifically, the defendant argues that the evidence adduced at the hearing failed to support a finding of wilfulness.

At the outset, we note our standard of review. “Con-tempts of court may be classified as either direct or indirect, the test being whether the contempt is offered within or outside the presence of the court. . . . The defendant’s failure to comply with the [dissolution decree] is, therefore, an indirect contempt because it occurred outside the presence of the trial court.

“[A] finding of indirect civil contempt must be established by sufficient, proof that is premised upon competent evidence presented to the trial court in accordance with the rules of procedure as in ordinary cases. . . . A finding of contempt is a factual finding. . . . We will reverse that finding only if we conclude the trial court abused its discretion.” (Citations omitted; internal quotation marks omitted.) Billings v. Billings, 54 Conn. App. 142, 152, 732 A.2d 814 (1999).

In its oral decision on November 1, 1999, the trial court found that, after September 30, 1997, the defendant had the ability to pay and that his failure to do so was wilful. The court stated that it “selected September 30, 1997 . . . because that is one date which is evidenced by the tax return which was filed for LBI, the defendant’s corporation, and therefore . . . sets certain numbers in place that I can rely on.” The court further stated that “there are many reasons why I have concluded that [the defendant] had the ability to comply with the decree.” Following this preface, the court went on, at length, to make detailed findings based on the defendant’s tax returns and his financial affidavits that supported its ultimate determination of wilfulness.

The court provided a thorough, thoughtful and specific evaluation of the tax returns of the defendant’s company. The court reviewed, for a period of several years, the company’s gross income, cash position, net earnings, inventory levels and salary increases. The court found that the defendant “was in control of the business,” and that the defendant had “the ability to determine who and when and how much to pay to anybody.” At the end of its review of the tax returns, the court found that, in terms of dealing with his creditors, the defendant “put [the plaintiff] at the bottom of the heap.” Our review of the court’s decision does not reveal that any of its findings were clearly erroneous. To the contrary, we conclude the court’s findings are logical and amply supported by the evidence.

In addition, the court also scrutinized the defendant’s financial affidavits. It determined that there were numerous inconsistencies and that the information in the affidavits did not support the defendant’s arguments as to his financial status. The court found that “if you accept those affidavits, [the defendant] had zero income with which to meet more than $40,000 a week in expenses.” The court also made a similar finding with regard to the defendant’s debt, noting the affidavits produced irreconcilable results. Again, we cannot say after our review of the court’s findings that they were clearly erroneous. The court’s analysis was logical and its findings were supported by the information in the defendant’s affidavits.

Despite the court’s well supported findings, the defendant argues that there was not enough evidence to support a finding of wilfulness. We do not agree. The defendant’s brief is little more than a series of assertions that offer a different interpretation of the facts. The defendant, in essence, asks us to find the facts in a manner that is consistent with the gloss he attempts to apply. We decline to do so. The trial court’s findings were not clearly erroneous. Because we conclude that the underlying findings were not clearly erroneous, we conclude that the court’s ultimate finding that the defendant wilfully failed to meet his obligations under the dissolution decree was established by sufficient proof premised on competent evidence. The court properly exercised its discretion.

II

The defendant next claims that the trial court on January 14, 2000, improperly modified the existing support order. Specifically, the defendant claims that the court improperly modified the support order because it applied the support guidelines after previous orders had determined a deviation from the guidelines was appropriate based on the shared custody agreement in the dissolution decree. The defendant argues that the court, on January 14, 2000, could not ignore the original support order, and the modified orders, which determined that there was a proper deviation from the support guidelines.

We decline to review this claim. As we often have stated, “[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 failure to brief the issue properly. . . . We will not review claims absent law and analysis.” (Internal quotation marks omitted.) In re Kachainy C., 67 Conn. App. 401, 413, 787 A.2d 592 (2001).

In the present case, the defendant has failed to brief the issue adequately. First, although the defendant discusses the court’s January 14, 2000 decision on the motion for modification, he has failed to provide us with a transcript of that proceeding. We, therefore, are unable to review the court’s oral findings and decision. Second, the defendant’s brief is devoid of analysis of this claim. Aside from asserting that the court improperly rejected the continuation of a deviation from the guidelines, the defendant fails to offer any analysis of this issue.

While the defendant’s reply brief cites McHugh v. McHugh, 27 Conn. App. 724, 609 A.2d 250 (1992), as support for his position, that case is inapplicable. McHugh deals with a modifying court’s failure to make a specific finding that the guidelines were inappropriate before deviating from them. Id., 725-28. That case does not address the claim raised here, namely, that a later court applied the guidelines and ignored a previous determination that there should be a deviation.

The reply brief also quotes a portion of McHugh. The cited material and its surrounding text, however, conclude that once a court determines that a deviation is appropriate, that particular order cannot later be modified based solely on the ground that the order itself does not conform to the guidelines. Id., 728-29. We fail to see the applicability of this to the present claim. The defendant has not asserted or analyzed the issue that the modifying court in this case modified the order because it did not conform to the guidelines.

Ill

The defendant finally claims that the court improperly awarded the plaintiff the sum of $3000 in lieu of transfer of a motor vehicle as ordered in the dissolution judgment. The defendant asserts that the Dodge vehicle “was not owned by [him] but by [his company]” and that it “had inadvertently been included on [his] financial affidavit filed in connection with the dissolution hearing.” The defendant appears to argue that the court had no authority to order transfer of an asset not owned by a party to the dissolution. The defendant also cites General Statutes § 46b-81 for the proposition that, in a dissolution of marriage, a court is restricted from ordering a transfer of an asset not owned by a party to the dissolution.

Despite the ostensible challenge to the court’s November 19, 1999 order that the defendant pay the plaintiff $3000, at its core, the defendant’s claim actually addresses the propriety of the original December 13, 1994 dissolution decree. In the December 13, 1994 ruling, the court ordered the defendant to transfer the vehicle to the plaintiff. The defendant fails to establish that he filed a timely appeal from that judgment. In the present appeal, the defendant argues that the November, 1999 order requiring him to pay $3000 in lieu of the vehicle was improper despite the fact that the November, 19, 1999 order only enforced the December 13, 1994 dissolution order to transfer the vehicle. It is of no moment that the 1999 order specified that the defendant pay $3000 in lieu of the actual vehicle, which had been sold. Despite the difference in form, the order to pay $3000 was the equivalent of the vehicle itself. Therefore, in arguing that it was improper for the court, in 1999, to order him to pay the $3000, the defendant challenges the initial December 13, 1994 dissolution in which the court ordered him to transfer the vehicle to the plaintiff.

Viewed in this light, it is evident that the defendant’s claim is untimely. See Practice Book § 63-1. The defendant, by virtue of his challenge to the November 19, 1999 order, cannot challenge the original December 13, 1994 dissolution decree that ordered him to transfer the vehicle. Having failed to appeal in a timely manner from the original dissolution decree, the defendant cannot now attempt to address his “inadvertent inclusion” of the vehicle in his affidavit and to object to the court’s decision at that time. See Alix v. Leech, 45 Conn. App. 1, 3, 692 A.2d 1309 (1997) (party barred from challenging merits of underlying judgment when motion to open filed more than twenty days after judgment).

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that counsel for the defendant argued for the first time at oral argument that the trial court that decided the contempt motion improperly modified the dissolution decree after it found that the defendant had wilfully failed to meet his obligations under that decree. When counsel was asked where that claim appeared in the defendant’s brief, he conceded that the issue was not specifically addressed in the brief, but asserted that the issue was addressed indirectly. When questioned as to where that could be found in the brief, counsel conceded that the brief did not specifically refer to this claim. We will not address this claim because the defendant raised it for the first time at oral argument. We need no citation for our long settled rule that an appellant’s claims must be fully and adequately briefed and argued in the brief submitted to this court.

       We note that the abuse of discretion standard applies to the trial court’s decision on the motion for contempt. In the present case, the defendant’s claim specifically attacks the factual findings that the court relied on to conclude that the defendant was in contempt. Therefore, in addition to reviewing the propriety of the court’s decision as a general matter, we first review the trial court’s factual determinations. In so doing, we apply our clearly erroneous standard, which is the well settled standard for reviewing a trial court’s factual findings. See Pequonnock Yacht Club, Inc. v. Bridgeport, 259 Conn. 592, 598, 790 A.2d 1178 (2002). “A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that amistake has been made.” (Internal quotation marks omitted.) Pisani Construction, Inc. v. Krueger, 68 Conn. App. 361, 364, 791 A.2d 634 (2002).


source: Caselaw Access Project

author: LAVERY, C. J.

license: Public Domain

text:
    BOARD OF EDUCATION OF THE TOWN AND BOROUGH OF NAUGATUCK v. TOWN AND BOROUGH OF NAUGATUCK ET AL.
    (AC 18902)
    Lavery, C. J., and Schaller and Spear, Js.
    Argued February 20
    officially released June 11, 2002

      N. Warren Hess III, for the appellants (defendants).

      Mark J. Sommaruga, with whom, on the brief, was Thomas N. Sullivan, for the appellee (plaintiff).

      Mary-Michelle U. HirschoJJ filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

      Joan G. Libby filed a brief for the Connecticut Association of Boards of Education as amicus curiae.
   Opinion

LAVERY, C. J.

The defendants in this declaratory judgment action appeal from the trial court’s rendering of summary judgment in favor of the plaintiff, the board of education of the town and borough of Naugatuck (board of education), following the court’s determination that two recent amendments to the borough’s municipal charter were invalid. The defendants claim that the court’s rendering of summary judgment in favor of the plaintiff was improper because (1) the charter amendment providing for separate referenda on the borough’s education budget and operating budget (budget amendment) is authorized by the General Statutes and is otheiwise lawful and (2) the charter amendment providing that the mayor-elect shall be a member of the board of education (membership amendment) is authorized by the General Statutes and not precluded by the common-law doctrine of incompatible offices. We affirm the portion of the trial court’s judgment concluding that the budget amendment is invalid and reverse the portion concluding that the membership amendment is invalid.

The facts underlying this case are not in dispute. The case was presented to the court as a series of stipulations accompanied by cross motions for summary judgment. The stipulated facts included the following. The plaintiff is a board of education established and organized under state law. See General Statutes § 10-218 et seq.; General Statutes §§ 9-203 to 9-206a. Pursuant to General Statutes § 10-220, the plaintiff is vested with the responsibility of implementing the educational policies of the state in the borough’s public schools. The defendants are a consolidated municipality; General Statutes §§ 7-148 (a), 7-187 (d); and various members of its government. See footnote 1. The board of mayor and burgesses is the borough’s legislative body. General Statutes § 7-193 (a) (1).

The borough operates under a charter that is its organic law. Section 3.18 of the charter prescribes the number of members of the board of education and the length of their terms. Prior to November, 1996, that section provided for nine elected members to serve six year terms. Section 14 of the charter sets forth the process by which the borough’s electors can seek a referendum on a proposed borough budget. Prior to November, 1996, that section provided for a referendum on the budget as a whole. In November, 1996, the defendants submitted to borough electors two proposed amendments to the charter. The first proposal was to amend § 3.18 “to provide for a nine member Board of Education, one of whose members shall be the Mayor . . . effective at the May 1997 election.” (Emphasis added.) The second proposal was to amend § 14 “to allow up to (3) three separate budget referendums for both the Town Operating Budget and the Board of Education Budget.” (Emphasis added.) The borough’s electors approved both proposals by substantial margins.

The plaintiff thereafter commenced this action seeking to have both charter amendments declared invalid and void ab initio. The plaintiff alleged that the amendments affected its responsibility pursuant to § 10-220 to manage the public schools. It claimed that the amendments improperly altered the composition of the board of education by placing thereon a member who was not elected, namely, the mayor, and impaired the board’s ability to obtain a budget appropriate to meet minimum educational requirements.

Subsequently, the parties filed a stipulation of facts with the court and, because the issues in the case presented only questions of law, each moved for summary judgment. See Practice Book § 17-49. The court, after considering the arguments presented by the parties, concluded that the budget amendment conflicted with § 10-220 and other general laws furthering the statewide interest in education and, therefore, was invalid. It also concluded that the membership amendment was invalid because the offices of mayor and board of education member were inherently incompatible. Accordingly, the court rendered summary judgment in favor of the plaintiff. Additional facts will be set forth where necessary.

“Our standard of review of a trial court’s granting of summary judgment is well established. Pursuant to Practice Book § 17-49, summary judgment ‘shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). Because the parties in this case stipulated to the facts, the only issues before the court were those of statutory interpretation, questions of law for which our review is plenary. State v. Russo, 259 Conn. 436, 447, 790 A.2d 1132 (2002).

“Our resolution of [these claims] is governed by well established principles. [I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Id., 447-48.

We also proceed mindful of and sensitive to the fact that the charter revisions represent the popular will of the Naugatuck electorate, thus impheating the political and legislative process. Board of Education v. Naugatuck, supra, 257 Conn. 425. We recognize further the legislative purpose and rationale behind Connecticut’s Home Rule Act, General Statutes §§ 7-187 to 7-201, which provides the parameters within which the borough may govern its affairs. “The rationale of the act, simply stated, is that issues of local concern are most logically answered locally, pursuant to a home rule charter, exclusive of the provisions of the General Statutes. . . . Moreover, home rule legislation was enacted to enable municipalities to conduct their own business and control their own affairs to the fullest possible extent in their own way . . . upon the principle that the municipality itself knew better what it wanted and needed than did the state at large, and to give that municipality the exclusive privilege and right to enact direct legislation which would carry out and satisfy its wants and needs.” (Citation omitted; internal quotation marks omitted.) Caulfield v. Noble, 178 Conn. 81, 86-87, 420 A.2d 1160 (1979).

Nonetheless, “it has been held that when a charter provision and a statute of general application both enter a field of statewide concern, the local charter power must yield to the superior power of the state.” Id., 86 n.3. “[A] general law, in order to prevail over a conflicting charter provision of a city having a home rule charter, must pertain to those things of general concern to the people of the state, and it cannot deprive cities of the right to legislate on purely local affairs germane to city purposes.” Id., 87; see also General Statutes 7-188. With these principles in mind, we address the issues on appeal.

I

The defendants claim that the court’s rendering of summary judgment in favor of the plaintiff was improper because the budget amendment is authorized by the General Statutes and is otherwise lawful. We disagree.

The trial court described the change resulting from the budget amendment as follows. “Both before and after the amendment, § 14 set forth the procedure by which the board of finance and the board of mayor and burgesses adopt a budget for the town, including the holding of a public hearing on the budget as recommended by the boards, its publication in a newspaper prior to the public hearing and a procedure for the voters to petition for a referendum on the budget. The significant change effected by the November, 1996 amendment was to permit the electors to petition for separate votes on the town’s ‘operating budget’ (the ‘non-board of education budget’) and/or the board of education budget. Under the charter, prior to the amendment the electors could vote only on the town’s budget as a unit, including the board’s budget. [After the amendment,] the electors can petition for a vote separately on each of the two budgets, the ‘operating budget’ and the board’s budget, or on only one of them. Obviously, the electors can, therefore, reject both budgets or reject only one of them, e.g., the board’s budget, while leaving the other budget intact.

“In language retained without amendment, § 14 provides that if ‘the total votes to reject exceeds the vote[s] to accept, the budget shall be deemed rejected.’ The board of finance and the board of mayor and burgesses must then present a ‘revised budget’ at a public hearing and adopt such a revised budget within fourteen days from the date of the referendum in which ‘the budget’ was rejected. A total of three such referenda may be held on either or both budgets.”

The defendants argue that under the broad powers granted to municipalities by the Home Rule Act, the budget amendment is valid. They claim that authority for a bifurcated referendum on the borough budget is found in General Statutes § 7-194, which grants municipalities the power “[t]o manage, regulate and control the finances and property ... of the town”; in General Statutes § 7-148 (c) (2) (A) and (B), which, respectively, grant municipalities the power to “[establish and maintain a budget system” and to “[a]ssess, levy and collect taxes for general or special purposes on all property, subjects or objects which may be lawfully taxed, and regulate the mode of assessment and collection of taxes and assessments not otherwise provided for”; and in decisional law such as Caulfield v. Noble, supra, 178 Conn. 81, that contemplates a broad grant of power to municipalities as to “matters of purely local concern, such as . . . local budgetary policy.” Shelton v. Commissioner, 193 Conn. 506, 521, 479 A.2d 208 (1984), citing Caulfield v. Noble, supra, 90-91.

The plaintiff, on the other hand, argues that a split budget referendum is precluded by General Statutes § 7-344 and conflicts with the state’s interest in public education. The plaintiff cites the constitution of Connecticut, article eight, § 1, and General Statutes §§ 10-220 and 10-222 in support of its position. Article eight, § 1, provides that there shall always be free public schools in Connecticut and that the General Assembly shall implement that principle through appropriate legislation. Section 10-220 (a) defines the duties of boards of education, in particular to “implement the educational interests of the state,” and § 10-222 (a) describes the procedure by which boards of education shall submit their budget estimates to local budgeting authorities and provides that “[t]he money appropriated by any municipality for the maintenance of public schools shall be expended by and in the discretion of the board of education.” The plaintiff argues that these constitutional and statutory provisions and the decisions interpreting them impose limitations on the borough’s power to control the board of education’s budget and that the budget amendment exceeds those limitations. We agree with the plaintiff.

Because the statutes cited by the defendants contain broad, general grants of taxing and budgeting powers to municipalities; General Statutes §§ 7-148 (c) (2) (A) and (B), 7-194; but the statute cited by the plaintiff specifically addresses the budget formulation and approval process; General Statutes § 7-344; we analyze the budget amendment issue by interpreting the latter. “As a matter of statutory construction, specific statutory provisions are presumed to prevail over more general statutory provisions dealing with the same overall subject matter.” (Internal quotation marks omitted.) State v. Andresen, 256 Conn. 313, 329, 773 A.2d 328 (2001), quoting State v. Torres, 206 Conn. 346, 359, 538 A.2d 185 (1988).

General Statutes § 7-340 allows for municipalities to establish boards of finance and provides in relevant part that “[a]ll rights and powers conferred and duties and obligations imposed by the general statutes upon boards of finance shall be held to be conferred or imposed upon each board of finance . . . .” Section § 7-344 provides a detailed procedure for boards of finance to follow in making appropriations and laying a tax and, through the operation of § 7-340, imposes that procedure on the borough’s board of finance.

In short, the budgeting process described by § 7-344 is as follows. A public hearing is held at which “itemized estimates of the expenditures of the town” for the coming year are presented and debated by any interested parties. (Emphasis added.) General Statutes § 7-344. Following that public hearing, the board, once it “consider[s] the estimates so presented and any other matters brought to its attention,” shall prepare and have published in the local newspaper a report in a format directed by the statute. (Emphasis added.) General Statutes § 7-344. That report includes, among other things, “an itemized estimate of expenditures of [the] town for [the] ensuing fiscal year . . . .” (Emphasis added.) General Statutes § 7-344. Thereafter, “[t]he board shall submit such estimate with its recommendations to the annual town meeting next ensuing” for action thereon. (Emphasis added.) General Statutes § 7-344. If such estimate is submitted “to avote by voting machine,” “[s]uch estimate and recommendations may include . . . questions to indicate whether the budget is too high or too low.” (Emphasis added.) General Statutes § 7-344. Those questions, if included, are “for advisory purposes only . . . .” General Statutes § 7-344. Once a budget is adopted and a grand list completed, the board of finance meets and lays an appropriate tax on the list. See generally footnote 6.

We discern from the language used by the legislature in § 7-344 its intent that a proposed municipal budget, once assembled by the board of finance via the specified process, be voted on by the electorate as a whole, not through piecemeal approval of its component parts. The legislature’s use of the singular “estimate” in the latter part of the statute addressing the voting process, as opposed to its use of the plural “estimates,” in the earlier part of the statute describing the budget formulation process, supports this conclusion. We recognize that the legislature’s use of a singular term does not always preclude interpretation of that term as a plural; General Statutes § 1-1 (f); however, when both the singular and plural are used within the same statutory provision, the analysis differs. “We cannot assume that the legislature, in enacting a statutory provision that uses a particular word in the plural and then the same word in the singular, intended for two different words to have the same meaning . . . .” Lash v. Aetna Casualty & Surety Co., 236 Conn. 318, 325, 673 A.2d 84 (1996); see also Covenant Ins. Co. v. Coon, 220 Conn. 30, 36 n.6, 594 A.2d 977 (1991). We must presume, therefore, that the legislature’s use of the singular in referring to “estimate” at the voting stage and its use of the plural in referring to “estimates” at the formulation stage was deliberate and purposeful.

We find further guidance in the maxim “[e]xpressio unius est exclusio alterius. A statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way.” (Internal quotation marks omitted.) Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). “[W]here a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.” 2A J. Sutherland, Statutory Construction (6th Ed. Singer 2000) § 47.23, pp. 304-307.

Here, § 7-344 provides a detailed road map for municipalities to follow in navigating the appropriations process. It mandates at the outset a public hearing at which various departments’ budget estimates are presented “and at which all persons shall be heard in regard to any appropriation which they are desirous that the board should recommend or reject.” (Emphasis added.) General Statutes § 7-344. The statute thus contemplates a particular method by which voters may express their concerns regarding the proposed appropriation to the board of education or to any other department or function. In addition, § 7-344 allows for further public input at the voting stage by specifically authorizing, “for advisory puiposes only,” supplemental referendum “questions to indicate whether the budget is too high or too low.” (Emphasis added.) This portion of the statute plainly describes the inclusion of questions to solicit nonbinding input regarding the budget as a whole, not those that would permit voters to reject specific portions of the budget outright. In drafting § 7-344, the legislature provided comprehensive instructions to municipalities regarding the budgeting process. If it had intended to authorize separate binding referenda on particular portions of the budget, it surely would have said so. We conclude that the budget amendment is invalid because it conflicts with § 7-344.

We also agree with the court’s conclusion that the budget amendment is invalid because it upsets the statutory balance of power between local boards of education and local budgeting authorities as explicated by our Supreme Court. “A town board of education is an agency of the state in charge of education in the town; to that end it is granted broad powers by the legislature; and it is beyond control by the town or any of its officers in the exercise of those powers or in the incurring of expense, to be paid by the town, necessitated thereby, except as limitations are found in statutory provisions.” Board of Education v. Board of Finance, 127 Conn. 345, 349, 16 A.2d 601 (1940); see also General Statutes §§ 10-220 (a) (directing boards of education to maintain good schools and to implement educational directives of state) and 10-222 (a) (giving boards of education discretion to expend funds appropriated by municipalities for maintenance of public schools).

The court in Board of Finance summarized the respective powers of a town board of education and a town board of finance as follows. “Where a town board of education includes in the estimates it submits to a board of finance expenditures for a purpose which is not within statutory provisions imposing a duty upon it nor within one which vests it with a discretion to be independently exercised, the board of finance may, if in its judgment, considering not only the educational purpose to be served but also the financial condition of the town, it finds that the expenditure is not justified, decline to recommend an appropriation for it; where, however, the estimate is for an expenditure for a purpose which the statutes make it the duty of the board of education to effectuate or they vest in the board of education a discretion to be independently exercised as to the carrying out of some purpose, the town board of finance has not the power to refuse to include any appropriation for it in the budget it submits and can reduce the estimate submitted by the board of education only when that estimate exceeds the amount reasonably necessary for the accomplishment of the putpose, taking into consideration along with the educational needs of the town its financial condition and the other expenditures it must make. The board of finance in such a case must exercise its sound judgment in determining whether or to what extent the estimates of the board of education are larger than the sums reasonably necessary and if it properly exercises its discretion and the budget is approved by the town the board of education has no power to exceed the appropriations made.” Board of Education v. Board of Finance, supra, 127 Conn. 350-51; see also Board of Education v. New Haven, 237 Conn. 169, 178-79, 676 A.2d 375 (1996); Waterbury Teachers Assn. v. Furlong, 162 Conn. 390, 398-99, 294 A.2d 546 (1972); Board of Education v. Ellington, 151 Conn. 1, 8, 193 A.2d 466 (1963); Fowler v. Enfield, 138 Conn. 521, 531, 86 A.2d 662 (1952).

The court in Board of Finance considered that the statutory scheme for appropriations contemplated a give and take between the board of education and the board of finance, guided by their respective interests and expertise; Board of Education v. Board of Finance, supra, 127 Conn. 352-53; and noted that the statutes governing the appropriations process were “evidently designed to produce a nice balancing of powers between the two boards . . . .” Id., 353. Other cases have noted that “[e]ach board is given broad, important and far-reaching powers. . . . Boards of education are charged with the duty of providing reasonable educational facilities. Boards of finance are charged with the duty of providing the necessary funds and, at the same time, of seeing to it that expenditures for the educational program are kept within reasonable bounds in view of the over-all financial resources of the town.” (Emphasis added.) Fowler v. Enfield, supra, 138 Conn. 532. Further, a “function of aboard of finance is ... to eliminate wasteful or extravagant expenditures by considering the financial aspects of the municipal government as a whole rather than from the limited viewpoint of any particular department, whether it is the department in charge of education or of fire prevention or of police protection . . . .” (Emphasis added; internal quotation marks omitted.) Board of Education v. Ellington, supra, 151 Conn. 7; see also Groton & Stonington Traction Co. v. Groton, 115 Conn. 151, 158-59, 160 A. 902 (1932). The board of finance’s “control, however, must be exercised reasonably by taking into consideration the duty of the board of education to maintain in the town a program of educational opportunity which meets the requirements of state law; the power of the board of education to exercise a sound and reasonable discretion in carrying out its duties; and the town’s financial needs and resources.” Board of Education v. Ellington, supra, 9-10.

In this case, the budget amendment upsets the balance between the board of finance and the board of education by allowing the electorate to veto only the education portion of the budget, in effect subjecting it to isolated scrutiny by voters who may or may not be aware of the board of education’s statutory mandates or have a broad understanding of the town’s financial resources and priorities as a whole, as does the board of finance. As the court stated, the budget amendment permits the voters to do what the board of finance cannot, that is, simply to reject the board of education’s budget, “[w]ithout regard for whether the expenditures included in the board’s budget are for purposes which the state statutes make it the duty of the board to effectuate, e.g., providing pupil transportation; § 10-220 (a); and special education; § 10-76d; meeting the minimum expenditure requirement of § 10-262, or whether they are for purposes within the board’s discretion under state statutes . . . .”

“It is an established principle that local charter powers must yield to the superior power of the state when the two enter a field of statewide concern.” Wallingford v. Board of Education, 152 Conn. 568, 574, 210 A.2d 446 (1965). Here, the borough’s budget amendment intrudes into an area of statewide concern, public education, and conflicts with the statutory scheme governing the process whereby boards of education receive the appropriations necessary to fulfill their duties to the state. Therefore, the court’s determination that the budget amendment was invalid was proper and, accordingly, its conclusion that the plaintiff was entitled to judgment as a matter of law was correct.

II

The defendants also claim that the court’s rendering of summary judgment in favor of the plaintiff was improper because the membership amendment is authorized by the General Statutes and is not precluded by the common-law doctrine of incompatible offices. We agree.

Pursuant to § 3.18 of the borough’s charter, the board of education consists of nine members. The change effected by the membership amendment is that the person elected to be mayor of the borough also is elected by the voters as one of the nine members of the board.

General Statutes § 7-193 (b) provides in relevant part that “[e]very municipality shall have all municipal officers, departments, boards, commissions and agencies which are required by the general statutes or by the charter. ... All such . . . boards . . . shall be elected, appointed and organized in the manner provided by the general statutes, except as otherwise provided by the charter .... Any municipality may, by charter . . . alter the method of election, appointment or organization of any or all of such . . . boards . . . including combining or separating the duties of each, unless specifically prohibited from making such alteration by the constitution or the general statutes.” (Emphasis added.)

General Statutes § 9-210, captioned “Incompatible town offices,” specifically enumerates several pairings or groupings of municipal offices that cannot be held simultaneously by the same individual. Mayor and board of education member are not included in the list.

In this case, the court, recognizing the intent of the Home Rule Act and the need to construe its provisions expansively so as to favor local authority over municipal affairs; Norwich v. Housing Authority, 216 Conn. 112, 118, 579 A.2d 50 (1990); concluded that the terms of § 7-193 (b) clearly were broad enough to permit the borough’s membership amendment. The court considered that the amendment “ ‘alter [ed] the method of election’ to the board of education, by providing that the person elected as mayor is also elected as a member of the board.” The court continued on, however, to apply the common law of incompatible offices and concluded that pursuant to that analysis, the offices of mayor and board of education member were inherently incompatible and the membership amendment therefore was invalid. The defendants argue that it was improper for the court to engage in a common-law analysis because the language of § 7-193 (b) precludes it and § 9-210 provides an exhaustive list of incompatible town offices. The plaintiff claims that § 7-193 was not intended to supplant the common law and that incompatible town offices are not exclusively described by § 9-210. We agree with the defendants.

Section 7-193 (b) by its plain terms clearly authorizes municipalities to elect and organize local officers and boards as they see fit, absent a specific constitutional or statutory prohibition. See Norwich v. Housing Authority, supra, 216 Conn. 124-25. Conspicuously absent is any reference to the common law or use of a broad limiting phrase such as “unless otherwise prohibited by law.” “A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the [drafters] in enacting the statute is to be derived from the words used. . . . Where the court is provided with a clearly written rule, it need look no further for interpretive guidance.” (Citations omitted; internal quotation marks omitted.) Brennan v. Fairfield, 58 Conn. App. 191, 197, 753 A.2d 396 (2000), rev’d on other grounds, 255 Conn. 693, 768 A.2d 433 (2001). The cases cited by the plaintiff in support of the proposition that a common-law analysis still is appropriate in fact all involved instances of statutory or constitutional disqualification, or predated the enactment of § 7-193 (b). See Murach v. Planning & Zoning Commission, 196 Conn. 192, 491 A.2d 1058 (1985); Stolberg v. Caldwell, 175 Conn. 586, 402 A.2d 763 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 S. Ct. 496, 70 L. Ed. 2d 374 (1981); State ex rel. Butera v. Lombardi, 146 Conn. 299, 150 A.2d 309 (1959); State ex rel. Schenck v. Barrett, 121 Conn. 237, 184 A. 379 (1936).

Furthermore, we must presume that the legislature, in enacting § 7-193 (b), acted in view of existing relevant statutes, in particular § 9-210. “The legislature is presumed to be aware and to have knowledge of all existing statutes and the effect which its own action or nonaction may have on them.” Windham First Taxing District v. Windham, 208 Conn. 543, 554, 546 A.2d 226 (1988); see also Budkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979). If the legislature had intended to preclude mayors from sitting on boards of education, it would have added that pairing of offices to the list enumerated in § 9-210.

Our Supreme Court has stated on many occasions that “[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended [a] list to be exclusive.” (Internal quotation marks omitted.) Doucette v. Pomes, 247 Conn. 442, 457, 724 A.2d 481 (1999); see also Dowling v. Slotnik, 244 Conn. 781, 802-803, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998); Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 40, 664 A.2d 719 (1995); State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982); 2A J. Sutherland, supra, § 47.23, pp. 316-17. Although the court in its memorandum of decision presented a compelling common-law analysis demonstrating the inherent incompatibility of the offices of mayor and board of education member, “[c]ourts may not by construction supply omissions in a statute, or add exceptions merely because it appears to them that good reasons exist for adding them.” (Internal quotation marks omitted.) Brennan v. Fairfield, supra, 58 Conn. App. 197. Therefore, the court’s determination that the membership amendment was invalid was improper and, accordingly, its conclusion that the plaintiff was entitled to judgment as a matter of law was incorrect.

The judgment is reversed only as to the trial court’s determination that the membership amendment is invalid and the case is remanded with direction to render judgment granting the defendants’ motion for summary judgment as to that issue. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       The defendants are the town and borough of Naugatuck (borough); the board of mayor and burgesses of the borough (board of mayor and burgesses); William C. Rado, the former mayor of the borough; Timothy D. Barth, the current mayor of the borough; Sophie K. Morton, town clerk; Judy Crosswait, borough clerk; and Ann Hildreth and Jane II. I’ronovost, registrars of voters.

         We note that when this appeal initially was brought, we dismissed the case as moot because the amendments at issue had been superceded by later though similar ones, proposed and passed so as to cure procedural defects surrounding the first amendment process. Board of Education v. Naugatuck, 58 Conn. App. 632, 638, 755 A.2d 297 (2000), rev’d, 257 Conn. 409, 778 A.2d 862 (2001). Thereafter, our Supreme Court reversed this court’s determination of mootness and remanded the case for further proceedings. Board of Education v. Naugatuck, 257 Conn. 409, 778 A.2d 862 (2001).

       The budget amendment proposal received 5130 yes votes and 2450 no votes. The membership amendment proposal received 4352 yes votes and 3203 no votes.

       The plaintiff also alleged that the defendants failed to follow the statutorily mandated procedures for amending the charter. That claim subsequently was withdrawn.

       General Statutes § 7-188 (a) provides in relevant part: “Any municipality, in addition to such powers as it has under the provisions of the general statutes or any special act, shall have the power to (1) adopt and amend a charter which shall be its organic law and shall supercede any existing charter . . . which charter or amended charter may include the provisions of any special act concerning the municipality but which shall not otherwise be inconsistent with the constitution or general statutes . . . .” (Emphasis added.)

       General Statutes § 7-344 provides: “Not less than two weeks before the annual town meeting, the board shall hold a public hearing, at which itemized estimates of the expenditures of the town for the ensuing fiscal year shall be presented and at which all persons shall be heard in regard to any appropriation which they are desirous that the board should recommend or reject. The board shall, after such public hearing, hold a public meeting at which it shall consider the estimates so presented and any other matters brought to its attention and shall thereupon prepare and cause to be published in a newspaper in such town, if any, otherwise in a newspaper having a substantial circulation in such town, a report in a form prescribed by the Secretary of the Office of Policy and Management containing: (1) An itemized statement of all actual receipts from all sources of such town during its last fiscal year; (2) an itemized statement by classification of all actual expenditures during the same year; (3) an itemized estimate of anticipated revenues during the ensuing fiscal year from each source other than from local property taxes and an estimate of the amount which should be raised by local property taxation for such ensuing fiscal year; (d) an itemized estimate of expenditures of such town for such ensuing fiscal year; and (5) the amount of revenue surplus or deficit of the town at the beginning of the fiscal year for which estimates are being prepared; provided any town which, according to the most recent federal census, has a population of less than five thousand may, by ordinance, waive such publication requirement, in which case the board shall provide for the printing or mimeographing of copies of such report in a number equal to ten per cent of the population of such town according to such federal census, which copies shall be available for distribution five days before the annual budget meeting of such town. The board shall submit such estimate with its recommendations to the annual town meeting next ensuing, and such meeting shall taire action upon such estimate and recommendations, and make such specific appropriations as appear advisable, but no appropriation shall be made exceeding in amount that for the same purpose recommended by the board and no appropriation shall be made for any purpose not recommended by the board. Such estimate and recommendations may include, if submitted to a vote by voting machine, questions to indicate whether the budget is too high or too low. The vote on such questions shall be for advisory purposes only, and not binding upon the board. Immediately after the board of assessment appeals has finished its duties and the grand list has been completed, the board of finance shall meet and, with due provision for estimated uncollectible taxes, abatements and corrections, shall lay such tax on such list as shall be sufficient, in addition to the other estimated yearly income of such town and in addition to such revenue surplus, if any, as may be appropriated, not only to pay the expenses of the town for such current year, but also to absorb the revenue deficit of such town, if any, at the beginning of such current year. The board shall prescribe the method by which and the place where all records and books of accounts of the town, or of any department or subdivision thereof, shall be kept. The provisions of this section shall not be construed as preventing a town from making further appropriations upon the recommendation of its board of finance at a special town meeting held after the annual town meeting and prior to the laying of the tax for the current year, and any appropriations made at such special town meeting shall be included in the amount to be raised by the tax laid by the board of finance under the provisions of this section.”

       We note that the trial court, in its determination that the budget amendment was invalid, did not consider the language of § 7-344 to be dispositive and, instead, based its conclusion on the conflict between the amendment and “§ 10-220 and other 'general laws’ furthering the statewide interest in education . . . .” Nonetheless, “[w]e may affirm a proper result of the trial court for a different reason.” Biro v. Hirsch, 62 Conn. App. 11, 16 n.7, 771 A.2d 129, cert. denied, 256 Conn. 908, 772 A.2d 601 (2001).

       General Statutes § 9-210 provides: “No selectman shall hold the office of town clerk, town treasurer or collector of town taxes during the same official year, nor that of judge of probate for the district within which such town is located; no town treasurer shall hold the office of collector of town taxes during the same official year; nor shall any town clerk or selectman be elected a registrar of voters; and no registrar of voters shall hold the office of town clerk. No assessor shall act as a member of the board of assessment appeals. No member of the board of finance of any town shall hold any salaried town office unless otherwise provided by special act. If any registrar of voters is elected to the office of town clerk or selectman and accepts the office, he shall thereupon cease to be a registrar; and, if any town clerk or selectman is elected registrar of voters, the election shall be void; and in either of said cases the selectmen shall forthwith appoint another registrar by a writing signed by them and filed with the town clerk; but the person so appointed shall be a member of the same political party as that to which the person so elected belongs.”

       General Statutes § 9-185, which governs elections of “municipal officers,” includes “members of boards of education” in an enumeration of such officers. Although “a town board of education is an agent of the state when carrying out the educational interests of the state . . . the members of a board of education are still officers of the town.” (Citations omitted.) Cheney v. Strasburger, 168 Conn. 135, 141, 357 A.2d 905 (1975).

       The plaintiff also argues that, the membership amendment is invalid because it results in the mayor being an ex officio member of the board of education. Citing General Statutes §§ 9-206a and 7-12a, the plaintiff claims that the General Statutes require that members of boards of education be elected and that they do not authorize ex officio memberships for mayors on boards, as they do for first selectmen. We note that it is not clear that the assumption relied on by the parties and the court that the General Statutes require boards of education to be elected is accurate. Section 9-185 provides in relevant part that “[u]nless otherwise provided by special act or charter . . . members of boards of education . . . shall be elected . . . .” (Emphasis added.) See also Cheshire v. McKenney, 182 Conn. 253, 259, 438 A.2d 88 (1980) (local boards of education “are either elected by local constituencies; General Statutes § 9-203; or, pursuant to the town charter, are appointed by an elected officer or body of the municipality”). In any event, we agree with the trial court that pursuant to the membership amendment, “[t]he mayor does not serve on the board ‘ex officio.’ [Rather] [h]e is elected to the board at the same time that he is elected mayor.”


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. ALPHA WILLIAM NIMS
    (AC 22201)
    Foti, Dranginis and Stoughton, Js.

      Argued March 26
    officially released June 11, 2002

      Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, special assistant state’s attorney, with whom, on the brief, was John C. Smriga, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Alpha William Nims, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), conspiracy to commit murder in violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a). The court imposed a total effective sentence of seventy years of incarceration. On appeal, the defendant claims that the trial court improperly (1) instructed the jury as to the concept of reasonable doubt, (2) admitted hearsay testimony from two state’s witnesses and (3) admitted evidence of the victim’s attempt to file a complaint against him. We affirm the judgment of the trial court.

PYom the evidence adduced at trial, the jury reasonably could have found the following facts. At some point prior to June, 1998, the defendant began to handle the affairs, including financial affairs, of his aunt, Elizabeth Holbrook. Holbrook had suffered from memory lapses and other ailments and, in the spring of 1998, was admitted to a medical care facility. The defendant resided in her Stratford home, obtained a power of attorney over her affairs, exercised control over her financial matters and made withdrawals from her bank accounts. The victim, Melvin Courtney, was the defendant’s uncle and Holbrook’s brother.

In May, 1998, the victim, motivated in part by concerns that the defendant was mishandling Holbrook’s financial affairs, left his residence in Rochester, New York, to stay with the defendant in Holbrook’s home. Shortly thereafter, the victim discussed the defendant’s handling of Holbrook’s affairs with the defendant. The victim came to believe that the defendant was using Holbrook’s accounts for his personal use and, in June, 1998, the victim sought to become the conservator of Holbrook’s estate.

The defendant grew increasingly displeased with the victim’s interference with his handling of his aunt’s affairs. The defendant spoke about the situation with an acquaintance of his, William Preston. He told Preston that the victim was seeking to prevent him from using his aunt’s money and that he wanted to end the defendant’s interference. Both the defendant and Preston formulated a plan to “subdue [the victim] so he would be out [of] the way.”

On or around July 25, 1998, in the early morning hours, the defendant and Preston waited outside of the victim’s bedroom. The victim awoke to use the bathroom and, after he did so, Preston grabbed him while the defendant placed handcuffs on him. The defendant and Preston, attempting to subdue him, knocked the sixty-six year old victim to the ground. The victim tried to apologize to the defendant, but the defendant struck the victim’s stomach and affixed duct tape over his mouth. The defendant yelled at the victim, telling him that he warned him to stay out of his business. The defendant eventually smothered the victim, thereby causing his death. After helping the defendant subdue the victim, Preston went to the defendant’s car. Several minutes later, the defendant came outside and drove Preston to a nearby train station.

Over the course of the next few days, the defendant called Preston on the telephone and told him that he needed further help. At some point, the defendant drove to New Haven to meet Preston. When the two men arrived at Holbrook’s house, they approached the victim’s body, wrapped in bedding, lying on the floor in one of the second floor bedrooms.

In the early morning hours of July 28,1998, the defendant and Preston carried the victim’s body out of the house, ultimately placing the body in the back of the victim’s truck. The men thereafter drove to a location on a nearby farm where, earlier that day, they had prepared a ditch in which to dispose of the body. The defendant drove the victim’s truck while Preston, driving the defendant’s Chevrolet Beretta, followed him. After burying the body, the two men reentered the vehicles and drove away from the scene.

Shortly thereafter, at around 3:40 a.m., a police officer operating a marked cruiser attempted to stop Preston’s vehicle after noticing that the vehicle’s headlamps were not illuminated. Preston failed to stop for the officer. Instead, he drove off, struck a tree and fled from the vehicle on foot. At that time, the vehicle was located close to the defendant’s home. Preston hid in a nearby shed before meeting the defendant several hours later. The defendant returned to his vehicle a short time later. He told police officers investigating the incident that he had lent his vehicle to Preston and that he did not know why Preston had fled from the vehicle. The defendant told police officers that he was concerned and was out looking for the car because Preston had not returned with it. During this original stop and search of the vehicle, a police officer noticed digging implements in the vehicle’s trunk.

At around 8 a.m. on July 28, 1998, the owner of the farm where the defendant had buried the victim discovered the victim’s body. Police responded to the scene shortly thereafter and, in the course of their investigation, recognized the significance of the earlier incident involving the stop of the defendant’s vehicle. During the morning, the defendant washed his vehicle. Police investigators returned to the defendant’s home that afternoon and seized the defendant’s car and several items from the residence. Additional facts will be set forth as necessary to resolve the issues on appeal.

I

The defendant first claims that the judgment should be reversed because the trial court violated our Supreme Court’s directive in State v. Delvalle, 250 Conn. 466, 475-76, 736 A.2d 125 (1999), to refrain from using the “ ‘ingenuity of counsel’ ” language when instructing the jury on the concept of reasonable doubt. The trial court gave the instruction almost one year after Delvalle’s publication. We disagree.

The court instructed the jury on the issue of reasonable doubt as follows: “Reasonable doubt. We have talked about reasonable doubt. You have heard the phrase. What does it mean? It doesn’t have any technical or unusual meaning. You can arrive at it simply by emphasizing the word reasonable. Reasonable doubt is a doubt for which a valid reason can be assigned. It’s a doubt which is something more than guess or surmise. It’s not conjecture or fanciful. A reasonable doubt is not a doubt which is raised by someone simply for the sake of raising doubt. Nor is it a doubt suggested by the ingenuity of counsel or any of your fellow jurors, which is not justified by the evidence or lack of evidence in this case. A reasonable doubt is a doubt based on reason and not on the mere possibility of innocence. It is a doubt for which you can in your own mind consciously give a reason. A reasonable doubt, in other words, is a real doubt. It’s an honest doubt. A doubt which has its foundation in the evidence or lack of evidence. It’s the kind of doubt which in the serious affairs of your life you would pay heed and attention to. Of course, absolute certainty in the affairs of life is almost never attainable, as we all know. And the law does not require absolute certainty on the part of the jury before you can return a verdict of guilty. The state does not have to prove guilt beyond all doubt or to a mathematical or absolute certainty. . . . What the law does require, however, is that after hearing all the evidence in the case if there is something in the evidence or lack of evidence which leaves in your minds as reasonable men and women a reasonable doubt about the guilt of the accused, then the accused must be given the benefit of the doubt and acquitted. If there is no reasonable doubt, then the accused must be found guilty. Proof beyond a reasonable doubt is proof which precludes every reasonable hypothesis except guilt. It is consistent with guilt and inconsistent with any other reasonable conclusion. If you can in reason reconcile all of the facts proved with any reasonable theory consistent with the innocence of the accused, then you cannot find him guilty.” (Emphasis added.)

The defendant objected to the charge as given and noted his exception as follows: “I take exception to the court’s not charging as requested on reasonable doubt, presumption of innocence. ... I have provided the court with a written request to charge and I won’t explain further because I believe I have preserved whatever claim I have.” The defendant’s request to charge on the concept of reasonable doubt did not include the language at issue here. Neither the state nor the defendant alerted the court as to its violation of our Supreme Court’s directive to refrain from including such language in instructing the jury as to the definition of reasonable doubt.

“[I]n State v. Delvalle, supra, 250 Conn. 475, our Supreme Court rejected the claim that the use of ingenuity of counsel language was violative of a defendant’s constitutional right to counsel and to a fair trial or that it was plain error. The Delvalle court reasoned that the Supreme Court has repeatedly upheld similar language on the ground that [it] did not, when properly considered in the broader context of the trial court’s instructions in their entirety, [dilute] the state’s burden of proof or otherwise misle[ad] the jury in any way. . . .

“Although the court in Delvalle rejected the constitutional challenge to the ingenuity of counsel instruction, tlie court stated that [t]o avoid any possibility of juror confusion arising from the use of the phrase, we invoke our supervisory authority over the administration of justice to direct our trial courts to refrain from using the ingenuity of counsel language in the future. Id., 475-76.” (Citations omitted; internal quotation marks omitted.) State v. Taft, 57 Conn. App. 19, 28, 746 A.2d 813 (2000), aff'd, 258 Conn. 412, 781 A.2d 302 (2001).

In Taft, this court declined to reverse the defendant’s conviction despite the fact that the trial court in that case had given an ingenuity of counsel instruction. The Taft court was persuaded by the facts that the trial court gave the improper instruction prior to Delvalle’s direction and because, “when viewed in the context of the instructions as a whole, [the improper instruction] could not have misled the jury.” Id. The present case is distinguishable from Taft because the court gave the challenged instruction in this case after Delvalle’s direction.

The issue that presents itself is whether this directive by our Supreme Court, issued pursuant to its supervisory powers, requires an automatic reversal when not followed in a criminal matter. We conclude that it does not and, under the particular circumstances of this case, we deem reversal to be inappropriate. Although the court committed a flagrant, albeit unintentional, violation of the clear directive, we conclude that the fairness and integiity of the proceedings have not been affected and that no manifest injustice has occurred.

Because we need not adhere to a per se requirement of reversal in this circumstance, our standard of review is as it is for any other nonconstitutional challenge to a court’s instruction. We ask whether it is reasonably possible that the jury was misled. Id., 29.

“In determining whether it was . . . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Citation omitted; internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

Our Supreme Court noted that the use of the “ingenuity of counsel” language did not constitute plain error but that the phrase when “taken in isolation, conceivably could misdirect the jury’s attention . . . .’’(Internal quotation marks omitted.) State v. Delvalle, supra, 250 Conn. 475. Our review of the court’s instruction leads us to conclude that the court did not use the phrase in isolation. Read as a whole, the instruction described a reasonable doubt as a real doubt which has its foundation in the evidence or lack of evidence. The court modified the phrase “ingenuity of counsel” with the phrase “or any of your fellow jurors which is not justified by the evidence or lack of evidence in this case.” See State v. O’Neil, 67 Conn. App. 827, 837, 789 A.2d 531 (2002). While the defendant in the present case, as did the defendant in O’Neil, did not specifically agree to the court’s use of the contested language, the defendant failed to raise this specific issue at trial, thereby acquiescing at least implicitly, in the instruction.

As we have stated, “[although we do not condone the trial court’s use of the ‘ingenuity of counsel’ language in its explanation to the jury, which occurred after the Delvalle decision was published, the defendant failed to raise that issue at trial.” Id. We conclude as we did in O’Neil that although the court should have avoided the language in question, the instruction given did not affect the fairness or integrity of the proceedings or result in a manifest injustice to the defendant.

II

The defendant next claims that the court improperly admitted irrelevant and prejudicial hearsay testimony from two of the state’s witnesses, relating to the reasons the victim decided to go to Connecticut during the summer of 1998. We disagree.

The following additional facts are relevant to the defendant’s claim. Prior to the state’s direct examination of Janice Stephens, the victim’s daughter, the defendant’s counsel expressed his concerns that the state intended to elicit hearsay testimony from her. The prosecutor responded that he intended to question Stephens as to why her father decided to travel to Connecticut and live with the defendant. The prosecutor indicated that any statements that the victim may have made to Stephens regarding his intent to go to Connecticut or the reasons why he intended to do so were admissible as statements of the victim’s then existing mental condition. The prosecutor argued that the court would be free to instruct the jury that the statements were not being offered as proof that the victim’s statements were true, but that they were relevant as proof of the victim’s mental condition, his then existing state of mind. The defendant’s counsel argued that, while the victim’s statements to Stephens in regard to his intent to travel to Connecticut were admissible, statements in regard to the reasons why he desired to do so were hearsay.

The court ruled that the victim’s statements to Stephens as to his intent to stay with the defendant and the reasons underlying that intent were not hearsay because they reflected his mental state. The court noted: “[The victim] was saying something that ultimately resulted in a subsequent act. That clearly falls outside the hearsay provisions of the code [of evidence] . . . .” The court further observed that such testimony was admissible as evidence as to what the victim intended to do and why he intended to do it, not for the truth of the victim’s assertions.

Over the defendant’s objection, Stephens testified that the victim told her that he was traveling to Connecticut because he had concerns for his sister’s affairs, that he would “try and gain control of her affairs to make sure that their business was handled properly and that she got everything that she needed.” Before he left New York, the victim told Stephens that he “believed that some of [his sister’s] money was being tampered with and that he . . . had to make sure that the tampering stopped.” He also indicated that the defendant caused him to have such concerns.

The state elicited similar testimony from Renona Pryor, an intimate acquaintance of the defendant. Over the defendant’s objection on the ground of hearsay, the state introduced similar testimony that the court deemed admissible as relevant evidence of the victim’s then existing mental condition. Specifically, Pryor testified that she spoke with the victim after he had arrived in Connecticut. She testified that the victim said that “[h]e was concerned with how [the defendant] was handling his sister’s affairs, her money affairs.”

“Our standard of review concerning evidentiary rulings is well settled. It is a well established principle of law that the trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of that discretion. . . . Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law. . . . And [it] requires a knowledge and understanding of the material circumstances surrounding the matter. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Paris, 63 Conn. App. 284, 290, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

The defendant first argues that the court should have excluded the testimony as being irrelevant. “The challenged [e]vidence is relevant if it has a tendency to establish the existence of a material fact. . . . Relevant evidence is evidence that has a logical tendency to aid the trier [of fact] in the determination of an issue. . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. ... No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason . . . .” (Citations omitted; internal quotation marks omitted.) Id., 292-93.

The defendant also claims that the statements were hearsay. “An out-of-court statement offered to prove the truth of the matter asserted is hearsay and is generally inadmissible unless an exception to the general rule applies.” State v. Hines, 243 Conn. 796, 803, 709 A.2d 522 (1998). The law recognizes, however, an exception for statements of a then existing mental or emotional condition. “An out-of-court statement is not hearsay ... if it is offered to illustrate circumstantially the declarant’s then present state of mind, rather than to prove the truth of the matter asserted.” (Internal quotation marks omitted.) State v. Wideman, 36 Conn. App. 190, 195, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995).

We conclude that the testimony of the witnesses did not constitute hearsay because the state did not offer it to prove the truth of the assertions therein, but rather to show the victim’s state of mind and his reasons for going to Connecticut. Furthermore, this state of mind evidence was relevant to the issue of the defendant’s motive and intent. As our Supreme Court has stated, “ [w]hether the victim’s state of mind is relevant depends ... on the nature of the issues at trial. . . . [E]vidence of a victim’s mental state may be relevant to establish the defendant’s motive to kill the victim.” (Citation omitted; internal quotation marks omitted.) State v. Wargo, 255 Conn. 113, 138, 763 A.2d 1 (2000). The court here appropriately noted that the victim’s statements as to why he intended to go to Connecticut to investigate the defendant’s handling of his sister’s financial affairs was as relevant as any evidence “could be” to this case.

Finally, the defendant argues that the court should have excluded the testimony because it was unduly prejudicial. “Although relevant, evidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. ... Of course, [a]H adverse evidence is damaging to one’s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The trial court . . . must determine whether the adverse impact of the challenged evidence outweighs its probative value. . . . Finally, [t]he trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown. . . . [B]ecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 329-30, 746 A.2d 761 (2000).

As we have stated, the court properly concluded that the challenged evidence was highly relevant to the issues of motive and intent. We conclude that the testimony did not improperly arouse the jurors’ emotions. We also recognize that the court properly instructed the jury to consider the testimony only for its limited purpose, as evidence relating to the issue of motive, not for the truth of the victim’s assertions. “It is to be presumed that the jury followed the court’s . . . instructions unless the contrary appears.” (Internal quotation marks omitted.) State v. McIntyre, 250 Conn. 526, 533, 737 A.2d 392 (1999). Accordingly, we conclude that the court did not abuse its broad discretion in permitting the state to bring this relevant evidence before the jury.

Ill

The defendant also claims that the court improperly admitted evidence of the victim’s attempt to file a complaint with the police. We disagree.

The following additional facts are relevant to this claim. During its case-in-chief, the state elicited testimony from Patrick Freer, a police officer from the town of Stratford. Freer testified that, on June 25, 1998, he responded to a call from the victim, who desired to file a complaint against the defendant. The victim informed Freer that his sister was hospitalized, that the defendant had a power of attorney over her affairs and that he believed, based at least in part on the representations of others, that the defendant was “using her money for his own personal use.” The victim sought to have the police department intervene and give him a power of attorney for his sister. Freer testified that he informed the victim that the police department could not intervene on his behalf because the victim’s complaint dealt with a civil matter.

The defendant’s counsel timely sought to preclude this testimony. He argued that the testimony was irrelevant because the victim’s state of mind was not at issue in the case, that the testimony was hearsay and that the testimony was prejudicial. The court ruled that the testimony was relevant to the issue of the defendant’s motive in committing the crimes and that it was not hearsay because it constituted statements of the victim’s then existing emotional or mental state.

The standard of review and the legal principles set forth in part II of this opinion apply as well to this claim. For the same reasons as we discussed in part II of this opinion, we conclude that the court properly admitted this testimony. Freer’s testimony directly related to the victim’s state of mind, his mental condition as it related to the relationship between himself and his nephew, the defendant. As such, it was powerful evidence as to the issue of the defendant’s motive. Likewise, given its probative value, we do not conclude that the court abused its discretion when it permitted Freer to relate the details of his meeting with the victim.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

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

       The court instructed the jury on June 8,2000. Our Supreme Court released Delvalle on August 24, 1999.

       Connecticut Code of Evidence § 8-3 (4) excludes from the rule against hearsay “[a] statement of the declarant’s then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed.”

       The court stated: “In this case, you have heard testimony from witnesses describing the statements that [the victim] allegedly made that relate to his reasons in coming to Connecticut .... The state offered this type of testimony as evidence of [the victim’s] state of mind. The state did not offer that evidence ... to establish the truth, the accuracy or validity of whatever [the victim] thought at the time he made the statements. If you find that [the victim] made the statement attributed to him, you may use that fact only to determine whether [he] later acted consistently with his earlier declared state of mind. However, you may not use the beliefs or opinions he stated as evidence of the truth, accuracy orfactual correctness of his beliefs.”

       We also observe that the court properly instructed the jury to consider Freer’s testimony solely as to the issue of the victim’s then existing state of mind, not to consider as true the victim’s complaint.