text:
    STATE OF CONNECTICUT v. GARY LEE LAKE
    (15151)
    Dupont, C. J., and Landau and Freedman, Js.
    Argued September 25
    officially released December 10, 1996

      Michael J. Melly, special public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mark Solak, state’s attorney, and Vincent J. Dooley, assistant state’s attorney, for the appellee (state).
   DUPONT, C. J.

The defendant, Gary Lee Lake, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l) and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The jury returned a verdict of not guilty on a count of kidnapping in the first degree. General Statutes § 53a-92 (a) (2) (A). The defendant claims that the trial court’s refusal to allow evidence of the victim’s prior sexual conduct and its refusal to admit an exhibit into evidence during the cross-examination of a particular witness violated his constitutional rights. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. On August 25, 1993, the victim left work and went to the home of her brother, Paul, to visit with her sister-in-law. Paul and the defendant arrived shortly thereafter. The victim agreed to go to a lounge with Paul and the defendant to discuss the defendant’s relationship with the victim’s sister, Linda, whom the defendant had been dating. The victim drove the defendant to his mother’s house so that he could shower and change his clothes. They then went to the lounge and joined Paul, Linda, the defendant’s brother Jerry and another man, who were sitting together at a table. The defendant became upset upon seeing Linda with his brother and remained agitated for most of the evening. The victim tried to ignore the defendant and the arguments at the table by speaking with other people in the lounge. The victim had only one drink, while the defendant had several.

When the victim wanted to go home to receive an expected telephone call, the defendant insisted on getting a ride home with her. An argument ensued, and the victim finally agreed to drive him home after she received her telephone call. When they reached the victim’s apartment, the defendant followed the victim inside, even though the victim had asked him to wait in the car. The defendant grabbed the victim around the throat and started choking her. The victim could hardly breathe and her body felt numb. The defendant dragged her up the stairs, smashing her body into the wall and screaming at her to shut up. He threw her on the couch in the living room. When the victim asked the defendant why he was doing this, he responded, “This is the only way I can pay your sister back” for being with his brother.

The telephone rang several times during the night, and each time it rang the defendant would choke the victim and shove her head into the sofa cushions so that she could not breathe. The victim thought, at one point, that the defendant would kill her, so she lay very still. The defendant, thinking he had actually killed her, said, “Good, that’s one fucking bitch down, now your sister’s the next one.”

The victim opened her eyes and the defendant grabbed her by the neck again. Then the defendant forced the victim to drink beer. When she resisted, the defendant told her, “I said drink the fucking beer. When they find you dead here, I’m gonna make it look like a suicide and that’s why you were drunk.” The defendant then drank several beers while the victim pretended to drink. The defendant again choked her and later threatened her with kitchen knives. The defendant dragged the victim upstairs and banged her head into a cabinet several times. He tried to open her bedroom door, but found it locked. He then dragged her into a bedroom, threw her on a bed, removed her clothing, and performed multiple acts of sexual intercourse, often choking and punching her in the process.

Afterward, the defendant dragged the victim downstairs to the living room, where he tied her wrist to his with a shoelace from one of her sneakers. He lay on top of her on the couch and fell asleep. While the defendant slept, the victim maneuvered herself out from under him and burned through the shoelace with a lighter she retrieved from an adjacent table. She then ran next door to her neighbor’s house, where she called the police.

The defendant testified at trial that the sexual intercourse was consensual, that he and the victim had gone on dates prior to that night, and that the victim had asked him to tie her hands together prior to the sex act. He testified that he fell asleep on the couch and was surprised when the police came to pick him up the next morning.

I

The defendant first argues that the trial court incorrectly applied General Statutes § 54-86f, commonly known as the rape shield statute, when it granted the state’s motion in limine and refused to allow testimony regarding the victim’s prior sexual conduct. The motion was made pursuant to § 54-86f and included both the charge of sexual assault and the charge of unlawful restraint. The defendant argues that the excluded evidence was so relevant and critical to his defense that its exclusion violated his sixth amendment right of confrontation of witnesses and his fourteenth amendment due process right to call witnesses on his own behalf under the United States constitution and his right under the Connecticut constitution to confront the witnesses against him.

The evidence that the trial court excluded consisted of the testimony of two former boyfriends of the victim. A hearing was held out of the presence of the jury, as required by § 54-86f. The victim denied that she had suggested that the defendant tie her hands together during intercourse. She also denied that she had asked others to tie her up during sexual relations. The defendant testified that the sexual intercourse was consensual and that the victim “asked simply if I’d mind trying something new. . . . She asked that I’d tie her hands behind her back.” He testified that he tied her hands together with a shoelace.

The first witness, who had lived with the victim for more than one year, testified that the victim had asked on more than one occasion to be subdued, tied up, or held down during sexual relations. He stated that this had not happened until they had been dating for four to six months and living together. He stated that while she occasionally asked to be spanked during sexual relations, she never asked him to strangle her or to bang her head against the wall. He stated that he never used shoelaces to tie her up, and she never accused him of raping her.

The second boyfriend, who lived with the victim for three or four years, testified that the victim “liked to be dominated.” He stated that she had liked to be forced down and held by her hands during sexual relations, but he had never used anything to tie her down. He also stated that she did not ask him to dominate her until after they had known each other for a while and that she never asked him to beat or strangle her. He further testified that she never accused him of rape.

The trial court granted the state’s motion in limine, noting that the evidence did not establish “the necessary repetition of unique behavior that would be required to show that this testimony is so relevant as to implicate the defendant’s constitutional right to confrontation.” The court further found that the testimony was not relevant to the counts of kidnapping and unlawful restraint because “this evidence is remote, again does not lend credence to a claim that this is repetitive, unique behavior on her part and . . . I’m convinced that the prejudicial effect on the victim would far outweigh the probative value of the evidence as it applies to the facts of this case.”

A

The state argues that this court should not review this claim because the defendant is raising arguments about this issue for the first time on appeal, and, further, the defendant failed to request review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The state is correct that during the hearing on the state’s motion in limine the defendant did not claim that the evidence should be admitted under subdivision (2) of the rape shield statute. The defendant did, however, claim admissibility under subdivision (4) during that hearing. Thus, one of the defendant’s claims that he raises on appeal was preserved, and the other was not.

We first discuss his unpreserved claim. In order to prevail on a claim raised for the first time on appeal, the defendant must show that “all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. The last two conditions of Golding, however, are reached only if the first two conditions are met. The first two conditions relate to whether a claim is reviewable and the last two to the substance of the actual review. State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). Actual review, therefore, is available only if there is a record and the claim is constitutional in nature. Id. Section 54-86f provides in part that “no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct . . . .” (Emphasis added.) The victim did not testify on direct examination about her prior sexual conduct, although she did so at the rape shield statute hearing. See State v. Butler, 11 Conn. App. 673, 682-83, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 937 (1987) (testimony at rape shield statute hearing insufficient for subdivision [2]). The record here does not support the claim and we, therefore, do not grant review under Golding of the defendant’s unpreserved claim that his proffered evidence was admissible under subdivision (2) of the rape shield statute.

The defendant’s claim that the testimony should have been admitted under subdivision (4) of the statute, however, was properly preserved for appeal and, therefore, is reviewable.

B

Evidence of a victim’s prior sexual conduct is inadmissible under § 54-86f unless one of the statutory exceptions is satisfied. State v. Christiano, 228 Conn. 456, 469, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994); State v. Rinaldi, 220 Conn. 345, 354, 599 A.2d 1 (1991); State v. Rothenberg, 195 Conn. 253, 259-60, 487 A.2d 545 (1985). Section 54-86f was “enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is such highly prejudicial material. Berger, ‘Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom,’ 77 Colum. L. Rev. 1, 56-57 (1977). Our legislature has determined that, except in specific instances, and taking the defendant’s constitutional rights into account, evidence of prior sexual conduct is to be excluded for policy purposes. Some of these policies include protecting the victim’s sexual privacy and shielding her from undue harassment, encouraging reports of sexual assault, and enabling the victim to testify in court with less fear of embarrassment. See id., 54. Other policies promoted by the law include avoiding prejudice to the victim, jury confusion and waste of time on collateral matters. Id., 56.” State v. Cassidy, 3 Conn. App. 374, 379, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985).

The constitutional interests with which we are here concerned are the defendant’s right to confront the witnesses against him, and the defendant’s right to call witnesses in his own behalf. A court must examine the facts and circumstances of the particular case in order to determine whether the state’s interest in excluding evidence should yield to the constitutional rights of the defendant. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 302-303, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Cassidy, supra, 3 Conn. App. 380.

Our rape shield statute “directs the court to examine the defendant’s constitutional rights, implicating both his sixth amendment right to confront witnesses and his fourteenth amendment due process right to call witnesses on his own behalf. See Chambers v. Mississippi, supra, [410 U.S.] 294.” State v. Cassidy, supra, 3 Conn. App. 380. Cross-examination is the principal method to test the believability of a witness and the truth of his testimony. The constitutional safeguard for cross-examination is met when defense counsel is permitted to expose to the jury facts from which the jurors can appropriately draw inferences and make conclusions as to the reliability of the witness.

The right to confront and cross-examine witnesses is not absolute. The areas and subjects of the examination must be relevant. In this case, the cross-examination of the victim was not restricted and the defendant was able to question the victim in detail about the events of the night about which she testified. He specifically asked her if she had asked the defendant to tie her up that night and she denied it. The defendant’s cross-examination brought forth many inconsistencies in the victim’s testimony and in the testimony of other witnesses. He had, therefore, ample opportunity to test her credibility. The cross-examination, even without the excluded evidence, was sufficient to bring facts to the jury’s attention that would affect the jury’s opinion about the credibility of the victim. See id., 381-82. “The court need not allow additional impeachment evidence through another witness just because the defendant is not sure if he developed a large enough doubt in the jury’s mind about the victim’s credibility.” Id., 382.

The exclusion of the witnesses’ testimony also implicates the defendant’s constitutional right to present witnesses in his own defense. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).

The defendant claims that he had a right to present the testimony of the victim’s former boyfriends to establish a pattern of conduct of the victim and to support his defense of consent by showing other instances where the victim asked to be tied up or restrained during sexual relations. This claim is similar to the defendant’s claim in State v. Cassidy, supra, 3 Conn. App. 382, where the defendant claimed “he had a right to present . . . evidence because it established a pattern of conduct by the victim, and it supported his defense of consent by showing another instance where the victim became irascible during a consensual sexual encounter.”

The evidence the defendant in Cassidy sought to in troduce consisted of testimony from another man that the victim “and he had gone to her home together about a year- before the night in question. They had sexual relations, during which she began ‘going crazy’ and screaming about her husband who was killed in Vietnam. The witness told her to forget about it and went to sleep. Nothing eventful happened for the rest of the night. The next morning she showed him pictures of her husband.” Id., 378-79. The defendant sought to introduce this evidence in support of his contention that his sexual relations with the victim were consensual but afterwards her attitude changed and she began to become hysterical and screamed about her husband who had died in Vietnam. The defendant argued that this “evidence should have been admitted to show a pattern of conduct by the victim, and because it was highly relevant, probative and essential to the defense. He claim [ed] that applying the statute . . . violated his constitutional rights of confrontation and to present witnesses in his own behalf.” Id., 379. We upheld the trial court’s exclusion of the evidence under subdivision (4) of the rape shield statute.

In Cassidy, we considered the fact that only one person had corroborated the defendant’s story and determined that one other sexual encounter did not constitute a pattern of behavior. Id., 384. The defendant could argue the opposite here because there were two witnesses who would testify that the victim liked to be tied up or dominated during sexual relations. Only one stated, however, that the victim had asked him to tie her up. The other mentioned only holding her down. Further, neither witness testified to having beaten or strangled the victim during consensual sex; nor did the victim accuse either of them of sexual assault. Finally, both witnesses testified that the victim did not suggest engaging in such behavior until after several months when their relationship had become more solid.

Even if the testimony of the two witnesses would show a pattern of behavior of the victim as to her behavior with them, that pattern does not extend to the defendant. The victim’s testimony has one striking dissimilarity with the testimony of the two witnesses because she testified that the defendant tied her wrist to the defendant’s wrist, not to her other wrist. Such restraint, therefore, was unrelated to the kind of restraint about which the defendant’s witnesses would have testified. Additionally, the victim’s sexual encounter with the defendant, even if the defendant’s testimony is to be believed in its entirety, does not fall within the pattern of her behavior with the witnesses. According to the defendant, this was the first sexual encounter between the two and they did not live together. Further, sexual intercourse while being restrained at the request of a consensual partner might explain the remains of a shoelace around the victim’s wrist, but would not explain the numerous bruises around the victim’s neck and body, which were present in this case.

“In exercising the right to present witnesses in his own defense, the defendant ‘must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ Chambers v. Mississippi, supra, [410 U.S.] 302 . . . .” (Citations omitted.) State v. Cassidy, supra, 3 Conn. App. 383. “The constitution does not require that the defendant be permitted to present every piece of evidence he wishes, although exclusionary rules of evidence cannot be applied ‘mechanistically’ to deprive the defendant of his rights. Chambers v. Mississippi, supra [302].” State v. Cassidy, supra, 383. If proffered evidence is not relevant, the defendant’s right to present witnesses in his own behalf has not been affected and the evidence can properly be excluded.

“As a general principle, evidence is relevant if it has a tendency to establish the existence of a material fact. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. . . .” (Citation omitted; internal quotation marks omitted.) State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978). The fact that the victim had, on prior occasions with long-term boyfriends, asked to be restrained, is related to the defendant’s defense that the victim had asked him to restrain her. The excluded evidence, therefore, has some relevance to the defendant’s defense.

Although the evidence is related to the defendant’s defense, we must next determine whether it should, nevertheless, be excluded because of its potential prejudicial effect. “Evidence should be excluded as unduly prejudicial: (1) where it may unnecessarily arouse the jury’s emotions, hostility or sympathy; (2) where it may create distracting side issues; (3) where the evidence and counteiproof will consume an inordinate amount of time; and (4) where one party is unfairly surprised and unprepared to meet it.” State v. Rinaldi, supra, 220 Conn. 356. “The prejudice sought to be avoided through the rape shield statute extends, however, beyond those listed above. When balancing the probative value of evidence of a sexual assault victim’s prior sexual conduct against its prejudicial effect on the victim, the court should also consider whether the evidence invades the victim’s sexual privacy, whether it is unnecessarily harassing, and whether it will subject the victim to undue embarrassment.” Id.

In this case, the testimony would have a prejudicial effect on the victim and would invade her sexual privacy. In addition, the evidence would produce collateral issues regarding the nature of the victim’s prior sexual activities. We, therefore, conclude that the evidence should have been excluded because it was only minimally relevant and because it was unduly prejudicial.

c

The defendant also claims that the excluded testimony should have been admissible as to the unlawful restraint count. The trial court ruled that it was not relevant to the unlawful restraint charge and that its prejudicial effect outweighed any probative value. Section 54-86f, on its face, states that evidence of the victim’s prior sexual conduct is inadmissible “[i]n any prosecution for sexual assault under sections 53a-70, 53-70a, and 53a-71 to 53a-73a,” unless one of the exceptions is met. Thus, the language of the statute does not include the crime of unlawful restraint. The question then becomes whether the statute should apply, as a matter of common law, beyond its designated language. See State v. Kulmac, 230 Conn. 43, 52, 644 A.2d 887 (1994).

In Kulrnac, the defendant had been convicted of numerous counts of sexual assault and of risk of injury to a child. Id., 46-48. On appeal, the trial court was upheld in its ruling that the rape shield statute applied to the risk of injury counts “because offenses listed in the rape shield statute were included in the same prosecution as the risk of injury charges . . . .” Id., 52.

The Kulmac court considered the policies behind the rape shield statute, “to protect victims’ personal privacy, to shield them from unnecessary harassment and embarrassment in court, and to encourage them to disclose sexual assault by reducing some of the deterrents to reporting”; id., 53; and determined that the same policies applied to a risk of injury charge as to a sexual assault charge. “C and K were specifically entitled to the protection of the rape shield statute for many of the charges tried in this case. We cannot accede to the argument that the policies promoted by the rape shield statute are as tightly linked to the particular statutory section as the defendant suggests. As victims of multiple kinds of sexual abuse, C and K were within the class of witnesses that the rape shield statute contemplates. It is irrelevant that the prosecution for sexual assault included charges of risk of injury as well.” Id., 54. The court went on to conclude as a matter of common law that the rape shield statute applies to prosecutions for risk of injury to a child under General Statutes § 53-21 if the prosecution also involves allegations of sexual assault under the statutory sections included in the statute. Id.

The charges in Kulmac relating to the crimes of sexual assault and risk of injury stemmed from the same incidents. It is not clear whether that is true here. In the present case, there are two factual scenarios that could have led the jury to return a verdict of guilty as to the count of unlawful restraint. The jury could have found the elements of unlawful restraint within the facts that led to the sexual assault conviction, or the jury could have found that the elements were satisfied in the events that occurred after the sexual assault. The victim claimed that it was after the sexual assault when the defendant tied her wrist to his own wrist and lay on top of her. The defendant did not ask for a bill of particulars at trial and did not object to the charge as given, which did not connect or relate any particular facts to the charge of unlawful restraint.

We cannot know, therefore, which of the two fact patterns caused the jury to find the elements of unlawful restraint to have been proven beyond a reasonable doubt. The evidence here supported either, and the general verdict of guilty to the single count of unlawful restraint must be upheld. See State v. Arnold, 201 Conn. 276, 283, 514 A.2d 330 (1986). If the jury found the defendant guilty of unlawful restraint on the basis of the events occurring after the sexual assault, the proffered testimony would be irrelevant. The testimony had relevance only to whether the victim sought restraint during consensual sexual intercourse, but was totally unrelated to a desire to be restrained when not so engaged. The evidence was properly excluded because, even if the rape shield statute did not apply, it was irrelevant.

II

The defendant’s second claim is that the trial court should have admitted into evidence the undeipants of the victim as an exhibit during the cross-examination of a police officer. The underpants were shown to the jury during the cross-examination and were later admitted as a full exhibit.

Officer Margaret Gagnon had collected the victim’s clothing at the hospital, including the underpants the victim had been wearing. Gagnon testified, while holding the bag containing the underpants, that they were in substantially the same condition as when she first obtained them. On cross-examination, Gagnon admitted that a marking was now present on the garment that had not been there originally, and that now there were holes in the undeipants. Defense counsel asked, at this point, to show the underpants to the jury. Upon being informed that the underpants had only been marked for identification and were not a full exhibit, the defendant asked that they be entered as a full exhibit. The state’s objection was sustained, out of the presence of the jury, because “something has happened to that and it hasn’t been explained and that’s a gap in the chain of custody.” The court stated that the defendant could admit the underpants later during his case-in-chief.

The next day, the defendant renewed his request to enter the undeipants as an exhibit, claiming that was necessary in order to impeach Gagnon. The court denied the request. On further cross-examination, Gag-non conceded that the underpants had a one inch hole in them that had not been present before. When Gagnon could not say whether the garment had been tom or cut, the defendant asked to show the hole to the jury. This was allowed. Later that day, a criminologist testified that she had cut two holes in the underpants in order to perform tests on the fabric. The undeipants were admitted as a full exhibit at that time.

The defendant claims that the delay in admitting the underpants as a full exhibit denied him his constitutional right to confront witnesses. The defendant argues that excluding the underpants for the reason that a gap existed in the chain of custody was improper. He states that because he was attempting to introduce the underpants for purposes of testing the credibility of Gagnon, the chain of custody should not have been an issue.

The defendant’s contentions are meritless. The defendant was able to present an adequate cross-examination of Gagnon by pointing out discrepancies in her testimony without the use of the underpants as a full exhibit. The defendant also was able to show the hole in the underpants to the jury during Gagnon’s testimony. The underpants later became an exhibit and the jury was able to examine them at that time. Any possibility of harm to the defendant was cured at that point. See Stamford v. Kovac, 229 Conn. 627, 631-32, 642 A.2d 1190 (1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

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

       General Statutes § 54-86f provides: “In any prosecution for sexual assault under sections 53a-70, 53a-70a, and 53a-71 to 53a-73a, inclusive, no evidence of the sexual conduct of the victim may be admissible unless such evidence is (1) offered by the defendant on the issue of whether the defendant was, with respect to the victim, the source of semen, disease, pregnancy or injury, or (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testified on direct examination as to his or her sexual conduct, or (3) any evidence of sexual conduct with the defendant offered by the defendant on the issue of consent by the victim, when consent is raised as a defense by the defendant, or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights. Such evidence shall be admissible only after a hearing on a motion to offer such evidence containing an offer of proof. On motion of either party the court may order such hearing held in camera, subject to the provisions of section 51-164x. If the proceeding is a trial with a jury, such hearing shall be held in the absence of the jury. If, after hearing, the court finds that the evidence meets the requirements of this section and that the probative value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. The testimony of the defendant during a hearing on a motion to offer evidence under this section may not be used against the defendant during the trial if such motion is denied, except that such testimony may be admissible to impeach the credibility of the defendant if the defendant elects to testify as part, of the defense.”

       The sixth amendment to the United States constitution provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against, him . . .

       The fourteenth amendment to the United States constitution provides in pertinent part: “No State shall . . . deprive any person of life, liberty, or property, without due process of law

       Article first, § 8, of the Connecticut constitution provides in pertinent part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . .

       The trial court stated, after hearing the testimony of the witnesses and oi-al argument, “We start out with the premise that you’re asking me to do something that the rape shield statute directly prohibits, because you want me to introduce evidence of her sexual conduct with others as opposed to simply the defendant.....Now, there is a catch-all exception, which is sub[division] (4) of that statute, which allows the court to admit evidence otherwise so relevant and material to a critical issue in the case that excluding it would violate tho defendant’s constitutional rights. . . . [If] the court finds the evidence meets the requirement of § 54-86f (4), and that, the proba.tive value of the evidence outweighs its prejudicial effect on the victim, the court may grant the motion. So as the court sees it, at least as to [the sexual assault count], the issues are twofold ... is this evidence of sexual conduct with another so relevant to a critical issue in the case that excluding it would violate the defendant’s constitutional rights, and . . . does the probative value of this evidence outweigh the prejudicial effect it would have visa-vis the victim? After listening to the testimony of the witnesses, the court is convinced that there is little similarity between this prior conduct and the facts alleged in this case and the court has asked itself this question, is there an indication that the evidence indicates repetition of unique behavior, and I don’t think that it did. ... I don’t think that [the testimony] established the necessary repetition of unique behavior that would be required to show that this testimony is so relevant as to implicate the defendant’s constitutional right to confrontation. And I note further that . . . there’s no evidence that on any of these prior occasions . . . the alleged victim made any charges ... of rape. So for those reasons I’m going to find the proffered evidence would not be relevant to these issues, that it would not comply with the requirements of the rape shield law to admit it.”

       The defendant did request such review in his reply brief.

       The defendant did not so argue.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    ROSARIO FRESTA v. CONNECTICUT MASON CONTRACTORS, INC., ET AL.
    (14979)
    Schaller, Spear and Daly, Js.

      Argued September 18
    officially released December 10, 1996

      Lucas I). Strunk, with whom, on the brief, was Nancy E. Limoncelli, for the appellants (named defendant et al.).

      Loida John-Nicholson, assistant attorney general, with whom, on the brief, were Richard Elumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant second injury fund).
   SCHALLER, J.

The employer and its workers’ compensation insurer (defendants) appeal from the decision of the compensation review board affirming the commissioner’s denial of their request to transfer a workers’ compensation claim to the second injuiy fund. The defendants claim that the board improperly affirmed the commissioner’s order. We affirm the decision of the board.

The following facts axe relevant to the resolution of this appeal. On October 9,1987, Rosario Fresta suffered an employment related injury to his back, which arose out of and in the course of his employment with Connecticut Mason Contractors, Inc. Fresta sought workers’ compensation benefits from Connecticut Mason and its insurer, Aetna Casualty and Surety Company. The defendants conceded that the injury was com-pensable.

On February 16, 1988, the defendants sent Fresta, through his attorney, a voluntary agreement regarding compensation benefits. The defendants did not send this agreement to the fund. On March 11, 1988, the defendants sent a written notice to the fund indicating their intention to transfer liability to it after the 104 week period expired, but they did not send the February 16, 1988 agreement to the fund at that time. In June, 1989, the defendants sent a second voluntary agreement to Fresta’s attorney. Again, it did not send a copy of the agreement to the fund.

During the period from February, 1988, through April, 1990, Fresta received workers’ compensation benefits pursuant to an oral compensation agreement with the defendants. In April, 1990, Fresta returned signed copies of the agreement that he made -with the defendants regarding these benefits. After receiving the signed agreement from Fresta, the defendants sent a copy of the agreement to the fund. The fund, therefore, did not receive a copy of the agreement between the defendants and Fresta until April 4, 1990.

On June 1, 1993, the commissioner denied transfer of liability to the fund because the defendants had not provided the fund with a copy of their agreement with Fresta within the time period set forth in General Statutes (Rev. to 1987) § 31-349. The defendants appealed to the compensation review board challenging the commissioner’s order. On June 27, 1995, the board affirmed the commissioner’s order. This appeal followed.

The defendants’ first claim is that the notice and information that they provided to the fund on March 11,1988, satisfied the notice provisions of § 31-349. This claim is unavailing. When a carrier or employer seeks to transfer a claim to the second injury fund pursuant to § 31-349, it must provide the fund both notice of the pending case and a copy of the agreement or award ninety days prior to the expiration of the 104 week period. General Statutes (Rev. to 1987) § 31-349. “[A]s a condition precedent to the liability of the fund, the employer or the insurance carrier [must] do all those things specified in [§ 31-349] . . . .” Soares v. Max Services, Inc., 42 Conn. App. 147, 165, 679 A.2d 37 (1996). “The language is clear that, in addition to providing the fund with notice ‘of the pending case,’ the employer or insurer must provide the fund with a copy of either the agreement or the award.” Dos Santos v. F. D. Rich Construction Co., 233 Conn. 14, 21, 658 A.2d 83 (1995).

Despite the defendants’ failure to provide the fund a copy of an agreement or award within the statutory period, the defendants contend that because the fund was aware that there was an oral compensation agreement between them and Fresta, the “agreement” provision of § 31-349 was satisfied. We do not agree.

In Dos Santos, our Supreme Court discussed what constitutes an agreement for purposes of § 31-349. The court stated that “a document qualifies as a copy of the ‘agreement’ under § 31-349 if it fairly reflects the material terms of the actual arrangement for workers’ compensation benefits to which the employer (or its insurer) and the employee have assented.” (Emphasis added.) Id., 27. An “agreement” for purposes of § 31-349 must be more than a mere oral understanding between the parties. It must be a document, some copy of an agreement that “provide[s] the fund with timely notice of the financial agreement reached between the parties, the nature of the employee’s claim and other medical information necessary for the fund to determine its liability-” Id., 26. Here, the defendants sent no document or agreement to the fund regarding the nature of the financial agreement between them and Fresta within the statutory period. The defendants, therefore, did not satisfy the agreement provision of § 31-349.

The defendants’ next claim is that, because Fresta did not sign or return the voluntary agreements until after the statutory period expired, they could not comply with § 31-349. Fresta’s failure to return a signed agreement, however, does not relieve the defendants of their duty to supply the fund with an agreement or award within the statutory period. Although the defendants did not have a signed agreement, they had the opportunity to provide the fund with one or both of the voluntary agreements that they had sent to Fresta, or to reduce their oral agreement with Fresta to writing and to submit it to the fund. “[T]he fund is in no worse position to evaluate the proposed transfer of a particular case merely because it must look to a valid, yet unsigned and unapproved, agreement between the parties.” Dos Santos v. F. D. Rich Construction Co., supra, 233 Conn. 26.

The defendants’ final claim is that they should be afforded equitable relief despite their failure to comply with the statutory notice requirements. “Where a cause of action has been created by statute, strict compliance with the prescribed procedure has been deemed essential.” (Internal quotation marks omitted.) Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384, 544 A.2d 673, cert. denied, 209 Conn. 813, 550 A.2d 1083 (1988). Because the defendants failed to comply strictly with the notice provisions of § 31-349, their claim for equitable relief must be denied.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 198Y) § 31-349 (a) provides in relevant part: “As a condition precedent to the liability of the second ipjury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-weelc period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second ipjury fund, and shall make available to the custodian all medical reports as the custodian shall desire. . . .” We note that the General Assembly revised the notice provisions of General Statutes § 31-349 in 1995. Public Acts 1995, No. 95-277, § 3, effective July 1, 1995.

       It is not clear from the record whether the original voluntary agreements sent to Fresta contained the same terms as the oral agreement that the defendants claim had been reached with Fresta concerning compensation benefits. If the oral agreement had slightly different terms, the defendants needed to reduce this oral agreement to writing and to submit it to the fund within the statutory period. Alternatively, the defendants could have obtained an award and provided a copy thereof within the statutory period.


author: FOTI, J.

text:
    MICHAEL ABBOTT v. GENERAL DYNAMICS CORPORATION, ELECTRIC BOAT DIVISION, ET AL.
    (15203)
    Foti, Lavery and Daly, Js.
    Argued September 24
    officially released December 10, 1996

      Booth M. Kelly, Jr., for the appellant (named defendant).

      Taka Iwashita, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough and Michael Belzer, assistant attorneys general, for the appellee (second injury fund).
   FOTI, J.

The employer, the Electric Boat Division of General Dynamics Corporation (Electric Boat), appeals from the decision of the workers’ compensation review board (board) upholding the decision of the compensation commissioner (commissioner) that Electric Boat could not transfer liability to the second injury fund (fund) until it paid benefits for 208 weeks. The issue on appeal is whether the board improperly applied General Statutes § 31-349 to require the employer to pay more than 104 weeks of temporary total disability benefits before transferring liability to the fund.

The commissioner found the following facts. The plaintiff, Michael Abbott, had a history of injuries to his back and neck. On August 3,1990, he again sustained injuries to his neck and back from a single accident. After numerous consultations and treatments, the plaintiff underwent cervical surgery. As a result of the surgery, the plaintiff died on November 5, 1992. The plaintiff had received total disability benefits from the date of injury until his death. He is survived by a dependent child, Dustee L. Abbott, whose date of birth is August 21, 1975. After her father’s death, she received dependent’s benefits pursuant to General Statutes § 31-306.

The commissioner ruled that benefit liability was transferable to the fund pursuant to General Statutes § 31-349. Because there were two separate preexisting injuries that were aggravated by the single accident, however, the commissioner concluded that Electric Boat could not transfer benefit liability until it paid benefits for 208 weeks.

Electric Boat petitioned for review of the commissioner’s decision to the board. The board upheld the commissioner’s decision. It ruled that “[wjhere a claimant has suffered more than one compensable injury from an accident, and those injuries are not causally related to each other . . . [the term] ‘disability’ as used in § 31-349 (a) refers to each individual injury for the purpose of calculating the 104 week period.”

In appealing the board’s decision to this court, Electric Boat claims that the board improperly interpreted § 31-349 and the Supreme Court decisions of Lovett v. Atlas Truck Leasing, 171 Conn. 577, 370 A.2d 1061 (1976), and Hernandez v. Gerber Group, 222 Conn. 78, 608 A.2d 87 (1992), in determining that it could not transfer benefit liability to the fund after 104 weeks, but instead had to pay benefits for 208 weeks before the fund would become responsible.

In evaluating the board’s decision, we recognize that “ ‘[t]he power and duty of determining the facts [rest] on the commissioner, the trier of facts. . . .The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’. . . Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).” Hernandez v. Gerber Group, supra, 222 Conn. 81-82 n.3. “The board does not retry the facts and ... is bound by the commissioner’s findings.” Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 135, 655 A.2d 270 (1995).

“Under § 31-349, the Connecticut second injury fund statute, [i]f an employee who has ... [a] permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, the employer’s obligation is limited to the first 104 weeks of the employee’s disability. Thereafter, liability for all compensation for the injury shifts to the [f]und.” (Internal quotation marks omitted.) Hernandez v. Gerber Group, supra, 222 Conn. 82. “This allocation of liability was intended to charge the employer only with an approximation of those benefits attributable solely to the second, employment related injury. By charging the employer with a predetermined period of 104 weeks of liability, the legislature sought to eliminate the administrative problems inherent in a case-by-case apportionment process. [2] A. Larson, [Workmen’s Compensation Law (1994)] § 59.34 (b), p. 10-553." Davis v. Norwich, 232 Conn. 311, 321, 654 A.2d 1221 (1995). “[T]he legislature established the [second injuiy] fund, primarily to encourage the employment of persons with an existing disability and, at the same time, to provide adequate workers’ compensation benefits for them.” Id., 320.

The board relied on Lovett v. Atlas Truck Leasing, supra, 171 Conn. 577, in affirming the commissioner’s decision that each disability is a separate injury pursuant to § 31-349. In that case, our Supreme Court stated that “the second injury fund may become liable for permanent disability to each part, of the body covered by the act, with each disability to be considered a separate injury, notwithstanding the fact that more than one injury may arise out of the same accident.” Id., 585-86. In Lovett, the plaintiff suffered numerous injuries, including damage to both eyes, when a tire exploded. Id., 579. The plaintiff had a preexisting condition in each eye known as an astigmatism. Id. After the explosion, the plaintiff had lost 40 percent of the vision in his right eye. Id., 580. The commissioner found that the right eye suffered permanent partial impairment, but that the fund did not have present liability because the compensation award was less than 104 weeks. Id., 580 n.2. The plaintiff completely lost vision in his left eye as a result of the explosion. Id. The commissioner did not allow transfer of the benefits for the injury to the left eye because the disability in that eye would have been the same after the explosion regardless of whether the plaintiff had the preexisting astigmatism. Id., 581.

Electric Boat argues that Hernandez v. Gerber Group, supra, 222 Conn. 78, rejects the board’s interpretation that 104 weeks must be paid on each body part before liability can be transferred under § 31-349. In Hernandez, the plaintiff had a preexisting heart condition. He suffered a heart attack in the course of his employment. Id., 80. During the course of treatment, the plaintiff suffered permanent partial disability of his leg. Id., 81. The commissioner found that there was a direct causal relationship between the preexisting heart condition and a later injury to the leg. The commissioner distinguished the facts from Lovett v. Atlas Truck Leasing, supra, 171 Conn. 577, because the commissioner found the causal connection between the preexisting condition and the subsequent injury that was lacking in Lovett. Hernandez v. Gerber Group, supra, 85-86. Our Supreme Court concluded that the commissioner properly transferred benefit payments to the fund after 104 weeks. Id., 81.

Electric Boat challenges the commissioner’s finding that there were two separate injuries. Electric Boat sets out a version of the facts to distinguish this case from Lovett and more closely to parallel Hernandez. It contends that the accident caused injury to the plaintiff s head and neck only, and that this injury led to the aggravation of the preexisting condition of his back. This is not the factual situation found by the commissioner in this case. The plaintiff in this case had preexisting conditions in both his back and neck. The commissioner found that the single accident caused injury to both the plaintiffs neck and back, which aggravated the preexisting conditions of those body parts. In Hernandez, there was only one injury and one preexisting injury, both of which contributed to the heart attack that led to the leg injury. The issue was whether liability could be transferred pursuant to § 31-349 where the preexisting condition affected a different body part. In Lovett, the preexisting condition entered the chain of causation only with respect to the injury to the right eye. Only the injury to the right eye was potentially transferable pursuant to § 31-349. The Supreme Court did not address, in either case, the situation of two compensable disabilities transferred pursuant to § 31-349. Neither decision, therefore, is dispositive of the issue before this court.

These decisions, however, provide us with the policy behind the fund to help us resolve the issue before us. In Hernandez, our Supreme Court stated that “[t]his case illustrates the wisdom of the legislature’s policy of requiring the [f]und to assume liability for injuries that are causally related to preexisting disabilities. If persons with a history of heart trouble are at risk for developing leg problems, and the [f]und did not pay for those leg problems, it would be rational for employers to discriminate against workers with a history of heart trouble, and employers who did not so discriminate would be unfairly disadvantaged. That would be precisely the result that the [f]und was designed to prevent. A statute is not to be interpreted to thwart its purpose. . . .” (Citations omitted; internal quotation marks omitted.) Hernandez v. Gerber Group, supra, 222 Conn. 86-87; see also Lovett v. Atlas Truck Leasing, supra, 171 Conn. 581-84.

“The legislature’s remedial purpose in enacting § 31-349 is well established. To prevent discrimination against [workers with disabilities], while providing the benefits of [workers’] compensation to such workers, virtually every state has enacted some form of second injury fund legislation. . . . Such legislation is also designed to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment. . . .” (Citations omitted; internal quotation marks omitted.) Hernandez v. Gerber Group, supra, 222 Conn. 82.

Awarding separate 104 week periods for each disabled body part that had a preexisting injury is contrary to the policy behind the fund and would thwart the purpose of the legislature in enacting § 31-349. Should a potential employee have more than one preexisting condition, it would be rational for the employer to discriminate against the employee so as not to be forced to pay benefits beyond a single 104 week period if a subsequent employment related injury occurred. We conclude, therefore, that, pursuant to § 31-349, an employer should not be liable for more than 104 weeks of benefit payments before transferring liability to the second injury fund.

The decision of the compensation review board is reversed and the case is remanded with direction to reverse the commissioner’s ruling that liability could not be transferred to the fund until benefits had been paid for 208 weeks.

In this opinion the other judges concurred.

       The plaintiffs entitlement to benefits was not at stake in the proceedings before the commissioner. The only parties in interest are the employer and the second injury fund.

       Section 31-306 awards compensation payments to the dependents of an employee whose work related injury results in death.

       General Statutes § 31-349 (a) provides in pertinent part: “The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death result ing from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation . . . .”
      General Statutes § 31-349 (b) provides in pertinent part: “The employer by whom the employee is employed at the time of the second injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. . .

       Astigmatism involves the shape of the lens, the front portion of the eye. Lovett v. Atlas Truck Leasing, supra, 171 Conn. 579. Because of the astigmatism in his eyes, the plaintiff had a 33 percent diminution of vision in his left eye and a 20 percent diminution of vision in the right eye. Id.


text:
    WILLIAM RAVEIS REAL ESTATE, INC. v. COMMISSIONER OF REVENUE SERVICES
    (14896)
    Heiman, Schaller and Hennessy, Js.

      Argued September 24
    officially released December 17, 1996

      Jonathan A. Flatow, with whom, on the brief, were Stewart I. Edelstein, Richard L. Albrecht and Durwin P. Jones, for the appellant (plaintiff).

      Jonathon L. Ensign, assistant attorney general, with whom were Richard K. Greenberg, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, for the appellee (defendant).
   SCHALLER, J.

The plaintiff appeals from the judgment of the trial court upholding the assessment by the defendant commissioner of revenue services (commissioner) of use taxes pursuant to General Statutes § 12-411 on purchases by the plaintiff of goods and services from Connecticut vendors.

The principal issues presented in this appeal are whether the trial court was correct in concluding that (1) the plaintiff was liable for use tax on its in-state purchases, (2) the commissioner was not estopped from assessing the use tax, and (3) the plaintiff was not entitled to equitable relief beyond penalty abatement only as to the in-state purchases. We affirm the judgment of the trial court.

During the time period relevant to this appeal, the plaintiff was engaged in business in Connecticut as a real estate broker. During the period from January 1, 1984, through June 30,1989 (audit period), the plaintiff purchased goods and services necessary to the conduct of its business from sellers that failed to collect any sales tax or use tax (disputed sales). Some of the disputed sales were made to the plaintiff within Connecticut and some were made outside of Connecticut. The plaintiff did not file any sales or use tax returns with respect to any reporting period included in the audit period. Moreover, the plaintiff did not pay any sales or use tax on the taxable goods and services it purchased in these disputed sales.

The commissioner’s audit of the plaintiffs business for sales and use tax liability for the audit period resulted in a use tax deficiency assessment against the plaintiff. The assessment asserted a use tax deficiency plus statutory interest and a penalty. After a hearing in which the plaintiff protested the assessment, the commissioner concluded that it was proper. From that decision, the plaintiff appealed to the Superior Court challenging only the use taxes imposed on its purchases from Connecticut vendors during the audit period on which no sales tax has been collected.

The trial court rejected the plaintiffs claims that its purchases from vendors in the state are exempt from the use tax and that the commissioner should be estopped from assessing the use tax. The trial court ruled, however, that although it would not exercise its equitable powers to reduce the amount of the assessment or to abate the amount of interest, the plaintiff was entitled to an abatement of the penalty imposed for failure to pay use taxes. The plaintiff now appeals from the judgment of the trial court.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. See Practice Book [§ 4061]. This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986).” (Emphasis in original; internal quotation marks omitted.) Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 629 (1987).

I

The plaintiff first claims that its purchases from vendors in this state on which the use tax has been assessed are exempt by virtue of General Statutes § 12-413 (1), which provides: “Where sales tax applicable. The storage, acceptance, consumption or other use in this state of services or property, the gross receipts from the sale of which are required to be included in the measure of the sales tax, is exempted from the use tax.” The plaintiff argues that this exemption applies whenever a sales tax is imposed pursuant to § 12-411 (1), regardless of whether it has been paid. We disagree.

We note at the outset that “[b]ecause the issue that the taxpayer raises concerns the applicability of a statutory exemption, the taxpayer must overcome the presumption that such an exercise of legislative grace is to be strictly construed against the taxpayer and in favor of the taxing authority.” Hartford Parkview Associates Ltd. Partnership v. Groppo, 211 Conn. 246, 253-54, 558 A.2d 993 (1989).

We begin our analysis by examining § 12-411. The relevant language of § 12-411 (1) provides: “An excise tax is hereby imposed on the storage, acceptance, consumption or any other use in this state of tangible personal property purchased from any retailer for storage, acceptance, consumption or any other use in this state . . . .” (Emphasis added.) This provision was broadly written to impose a use tax on in-state users of tangible property and services whether purchased in this state or another state. Hartford Parkview Associates Ltd. Partnership v. Groppo, supra, 211 Conn. 255.

The pertinent language of § 12-411 (2) provides: “Every person storing, accepting, consuming or otherwise using in this state services or tangible personal property purchased from a retailer ... is liable for the tax. His liability is not extinguished until the tax has been paid to this state . . . .” Thus, according to § 12-411 (2), it is incumbent upon the taxpayer to provide evidence of payment to the state in order to extinguish liability.

In Groppo, our Supreme Court followed the interpretation that several other state courts had adopted in construing statutes with language similar to the exemption provision of § 12-413. The use tax exemption was “designed to avoid double taxation for transactions involving goods purchased for resale, which will subsequently become subject to the sales tax.” (Emphasis in original.) Hartford Parkview Associates Ltd. Partnership v. Groppo, supra, 211 Conn. 255. “In order to establish its entitlement to an exemption, the taxpayer necessarily ha[s] to come forward with some evidence to substantiate its claim of possible double tax collection.” Id., 256.

In Groppo, our Supreme Court stated that under the proper circumstances the use tax may apply to purchases from Connecticut vendors. Id., 255. When the taxpayer cannot prove payment of sales tax to the instate vendor, the proper circumstances exist and the taxpayer is liable for the use tax on its in-state purchases. When a taxpayer proves payment of the sales tax to its in-state vendors, there is no liability for the use tax on its in-state purchases. Id., 255-56.

The plaintiff misconstrues the exemption language in § 12-413 (1) as exempting its in-state purchases from the use tax whenever the sales tax applies. The statutory language does not support that interpretation. Moreover, that interpretation is untenable because, if we follow that proposition to its logical conclusion, the plaintiff would enjoy a windfall by virtue of avoiding any obligation to the defendant whenever its vendors fail to collect the sales tax.

The plaintiff also misconstrues the holding in Groppo. The plaintiff argues that the present case is distinguishable on the ground that in Groppo the taxpayer misrepresented that its hotel furnishings and equipment had been purchased for resale and were thus not subject to the sales or use tax. The taxpayer’s conduct contributed to prevent the vendor from collecting the tax and remitting it to the state. The plaintiff claims that it made no representation and performed no act that would have induced its vendors not to collect the sales tax on its in-state purchases.

The interpretation of § 12-413 (1) adopted by our Supreme Court in Groppo is equally applicable to this case where the taxpayer has not paid any sales tax to its vendor or to the state and cannot substantiate a claim of double taxation. The Groppo holding was not limited to situations where the taxpayer caused its vendor not to collect the tax. The trial court properly concluded that the plaintiff was liable for use tax on its instate purchases.

II

The plaintiff claims that the commissioner is estopped from collecting a use tax on the purchases from Connecticut vendors on two grounds: (1) the acquiescence by the commissioner prior to Groppo in the opinion, generally held by accountants, that when the sales tax is applicable, no use tax may be imposed; and (2) a ruling by the commissioner in response to an inquiry made by tax counsel on behalf of another corporation owned by the plaintiffs stockholders that the plaintiff claims indicates that the commissioner approved that interpretation. We disagree.

Although the commissioner may be estopped from asserting a subsequent tax liability by his prior ruling, certain conditions must be met before a court can determine that estoppel applies. “ ‘Under our well-established law, any claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. . . .’ Zoning Commission v. Lescynski, [188 Conn. 724, 731, 453 A.2d 1144 (1982)].” (Citations omitted.) Kimberly-Clark Corp. v. Dubno, supra, 204 Conn. 148. “In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency.” Id. In this case, the plaintiff failed to satisfy the fundamental requirements necessary to invoke estoppel against a public agency.

A

The trial court’s conclusion that none of the evidence presented at trial indicated that the commissioner took any affirmative action that induced the plaintiff to change its position was not clearly erroneous. Although prior to the decision in Groppo, the commissioner did not enforce the collection of use taxes against purchasers who had failed to pay sales tax to their Connecticut vendors, that inaction provides no basis for support of a claim of equitable estoppel. “The doctrine of equitable estoppel is not a bar to the correction by the Commissioner of a mistake of law.” Automobile Club of Michigan v. Commissioner of Internal Revenue, 353 U.S. 180, 183, 77 S. Ct. 707, 1 L. Ed. 2d 746 (1957).

B

The plaintiff also asserts that the response of Solomon Karam, director of the commissioner’s legal division, to an inquiry by George Vest, tax attorney for William Raveis Mortgage Company (mortgage company), establishes equitable estoppel. The inquiry concerned the applicability of the use tax to purchases of that company from an out-of-state vendor with a sufficient Connecticut nexus to make the sales tax applicable.

The plaintiff claims that the mortgage company is owned by the same stockholders as the plaintiff corporation and employed Vest, who specializes in taxation, to advise it concerning questions raised with respect to its liability for Connecticut sales and use taxes. The inquiry sought a response from the commissioner as to whether the mortgage company was liable for Connecticut use tax on fees paid for computer services utilized by it in Connecticut. The commissioner responded that the service was subject to the sales tax. The plaintiff claims that it is entitled to rely on that response issued to the mortgage company because it has a sufficiently close relationship with the mortgage company to justify its reliance. We disagree.

Karam’s letter was directed to the mortgage company and not to the plaintiff. The commissioner’s unpublished private letter rulings are issued on a case-by-case basis with reference to the facts of each case. They are designed to assist particular taxpayers where there is a fact-specific question. The commissioner’s responses to fact-specific questions about the applicability of particular statutes and regulations are not to be construed as general rules to be relied on by all taxpayers who believe that they are similarly situated. Such a limitation on the effect of private rulings is consistent with the principle that “estoppel against a public agency is limited and may be invoked: (1) only with great caution . . . .” Kimberly-Clark Corp. v. Dubno, supra, 204 Conn. 148. Limiting the effect of private rulings will encourage the commissioner to respond to informal taxpayer inquiries and will minimize the adverse effects of an erroneous ruling.

Moreover, even if the party distinction were to be ignored, the plaintiffs claim must fail. Karam’s letter addressed the sales tax liability with regard to the fees paid by the mortgage company to the out-of-state computer company that has a sufficient nexus to Connecticut. The commissioner’s response did not explicitly answer the question posed concerning the liability of the mortgage company for the use tax. The plaintiff chose to infer that, because the sale was subject to the sales tax, it was exempt from the use tax. The commissioner neither made that statement nor induced the plaintiff not to pay the use tax. If the plaintiff had wanted to ask the commissioner for a ruling on its use tax liability on all purchases for which no sales tax had been paid, it could have done so.

“[I]t is the burden of the person claiming the estoppel to show that he exercised due diligence to ascertain the truth and that he not only lacked knowledge of the true state of things but had no convenient means of acquiring that knowledge.” Pet Car Products, Inc. v. Barnett, 150 Conn 42, 54, 184 A.2d 797 (1962). The plaintiff had a duty to exercise due diligence and to make further inquiry rather than relying on an inference that it drew concerning use tax liability. The trial court found that the plaintiff failed to prove that it had exercised due diligence because there was no evidence that any attempt was made to clarify the commissioner’s response to the inquiry by the mortgage company.

C

The plaintiff also failed to establish the other element of estoppel, which requires that the other party “change its position in reliance on those facts, thereby incurring some injury.” Kimberly-Clark Corp. v. Dubno, supra, 204 Conn. 148. The trial court found that there was no change in position because the plaintiff did not have any invoice screening procedures in place to detect use tax liability on out-of-state purchases and, even if the plaintiff had been explicitly told that it was subject to the use tax, there was no reason to believe that the plaintiff would have established such procedures for its in-state purchases. The trial court also found that the plaintiff did not suffer any injury because the commissioner’s assessment seeks merely to collect the sales or use tax that was owed to the state at the time of purchase. The trial court correctly concluded that the commissioner was not estopped from assessing the use tax.

Ill

The plaintiff claims finally that the trial court abused its discretion in refusing to exercise its equitable powers (1) to abate the use tax assessment on its in-state purchases, and (2) to abate the interest accrued on the use tax assessment. We disagree.

General Statutes § 12-422, the statute pursuant to which this appeal was taken, provides in pertinent part: “Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services . . . may . . . take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain .... Said court may grant such relief as may be equitable. . . .” (Emphasis added.) “ ‘The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.’ Allen v. Nissley, 184 Conn. 539, 546, 440 A.2d 231 (1981).” American Totalisator Systems, Inc. v. Dubno, 210 Conn. 413, 411-12, 555 A.2d 421 (1989).

A

The plaintiff claims that the trial court abused its discretion in refusing to use its equitable powers to abate a portion of the use tax assessed by shortening the audit period. The plaintiff relies solely on the Superior Court decision in Duval v. Brown, 31 Conn. Sup. 373, 333 A.2d 63 (1974). In Duval, the taxpayer had relied on an accountant to prepare her tax returns. Because the accountant did not realize that a portion of the gross receipts from the taxpayer’s catering business was subject to the sales tax, the taxpayer failed to collect the sales tax from her customers. Since the taxpayer did not receive a benefit from her failure to collect the sales tax, the trial court granted a reduction in the audit period.

The Duval decision is not binding on this court. It is not persuasive, in any event, because it is readily distinguishable from the present case. Unlike the taxpayer in Duval, the plaintiff here did obtain a benefit from its failure to pay the sales or use tax. The trial court found that the plaintiffs reliance on erroneous tax advice did not warrant a reduction in the amount of the taxes due because if correct advice had been given the plaintiff would have had to pay the full amount of the tax, as other taxpayers who received proper advice and followed it have done. The plaintiff should not be treated more favorably than those who have paid such obligations in full and should not be rewarded for relying on erroneous tax advice.

The trial court concluded, on the basis of its findings, that there was no merit to the plaintiffs claim for an abatement of the use tax found to have been due. The plaintiff has not persuaded us that the trial court’s refusal to exercise its equitable powers was an abuse of discretion.

B

The plaintiff also claims that the trial court abused its discretion in refusing to exercise its equitable powers to abate the amount of the interest included in the assessment. General Statutes § 12-33a provides: “The court shall not waive statutory interest on any amount of tax for which any person is liable pursuant to the provisions of chapter . . . 219 [sales and use tax] . . . and which is not paid within the time specified by law.”

The plaintiff contends that § 12-33a is inapplicable to any interest that accrued prior to the effective date of the statute and should operate prospectively only. The trial court rejected this claim and concluded correctly, on the basis of a review of legislative history, that § 12-33a was enacted for the purpose of removing the jurisdiction of the Superior Court to consider an abatement of statutory interest as part of its review of a tax appeal. The trial court further concluded correctly that the statute should be applied retroactively to all appeals except those pending at the time of its enactment, as its terms expressly provide.

The plaintiff also contends that the interest included in the assessment constituted a penalty, despite its designation by § 12-415 (2) as “interest,” and that equity should not enforce it. The trial court concluded that no authority was presented to justify a reduction in the interest rates established by §12-415 (2) simply because they are greater than existing market rates. We conclude, therefore, that the trial court did not abuse its discretion in refusing to abate interest on the use tax assessment.

The judgment is affirmed.

In this opinion the other judges concurred.