author: STOUGHTON, J.

text:
    RONALD WING ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF CROMWELL
    (AC 19435)
    Schaller, Mihalakos and Stoughton, Js.

      Argued October 31, 2000
    officially released February 6, 2001

      Joel M. Ellis, for the appellants (plaintiffs).

      Mark K. Branse, for the appellee (defendant).
   Opinion

STOUGHTON, J.

The plaintiffs, Ronald Wing and Candice Wing, appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals of the town of Cromwell (board). The defendant seeks review of the court’s denial of its motion for sanctions against the plaintiffs for having filed a frivolous appeal. We affirm the judgment of the trial court.

On September 9, 1997, Fred Curtin, the development compliance officer of the town of Cromwell, ordered the plaintiffs to remove all of the horses from their property, citing §§ III, paragraph 3.1.37, and XI, paragraph 11.10, of the Cromwell zoning regulations. The plaintiffs appealed from the cease and desist order to the board. The appeal was heard and denied on February 3, 1998. Thereafter, the plaintiffs appealed to the court. The court dismissed the appeal and upheld the decision of the board. This appeal followed.

The plaintiffs claim that (1) the court improperly approved the invalidation of a legally nonconforming use because it was inconsistent with later zoning regulations, (2) the court illegally applied the current regulations to invalidate an existing nonconforming use, (3) the court approved the board’s restriction on the nonconforming use when the restriction was inconsistent with prior ordinances, (4) that the actions of the board and the court were arbitrary, capricious and unreasonable, and (5) if the actions of the board and the court were arbitrary, those actions were sufficiently outrageous to violate substantive due process. Those five claims depend on the plaintiffs’ assertion that they had established a legal nonconforming use. We are not persuaded.

The following facts and procedural history are necessary for our resolution of this appeal. The plaintiffs have owned the property at 95 South Street in Cromwell since 1994. The property consists of 2.3 acres in a residential zone. Prior to August 19,1997, the zoning regulations did not have any provisions that concerned the keeping of horses or other large animals on residential property. The town did, however, have municipal ordinances that defined large animal pets and permitted residential property owners to keep them on their premises under certain conditions. The size and number of large animal pets permitted was determined by a land area to animal weight ratio. Those municipal ordinances were repealed on June 12, 1997.

On August 19, 1997, §§ III, paragraph 3.1.37, and XI, paragraph 11.10, of the zoning regulations took effect. Section III, paragraph 3.1.37, defines large domestic animal pets to include horses, goats and sheep used for personal pleasure only. Section XI, paragraph 11.10, requires that property owners in a residential zone obtain a use permit to keep large domestic animal pets, and requires that the property consist of no fewer than three acres of nonwetlands soil for the first large domestic animal pet maintained on the property and another one-half acre for each additional large domestic animal pet. The plaintiffs’ property does not meet those standards because it lacks the acreage required for even one large domestic animal pet. In addition, the plaintiffs conceded that they never obtained a use permit.

In their appeal to the board, the plaintiffs claimed the right to maintain, on their property, two horses that they had owned for many years, one pony that they had owned for almost three years and one sheep. They also asserted that they had kept various other large domestic animals on their property since 1994. The plaintiffs now claim that because they kept a pony and a horse on their property prior to the date the new zoning regulations took effect, the keeping of the pony and the horse are legal nonconforming uses. Moreover, they argue that because they used their property to maintain certain large domestic animals prior to the new zoning regulations, keeping any large domestic animal that meets the land area to animal weight ratio required by the repealed municipal ordinances constitutes a legal nonconforming use. We disagree.

In reviewing the actions of a zoning board of appeals, we note that the board is endowed with liberal discretion and that its actions are subject to review by the courts only to determine whether they are unreasonable, arbitrary or illegal. Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, 218 Conn. 265, 269, 588 A.2d 1372 (1991). “The burden of proof to demonstrate that the board acted improperly is upon the party seeking to overturn the board’s decision.” (Internal quotation marks omitted.) Id., 269-70. “[A] zoning board of appeals hears and decides an ‘appeal’ de novo.” Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137, 677 A.2d 987 (1996). “It is the board’s responsibility, pursuant to the statutorily required hearing, to find the facts and to apply the pertinent zoning regulations to those facts. Toffolon v. Zoning Board of Appeals, 155 Conn. 558, 560-61, 236 A.2d 96 (1967); Connecticut Sand & Stone Corporation v. Zoning Board of Appeals, 150 Conn. 439, 442, 190 A.2d 594 (1963). In doing so, the board ‘is endowed with a liberal discretion . . . .’Id. Indeed, under appropriate circumstances, the board ‘may act upon facts which are known to it even though they are not produced at the hearing.’ Parsons v. Board of Zoning Appeals, 140 Conn. 290, [292,] 99 A.2d 149 (1953).” Caserta v. Zoning Board of Appeals, 226 Conn. 80, 90, 626 A.2d 744 (1993). Upon an appeal from the board, the court must focus on the decision of the board and the record before it. Id., 90-91.

It is well settled that the courts should not substitute their own judgment for that of the board and that the decisions of the board will not be disturbed as long as an honest judgment has been reasonably and fairly made after a full hearing. Conetta v. Zoning Board of Appeals, supra, 42 Conn. App. 137-38. “The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings.” Id., 138. Upon an appeal from the judgment of the trial court, we review the record to see if there is factual support for the board’s decision, not for the contentions of the applicant; Pleasant View Farms Development, Inc. v. Zoning Board of Appeals, supra, 218 Conn. 270; to determine whether the judgment was clearly erroneous or contrary to law. Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 344, 573 A.2d 1222 (1990).

“A nonconforming use is merely an ‘existing use’ the continuance of which is authorized by the zoning regulations.” Melody v. Zoning Board of Appeals, 158 Conn. 516, 519, 264 A.2d 572 (1969). “To be a nonconforming use the use must be actual. It is not enough that it be a contemplated use nor that the property was bought for the particular use. The property must be so utilized as to be irrevocably committed to that use.” (Internal quotation marks omitted.) Lebanon v. Woods, 153 Conn. 182, 197, 215 A.2d 112 (1965). “[T]o be irrevocably committed to a particular use, there must have been a significant amount of preliminary or preparatory work done on the property prior to the enactment of the zoning regulations which unequivocally indicates that the property was going to be used for that particular purpose.” Karls v. Alexandra Realty Corp., 179 Conn. 390, 399, 426 A.2d 784 (1980).

In this case, the record reveals that the plaintiffs kept a variety of animal pets on their property after they moved to 95 South Street in 1994. Candice Wing herself, however, stated on the record that her horse, Glider, was boarded at another farm and that she “dragged [it] home” on or about August 12, 1997, before the new zoning regulations took effect, “to make sure that something was standing on the property.” There is no indication in the record that horses were ever kept on the plaintiffs’ property prior to that date. Rather, that horse was specifically brought onto the property in an attempt to create a nonconforming use. See Wallingford v. Roberts, 145 Conn. 682, 684, 146 A.2d 588 (1958).

The record also reveals that no preliminary or prepa-ratoiy work was done to the plaintiffs’ property for the upkeep of a horse prior to the enactment of the new zoning regulations. The plaintiffs’ property has not been irrevocably committed to keeping horses thereon and, therefore, keeping the horse on the property had not been established as an actual and existing use on August 19, 1997. Thus, there was sufficient evidence in the record for the board to find that there was no legal existing nonconforming use of the horse on the plaintiffs’ property prior to and on the day the new zoning regulations took effect, and we conclude that the court’s judgment was not clearly erroneous or contrary to law.

With respect to the pony, the record indicates that the plaintiffs’ pony had been kept on the property prior to August 19,1997, the effective date of the new zoning regulations. The record also indicates, however, that the pony had been at “Amy’s Udder Joy” petting zoo, which also is in Cromwell, since before April 15, 1997, and was not actually on the plaintiffs’ property on August 19, 1997. The owner of the petting zoo used the pony to attract individuals to the zoo and to give pony rides to children who patronized the zoo. Although the plaintiffs were not actually paid for the use of their pony, the record reveals that the petting zoo boarded and fed the pony at no charge to the plaintiffs. Furthermore, the petting zoo charged visitors a small fee to ride on the pony.

We conclude that there was sufficient evidence in the record from which the board could have found that use of the property for keeping the pony had been abandoned and that the use was neither existing nor actual on August 19, 1997, the date the new zoning regulations took effect. We conclude that there was sufficient evidence in the record for the board to find that there was no legal nonconforming use of the pony on the plaintiffs’ property on August 19, 1997, and that the court’s judgment was not clearly erroneous or contrary to law.

The plaintiffs, nevertheless, argue that because they were permitted to keep a certain number of large domestic animal pets on their property under the repealed municipal ordinances, and because there was a sheep and a pygmy goat on the property on August 19, 1997, they had established a legal nonconforming use of the premises for any large domestic animal pet pursuant to the repealed municipal ordinances. The board does not contest the right of the plaintiffs to keep those animals on the premises for which a nonconforming use had been established on August 19, 1997. The plaintiffs assert, however, a right to keep any large domestic animal pet on the premises so long as they do not exceed the former land area to animal weight ratio. We disagree.

The plaintiffs are not merely seeking an intensification of a legal nonconforming use, but a change in the character of the use. “A change in the character of a use . . . constitute [s] an unlawful extension of the prior use.” Helicopter Associates, Inc. v. Stamford, 201 Conn. 700, 716, 519 A.2d 49 (1986). In this case, the animals that were deemed legal nonconforming uses can be kept on the plaintiffs’ 95 South Street property. The addition of other kinds of large animals, including the horses, constitutes an unlawful extension of the prior use.

Moreover, the zoning regulations provide in § IX, paragraph 9.1, that a use lawfully existing when zoning regulations take effect may be continued. In this case, when the new zoning regulations took effect, the municipal large animal pet ordinance already had been repealed and the use no longer was lawful. Thus, the plaintiffs do not have a right to keep their horses or pony on their 95 South Street property. Finally, in light of our decision, the defendant’s renewed motion to strike the plaintiffs’ appendix will not be reconsidered.

The judgment is affirmed.

In this opinion the other judges concurred.

       We need not consider this claim because the defendant failed to raise it in a cross appeal pursuant to Practice Book § 61-8. See Futterleib v. Mr. Happy’s, Inc., 16 Conn. App. 497, 499, 548 A.2d 728 (1988); see also Blue Cross/Blue Shield of Connecticut, Inc. v. Gurski, 47 Conn. App. 478, 480-81, 705 A.2d 566 (1998) (although prevailing party at trial generally not aggrieved within meaning of Practice Book § 4005, now § 61-8, aggrievement can be found where relief awarded falls short of relief sought). We note that even if we were to consider the defendant’s claim, it would not succeed because the plaintiffs’ arguments on appeal to the trial court were not wholly without merit.

       The plaintiffs’ property is 2.3 acres, inclusive of wetlands. The nonwetlands classified portion of the plaintiffs’ property is approximately 4500 square feet, or 0.1 acres.

       Cromwell Code, art. II, § 82-5, provides in relevant part: “LARGE ANIMAL PETS—Animals usually kept outside the house which are primarily for pleasure rather than for profit. . . .”
      Cromwell Code, art. II, § 82-7, provides in relevant part: “A. A large animal pet may be kept if there exists a contiguous area behind the building line and ten (10) feet within the common property lines, equivalent to ten (10) times the standard adult weight of the animal (as set forth in breed standards) expressed in square feet. . . .”

       Section III, paragraph 3.1.37, of the zoning regulations provides in relevant part: “Large Domestic Animal Pet: Large domestic animal pet shall include, but not be limited to, horse, cow, calf, goat, sheep, and llama, for personal pleasure only. ...”

       Section XI, paragraph 11.10, of the zoning regulations provides: “The keeping of a Large Domestic Animal Pet shall be permitted as an accessory use for single family dwellings in residential zones only upon the issuance of a Use Permit. The Large Domestic Animal Pet must be owned by the resident occupant and there shall be a minimum area of three (3) acres devoted to the first Large Domestic Animal Pet and 1/2 acre for each additional Large Domestic Animal Pet. Watercourses, as defined in section 22a-38 of the Connecticut General Statutes, shall not be included in the calculation of area The grazing area of Large Domestic Animal Pets shall be restricted to no closer than ten (10) feet from the property boundary and prohibited entirely from the Front Yard. Manure piles and buildings housing Large Domestic Animal Pets shall be a minimum of one hundred (100) feet from adjacent property lines.”

       Since 1994, the plaintiffs have kept a number of different animals on their property. A December, 1995 report disclosed that a potbellied pig, a large goat, a pygmy goat, several chickens, a rooster, turkeys and three dogs existed on the plaintiffs’ property. An April 4, 1997 report disclosed that a pony, a sheep, two goats, two rabbits and two chickens existed on the plaintiffs’ property.

       Section IX, paragraph 9.1, of the zoning regulations provides in relevant part:
      “a. Any building or use lawfully existing . . . may be continued subject to compliance with the following conditions:
      “1. Any use of land or buildings which does not conform to the requirements specified by these regulations shall not be:
      “a. Changed to another non-conforming use without a Special Permit from the Board of Appeals, and then only to one equally, or more nearly in conformity.
      “b. Re-established for any reason after non-use longer than one year.” (Emphasis added.)


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    JENNIFER OTTIANO ET AL. v. SHETUCKET PLUMBING SUPPLY COMPANY ET AL.
    (AC 19845)
    Schaller, Spear and Stoughton, Js.
    Argued October 31, 2000
    officially released February 6, 2001

      Vincent E. Roche, for the appellants (defendants).

      William R. Moller, for the appellees (named plaintiff et al.).
   Opinion

SPEAR, J.

The defendants appeal from the judgment of the trial court, rendered after a trial to the court, in favor of the plaintiffs Jennifer Ottiano and James Ottiano in this personal injury action. The defendants claim that the court improperly denied their request, pursuant to General Statutes § 52-225a, to deduct the economic damages (medical expenses) paid by a third party from the amount of the judgment. The dispositive issue is whether § 52-225a mandates a deduction of economic damages where the court noted that the medical expenses were incurred, but expressly limited its award to noneconomic damages for injuries, pain and suffering. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. On February 1, 1996, the plaintiffs were involved in an automobile accident with the defendant Robert S. Erie, an employee of the defendant Shet-ucket Plumbing Supply Company (Shetucket). The accident occurred in Windham. The plaintiffs brought this action, claiming that Erie negligently caused the accident that resulted in their injuries and that Shet-ucket was liable as the owner of the truck that Erie was operating. A trial to the court was held in August, 1998, and the court rendered judgment in favor of Jennifer Ottiano for $140,000 and in favor of James Ottiano for $44,000.

On October 26, 1998, the defendants filed a motion to open the judgment and to offer evidence regarding collateral sources pursuant to § 52-225a. See Practice Book § 16-35. The court held a hearing on the motion on May 7, 1999, and denied it in an order dated July 6, 1999.

On July 21, 1999, the defendants appealed from the court’s denial of their motion. On August 24, 1999, the defendants filed a motion for articulation of the court’s July 6, 1999 order. The court articulated its order on September 27,1999, and stated: “[T]he amount of medical expense and lost wages incurred by the two injured plaintiffs . . . was done not to establish economic damages but to establish one of the considerations the court used in establishing an appropriate compensation. . . .

“No award was granted to the father of the two injured plaintiffs, although he was a named individual plaintiff who maintained health insurance for his children, the injured plaintiffs, and who paid any uninsured medical expense. Specific economic damages were incurred by the father, but nothing can be offset under the collateral source rule since he was awarded nothing in the judgment.

“The specific awards were intended to compensate each injured plaintiff for his and her injury, pain and suffering, completely and without reduction. That award was not intended to be reduced by any money paid for medical payments offset by any premiums.”

The defendants claim that the court improperly denied their request to deduct the economic damages paid by a third party from the amount of the judgment pursuant to § 52-225a. They assert that the basis for the monetary award to the injured plaintiffs was the specific medical expenses stated in the court’s memorandum of decision. Thus, the defendants argue, § 52-225a requires that the amount awarded be reduced by the amount of collateral source payments. In effect, the defendants claim that the judgment, properly interpreted, did award economic damages. We disagree.

Our standard of review of the interpretation of the judgment of the court is a question of law. Klug v. Inlands Wetlands Commission, 30 Conn. App. 85, 92, 619 A.2d 8 (1993); Emerick v. Emerick, 28 Conn. App. 794, 806, 613 A.2d 1351, cert. denied, 224 Conn. 915, 617 A.2d 171 (1992). “As an issue of law, [t]he inteipretation of a judgment may involve the circumstances surrounding the making of the judgment. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment .... Effect must be given to that which is clearly implied as well as to that which is expressed.” (Citation omitted; internal quotation marks omitted.) Klug v. Inland Wetlands Commission, supra, 92. “The construction of a judgment is a question of law for the court. ... As a general rule, judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the judgment.” (Internal quotation marks omitted.) Emerick v. Emerick, supra, 806. “The judgment should admit of a consistent construction as a whole.” (Internal quotation marks omitted.) Lashgari v. Lashgari, 197 Conn. 189, 197, 496 A.2d 491 (1985). To determine the meaning of a judgment, we must ascertain the intent of the court from the language used and, if necessary, the surrounding circumstances.

The court’s language is absolutely clear that it did not intend an award of economic damages. It stated that the awards to the plaintiffs were for their injuries only and were “not intended to be reduced by any money paid for medical payments offset by any premiums.” General Statutes § 52-225a does not mandate a deduction of economic damages where such damages are not awarded.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are the Shetucket Plumbing Supply Company and Robert S. Erie. Unless otherwise noted, we refer to them as the defendants.

       The three plaintiffs are Jennifer Ottiano, James Ottiano, and their father, Robert. Ottiano. The court did not render judgment on that count of the complaint in which Robert Ottiano sought to recover damages for medical expenses incurred for the minor plaintiff, James Ottiano. We refer in this opinion to Jennifer Ottiano and James Ottiano as the plaintiffs.

       General Statutes § 52-225a provides in relevant part: “(a) In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987 . . . (2) . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, 1he court shall reduce the amount of such award which represents economic damages, as defined in subdivision (1) of subsection (a) of section 52-572h, by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for (1) a collateral source for which a right of subrogation exists and (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.
      “(b) Upon a finding of liability and an awarding of damages by the trier of fact and before the court enters judgment, the court shall receive evidence from the claimant and other appropriate persons concerning the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment. . . .”

       The third party was the insurance carrier for the plaintiff father, Robert Ottiano.

       The defendants also claim that (1) General Statutes § 52-225a applies to court trials as well as to jury trials and (2) there is no requirement that the collateral source provider recover a judgment before § 52-225a applies. Our resolution of the principal issue obviates the need to address those claims.

       Apparently, the plaintiffs requested a hearing regarding the defendants’ motion. On November 20, 1998, the court heard argument on whether a hearing on the motion was necessary. The court decided that a hearing was necessary.

       In addition, we note that the defendants failed to ask the court to articulate its lump sum award of damages by specifying what portion of the award was economic damages as required by General Statutes § 52-572h (f), which provides in relevant part that “the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury . . .


author: LANDAU, J.

text:
    NYDIA MELENDEZ v. THE HOME DEPOT, INC., ET AL.
    (AC 19864)
    Landau, Spear and Mihalakos, Js.
    Argued November 27, 2000
    officially released February 6, 2001

      Dominick C. Stabile, with whom, on the brief, was James J. Rush, Jr., for the appellants (defendants).

      Brenden P. Leydon, with whom, on the brief, was Francis J. Ficarra, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, The Home Depot, Inc. (Home Depot), Insurance Company of Pennsylvania and GAB Robins North America, Inc., appeal from the decision of the workers’ compensation review board (board) affirming the finding and award of compensation by the workers’ compensation commissioner (commissioner) to the plaintiff, Nydia Melendez. The defendants claim that the board improperly concluded that their obligations under the Workers’ Compensation Act, General Statutes § 31-275 et seq., were not discharged because the plaintiff received unauthorized medical treatment outside Connecticut. We affirm the decision of the board.

The commissioner found the following facts. The plaintiff was employed by Home Depot on April 21, 1996. On that day, the plaintiff injured her left arm during the course of her employment. Home Depot later voluntarily accepted liability for the plaintiffs injury. The plaintiff initially received treatment for her injury in Connecticut from Edward M. Staub, a physician. In August, 1996, because the plaintiff was suffering from chronic pain and was not responding to the initial course of treatment, Staub performed surgery on the plaintiffs left shoulder. Because the plaintiff needed someone to care for her son while she was recovering from the surgery, the plaintiff sent the child to live with her sister in Pennsylvania. After surgery, the plaintiff continued to suffer chronic pain. She was unable to bathe or dress herself, and she required help with her daily personal and medical needs. Accordingly, in September, 1996, Staub referred the plaintiff to Lawrence Kirschenbaum, a pain specialist in Connecticut. On October 1, 1996, Kirschenbaum evaluated the plaintiff and recommended a course of treatment. Later that month, because she needed help in caring for herself, the plaintiff moved to her sister’s home in Pennsylvania.

In Pennsylvania, several physicians evaluated and treated the plaintiff. In January, 1997, one of those physicians, Wilmer S. Trinkle, rendered his opinion that the plaintiff was totally disabled for an indefinite period. The plaintiff continued to receive treatment from physicians in Pennsylvania through April, 1997. That month, the plaintiff and her sister moved from Pennsylvania to Texas, where the plaintiff established a permanent residence.

In Texas, the plaintiff continued treatment with a physician, Joe G. Gonzalez. By May, 1997, Gonzalez had concluded that the severity of the plaintiffs disability was increasing and that for the plaintiff to achieve optimal recovery and to return to work, she needed to be near the structure and support that only her family could provide.

In November, 1997, Home Depot filed a form 36 with the commissioner seeking termination of the plaintiffs workers’ compensation benefits because she did not have documentation from an authorized treating physician stating that she was totally disabled. Home Depot also denied liability for the plaintiffs out-of-state medical treatment because her treating physicians were not authorized within the chain of referral. The commissioner denied the defendants’ form 36 and found that the defendants were liable for the plaintiffs out-of-state medical treatment because the treatment was reasonable and necessary. The board affirmed the commissioner’s ruling, and this appeal followed.

“We first note our standard of review. The commissioner has the power and the duty to determine the facts.” Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 776, 712 A.2d 436 (1998). “The role of this court is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Id., 777.

The defendants claim that the board improperly affirmed the commissioner’s decision that the defendants are liable for the plaintiffs out-of-state medical treatment. Specifically, the defendants argue that case law interpreting our Workers’ Compensation Act provides that out-of-state medical treatment is permitted only when equally beneficial treatment is not available in Connecticut. The defendants further argue that they are not liable because the plaintiff did not prove that she could not receive the treatment she needed in Connecticut. We disagree.

“It is well settled that the legislature’s longstanding policy has been that our Workers’ Compensation Act ... is remedial in nature and should be broadly construed to accomplish its humanitarian purpose.” (Citation omitted; internal quotation marks omitted.) Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 256, 614 A.2d 857 (1992). The compensation review division has construed the Workers’ Compensation Act “to permit out of state treatment when there is good reason, such as the need for a specialized type of treatment . . . or under other proper circumstances . . . .’’(Citations omitted; emphasis added; internal quotation marks omitted.) Id., citing J. Asselin, Connecticut Workers’ Compensation Practice Manual (1985) p. 183 n.329. Good reason exists for out-of-state medical treatment when the treatment is reasonable and necessary. Cummings v. Twin Mfg., Inc., supra, 259.

Relying on the facts in Cummings, the defendants argue that they cannot be liable for the plaintiffs out-of-state medical treatment because the commissioner did not hold an evidentiary hearing to determine whether the plaintiff could have received equally beneficial treatment in Connecticut. In Cummings, we held that the commissioner had the authority to order out-of-state medical treatment. Id., 256-57. We remanded the case, however, so that the commissioner could conduct an evidentiary hearing to determine whether the claimant, who was a resident of Connecticut, could receive equally beneficial treatment in Connecticut. The defendants misinterpret Cummings and argue that, a similar evidentiary hearing is required here because the plaintiff received treatment out of state.

The test for determining whether the commissioner can order payment for out-of-state medical treatment is whether the treatment is reasonable and necessary. Id., 259. The evidentiary hearing ordered in Cummings was simply a means by which the commissioner could determine if the treatment was reasonable and necessary. We expressly stated that the hearing was required by “the circumstances of [the] case.” Id. The facts of this case are distinguishable from those in Cummings. First, unlike the situation in Cummings, the plaintiff here is seeking payment for out-of-state treatment that she received while she resided outside Connecticut. Second, the commissioner in this case has already con-eluded that the plaintiffs treatment was reasonable and necessary.

Applying our standard of review, we cannot say that the board’s affirmance of the commissioner’s decision resulted from an incorrect application of the law to the facts or that it rested on an illegal or unreasonable inference drawn from the facts. In fact, under the circumstances of this case, we think it would be patently unreasonable and unnecessary to require the plaintiff to travel from Texas to Connecticut simply to receive medical care readily available in Texas. We therefore conclude that the board properly affirmed the commissioner’s decision.

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

In this opinion the other judges concurred.

       Subsequent to the filing of the defendants’ briefs in this court, Sedgwick Claims Management Services, Inc., replaced GAB Robins North America, Inc., as the third party administrator of the claim at issue in this appeal.

       Pursuant to Practice Book § 63-4, the plaintiff filed a statement of an alternate ground on which the decision of the board should be affirmed. The plaintiffs alternate ground is that a reversal in favor of the defendants would result in undue interference with the plaintiffs right to travel in violation of the Connecticut and United States constitutions. The defendants’ remaining claim is, in essence, not a claim, but rather a rebuttal of the plaintiffs alternative ground. Because we affirm the decision of the board, we need not address the plaintiffs alternate ground or the defendants’ rebuttal.

       A form 36 notifies the workers’ compensation commissioner and the person claiming benefits that the employer and its insurer intend to discontinue compensation payments. The content of the form is set out by General Statutes § 31-296. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 38 n.1, 668 A.2d 1346 (1996).

       The commissioner concluded that the defendants were not liable for some of the out-of-state medical treatment. That treatment, is not, however, the subject of this appeal.


author: LAVERY, C. J.

text:
    IN RE ASHLEY S. ET AL.

    (AC 20655)
    Lavery, C. X, and Landau and Pellegrino, Js.
    Argued November 30, 2000
    officially released February 6, 2001

      KristenS., pro se, the appellant (respondent mother).

      Nina F. Elgo, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

LAVERY, C. J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights with respect to her three children, A, J and N. On appeal, the respondent contends that the decision of the trial court is not factually or legally supported by the record. We disagree and, accordingly, affirm the judgments of the trial court.

In a comprehensive memorandum of decision, the trial court set forth the following facts and procedural history. On March 24, 1997, the commissioner of children and families (commissioner) filed neglect petitions alleging that A, J and N were neglected. On that date, the court granted an order of temporary custody with regard to all three of the children. On April 27,1998, the court adjudicated the children neglected and committed them to the care and custody of the commissioner. The children originally were committed to the custody of the commissioner because the condition of the respondent’s home was unsafe for the children and because the respondent lacked the necessary parenting skills to feed, bathe and supervise the children.

The department of children and families (department) offered the respondent numerous services to aid with reunification, including parenting classes and programs, job training and job placement programs, numerous psychological and psychiatric evaluations, and supervised visitation with parent education components. The respondent was evaluated by many psychologists and psychiatrists. On the basis of these evaluations, the department repeatedly attempted to determine what the respondent’s mental health issues were and how best to address her problems.

In 1997, Robert Meier, a psychologist, performed an individual psychological evaluation of the respondent and an interactional evaluation with the respondent and her children. Meier found that the respondent had trouble setting limits for the children, that her parenting style demonstrated little sensitivity to the children’s developmental level or feelings, and that her interventions were inconsistent, not well timed and not adequately specific or concrete.

In 1998, Marvin Zelman, a psychiatrist, performed a psychiatric evaluation of the respondent, which consisted of separate interviews with the respondent and the children, and a family session with the respondent and the three children together. In June, 1998, Zelman made a provisional diagnosis of mixed personality disorder and learning disability, and recommended that the respondent engage in psychological testing to help establish a specific cognitive diagnosis. This testing subsequently was performed by the Institute of Living. Zel-man testified that the results of these tests confirmed his diagnosis of personality disorder and learning disability. He testified that the respondent’s mental health problems reduce her ability to parent because she has very limited tolerance, is easily angered, acts out on her impulses and conducts herself improperly. Zelman recommended that the respondent engage in psychotherapy, which is a service that the department provided to the respondent through North Central Counseling Services (NCCS).

In July, 1998, the department asked Kathleen Bradley, assistant research professor at the A. J. Pappanikou Center for Disabilities Studies at the University of Connecticut, to perform a diagnostic cognitive processing educational achievement evaluation of the respondent. The purpose of this evaluation was to assess the cognitive abilities of the respondent and to help determine the best methods to assist her in learning parenting skills. The department subsequently met with the respondent and her counsel to identify goals and to reassess proper services for the respondent. Goals were set at this meeting, and Bradley’s recommendations were sentto Ann Tuller at AMPS, Inc., who incorporated the recommendations into AMPS parent training with the respondent.

The court found, on the basis of the foregoing, that there was an ongoing effort by the department to assess the respondent’s mental health issues and to attempt to address those issues by providing appropriate services. The court further found that in addition to the above services, the department arranged for the respondent to engage in individual and group therapy. From April, 1997, through October, 1998, the respondent engaged in therapy with Joan Prior from NCOS. Upon the respondent’s discharge from this program, Prior described the respondent as depressed, anxious, lacking structure, engaging in poor self-care and showing disregard for harmful consequences. Prior recommended that the respondent engage in a dialectical behavioral therapy (DBT) group, which the respondent began in November, 1998. In the spring of 1999, the respondent also began individual therapy with Susan Fitzpatrick, another therapist at NCOS. Fitzpatrick testified that when she began seeing the respondent, she found her to be impulsive and depressed, and diagnosed her with a mood disorder and attention deficit disorder.

With regard to reunification, the court found that the department offered the respondent multiple visits on a weekly basis with her children. Specifically, between August, 1997, and January, 1998, the respondent attended a YMCA play group with J where she was able to observe two teachers and model their behavior. Between April and July, 1997, the respondent visited with N in his foster home. From August, 1997, through June, 1998, the respondent was able to visit with N and A once a week under the supervision of the department, and she was provided feedback during these visits by the supervising department worker. Between November, 1997, and September, 1998, the respondent was able to visit with all three of her children together on a weekly basis under the supervision of Penny Lemery from NCOS. Lemery provided the respondent with one-on-one parenting instruction during the visits and with feedback after the visits. The respondent requested that the supervised visitation with Lemery cease because the respondent perceived a personality conflict. The respondent was then offered supervised visitation, with a parent education component at AMPS, Inc., between September, 1998, and March, 1999. During these visits, the staff at AMPS, Inc., continued to work with the respondent to teach her proper parenting techniques. The court found that, despite the enormous resources that were utilized to provide the respondent with hands-on parenting instruction and education, the respondent’s ability to parent the children safely, if anything, deteriorated over time.

On March 2, 1999, the commissioner filed petitions for termination of parental rights of the respondent. The petitions alleged that the children had been found in a prior proceeding to have been neglected and that the respondent had failed to achieve such a degree of rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the children, she could assume a responsible position in their lives. See General Statutes § 17a-112 (c) (3) (B). The court terminated the parental rights of the respondent on the basis of § 17a-112 (c) (3) (B) for the failure of the respondent to achieve personal rehabilitation. This appeal followed.

“The standard for review on appeal [in a termination of parental rights case] is whether the challenged findings are clearly erroneous. . . . On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.” (Internal quotation marks omitted.) In re Alissa N., 56 Conn. App. 203, 207, 742 A.2d 415 (1999), cert. denied, 252 Conn. 932, 746 A.2d 791 (2000).

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. ... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the disposi-tional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Deana E., 61 Conn. App. 197, 204, 763 A.2d 45 (2000).

“Section 17a-112 (c) (3) (B) allows for the involuntary termination of parental rights when the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding . . . has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child .... Personal rehabilitation refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.” (Citations omitted; internal quotation marks omitted.) In re Stanley D., 61 Conn. App. 224, 229-30, 763 A.2d 83 (2000). “The statute does not require the parent to be able to assume full responsibility for a child, without the use of available support programs. . . . Our Supreme Court has held that § [17a-112] (b) (2) [now § 17a-112 (c) (3) (B)] requires the trial court to analyze the respondent’s rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time.” (Citation omitted; internal quotation marks omitted.) In re Deana E., supra, 61 Conn. App. 212.

After reviewing the court’s decision and the record, we conclude that there was sufficient evidence to support the court’s conclusion, by clear and convincing evidence, that the respondent has failed to achieve personal rehabilitation. Specifically, the record supports the court’s conclusion that the respondent has not bene-fitted from the numerous services provided by the department to reunite her with her children. The court considered numerous exhibits, including the social study for termination of parental rights, dated February 26, 1999, which states, in part, that the “[respondent] has demonstrated that she is unable to care for her three children with specialized needs during her weekly visitation with them. She has visited them in highly structured settings for almost the past two years and has not shown an improvement in her parenting ability or in her knowledge of the children’s needs.” This is consistent with the other evidence considered by the court.

The court noted that the respondent had participated in the psychological and psychiatric evaluations that were scheduled for her and that she visited with the children. As the court correctly noted, however, “[t]he issue ... is not attendance at these services, but instead, whether, as a result of participating in these services, she can assume a responsible position in the lives of the children within a reasonable time.” The court’s conclusion that the respondent had not benefit-ted from the services and that she had not demonstrated progress in her ability to parent the children within a reasonable time was not clearly erroneous.

We further conclude that the record supports the court’s finding, by clear and convincing evidence, that termination of the respondent’s parental rights was in the best interests of the children. The court stated that the children “are closely bonded with their foster parents, who have provided them with loving and structured home environments. [A], in particular-, is desperately in need of a highly structured, consistent environment which [the respondent] cannot provide even in a one hour visit. [N] has been in foster care his entire life, and [J] is an insecure child who has been able to articulate his desire to remain with and have the same last name as his foster family.” On the basis of our review of the record, we conclude that the court’s finding that termination of the respondent’s parental rights was in the best interests of the children was not clearly erroneous.

It is clear that the respondent loves her children and wants them back. As the court accurately stated, however, “[a] parent’s love and biological connection . . . is simply not enough. [The department] has demonstrated by clear and convincing evidence that [the respondent] cannot be a competent parent to these children because she cannot provide them a nurturing, safe and structured environment.” We genuinely sympathize with the respondent and acknowledge her sincere efforts at rehabilitation. See In re Eden F., 250 Conn. 674, 707-708, 741 A.2d 873 (1999). We conclude, however, that the court’s findings support its conclusions, are legally correct and, thus, are not clearly erroneous. See In re Deana E., 61 Conn. App. 185, 195, 763 A.2d 37 (2000).

The judgments are affirmed.

In this opinion the other judges concurred.

       On April 27,1999, the respondent father voluntarily consented to termination of his rights, and the court rendered judgments terminating his parental rights with regard to all three children. He has not appealed from those judgments. We refer in this opinion to the respondent mother as the respondent.

       The pro se respondent has actually listed thirty six issues in her brief. These issues are not separately analyzed and, in essence, assert that the court’s decision is not supported by the record. “Although we will not entirely disregard our rules of practice, we do give great latitude to pro se litigants in order that justice may both be done and be seen to be done.” (Internal quotation marks omitted.) Lo Sacco v. Young, 20 Conn. App. 6, 9, 564 A.2d 610, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).

       Specifically, the court found that the respondent was provided individual therapy at North Central Counseling and Support Connections, now known as North Central Counseling Services (NCCS); Psychiatric Services; NCCS young parents’ support group; South Windsor human services parenting classes; Literacy Volunteers America GED preparation; town of Enfield board of education GED preparation classes; town of Enfield job placement and training program; New Britain YMCA play group; Dialectical Behavior Therapy Group; NCCS Parenting with Care; Psycho Educational Group; psychological, parenting and psychiatric evaluations; a diagnostic cognitive processing and educational achievement evaluation; a supervised visitation program at NCCS, which included hands-on parenting education; supervised visitation at AMPS, Inc., which included individualized parenting instruction; and supervised visitation by the department.

       Fitzpatrick also testified that the respondent’s medications were changed in June, 1999, to include lithium and that, since that time, she had observed gradual progress and more effective functioning by the respondent.

       Specifically, the court noted Lemery’s testimony that the respondent had difficulty understanding the children’s level of development and that the respondent was inconsistent, needed to be told to get off the couch to play with the children, brought inappropriate food and set inconsistent boundaries. This was consistent with the testimony of the department workers who supervised other visits with the respondent. The court stated that when the respondent was referred to AMPS, Inc., in September, 1998, it was apparent that she could not adequately take care of her children during a one hour visit, much less parent the children full-time. The court noted that the situation deteriorated to the point where AMPS personnel were forced to shadow the respondent around the room as she visited with the children, and staff had to intervene in thirteen out of twenty-three visits to address safety issues. AMPS recommended in March, 1999, that visitation cease between the respondent and her children because of her problems parenting the children and the detrimental effect the visits were having on the children.

       General Statutes § 17a-112 (c) provides in relevant part: “The Superior Court, upon hearing and notice . . . may grant a petition [to terminate parental rights] ... if it finds by clear and convincing evidence ... (3) that . . . (B) the parent of a child who (1) has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, or (2) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent . . . and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

       The social study further states that the “[respondent] has made little progress in changing her circumstances which would permit the children to safely return to her care. Evaluations and services have been provided to [the respondent] in order for her to become better able to parent her children. Despite these efforts, [the respondent] has not rehabilitated to the point where she can care for her children. Each of the children have specialized needs and require a caregiver who can respond effectively to their needs.”

       For example, when Prior discharged the respondent from therapy, she stated the following in her discharge notes: “Slight progress. Frequent ‘crisis’ calls. Legal problems. Angry outbursts. [The respondent] exhibits sig[nificant] denial over her individual dysfunctions.”

       “[General Statutes] § 17a-112 (c) requires that to terminate parental rights, 1 he trial court must find by clear and convincing evidence that termination is in the best interest of the child.” In re Shyliesh H., 56 Conn. App. 167, 176, 743 A.2d 165 (1999).


author: HEALEY, J.

text:
    STATE OF CONNECTICUT v. JOAO Q. NUNES
    (AC 18096)
    Lavery, C. J., and Foti and Healey, Js.
    Argued September 21, 2000
    officially released February 13, 2001

      Alinor C. Sterling, with whom, on the brief, was Ira B. Grudberg, for the appellant (defendant).

      Margaret G. Radionovas, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and David Zagaja, assistant state’s attorney, for the appellee (state).
   Opinion

HEALEY, J.

The defendant, Joao Q. Nunes, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (4) (count one), illegal possession of a controlled substance in violation of General Statutes § 2 la-279 (c) (count two) and illegal distribution of a controlled substance in violation of General Statutes § 2la-277 (b) (count three). On appeal, the defendant claims that the trial court improperly (1) denied his motions for a judgment of acquittal and for a directed verdict on the first and third counts of the information because the evidence was insufficient to establish beyond a reasonable doubt that the victim was drugged with temazepam, chloral hydrate or a combination of both, and (2) denied the defendant’s motion to set aside the verdict as to counts one, two and three because the court improperly admitted testimony regarding alleged prior misconduct committed by the defendant. We reverse in part and affirm in part the judgment of the trial court.

The jury reasonably could have found the following facts. Between May and September, 1993, the victim worked as a computer graphics artist with an East Hartford graphics firm. The firm had a contract with the Hartford police department to prepare a slide presentation about community policing. The defendant, a Hartford police officer since November 26, 1979, worked with the victim between May and August, 1993.

On or about September 7, 1993, after they had completed the project, the defendant telephoned the victim and asked if she would be interested in going out on a surveillance operation that involved the use of a new infrared camera that the police department had acquired. After some convincing by the defendant, she agreed to meet him that evening.

At approximately 7 p.m. on September 7, 1993, the victim went to the defendant’s office in the police department, at which time he began describing the department’s new printer and computer. He wanted to show her how the printer worked and printed a picture. When it printed a picture of a woman who “was either naked or wearing a skimpy bathing suit,” the victim became embarrassed and told him that she did not want to see the picture. After showing her the picture, he asked if she wanted something to drink. She initially declined, but then agreed to have some already prepared iced tea, which he took out of a small refrigerator in his office. She drank it within a few minutes. Immediately after he gave her the iced tea, the defendant left the room to get a bulletproof vest for the victim to wear because they were going out on surveillance. The defendant then returned with the vest and told her to put it on. About three to five minutes after drinking the iced tea, the victim began feeling “foggy,” “sluggish” and “really dizzy.”

The defendant and the victim then walked through a hallway to a classroom that contained gym mats. The defendant turned the lights off and started to show the victim how the infrared camera worked. She sat on a chair and, when he turned the lights on, he noticed that the victim looked pale. He suggested that she lie down on a mat. The defendant said that he had to speak to someone, and turned off the lights and left the classroom.

The next thing that the victim remembered was that she was lying on the mat, “fading in and out,” “feeling very dizzy, foggy,” and that “she knew something wasn’t right.” As she awoke, the defendant was at her right side. She no longer was wearing the bulletproof vest. The defendant then asked if he could kiss her and, although she refused, he kissed her anyway.

Next, the victim sat up and said that she wanted to go home. The defendant suggested, and the victim agreed, that he should drive her home because she was in no condition to drive herself. On the way to the victim’s house, they stopped once to get soda. They stopped again because the victim felt sick and she vomited.

After she arrived home, the victim slept through the night until about 5:30 a.m., at which time her head had cleared and her stomach problem had disappeared. She then called her boyfriend and asked him to come to her home. When he arrived, he observed her “crying hysterically.” She told him that she thought she had been drugged and sexually assaulted the night before. He took her to the East Hartford police department, but she refused to go inside, so they returned to her home. There, the victim told her mother what she believed had happened. Her mother suggested that she go to a hospital to find out what she had ingested. After contemplating her mother’s advice, she went to the hospital that afternoon. While there, she told the hospital staff that she thought she had been drugged and sexually assaulted, but denied that a rape had occurred.

At the hospital, tests were performed on the victim’s blood and urine. No alcohol was detected. Tests also were performed to determine whether she had ingested certain types of drugs; those tests were negative. Most notably, the tests were negative for benzodiazepines, which include temazepam, one of the drugs the state charged the defendant with putting in the victim’s iced tea. The other drug the state charged the defendant with putting in the victim’s drink was chloral hydrate. The hospital did not test for that drug. Temazepam and chloral hydrate are controlled substances.

Upon returning home from the hospital on September 8, 1993, the victim noticed that the defendant had telephoned her. She then telephoned him. When they spoke, she asked the defendant what he had put in her drink. She testified that his response was, “All kinds of good stuff.” She then told him that she knew something had happened and that he was not going to get away with it. She also informed the defendant that she was going to proceed further. That was her last contact with the defendant.

On September 10, 1993, she reported the incident to the East Hartford police, and met with Lieutenant Timothy Hogan and Sergeant Antonio Cancel of the Hartford police department. She gave them a tape-recorded statement that later was reduced to a written statement, which she signed. On September 14, 1993, Cancel and Sergeant Robert O’Connell of the Hartford police department informed the defendant that he was the subject of a criminal investigation generated by a complainant who claimed that she was drugged and sexually assaulted on September 7,1993. Those officers then took a written statement from the defendant.

On September 14 and 15, 1993, the police officers seized certain materials from the defendant’s office in the Hartford police department. Those materials included: Two glasses, one found on a windowsill and one on a refrigerator; some iced tea mixture (brownish powder); a bulletproof vest; a bottle of chloral hydrate, which was found behind some files in the top drawer of a locked file cabinet; a Tylenol bottle containing some yellow capsules; a Nuprin bottle containing white pills, which was locked in a portion of the defendant’s desk; and an eight millimeter radio cassette tape found inside a Canon video camcorder.

Upon testing, the state forensic laboratory detected no narcotics or controlled drugs on the two glasses, in the Tylenol bottle or in the brownish powder. The Nuprin bottle, however, contained a number of clear capsules that, according to the forensics tests, contained temazepam. Further, tests that were performed on the bottle labeled “chloral hydrate,” disclosed that it did, in fact, contain chloral hydrate. Additional facts will be set forth as necessary.

I

The defendant claims that the evidence was insufficient to support his conviction on counts one and three, the assault and illegal distribution charges, because it did not permit the jury to find that the victim actually ingested either temazepam, chloral hydrate or a combination of the two. We agree.

“[W]e have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. . . . We must be mindful, however, that [although the jury may draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Each essential element of the crime must be proved beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Caprilozzi, 45 Conn. App. 455, 463-64, 696 A.2d 380, cert. denied, 243 Conn. 937, 702 A.2d 644 (1997).

An essential element necessary to the jury’s finding the defendant guilty on counts one and three was that the victim actually ingested temazepam, chloral hydrate or a combination of the two. The defendant claims that the state failed to prove that beyond a reasonable doubt and, therefore, that this court should reverse the judgment of conviction as to counts one and three, and order that a judgment of acquittal be rendered as to those counts.

In arguing that there was insufficient evidence, the defendant claims that the chemical test for temazepam in the victim’s system was negative and, further, that the hospital did not even do a chemical test for chloral hydrate. He further claims that the expert medical testimony did not establish that the victim’s symptoms could be attributed to temazepam, chloral hydrate or a combination of the two, with reasonable medical certainty. In addition, he claims that the victim’s alleged symptoms do not suffice to establish that she ingested tema-zepam, chloral hydrate or a combination of the two because the symptoms she described were “relatively commonplace.” Therefore, a finding that the victim actually ingested one or both would, on the evidence, be speculative.

The state, on the other hand, claims that it proved beyond a reasonable doubt that the victim’s symptoms were attributable to the drug or drugs ingested by the victim via the iced tea and, farther, that the drug or drugs in question were chloral hydrate, temazepam or both. In claiming that either or both of those drugs were involved, the state relied heavily on the fact that the drugs were found in the defendant’s possession within a “reasonably short time” following the alleged incident. The state also claims that the victim’s symptoms were consistent with the effects of one or both of the drugs and further maintains that lack of scientific evidence does not necessarily make evidence insufficient per se.

The state claims that “the fact that the medical testing [of the victim’s blood and urine was] inconclusive does not compel a conclusion that the evidence of the nature of the substance was insufficient” and cites several cases in support thereof. The state can hardly claim that the medical testing of the victim’s blood and urine was merely “inconclusive” because, as to temazepam, the testing was negative and, as to chloral hydrate, there was no testing done.

As for the state’s argument that a lack of scientific evidence does not make its evidence insufficient per se, expert testimony is necessary in the present case to show a connection between the symptoms and the drug or drugs allegedly ingested because such knowledge is not normally within the province of a jury. Moreover, the state itself clearly recognized the need for expert testimony in this case when it produced two expert witnesses, Joel R. Milzoff, a forensic toxicologist, and James O’Brien, a physician and clinical pharmacologist, as well as certain hospital and forensic records. That was in keeping with the purpose of offering the opinion of expert witnesses to aid the trier of fact in arriving at its own conclusion. We agree that there may be cases of a similar nature in which scientific evidence is unnecessary. The cases the state cites in support of its position are, however, unpersuasive.

After a careful examination of the evidence, including that of the state’s experts, we agree with the defendant that the state did not prove beyond a reasonable doubt that the victim ingested one or both of the drugs at issue. Despite the testimony of Milzoff and O’Brien, the state does not point to any expert testimony that may be fairly understood to meet the reasonable medical probability threshold.

We now turn to whether the state proved beyond a reasonable doubt that the victim ingested temazepam. We conclude that there is no evidence from which any rational trier of fact could find that the victim actually ingested that drug. Most notably, when she was tested for it, the test was negative. The evidence was, therefore, insufficient to prove beyond a reasonable doubt that the victim actually ingested temazepam.'

We next turn to whether the state proved beyond a reasonable doubt that the victim actually ingested chloral hydrate. We conclude that the state presented no evidence that provided, with a reasonable degree of medical probability, a causal link between the victim’s symptoms, as she testified about them, and any ingestion of chloral hydrate.

The fact is that the hospital did not test the victim for chloral hydrate. O’Brien testified that chloral hydrate is not a drug that is ordinarily tested for. Further, he stated that it would have been very rare in 1993 to test for chloral hydrate if a person complained of dizziness or lightheadedness. As to whether chloral hydrate, tested for fourteen to fifteen hours after an alleged ingestion would necessarily show up on the test results, O’Brien testified that it would depend on the amount of the dosage. The state did not, however, present any evidence as to the amount of the dosage.

Furthermore, according to expert testimony, the victim’s symptoms simply did not match those normally associated with the ingestion of chloral hydrate. According to O’Brien, chloral hydrate is a very irritating substance and has an orange odor; the victim claimed that it had no odor. O’Brien also testified that the onset of drowsiness when chloral hydrate is ingested occurs after perhaps fifteen minutes or twenty minutes. Drowsiness set in on the victim within three or five minutes. Medical testimony showed that a person becoming unconscious within five minutes is inconsistent with the ingestion of chloral hydrate, unless it was taken in large dosages. There was no evidence, however, as to how much the victim allegedly ingested.

Moreover, the victim’s symptoms of grogginess, dizziness and lightheadedness were so common that, according to the expert testimony, many substances could have caused them. It seems clear that the only reason chloral hydrate was even brought up in this case was because it was found in the defendant’s office seven days after the alleged incident. While we are aware that the trier of fact may draw reasonable and logical inferences from the facts proven, we conclude that the evidence regarding the victim’s ingestion of chloral hydrate can only amount to speculation and conjecture.

As for the last scenario, i.e., that the victim ingested temazepam and chloral hydrate together, the evidence also was insufficient. While there was some evidence of the effects of those two drugs taken alone, there was no evidence at all of the effects of those two drugs ingested in combination. While jurors could easily understand what takes place when one mixes tea with hot water and therefore would need no assistance in determining the results of such a mixture, determining the results of mixing temazepam and chloral hydrate is not within the province of the average juror. The state’s experts did not address that issue. Therefore, the evidence was insufficient to prove beyond a reasonable doubt that the victim ingested both temazepam and chloral hydrate.

Even after construing the evidence in a light most favorable to the state and considering the reasonable inferences drawn therefrom, we cannot sustain the juiy’s verdict on the first and third counts. To arrive at such a verdict, the jury, in accordance with our analysis, would have had to rely on speculation and conjecture. We therefore reverse the judgment of conviction on the first and third counts, and direct the trial court on remand to render a judgment of acquittal on those counts.

II

The defendant also claims that the court improperly denied his motion to set aside the verdict as to counts one, two and three. Specifically, he claims that the court improperly admitted testimony regarding alleged misconduct committed by him and that such evidence was so prejudicial that he needed a new trial on count two. We disagree.

At trial, the court admitted certain testimony of a woman regarding a prior incident of uncharged misconduct against the defendant. The incident allegedly occurred several years before the incident in the present case. The defendant claims that the admission of the alleged prior misconduct evidence was so harmful as to prejudice him as to counts one, two and three despite the court’s limiting instructions on such evidence.

The state argues that the first and third counts are at issue on appeal, not the second count. In so arguing, the state points out that it did not rely on the prior uncharged misconduct evidence to prove the second count. In fact, the prior misconduct evidence was admitted only as to the first and third counts. Further, in admitting such evidence as to only the first and third counts, the court instructed the jury that it could apply such evidence only on the issue of intent under those counts and that it could not consider such evidence as evidence of bad character or criminal propensity of the defendant.

As noted, the court instructed the jury on the limited purpose for which it was admitting the alleged misconduct testimony. It is well established that “[j jurors are presumed to have followed the instructions of the court as to the law in the absence of a clear indication to the contrary.” State v. Sauris, 227 Conn. 389, 403, 631 A.2d 238 (1993); State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). There is no such indication on this record. “The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987).” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 626, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Therefore, the prior misconduct evidence cannot properly be considered the subject of a claim of error as to the second count.

The judgment of guilty is reversed as to the first and third counts and the case is remanded with direction to render a judgment of acquittal on those counts. The judgment is affirmed as to count two.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant part: “A person is guilty of assault in the second degree when ... (4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same . . . .”
      The first count of the information alleges, inter alia, that the “defendant intentionally caused stupor, unconsciousness and other physical impairments and injury to another person by administering to that person, without her consent a controlled substance, specifically chloral hydrate and tema-zepam." (Emphasis added.)

       General Statutes § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marijuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned.”
      The second count alleges, inter alia, that “the defendant had in his possession and under his control without authorization a controlled substance, chloral hydrate and temazepam.” (Emphasis added.)

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”
      The third count alleges, inter alia, that “the defendant without authorization delivered a quantity of chloral hydrate and temazepam to another person." (Emphasis added.)

       The jury returned a verdict of not guilty of one count each of sexual assault in the third degree in violation of General Statutes § 53a-72 (a) (1) (A) and sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (2).

       The victim was a nineteen year old female college sophomore.

       The defendant was the police department’s liaison for the project. Aside from the victim’s work with the defendant at the graphics firm, she saw him only on a few occasions at the Hartford police department. She did not see the defendant on any other occasion or at any other place.

       The defendant telephoned the victim because he was aware that she was a criminal justice major, and had expressed interest in police work and the technology that police use.

       The victim stated that the iced tea did not taste or smell unusual.

       Although the victim asked to use the ladies’ room, the defendant told her 1hat she could put the vest on in his office. She did so, putting it on under her shirt without taking the shirt off.

       The victim refused to have a pelvic and rape examination.

       Temazepam is a prescription tranquilizer that, according to expert, testimony, may or may not be disclosed by a drug screen. Detection depends on the amount taken, and the time lapse between the time of ingestion and the time of testing.

       Chloral hydrate is a liquid drug that acts as a sedative or hypnotic. It is a central nervous system depressant.

       The defendant denied saying that when he testified.

       Those materials were taken from the defendant’s office pursuant to search warrants.

       The tests were performed at the department of public health laboratory by Joel R. Milzoff, a forensic toxicologist and the health laboratory section manager of toxicology. Milzoff, along with James O’Brien, a physician and clinical pharmacologist, were the expert witnesses in this case.

       The hospital physicians had not tested for chloral hydrate.

       In its instructions regarding the essential elements of the crime of assault in the second degree, the court told the jury that the state must prove that “the drug . . . was temazepam or chloral hydrate or both. While the charge is written in what we call the conjunctive in that it uses an ‘and,’ the state only has to prove [that] one or the other of the substances [was involved].”

       The defendant also claimed that the court improperly allowed certain testimony regarding an incident of prior uncharged sexual misconduct by the defendant. That evidence was offered to show his intent to commit the crimes charged in the first and third counts of the information. We do not need to address the substance of that issue because although intent is an essential element of certain of the crimes charged, so is the fact that the victim actually ingested the drug. Whether there was sufficient evidence for the jury to find that the victim actually ingested either or both of the drugs is dispositive as to counts one and three.

       The appropriate standard is the reasonable medical probability standard. See Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987); Eisenbach v. Downey, 45 Conn. App. 165, 178, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997). “An expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert’s opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible.” Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977).

       Although tho state argues that the defendant administered the drug or drugs, we do not need to make such a determination in light of our conclusion regarding whether the victim actually ingested the drug or drugs.

       In its brief, the state argues that the evidence was sufficient to support the conviction and acknowledges “that most of its evidence focused on the effects of chloral hydrate, rather than the effects of the temazepam.” The state, however, argues that this court need not decide whether the evidence was sufficient to prove that the victim ingested temazepam because where, as here, the charging document alleged the two drugs in the conjunctive, the state needs to prove the ingestion of only one of the drugs. See State v. Wohler, 231 Conn. 411, 415, 650 A.2d 168 (1994). The state, however, does not concede that its evidence was insufficient to permit the jury to infer that the victim ingested temazepam. It maintains that the fact that the medical tests on the victim’s blood and urine were “inconclusive” does not compel a conclusion that the evidence of the nature “of the substance” was insufficient.

       “Inconclusive,” when speaking of evidence, is defined as “not leading to a conclusive or definite result.” Black’s Law Dictionary (7th Ed. 1999).

       We recognize that the state laboratory did determine that the seized substances contained temazepam and chloral hydrate, but that does not change what the hospital testing disclosed.

       The state refers to State v. Henning, 220 Conn. 417, 421, 599 A.2d 1065 (1991). Henning was a case of felony murder in connection with a burglary. In that case, the court cited uncontroverted expert testimony from Henry C. Lee, director of the state forensic laboratory, involving certain footwear imprints in the blood of the victim that were made during a struggle, as well as certain statements the defendant made to the police, his grandmother and his girlfriend. Id., 421-25. In Henning, there was forensic evidence to support the state’s allegations. In the present case, there is no such evidence.
      The state also cites People v. Wojahn, 169 Cal. App. 2d 135, 337 P.2d 192 (1959), in which there were no laboratory tests to prove that the victim ingested drugs, yet the court found that the evidence was sufficient. The prosecution in Wojahn, however, obtained a taped admission by the defendant in an undercover operation. There was no admission of that nature in the present case.

       There is no question that both experts, especially O’Brien, had much to say about both drugs and the symptoms consistent with their use, but no opinion was given with reasonable medical probability. Such an opinion is required so that, if accepted by the trier of fact, it will advance the trier’s understanding of a material fact in issue as well as prevent the trier from relying on speculation or conjecture.

       The state in its brief argues that “[t]he jury reasonably could have concluded that the victim . . . ingested temazepam as well as chloral hydrate from (1) the fact that the victim’s reaction to the substance(s) was as powerful and violent as it was, and (2) the defendant’s [alleged] admission that he put ‘[a]ll kinds of good stuff in her drink . . .
      First, there is no evidence that the victim’s reaction to temazepam was “powerful and violent,” and there is no indication of a transcript citation to support that claim. Second, given the nature of the evidence viewed most favorably to the state, the statement, “[a]ll kinds of good stuff,” attributed to the defendant by the victim, even if believed, hardly meets the criteria of proving that he was referring to temazepam or chloral hydrate.

       As stated in footnote 21, although the state does not concede that its evidence was insufficient to permit the jury to infer that the victim ingested temazepam, it did acknowledge that most of its evidence focused on the effects of chloral hydrate, rather than temazepam.

       It is probable, O’Brien testified, that hospitals in 1993 would have tested for temazepam.

       Milzoff testified that chloral hydrate possibly could make a person lightheaded and groggy. He did not recall, from his experience, having heard that it makes people dizzy. O’Brien testified that chloral hydrate would not typically cause dizziness, but could do so with increased doses. There was no evidence as to how much the victim allegedly ingested.

       The court instructed the jury on two separate occasions. The last time it did so was during its final instructions to the jury.