text:
    Raymond Wilhelm et al. v. Peter S. Czuczka
    (7096)
    Spallone, O’Connell and Foti, Js.
    Argued March 14 —
    decision released July 4, 1989

      Jan A. Marcus, for the appellants (plaintiffs).

      Edward Maum Sheehy, for the appellee (defendant).
   O’Connell, J.

The minor plaintiff brought this medical malpractice action, through her parents as next friends, alleging permanent ear damage. In the first count of a two count complaint, the minor plaintiff claimed damages for injuries she sustained while under the defendant’s professional care. In the second count, the child’s parents sought recovery for expenses incurred as a result of the defendant’s alleged malpractice. The jury returned a verdict in favor of the defendant and the trial court denied the plaintiffs’ motion to set aside that verdict.

The plaintiffs claim that the trial court erred (1) in instructing the jury to the effect that the testimony of the minor plaintiff could be disregarded because she is a child, (2) in failing to grant the plaintiffs’ motions for mistrial following colloquys with the court, (3) in permitting the defendant to interrupt the plaintiffs’ case-in-chief by reading a portion of a deposition transcript, (4) in permitting defense counsel to read a portion of the deposition testimony of a medical expert as to the standard of care in the medical profession without laying a proper foundation, (5) in overruling the plaintiffs’ objection to the introduction of opinion testimony of a medical expert who was not disclosed by the defendant as a medical expert expected to be called as a witness, (6) in inaccurately stating facts to the jury in response to its question concerning inferences and proximate cause, (7) in instructing the jury that a failure to refer to an expert could not cause the minor plaintiff’s ultimate condition and, (8) in recharging the jury on the standard of care. We find no error.

• The jury could reasonably have found the following facts. The defendant is a board certified pediatrician licensed to practice medicine in this state. The minor plaintiff was a patient of the defendant from her birth on February 21, 1978, until September, 1980. During this period, the defendant treated her on several occasions for infections of the right ear. On October 4,1980, the minor plaintiff was seen by Edward Gaynor, an ear, nose and throat specialist, for a second opinion. She was taken to him by her parents; the defendant had not referred her to him.

Expert medical witnesses in the field of pediatrics and pediatric otolaryngology testified that, at the time in question, the standard of care for pediatricians did not require a pediatrician to refer a child with problems like those of the minor plaintiff to an ear, nose and throat specialist. Moreover, the defendant’s treatment of the minor plaintiff’s ear condition was in accordance with the standard of care and practice for pediatricians.

I

At the time of trial, the minor plaintiff was ten years old. Prior to administering the oath, the court inquired of her and determined that she possessed sufficient testimonial competency to be accepted as a witness. Such a determination is discretionary and will not be disturbed, absent a showing of manifest abuse of discretion. State v. Maldonado, 13 Conn. App. 368, 376, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988).

The plaintiffs do not quarrel with this competency determination; rather, they claim that it was error for the court to instruct the jury that as a young child the minor plaintiff would be “more amenable to any influence or suggestion which may be made to [her] by older persons and particularly by persons closely related to her. A child’s imagination often misleads [her] and may, to [her], take on all semblances of actual fact and [she] will relate them as such. The sanctity of oath and the solemnity of legal proceedings may appeal to [her] less than to an adult.”

The plaintiffs argue that once the trial court accepted the child as a competent witness, it should not have instructed the jury to weigh her testimony by any standard different from that used for other witnesses. We disagree. General Statutes § 54-86h makes it clear that the weight to be given to the testimony of a child witness and the credibility of the child witness is within the province of the jury.

Where a witness’ testimony may implicate considerations not true of witnesses in general it has long been the practice of our trial judges to point out these special considerations to the jury to assist in its deliberations. For example, it is common to point out special matters that they may take into consideration in weighing the testimony of police officers, expert witnesses, parties to the action, or coconspirators. See, e.g., 1 and 2 D. Wright, Connecticut Jury Instructions (3d Ed.).

Here, the trial court expressly instructed the jury that it was the sole judge of the credibility of all witnesses and that any comments that the court made as to the weight, significance of the evidence, or inferences to be drawn therefrom, were merely suggestive for the jury to approve or disapprove in the exercise of its sound judgment. See State v. Smith, 201 Conn. 659, 666-67, 519 A.2d 26 (1986). Thus, it did not err in charging the jury on the credibility of the minor plaintiffs testimony.

II

During the course of the trial, the plaintiffs made two motions for mistrial arising out of oral exchanges in front of the jury between the plaintiffs’ counsel and the court. Both motions were denied.

The trial court is vested with great discretion in matters occurring during the trial. We will interfere only when it has been demonstrated that the trial court abused that discretion to the manifest injury to the litigant. Pisel v. Stamford Hospital, 180 Conn. 314, 322, 430 A.2d 1 (1980); State v. Messier, 16 Conn. App. 455, 471, 549 A.2d 270 (1988).

If we had the benefit of a film containing the sights and sounds of the trial we could more effectively evaluate the flavor of the conduct of which the plaintiffs complain. We are limited, however, to the cold words of the printed record. Of necessity, therefore, we must weigh the words in the record against the opinion of the trial judge who was in a position to sense the atmosphere of the trial and appreciate the effect that the offending remarks had upon the jury. Pisel v. Stamford Hospital, supra. Having examined the record before us, we cannot say that the trial court abused its discretion in denying the two motions for mistrial.

III

As part of pretrial discovery, the plaintiffs deposed Gaynor, the ear, nose and throat specialist who had treated and performed surgery on the minor plaintiff. As part of their case-in-chief, the plaintiffs read portions of Gaynor’s deposition into'the record. They intentionally omitted reading about ten pages of the deposition. The defendant objected to that omission. The trial court ruled that the plaintiffs could omit these pages but that the defendant could read the omitted portions as if they were part of his cross-examination. At the conclusion of the plaintiffs’ reading, the defendant read the omitted pages to the jury. The plaintiffs claim that the court’s ruling interrupted its case-in-chief and permitted the defendant to present evidence out of turn. We do not agree.

It is elementary that cross-examination of a witness immediately follows direct examination of that witness. 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 9. The trial court enjoys wide discretion in determining the order in which evidence shall be received. State v. Wood, 208 Conn. 125, 130, 545 A.2d 1026 (1988); State v. DelVecchio, 191 Conn. 412, 427, 464 A.2d 813 (1983).

Moreover, no case has been brought to our attention, nor are we aware of one, that has disallowed cross-examination at the conclusion of a witness’ testimony, to say nothing of postponing it until the conclusion of the opponent’s case-in-chief. Had the plaintiffs offered Gaynor’s testimony by calling him to the witness stand in person, rather than by reading his deposition, it would have been unthinkable to deprive the defendant of his right of cross-examination immediately following his testimony. That result cannot be avoided through the device of offering the doctor’s testimony via a deposition reading. To hold otherwise would make trial through deposition more valuable than production of witnesses in person. We cannot sanction such a procedure.

The court did not err in allowing the defendant to read the omitted portion of Gaynor’s deposition at the conclusion of the plaintiffs’ reading of another portion thereof.

IV

The plaintiffs also claim that the trial court erred in allowing the defendant to read the omitted portion of Gaynor’s testimony into evidence, arguing that the necessary foundation had not been laid to ask a hypothetical question. The record, however, does not disclose that the defendant propounded a hypothetical question to the doctor. The testimony of Gaynor that the defendant read into the record was of a general nature. The expert opinion of a witness may properly be based upon his personal knowledge of the subject matter without resort to a hypothetical question. State v. Conroy, 194 Conn. 623, 629, 484 A.2d 448 (1984); Donch v. Kardos, 149 Conn. 196, 201, 177 A.2d 801 (1962). B. Holden & J. Daly, Connecticut Evidence (2d Ed.) § 118b; 2 J. Wigmore, Evidence (3d Ed.) § 675. Hence, the court did not err in failing to find that the defendant had not established a proper foundation for Gaynor’s deposition.

y

The plaintiffs next argue that allowing the defendant to read the contested portion of Gaynor’s testimony also violated Practice Book § 220 (D). That rule requires that, within 120 days from the day a case is claimed for the trial list, a party must disclose the name of any expert witness whom he intends to call, together with a certain information pertinent to the anticipated testimony of the witness.

This claim has no merit for any of four reasons: (1) the plaintiffs have furnished us with no authority that cross-examination of a witness, expert or otherwise, is the equivalent of calling that person as a witness; (2) the defendant did not read Gaynor’s testimony as the examination of an expert, but as the examination or cross-examination of a subsequent treating physician, and, hence, § 220 (D) does not apply (see part III, supra); (3) when the plaintiffs called Gaynor, through his deposition, as an expert, they took the risk that other relevant and competent evidence contained in the deposition might be offered by the defendant; see Enterprise Leasing Corporation v. Dixon, 1 Conn. App. 496, 500, 472 A.2d 1300 (1984); and (4) Practice Book § 220 (D) expressly allows admission of testimony of an undisclosed expert in the discretion of the court for good cause shown. Under the circumstances of this case, where the plaintiffs had already read a portion of the deposition, we do not find that the trial court abused its discretion in allowing the reading of another part of the deposition of the witness. See Corosa Realty v. Covenant Ins. Co., 16 Conn. App. 684, 687-89, 548 A.2d 473 (1988).

VI

The plaintiffs’ final three claims all pertain to a question the jury sent to the court and the court’s recharge to the jury in response thereto. Some firmly rooted principles concerning appellate review of jury instructions are dispositive of these claims. An instruction is considered from the standpoint of its effect on the jury in guiding it to a verdict. State v. Timmons, 7 Conn. App. 457, 464, 509 A.2d 64 (1986). The instruction will be read as a whole with individual instructions not judged in artificial isolation from the overall charge. State v. Phillips, 17 Conn. App. 391, 394, 552 A.2d 837 (1989). The main and supplemental charge will be examined together to determine whether the jury could reasonably have been mislead by an allegedly erroneous supplemental charge. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986). A charge will not be examined under a legal microscope for technical flaws or possible inaccuracies. State v. Phillips, supra.

Applying these principles, we conclude that the court’s recharge to the jury was an adequate response to the jury’s question and was a proper statement of the law.

There is no error.

In this opinion the other judges concurred.

       This portion of the charge was taken from 2 D. Wright, Connecticut Jury Instructions (2d. Ed.) § 643 (credibility of witnesses — child).

       “[General Statutes] § 54-86h. competency of child as witness. No witness shall be automatically adjudged incompetent to testify because of age .... The weight to be given the evidence and the credibility shall be for the determination of the trier of the fact.”

       Practice Book § 220 (D) provides that “[e]ach defendant shall disclose the names of his or her experts in like manner within 120 days from the date the case is claimed to a trial list. If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Kevin Thomas
    (7055)
    O’Connell, Foti and Jacobson, Js.
    Argued May 16 —
    decision released July 4, 1989

      Bruce A. Sturman, public defender, for the appellant (defendant).

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Michael Regan, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of one count of injury or risk of injury to a child in violation of General Statutes § 53-21. The defendant claims that the trial court erred in failing to instruct the jury that all of the jurors had to agree on whether the defendant’s act was likely to impair the victim’s health or impair the victim’s morals. We find no error.

The jury could reasonably have found that the defendant put his hand under the minor victim’s underwear and fondled her vaginal area.

The defendant argues that United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977), and State v. Benite, 6 Conn. App. 667, 507 A.2d 478 (1986), require the trial court to instruct the jury that all its members must agree on whether it was the victim’s health or her morals that were likely to be impaired by the defendant’s criminal conduct. He claims that the lack of such instruction allowed some jurors to find that the victim’s health was likely to have been impaired while others could find that it was the victim’s morals that were likely to be impaired, thus violating his right to a unanimous jury verdict. We disagree.

The defendant misapplies the unanimity principle of Gipson and Benite, particularly in view of subsequent decisions limiting the unanimity requirement to cases in which the information alleges multiple acts of conduct that are conceptually distinct. State v. Anderson, 211 Conn. 18, 34-35, 557 A.2d 917 (1989); State v. Bailey, 209 Conn. 322, 333-39, 551 A.2d 1206 (1989); State v. Velez, 17 Conn. App. 186, 196-200, 551 A.2d 421 (1988); State v. Flynn, 14 Conn. App. 10, 38, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). The rule requiring a specific unanimity charge “only applies when the particular count under consideration by the jury is based on multiple factual allegations which amount to multiple statutory subsections or multiple statutory elements of the offense involved. It dobs not apply, and such an instruction is not required of the court, where the multiple factual allegations do not amount to multiple statutory subsections or to multiple statutory elements of the offense.” State v. Mancinone, 15 Conn. App. 251, 274, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989).

The risk of injury statute proscribes two general types of behavior — the creation of a situation that is likely to impair the child’s health or morals and the commission of acts likely to impair, the child’s health or morals. State v. Velez, supra, 198. The focus is not on whether the child’s health or morals were affected but on how they were affected, whether it be through the creation of a dangerous situation or the commission of harmful acts. What is required is unanimity as to how the harm was accomplished and not as to the type of harm that resulted.

There can be no confusion here as to the type of conduct committed by the defendant. He was not charged with multiple acts that could have violated either statutory prohibition. The risk of injury charge resulted from a single incident in which the defendant fondled the victim’s vaginal area. This case involved only the commission of an act, not the creation of a situation, and therefore a charge regarding unanimity was not required. See State v. Anderson, supra; State v. Flynn, supra.

The defendant’s argument confuses unanimity as to the act with unanimity as to the result or consequence of that act. As we explained previously, the “health or morals” element of the statute refers to the result of the defendant’s conduct, not the act itself. Benite requires a unanimity instruction when two or more acts of a defendant are conceptually distinct. In an effort to bring this case within the Benite rule, the defendant argues that impairment of health and impairment of morals are conceptually distinct. Even if we assume, arguendo, that the conceptually distinct doctrine is relevant to the result of the defendant’s conduct, we do not agree that the impact on health and the impact on morals are conceptually distinct under the facts of this case. It is virtually impossible to determine whether the defendant’s conduct was likely to impair the child’s health or her morals, and, considering the tender years of the victim and the nature of the defendant’s act it was likely that both her health and morals were adversely affected by the defendant’s unlawful conduct. See State v. Velez, supra, 199.

There is no error.

In this opinion the other judges concurred.

       The defendant also was convicted of one count of sexual assault in the fourth degree in violation of General Statutes § 53a-73a (a) (1) (A). He does not appeal his conviction on this count.
      At the close of the state’s case, the court rendered a judgment of acquittal on a count of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1).

       The pertinent part of General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that ... its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”


author: Dupont, C. J.

text:
    State of Connecticut v. Malcolm Carpenter
    (6639)
    Dupont, C. J., Spallone and Foti, Js.

      Argued April 13 —
    decision released July 11, 1989

      William H. Narwold, special public defender, with whom were David B. Teitelman and, on the brief, Robert J. Petrilli and Karen L. Goldwaithe, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were Eugene Callahan, state’s attorney, and, on the brief, Steven Weiss, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction rendered after a jury trial. The charges against the defendant arose out of six burglaries committed in Stamford between late January and early March, 1986, and are contained in two informations, alleging seventeen separate crimes. The first information is based on the following six incidents: (1) burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the sixth degree in violation of General Statutes § 53a-125b for a break-in at Jesus’ Grocery Store on January 28,1986; (2) burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the fifth degree in violation of General Statutes § 53a-125a for a break-in at Stone’s Variety Store on February 8,1986; (3) burglary in the third degree in violation of General Statutes § 53a-103 and larceny in the sixth degree in violation of General Statutes § 53a-125b for breaking into Quino’s Place, a neighborhood pool hall, and taking money from the coinboxes on February 13, 1986; (4) burglary in the third degree in violation of General Statutes § 53a-103 for breaking into Moraves’, another neighborhood pool hall, also on February 13,1986; (5) burglary in the third degree and larceny in the third degree in violation of General Statutes §§ 53a-103 and 53a-124, for an incident at the J.D. Deli on February 25, 1986; and (6) burglary in the third degree in violation of General Statutes § 53a-103, larceny in the third degree in violation of General Statutes § 53a-124, stealing a firearm in violation of General Statutes § 53a-212, and altering or removing an identification mark in violation of General Statutes § 29-36. Those latter charges arose out of a break-in at Moss’ Gun and Tackle Shop on March 1, 1986, in which twelve weapons were taken.

Four other charges arose out of this last incident and are the subject of the second information. The defendant was apprehended in a motor vehicle on March 3, 1986, while in possession of one of the twelve stolen weapons. He was charged with stealing a firearm in violation of General Statutes § 53a-212, having a weapon in a motor vehicle in violation of General Statutes § 29-38, altering or removing an identification mark in violation of General Statutes § 29-36, and criminal possession of a pistol in violation of General Statutes § 53U-217.

The state moved to consolidate the informations because the crimes were similar and the two informations were connected. The court, Bingham, J., granted the state’s motion, and, subsequently, the defendant was tried before a jury of six. The defendant moved for acquittal on the two counts of altering an identification mark on a weapon in violation of General Statutes § 29-36, and on one count of burglary in violation of General Statutes § 53a-103. The state did not object to the motion and the court, McGrath, J., granted the defendant’s motion. The jury returned a verdict of guilty on the remaining fourteen counts, and the court sentenced the defendant to a total prison term of twenty-nine years and six months.

The defendant claims that the trial court erred (1) in failing to comply with the requirements of General Statutes § 54-84 (b) by not properly instructing the jury on the defendant’s failure to testify, (2) in failing to instruct the jury adequately concerning the testimony of an accomplice, (3) in failing to admonish the jury properly to consider the evidence relating to each charge separately, (4) in failing to admonish the jury properly concerning the limited use of a prior criminal conviction of the defendant, (5) in allowing the jury to convict the defendant on all of the firearm counts without sufficient evidence of the operability of the firearms, (6) in finding sufficient evidence that the defendant did not have permission to enter Jesus’ Grocery Store, (7) in joining the two separate informations, (8) in applying inflexible sentencing guidelines and exercising inappropriate discretion in sentencing the defendant, (9) in convicting the defendant on two separate counts of stealing the same weapon, in violation of the prohibition against double jeopardy, and (10) in sentencing the defendant to one year for the class B misdemeanor of larceny in the fifth degree, six months greater than that allowed by General Statutes § 53a-36. We find error in part.

The jury could reasonably have found certain relevant facts. During the winter of 1986, the defendant and his accomplice, Larry Briscoe, engaged in a series of burglaries in the Stamford area. All burglaries took place in the early morning hours, and involved small family businesses. All of the burglarized stores had steel gates with padlocks to secure their entrances, and a set of bolt cutters were used for the illegal entries. The burglaries spanned a period of a little over one month. The stolen items consisted primarily of cash, usually coins, cigarettes, lottery tickets and liquor, and most of the break-ins involved vandalism. The pair’s final break-in before their arrest was of Moss’ Gun and Tackle Shop. Briscoe testified that a few days earlier he had gone into the gun shop to purchase a firing pin for his weapon, and noticed that the shop could be easily burglarized. On March 1,1986, the defendant and Briscoe used bolt cutters to open the steel gate that blocked the entrance to the store above, as well as to the gun shop. They took twelve guns valued at over $4000. That evening, the defendant stopped at the home of a friend, and sold him two of the guns he had just taken.

On March 3, 1986, the defendant asked another friend for a ride home. En route, they were stopped by police who had a warrant for the defendant’s arrest. The defendant had one of the stolen guns in his possession tucked under the front seat and out of sight.

In his first claim of error, the defendant alleges that the trial court erred in failing to instruct the jury properly pursuant to General Statutes § 54-84 (b). That statute provides in relevant part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” The defendant neither requested a charge on the statute, nor did he take an exception to the trial court’s alleged failure to give it.

Our analysis of the defendant’s claim “necessarily involves three stages of inquiry. ‘ “[1] Is the defendant entitled to raise this claim when he did not raise it at trial? [2] If this claim is properly here, was the instruction given by the trial court erroneous? [3] If the instruction was in error, was the error harmless?” ’ State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986), quoting State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985).” State v. Thurman, 10 Conn. App. 302, 305, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant’s challenge to the trial court’s failure to include the statutorily mandated instruction is twofold. First, he claims that such failure resulted in a due process violation implicating the fairness of his trial. In addition, he alleges that the omission of the instruction violated his rights under General Statutes § 54-84 (b). The state maintains that the defendant’s claims are unreviewable because of his failure to submit a request to charge or to except to the charge as given. We conclude that the defendant’s constitutional claim is reviewable under State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973), and that his statutory claim is reviewable under the plain error doctrine. State v. Thurman, supra, 309.

The defendant’s constitutional claim is reviewable under the familiar Evans bypass because it implicates a fundamental constitutional right and the claim is supported by the record. State v. Thurman, supra, 306-308; see also State v. Thompson, 17 Conn. App. 490, 493-94, 554 A.2d 297 (1989). Although the defendant’s claim is reviewable, we conclude that because the defendant made no request for the “no unfavorable inference” instruction, no fundamental constitutional right was abridged. We so conclude because the federal and state constitutions require the instruction only when the defendant has properly requested it. State v. Thurman, supra, 308.

Despite the state’s argument to the contrary, the defendant’s claim is also reviewable and properly before this court under the plain error doctrine. See id., 308-10, and cases cited therein; see also State v. Thompson, supra, 494. “The provisions of § 54-84 (b) are more stringent than the federal or state constitutions require. State v. Sinclair, supra, 585. ‘While the constitutional right to a “no adverse inference” charge depends upon the defendant’s request of such a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given.’ Id. Our legislature has prescribed the language provided in § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum. State v. Cobb, supra, 324. For this reason, our Supreme Court has ‘regularly characterized as error any but the most minor departure from the language that § 54-84 (b) requires.’ ” (Emphasis in original.) State v. Thurman, supra, 309.

The trial court instructed the jury: “Now, the fact that [the defendant] has not testified in this case has no significance whatsoever so far as your determination of the case is concerned and you may not consider that fact in any way in your deliberations. The burden is upon the prosecution throughout the case to prove [the defendant] guilty beyond a reasonable doubt and no burden rests upon [the defendant] to prove his innocence.” (Emphasis added.) It was error for the trial court not to include the express language of the statute in its charge to the jury. State v. Cobb, supra, 324-25; see also State v. Holloway, 209 Conn. 636, 651, 553 A.2d 166 (1989).

We must now determine whether the error was harmless. Cases that have utilized a harmless error analysis are those in which a “no unfavorable inference” instruction was given, but which did not follow the exact wording of the statute. State v. Thurman, supra, 310 and n.6. In those cases, minor deviations from the precise language provided in the statute that did not change the substantive meaning of the statute were held to be harmless error. Id.

The court stated that “no significance whatsoever” could be ascribed to the defendant’s failure to testify and that the jury “may not consider that fact in any way in your deliberations.” We must determine whether that charge conveyed the substantive meaning of the statute and whether there was a reasonable possibility that the jury was misled by it.

In State v. Cobb, supra, the Supreme Court held that the trial court’s charge to the jury, that it could draw “no inference” from the defendant’s failure to testify, was harmless error in that there was no reasonable possibility that the jury was misled and that the charge was sufficient to convey the substantive meaning of § 54-84 (b). See also State v. Thompson, supra, 495.

In State v. Cobb, supra, the court stated that a “no inference” charge would preclude a jury from drawing an unfavorable inference because “ ‘[a]n instruction prohibiting any inference would also preclude an unfavorable inference.’ State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985) . . . . ” (Citation omitted). It follows, then, that the essence of our inquiry turns upon whether the court’s instruction in this case sufficiently precluded the jury from drawing an unfavorable inference from the defendant’s failure to testify. The court’s charge that the jury could attach “no significance whatsoever” to the defendant’s failure to testify sufficiently admonished the jury against engaging in the prohibited inference because “significance,” by definition, means something that has “the quality of being important.” Webster, Third New International Dictionary. If a certain fact has been characterized as having no importance whatsoever, then it necessarily follows that no other fact of importance may be inferred from that fact’s particular existence. Under the language of this instruction, we conclude that the court’s charge was sufficient to convey the substantive meaning of General Statutes § 54-84 (b).

We further conclude that there was no reasonable possibility that the jury was misled by the court’s charge. The meaning of the term “significance” is commonly understood, and the court emphasized that the jury could not consider “[the defendant’s failure to testify] in any way in your deliberations.”

The error of the trial court in not following the prescribed statutory language was, therefore, harmless in the context of this case.

The defendant next claims that the trial court failed to instruct the jury adequately concerning the danger and harm of convicting the defendant solely on the uncorroborated testimony of a self-confessed accomplice. Although the defendant did not request an instruction on the subject or object or except to the charge as given, he claims review under the plain error doctrine. Practice Book § 4185.

Practice Book § 4185 provides that this court “may in the interests of justice notice plain error not brought to the attention of the trial court.” We are not convinced that the record before us reflects any such injustice. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

The court here instructed the jury to consider the fact that the defendant had an accomplice. Although the testimony of an accomplice may require heightened scrutiny, there is no rule of law that such testimony requires corroboration before there may be a conviction, as the defendant claims. See State v. Shindell, 195 Conn. 128, 141-43, 486 A.2d 637 (1985). The defendant has not established that his claim meets the standard for review under the plain error doctrine.

The defendant next claims that the trial court failed to admonish the jury properly concerning a prior criminal conviction of the defendant and to consider the evidence relating to each charge separately. Again, although the defendant concedes that he failed to request a charge or except to the charge as given, he claims that this court may review these claims under State v. Evans, supra. The defendant has essentially reiterated the same claims in his assertion that the trial court erred in granting the state’s motion for joinder of the two informations. We will address those claims in relation to that issue, infra.

The defendant’s next set of claims relates to the sufficiency of the evidence. The defendant first claims that all of the “firearm” counts must be dismissed because the state failed to prove that the firearms in question were capable of discharging a shot.

The two informations charged the defendant with four separate crimes involving a weapon. Two charges involved stealing or withholding a firearm, a violation of General Statutes § 53a-212, one charge was for having a weapon in a motor vehicle in violation of General Statutes § 29-38, and the final charge was criminal possession of a pistol in violation of General Statutes § 53a-217.

The defendant principally relies upon General Statutes § 53a-3 (18) and (19) to support his claim. Section 53a-3 (18) provides that “ ‘pistol’ or ‘revolver’ means any firearm having a barrel less than twelve inches.” (Emphasis added.) Section 53a-3 (19) provides: “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged. ” (Emphasis added.) While these definitions are clearly applicable to General Statutes §§ 53a-212 and 53a-217, the Supreme Court recently held that they do not apply to General Statutes § 29-38, which was enacted twenty years prior to the penal code. State v. Delossantos, 211 Conn. 258, 273-76, 559 A.2d 164 (1989).

“ ‘The issue of sufficiency of evidence and its appropriate standard of review have been analyzed countless times by both this court and our Supreme Court.’ State v. Iovieno, 14 Conn. App. 710, 712-13, 543 A.2d 766 (1988). ‘ “The issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981).’ ” State v. Ruth, 16 Conn. App. 148, 153, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989).

Operability of the firearms was an essential element of the crimes charged under General Statutes §§ 53a-212 and 53a-217. Whether a firearm is one from which a shot may be discharged can be inferred from all of the facts and need not be established beyond a reasonable doubt by direct evidence but may be established by circumstantial evidence. State v. Manley, 195 Conn. 567, 573 n.8, 489 A.2d 1024 (1985).

There was ample evidence from which the jury could infer that operability was proven beyond a reasonable doubt. State v. Pina, 185 Conn. 473, 477, 440 A.2d 962 (1981). Briscoe testified that one of the weapons had been fired by him at a cemetery. The mother of a purchaser of two of the guns testified that her son asked her to buy bullets for the guns and, when she refused, that the guns remained in the household, unused, until they were seized by the police. Furthermore, the weapons were entered as full exhibits and made available to the jurors for examination. We hold, therefore, that there was sufficient evidence for the jury to find beyond a reasonable doubt that the weapons were operable.

In his next claim, the defendant contends that there was insufficient evidence demonstrating that the defendant entered or remained at Jesus’ Grocery Store without permission. In connection with this incident, the defendant was charged with burglary in the third degree, in violation of General Statutes § 53a-103, and larceny in the sixth degree in violation of General Statutes § 53a-125b.

The defendant supports his contention that there was insufficient evidence demonstrating that he entered Jesus’ Grocery Store without permission by the fact that the store owner did not specifically testify that the defendant did not have permission to enter the store. The defendant’s claim ignores the substantial evidence from which the jury could infer that the owner did not give the defendant permission to enter the store.

At trial, the owner of Jesus’ Grocery Store testified that he had left the store locked and barred with a steel gate the night before the burglary. The padlocks that secured the steel gate had been cut and the gate had been raised. Money had been taken from the cash register, and money that had been concealed in the freezer was missing. Debris had been strewn around the floor. “ ‘ “It is within the province of the jury to draw reasonable and logical inferences from the facts proven.” ’ ” State v. Ruth, supra, 154. The jury could reasonably have found, from the evidence presented at trial, that the defendant did not have permission to enter the store.

The defendant’s next claim relates to the trial court’s granting of the state’s motion for joinder pursuant to Practice Book § 829. Specifically, the defendant contends that it was error to join the charges in the two informations because one crime, criminal possession of a pistol, required proof of a prior felony. He claims that the jurors’ knowledge of the prior felony tainted their consideration of the other counts, and that such evidence would have been inadmissible and highly prejudicial in the case against the defendant with regard to the burglary and larceny charges. We disagree.

“The judicial authority may . . . order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together.” Practice Book § 829; see General Statutes § 54-57. “If it appears that a defendant is prejudiced by a joinder of offenses, the judicial authority may . . . order separate trials .... ” Practice Book § 828. “ ‘This does not mean that severance is to be had for the asking.’ ” State v. Banta, 15 Conn. App. 161, 167, 544 A.2d 1226 (1988).

“ ‘The question of severance lies within the discretion of the trial court. We will not disturb the trial court’s conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. . . . Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together.’ . . . State v. Edwards, 10 Conn. App. 503, 506-507, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).” (Citations omitted.) State v. Banta, supra.

“Substantial prejudice does not necessarily result from a denial of severance even where evidence of one offense would not have been admissible at a separate trial involving the second offense. A trial court will not have manifestly abused its discretion in denying severance if the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jury to consider the evidence relevant to each charge separately and distinctly.” State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987).

In State v. Banta, we adopted factors derived from those federal decisions that have considered the issue of whether a trial court should have ordered a separate trial when the analogous federal crime of being a felon in possession of a firearm; see 18 U.S.C. app. § 1202; 18 U.S.C. § 922 (g); is joined with some other substantial offense. These factors are: (1) “the manner in which the evidence entered the case and the extent of the jury’s knowledge of the facts underlying the prior felony conviction”; (2) “the adequacy of any cautionary instructions given by the court”; (3) “the use of the prior felony evidence by the prosecution in argument to the jury”; (4) “the likelihood that the prior felony conviction evidence will inflame the passions of the jurors in light of the nature of the offenses charged”; and (5) “the strength of the evidence against the defendant.” State v. Banta, supra, 170-71.

The record in this case leads us to conclude that any prejudicial effect on the defendant by the joinder of the two informations was minimal. The defendant’s conviction was presented to the jury, by a stipulation of the parties, through the presentment of a copy of the defendant’s conviction for robbery in the first degree. The court ruled that the prior felony could not be put into evidence until the end of the trial in order to avoid possible confusion. The defendant did not object to the introduction of the evidence of conviction or request a limiting instruction. The state did not use the defendant’s prior conviction for dramatic or inflammatory effect and the case was such that the jury is unlikely to have been swayed by passions.

Furthermore, our review of the transcript reveals that the state’s evidence was straightforward in nature, was not complex and was presented in an orderly manner. We do not agree that the possibility for jury confusion existed. See State v. Cruz, 18 Conn. App. 482, 487, 559 A.2d 231 (1989). Finally, the evidence against the defendant was neither sparse nor unconvincing. We conclude that the trial court gave adequate consideration to the potential for prejudice caused by the joinder of the two informations, and that the defendant has failed to meet his heavy burden of demonstrating that substantial prejudice resulted from the joinder.

The defendant’s last claim is that the trial court abused its discretion in sentencing the defendant because it used inflexible sentencing guidelines. The court stated that it did not believe in concurrent sentences, and, with one exception, it gave the defendant consecutive sentences for the crimes for which he was convicted. All of the sentences that were given were legal with the exception of the three crimes for which illegal sentences were given. See footnotes 1 through 3, supra. The defendant is basically complaining about the length of the total effective sentence, namely twenty-nine and one-half years, particularly because the state had sought a sentence of eighteen years. The essence of the defendant’s argument is that the sentences were inappropriate in view of the nature of the offenses, the character of the offender, the protection of the public interest, and the deterrent and denunciatory purposes for which sentences are intended. These are arguments that should have been made to the sentence review division of the Superior Court. See General Statutes §§ 51-195 and 51-196; State v. Johnson, 192 Conn. 471, 474, 472 A.2d 1267 (1984). Generally, when a sentence is imposed within statutory limits, it is not subject to appellate review. State v. McNellis, 15 Conn. App. 416, 445, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). Moreover, the totality of the remarks made at the sentencing hearing by the trial court do not lead us to the conclusion that the sentences were imposed in an illegal manner.

There is error in part, the judgment as to the second count of stealing a firearm in violation of General Statutes § 53a-212 is set aside, and the case is remanded to the trial court for resentencing on the remaining count of stealing a firearm in violation of General Statutes § 53a-212, and for resentencing on the fourth count of the first information of larceny in the fifth degree, and for resentencing on the fourth count of the second information of criminal possession of a firearm.

In this opinion the other judges concurred.

       For the first time on appeal the state contends that the trial court imposed an illegal sentence for criminal possession of a firearm because the defendant was sentenced to one year imprisonment when the minimum sentence provided by General Statutes § 53a-217 (b) is two years. It therefore argues that the case should be remanded to the trial court for resentencing. The state did not file a cross appeal or a preliminary statement of issues raising this question and, ordinarily, we would not consider it. Practice Book §§ 4005 and 4013. We will review the state’s claim, however, because the sentence given was clearly illegal; see Riggs v. Zaleski, 44 Conn. 120, 121 (1876); and because the case must be remanded for other reasons. See footnotes 2 and 3, infra; Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 143, 491 A.2d 389 (1985). Upon such review, it is apparent that the sentence violated General Statutes § 53a-217 (b) and, upon remand, the trial court is directed to resentence the defendant on that count.

       The state conceded the rectitude of the defendant’s claim of double jeopardy and requested this court to vacate the judgment of conviction on the second count of stealing a firearm in violation of § 53a-212 and remand the matter to the trial court with direction to resentence the defendant on the remaining count of stealing a firearm in violation of § 53a-212. We agree with the state that the convictions violated the prohibition against double jeopardy; State v. Williams, 12 Conn. App. 225, 230-34, 530 A.2d 627 (1987); and therefore will grant the relief requested.

       The state concedes that the defendant was illegally sentenced for his conviction on the fourth count of the first information of larceny in the fifth degree for the unlawful taking of goods from Stone’s Variety Store on February 8, 1986. The trial court sentenced the defendant to one year for this misdemeanor. Larceny in the fifth degree is a class B misdemeanor. General Statutes § 53a-125a. Sentences for class B misdemeanors shall be fixed at terms not to exceed six months. The sentence imposed for this count therefore exceeds the statutory maximum, and the matter must be remanded with direction to the trial court to resentence the defendant within the limits of the statute on that count. State v. Vincent, 194 Conn. 198, 209, 479 A.2d 237 (1984).

       General Statutes (Rev. to 1985) § 53a-217 (a) provides: “A person is guilty of criminal possession of a pistol or revolver when he possesses a pistol or revolver and has been convicted of a capital felony, a class A felony, a class B felony, except a conviction under section 53a-86, 53a-122 or 53a-196a, a class C felony, except a conviction under section 53a-87, 53a-152, 53a-153 or 53a-196b, or a felony under sections 53a-60 to 53a-60c, inclusive, 53a-72a, 53a-72b, 53a-95, 53a-103, 53a-103a, 53a-114, 53a-136 or 53a-216. For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.” See also footnote 1, supra.


author: Norcott, J.

text:
    Eileen Mayer Daly v. Daniel Daly
    (7035)
    Stoughton, Noegott and Foti, Js.
    Argued April 20 —
    decision released July 11, 1989

      M. J. Daly III, for the appellant (defendant).

      JohnM. Wabiszczewicz, for the appellee (plaintiff).
   Norcott, J.

The parties to this appeal were divorced in August, 1969. As part of the modified judgment of divorce, the court awarded the defendant’s interest in the income from several trust funds to the plaintiff, allocating one third as alimony and two thirds as support for the parties’ one minor child. The court also ordered that, upon the termination of the trusts and the distribution of the principal at the death of Grace McLinden, the last holder of a life estate, the defendant’s share of the principal be allocated one third to the plaintiff and one third each to the parties’ two daughters. The defendant did not appeal that judgment.

On February 2, 1988, after McLinden’s death, the plaintiff and her daughters filed a motion for execution of the terms of the judgment regarding the distribution of the trust principal. On March 16, 1988, the defendant filed a motion to strike the plaintiff’s motion and a motion to open and correct the original judgment for lack of subject matter jurisdiction. The trial court granted the plaintiff’s motion for execution and denied the defendant’s motions.

In response to the defendant’s motion for articulation of the basis for the denial of his motions, the trial court stated that the original court had subject matter jurisdiction when it rendered its judgment in 1969 in that it properly transferred to the plaintiff property already acquired by the defendant. The court determined that the defendant’s rights to the funds were vested at the time of the transfer, and that the case therefore was not controlled by Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987). Recognizing that the defendant’s child support obligation ended when his daughters reached majority, the court also stated that the award of the principal of the trust could be viewed as an assignment of property and not as a child support order. On appeal, the defendant claims that the trial court erred in determining that the original court had subject matter jurisdiction over the principal of the trusts.

“ ‘The court’s judgment in an action for dissolution of a marriage is final and binding upon the parties, where no appeal is taken therefrom, unless and to the extent that statutes, the common law or rules of court permit the setting aside or modification of that judgment. Under Practice Book, 1978, § 326, a civil judgment may be opened or set aside . . . where a motion seeking to do so is filed within four months from the date of its rendition. Under § 326, the parties may waive the time requirements or otherwise submit themselves to the jurisdiction of the court. Absent waiver, consent or other submission to jurisdiction, however, a court is without jurisdiction to modify or correct a judgment, in other than clerical respects, after the expiration of the [period] provided in Practice Book, 1978, § 326.’ Bunche v. Bunche, 180 Conn. 285, 287-88, 429 A.2d 874 (1980). After the expiration of the four month period provided by § 326 a judgment may not be vacated upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless such action is authorized by statute or unless the error is one going to the jurisdiction of the court rendering the judgment. Kalinick v. Collins Co., 116 Conn. 1, 7-8, 163 A. 460 (1932). The court does have inherent authority, however, at any time to open and modify a judgment rendered without jurisdiction. Broaca v. Broaca, 181 Conn. 463, 467, 435 A.2d 1016 (1980).” Misinonile v. Misinonile, 190 Conn. 132, 134-35, 459 A.2d 518 (1983).

The defendant has framed his collateral attack on the 1969 judgment as a challenge to the subject matter jurisdiction of the court. “A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it.” Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979); Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 559, 468 A.2d 1230 (1983). The defendant does not suggest that the original trial court was not a proper forum for the divorce action. Rather, he claims that the court did not have subject matter jurisdiction because the divorce statutes did not allow the distribution of the trust principal.

This court is not convinced that we should “invariably characterize as an absence of . . . jurisdiction every failure of a trial court to observe every statutory limitation on its authority to act . . . .” Broaca v. Broaca, supra, 471, (Peters, J., dissenting). “Moreover, to give an expansive interpretation to the concept of ‘subject matter jurisdiction’ would be to ‘undermine significantly the doctrine of res judicata, and to eliminate the certainty and finality in the law and in litigation which the doctrine is designed to protect.’ Lacks v. Lacks, 41 N.Y.2d 71, 77, 359 N.E.2d 384 [390 N.Y.S.2d 875 (1976)].” Vogel v. Vogel, 178 Conn. 358, 363, 422 A.2d 271 (1979).

Our Supreme Court has found a lack of subject matter jurisdiction in dissolution cases in which trial courts have ordered postmajority child support without a written agreement of the parties to such an arrangement. Gallo v. Gallo, 184 Conn. 36, 46, 440 A.2d 782 (1981); see Arseniadis v. Arseniadis, 2 Conn. App. 239, 243, 477 A.2d 152 (1984). The basis of these decisions is that because the language of the child support statute allows an award of support only to “minor children,” a postmajority award exceeds the jurisdiction of the court as provided by statute. Broaca v. Broaca, supra, 466; Kennedy v. Kennedy, 177 Conn. 47, 49-50, 411 A.2d 25 (1979).

It is not clear that an award of a future inheritance as “part of the estate” of a spouse under General Statutes § 46b-81 or its predecessor, General Statutes (1958 Rev.) § 46-21, in effect at the time of the parties’ divorce, implicates the subject matter jurisdiction of the court or that the transfer in this case, at least as to the plaintiff, was beyond the court’s authority. Even if we assume, arguendo, however, that the original court exceeded its statutory authority and that it acted without subject matter jurisdiction, we conclude that consideration of the merits of the defendant’s collateral action is not warranted under the circumstances of this case.

“Although we have held that a challenge to a court’s subject matter jurisdiction ‘can be raised at any time . . . and the lack thereof cannot be waived’; LaBow v. LaBow, 171 Conn. 433, 440, 370 A.2d 990 (1976) . . . Monroe v. Monroe, [supra 177]; we have also recognized that ‘[t]he modern law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdiction of the adjudicatory tribunal.’ Monroe v. Monroe, supra, 178; Connecticut Pharmaceutical Assn., Inc. v. Milano, [supra, 560]; Vogel v. Vogel, supra, 362-63; 1 Restatement (Second), Judgments § 12; James & Hazard, Civil Procedure (2d Ed. 1977) § 13.16.” Meinket v. Levinson, 193 Conn. 110, 114, 474 A.2d 454 (1984); Morris v. Irwin, 4 Conn. App. 431, 433, 494 A.2d 626 (1985). “ ‘Litigation about whether subject matter jurisdiction exists should take into account whether the litigation is a collateral or direct attack on the judgment, whether the parties consented to the jurisdiction originally, the age of the original judgment, whether the parties had an opportunity originally to contest jurisdiction, the prevention of a miscarriage of justice, whether the subject matter is so far beyond the jurisdiction of the court as to constitute an abuse of authority, and the desirability of the finality of judgments. Connecticut Pharmaceutical Assn., Inc. v. Milano, [supra]; Vogel v. Vogel, supra; Monroe v. Monroe, [supra]; 1 Restatement (Second), Judgments § 12.’ Arseniadis v. Arseniadis, [supra, 243-44].” Morris v. Irwin, supra, 434.

In the present case, we are confroiited with a collateral attack eighteen years after the original court rendered judgment. The defendant did not exercise his opportunity to appeal that judgment, and there are no facts before us to warrant a conclusion that there has been a miscarriage of justice. If, twenty years after the rendering of the questioned orders in this case, this court were to set aside the award of the principal of the trusts, we would be creating an unjust situation. As our Supreme Court has recently stated, “ ‘[w]hile an action for divorce or dissolution of marriage is a creature of statute, it is essentially equitable in its nature. Stoner v. Stoner, 163 Conn. 345, 356, 307 A.2d 146 [1972].’ Pasquariello v. Pasquariello, 168 Conn. 579, 584, 362 A.2d 835 (1975). ‘The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. . . .’ Id., 585.” Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989). “[I]ssues involving financial orders are entirely interwoven. ‘The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.’ ” Id., 175, quoting Ehrenkranz v. Ehrenkranz, 2 Conn. App. 416, 424, 479 A.2d 826 (1984); Weinstein v. Weinstein, 18 Conn. App. 622, 629, 561 A.2d 443 (1989). In Sunbury the court ordered that after this court found error in one part of a financial award, it was not proper to set aside only that portion of the award but was necessary to remand to the trial court for reconsideration of all of the financial orders.

In this case, the original trial court’s award of the principal of the trusts was only one part of a financial award that included alimony, child support, medical insurance, beneficiary interests in life insurance policies and attorney’s fees. It clearly is not possible or desirable to reallocate all the resources of the parties after twenty years of compliance with and reliance on the original orders of the court. “ ‘ “The law aims to invest judicial transactions with the utmost permanency consistent with justice. . . . Public policy requires that a term be put to litigation and that judgments, as solemn records upon which valuable rights rest, should not lightly be disturbed or overthrown. . . .” ’ Lampson Lumber Co. v. Hoer, 139 Conn. 294, 297, 93 A.2d 143 (1952), quoting 1 Freeman, Judgments (5th Ed.) § 305, pp. 602-603.” Meinket v. Levinson, supra, 113. Any injustice that might be done here would be in setting aside a portion of the original judgment.

Having examined the criteria for litigating the issue of subject matter jurisdiction, we conclude that the need for finality of judgments and the circumstances of this case require that we not consider the merits of the defendant’s claim.

There is no error.

In this opinion the other judges concurred.

       The court awarded no support for the parties’ other daughter who had reached majority during the divorce proceedings.

       In Rubin v. Rubin, 204 Conn. 224, 527 A.2d 1184 (1987), the Supreme Court held that a mere expectancy of a future acquisition of property was not transferable in a dissolution action as either alimony or as a property award.

       The court in Rubin v. Rubin, 204 Conn. 224, 231, 527 A.2d 1184 (1987), spoke in terms of exceeding statutory authority, using the word “jurisdiction” only once in agreeing with the holding of a Delaware court in Beres v. Beres, 52 Del. 133, 154 A.2d 384 (1959).


text:
    Nicholas Brennan et al. v. Jesse Manlapaz et al.
    (7062)
    Dupont, C. J., O’Connell and Stoughton, Js.

      Argued May 11 —
    decision released July 11, 1989

      Catherine C. Ziehl, with whom, on the brief, was Ernest F. Teitell, for the appellant (plaintiff).

      Ronald D. Williams, for the appellee (defendant).
   Dupont, C. J.

The plaintiff brought a medical malpractice action against the defendant, claiming that he failed to diagnose and treat properly the plaintiff’s fractured wrist. The jury returned a general verdict in favor of the plaintiff, and the trial court subsequently denied the plaintiff’s motion to set aside the verdict as inadequate as a matter of law. The plaintiff appeals from the judgment rendered on the jury’s verdict.

On August 26, 1981, the plaintiff was seriously injured when a tree fell on him. He was treated at a hospital by the defendant, a neurosurgeon, who performed a successful spinal fusion operation. The plaintiff remained in the hospital for five weeks, during which time he complained of severe pain and discomfort throughout his body, including numbness and tingling in his left wrist and hand. The defendant did not x-ray or examine the hand while the plaintiff was in the hospital.

After his release, the plaintiff continued to see the defendant about once a month. The testimony of the parties concerning the frequency and timing of the plaintiffs complaints about his wrist during the recovery period is in conflict. On May 7, 1982, the defendant x-rayed the wrist and diagnosed a healed lineal fracture. The defendant testified that he then advised the plaintiff to consult an orthopedic surgeon, as he was not qualified to treat the wrist. Conversely, the plaintiff testified that the defendant never suggested the alleged referral.

In November, 1982, the plaintiff underwent an independent medical examination. An x-ray disclosed a fractured wrist which had developed complications. Over the next two years, an orthopedic surgeon treated the fracture. Treatment included external stimulation and two related bone graft surgeries. At trial, the plaintiff presented evidence of medical expenses incurred for that treatment totalling $8301.03, as well as evidence of past and future pain and suffering and permanent disability. The jury award totalled $8300.

The plaintiff argues that the trial court erred in denying his motion to set aside the verdict. He asserts that the jury awarded only medical expenses, and that its alleged failure to award damages for pain and suffering required the court to grant his motion. The defendant argues that the award does not necessarily represent medical expenses only, and that the trial court did not abuse its discretion in refusing to set aside the verdict.

In reviewing the trial court’s refusal to set aside the verdict, our task is limited to determining whether the court abused its discretion. Taddei v. Schwarz, 12 Conn. App. 659, 660, 533 A.2d 892 (1987). Because a trial court is in a better position than an appellate court to determine whether a jury’s verdict was improperly influenced, its decision should be given great weight and every reasonable presumption of correctness should be accorded to it. Malmberg v. Lopez, 208 Conn. 675, 679, 546 A.2d 264 (1988), citing Riccio v. Abate, 176 Conn. 415, 417, 407 A.2d 1005 (1979). A jury’s verdict should not be set aside unless it “ ‘so shock[s] the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.’ Shea v. Paczowski, 11 Conn. App. 232, 233, 526 A.2d 558 (1987).” Creem v. Cicero, 12 Conn. App. 607, 610, 533 A.2d 234 (1987). A reviewing court, however, must set aside the verdict if it is manifestly unjust and palpably against the evidence. Malmberg v. Lopez, supra, 679-80.

The plaintiff argues that the jury award was manifestly unjust because he claims that it included damages for medical expenses only and did not include any sum attributable to pain and suffering. The general rule in Connecticut is that where a plaintiff is entitled to recover damages for pain and suffering, an award limited to nominal or special damages is inadequate as a matter of law and should be set aside. Id., 681; Johnson v. Franklin, 112 Conn. 228, 229, 152 A. 64 (1930). The plaintiff argues that because he presented evidence of pain and suffering, permanent disability and medical expenses, and because the total jury award was $1.03 less than the total medical expenses, the verdict clearly represented an award for medical expenses only. We disagree. The record suggests that the award could have included both special and general damages.

“The amount of damages to be awarded is a matter particularly within the province of the jury.” Shea v. Paczowski, supra, 234; Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983). The jury determines the effect and credibility of the testimony and the weight to be given the evidence. Gallo v. Gallo, 184 Conn. 36, 38, 440 A.2d 782 (1982); Angelica v. Fernandes, 174 Conn. 534, 535, 391 A.2d 167 (1978); Shea v. Paczowski, supra, 234. In Creem v. Cicero, supra, this court found that there was no reasonable basis to conclude that the jury’s general verdict was limited to special damages, even though the total award was only four cents more than the medical expenses incurred. Because the defendant in that case had presented evidence that some of the plaintiff’s damages were attributable to prior injuries, and because the court had instructed the jury on special and general damages, we concluded that the award could have included elements of both. Id., 612.

The present case is similar to Creem. In this case, the jury could have believed that the defendant instructed the plaintiff to consult an orthopedic surgeon in May, 1982, and that the plaintiff failed to follow that instruction. An expert testified that treatment of the wrist fracture at that time could have reduced the plaintiff’s injury. The court instructed the jury to consider special damages, damages for pain and suffering, and damages for permanent disability. In addition, the court gave an instruction on the plaintiff’s duty to follow his doctor’s recommendations. Without the submission of interrogatories to the jury, we must assume that the jury followed the court’s instructions. Creem v. Cicero, supra, 612. Accordingly, we conclude that the jury’s award fell within the necessarily uncertain limits of just damages. Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

There is no error.

In this opinion the other judges concurred.

       Prior to trial, the plaintiff withdrew his suit against the defendant New Milford Hospital.

       The plaintiff also argues that in the event we find an abuse of discretion, the case should be remanded for a new trial on the issue of damages only. We do not address this claim because of the disposition of the primary issue of this appeal.


author: Foti, J.

text:
    James Bleidner v. Lisa Searles
    (6802)
    Spallone, O’Connell and Foti, Js.
    Argued March 14 —
    decision released July 11, 1989

      Mark L. Bergamo, for the appellant (petitioner).

      Joseph Dimyan, with whom, on the brief, was Crystelle M. Hibbard, for the appellee (respondent).
   Foti, J.

The petitioner appeals from the trial court’s judgment dismissing his petition for a new trial pursuant to General Statutes § 52-270. We find no error.

The facts relevant to our resolution of this appeal are not in dispute. In January, 1984, the respondent initiated a paternity action against the petitioner seeking a judicial determination that the petitioner was the father of her son born on August 26,1983. On August 3, 1984, the trial court approved a stipulation of judgment, agreed to by the parties and signed by their attorneys, in which the petitioner stipulated to paternity and agreed to provide financial support for the child. Subsequently, on August 16, 1984, pursuant to the stipulated judgment, the petitioner signed an acknowledgment of paternity that was witnessed and signed by a notary public. That document was then signed by the respondent and filed in the court on November 6, 1984.

On November 9, 1987, the petitioner initiated the present action for a new trial pursuant to General Statutes § 52-270 (a). After a hearing, the trial court dismissed the petition finding that the petitioner had failed to meet his burden of proving he was entitled to a new trial. In both the prior paternity action and the present action for a new trial, the petitioner was represented by counsel.

A petition for a new trial is a statutory remedy that is essentially equitable in nature. State v. Grimes, 154 Conn. 314, 325, 228 A.2d 141 (1966). General Statutes § 52-270 sets forth the limited circumstances in which a new trial will be granted. The petitioner has the burden of proving by a preponderance of the evidence that he is entitled to a new trial on the grounds claimed. Johnson v. Henry, 38 Conn. Sup. 718, 719-20, 461 A.2d 1001, cert. denied, 464 U.S. 1011, 104 S. Ct. 533, 78 L. Ed. 2d 714 (1983). The petition is addressed to the sound discretion of the trial court. Rizzo v. Pack, 15 Conn. App. 312, 315, 544 A.2d 252 (1988).

“A petition will never be granted except upon substantial grounds. It does not furnish a substitute for, or an alternative to, an ordinary appeal but applies only when no other remedy is adequate and when in equity and good conscience relief against a judgment should be granted.” State v. Grimes, supra; Rizzo v. Pack, supra. “In considering a petition, trial judges must give first consideration to the proposition that there must be an end to litigation. Krooner v. State, 137 Conn. 58, 68, 75 A.2d 51 (1950).” Johnson v. Henry, supra, 720.

Although General Statutes § 52-270 permits the court to grant a new trial upon proof of “reasonable cause,” the circumstances in which reasonable cause may be found are limited. Wetzel v. Thorne, 202 Conn. 561, 565, 522 A.2d 288 (1987). “The basic test of ‘reasonable cause’ is whether a litigant, despite the exercise of due diligence, has been deprived of a fair opportunity to have a case heard on appeal. ... ‘A new trial may be granted “to prevent injustice in cases where the usual remedy by appeal does not lie or where, if there is an adequate remedy by appeal, the party has been prevented from pursuing it by fraud, mistake or accident.” Krooner v. State, [supra 60]. Absent such special circumstances, “[a] petition for a new trial does not furnish a substitute for, or an alternative to, an ordinary appeal.” . . .’ Wetzel v. Thorne, supra, 565.” (Citations omitted.) Rizzo v. Pack, supra, 317-18. To prevail, the petitioner must establish that the trial court’s denial of his petition constituted a clear abuse of discretion. Wetzel v. Thorne, supra, 564.

The plaintiff claims that the trial court erred in failing to find that General Statutes § 46b-172 (b) constituted “reasonable cause” within the meaning of General Statutes § 52-270, thereby entitling him to a hearing on the issue of paternity. The linchpin of the petitioner’s claim is that under General Statutes § 46b-172 (b), he has an “absolute right” to be “reheard” on the issue of paternity. Because we find this contention to be without merit, we conclude that the trial court did not abuse its discretion in denying the petition for a new trial.

We begin our analysis by reviewing the purposes and history of § 46b-172 and paternity matters generally. General Statutes §§ 46b-160 through 46b-179d. General Statutes § 46b-160 sets forth the procedure by which a mother or expectant mother may initiate a paternity action by petitioning the court to establish the paternity of a child born out of wedlock. In a prosecution under § 46b-160, either party, the mother or the putative father, may demand a trial by a jury of six. General Statutes § 46b-164. The trial court’s approval is required before a petition is withdrawn or settled, unless an agreement is made pursuant to § 46b-172. General Statutes § 46b-170.

General Statutes § 46b-172 provides a procedure by which paternity may be acknowledged in writing by a putative father and mother. Unlike a suit initiated pursuant to § 46b-160, the acknowledgment procedure provides an alternative to a full scale judicial proceeding, and an agreement reached pursuant to it does not require court approval. The acknowledgment procedure may be followed “[i]n lieu of or in conclusion of” a paternity action initiated pursuant to § 46b-160. Once a person signs a written acknowledgment form, that form is filed with the court and has “the same force and effect as a judgment of the court . . . .” General Statutes § 46b-172 (a). As to the issue of paternity, that judgment is res judicata, and is reviewable by the court only through a petition for a hearing on that issue filed within three years of the entry of the judgment. General Statutes § 46b-172 (b). Since its enactment, § 46b-172 (b) has been amended by the legislature and interpreted by our courts and a federal court.

Our review of the legislative history and case law interpreting this section convinces us that the petitioner’s reliance on § 46b-172 (b) and Stone v. Maher, 527 F. Sup. 10 (D. Conn. 1980), for the proposition that he has an “absolute right to be reheard” on the issue of paternity, is misplaced. In 1980, § 46b-172 (b) provided: “[T]he prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court.” General Statutes (Rev. to 1979) § 46b-172 (b). Thus, under the original version of § 46b-172 (b), once a putative father acknowledged paternity, that action was conclusive and could not be challenged in a future court proceeding. In interpreting the 1980 version of the statute, a federal court held that, to the extent that § 46b-172 (b) precluded a putative father who had acknowledged paternity by signing an acknowledgment form from thereafter litigating that issue in a judicial proceeding for the purpose of determining his support obligations, that section was unconstitutional. Stone v. Maher, supra. In Stone v. Maher, the putative father signed an acknowledgment form supplied by the family relations office of the state in which he acknowledged paternity and agreed to support the child financially. The form did not contain any information regarding the putative father’s rights to counsel, or to a hearing on the issue of paternity, nor was there any language explaining that the acknowledgment constituted a waiver of his rights. The putative father was not represented by an attorney at the time he signed the acknowledgment form, and no formal judicial hearing was held.

Since the court’s ruling in Stone v. Maher, our courts have had the opportunity to review that holding and its application. “The class to which the ruling of Stone v. Maher, supra, applies is clearly that of putative fathers who executed a written acknowledgment of paternity pursuant to General Statutes § 46b-172 and were never given an opportunity to litigate the issue of paternity.” (Emphasis added.) Perkins v. Perkins, 3 Conn. App. 322, 326, 487 A.2d 1117 (1985); Stone v. Maher, supra, 18. Stone v. Maher is inapposite to a situation “where the [putative father], who was represented by counsel, appeared and participated in a judicial proceeding in which his status as father of the minor child was raised and adjudicated. . . . See Vogel v. Vogel, 178 Conn. 358, 363, 422 A.2d 271 (1979).” Perkins v. Perkins, supra. Nor does Stone v. Maher apply under circumstances in which the putative father could “have litigated the question of paternity, but he chose not to.” Perkins v. Perkins, supra. Under circumstances in which a putative father was represented by counsel and elected not to contest the issue of paternity, we will assume that he, unlike the plaintiff in Stone v. Maher, was aware of the consequences of his decision. Perkins v. Perkins, supra.

In response to the decision in Stone v. Maher, the General Assembly amended § 46b-172 (b) to provide a procedure by which a putative father could obtain a hearing on the issue of paternity after signing an acknowledgment form by filing a. petition for a hearing within three years of the judgment. General Statutes (Rev. to 1982) § 46b-172 (b). Implicit in a petition for a hearing on the issue of paternity under § 46b-172 (b) is that the defendant never had the opportunity to have his day in court on that issue in the first place. See Perkins v. Perkins, supra, 326 n.6; State v. Carter, 3 Conn. App. 235, 486 A.2d 1138 (1985).

In view of the established law in this area, we conclude that there is no “absolute right to be reheard” on the issue of paternity as the petitioner maintains. It is equally clear that the petitioner in this case does not fall within the class of persons that the court in Stone v. Maher, sought to protect. The record in the present case reveals that in August, 1984, the trial court approved a stipulated judgment, signed by the parties’ attorneys, in which the plaintiff admitted paternity and agreed to certain support arrangements. Although the petitioner also signed an acknowledgment form subsequent to the entry of judgment, and that form was filed with the court, that acknowledgment was in addition to the stipulated judgment. The petitioner had the opportunity to litigate the issue of paternity, but chose instead, to stipulate to judgment, which was approved by the trial court. Throughout the entire proceeding the petitioner was represented by present counsel. Under these circumstances, we may presume that the petitioner was aware of the consequences of his decision. Perkins v. Perkins, supra, 326.

Having rejected the petitioner’s claim that he has an absolute right to be reheard on the issue of paternity, and having determined that the petitioner does not fall within the class of persons protected by the holding of Stone v. Maher, supra, we conclude that the trial court did not err in dismissing his petition for a new trial. This case does not present a situation in which a litigant has been deprived of a fair opportunity to have his case heard on appeal so as to constitute “reasonable cause” pursuant to General Statutes § 52-270. The petitioner in this case, aided by his present attorney, chose to waive his right to have his case heard on the merits by stipulating to judgment. That judgment was approved by the trial court. If he was unhappy with this determination, the petitioner’s remedy was to appeal the judgment or move to open it within four months. Accordingly, the petitioner having failed to establish “reasonable cause” or any other grounds entitling him to a new trial pursuant to § 52-270, we conclude that the trial court’s action dismissing the petition was well within its discretionary authority.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-270 provides in pertinent part: “causes foe which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rale for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       The stipulation entered into by the parties provided:
      “The plaintiff, Lisa A. Searles, and the Defendant, James Bleidner, stipulate as follows:
      “1. The Defendant acknowledges paternity of Ryan James Searles born to the plaintiff on August 26,1983 and will sign any request for such documentation by the State of Connecticut or any municipality thereof, including but limited to the requirements of Connecticut General Statutes Section 46b-172.
      “2. The Defendant agrees to pay to the plaintiff the lump sum of Five Hundred Fifty Dollars ($550.00), reflecting the plaintiff’s claim for initial costs for the child’s care.
      “3. The defendant agrees to pay to the plaintiff the sum of Fifty Dollars ($50.00) per week as support for the minor child.
      “4. The plaintiff at the present time carries major medical insurance and the minor child is a beneficiary thereunder. Any medical and dental bills not covered by the plaintiff’s insurance carrier shall be divided equally between the plaintiff and the defendant. The defendant shall have the right in non-emergency medical situations to obtain another medical opinion at his own expense. The parties agree to discuss that course of treatment. The defendant shall not unreasonably withhold consent of such treatment.”

       “[General Statutes] Sec. 46b-172. (Formerly Sec. 52-442a). acknowledgment OF PATERNITY AND AGREEMENT TO SUPPORT; JUDGMENT, (a) In lieu of or in conclusion of proceedings under section 46b-160, the written acknowledgment of paternity executed by the putative father of the child when accompanied by a written affirmation of paternity executed and sworn to by the mother of the child and filed with the superior court, for the judicial district in which the mother of the child or the putative father resides shall have the same force and effect as a judgment of that court; and an agreement to support the child by payment of a weekly sum until the child attains the age of eighteen years, together with provisions for reimbursement for lying-in expense, accrued maintenance and reasonable expense of prosecution of the petition, when filed with, and approved by a judge of said court, or in IV-D support cases, a family support magistrate at any time, shall have the same force and effect, retroactively or prospectively in accordance with the terms of said agreement, as an order of support entered by that court, and shall be enforceable and subject to modification in the same manner as is provided by law for orders of the court in such cases. Payments under such agreement shall be made through the family relations office of the superior court. Such written affirmations, acknowledgments and agreements to support shall be sworn to, and shall be binding on the person executing the same whether he is an adult or a minor. Such mother shall not be excused from making such affirmation on the ground that it may tend to disgrace or incriminate her; nor shall she thereafter be prosecuted for any criminal act involved in the conception of the child as to whose paternity she makes affirmation.
      “(b) At any time after the filing with the court of any acknowledgment of paternity, upon the application of any interested party, the court or any judge thereof or any family support magistrate in IV-D support cases shall cause a summons, signed by him or by the clerk or assistant clerk or assistant clerk of the family support magistrate division in IV-D support cases, of said court, to be issued, requiring the putative father to appear in court at a time and place named therein, to show cause, if any he has, why the court or the family support magistrate assigned to the judicial district in IV-D support cases should not enter judgment for support of the child by payment of a weekly sum until the child attains the age of eighteen years, together with provision for reimbursement for lying-in expense, accrued maintenance and reasonable expense of the action under this subsection on the acknowledgment of paternity previously filed with said court. The prior judgment as to paternity shall be res judicata as to that issue and shall not be reconsidered by the court, unless the person seeking review of the acknowledgment petitions the superior court for the judicial district having venue for a hearing on the issue of paternity within three years of such judgment or within three years of October 1, 1982, whichever is later. All such payments shall be made through the family relations office of the superior court.” (Emphasis added.)

       “[General Statutes] Sec. 46b-164. (Formerly Sec. 52-438). either party may demand trial by jury OF six. In any prosecution under the provisions of this chapter, the trial of the question of facts as to the guilt or innocence of the defendant shall, at the desire of either party, be by a jury of six.”

       “[General Statutes] Sec. 46b-170. (Formerly Sec. 52-439a). withdrawal OR settlement. No such petition shall be withdrawn except upon approval of a judge assigned to the court in which the petition was brought. Any agreement of settlement, before or after a petition has been brought, other than an agreement made under the provisions of section 46b-372, between the mother and putative father shall take effect only upon approval of the terms thereof by a judge of the superior court assigned to the [geographical area] in which the mother or the putative father resides and, in the case of children supported by the state or the town, on the approval of the commissioner of human resources, the commissioner of income maintenance or the attorney general. When so approved, such agreements shall be binding upon all persons executing them, whether such person is a minor or an adult.”

       The General Assembly’s initial response to Stone v. Maher, 527 F. Sup. 10 (D. 1980), was to permit a putative father to seek review of the issue of paternity by petitioning the trial court for a new trial pursuant to General Statutes § 52-270. General Statutes (Rev. to 1981) § 46b-172 (b), as amended by Public Acts 1981, No. 81-274. The rationale for the change in procedure from new trial to a petition for a hearing was to provide a less cumbersome and more expeditious means for a putative father to seek a hearing. State v. Carter, 3 Conn. App. 235, 238, 486 A.2d 1138 (1985).


text:
    Daniel C. Anderson v. Joan V. Nedovich et al.
    (7346)
    O’Connell, Foti and Jacobson, Js.
    Argued May 16 —
    decision released June 22, 1989

      Paul D. Williams, with whom, on the brief, was Susan J. Barnes, for the appellant (named defendant).

      Thomas A. Cloutier, with whom was Marshall S. Feingold, for the appellee (plaintiff).
   Foti, J.

The named defendant, Joan V. Nedovich, appeals from the judgment denying her motion to dissolve or reduce an ex parte prejudgment attachment pursuant to General Statutes § 52-278e. The sole issue on appeal is whether the trial court erred in finding that probable cause existed to support the validity of the plaintiff’s claim. We find no error.

The plaintiff commenced this negligence action against Steven Riter and Joan Nedovich alleging that on March 11,1988, due to Riter’s negligent operation of Nedovich’s automobile, Riter caused the car to go out of control. He also alleged that the defendant Nedovich was the registered owner of the vehicle and that Riter was operating the car with her consent and within the scope of her “authorization.” As a result of this accident, the plaintiff sustained severe injuries.

Upon commencing this suit, the plaintiff applied for and was granted an ex parte prejudgment attachment on real property of the defendant Nedovich pursuant to General Statutes § 52-278e. The defendant Nedovich moved to dissolve the attachment. After a full hearing, at which the parties stipulated that the sole issue before the court was whether Riter was acting as Nedovich’s agent, the trial court denied her motion.

With respect to the relationship between Riter and Nedovich, the trial eourt found the following facts. At the time of the accident, the defendant Nedovich and her husband, Paul Nedovich, owned two businesses, one in Connecticut and one in Vermont. Riter was employed by the Nedovichs in their Connecticut business. Riter also shared an apartment with the Nedovich’s daughter. While Riter’s car was being repaired, Riter was permitted to use the Nedovich’s Ford pickup truck which was owned by the family business. Just prior to the accident, Paul Nedovich informed his daughter that he and the defendant Nedovich needed the pickup truck to move furniture and directed her to give Riter the car that she usually drove, a 1982 Plymouth Turismo, so that Riter would have alternative transportation to work over the weekend. This car was owned by and registered to the defendant Nedovich. It was while the defendant Riter was operating this replacement vehicle that the accident occurred.

The trial court determined that the statutory presumption of agency pursuant to General Statutes § 52-183, was applicable and concluded that the plaintiff had “met his burden of demonstrating probable cause to sustain the validity of his claim at this stage of the proceedings.”

In determining whether probable cause exists to maintain a prejudgment attachment, the trial court “ ‘need only weigh the evidence presented and “determine probable success by weighing probabilities.” Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984).’ ” Green v. Holy Trinity Church of God in Christ, 16 Conn. App. 700, 703, 549 A.2d 281 (1988). “ ‘ “The legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant [a person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” [Emphasis in original.] Wall v. Toomey, 52 Conn. 35, 36 (1884). Probable cause is a flexible common sense standard. It does not demand that a belief be correct or more likely true than false. Texas v. Brown, 450 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).’ Three S. Development Co. v. Santore, [supra, 175].” L. Suzio Concrete Co. v. Salafia, 3 Conn. App. 404, 407, 488 A.2d 1280 (1985). In addition, the trier is entitled to draw reasonable inferences based on the facts proven. Green v. Holy Trinity Church of God in Christ, supra.

“This court’s role in reviewing the trial court’s probable cause determination is limited. ‘In its determination of probable cause, “the trial court is vested with broad discretion which is not to be overruled in the absence of clear error.” . . .’ Solomon v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985). Our role as a reviewing court is limited to determining whether the trial court’s conclusion was reasonable, and we may not duplicate the trial court’s weighing process. . . . [W]e need only decide whether the trial court’s conclusions were reasonable under the ‘clear error’ standard.” (Citations omitted.) Green v. Holy Trinity Church of God in Christ, supra, 703-704. In reviewing the trial court’s action, we may presume that the trial court acted properly and in rendering its decision, considered all the evidence. Solomon v. Aberman, 196 Conn. 359, 376, 493 A.2d 193 (1985).

Prior to the hearing, the parties stipulated that the only issue to be determined by the court was whether Riter was acting as Nedovich’s agent at the time of the accident, and agreed that for the purpose of the probable cause hearing, the issues of the amount of damages, permissive use and who was operating the car, were not being contested. In rendering its decision that there was probable cause to support the plaintiff’s claim of agency, the court applied the statutory presumption of agency pursuant to General Statutes § 52-183. This section creates a presumption that the operator of a motor vehicle is the owner’s agent and places the burden of rebutting the presumption on the defendant. To take advantage of this presumption, the plaintiff must demonstrate that the defendant is the owner of the vehicle. Scalora v. Shaughnessy, 151 Conn. 252, 254, 196 A.2d 763 (1963).

As a general matter, “[a] presumption in favor of a party, that a particular fact is true, shifts the burden of persuasion to the proponent of the invalidity of that fact, and that burden is met when, by the particular quantum of proof, the validity of the fact has been rebutted. Holland v. Holland, 188 Conn. 354, 357-58, 449 A.2d 1010 (1982) . . . .” Anderson v. Litchfield, 4 Conn. App. 24, 28, 492 A.2d 210 (1985). The contradicting evidence required to rebut a presumption must be both sufficient and persuasive. Katz v. West Hartford, 191 Conn. 594, 603, 469 A.2d 410 (1983). With respect to the agency presumption established by General Statutes § 52-183, because the “existence and scope of permission is a matter peculiarly within the knowledge of the defendant,” the defendant’s “simple assertion that no consent [to operate the motor vehicle] was ever given,” is not enough to overcome the presumption. Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973). “[T]he statute goes further than merely establishing a presumption in that it definitely places a burden of rebutting it on the defendant. Thus, the presumption does not necessarily vanish on the introduction of any evidence to the contrary. Rather, ‘[t]he presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor.’ [Koops v. Gregg, 130 Conn. 185, 188, 32 A.2d 653 (1943)].” Id., 282.

At the hearing, the plaintiff established that the car was registered to the defendant Nedovich, that Riter was the operator of the vehicle at the time of the accident and that Riter was an employee of the Nedovichs’ company. Having established these facts, the statutory presumption of agency was applicable and it was then the defendant’s burden to rebut the presumption. The defendant Nedovich did not present any independent evidence but cross-examined those witnesses presented by the plaintiff. Riter testified that there were no restrictions placed on his use of the pickup truck or the replacement vehicle, and that during the loan period he used the vehicle for all purposes both business related and personal. When the Nedovichs needed the truck they gave him a replacement car. Paul Nedovich testified that Riter’s use of the car was limited to going back and forth to work and that he loaned him the Plymouth Turismo solely for the purpose of going to and from work on Sunday. He further testified that he did not tell him to go to Massachusetts. The defendant Nedovich testified that she had no knowledge of Riter’s plans to travel to Massachusetts.

As the trier of fact, the trial court could determine what weight, if any, to give to the testimony presented at the hearing. On this record, the trier could have determined that the evidence established to rebut the presumption was not sufficient and persuasive to rebut the presumption; see Katz v. West Hartford, supra; and could have rejected outright the testimony of Paul and Joan Nedovich. See Bogart v. Tucker, supra.

Because the trial court could have chosen not to give significant weight to the evidence produced by the defendant to rebut that presumption, the presumption applied and was sufficient to establish probable cause to sustain the validity of the plaintiffs claim of agency. Whether the plaintiff, in a trial on the merits, will prevail on this issue of agency is not now before us. Accordingly, on this record, we conclude that the trial court’s decision not to dissolve the prejudgment attachment on the defendant’s property was not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The other defendant in the underlying negligence action is Steven Riter, who was the operator of the defendant Nedovich’s vehicle at the time of the accident. He is not a party to the present appeal.

       “[General Statutes] Sec. 52-183. presumption of agency in motor VEHICLE operation. In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption.”

       In view of the applicability of the statutory presumption, it was not necessary, as the defendant Nedovich maintains, for the plaintiff to establish the common law agency elements.