author: Landau, J.

text:
    State of Connecticut v. David A. Palangio
    (8610)
    O’Connell, Norcott and Landau, Js.
    Argued November 6, 1990
    decision released March 26, 1991

      Thomas K. McDonough, special public defender, for the appellant (defendant).

      Paul J. Ferencek, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and CorinneL. Klatb, assistant state’s attorney, for the appellee (state).
   Landau, J.

After consolidation of two separate proceedings, the state, in a substitute information, charged the defendant with three counts of risk of injury to, or impairing the morals of, children in violation of General Statutes § 53-21. The defendant entered pleas of not guilty and the jury found him guilty of all three counts. On appeal, the defendant claims that General Statutes § 53-21 is unconstitutionally vague and over-broad as applied to him and that the trial court improperly denied his motion to suppress. We affirm the judgment of the trial court.

The following facts are pertinent to this appeal. On several occasions between September and December of 1985, the three victims, friends of the defendant’s son, were guests of the defendant at his apartment. During these visits, the defendant took numerous photographs of the victims in provocative poses in various stages of undress and in differing types of clothing and undergarments. The defendant told the victims that these photographs would comprise their modeling portfolios. He supplied them with the clothing in the photographs and some of the photographs were taken in his bedroom and on his bed. The defendant also had the victims take photographs of him nude or seminude.

In December, 1985, the police searched the defendant’s apartment pursuant to a search warrant for stolen property in connection with a burglary investigation involving the defendant’s son. Among the items to be seized were cameras and film. The police seized the defendant’s undeveloped film containing the victims’ photographs. The defendant subsequently asked the police for the return of his film. The police developed the film in order to ensure that the film did not belong to one of the burglary victims, gave the developed photographs to the defendant, and retained the negatives because they suspected that the females in the photographs were children and that a crime had been committed.

In September, 1987, the police received a complaint from the department of children and youth services (DCYS) alleging that the defendant was engaging in child abuse. Pursuant to that allegation, the police executed a search warrant for items including pornographic photographs of male and female adults and children, cameras and flash equipment and developed and undeveloped film. As a result of the DCYS complaint, the police identified one of the victims. Through that girl’s father, the police learned the identities of the other two victims. The defendant was charged with one count of risk of injury to a child on November 26, 1987, and with two additional counts on December 18, 1987.

I

The defendant challenges the constitutionality of General Statutes § 53-21 by asserting that the statute, as applied to him, is vague and overbroad.

“In order to surmount a vagueness challenge, ‘a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.’ McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1948). . . . Furthermore, a facially vague law may nonetheless comport with due process if prior judicial decisions have provided the necessary fair warning and ascertainable enforcement standards. Bishop v. Kelly, 206 Conn. 608, 613, 539 A.2d 108 (1988).” State v. Schriver, 207 Conn. 456, 460-61, 542 A.2d 686 (1988). A penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning. State v. Pickering, 180 Conn. 54, 61, 428 A.2d 322 (1980). We must, therefore, review prior case law to determine whether the defendant had fair warning that taking photographs of partially clothed minors violates § 53-21.

General Statutes § 53-21 proscribes two general types of behavior: “(1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his moral or physical well-being.” State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963). In the first of these categories, it is not necessary, nor have the courts required, that a defendant touch any part of the victim’s body to violate § 53-21; “the creation of a prohibited situation is sufficient.” State v. Perruccio, 192 Conn. 154, 159-60, 471 A.2d 632, appeal dismissed, 469 U.S. 801, 105 S. Ct. 55, 83 L. Ed. 2d 6 (1984); see, e.g., State v. Tyler-Barcomb, 197 Conn. 666, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986) (the defendant knew that her daughter was being sexually abused); State v. Williams, 18 Conn. App. 477, 558 A.2d 1026, cert. denied, 212 Conn. 809, 564 A.2d 1071 (1989) (the defendant fired a gun into a house in which there were children). In addition, prior judicial decisions have specifically concluded that the photographing of a nude or seminude minor is a violation of § 53-21. State v. Hauck, 172 Conn. 140, 374 A.2d 150 (1976) (the defendant took nude and seminude photographs of the victim after promising to give her a grade of “C” in her science class); State v. Manluccia, 2 Conn. App. 333, 478 A.2d 1035, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984) (the defendant took photographs of the nude victim after telling him that he was going to sell them). These decisions, therefore, have provided the defendant with fair notice that he need not physically touch a child to violate § 53-21 and that the photographing of nude and seminude children is prohibited. The statute as applied to the defendant is not void for vagueness.

The defendant also claims that § 53-21 is overbroad and that his conduct constitutes protected free expression under the first amendment to the United States constitution. “The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment.” (Citations omitted.) State v. Proto, 203 Conn. 682, 707, 526 A.2d 1297 (1987). When conduct, and not merely speech is involved, “the over-breadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); see also Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986).

It is indisputable that protecting the physical and psychological well-being of children is a compelling, as well as legitimate, state interest. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982); State v. Jarzbek, 204 Conn. 683, 701, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). The first part of § 53-21 focuses on a defendant’s deliberate indifference to, acquiescence in, or the creation of, situations inimical to the child’s moral or physical welfare. Thus, it is the defendant’s creation of the situation in which children were posed in various stages of undress and in various types of clothing that is prohibited. Although the defendant couches his claim in first amendment terminology, the fact that he also took photographs of these children is incidental to the situation he created. Even if the defendant had properly raised a first amendment claim, “[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.” Giboney v. Empire Storage Co., 336 U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949).

II

The defendant also challenges the trial court’s denial of his motion to suppress the photographs. The defendant asserts that the photographs were seized on the basis of knowledge derived from the 1985 seizure. He further asserts that their seizure was outside the scope of the 1985 search warrant and therefore illegal under the 1987 search warrant. On appeal, the defendant specifically claims that the trial court improperly found that the officers executed both warrants in good faith. Although the defendant properly notes that the Connecticut constitution does not authorize a good faith exception to the exclusionary rule; State v. Morrissey, 216 Conn. 185, 187-88, 577 A.2d 1060 (1990); a review of the trial court’s decision reveals that the officers’ good faith reliance was but one basis for the decision.

In rendering the decision on the motion to suppress, the court stated that “[ajfter an evidentiary hearing and upon review, we defer to the judgments of the two issuing magistrates and are not persuaded by the claim of infirmity directed by the defendant to either warrant. Additionally, we find in and conclude in each instance that the officers executing these warrants, acted in good faith, and their reliance upon the warrants was objectively reasonable.” When reviewing whether probable cause to search exists, the reviewing court considers the information that was actually before the issuing judge at the time he or she signed the warrant. Aguilar v. Texas, 378 U.S. 108, 109 n.1, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); State v. Shifflett, 199 Conn. 718, 746-47, 508 A.2d 748 (1986). The trial court, therefore, properly based its decision on the evidence presented at the suppression hearing, including the fact that the 1987 search warrant was the result of a DCYS complaint.

Even if the 1985 seizure of the photographs were found to have been illegal, the inclusion of information derived from the 1985 search in the 1987 search warrant application does not necessarily render the resulting warrant invalid. State v. Arpin, 188 Conn. 183, 190, 448 A.2d 1334 (1982). Under the independent source rule, evidence seized pursuant to an affidavit and warrant containing tainted allegations is admissible, if, after excising the illegal information, the affidavit sufficiently supports a finding of probable cause. Id., 190-93. “ ‘In reviewing an affidavit for a search and seizure warrant we must ascertain whether the facts in the affidavit are sufficient to justify an independent determination by a neutral and detached issuing judge that the necessary probable cause exists for the issuance of the warrant.’ ...” (Citations omitted.) Id., 193. Thus, because the DCYS complaint constituted an independent source sufficient to establish probable cause, we conclude that probable cause did exist and that the court’s denial of the motion to suppress was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, CHILDREN. 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 life or limb is endangered, or 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.”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    Patricia K. Kane v. James D. Parry
    (8034)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 28, 1990
    decision released March 26, 1991

      Philip French, with whom, on the brief, was Patricia Kane, for the appellant (plaintiff).

      Sperry A. DeCew, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the judgment of the trial court in an action for the dissolution of a marriage. She challenges (1) the trial court’s decision to proceed with the trial despite the defendant’s failure to produce all of the discovery previously ordered by the court, and the trial court’s failure to take remedial measures including sanctions for the defendant’s noncompliance with discovery orders, (2) various aspects of the trial court’s financial awards, and (3) the trial court’s order compelling her to file joint tax returns with the defendant.

The trial court found the following facts. The plaintiff and the defendant were married on June 12,1964. This dissolution action was filed in 1987. During the marriage, the parties enjoyed economic prosperity. The defendant earned salaries of up to $300,000 per year as a copywriter, and the plaintiff embarked on a promising legal career. The plaintiff also managed the family finances. She had purchased several properties that the couple held as investments. Despite this apparent success, there were a number of problems that profoundly affected the couple’s fortunes. At the time of trial, the parties had filed only one federal income tax return. In 1984, the plaintiff decided to give up her law practice to devote her time to her younger children. In 1985, the defendant started his own business. By the end of 1987, that business had collapsed with debts totaling $600,000.

In 1986, the couple separated contemplating dissolution, and the plaintiff purchased a house near the family home at the defendant’s request, so that the defendant could live near the two minor children. The plaintiff filed her complaint on April 8,1987, and, after a failed attempt at settlement, the cooperation between the parties deteriorated. The defendant decided to reduce the monthly support payments he had been making to the plaintiff. The plaintiff then sought and was granted temporary alimony and child support. From this point, the financial situation of the parties worsened. The primary reasons for this decline were the change in the defendant’s job situation, the expenses of maintaining two households, and an attempt by the parties to maintain their former lifestyle. The parties also engaged in almost two years of pretrial skirmishing. At the time of dissolution, the parties’ assets consisted almost exclusively of five parcels of real property and each of these was heavily encumbered with debt. The parties also had unsecured debts totalling $200,000.

Upon a finding that the marriage had irretrievably broken down, the trial court dissolved the marriage, awarded custody of the minor children to the plaintiff, divided the assets and liabilities and awarded child support. The dissolution and child custody are not in issue in this appeal.

I

The plaintiff’s first claim is that the trial court did not properly address her dissatisfaction with the defendant’s compliance with pretrial discovery orders. She alleges on appeal that the trial court improperly forced her to proceed with the trial without full financial disclosure and failed to take certain remedial measures. These issues are raised on appeal, but were not properly preserved at trial.

An exception to a ruling must be taken to make it a ground for appeal. Delfino v. Warners Motor Express, 142 Conn. 301, 308, 114 A.2d 205 (1955). “The requirement that the claim be raised ‘distinctly’ means that it must be ‘so stated as to bring to the attention of the court the precise matter on which its decision is being asked.’ (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).” State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986); State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986); see In re Christopher G., 20 Conn. App. 101, 107, 564 A.2d 619 (1989), cert. denied, 213 Conn. 814, 569 A.2d 549 (1990).

The plaintiff cites various points in the transcript where her counsel represented to the trial court that the defendant’s compliance with discovery orders was incomplete, and at each of these the court either acted to cure the problem, or assured the plaintiff that the court would act if it became necessary. The plaintiff never communicated a claim to the trial court that its orders, aimed at curing the problem of inadequate compliance, were insufficient, improper or that she excepted to them. Because the plaintiff led the trial court to believe that the problems regarding discovery were cured to her satisfaction, she cannot raise them now on appeal.

“The purpose of requiring an attorney to except is not merely formal. An exception serves the important function of alerting the trial court to error while there is time to correct it without ordering a retrial.” State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984); Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 568-69, 525 A.2d 954 (1987); State v. Anderson, 6 Conn. App. 15, 18, 502 A.2d 446 (1986).

Because we do not review unpreserved claims unless there is plain error; Practice Book § 4185; or an issue of constitutional magnitude; State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); we affirm the trial court’s decision ordering the matter to proceed to trial.

Further, even if we assume arguendo that the plaintiff had properly preserved the issue of failure to disclose in a timely manner, she never sought a continuance. A continuance is ordinarily the proper method for dealing with a claim that there has been a failure to disclose in a timely manner. Rullo v. General Motors Corporation, 208 Conn. 74, 77-79, 543 A.2d 279 (1988). A continuance serves to minimize the possibly prejudicial effect of inadequate compliance or nondisclosure and, absent a request for a continuance by the party claiming to have been prejudiced by the failure, appellate review is not warranted. Kevin Roche-John Dinkeloo & Associates v. New Haven, 205 Conn. 741, 748, 535 A.2d 1287 (1988); Giardini v. Supermarkets General, 24 Conn. App. 9, 13, 585 A.2d 110 (1991).

The plaintiff further argues that the court should have assessed sanctions, in the form of attorney’s fees, against the defendant for wilful noncompliance with discovery orders. We do not address the merits of this claim because it also is unpreserved.

The record reveals that a committee was appointed on February 6, 1989, by the court, Landau, J., to review and determine discovery compliance. After scheduling a meeting of all parties, the special master filed his report and findings, recommending that certain sanctions be imposed upon the defendant because of his lack of compliance and his dilatory practices. The defendant filed an objection to the committee report, and the court, Hauser, J., referred any sanctions recommended by the committee to the trial judge.

Neither the plaintiff’s brief nor her reply brief contains a single transcript reference that shows that she requested that sanctions be imposed, that the court act on the committee report and recommendations, or that a hearing be scheduled for purposes of determining whether sanctions should be imposed. The trial commenced on April 4,1989, and proceeded for four additional days, concluding on April 11, 1988. We have reviewed the record and find no such request before the trial judge, prior to, during or after the trial. While the trial judge, at the time of trial, may have determined that adequate disclosure had taken place at that time, he was never requested to act on the committee report that dealt with findings of pretrial noncompliance.

II

The plaintiff makes a series of attacks on the financial orders of the trial court. The financial orders, other than the limited alimony, were within the discretion of the trial court and need not be separately discussed.

The plaintiff argues that the trial court’s award, which is nonmodifiable as to term and amounts to $1500 per month for sixty months, is inconsistent with the legislative scheme of General Statutes § 46b-82. We disagree.

General Statutes § 46b-82 sets out a number of criteria for the court to consider in exercising its discretion in awarding alimony. These include the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, and the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties. General Statutes § 46b-82. The court is to consider these factors in making an award of alimony, but it need not give each factor equal weight. Valante v. Valante, 180 Conn. 528, 530-31,429 A.2d 964 (1980). “As long as the trial court considers all of these statutory criteria, it may exercise broad discretion in awarding alimony. Carpenter v. Carpenter, 188 Conn. 736, 740-41, 453 A.2d 1151 (1982) (Citation omitted.) Roach v. Roach, 20 Conn. App. 500, 505, 568 A.2d 1037 (1990).

“Our standard of review in domestic relations cases is a very narrow one. We will not reverse a trial court’s rulings with regard to . . . financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.” O’Neill v. O’Neill, 13 Conn. App. 300, 302, 536 A.2d 978, cert. denied, 207 Conn. 806, 540 A.2d 374 (1988). “While the trial court need not make an express finding on each of the mandatory statutory criteria; Leo v. Leo, 197 Conn. 1, 5, 495 A.2d 704 (1985); Louney v. Louney, 13 Conn. App. 270, 273, 535 A.2d 1318 (1988); the record must contain some indication as to the reasoning of the court in making an alimony award of limited duration. Makarian v. Makarian, 2 Conn. App. 14, 16, 475 A.2d 337 (1984).” Roach v. Roach, supra.

The trial court expressly considered the statutory factors and discussed the employability, the vocational skills, and the amount and sources of income in its memorandum of decision. The record shows that the plaintiff has successfully reopened her law office. The defendant, on the other hand, has suffered professional setbacks, and is no longer earning as much as he had in previous years. The court estimated that the plaintiff’s income for 1989 would be $30,000 to $100,000 and that the defendant’s would be between $100,000 and $150,000. Although the future earnings of the parties are difficult to predict, the earning capacity of each is one method for predicting future earnings. We cannot say that the court’s predictions were inaccurate. The plaintiff should continue to enjoy success as an attorney in the upcoming years. In addition, the plaintiff has shown herself to be a competent investor and manager of money. Moreover, in her amended claims for relief she asked for only seven years of alimony.

On the basis of this record, we cannot find that the trial court abused its discretion. We affirm the trial court’s decision regarding time limited alimony, as well as the balance of the court’s financial orders.

Ill

Finally, the plaintiff alleges that the trial court’s order to file joint federal personal income tax returns is improper because the trial court lacks the authority to deprive her of the federal right to file a separate return. We agree with the plaintiff as to the returns filed for 1984, 1985, 1987 and 1988, but we affirm the order as to the balance of the parties’ outstanding returns.

A trial court has the authority to order a party to file a joint federal personal income tax return if there was a prior agreement between the parties to do so. See Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983). In this case, the record shows an agreement by the parties to file joint federal income tax returns for the years 1978 to 1983, inclusive. Therefore, the trial court’s order to file joint returns for these years is proper. The record, however, does not show an agreement to file joint returns for 1984,1985,1987 and 1988. In the absence of such an agreement, the trial court cannot order the plaintiff to file joint federal personal income tax returns.

The judgment is reversed as to the order requiring the plaintiff to file joint federal income tax returns for the years after 1983, and the case is remanded with direction to render judgment as on file in all other respects.

In this opinion the other judges concurred.

       The sole return was filed for 1986. Since the trial, the parties have filed some federal income tax returns. Despite direct questioning at oral argument by this court, the attorneys were unable to state exactly what was filed for each year, but it is clear that the defendant has filed several joint returns that have not been signed by the plaintiff, and that the plaintiff has filed several separate returns as well.

       There were four children that were issue of this marriage: Tanya, Michael, David and Stephen. Tanya is an adult, and Michael is deceased. Only David and Stephen were subject to the custody award in this proceeding.

       The plaintiff claims that the trial court should have (1) limited the defendant’s testimony to his discovery compliance, (2) drawn adverse inferences from the noneompliance, and (3) assessed sanctions to cover the cost of the plaintiff’s pretrial discovery motions.
      Although the court did not address this issue in its memorandum of decision, the court stated in its modification of judgment that “[a]t the trial, claims were made that all assets were not disclosed, and that some known assets were not on the financial affidavits. The memorandum of decision should have covered this subject. The court finds that the plaintiff had adequate time for discovery, adequate disclosure from the defendant and that the defendant’s assets were accounted for and he did not conceal income.”

       In addition to her challenge to the granting of time limited alimony, the plaintiff alleges that the court improperly (1) evaluated the defendant’s employment status, (2) based its award on gross, rather than net income, (3) based financial orders on the defendant’s projected earnings rather than his projected earning capacity, (4) failed to consider the defendant’s “negative contribution” to the value of their estates, (5) failed to apply the child support guidelines and (6) imposed indeterminant tax liability on the plaintiff. We have reviewed these claims and find that they are without merit.

       General Statutes § 46b-82 provides: “alimony. At the time of entering the decree, the superior court may order either of the parties to pay alimony to the other, in addition to or in lieu of an award pursuant to section 46b-81. The order may direct that security be given therefor on such terms as the court may deem desirable, including an order to either party to contract with a third party for periodic payments or payments contingent on a life to the other party. In determining whether alimony shall be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81, and, in the case of a parent to whom the custody of minor children has been awarded, the desirability of such parent’s securing employment.”

       The following took place at trial.
      “[Counsel for the defendant]: 1978, 1979, 1980, 1981, 1982 and maybe 1983, for the first group. Those returns you have seen. Are you willing to make a commitment to file those as prepared? I’m not asking that you be responsible for any interests or penalties.
      “[The plaintiff]: I have been in the past willing to rely on those returns.
      “Q. And are you willing to tell the court that you will continue to be—as long as you’re not responsible for any interest or penalties?
      “A. Would I be indemnified?
      “Q. Yes. . . .
      “Q. I don’t know what indemnified means. The judge will make some determination of who’s paying it and out of what, if anything, and so on. Assuming the judge takes care of that, as part of his decision, then you are willing to sign?

        “A. Yes.
      “[Counsel for the defendant]: Maybe I should have done that 20 minutes ago. ... If the judge, in his memorandum of decision, attempts to take care of the problem of any interest, penalties, and taxes due on these, you’re willing to go with what the judge decides with regards to that, and sign a joint tax return?
      “A. Yes.”


text:
    State of Connecticut v. Menaces Torres
    (8707)
    O’Connell, Foti and Lavery, Js.

      Argued December 13, 1990
    decision released March 26, 1991

      Suzanne Zitser, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Kevin McMahon, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2) and (4), and assault in the first degree in violation of General Statutes § 53a-59 (a) (l). The defendant claims that the trial court improperly (1) instructed the jury on an uncharged portion of the robbery statute, (2) failed to grant his motions for acquittal and for a new trial as to the count of robbery in the first degree because there was insufficient evidence to support his conviction, and (3) failed to strike the testimony of a witness. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 20, 1988, the victim, Orlando Vega, and Hector Gonzalez helped their friend, Manny Vega, move from West Hartford to Hartford. They finished moving at approximately 10 p.m., and went to a bar. They each had one drink before proceeding to the Friendship Cafe between 10:30 and 11 p.m. After having several drinks, Manny Vega and Orlando Vega left the Friendship Cafe to get a pizza, and Gonzalez remained at the bar to play pool. When Manny Vega and Orlando Vega returned to the Friendship Cafe to pick up Gonzalez, it was closing and they were not allowed to enter. They knocked on the window and eventually Gonzalez left the bar. Reunited, the three men started toward Orlando Vega’s truck when they encountered a group of people who began shouting obscenities at them. At that point, the defendant left the group and charged at Gonzalez, attempting to strike him. The defendant’s blow went astray, and Gonzalez knocked him to the ground. While the defendant was on the ground, he pulled out a gun, aimed it at Gonzalez, and squeezed the trigger several times. The .45 caliber automatic pistol did not discharge because it did not contain an ammunition clip. A woman who was standing nearby tossed a clip to the defendant, who loaded the gun. Although Gonzalez fled, the defendant began shooting at him; nevertheless, Gonzalez escaped without being hit.

After Gonzalez escaped, the defendant hit Orlando Vega across the jaw with the gun knocking him to the ground. Manny Vega attempted to help his friend, but was stopped by another member of the group who was holding a shotgun. The defendant then began kicking Orlando Vega in the face with metal tipped boots and went through his pockets. The defendant told the man holding the shotgun to keep Manny Vega there so that he could do the same to him, but the man with the shotgun told Manny Vega to run. As Manny Vega ran away, the defendant fired several shots at him.

Orlando Vega was taken from the scene of the attack to a hospital. His injuries seriously threatened his life, and he remained comatose for nearly one month. He suffered multiple lacerations, a fractured jaw, and a traumatic brain injury. He required a tracheostomy, stitches for lacerations on his mouth and ears, and surgery on his jaw, which was also wired shut. His head injury has left lasting residual effects. Orlando Vega was forced to undergo extensive rehabilitation that included relearning how to walk and how to write. Despite this rehabilitation, he still requires the use of a cane, and continues to suffer from impaired vision, slurred speech and memory loss.

The defendant’s first claim is that the trial court improperly instructed the jury on an uncharged portion of the robbery statute. The following facts are relevant to this issue. The state, in response to the defendant’s motion, filed a bill of particulars that was incorporated into a substitute information. In the first count, the state charged the defendant with robbery-in the first degree under both subdivisions (a) (2) and (4) of General Statutes § 53a-134. The state alleged that “while armed with a deadly weapon (handgun) [the defendant] did take the property of Orlando Vega and discharged shots to accomplish the larceny” in violation of subdivision (a) (2), and that “while he was committing a larceny of the property of Orlando Vega [the defendant] displayed or threatened the use of what he represented by his words or conduct to be a pistol or revolver” in violation of subdivision (a) (4).

When the trial court instructed the jury on the first count, it addressed the paragraph charging the defendant under subdivision (a) (2) of the robbery statute first. The court explained the statutory elements of this subdivision and informed the jury that robbery requires a larceny with the use of physical force. In referring to the evidence of physical force, the court mentioned the evidence supporting the state’s allegations that the defendant struck Orlando Vega with the gun, and that he subsequently beat and kicked him. Additionally, the court instructed the jury that to convict the defendant under subdivision (a) (2), it must find not only a larceny with physical force, but also that the defendant was armed -with a deadly weapon, specifically, a gun from which a shot may be discharged. The court referred to evidence of the defendant’s alleged firing of the weapon, and his alleged attempts to discharge the gun before it was loaded.

The court then proceeded to instruct the jury on the second paragraph of the first count in which the defendant was charged under subdivision (a) (4) of § 53a-134. The defendant took no exceptions to these portions of the charge on the elements of robbery or to the court’s reference to the evidence supporting the charge.

During deliberations, the jurors sent three notes to the court regarding the first count of robbery. The first note asked for a review of the elements of the first count. The court complied and no exceptions were noted. The second note asked the court to restate the elements of the first count and to explain further the significance of the discharging of the weapon. The court reinstructed on the statutory elements of robbery in the first degree under both subdivisions (a) (2) and (4). The court also instructed the jury that the gun did not have to be fired at all and that the evidence of firing “only proves that it either fits into the [definition of] firearm or deadly weapon.” Again no exceptions were taken. The jury delivered a third note to the court that read: “First count, do the elements of the charge have to agree with the bill of particulars in the first count? In order to satisfy element two, deadly weapon, it does not have to [be] discharged to satisfy the element? However, the bill of particulars states that the defendant discharged shots to accomplish the larceny.”

In response to the first question, the court stated: “Only the essential elements of the crime charged need be proved by the state. Therefore, any allegations in the information [that are] not essential to prove the elements of the crime charged need not be proved. Only the essential elements need be proved, and any allegations, any information that is not essential to that does not have to be proved.”

The court answered the second question by repeating that the state did not have to prove that the gun was fired to satisfy the second element of the statute. The court again defined a deadly weapon as “any weapon, whether loaded or unloaded, from which a shot may be discharged.” The court also stated: “It’s obvious from the statutory definition that, even if he had an unloaded weapon from which a shot could be fired, it is a deadly weapon. The evidence as to the shooting of the gun only goes to the proof that a shot can be fired from the weapon.”

In response to the third point raised by the jury’s note, the court responded: “Larceny becomes a robbery when force or the threat of force is used. So what you have is a larceny becoming a robbery when there is the use of force or the threat to use force. That which makes a robbery, as alleged in the first count of part A, is the robbery, or the robber at the time of the robbery is armed with a deadly weapon. So what is alleged, robbery in the first degree, as alleged in part A of the first count, becomes a robbery such as alleged when the robber at the time of the robbery is armed with a deadly weapon.”

An exception was noted to this final supplemental instruction by the defendant, who claimed that the wording of the bill of particulars that was incorporated into the substitute information made specific reference to the fact that shots were discharged to accomplish this larceny and that the state had the burden of proving that the defendant committed the offense in substantially the manner described in the bill of particulars.

The defendant claims that the court’s instructions to the jury concerning the defendant’s kicking and beating the victim to support the essential element of physical force, and to the effect that the jury was not bound by the specifics of the bill of particulars with respect to the robbery charge, effectively enlarged the specific crime of robbery thereby allowing the jury to convict him on the basis of an uncharged portion of the statute. The defendant argues that “in light of the arguably less than perfect preservation” of the trial court record, we should review his claim under Evans and Golding because his claim of enlargement “implicating the fundamental constitutional right to be informed of the nature and cause of the accusation against him is adequately supported by the record” and because similar unpreserved claims under Evans have been reviewed. We do not agree.

The court instructed that if the jury accepted the evidence of the beating and the kicking of Orlando Vega as true, it could consider that evidence as the physical force element of robbery. These comments do not constitute an enlargement of the crime charged, or an instruction on an uncharged portion of the robbery statute.

The court instructed the jury on every essential element of the crime charged in an adequate manner to apprise the jury of those elements in order to guarantee the defendant a fair trial. Since the record does not show that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial, the defendant’s claim regarding the “kicking and beating” fails to meet the third condition under Golding, and is not entitled to review.

The defendant also claims that the supplemental instruction that was given in response to the jury’s third note improperly enlarged the crime with which he was charged under § 53a-134 (a) (2). Although this issue is related to the defendant’s first challenge to the jury instructions, it is a distinct issue and must be addressed separately. Unlike the first claim, this issue was properly preserved, and, therefore, no additional analysis is required for us to grant full appellate review.

The instruction challenged here by the defendant informed the jury that it only had to find that the statutory elements of the crime were proven to convict the defendant and that it was not limited to the specific allegations in the charging document. The defendant argues that because the substitute information and bill of particulars alleged that he discharged shots to accomplish the larceny of Orlando Vega’s property, the jury must find that shots were fired in order to find him guilty, and that the instruction was therefore improper.

The purpose of a bill of particulars is “ ‘ “to supply both the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense.” (Emphasis added.) 41 Am. Jur. 2d, Indictments and Informations, § 163.’ ” State v. Roque, 190 Conn. 143, 154, 460 A.2d 26 (1983), quoting State v. Coleman, 167 Conn. 260, 269, 355 A.2d 11 (1974). The test to be applied is whether the state’s pleadings informed the defendant of the charge against him with sufficient precisión to allow him to prepare a defense, avoid prejudicial surprise and plead his guilt or innocence in bar of any future prosecution for the same offense. State v. Ballas, 180 Conn. 662, 664, 433 A.2d 989 (1980); State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). The bill of particulars limits the state to “ ‘proving that the defendant has committed the offense in substantially the manner described.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976).” (Emphasis added.) State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983).

The essential elements of § 53a-134 (a) (2) as charged are that a person is guilty of robbery in the first degree when in the commission of the crime he is armed with a deadly weapon. The trial court properly instructed the jury that it was not required to find that the defendant “discharged shots” during the robbery to find him guilty, despite the allegations of the bill of particulars. Under this subdivision, the state did, however, have the burden of proving beyond a reasonable doubt that the firearm used was, in fact, a deadly weapon, capable of firing a shot. State v. Hawthorne, 175 Conn. 569, 572, 402 A.2d 759 (1978).

Further, the jury’s verdict of guilty under both subdivisions (a) (2) and (4) renders the defendant’s issue moot. Clearly, the substitute information that incorporated the bill of particulars refers to subdivision (a) (4) of General Statutes § 53a-134 in the second part of the first count specifying that the defendant while committing a larceny “displayed or threatened the use of what he represented by his words or conduct to be a pistol or revolver.” “[Wjhere an information alleges a crime to have been committed in more than one way, a guilty finding stands if the evidence would support a conviction based upon any one of the statutory alternatives.” State v. Eason, 192 Conn. 37, 42, 470 A.2d 688 (1984); State v. Cofone, 164 Conn. 162, 168, 319 A.2d 381 (1972); see Crain v. United States, 162 U.S. 625, 634, 16 S. Ct. 952, 40 L. Ed. 1097 (1895). “The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970); State v. Lode, 36 Conn. Sup. 603, 609, 421 A.2d 880 (1980). Because the state charged the two violations of § 53a-134 (a) in the conjunctive, the verdict must stand if the evidence is sufficient as to either of the acts charged.

The defendant’s next claim is that the trial court improperly denied his motions for judgment of acquittal that were made at the close of the state’s evidence and again after the verdict. He argues that there was insufficient evidence presented by the state to support his conviction of robbery in the first degree. Such a claim requires that we undertake a two part task. First, we must review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether the jury could reasonably have concluded, on the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985). “Each essential element of the crime charged must be established by proof beyond a reasonable doubt. . . .’’State v. Stankowski, 184 Conn. 121, 126, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). Jurors are not “expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.” Chicago, M. & St. P. Ry. Co. v. Moore, 166 F. 663, 666 (8th Cir. 1909), quoted in State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); Frankovitch v. Burton, 185 Conn. 14, 22, 440 A.2d 254 (1981).

The defendant specifically claims that the evidence was insufficient to prove that the defendant discharged shots to accomplish the larceny or that he displayed or threatened the use of what he represented by his words or conduct to be a pistol or other firearm during the robbery. The defendant also claims that the state failed to present any evidence that established the necessary connection between the threat or use of physical force and the commission of the larceny, and that the defendant possessed the requisite intent.

From the evidence offered by the state, taken in the light most favorable to sustaining the verdict, we cannot say as a matter of law that the jury as the trier of fact could not reasonably have concluded as it did. It could reasonably have concluded that the defendant, while armed with a weapon capable of firing a shot, committed a robbery, firing shots, taking the victim’s wallet, pistol-whipping him and kicking and beating him. There is more than sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, and, where such evidence exists, whether such an inference should be drawn is properly a question for the jury to decide. State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

There was a sufficient basis established by the cumulative evidence from which the jury could logically infer and on which it could properly rely to predicate its verdict of guilty to the charge of robbery in the first degree. Thus, the trial court properly denied the defendant’s motions for judgment of acquittal.

The defendant’s final claim is that the court improperly failed to strike the testimony of Manny Vega, a witness for the state, because an officer who interviewed Manny Vega destroyed his field notes.

The following facts are relevant to this issue. Officer Michael Dakin of the Hartford police department testified for the state that he and Detective Frank Craddock had interviewed witnesses to this incident including Manny Vega, and that he had subsequently destroyed the field notes that he had taken during these interviews. The defendant then moved for a mistrial or, in the alternative, that either Manny Vega’s testimony or Dakin’s testimony, or both, be stricken because of the destruction of the field notes. During the state’s voir dire, in the absence of the jury, Dakin testified that his field notes consisted of only the preliminary information that he needed to prepare the arrest warrant and were not a word for word recording of everything Manny Vega said. Dakin further testified that Craddock was responsible for taking Vega’s actual statement. The court denied all of the defendant’s motions regarding this issue, and found that none of Dakin’s notes were intended to be Manny Vega’s statement and that the notes were not destroyed in bad faith.

In the typed, signed and sworn statement that was taken by Craddock, Manny Vega stated that he had seen the defendant beat and rob Orlando Vega. This allegation was included in the arrest warrant affidavit, and Manny Vega, Dakin, and Craddock each testified at trial that he made this statement during the initial interview with Dakin.

The defendant disputes the court’s finding that Dakin’s notes were not a statement as defined by Practice Book § 749 subject to production pursuant to Practice Book § 752. The defendant, therefore, contends that the intentional destruction of the notes required the automatic sanction of striking Manny Vega’s testimony. We do not agree.

In making the determination of whether the field notes constituted a statement, “the trial court exercises broad discretion . . . and its findings will be disturbed only if they are clearly erroneous. (Citations omitted.)” State v. Black, 23 Conn. App. 241, 244, 579 A.2d 1107 (1990).

“ ‘[A] police officer’s interview notes may be subject to disclosure for use by the defendant in cross-examining the witness, if the officer’s notes meet either of § 749’s alternate definitions of a statement’ State v. Belle, 215 Conn. 257, 266, 576 A.2d 139 (1990); or if they are signed or otherwise adopted. Id. The record does not support the claim that the notes were a “substantially verbatim” account of Manny Vega’s words. They constituted the highlights of the interview and were neither signed nor adopted by anyone. At best they were nonverbatim rough notes intended to aid in preparing the arrest warrant affidavit. See State v. Myers, 193 Conn. 457, 471, 479 A.2d 199 (1984). Because the trial court’s ruling that Dakin’s notes did not constitute Vega’s statement was not clearly erroneous, we cannot hold that its denial of the defendant’s motion to strike Vega’s testimony was improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was acquitted of a third count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (2) and (4).

       The defendant amended his original appeal to include the trial court’s judgment of conviction of failure to appear in the first degree. General Statutes § 53a-172 (a). The defendant, however, has abandoned this claim in his brief.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime ... he ... (2) is armed with a deadly weapon; or . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver ... or other firearm . . . .”

       The jury’s second note stated: “Would you please restate the elements of the first count. Does the discharge ... in the first count have to be directly associated with the larceny, or can it be part of the entire event?”

       The defendant seeks review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

       Under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged violation beyond a reasonable doubt.
      The defendant has presented arguments that, if correct, would lead to the conclusion that there was a violation of a fundamental constitutional right that clearly deprived the defendant of a fair trial. We are also persuaded that if the defendant is correct, the constitutional violation would not be subject to harmless error analysis. We, therefore, address the merits of the claim to determine whether the alleged constitutional violation clearly exists.

       Although the defendant was charged with robbery in the first degree, a jury instruction on the lesser included offense of robbery in the third degree, General Statutes § 53a-136, was also requested by the defendant and given.

       The defendant requested and the court gave the jury an adverse inference instruction regarding the destruction of Dakin’s field notes.

       Practice Book § 749 provides: “The term ‘statement’ as used in Sec. 748 means:
      “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Even if we assume arguendo that these notes constituted a statement and were intentionally destroyed, absent bad faith, an automatic sanction of striking a witness’ testimony is not required. State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990); State v. Williamson, 212 Conn. 6, 15-16, 562 A.2d 470 (1989).

       Because we have concluded that the trial court’s finding that Dakin’s notes were not a statement as defined by Practice Book § 749 was proper, we need not proceed further to determine whether the court correctly determined that the notes were not destroyed in bad faith.


author: O’Connell, J.

text:
    State of Connecticut v. Keith Jenkins
    (8780)
    O’Connell, Landau and Cretella, Js.
    Argued November 8, 1990
    decision released April 2, 1991

      Brian M. O’Connell, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Christopher Morano, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of interference with a search in violation of General Statutes § 54-33d, risk of injury to a child in violation of General Statutes § 53-21, and reckless endangerment in the first degree in violation of § 53a-63 (a). The defendant argues that the court improperly admitted drug paraphernalia and a .38 caliber gun into evidence. We affirm the trial court’s judgment.

The jury could reasonably have found the following facts. On July 26,1988, twelve police officers converged on an apartment on Hampton Street in Hartford to execute a search warrant for narcotics, drug paraphernalia and weapons. When the police arrived, the apartment was occupied by a female tenant, her two year old child, a twelve year old child, and by, another woman, the defendant, and six other males. The officers’ initial attempts to gain entry without force failed when the defendant threatened to shoot the officers if they set foot inside the unit. Because of the defendant’s threat, a two hour standoff ensued during which the police called in an emergency response team, notified a hostage negotiator, and evacuated a family from a nearby apartment. The episode caused a crowd, estimated at between 300 and 400 people, to gather outside the building. The police called for backup units to bring sledgehammers to break down the door.

A refrigerator blocked the first door that the police tried to open. Following their successful forced entry at a second door, Sergeant Frank Campbell and Detective Peter Getz encountered the defendant brandishing a gun and holding the two year old. The officers also observed several other people in the unit. The defendant’s threats to shoot the officers compelled them to back out of the apartment. From their position in the stairway, the police shouted for the defendant to release the women and children. The door then opened and the two women and the twelve year old child emerged. The two year old appeared in the doorway, but the defendant quickly pulled the child back and slammed the door.

Meanwhile, Officer Paul Kutcher, who was positioned outside the building, observed several people in the apartment throwing things into the sink. Kutcher also saw the defendant hold the now crying two year old out the window, shielding himself with the child while shouting threats to the police and attempting to incite the crowd. The police in the stairway heard male voices yelling from inside the apartment that they wanted to surrender. The police told them to crawl out on their stomachs one at a time. Several males exited the apartment in this fashion, leaving only the defendant, the child and another male in the unit.

The police were subsequently approached by the defendant’s attorney, who had apparently been contacted by the defendant during the standoff. The attorney talked with the defendant from outside the apartment door. As a result of this conversation, the defendant released the child and surrendered to the police. The subsequent search of the apartment yielded the following evidence: a handgun and bullets, a gram scale with cocaine residue, vial containers and caps, .38 caliber bullets and a police radio scanner. All of these items were introduced at trial as indicative of a drug outlet operation.

Although he initially framed his claim in state and federal constitutional terms, at oral argument in this court the defendant conceded that he was entitled to review on only the evidentiary issues of relevancy and prejudice. This concession was appropriate because rulings on relevancy and motive are not issues of constitutional dimension but rather are evidentiary matters within the trial court’s discretion. State v. Kim, 17 Conn. App. 156, 158, 550 A.2d 896 (1988). This appeal has been argued by the parties as a question of the admissibility of uncharged misconduct evidence. We will analyze the issue on the same basis on which it was argued by the parties. See Crozier v. Zaboori, 14 Conn. App. 457, 463, 541 A.2d 531 (1988).

Several police officers testified that all of the items in question were found in the raided apartment. The defendant objected to their admission into evidence on grounds of materiality and bias, emphasizing that no nexus had been established between the defendant and the apartment where the evidence was discovered. The only connection between the defendant and the exhibits is that he was present in the apartment at the time of the raid. The defendant argues that because no nexus exists between him and the drug paraphernalia, the court improperly allowed the state to introduce evidence of drug possession by the other people in the apartment against him. His reliance on this argument is misplaced because “[t]he state is not obliged to present evidence of a [crime] in a vacuum; a description of the area where it occurred, the persons present and the activity in progress at the time of a [crime] are not irrelevant to the matter in issue.” State v. Moye, 177 Conn. 487, 502, 418 A.2d 870, vacated on other grounds, 444 U.S. 893, 100 S. Ct. 199, 62 L. Ed. 2d 129, on remand, 179 Conn. 761, 409 A.2d 149 (1979).

The trial court noted that the apartment was not proven to be the defendant’s residence but admitted the questioned evidence for the purpose of establishing the defendant’s motive. Immediately following the testimony of each officer, through whom the exhibits were introduced, the court gave the jury a very strict instruction limiting its consideration of the exhibits to determining the defendant’s motive and expressly prohibiting the evidence’s use for any other purpose. In its final instructions to the jury, the court again strongly and explicitly charged that the evidence could be used solely to determine the defendant’s motive.

Although evidence of other misconduct is not ordinarily admissible to prove the bad character or criminal tendencies of the accused, it may be allowed for numerous other purposes. State v. Shindell, 195 Conn. 128, 133, 486 A.2d 637 (1985). Proof of motive is a widely recognized exception to the prohibition against the admission of such evidence. State v. James, 211 Conn. 555, 578, 560 A.2d 426 (1989). Before evidence can be admitted under the motive exception, it must satisfy a two-pronged test: (1) it must be relevant and material, and (2) its probative value must outweigh its prejudicial effect. State v. Marra, 215 Conn. 716, 738, 579 A.2d 9 (1990).

In the present case, the court reasonably could have concluded that the defendant had knowledge of the incriminating articles and interfered with the search in order to prevent the police from finding those items. “[WJhere the motive for the crime charged was the concealment of some other crime . . . the evidence of such motive is admissible, although it tends to show the commission of an extraneous crime.” 29 Am. Jur. 2d, Evidence § 325; see also 1 C. Torcia, Wharton’s Criminal Evidence (14th Ed.) § 185. The defendant went to extreme and potentially violent lengths to keep the police from entering the apartment. The defendant’s motive for such frantic conduct is relevant to his interference with the search, one of the crimes with which he was charged. State v. Fritz, 204 Conn. 156, 168, 527 A.2d 1157 (1987).

“Motive is a fact which may be inferred from circumstances; hence the circumstances from which it may be inferred are relevant.” State v. Buonomo, 88 Conn. 177, 184, 90 A. 225 (1914). Furthermore, evidence of uncharged misconduct may come into evidence to “ ‘complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings.’ ” State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986), quoting C. McCormick, Evidence (3d Ed.) § 190. Without testimony describing the raid, supported by these exhibits, the jury would have had before it a naked story of a man who apparently went berserk for no reason. It was appropriate to allow the jurors to receive this evidence in order for them to comprehend what occurred when the police executed the search warrant. The circumstances surrounding the execution of the search warrant form the basis for the charge of interfering with a search. The trial court did not abuse its discretion in concluding that exhibits of drug related activity in the apartment were relevant to show that the defendant had a motive for interfering with the search and that he intentionally performed the acts constituting the elements of that crime.

Although the proffered motive evidence was relevant and material, the state must also satisfy the second prong of the test found in State v. Marra, supra, which requires that the probative value of the motive evidence outweigh its prejudicial effect. “Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” State v. Falby, 187 Conn. 6, 23, 444 A.2d 213 (1982). The defendant contends that the prejudicial effect of the drug related evidence and police testimony concerning it outweighed its probative value, and it was therefore an abuse of discretion for the trial court to allow it into evidence. We disagree.

In State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982), the court stated that relevant evidence that is potentially prejudicial should be excluded, “(1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counter-proof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.”

The defendant’s argument that the admitted evidence unduly aroused the jury’s emotions is unpersuasive. “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” Id., 703. All the evidence before the jury concerning the purpose of the police raid and the subsequently confiscated articles relate to the defendant’s motive for interfering with the officers’ search. The officers’ testimony regarding the success of the raid, and the introduction of various drug related exhibits enhanced the officers’ credibility, which in turn allowed probative evidence of the defendant’s motive to reach the jury. None of the offered evidence was extraneous to the charged crime, and, therefore, its admission did not prejudice the defendant.

We conclude that the trial court did not abuse its discretion by admitting the drug paraphernalia and the gun into evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court granted the defendant’s motion for judgment of acquittal as to the criminal use of a firearm in violation of General Statutes § 53a-216.

       The instruction following the first officer’s testimony was as follows:
      “The Court: Ladies and gentlemen, these remarks are referring to three items that came into evidence moments ago—the Smith & Wesson handgun, the rounds or bullets, and the scanner. None of these things in and of themselves are against the law. They’re legal to possess.
      “I’m going to instruct you in the following way. This evidence, these items that I just referred to, may not be used by you, in fact, you are expressly prohibited in using this evidence as evidence of the bad character of the defendant or as evidence of his tendency to commit criminal acts. If you find the testimony concerning one or more of these items—and I'm referring to the three now, the Smith & Wesson handgun, the bullets, and the scanner—credible, if you find that the defendant had knowledge of the presence in apartment 204 of one or more of these items, you may consider those items of which Mr. Jenkins had knowledge for the sole and limited purpose of assisting you in determining the motive of Mr. Jenkins and for no other purpose. You are not permitted to consider this evidence for any other purpose and as to that purpose you must weigh such evidence as you do all other evidence in this case.”
      A similar instruction, incorporating the above material, was given after the testimony of each of the other officers through whom the exhibits were introduced into evidence.

       The court included the following instruction in the jury charge. “Now, here you recall that there was some evidence that was admitted and that evidence is the scanner, the vials and caps, the Dearing (phonetic) scale and the residue that was said to be—if you find that witness credible-cocaine. And I’m going to repeat what I told you then when that evidence was admitted. These items—this evidence—may not be used by you. In fact, you are expressly prohibited from using this evidence as evidence of the bad character of the defendant or as evidence of his tendency to commit criminal acts. If you find the testimony concerning one or more of these items that I’ve just articulated credible and if you find that the defendant had knowledge of the presence in apartment 204 or of one or more of these items of which Mr. Jenkins had knowlege, for the sole and limited purpose of assisting you in determining the motive of Mr. Jenkins and for no other purpose. You are not permitted to consider that evidence for any other purpose and as to that purpose, you must weigh such evidence as you do all the other evidence in this case.”


text:
    In re Megan M.

    (8847)
    Dupont, C. J., Norcott and Landau, Js.
    Argued December 14, 1990
    decision released April 2, 1991

      Philip W. Ball, for the appellant (respondent mother).

      Paul J. Bakulski assistant attorney general, with whom, on the brief was Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

      Lynn Jenkins, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Landau, J.

The respondent mother appeals from a judgment terminating her parental rights with respect to her minor daughter, Megan, pursuant to a petition filed by the department of children and youth services (DCYS) in accordance with General Statutes § 17-43a (b) (4) (now § 17a-112 [b] [4]).

The respondent claims that the trial court improperly found that no ongoing parent-child relationship existed. The respondent’s underlying contention is that two findings are not supported by the evidence. The findings are that DCYS provided Megan with counseling for reunification and that DCYS did not prevent the respondent from maintaining a meaningful relationship with Megan. The sole issue on appeal, therefore, is whether the trial court’s conclusion that no ongoing relationship existed is supported by the evidence.

Megan was born on July 23, 1982, and has been in foster care with the same foster family since August, 1984. In November, 1984, the court determined that she was neglected by her natural parents and committed Megan to the care and custody of the commissioner of DCYS.

“ ‘The termination of parental rights is defined as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and [her] parent . . . .” General Statutes § 45-61b (g). It is “a most serious and sensitive judicial action.” Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). “Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’ . . . ” ’ ” (Citations omitted.) In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640, 436 A.2d 290 (1980), quoting In re Juvenile Appeal (Anonymous), 177 Conn. 648, 671, 420 A.2d 875 (1979).

The statutory criteria set forth in General Statutes § 17-43a must be satisfied before a termination of parental rights can be accomplished. In re Luis C., 210 Conn. 157, 163, 554 A.2d 722 (1989). General Statutes § 17-43a (b) (4) provided for the termination of parental rights if, upon clear and convincing evidence, it is proved that no ongoing parent-child relationship has existed in excess of one year, and requires the court to undertake a two-pronged analysis. “First, there must be a determination that no parent-child relationship exists; and second, the court must look into the future and determine whether it would be detrimental to the child’s best interests to allow time for such a relationship to develop.” In re Juvenile Appeal (84-3), 1 Conn. App. 463, 479, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

The statutory term “no ongoing parent-child relationship” has been interpreted “to contemplate a situation in which, regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitely lost that relationship, so that despite its former existence it has now been completely displaced.” In re Juvenile Appeal (Anonymous), supra, 177 Conn. 670. In addition, the mere fact that there has been some minimal contact between the parent and the child does not require a determination that an ongoing parent-child relationship has existed in excess of one year. In re Juvenile Appeal, supra, 181 Conn. 646. In determining whether there is an ongoing parent-child relationship, the court should consider the feelings of the child toward the parent, especially if those feelings are positive rather than negative. See In re Juvenile Appeal (84-6), 2 Conn. App. 705, 709, 483 A.2d 1101 (1984), cert. denied, 175 Conn. 801, 487 A.2d 564 (1985).

The trial court thoroughly articulated its findings pursuant to General Statutes § 17-43a (d) (now § 17a-112 [d]). Specifically, the court found that DCYS offered timely and appropriate services to the parents and made prolonged and extensive efforts to promote and facilitate visitation including providing the respondent with a bus pass, transporting Megan to and from several visits and changing visitation sites. Neither parent was prevented from maintaining a meaningful relationship with the child. Both the respondent and DCYS fulfilled their obligations and court ordered expectations. In particular, the court noted the respondent’s laudable efforts to adjust her circumstances, conduct and conditions to persuade the court that it would be in the best interests of the child to return Megan to the respondent’s home. By 1987, the respondent had successfully overcome her drug and alcohol addictions, as well as serious illnesses, and had stabilized her life. Megan, however, resists any suggestion that the respondent is her mother or that she be returned to the respondent. She harbors only negative feelings for the respondent. Megan has strong positive feelings and emotional ties toward her foster parents, with whom she has lived since 1984.

In addition, the court noted that as reunification efforts progressed, Megan began to view visitation as a threat to her remaining with her foster family and began to resist visitation with the respondent. Her refusal manifested itself in tantrums, bed wetting, nightmares, and anger toward her foster mother and the DCYS worker. On the basis of these facts and the passage of time in this child’s life since she had lived with the respondent, the court concluded that Megan does not view the respondent as a parent and that an ongoing parent-child relationship, as defined by statute, does not exist between the respondent and the child.

After determining the absence of a parent-child relationship, the court concluded that allowing further time for the establishment or reestablishment of a parent-child relationship would be detrimental to Megan’s best interests. The court based its decision on testimony showing that the continuing uncertainty of her status and the traumatic effects of reunification efforts, as well as the futility of parenting classes for the respondent, would have a negative effect on Megan.

On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). The trial court, following the mandates of General Statutes § 17-43a, properly determined, on the basis of clear and convincing evidence, that no ongoing parent-child relationship existed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The father does not appeal the termination of his parental rights.

       The termination petition also contained allegations under General Statutes § 17-43a (b) (3) (now § 17a-112 [b] [3]). The trial court found, however, that the petitioner failed to meet its burden of proof regarding these allegations.

       General Statutes § 17-43a (b) (now § 17a-112 [b]) provides in pertinent part: “The superior court . . . may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which . . . shall not be less than one year ... (4) there is no ongong parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”


author: Daly, J.

text:
    Donald A. Mitchell v. Julianne Mitchell
    (8927)
    Daly, O’Connell and Foti, Js.
    Argued February 14
    decision released April 2, 1991

      Donald A. Mitchell, pro se, the appellant (plaintiff).

      Charles F. Brower, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the trial court’s granting of the defendant’s motion for modification of a postmajority support order and the allowance of counsel fees to defend the appeal. The following facts are necessary for the consideration of this claim.

On May 27,1986, a judgment of dissolution was rendered incorporating the parties’ executed settlement agreement. Among the provisions of the agreement were the following: The plaintiff was to contribute two thirds and the defendant one third of the actual costs for the college education of each child, not to exceed the amount then charged by the University of Connecticut; a modification and waiver of any of the provisions of the agreement would be effective only if made in writing and executed with the same formality as the original agreement; the plaintiff was to pay $150 per week in alimony and $75 per week in support of each of the two minor children; the plaintiff and the defendant each were to have the right to claim one child as a federal tax exemption on their returns each year, alternating the child claimed each year. The defendant moved to modify the judgment by a motion dated January 18, 1990, requesting relief from the post-majority tuition obligation, an increase in alimony and in support payments for the remaining minor child, and the right to claim both children as exemptions on her tax return. On February 5, 1990, the trial court granted the defendant relief from her obligation to pay tuition and denied her other requests. The plaintiff appealed. In March, 1990, the defendant requested and was granted an allowance of $3500 for counsel fees to defend the appeal. The plaintiff has also appealed from the decision granting this award.

The plaintiff claims that the trial court lacked subject matter jurisdiction to modify the postmajority education order, improperly relied on outdated financial affidavits in awarding counsel fees, should have deferred making the award of counsel fees and lacked sufficient evidence concerning the reasonableness of those fees. We reverse the judgment of the trial court.

General Statutes § 46b-66 requires agreements for the postmajority support of a child to be written. This requirement also applies to modifications of post-majority support. Hirtle v. Hirtle, 217 Conn. 394, 399-400, 586 A.2d 578 (1991). A written agreement is a jurisdictional prerequisite for a valid modification of a postmajority support agreement. Id., 400-401; Cattaneo v. Cattaneo, 19 Conn. App. 161, 164, 561 A.2d 967 (1989). Because there was no written agreement for the modification here, we conclude that the trial court lacked subject matter jurisdiction over the defendant’s motion, and therefore could not modify the provisions of the parties’ dissolution agreement relating to the postmajority college tuition. Hirtle v. Hirtle, supra, 399-401; Albrecht v. Albrecht, 19 Conn. App. 146, 157, 562 A.2d 528, cert. denied, 212 Conn. 813, 565 A.2d 534 (1989).

The plaintiff also claims that the trial court lacked subject matter jurisdiction to award counsel fees to the defendant. This claim is without merit because General Statutes § 46b-62 grants the courts this power. Bucy v. Bucy, 23 Conn. App. 98, 106, 579 A.2d 117 (1990). The inherent power of the court to award such an allowance to defend an appeal is well settled. Whether to grant such an allowance, or what amounts to award are entrusted to the court’s sound discretion. Benson v. Benson, 5 Conn. App. 95, 100, 497 A.2d 64 (1985), and cases cited therein. In exercising its broad discretion, however, the court must consider the parties’ respective financial abilities and the criteria set forth in General Statutes §§ 46b-62 and 46b-82. Id. The policy underlying this allowance is that a spouse should not be deprived of his or her rights owing to lack of funds. Id.

The plaintiff argues that the trial court did not consider the criteria contained in General Statutes § 46b-82 but relied solely on the parties’ financial affidavits. Although the trial court is not obligated to make express findings on each of the enumerated criteria in General Statutes § 46b-82, the court’s memorandum of decision must at least reflect that those criteria were considered and weighed in view of the particular parties’ circumstances. Friedlander v. Friedlander, 191 Conn. 81, 87, 463 A.2d 587 (1983); Messina v. Messina, 22 Conn. App. 136, 140-42, 576 A.2d 579 (1990). Neither the record nor the order awarding counsel fees reflects that the trial court considered the statutory criteria of General Statutes §§ 46b-62 and 46b-82.

The judgment is reversed as to the modification of support and the case is remanded with direction to deny the defendant’s motion for modification and for articulation of the trial court’s basis for its award of counsel fees.

In this opinion the other judges concurred.

       The record apparently dated the order incorrectly as February 5,1989.

       General Statutes § 46b-66 provides in relevant part: “review op agreements; incorporation into decree. In any case under this chapter where the parties have submitted to the court an agreement concerning the . . . support of any of their children . . . the court shall . . . determine whether the agreement of the spouses is fair and equitable under all the circumstances. If the court finds the agreement fair and equitable, it shall become part of the court file, and if the agreement is in writing, it shall be incorporated by reference into the order or decree of the court. . . . If the agreement is in writing and provides for the . . . support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other provision of such order or decree, notwithstanding the provisions of section 1-ld.”

       General Statutes § 46b-62 provides in relevant part: “In any proceeding seeking relief under the provisions of this chapter . . . the court may order either spouse . . . to pay the reasonable attorney’s fees of the other in accordance with their respective financial abilities and the criteria set forth in section 46b-82.”

       General Statutes § 46b-82 provides in part: “In determining whether alimony should be awarded, and the duration and amount of the award, the court shall hear the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties . . . .”