author: Dupont, C. J.

text:
    State of Connecticut v. Joseph M. Flynn
    (4132) (4153)
    Dupont, C. J., Stoughton and Foti, Js.

      Argued November 6, 1987
    decision released April 5, 1988

      Richard Emanuel, with whom, on the brief, was Charles Harken, for the appellant (defendant).

      Susan C. Marks, deputy assistant state’s attorney, with whom, on the brief, was John Whalen, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crimes of assault on a peace officer in violation of General Statutes § 53a-167c, reckless endangerment in the second degree in violation of General Statutes § 53a-64, breach of the peace in violation of General Statutes § 53a-181, and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court erred (1) in imposing multiple punishments for the same offense in violation of his fifth amendment right' against double jeopardy, (2) in rendering judgment upon inconsistent verdicts, (3) in denying his motion to view the scene of the alleged crimes, (4) in its instructions to the jury regarding circumstantial evidence and on interfering with an officer, and in commenting on the evidence, and (5) in failing to instruct the jury that it was required to reach unanimity on alternative elements of an offense.

The jury could reasonably have found the following facts. On Saturday, November 17, 1984, at approximately 2:30 a.m., four Milford police officers, Officers Mitchell Greenberg, John Kranyak, Gary Stacoffe, and Douglas Youd, arrived at a local bar in response to an assault complaint. After investigation, the officers concluded that the suspect had left that bar to go to another nearby bar, the Double Play Saloon. The officers went to the Double Play Saloon in search of the suspect, who was not the defendant here. Kranyak, Stacoffe and Youd entered the Double Play through the front door, and walked toward the rear dance floor area. Greenberg entered the bar a minute later. All officers were in uniform. The bar was crowded, dark and noisy. While Kranyak and Stacoffe were standing near the dance floor, with their backs to the bar area, Kranyak was struck on the right shoulder by a beer bottle and Stacoffe was struck on the back of the head by a hard blunt object, allegedly a beer bottle.

At trial, Youd testified that he had been standing behind Stacoffe and Kranyak, and that he saw the defendant throw a full or partially full beer bottle at the two officers, although he did not actually see it strike the officers. He further testified that he grabbed the defendant and informed him that he was under arrest and that the defendant had resisted the attempts to arrest him. Stacoffe testified that he heard a “scuffling” and both he and Kranyak became aware that Youd was attempting to make an arrest, that the defendant was kicking and struggling and that it required the efforts of all four officers to handcuff and remove him from the Double Play Saloon.

Witnesses for the prosecution testified that at the police station, after Youd had informed the. defendant of his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); the defendant asked several times what the charges were against him and then made the comment: “That’s why I threw the bottle.”

At trial, the defendant took the stand in his own defense and denied that he had thrown the bottle or that he had resisted arrest. Several witnesses for the defense corroborated the defendant’s version of the events.

The jury found the defendant guilty on all four counts charged in the short-form information. On April 12, 1985, the trial court sentenced the defendant to the following terms of imprisonment: three years for assault on a peace officer; six months for reckless endangerment in the second degree; six months for breach of peace; and one year for interfering with an officer. The sentences imposed were ordered to run consecutively, for a total effective sentence of five years.

I

The defendant first claims that the trial court imposed multiple punishments for the same offense in violation of his federal and state constitutional rights to be free from being placed twice in jeopardy. The defendant argues (1) that the crime of interfering with an officer is a lesser included offense of assault on a peace officer, and (2) that the crime of reckless endangerment in the second degree is a lesser included offense of assault on a peace officer. Although the defendant did not raise the double jeopardy issue at trial, it is reviewable under State v. Evans, 165 Conn. 61, 69-70, 372 A.2d 576 (1973), because “this claim involves a question of a fundamental constitutional right” and is adequately supported by the record. State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. Williams, 12 Conn. App. 225, 229, 530 A.2d 627 (1987).

The fifth amendment to the United States constitution declares that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This amendment is fully applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although the Connecticut constitution does not include a specific double jeopardy provision, our Supreme Court “has long recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense.” State v. Langley, 156 Conn. 598, 600-601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969). The due process guarantees of article first, § 8, of the Connecticut constitution, therefore, have been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

One of the protections flowing from the double jeopardy guarantee is that “against multiple punishments for the same offense” in a single trial. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Goldson, 178 Conn. 422, 423-24, 423 A.2d 114 (1979). In State v. Johns, 184 Conn. 369, 439 A.2d 1049 (1981), our Supreme Court reaffirmed the proposition that “ ‘[wjhere consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense . . . .’ ” Id., 376, quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), articulated the governing standard for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” Id., 304. In applying the prohibition against double jeopardy, the appropriate inquiry involves resolving two separate but related issues. The first issue that must be addressed is whether the crimes arise out of the “same act or transaction.” Only if this issue is answered in the affirmative do we need to address the second issue of whether the crimes charged constitute the “same offense.” State v. Devino, supra, 74; State v. Goldson, supra, 424.

With respect to the first issue, we must refer-to the language of the information against the defendant. Count one of the information charged the defendant with the crime of assault on a police officer in violation of either General Statutes § 53a-167c (a) (1) or (a) (2), at Milford, on or about November 17, 1984. Count two of the information charged the defendant with the crime of reckless endangerment in violation of General Statutes § 53a-64, at Milford, on or about November 17, 1984; count three, with the crime of breach of peace in violation of General Statutes § 53a-181, on or about November 17,1984; and count four, with the crime of interfering in violation of General Statutes § 53a-167a, at Milford, on or about November 17,1984.

The state argues that the charges do not relate to the same act or transaction in light of the fact that the evidence adduced at trial suggested two discrete acts by the defendant — the allegation that the defendant threw a beer bottle at a police officer, striking and injuring him, and the allegation that the defendant strenuously resisted with force when the officers subsequently attempted to arrest him.

We acknowledge that the defendant’s failure to pursue a motion for a bill of particulars complicates this inquiry. The state and the defendant concede that the charge of assault on a police officer relates solely to the bottle throwing incident. With respect to the remaining three charges, however, neither the information nor the court’s jury instructions specified what act was alleged to constitute a violation of which statute. The information states the exact same place and time in connection with all four crimes, and is silent with respect to any particular act which violates any particular statute. We must therefore conclude that, for the purpose of double jeopardy analysis, the crimes charged arose out of the same act or transaction. See State v. Goldson, supra, 425 (an information and bill of particulars stipulating a single date and time warrants the conclusion that the charges, thus framed, clearly relate to the same act or transaction and cannot avoid the limitations imposed by the double jeopardy clause). This conclusion necessarily requires this court to resolve the second prong of the double jeopardy analysis, namely, whether the crimes charged are the same offense.

The relevant inquiry then becomes whether each statutory violation requires proof of a fact which the other does not. Blockburger v. United States, supra, 304; State v. Devino, supra, 74-75. It is well established that if two offenses “stand in the relationship of greater and lesser included offense, then ‘[t]he greater offense is . . . by definition the “same” for purposes of double jeopardy as any lesser offense included in it.’ ” State v. Goldson, supra, 425, quoting Brown v. Ohio, supra, 168. A crime is a lesser included offense if “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser . . . .” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

To determine what constitutes a lesser included offense of the offense charged, this court will examine the statutes and the information as opposed to the evidence presented at trial. State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977); State v. DeMatteo, 13 Conn. App. 596, 602, 538 A.2d 1068 (1988). We first consider whether interfering with an officer is a lesser included offense of assault on a peace officer. We hold that it is.

General Statutes § 53a-167a (a) delineates the crime of interfering with an officer as charged: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.” This statutory provision has been interpreted to require the intention to interfere with the performance of an officer’s duties as a necessary element of the offense. State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984), citing State v. Walker, 34 Conn. Sup. 548, 550, 375 A.2d 426 (1976), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985). General Statutes § 53a-167c (a) (1) and (2) delineates the crime of assault on a peace officer as charged: “A person is guilty of assault of a peace officer or a fireman when, with intent to prevent a reasonably identifiable peace officer or fireman, as defined in section 53a-3, from performing his duty, (1) he causes physical injury to such peace officer or fireman, or (2) he throws or hurls, or causes to be thrown or hurled, any rock, bottle, can or other article, object or missile of any kind capable of causing physical harm, damage or injury, at such peace officer or fireman.”

Applying the standard of whether each provision requires proof of an additional fact which the other does not, we conclude that a person could not commit the greater offense of assault on a peace officer without having committed the lesser offense of interfering with a peace officer. It is theoretically impossible to have a situation where one, with intent to prevent the performance of duties of a peace officer, either causes physical injury to an officer or throws or hurls a bottle or other object at an officer capable of causing harm without at the same time obstructing, hindering, resisting or endangering that officer in the performance of his duties.

Although the offenses as charged may constitute the same offense under Blockburger v. United States, supra, “the legislature may nevertheless explicitly authorize multiple punishments for their commission without violating the prohibition of double jeopardy. See Ohio v. Johnson, 467 U.S. 493, 499 n.8, 104 S. Ct. 2536, 81 L. Ed. 2d 425 (1984); Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).” State v. Devino, supra, 76 n.6; State v. Williams, supra, 232. “Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Brown v. Ohio, supra, 165. The statutory provisions involved here, however, do not expressly authorize the imposition of ,multiple punishments. Nor are we aware of any legislative history that indicates the legislature’s intent to provide multiple punishments for interference with an officer and assault on an officer. “Unless a clear intention to fix separate penalties for each [offense] involved is expressed, the issue should be resolved in favor of lenity and against turning a single transaction into multiple offenses.” State v. Rawls, 198 Conn. 111, 122, 502 A.2d 374 (1985).

Because we hold that the crimes of interference with an officer and assault on an officer constitute the same offense and because there is no expression of legislative intent that the crimes warrant separate punishment, the defendant’s conviction on both counts one and four violated the constitutional and common law prohibitions against double jeopardy.

“There remains for our consideration of this issue the proper scope of our remand. Had the trial court properly treated the charges of [assault and interfering] as greater and lesser included offenses, respectively, it would have made it unnecessary in this case for the jury to consider the lesser offense after finding guilt on the greater. Double jeopardy would have been precluded.” State v. Williams, supra, 232-33. “One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368 [103 S. Ct. 673, 74 L. Ed. 2d 535] (1983).” Ball v. United States, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985). The defendant’s conviction on the lesser included offense of interference with an officer in violation of General Statutes § 53a-167a, which was contained in the fourth count, must therefore be set aside by the trial court and judgment rendered for the defendant on that count. State v. Rawls, supra; State v. Goldson, supra; State v. Williams, supra, 225, citing Ball v. United States, supra.

We next consider whether reckless endangerment in the second degree is a lesser included offense of assault on a peace officer. We hold that it is not. General Statutes § 53a-64 delineates the crime of reckless endangerment in the second degree. A person is guilty of reckless endangerment in the second degree when he (1) recklessly (2) engages in conduct (3) which creates a risk of physical injury (4) to another person. The elements of this crime are “distinct and dissimilar” from the crime of assault on an officer. See State v. Trujillo, 12 Conn. App. 320, 336, 531 A.2d 142 (1987). A conviction of assault on a peace officer as charged in the information, requires proof of (1) intent to prevent (2) a reasonably identifiable officer (3) from performing his duty (4) by causing physical injury to such officer or (5) by throwing or causing to be thrown at such officer an object capable of causing physical harm, damage or injury. General Statutes § 53a-167c (a) (1) and (2). We emphasize that “intentionally and recklessness are two distinct states of mind.” State v. Giguere, 184 Conn. 400, 403, 439 A.2d 1040 (1981). These statutory violations, therefore, are not the same offense for double jeopardy purposes.

II

The defendant next claims that the trial court erred in permitting the jury to convict him of crimes which are legally inconsistent because they require two different, mutually exclusive mental states, those of intentionality and recklessness. The defendant argues that although this claim was not raised in the trial court, it is entitled to an Evans review because the inconsistent guilty verdicts violated his constitutional rights to due process of law. The state argues that this claim is not reviewable under either State v. Evans, supra, or the plain error doctrine. Practice Book § 4185.

In State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), this court clarified the appropriate standards for deciding an Evans claim and articulated a four-pronged analysis. That analysis requires: (1) does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right; (2) is the defendant’s constitutional claim adequately supported by the record; (3) was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant; and (4) did the deprivation deny the defendant a fair trial, thereby requiring that his conviction be set aside. The first two questions relate to the reviewability of a defendant’s claim, whereas the latter two questions relate to the substance of the claim upon review. Each question must be answered in the affirmative before proceeding to the succeeding question. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 528 (1986).

Applying the Thurman standard to this case, we first recognize that the defendant’s claim, on its face, implicates the fundamental constitutional right to due process of law. The first prong of the Thurman standard is therefore satisfied. The second prong “requires that we review the record in a limited way and determine, on the basis of that limited review, whether the defendant’s claim is truly of constitutional proportions or is simply characterized as such by the defendant.” (Emphasis in original.) State v. Thurman, supra, 306. This case does not involve a claim of inconsistency arising from the acquittal of a defendant on one count and his conviction on another count. If that were the claim, there would be no implication of a fundamental constitutional right. United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); Harris v. Rivera, 454 U.S. 339, 345, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981); State v. Gaston, 198 Conn. 490, 492, 503 A.2d 1157 (1986). This case involves a claim of inconsistency arising from multiple guilty verdicts and whether such a claim implicates a fundamental constitutional right.

This issue has not previously been addressed by the courts of our state. Nor are we aware of any other jurisdiction that has addressed this issue. In order to analyze the issue, the rationale underlying the rule against challenging inconsistency arising from an acquittal on one count and a conviction on another must be examined. In Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), the United States Supreme Court held that a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count. The rationale behind the Dunn rule is that “where truly inconsistent verdicts have been reached, ‘[t]he most that can be said ... is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt.’ ” United States v. Powell, supra, 64-65, quoting Dunn v. United States, supra, 393. “It is . . . possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense .... Inconsistent verdicts therefore present a situation where ‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear [whether the error benefits the Government or the criminal defendant]. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course .... For us, the possibility that the inconsistent verdicts may favor the criminal defendant as well as the Government militates against review of such convictions at the defendant’s behest. This possibility is a premise of Dunn’s alternative rationale — that such inconsistencies often are a product of jury lenity. Thus, Dunn has been explained by both courts and commentators as a recognition of the jury’s historic function, in criminal trials, as a check against arbitrary or oppressive exercises of power by the Executive Branch.” United States v. Powell, supra, 65.

The alleged error involved here, however, is not a claim of inconsistency between acquittal on one count and conviction on another, but rather a claim of inconsistency between and among convictions on two or more counts. The rationale articulated in Dunn v. United States and United States v. Powell, supra, for finding that consistency in the verdict is not constitutionally required and holding that inconsistent verdicts are not reviewable is not applicable to inconsistent guilty verdicts. The effect on the criminal defendant from inconsistent acquittal and conviction verdicts is clearly distinguishable from the effect on the defendant from inconsistent conviction verdicts. First, the defendant’s claim of error really goes to the alleged error of the trial court, as opposed to the error of the jury, for failure to properly instruct the jury on the element of intent required for the crime of interfering with an officer, and for failing to instruct the jury that it could not find the defendant guilty of both a crime requiring reckless conduct and a crime requiring intentional conduct for the doing of the same act. The defendant argues that if the jury were properly instructed, they would not have found the defendant guilty on multiple counts.

Second, the rationale emphasized in Dunn v. United States, supra, 393, that “[w]e interpret the acquittal as no more than [the jury’s] assumption of power which they had no right to exercise, but to which they were disposed through lenity,” has no relevance to multiple guilty verdicts. Inconsistent guilty verdicts never are the result of lenity, and any error is always detrimental to the defendant. Third, the error arising from inconsistent guilty verdicts would not be based either on pure speculation nor would it require inquiries into the jury’s deliberations. The factors which counselled the Dunn court against review of inconsistent verdicts does not apply with multiple gudty verdicts.

Furthermore, the rationale of the Powell court that the “fact that the inconsistency may be the result of lenity, coupled with the Government’s inability to invoke review, suggests that inconsistent verdicts should not be reviewable”; United States v. Powell, supra, 66; is inapposite to the defendant’s claim of error here. As a result, the general rule in State v. Gaston, supra, does not apply. Accordingly, we hold that one of the exceptions to the Dunn rule is “inconsistent multiple convictions, where the defendant could be guilty of either, but not both charged offenses.” United States v. Duz-Mor Diagnostic Laboratory, Inc., 650 F.2d 223, 226 n.3 (9th Cir. 1981).

The second prong of the Thurman analysis is, therefore, satisfied because our limited review indicates that the defendant’s claim is truly of constitutional proportions; the alleged error implicates the defendant’s fundamental right to due process of law. Because the defendant’s claim is reviewable under the second “exceptional circumstance” of State v. Evans, supra, we consider the third prong of the Thurman analysis which requires us to review fully the defendant’s claim to determine whether, in fact, a fundamental constitutional right of his was violated. We hold that it was not.

The defendant claims that he could not act both intentionally and recklessly. General Statutes § 53a-3 (13) provides the definition of reckless: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” (Emphasis added.) General Statutes § 53a-3 (11) provides the definition of intent: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” (Emphasis added.)

The defendant argues that several combinations of the four offenses for which he was charged and convicted are legally inconsistent because they require different mental states. He could not, he claims, act both intentionally and recklessly with regard to the same factual circumstance.

Ordinarily, a jury is precluded from finding a defendant guilty of two offenses that are inconsistent as a matter of law. See, e.g., Milanovich v. United States, 365 U.S. 728, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961) (defendant cannot be convicted for both stealing and receiving the same goods). In such circumstances, the inconsistent offenses should be presented to the jury in the alternative. Fuller v. United States, 407 F.2d 1199 (D.C. Cir. 1968) (en banc), cert. denied, 393 U.S. 1120, 89 S. Ct. 999, 22 L. Ed. 2d 125 (1969). The statutory definitions make clear that “[rjeckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.” State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986). These mental states, however, exist only with reference to particular “results” or “circumstances.” Thus, it is necessary to examine the mental state element as it arises in each particular statute defining an offense to determine whether actual inconsistency exists.

The crime of assault on a peace officer, which requires intentional conduct, and the crime of reckless endangerment, which requires reckless conduct, are not legally inconsistent offenses. General Statutes § 53a-167c (a) provides in relevant part that “[a] person is guilty of assault of a peace officer . . . when [he acts] with intent to prevent a reasonably identifiable peace officer . . . from performing his duty . . . .” (Emphasis added.) General Statutes § 53a-64 provides that a person is guilty of reckless endangerment if he “recklessly engages in conduct which creates a risk of physical injury to another person.” (Emphasis added.) Applying these statutory definitions to the facts of this case, we find that the jury could reasonably have found that when the defendant threw the beer bottle at the officers he did so with the requisite intent — preventing the officers from performing their duties — to find him guilty of assault on a peace officer. At the same time, the jury could reasonably have found that the defendant acted recklessly with respect to the other patrons in the bar and properly have found him guilty of reckless endangerment. It is not inconsistent, therefore, to find that a criminal defendant possesses two different mental states, as long as these different mental states relate to different results.

This analysis is equally applicable to the defendant’s remaining four combinations of allegedly inconsistent offenses. We find it unnecessary, therefore, to discuss them separately.

Ill

The defendant’s third claim of error is that the trial court erred in denying his motion requesting that the jury “be conducted to the location of the alleged crimes —the Double Play Saloon, in Milford, Connecticut.” See Practice Book § 844. The motion stated that a view of the alleged crime scene would “be helpful to the jury in applying the evidence to the law in the determination of a verdict.” The state opposed the defendant’s motion, maintaining that the defense had not claimed that the view was necessary or important for a clearer understanding of the issues. The court then denied the motion but stated that “[i]f it appears at some later [point] in the testimony that it would be beneficial to the clear understanding of the case, I will allow [the defendant] to renew [the motion for viewing by the jury].”

Pursuant to Practice Book § 844, a trial court may permit a viewing of the scene of the crime if it is of the opinion that a viewing would be helpful to the jury in determining some material factual issue in the case. “ ‘The test is whether a view is necessary or important in order to obtain a clearer understanding of the issues and to apply the evidence properly. . . .’ ” O’Connor v. Dory Corporation, 174 Conn. 65, 71, 381 A.2d 559 (1977), quoting Dickson v. Yale University, 141 Conn. 250, 256, 105 A.2d 463 (1954). The decision of whether to allow a jury to view the crime scene rests within the sound discretion of the trial court. Mackin v. Mackin, 186 Conn. 185, 190, 439 A.2d 1086 (1982); State v. Taxiltaridis, 2 Conn. App. 617, 622, 481 A.2d 98 (1984).

In this case, the trial court’s denial of the motion to view was not an abuse of discretion. Although a viewing of the Double Play Saloon might have been helpful to the jury, the jury had before it the testimony of several witnesses (three of the state’s five witnesses and all six of the defense witnesses) regarding the configuration and the atmosphere of the premises, as well as diagrams of the scene prepared by both the state and the defendant.

IV

The defendant also challenges the trial court’s instructions to the jury on circumstantial evidence and claims that the trial court improperly commented on the evidence.

A

The defendant claims that the court’s instructions on circumstantial evidence erroneously diluted the state’s burden of proof to establish his guilt beyond a reasonable doubt and, instead, permitted the jury to find him guilty by a preponderance of the evidence. The defendant did not file a request to charge, nor did he take exception to the trial court’s charge on circumstantial evidence. Ordinarily, this court will not review claims of error not properly preserved for appeal; Practice Book § 4185. This claim, however, implicates the defendant’s constitutional right to have the state prove him guilty beyond a reasonable doubt, and is reviewable under the Evans doctrine. State v. Hufford, 205 Conn. 386, 406, 533 A.2d 866 (1987); State v. Evans, supra.

In its general charge on circumstantial evidence, the trial court instructed the jury: “Proof beyond a reasonble doubt does not mean that you must have direct evidence supporting a fact. You may apply the law of circumstantial evidence. This rule involves the offering of evidence of facts from which you are asked to infer the existence of another fact or set of facts. . . . Such an inference may be made provided two elements in the application of this rule are satisfied: (a) that the fact from which you’re asked to draw the inference has itself been proven beyond a reasonable doubt; and (b) that the inference asked to be drawn is not only logical and reasonable but is strong enough so that you can find that it is more probable than not that the fact to be inferred is true. It is your right to draw inferences if you conclude that the facts you have found proven . . . reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.”

In a subsequent instruction pertaining to intent, the trial court explained that “it is proper and usually necessary to infer intent . . . provided only that the inferences are reasonable ones.” In the same instruction, the trial court charged the jury: “It is for you, the jury, to decide from the evidence you believe whether the state has proved beyond a reasonable doubt the defendant had, at the time and place of the alleged commission of the offenses charged, the required intent to have committed such an offense or offenses.”

The “more probable than not” language challenged in this case is substantially similar to jury instructions on circumstantial evidence considered recently by this court and by our Supreme Court. See State v. Hufford, supra; State v. McDonough, 205 Conn. 352, 533 A.2d 857 (1987); State v. Walker, 9 Conn. App. 373, 519 A.2d 83 (1986); State v. Farrar, 7 Conn. App. 149, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). While the challenged charge has consistently been held to be erroneous, “such error is not reversible unless it can be shown that it was reasonably possible that the jury was ‘misled [by the charge] to believe that they were to apply any standard other than that of “beyond a reasonable doubt” in determining the guilt of the accused.’ State v. Miller, [202 Conn. 463, 491-92, 522 A.2d 249 (1987)]; State v. Robinson, [204 Conn. 207, 210-11, 527 A.2d 694 (1987)]; State v. Whelan, [200 Conn. 743, 756-57, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986)].” State v. Hufford, supra, 407.

These recent cases make clear that a jury instruction on circumstantial evidence must be reviewed with reference to the principal disputed issues. “In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role. ‘Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, “we will closely scrutinize the court’s instructions” on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof.’ State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987). Unlike intent, such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role. ‘Accordingly, we review the court’s instruction not in isolation, but in the context of the charge as a whole, to determine whether it is “ ‘ “reasonably possible that the jury was misled” ’ ” by an erroneous explanation regarding the use of circumstantial evidence.’ Id.” State v. McDonough, supra, 358.

The defendant argues that the instruction to the jury permitted the jury to infer his intent in committing the crimes charged by the state. As both the defendant and the state correctly point out, however, the principal disputed issue in this case was not intent but identity. Both parties relied primarily on direct evidence relevant to the issue of identity. The state presented eyewitness testimony that the defendant threw the bottle at the police officers and that he resisted arrest, while the defendant presented eyewitness testimony that the bottle was not thrown by him and that he did not resist arrest.

Our examination of the jury charge as a whole indicates that the trial court properly instructed the jury that it must find the existence of each essential element of each crime charged beyond a reasonable doubt. We hold, therefore, that the trial court’s instruction concerning circumstantial evidence, although erroneous, could not reasonably have misled the jury as to the state’s burden of proving the defendant’s guilt beyond a reasonable doubt and, thus, was harmless.

B

The defendant claims that in its charge to the jury, the trial court erred in its comments on the evidence relating to the crime of assault on a peace officer. Although the defendant did not preserve properly this issue for appeal, we will review it under State v. Evans, supra, because this claim implicates the defendant’s “constitutional right to a jury trial and due process of law in light of the assertion that the court effectively directed the jury on some of the factual issues by virtue of its comments on the evidence . . . .” State v. Collette, 199 Conn. 308, 316 n.6, 507 A.2d 99 (1986).

In the course of its instructions, the trial court stated to the jury: “In order to convict the defendant, the prosecution must prove beyond a reasonable doubt: (1) that the victim of the assault was a reasonably identified police officer. In commenting on the evidence, let me say here that there is evidence that the officers that were . . . injured . . . struck, were both police officers, both in their uniforms. And I do not think there is any evidence to contradict that; (2) that the defendant caused physical injury to such peace officer. Now, whether or not the defendant caused such injury is something that you in your own minds have to decide. But there is no dispute that a physical injury was caused; and (3) that the defendant had the specific intent to prevent the peace officer from performing his lawful duty.” (Emphasis added.)

Although a trial court may, in its discretion, make reasonable comments on the evidence; State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117 (1976); it may not direct or advise the jury on how to decide the case. State v. Storlazzi, 191 Conn. 453, 465, 464 A.2d 829 (1983); State v. Nims, 8 Conn. App. 631, 640, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986). This rule is premised on a criminal defendant’s constitutional right to have issues of fact decided by a jury and not by a court. State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982).

The defendant argues that “[b]y his plea of not guilty the defendant put in issue every element of the crime[s] charged”; State v. Johnson, 190 Conn. 541, 550, 461 A.2d 981 (1983); and, therefore, the court’s comments effectively directed the jury on how to decide the factual elements of “peace officer” and “physical injury.” We agree with the defendant’s contention that his failure to present contradictory evidence on the facts testified to by the state does not mean that the defendant has conceded or verified the state’s position, nor does it mean that the jury might not find a reasonable doubt to exist on that factual issue. “It is . . . inappropriate to tell the jury that a portion of the government’s evidence is ‘undisputed,’ as ‘all issues not affirmatively conceded are “disputed” on a plea of not guilty,’ and ‘to tell the jury that something is undisputed may well suggest that it is conceded.’ If the court wishes to comment on the evidence, or to summarize the evidence, it should ordinarily do so in a manner that does not reflect on the defendant’s failure to offer rebuttal.” Flaherty v. United States, 355 F.2d 924, 926 (1st Cir. 1966).

Although it was error for the court to comment on the evidence in the manner that it did, it was harmless error. “ ‘It has been established by repeated decisions in this State that a court, in submitting a case to the jury, may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point of evidence in issue in the case, and may comment upon the weight of the evidence, so long as it does not direct or advise the jury how to decide the matter .. . .’ State v. Cabaudo, 83 Conn. 160, 163, 76 A. 42 (1910).” State v. Nims, supra, 640-41. “The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done . . . .” State v. Storlazzi, supra, 466. “Individual comments are not to be judged in isolation from the charge as a whole; State v. Moss, 189 Conn. 364, 367, 456 A.2d 274 (1983); State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); and should be examined not in a vacuum, but in the context of the factual issues raised at trial. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).” State v. Collette, 199 Conn. 308, 316-17, 507 A.2d 99 (1986).

Examining the challenged statements in the context of the entire charge, we are confident that the trial court did not direct or advise the jury on how to decide the case. The court on several occasions instructed the jurors that they were the judges of the facts in issue. The court also instructed the jury that the credibility of the witnesses and the weight to be given their testimony were matters specially within their province to determine, and that the testimony of a police officer was entitled to no special privilege. Finally, the jury was instructed that the state bore the burden of proving every essential element of the crimes charged beyond a reasonable doubt. Furthermore, with reference to the jury’s function, the trial court defined the term “physical injury” for the jury, which would have been unnecessary had the jury been foreclosed from independently considering the issue of whether injury occurred. Subsequently, the jury was instructed that it was necessary to find “that the defendant’s conduct resulted in the officer sustaining physical injury” in order to convict. The defendant does not contest that a physical injury was caused but does contest that he caused it. There is no basis for a finding of reversible error. The court clearly and unequivocally charged the jurors that it was their duty to find the facts, that their recollection of the facts controlled, and that the state had the burden of proving every element of the crimes charged beyond a reasonable doubt. State v. Benite, 6 Conn. App. 667, 679, 507 A.2d 478 (1986). The instructions given fairly and correctly presented the case to the jury.

V

The defendant’s final claim of error concerns the requirement, under the sixth amendment to the United States constitution, applicable to the states through the fourteenth amendment, that the verdicts of six member juries be unanimous. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979). The defendant claims that the trial court’s charge on assault on a peace officer “judicially sanctioned a non-unanimous ■verdict.” United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977). Although the defendant failed to preserve this claim at trial, we will review it under the Evans doctrine. State v. Milledge, 8 Conn. App. 119, 122, 511 A.2d 366 (1986); State v. West, 3 Conn. App. 650, 654-55, 491 A.2d 428, cert. denied, 196 Conn. 810, 494 A.2d 906 (1985).

The crime of assault on a peace officer is defined in four subsections to General Statutes § 53a-167c. Two of the subdivisions, § 53a-167c (a) (1) and (a) (2), are involved in this case. The trial court initially instructed the jury that the defendant was charged with violating subsection (a) (1), which provides: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonable identifiable peace officer . . . from performing his duty, (1) he causes physical injury to such peace officer . . . .’’Subsequently, the trial court informed the jury that he had omitted a portion of the statute and instructed the jury that the defendant was also charged, with violating subsection (a) (2), which provides: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonable identifiable peace officer . . . from performing his duty . . . (2) he throws or hurls, or causes to be thrown or hurled, any rock, bottle, can or other article, object or missile of any kind capable of causing physical harm, damage or injury, at such peace officer . . . .’’In the general instructions, the jurors were told that their verdict must be unanimous. In response to a jury question, both subdivisions of § 53a-167c were stated again to the jury. The trial court also explained that the element of intent applied to both subsections but that it was not necessary that the elements of both subsections be found in order to convict.

The defendant claims that, in light of the fact that the verdict was a general one, his right to a unanimous verdict was violated because the trial court failed to instruct the jurors that they must unanimously agree as to which of the two statutory subsections they believed the defendant had violated in order to find him guilty of assault on a peace officer. In support of his claim, the defendant relies on the Fifth Circuit Court of Appeals decision in United States v. Gipson, supra.

In Gipson, the government charged the defendant with selling or receiving a stolen vehicle moving in interstate commerce in violation of 18 U.S.C. § 2313. The trial court instructed the jurors that they need not agree on which of the six activities prohibited by the statute (receiving, concealing, storing, selling, bartering, or disposing of a stolen vehicle) the defendant had committed. The Court of Appeals reversed on the ground that the instructions effectively denied the defendant of his right to a unanimous verdict. The rationale articulated in Gibson was that the federal statutory offense prohibited two distinct types of conduct: (1) the act of keeping the vehicle, defined as receiving, concealing, or storing; and (2) the act of marketing the vehicle, defined as selling, bartering and disposing. The court noted that the prosecution had presented evidence showing that the defendant had committed each of the six acts. Because the two groups of acts were conceptually distinct, the court concluded that “a jury finding of the actus reus element of the offense would not be ‘unanimous’ if some of the jurors thought that the defendant committed only an act in the first conceptual grouping while others believed he committed an act only in the second.” United States v. Gipson, supra, 458. Under such circumstances, the jurors should be instructed that they must unanimously agree on the same alternative.

Both this court and our Supreme Court have implicitly adopted the holding and rationale of Gipson; see State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984); State v. Benite, supra, 674; State v. West, supra; and have clarified the Gipson rule in this state. Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act. State v. Benite, supra, 674-75.

Applying this rule, we conclude that the first condition is not satisfied; the two acts which will expose an individual to punishment for assault on a peace officer are not, on the facts of this case, conceptually distinct from one another. The conduct prohibited by General Statutes § 53a-167c (a) (1) is causing physical injury to a peace officer with the intent to prevent the officer from performing his duty. This subsection requires that the defendant inflict bodily injury. He need not, however, have any bottle or object. In contrast, § 53a-167 (a) (2) prohibits an individual from throwing or causing to be thrown a bottle or any other object capable of inflicting harm at a peace officer with the intent to prevent the officer from performing his duty. This subsection requires that a bottle or other object be thrown at a police officer but it does not require that any actual injury result. Although there are differences between the two subsections of § 53a-167c, there was no possibility that the jury was misled in this case. There could be no dispute that the jury agreed on essentially what conduct the defendant had committed. Compare State v. Benite, supra, 675.

The only evidence of physical injury presented by the prosecution concerned a head injury inflicted when Officer Stacoffe was struck by a bottle. Any juror who may have concluded that the defendant caused physical injury also must have found that the defendant threw the bottle. Thus, the verdict of guilty on the assault charge necessarily encompassed unanimity at least with respect to subsection (a) (2) of § 53a-167c. No juror could have reasonably found that the defendant caused injury without also finding that the defendant threw the bottle. We emphasize the point that the defendant has conceded in his brief that the conviction for assault on a peace officer must necessarily have been predicated upon that conduct of the defendant which involved throwing a beer bottle at the officers. Therefore, unlike Gipson, the evidence and jury charge did not permit “significant disagreement among the jurors as to what [the defendant] did.” United States v. Gipson, supra, 458-59. In this case, therefore, these subsections were not conceptually distinct. We hold that the defendant’s right to a unanimous jury verdict as to the crime of assault on a peace officer was not violated.

There is error in Appeal No. 4132, the judgment is set aside as to the defendant’s conviction of the crime of interference with an officer and the case is remanded to the trial court with direction to render judgment for the defendant on that count. There is no error in Appeal No. 4153.

In this opinion the other judges concurred.

       In a separate appeal, Appeal No. 4153, the defendant claims error in the trial court’s order revoking his probation and imposing the originally suspended one-year term. Both the defendant and the state concede that the order revoking the probation need be reversed only if the defendant’s conviction for assault on a peace officer is reversed. Because we do not disturb the defendant’s conviction for assault on a peace officer on this appeal, we need not address the issue of revocation of the defendant’s probation.

       Although the defendant relies on both the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of his federal and state constitutional claims. We decline to undertake such analysis. See State v. Foshay, 12 Conn. App. 1, 14 n.10, 530 A.2d 611 (1987).

       Although the record indicates that a motion for a bill of particulars was prepared by the defendant, there is no indication that the motion was filed with the court.

       The short form information simply charged violation of the applicable •statute. A redacted information in the trial court file specified that the assault on a peace officer violated either General Statutes § 53a-167c (a) (1) or (a) (2).

       The short form information alleged violation of General Statutes § 53a-181. The trial court, however, instructed the jury only on § 53a-181 (6).

       In such a case, there would also be no error because consistency in verdicts is not necessary. State v. Daniels, 13 Conn. App. 133, 136, 534 A.2d 1253 (1987).

       In his brief, the defendant argues: “[T]here were two separate acts of the defendant giving rise to criminal liability — the throwing of the bottle and the subsequent physical struggle or resistance to apprehension. Each of those two actions constituted either intentional conduct or reckless conduct, but not both. ‘The law [cannot] imply two different and conflicting intents from the same act.’ People v. Werner, 29 Cal. App. 2d 126, 84 P.2d 168, 171 (1938) .... Due to their mutually exclusive mental-state elements, it was illogical, unreasonable, and contradictory for the jury to convict the defendant on both charges (based on the same conduct) in the following groups: (1) assault on a peace officer and reckless endangerment; (2) assault on a peace officer and breach of peace (if breach conviction premised on reckless conduct) . . . (3) reckless endangerment and breach of peace (if breach conviction premised on intentional conduct); (4) reckless endangerment and interfering with an officer. . . . (5) breach of peace (premised on reckless conduct) and interfering with an officer . . . .”

       The defendant also claims that the trial court erred in its instructions to the jury on the crime of interfering with an officer in violation of General Statutes § 53a-167a. Because we held previously that the conviction of the crime of interfering with an officer must be reversed as it is a lesser included offense of the crime of assault on a peace officer in violation of General Statutes § 53a-167c, this issue has become moot. The defendant further claims that the trial court erred in its instructions to the jury permitting it to render inconsistent verdicts. We disposed of this issue earlier in this opinion.

       The trial court instructed the jury: “It is my right to make comments to you as to the weight of the evidence, as to whether or not it is proper for you to find certain facts from the evidence. But where I do undertake to make such comments, they are merely suggestive for you to approve or disapprove. . . . My chief concern with the facts is to refer to them should I . . . feel it necessary in order to make clear to you the application of the relevant rules of law. If I do refer to certain facts or evidence, you are not to assume that I mean to emphasize those facts or that evidence . . . and . . . you must not limit your consideration only to the facts that I relate to you. Should I not mention any evidence, you will supply it from your own recollection. And should I incorrectly state any evidence, you will correct my error and apply your own recollection. . . . It is only your own recollection of the facts and evidence which should have weight in your deliberations.”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Kevin Robinson
    (4686)
    Daly, Bieluch and Foti, Js.
    Argued February 16
    decision released April 5, 1988

      John R. Williams, for the appellant (defendant).

      Marcia B. Smith, assistant state’s attorney, with whom, on the brief, was John A. Connelly, state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). The defendant claims that as a matter of law the state failed to prove the defendant used force, an essential element of the crime, and that the court erred in refusing to charge the jury that sexual assault in the fourth degree, General Statutes § 53a-73a, is a lesser included offense of sexual assault in the first degree. We find no error.

The jury could reasonably have found the following facts. At the time of the assault the victim was a resident at a halfway house for psychiatric patients, having recently been discharged from Fairfield Hills State Hospital, where she had been treated for anxiety, depression and suicidal tendencies. On the evening of the assault she asked the defendant, a high school friend, to drive her to a meeting of the Naugatuck Ambulance Corps where the victim and the defendant had been volunteers. After the meeting, the defendant asked the victim if she wanted to “ride around.” She agreed to “ride around” and after a period of time the defendant drove down a dirt road and parked. The defendant began kissing the victim, she demanded that he stop and that he return her to the halfway house. The defendant, however, pulled up the victim’s blouse and put his mouth on her breast at which point she “froze.” The defendant proceeded to remove the victim’s pants and succeeded in having vaginal intercourse with her. The victim testified that she told him to stop and attempted, unsuccessfully, to push him away.

The defendant’s first claim is that the state failed to offer sufficient proof on the element of force for the jury to convict him of sexual assault in the first degree beyond a reasonable doubt and therefore erred in denying his motion for acquittal. In particular, the defendant claims that no force was required because the victim “froze and offered no resistance” until after penetration had occurred. Although this claim was not properly preserved at trial, we will review it under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973) and State v. Thurman, 10 Conn. App. 302, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), as it raises claims of constitutional proportions; In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); and is adequately supported by the record.

The standard that applies when a jury verdict is challenged for insufficiency of the evidence is well settled. The issue is whether the jury could reasonably have concluded, upon the facts established and inferences reasonably drawn therefrom, that the defendant was guilty beyond a reasonable doubt. State v. Baskins, 12 Conn. App. 313, 316, 530 A.2d 663 (1987). “The evidence must be given a construction most favorable to sustaining the jury’s verdict.” State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985); see State v. Monk, 198 Conn. 430, 432, 503 A.2d 591 (1986). Every element of the crime charged must be proved and, although it is in the province of the jury to draw logical inferences from the facts proven, they may not resort to speculation. State v. Baskins, supra.

“ ‘We do not sit as a juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.’ State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). ‘ “We cannot retry the facts or pass upon the credibility of the witnesses.” Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).’ State v. Penland, 174 Conn. 153, 158, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).” State v. Monk, supra, 433.

The state was required, in this case, to prove that the defendant compelled the victim to engage in sexual intercourse through the “use of force.” The element of “use of force” is a question of fact for the jury. State v. Monk, supra; State v. Kish, 186 Conn. 757, 766-67, 443 A.2d 1274 (1982). The victim testified that when the defendant began to kiss her she told him to stop and to take her home. The defendant, however, pulled up her shirt and put his mouth on her breast; she testified that at this moment she “froze.” She testified, further, that he then removed her pants and forced himself upon her telling her he knew it would hurt. She told him to stop and attempted, unsuccessfully, to push him off of her.

We conclude that these facts cannot be distinguished from those in State v. Kish, supra, where our Supreme Court found sufficient evidence of force to uphold the jury’s verdict. Id., 767. The trial court, therefore, did not err in refusing to grant the defendant’s motion for acquittal.

The defendant’s second claim is that the court erred in refusing to charge the jury that sexual assault in the fourth degree is a lesser included offense of sexual assault in the first degree. We cannot reach the merits of this claim as the defendant failed to comply with the rule of practice which requires that he articulate the legal and factual basis for his requested charge. Practice Book § 854. The defendant submitted two written requests to charge the jury on a lesser included offense, neither of which complied with § 854. Our decision, therefore, is controlled by State v. Ostroski, 201 Conn. 534, 518 A.2d 915 (1986), and State v. Merritt, 11 Conn. App. 628, 528 A.2d 863 (1987).

We note at the outset that a defendant does not have a fundamental constitutional right to a jury instruction on a lesser included offense. State v. Ostroski, supra, 557; State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

In State v. Whistnant, our Supreme Court concluded that a defendant is entitled to an instruction on a lesser offense only if the following conditions are met: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id., 588.

A proposed instruction on a lesser included offense is not appropriate unless made in compliance with Practice Book § 854. State v. McIntosh, 199 Conn. 155, 158, 506 A.2d 104 (1986). Practice Book § 854 provides: “[Rjequests . . . shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. . . .” (Emphasis added.) See State v. Ostroski, supra, 558.

An appropriate instruction under State v. Whistnant must include a complete statement of the essential facts that would justify the court charging as requested. State v. Merritt, supra, 631. The defendant’s request contains no facts or propositions of law upon which the court could justify giving the charge requested. We conclude, therefore, that the court did not err in refusing to give the charge of lesser included offense. Nor is there merit to the defendant’s claim that we are precluded from upholding the trial court’s ruling because the state’s objection to the charge was based on the third prong of State v. Whistnant, rather than the first. Practice Book § 854 and the first prong of State v. Whistnant, impose an affirmative duty on the defendant which is neither unreasonable nor novel. State v. Merritt, supra, 632. This duty is not optional, nor can it be waived by the state. The defendant must provide the trial court with the factual and legal basis for the charge before an appellate court can find error in the court’s refusal to give the charge as requested. In this case, the trial court did not err in refusing the defendant’s request to charge on sexual assault in the fourth degree.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force, against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”
      General Statutes § 53a-65 (7) defines “use of force” as “(A) Use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.”

       General Statutes § 53a-73a provides in relevant part: “A person is guilty of sexual assault in the fourth degree when: . . . (2) such person subjects another to sexual contact without such other person’s consent.”

       Although the defendant took the stand and testified that he did not engage in any intimate contact with the victim, he contends that even if the jury completely disbelieved his testimony, at most, he is guilty of sexual assault in the fourth degree based on the victim’s testimony.

       The defendant’s first request to charge stated: “Although the defendant has been specifically charged with Sexual Assault in the First Degree, the very nature of this offense under our penal code is such that it may include the elements of the crime of Sexual Assault in the Third Degree and Sexual Assault in the Fourth Degree. Accordingly, if you find that the proof is not sufficient to justify a conviction of the crime charged, you must consider whether it is sufficient to establish, beyond a reasonable doubt, his guilt of Sexual Assault in the Third Degree. Of course, if you find him guilty of the more serious crime of Sexual Assault in the First Degree you need go no further in your deliberation. Likewise, if you find the proof is not sufficient to justify a conviction of the crime of Sexual Assault in the Third Degree, you must consider whether it is sufficient to establish beyond a reasonable doubt his guilt of the lesser offense of Sexual Assault in the Fourth Degree.”
      The defendant’s second request to charge stated: “To sum up, it is your duty to decide whether the accused is guilty of the crime of Sexual Assault in the First Degree, or Sexual Assault in the Third Degree, or Sexual Assault in the Fourth Degree, or whether he is not guilty. If you find the accused committed the crime of Sexual Assault in the First Degree, then your verdict will be simply guilty as charged. If you find that instead of Sexual Assault in the First Degree, Sexual Assault in the Third Degree was committed, your verdict will be guilty of Sexual Assault in the Third Degree. If you find that the accused did not commit either a Sexual Assault in the First Degree or Third Degree but did commit Sexual Assault in the Fourth Degree your verdict will be guilty of Sexual Assault in the Fourth Degree. Then, of course, if you conclude that the accused did not commit Sexual Assault in any degree, your verdict will be not guilty.”


author: Bieluch, J.

text:
    Gloria Licari et al. v. Donald Blackwelder et al.
    (3968)
    Borden, Bieluch and O’Connell, Js.
    Submitted on briefs November 13, 1987
    decision released April 5, 1988

      Joseph M. Brophy filed a brief for the appellants (defendants).

      Ridgely W. Brown and Heather M. Brown filed a brief for the appellees (plaintiffs).
   Bieluch, J.

This is an appeal by the defendants from the judgment of the trial court awarding damages to the plaintiffs for breach of the defendants’ duty as real estate brokers to find a buyer for the plaintiffs’ property at the best possible price, and for acting improperly in dealing for themselves to the financial loss of the plaintiffs. The defendants claim that certain of the court’s factual findings were not substantiated by sufficient evidence, and that some of the court’s conclusions were not only unsupported by the facts of the case, but also were irrelevant to the cause of action brought by the plaintiffs and therefore were not issues properly before the court. Our review of the transcript and record in this case reveals that the court had before it sufficient evidence on which to base its findings, and that the court’s conclusions were fully supported by the facts and the law and were relevant to the issues presented. We therefore find no error.

The trial court found the following facts. The six plaintiffs are brothers and sisters who inherited from their parents the family home and property in question located in Westport. The plaintiffs, whom the court found to be “unsophisticated lay people with no extensive dealings in real estate,” decided to sell the property in 1978. The plaintiffs had no real knowledge as to the actual or potential value of their inherited real estate, which was located in a neighborhood of mixed residential and commercial properties at a time of changing property values. Upon the recommendation of a neighbor, the plaintiffs contacted Robert Schwartz, a Norwalk real estate broker, for guidance and assistance in the sale of their property.

Schwartz consulted with the real estate agency of the defendants Donald Blackwelder and Hannah Opert, Westport brokers experienced as to the marketing and values of property in the area of the plaintiffs’ home. The defendants and Schwartz discussed several prospective clients generated by the defendants who might be interested in various listings held by Schwartz. The defendants and Schwartz also agreed to a “co-broke arrangement” under which they would share the real estate listings and divide the commissions evenly if one of the defendants’ prospective clients purchased real estate listed by Schwartz. Thereafter, Opert asked Schwartz to secure a listing on the plaintiffs’ property so that it could be shown to a prospective buyer. On October 18,1978, Schwartz obtained an exclusive twenty-four hour right to sell the plaintiffs’ real estate at a price of $125,000, and the property was immediately shown to the defendants’ prospective buyer by a sales agent employed by Schwartz.

Within the twenty-four hour listing period obtained by Schwartz, the defendants made their own offer of $115,000 for the plaintiffs’ property, which was accepted by the plaintiffs. The defendants did not negotiate on behalf of or for the plaintiffs with the potential buyer secured by them, and did not allow for a reasonable period of time to expire for such negotiations before they made their own personal offer. The defendants also did not disclose to the plaintiffs their understanding of the potential value that the plaintiffs’ property might have to other buyers. The plaintiffs, therefore, believed that they had sold their property at its true market value. On December 29,1978, the plaintiffs transferred title to the premises to the defendants upon payment of $115,000 as follows: cash in the amount of $11,500 and a purchase money mortgage in the amount of $103,500 from the purchasers.

The plaintiffs were led to believe that the defendants would occupy and use the property. The defendants neither took possession nor contracted for any improvements to the property. Instead, immediately upon signing the contract to buy the plaintiffs’ property for $115,000, the defendant Opert contracted on behalf of her partnership to sell the home to another buyer for the price of $160,000. This potential buyer, a neighbor of the plaintiffs, was previously known by them to be interested in the property, but the plaintiffs had instructed Schwartz not to contact him. Title from the defendants passed to this buyer on January 4,1979, six days after its purchase from the plaintiffs, for $160,000, a gain to the defendants of $45,000 on their cash investment of $11,500. Their purchase money mortgage held by the plaintiffs for six days was paid and released at the second title transfer.

The plaintiffs’ revised complaint in two counts claimed first, that the defendants breached their duty to the plaintiffs by withholding from them information of other negotiations with potential buyers for the purchase of the plaintiffs’ property at a higher price, and second, that the defendants intentionally misrepresented the identities of the serious prospective buyers in order to mislead the plaintiffs into selling the property to the defendants at a lower price.

The court, from the testimony and exhibits offered during the trial, found that “the more credible and weightier evidence supported] an ultimate fact conclusion that the defendants were obligated to act on behalf of the best interest of the plaintiffs.” This obligation, the court concluded, “imposed upon the defendants the duty to find a buyer for the property at the best price to the plaintiffs based upon the defendants’ knowledge, advice and information concerning all material facts affecting the property in question.” The court also found that the defendants not only breached a duty they owed to their own prospective client, but that “they also acted incorrectly in dealing for themselves at the expense of the plaintiffs.” The defendants’ obligation to the plaintiffs, the court held, was the result of the defendants’ relationship with Schwartz, the listing broker with whom they had an agreement “to split Mr. Schwartz’s commission on the sale to the defendants.” Although it found that the plaintiffs had not proven any actual fraud, the court did find that the defendants’ failure to use “reasonable efforts on behalf of the plaintiffs,” and their own personal offer without disclosure of material facts affecting the plaintiffs’ property rendered the defendants’ “clear profit” of $45,000 ‘ ‘unconscionable. ’ ’

The defendants appeal from the judgment rendered in favor of the plaintiffs awarding $45,000 plus legal interest from January 4, 1979, with taxable costs.

The defendants’ claims on appeal begin with an argument that the evidence presented during the trial was insufficient to substantiate several of the court’s factual findings. Specifically, the defendants claim that the court erred in finding (1) that the plaintiffs were unsophisticated lay people with no extensive dealings in real estate, (2) that the plaintiffs had no real knowledge as to actual or potential value of their inherited real estate, (3) that Schwartz consulted with the defendants as to marketing and prices of properties in the neighborhood of the plaintiffs’ property in order to determine the suggested listing price of $125,000, (4) that the defendants asked Schwartz to show the plaintiffs’ property to one of their prospective clients, (5) that the defendants made their own personal offer before allowing a reasonable period of time to expire for negotiations to take place between prospective buyers and the plaintiffs, (6) that the defendants did not disclose to the plaintiffs their understanding of the potential value that the plaintiffs’ property might have to others in the neighborhood, (7) that the defendants led the plaintiffs to believe that they would occupy and use the property, and (8) that the defendant Opert, on signing the contract to buy the plaintiffs’ property for $115,000, immediately contracted for its sale to the ultimate buyer at a price of $160,000.

The defendants argue that none of these factual findings was supported by sufficient evidence, and that some of the court’s conclusions were irrelevant to the issues presented to the trial court. Regardless of how these claims of error are presented, they are merely attacks on the factual findings of the trial court. The defendants are asking this court to retry the case. We cannot.

“Our review of the trial court’s factual findings is limited solely to the determination of whether they are supported by the evidence or whether, in light of the evidence and pleadings in the whole record, they are clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Fortier v. Laviero, 10 Conn. App. 181, 183, 522 A.2d 313 (1987); Cook v. Nye, 9 Conn. App. 221, 224, 518 A.2d 77 (1986). The function of an appellate court is to review, and not retry, the proceedings of the trial court. ‘ “We cannot retry the facts or pass upon the credibility of the witnesses.” Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . . .’Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 220; Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987); Cook v. Nye, supra.” Petti v. Balance Rock Associates, 12 Conn. App. 353, 357, 530 A.2d 1083 (1987).

It is not within the power of this court to find facts or draw conclusions from primary facts found by the trial court. As an appellate court, we review the trial court’s factual findings to ensure that they could have been found “legally, logically and reasonably.” Appliances, Inc. v. Yost, 186 Conn. 673, 678, 443 A.2d 486 (1982); Hallmark of Farmington v. Roy, 1 Conn. App. 278, 280-81, 471 A.2d 651 (1984). Our review of the record discloses ample support for the court’s factual findings. There is no merit to the defendants’ claim to the contrary.

The defendants also challenge the court’s conclusion that, through their relationship with the plaintiffs’ bioker, Schwartz, the defendants had certain obligations toward the plaintiffs. The defendants argue that by defining the scope of the defendants’ duty towards the plaintiffs, the court went beyond the specific allegations contained in the plaintiffs’ complaint. We find no merit in the defendants’ challenge to this aspect of the judgment of the trial court.

To the extent that the defendants’ claims rest on grounds of evidentiary insufficiency, we restate the common refrain as to our role as an appellate court. An appellate court is limited in its review of factual findings to a determination of whether such facts are supported by the evidence, or whether, in light of the evidence presented and the whole record, they are clearly erroneous. Practice Book § 4061; Petti v. Balance Rock Associates, supra.

The court’s finding that the defendants had an obligation to the plaintiffs through the relationship the defendants had with Schwartz is also subject to this standard of review. Whether the defendants were agents of the plaintiffs is a question of fact. Cohen v. Meola, 184 Conn. 218, 220, 439 A.2d 966 (1981); Teris v. Shearson Hayden Stone, Inc., 5 Conn. App. 691, 693, 501 A.2d 1228 (1985). In addition, “[t]he relation need not arise from an express appointment and an acceptance, but is often established from the words and conduct of the parties and the circumstances of the particular case.” Kurtz v. Farrington, 104 Conn. 257, 269, 132 A. 540 (1926). See also Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982). The trial court’s finding that the defendants were obligated to the plaintiffs through the defendants’ relationship with Schwartz was not in error.

The defendants also maintain that the court erred in its findings as to the manner in which they breached their duty to the plaintiffs. Specifically, the defendants argue that because the grounds for the plaintiffs’ complaint were limited to allegations that the defendants breached a duty to disclose prior negotiations and offers on the plaintiffs’ property, and that the defendants had misrepresented the identities of other potential buyers in order to induce the plaintiffs to sell to them, the court’s findings went beyond these specific allegations. We do not agree.

The facts found by the court were sufficient to support its conclusion that the defendants had breached a duty owed to the plaintiffs, and that they had intentionally misrepresented certain facts to induce the plaintiffs to sell their property to them. Onee the court had made these requisite threshold findings of fact, the law of this state and general principles of law support its conclusions based on these findings, contrary to the assertion of the defendants.

A real estate broker is a fiduciary. Kurtz v. Farrington, supra. As such, he is required to exercise fidelity and good faith, and “cannot put himself in a position antagonistic to his principal’s interest”; Ritch v. Robertson, 93 Conn. 459, 463, 106 A. 509 (1919); by fraudulent conduct, acting adversely to his client’s interests, or by failing to communicate information he may possess or acquire which is or may be material to his principal’s advantage. A real estate broker acting as a subagent with the express permission of another broker who has the listing of the property to be sold is under the same duty as the primary broker to act in the utmost good faith. Robertson v. Chapman, 152 U.S. 673, 14 S. Ct. 741, 38 L. Ed. 592 (1893); see 12 Am. Jur. 2d 837-38, Brokers § 84.

This rule requiring a broker, or his subagent, to act with the utmost good faith towards his principal places him under a legal, obligation to make a full, fair and prompt disclosure to his employer of all facts within his knowledge which are, or may be material to the matter in connection with which he.is employed, which might affect his principal’s rights and interests, or his action in relation to the subject matter of the employment, or which in any way pertains to the discharge of the agency which the broker has undertaken. Upon hearing that a more advantageous sale or exchange can be made, the facts concerning which are unknown to the principal, the broker has the duty to communicate these facts to the principal before making the sale. A failure to do so renders the broker liable to the principal for whatever loss the latter may suffer as a consequence thereof and precludes recovery of a commission for his services. 12 Am. Jur. 2d 842, Brokers § 89.

Our state has codified these principles of law in its real estate licensing law; General Statutes §§ 20-311 through 20-329bb; and in the regulations it has promulgated concerning the conduct of real estate brokers and salespersons. Regs., Conn. State Agencies §§ 20-328-1 through 20-328-18. Section 20-320 of the General Statutes provides for the suspension or revocation of a real estate license, as well as the levy of a fine, where a broker or salesperson has violated the code of conduct generally set out in the statute. Included in thé proscribed conduct are the following: “(1) Making any material misrepresentation; (2) making any false promise of a character likely to influence, persuade or induce; (3) acting for more than one party in a transaction without the knowledge of all parties for whom he acts . . . [and] (11) any act or conduct which constitutes dishonest, fraudulent or improper dealings.”

The trial court did not err in finding that the essential claims of breach of duty and intentional misrepresentation set out in the plaintiffs’ complaint were proven by the facts presented, nor in finding that the conduct of the defendants entitled the plaintiffs to an award of damages. The defendants’ conduct fell within the proscriptions of the general principles of law regarding the fiduciary relationship of a broker to his principal, as well as of the code of conduct required by the law of this state in General Statutes § 20-320.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are Gloria Licari, Antoinette Rietano, Angeline Macaluso, Jane Mobilio Douchette, Nicholas DeMaria, and Jack DeMaria.

       “A purchase money mortgage is ‘one taken back by the seller for part of the purchase money.’ R. Kratovil & R. Werner, Modern Mortgage Law and Practice (2d Ed. 1981) § 19.01.” State v. Champagne, 206 Conn. 421, 423 n.4, 538 A.2d 193 (1988).


author: Borden, J.

text:
    Dennis E. Neumann v. Zoning Board of Appeals of the Borough of Stonington
    (5108)
    Dupont, C. J., Boeden and O’Connell, Js.

      Argued December 1, 1987
    decision released April 5, 1988

      Eugene C. Cushman, for the appellant (plaintiff).

      Timothy D. Bates, for the appellee (defendant).
   Borden, J.

The plaintiff appeals from the judgment of the trial court dismissing his appeal from a decision of the defendant, the zoning board of appeals of the borough of Stonington. That decision reversed a decision of the Stonington planning and zoning commission (commission) granting the plaintiff’s application for a zoning permit to construct a single family dwelling on a substandard lot owned by the plaintiff. The plaintiff claims that the trial court erred by concluding that his property is not a “lot” within the meaning of the applicable zoning regulations of the borough, and thus was not entitled to a permit for construction of a residence on a substandard lot pursuant to those regulations. We find no error.

The plaintiffs property in question, known as the “wharf property,” and also known as No. 96V2 Water Street, fronts on Water Street. It stretches westerly down to the waterfront and continues as a wharf out into the Stonington harbor. At the westerly end of the property is a structure, identified on the plaintiffs map as a one-story house, which the plaintiff proposes to replace with a larger, single family house. The property does not conform to the borough’s zoning regulations due to inadequate frontage on Water Street.

The plaintiff acquired the property in 1984 from Muriel Bartram, who had acquired it in 1964. As of December 14,1981, the effective date of the borough’s zoning regulations, Bartram owned both the wharf property and the parcel adjacent to it to the south, known as No. 96 Water Street and also known as the “homestead property,” which she had acquired in 1953. There is a single family house situated on the homestead property. Both the wharf property and the homestead property have always been described separately in deeds, and have been taxed separately. There was evidence before the commission and the board, however, that as of December 14, 1981, and throughout her common ownership of the two parcels, Bartram used the two parcels in fact as one unit, the structure located on the wharf .property being treated as an accessory structure to the house located on the homestead property.

The issues on this appeal revolve around two sections of the borough’s zoning regulations. Section 3.8, entitled “Substandard Lots,” provides in pertinent part: “Any lot which was separately described in the latest deed of record immediately prior to the effective date of these Regulations, . . . which does not meet the requirements of these Regulations as to lot area and/or frontage, may be utilized for any use permitted in the zone in which such lot is located . . . .” Section 2.58 defines a “lot” as “[o]ne or more adjacent parcels of land under single ownership to be used, developed, or built upon as a unit.”

The plaintiff claimed to the defendant and to the trial court that he was entitled to a permit for the wharf property because it was a “lot which was separately described in the latest deed of record immediately prior to the effective date of” the regulations, and that it thus came within the provisions of § 3.8. The defendant concluded, however, and the trial court agreed, that the wharf property and the homestead property merged by reason of their use as a unit as of the effective date of the regulations, and that, therefore, the wharf property alone was not a “lot which was separately described” within the meaning of § 3.8. (Emphasis added.)

The plaintiff first claims that the court erred because the regulations do not incorporate the doctrine of merger. He argues that the defendant’s position deprives him of his vested right in a nonconforming use. He also argues that because zoning regulations, being in derogation of the common law, must be strictly construed, any merger doctrine must be clearly stated in the regulations, and that, therefore, the merger doctrine is inapplicable in this case because the regulations do not clearly incorporate it. We disagree.

The plaintiffs reliance on a claim of deprivation of a vested right in a nonconforming use; see, e.g., Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 408 A.2d 243 (1979); simply misses the mark. The plaintiff did not present this case to the defendant on a claim of nonconforming use. His claim was that his application fell within the meaning of § 3.8 regarding substandard lots. Viewed solely as a separate lot prior to the adoption of the zoning regulations, the wharf property did not thereby attain nonconforming use status at the adoption of those regulations. See Sherman-Colonial Realty Corporation v. Goldsmith, 155 Conn. 175, 183-84, 230 A.2d 568 (1967). Furthermore, § 8 of the regulations covers nonconforming uses, and it is clear from § 8.2 that a nonconforming use cannot be extended, enlarged or moved to a part of a parcel where the use did not previously exist. The plaintiffs proposed, larger house would clearly fail to meet those restrictions. The plaintiff has not presented us with any authority, nor are we aware of any, that gives him a vested right to use a nonconforming lot by enlarging a building thereon without regard to restrictions placed on such use by applicable zoning regulations.

We also reject the plaintiffs argument that § 2.58 of the regulations does not apply to his property because that section does not specifically state that under its provisions a “merger” of the two parcels takes place. It is true that some zoning regulations which deal with the question of the permitted use of nonconforming lots refer specifically to the merger doctrine. See, e.g., Torsiello v. Zoning Board of Appeals, 3 Conn. App. 47, 48-49 n.2, 484 A.2d 483 (1984). (“Since the time the lot was caused to be non-conforming by virtue of a revised zoning regulation, the lot has never been utilized in conjunction with adjacent property so that the identity of the lot in question has not merged with adjacent property.” Milford Zoning Regulations § 6.4.2.[3].) This does not mean, however, that such a regulation must, in talismanic fashion, use the word “merger.”

Zoning laws generally have dealt with the issue presented by this case in a manner consistent with the defendant’s position. Under many zoning ordinances, where a lot became substandard by virtue of the passage of more restrictive zoning regulations, and where that lot was at the time of the passage of that legislation under common ownership with that of an adjacent lot, such zoning regulations have refused to continue to recognize the separate validity of that lot. “The common exception of lots which were recorded prior to the effective date of a restrictive ordinance is limited to lots which were in single and separate ownership on that date. Under such a provision, an owner is entitled to an exception only if his lot is isolated. If the owner of such a lot owns another lot adjacent to it, he is not entitled to an exception. Rather, he must combine the two lots to form one which will meet, or more closely approximate, the frontage and area requirements of the ordinance.” (Footnote omitted.) 2 Anderson, American Law of Zoning (3d Ed.) § 9.67. It is true that “contiguous land all owned by the same proprietor does not necessarily constitute a single lot.” Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 632, 345 A.2d 544 (1974). Whether a zoning ordinance requires that two commonly owned and adjacent lots be merged in this fashion does not, however, depend “on the mere absence of a merger clause. That intent can best be ascertained from an examination of the entire ordinance.” Hill v. City of Manhattan Beach, 6 Cal. 3d 279, 284, 98 Cal. Reptr. 785, 491 P.2d 369 (1971).

Although the borough zoning regulations may well have more clearly delineated the relationship between §§2.58 and 3.8 under the circumstances present here, an examination of the entire ordinance leads us to conclude that the word “lot” as used in § 3.8 must be read to refer to the general definition of “lot” in § 2.58, and that definition incorporates the doctrine of merger. Section 2.58 defines “lot” as “fojne or more adjacent parcels of land under single ownership to be used, enlarged, or built upon as a unit. ” (Emphasis added.) The regulations also define a “Lot of Record” as “a lot for which a deed has been recorded”; § 2.66; and they also specifically define the related terms, “Lot Area”; § 2.59; “Lot Building”; § 2.60; “Lot Coverage”; § 2.61; “Lot Lines”; § 2.62; “Lot Line, Front”; § 2.63; “Lot Line, Rear”; § 2.64; and “Lot Line, Side.” § 2.65. “Under the definitions given in the ordinance, ‘lot’ is the general term”; Corden v. Zoning Board of Appeals, 131 Conn. 654, 661, 41 A.2d 912 (1945); the definition of which must be read into the use of the term in the rest of the regulations. Otherwise, it would be difficult to perceive a reason for including in the regulations a specific definition of “lot” and then using that defined term throughout the regulations. The plaintiffs position would require us to ignore the definition of “lot” in § 2.58 when reading the term “lot” in § 3.8. This we cannot do.

That definition, applied to the facts of this case, leads to the conclusion that Bartram’s use of the wharf property in connection with the homestead property merged the two parcels. On the effective date of the zoning regulations, Bartram owned both parcels, and her use of them at that time demonstrated that they were then and were in the future “to be used ... as a unit.” § 2.58. Thus, at that time the “two adjacent parcels of land under single ownership” constituted a single “lot.” § 2.58. They could not thereafter be redivided into two lots.

This conclusion is consistent with the general goal of zoning law “ ‘to reduce nonconforming to conforming uses with all the speed justice will tolerate.’ ” Helbig v. Zoning Commission, 185 Conn. 294, 306, 440 A.2d 940 (1981), quoting Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181, 377 A.2d 280 (1977). By requiring on the effective date of the zoning regulations a focus on the actual use of the two parcels, in order to determine whether the substandard wharf property was in fact then being used as a part of the homestead property, the regulations operated to reduce a nonconforming lot to a conforming lot. This conclusion is also consistent with the approach of our Supreme Court in determining, in other but similar contexts, whether a particular parcel is a “lot” within the meaning of municipal zoning regulations. That approach has been to focus on the actual use of the parcel on the effective date of the zoning regulations. See, e.g., Schultz v. Zoning Board of Appeals, 144 Conn. 332, 130 A.2d 789 (1957); Corden v. Zoning Board of Appeals, supra, 658-64.

The plaintiff also argues, relying on Bankers Trust Co. v. Zoning Board of Appeals, supra, 634, that the existence of a right-of-way separating the two parcels precluded their merger into one lot. We decline to review this claim.

First, as the defendant rightly points out, the plaintiff did not make this claim before the commission, the defendant board, or the trial court. We ordinarily review an appeal on the theory on which it was tried in the trial court. Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984).

Second, unlike Bankers Trust Co. v. Zoning Board of Appeals, supra, 633, where there was an undisputed right-of-way in favor of the land in question and other parcels, in this case the parties are in dispute regarding the location and use of the right-of-way. The plaintiff claims that there is a right-of-way dividing the two properties for the benefit of the homestead property, the wharf property and “the lot to the north as well as for the rear portion of lot 96V2.” The defendant, however, claims that the right-of-way “runs along the northerly border of [the homestead property] to and occupying all of that portion of [the wharf property] which leads to the street,” and “serves the necessary function of a driveway for the main house” on the homestead property. Thus, the defendant claims, the right-of-way “joined the two parcels rather than splitting them up.” We cannot determine from this record where the right-of-way is located or what its function is. With respect to this claim, therefore, the defendant has not met his appellate obligation of supplying an adequate record on which to consider his claim; Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982); and this would be a particularly inappropriate case to remand for further articulation since the plaintiff did not develop these facts before the zoning authorities.

There is no error.

In this opinion the other judges concurred.

       The applicant for the permit before the commission and the defendant board was Christopher H. McLaughlin, who then owned the property in question. After certification for appeal was granted by this court and the appeal was filed, McLaughlin transferred the property and his claim in connection therewith to the named plaintiff herein, Dennis E. Neumann, and we granted Neumann’s motion to be substituted as the plaintiff. We therefore refer to Neumann as the plaintiff. Under these circumstances, the plaintiff has sustained his interest in the property throughout the course of the appeal, and is aggrieved. Compare Goldfeld v. Planning & Zoning Commission, 3 Conn. App. 172, 177, 486 A.2d 646 (1985) (where plaintiff’s interest in property terminated before judgment rendered by trial court, and no successor in interest substituted therefor, plaintiff not aggrieved).

       The plaintiff also claimed, in two assignments of error, that the trial court applied an improper scope of review to the defendant’s decision by deferring to the defendant’s interpretation of the regulations rather than interpreting the regulations itself. Subsequent to its initial memorandum of decision, however, the court further articulated its decision and made sufficiently clear that it agreed with the defendant’s interpretation of the regulations, and that it was not simply deferring to that interpretation. Thus, these two claims are without merit.