text:
    State of Connecticut v. Terrence Boyd
    (14370)
    Peters, C. J., Shea, Glass, Covello, Borden, Berdon and Santaniello, Js.

      Argued January 14
    decision released April 21, 1992

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

      Harry Weller, assistant state’s attorney, with whom, on the brief, was David Cohen, senior assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The dispositive issue in this criminal appeal is the relationship between principles of double jeopardy and the reversal of a conviction because of the insufficiency of a constitutionally mandated probable cause hearing. The defendant, Terrence Boyd, was charged with and convicted of larceny in the third degree in violation of General Statutes §§ 53a-119 and 53a-124 (a) (1), burglary in the first degree in violation of General Statutes § 53a-101 (a) (2) and felony murder in violation of General Statutes § 53a-54c,* all in connection with the 1986 murder of Ann Yiner during the burglary of her home in New Canaan. In State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990) (Boyd I), this court reversed the defendant’s felony murder conviction because of defects in his probable cause hearing and remanded the case for further proceedings. On remand, after a second probable cause hearing, the trial court, Gormley, J., found that probable cause existed to try the defendant for the offense of felony murder with the same predicate offense of burglary for which he had been previously convicted. The trial court denied the defendant’s motion to dismiss the information on grounds of double jeopardy. The defendant filed an interlocutory appeal in the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023. We affirm the denial of the defendant’s motion.

The defendant’s claim that the double jeopardy clause bars the state’s subsequent efforts to prosecute him for felony murder rests on the nature of our holding in Boyd I. We reversed the defendant’s initial conviction of felony murder because we concluded that the state, in the initial probable cause hearing, had presented insufficient admissible evidence to “warrant a person of reasonable caution to believe that the accused [had] committed the crime.” (Internal quotation marks omitted.) Id., 135-36. For this reason, we further concluded, in accordance with State v. McPhail, 213 Conn. 161, 170, 567 A.2d 812 (1989), and State v. Mitchell, 200 Conn. 323, 331, 512 A.2d 140 (1986), that the trial court in Boyd I had lacked personal jurisdiction to try the defendant for this crime. The defendant did not challenge and, consequently, we did not overturn, the defendant’s other convictions, because they did not depend on a valid probable cause hearing. The defendant maintains that prosecuting him for felony murder at this juncture, when he stands convicted of the predicate burglary offense, constitutes an impermissible successive prosecution. The linchpin of this argument is the defendant’s contention that the reversal of his felony murder conviction due to the insufficient probable cause hearing, even at his own behest, did not continue his jeopardy in relation to that crime, nor did his successful appeal of that conviction constitute a waiver, because, in the absence of personal jurisdiction, jeopardy had never attached. We disagree.

I

“The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ U.S. Const., amend. V. This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In addition, although the Connecticut constitution does not include a specific double jeopardy provision, this 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). Therefore, the due process guarantees provided by article first, § 9 of the Connecticut constitution have been held to encompass the 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).” State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert, denied, 496 U.S. 905,110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

The United States Supreme Court has explained that the guarantees of the double jeopardy clause are threefold: “[1] It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); State v. Lonergan, supra, 79. Only the second guarantee is relevant to the present inquiry.

For purposes of the second guarantee, first degree burglary, when it is the predicate offense to felony murder, constitutes the “same offense” as felony murder. State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). While the state may prosecute and punish a defendant for felony murder as well as any predicate offenses in the same trial; id. (simultaneous prosecution for robbery, burglary and felony murder); double jeopardy bars such prosecutions in successive trials. Stephens v. Zant, 631 F.2d 397, 401 (5th Cir. 1980), modified, 648 F.2d 446 (5th Cir.), cert. denied, 454 U.S. 1035, 102 S. Ct. 575, 70 L. Ed. 2d 480 (1981), rev’d on other grounds, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); see Brown v. Ohio, 432 U.S. 161, 169, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (holding that the fifth amendment “forbids successive prosecution and cumulative punishment for a greater and lesser included offense”). Consequently, it would ordinarily violate principles of double jeopardy to try a defendant for the predicate crime of burglary and then, in a successive prosecution, try him for felony murder.

Not every successive prosecution for the same offense will, however, constitute double jeopardy. As a general matter, double jeopardy usually does not bar a retrial when a defendant is convicted of an offense, but the conviction is set aside upon the defendant’s own appeal. United States v. Toteo, 377 U.S. 463, 467-68, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); United States v. Ball, 163 U.S. 662, 672, 16 S. Ct. 1192, 41 L. Ed. 300 (1896); 3 W. LaFave & J. Israel, Criminal Procedure (1983) § 24.4, pp. 85-87; 1 F. Wharton, Criminal Law (14th Ed. 1978, J. Torcia) § 363, pp. 332-34. A defendant cannot himself request that his conviction be set aside and then rely on that overturned conviction to bar a new trial. See 1 J. Bishop, Criminal Law (9th Ed. 1923) § 1003, p. 743. Two overlapping theories advanced in support of this rule are, first, that the defendant, by successfully appealing his conviction, waives any double jeopardy objection to a retrial; see Trono v. United States, 199 U.S. 521, 530-31, 533, 26 S. Ct. 121, 50 L. Ed. 292 (1905); and, second, that jeopardy continues through the appeal and into the subsequent retrial. See Price v. Georgia, 398 U.S. 323, 326, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970); Kepner v. United States, 195 U.S. 100, 134-35, 24 S. Ct. 797, 49 L. Ed. 114 (1904) (Holmes, J., dissenting); see also Greeny. United States, 355 U.S. 184, 189, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957); 3 W. LaFave & J. Israel, supra, § 24.4. These theories, known as “waiver” and “continuing jeopardy,” enable the state to retry a defendant who has appealed and has had a felony murder conviction set aside, even though a conviction for the predicate offense remains intact.

II

The defendant claims that to allow the state to try him for felony murder would constitute a successive prosecution in violation of his right against double jeopardy. His claim is founded upon the fact that he was convicted at his initial trial of burglary in the first degree, a conviction whose validity he has never challenged. This conviction, he contends, constitutes his first completed prosecution. Because we concluded in Boyd I that the trial court, in his initial prosecution, was without personal jurisdiction to try him for felony murder, he contends that it is as though he had never been tried, and, consequently, never placed in jeopardy, for that offense. From this premise, he asserts that to prosecute him now for felony murder would constitute a distinct, separate prosecution for the “same offense.”

To counter the fact that it was his own appeal that caused his murder conviction to be set aside, the defendant further contends that neither the doctrine of waiver nor that of continuing jeopardy applies. Unless there was jeopardy in the first instance, he maintains that there was no jeopardy to “continue” or to waive. The crucial question, therefore, is whether the defendant is correct that lack of personal jurisdiction arising out of a defective probable cause hearing prevented jeopardy from attaching to the felony murder charge in his initial prosecution.

To buttress his contention that jeopardy never attached, the defendant relies upon federal and state cases that stand for the proposition that an accused has not been put in jeopardy in the absence of jurisdiction. See, e.g., United States v. Ball, supra, 669 (“An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offence.”); Grafton v. United States, 206 U.S. 333, 345, 27 S. Ct. 749, 51 L. Ed. 1084 (1907) (“We assume as indisputable, on principle and authority, that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged.”); Serfass v. United States, 420 U.S. 377, 391-92, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975) (“[Jeopardy] does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of the guilt or innocence of the accused.’ . . . Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.” [Citations omitted.]); State v. Fox, 83 Conn. 286, 295, 76 A. 302 (1910) (court lacked “jurisdiction ... to render a judgment acquitting the defendants”; thus, former acquittal not bar to subsequent prosecution for same offense); State v. Benham, 7 Conn. 414, 418-19 (1829) (“an acquittal or conviction, by a court having jurisdiction, on a sufficient indictment or information, is, in all cases whatsoever, a bar” to subsequent prosecution); State v. Ferrand, 1 Root 446 (1792) (conviction for theft before a court lacking jurisdiction no bar to subsequent charge for same offense).

The nature of the connection between lack of jurisdiction and the attachment of jeopardy depends, despite the broad language of some of the opinions, on the particular jurisdictional defect that is at issue. As the commentators have aptly noted, “[jurisdiction] apparently does not refer to jurisdiction in the broadest sense of the word.” 3 W. LaFave & J. Israel, supra, § 24.1, p. 65; see also United States v. Sabella, 272 F.2d 206, 209 (2d Cir. 1959) (In discussing whether jeopardy attached where trial court lacked “jurisdiction,” the court stated “[a]s has often been pointed out, the legal lexicon knows no word more chameleon like than ‘jurisdiction.’ ”); Block v. State, 286 Md. 266, 270, 407 A.2d 320 (1979) (“[I]t is clear from Grafton [v. United States, supra,] and from many other cases, that the ‘jurisdiction’ of .the court for pin-poses of this principle of double jeopardy law means jurisdiction in the most basic sense. It does not mean that an error in the exercise of jurisdiction permits judicial proceedings to be treated as a nullity.”).

In a case closely analogous to the issue raised by the present appeal, the Supreme Court of the United States has concluded that lack of jurisdiction arising out of a defective indictment does not prevent jeopardy from attaching. In Illinois v. Somerville, 410 U.S. 458, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973), the court allowed a defendant to be retried, on a theory of manifest necessity consistent with the idea of continuing jeopardy, even though a defective indictment prompting a mistrial had deprived the trial court of “jurisdiction” under state law. Id., 460-61. Correlatively, in United States v. Ball, supra, 671, the United States Supreme Court held that jeopardy had attached so as to bar the retrial of a defendant who had been acquitted, even though a defective indictment had led to the reversal on appeal of the convictions of his codefendants. The court reasoned that a defective indictment does not prevent jeopardy-from attaching because it renders a judgment of conviction voidable rather than void. Similarly, in Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the United States Supreme Court held that jeopardy had attached to the offense for which the defendant had been acquitted despite an invalid indictment. Once again, the court reasoned that the defect at issue rendered a judgment voidable rather than void.

For double jeopardy purposes, jurisdictional defects that implicate subject matter jurisdiction have different consequences from defects such as defective indictments or invalid probable cause hearings that merely implicate personal jurisdiction. In State v. Fox, supra, the defendants were prosecuted for receiving stolen goods and were acquitted. The defendants were subsequently arrested upon an information charging them with theft arising from the same occurrence. Under statute, they could be charged with theft ás principals or as receivers. A conviction or acquittal upon one barred a prosecution charging them with the other. The defendants appealed and this court concluded that the city court in which the defendants were initially tried had lacked subject matter jurisdiction. Consequently, despite the defendants’ acquittal on charges of receiving stolen goods, the state was entitled to prosecute the defendants for theft. Id., 295; see generally Cox v. State, 412 So. 2d 354 (Fla. 1982) (trial court’s acceptance of a guilty plea was a nullity without consent of prosecuting attorney; thus, further prosecution for same offense not precluded); People v. Pankey, 94 Ill. 2d 12, 445 N.E.2d 284 (1983) (where no formal charges had been brought by state’s attorney, trial court’s acceptance of guilty plea was a nullity and did not bar prosecution for the same offense); Powers v. State, 70 Md. App. 44, 519 A.2d 1320 (1987) (where district court divested of jurisdiction over reckless driving charge, conviction in district court was a nullity and further prosecution was permissible); State v. Covington, 267 N.C. 292, 148 S.E.2d 138 (1966) (superior court lacked jurisdiction over the offense of unlawful taking of an automobile; thus, defendant’s conviction was a nullity and state not precluded from retrying defendants in court having jurisdiction). The defendants in Cox, Pan-key and Powers did not appeal their convictions. Nevertheless, in these instances, a subsequent prosecution for the same offense was not barred by the double jeopardy clause because the judgment rendered was absolutely void and of no effect. See also Block v. State, supra, 274 (“[A]s long as the court rendering a . . . verdict has jurisdiction over the offense, the verdict is a bar to further criminal proceedings on the same charge.” [Emphasis added.]).

On the basis of these federal and state precedents, we conclude that jeopardy attaches in criminal proceedings when a criminal defendant has properly been brought before a court that has subject matter jurisdiction to conduct his trial, even though an invalid probable cause hearing thereafter deprived the court of the power to continue with his trial. Since State v. Mitchell, supra, we have characterized the consequence of a defective probable cause hearing as an impairment of personal jurisdiction, not subject matter jurisdiction. State v. John, 210 Conn. 652, 665 n.8, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. McPhail, supra, 170; Boyd I, supra, 141. That characterization is consistent with the implicit understanding in Mitchell that the remedy for a defective probable cause hearing is not an acquittal but a new probable cause hearing and a new trial. Accordingly, the remand in Boyd I did not direct the trial court to render a judgment of acquittal but ordered it to conduct “further proceedings.” Boyd I, supra, 142. The reversal of the defendant’s conviction because of deficiencies in his probable cause hearing, like the reversal because of a defective indictment that resulted in a lack of personal jurisdiction in Illinois v. Somerville, supra, did not prevent the attachment of jeopardy.

Our decision that jeopardy attaches when a criminal conviction is set aside on appeal because of an invalid probable cause hearing is consistent with fundamental double jeopardy principles. Although in this case the attachment of jeopardy allows the defendant to be retried, in the case of an accused who has been acquitted, or has not appealed, the attachment of jeopardy protects him from further prosecution. This is the core value that the double jeopardy clause seeks to protect. “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, supra, 187-88.

The decision of the trial court is affirmed and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       Article first, § 8 of the Connecticut constitution, as amended, provides in pertinent part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law.”
      The fifth amendment to the United States constitution provides in pertinent part: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

       General Statutes § 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”
      General Statutes (Rev. to 1985) § 53a-124 provides in pertinent part: “(a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The value of the property or service exceeds one thousand dollars.”
      General Statutes § 53a-101 provides in pertinent part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and ... (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”
      General Statutes § 53a-54c provides in pertinent part: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”
      The defendant was also charged with, but not convicted of, larceny in the first degree in violation of General Statutes §§ 53a-119 and 53a-122 (a) (3).

       The substitute information charged that the defendant “committed the crime of burglary and, in the course of and in furtherance of such crime, he and another participant caused the death of Ann Viner.” While the state contends that the burglary charge for which the defendant was convicted is not the predicate offense to the felony murder charge, we assume the contrary for the purposes of discussing the defendant’s claim on appeal.

       Colorable claims of double jeopardy are an exception to the general rule that appeals in criminal cases must ordinarily await the final judgment that arises from the imposition of sentence. State v. Seravalli, 189 Conn. 201, 204-205, 445 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983).

       We decline the state’s invitation to revisit our holdings in State v. Mitchell, 200 Conn. 323, 331-35, 512 A.2d 140 (1986), and its progeny. The state urges us to reinstate the defendant’s conviction on the basis that those cases were wrongly decided. Our decision in State v. Boyd, 214 Conn. 132, 570 A.2d 1125 (1990), setting aside the defendant’s conviction became final when we denied the state’s motion for reargument en banc by order dated March 28,1990. That judgment is the law of the case and acts as an absolute bar to a subsequent action on the same claim. Asherman v. State, 202 Conn. 429, 440, 521 A.2d 578 (1987).

       In State v. Greco, 216 Conn. 282, 293, 579 A.2d 84 (1990), we were addressing the issue of cumulative punishment for the greater offense of felony murder as well as the lesser included offenses of robbery and burglary. We concluded that “the legislature clearly intended multiple punishments for felony murder- and the predicate offenses of robbery and burglary.” Id. Implicit in our holding in Greco is that a defendant may be prosecuted for felony murder and any predicate offenses at a single trial.

       The United States Supreme Court noted that “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” Brown v. Ohio, 432 U.S. 161, 169 n.7, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).

       When a mistrial is declared due to circumstances that make completion of the trial impossible or impractical, a new trial does not constitute double jeopardy if the mistrial was necessitated by “manifest necessity.” 3 W. LaFave & J. Israel, Criminal Procedure (1984) § 24.2 (b), pp. 70-76; see also State v. Buell, 221 Conn. 407, 414-15, 605 A.2d 539 (1992); State v. Van Sant, 198 Conn. 369, 384, 503 A.2d 557 (1986).

       The court noted that “[t]he combined operation of [the] rules of Illinois procedure and substantive law meant that the defect in the indictment was ‘jurisdictional’; it could not be waived by the defendant’s failure to object, and could be asserted on appeal in a post-conviction proceeding to overturn a final judgment of conviction.” Illinois v. Somerville, 410 U.S. 458, 460, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973).

       At common law, jeopardy was deemed not to have attached upon a defective indictment or when the court lacked jurisdiction. See 1 F. Wharton, Criminal Law (12th Ed. 1932, J. Ruppenthal) § 397, p. 560; 1 J. Bishop, Criminal Law (9th Ed. 1923) §§ 1020-1021, pp. 754-55. The United States Supreme Court in United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), departed from the common law and ruled that a defective indictment did not prevent jeopardy from attaching. In Ball v. United States, 140 U.S. 118, 11 S. Ct. 761 (1891), the case in which the United States Supreme Court reversed the judgments of the convicted defendants, the court characterized the indictment as “fatally defective” because it “was necessary that it should appear that the death transpired within a year and a day after the stroke, and the place of death equally with that of the stroke had to be stated, to show jurisdiction in the court.” (Emphasis added.) Id., 133. Although the court appeared to treat the defect as “jurisdictional” in the first Ball case, it did not do so in the second case.


source: Caselaw Access Project

author: Glass, J.

license: Public Domain

text:
    Loretta B. Watson v. David P. Watson
    (14363)
    Shea, Callahan, Glass, Borden and Berdon, Js.

      Argued December 4, 1991
    decision released April 21, 1992

      Francis J. Foley III, with whom, on the brief, was Kathleen R. Gravalec, for the appellant (plaintiff).

      Timothy D. Bates, with whom was Robert J. Cary, Jr., for the appellee (defendant).
   Glass, J.

This is an action for dissolution of marriage and for other relief brought by the plaintiff, Loretta B. Watson, against the defendant, David P. Watson. The action was commenced on November 10,1987, and a hearing was held and a judgment rendered on December 27,1988, by a state trial referee, Hon. Eli Cramer, acting as the trial court. The plaintiff appealed to the Appellate Court, which set aside the judgment solely as to the financial issues and remanded the case for a full hearing on those issues only. Watson v. Watson, 20 Conn. App. 551, 560, 568 A.2d 1044 (1990). Pursuant to the remand order, the trial court, Axelrod, J., conducted a hearing and, thereafter, rendered judgment. The plaintiff again appealed to the Appellate Court and we transferred the case to this court pursuant to Practice Book § 4023.

On appeal, the plaintiff claims that the trial court: (1) improperly concluded that the defendant’s conveyance of his interest in the marital home to two children of the marriage was not fraudulent as to the plaintiff; (2) abused its discretion in failing to award the plaintiff any money or property to represent her interest in the real property owned by the defendant; (3) abused its discretion in failing to award the plaintiff sufficient alimony and support in light of her health problems and limited earning capacity; and (4) abused its discretion in failing to award the plaintiff adequate counsel fees with respect to the first trial, the appeal of the first decision and the trial of the case on remand. We reverse and remand the case for a new hearing.

The facts that provided the basis for the prior remand of this case are set forth in the Appellate Court’s opinion, Watson v. Watson, supra. On remand, the trial court found that the marriage between the plaintiff and the defendant had been dissolved by the previous trial court judgment and that each party was equally at fault for the breakdown of the marriage. In addition, the court found the following facts, which are relevant to this appeal. The plaintiff and the defendant were married in Cranston, Rhode Island, on June 26,1971. Three children were born of the marriage: Leslie Anne Watson, born March 11, 1972; Heidi Lynn Watson, born July 13,1973; and Amy Beth Watson, born October 29, 1975. The plaintiff graduated from college in June, 1970, and was employed thereafter as a school teacher in Rhode Island. She continued to work as a school teacher until the birth of the parties’ oldest child. The plaintiff is not licensed to teach in Connecticut.

In March, 1973, the defendant’s parents conveyed to him title to one acre of land, upon which the parties built their home. The plaintiff and the defendant lived with their children in a mobile home near the site for approximately three years while the house was being constructed. The plaintiff cashed in the pension plan from her teaching job and used the funds to purchase exterior shingles for the house. The plaintiff saved $14,000 from other sources, which she also contributed toward the construction of the house. The plaintiff assisted in the physical construction of the house as well, staining floors, papering walls and painting sub-flooring. The defendant, his father and the defendant’s uncle did most of the construction work. The defendant’s father donated much of the material used to construct the house.

The parties’ youngest child, Amy, has been diagnosed as autistic and requires constant care. When Amy was approximately two and one-half years old, the town of Preston started paying the plaintiff $35 per day to transport Amy to Manchester for care and treatment. The plaintiff cleaned homes in Manchester during the day until it was time to pick up Amy. This pattern continued for approximately seven years until 1985, when Amy was placed in Benhaven, a private institution.

At the time of the dissolution hearing in December, 1988, the plaintiff had a net weekly income of $157.50. She had assets of $1760.38 and liabilities of $1135. The plaintiff was also the beneficiary of a trust fund established in 1984. The plaintiff has osteoarthritis of the knees, and as a result, in 1986, she had a total knee replacement and now has an artificial joint in her left knee.

The defendant attended Mitchell College in New London, where he received a two year pre-engineering degree. During the entire period of the marriage, the defendant was the only full-time employee on his parents’ dairy farm. He worked from 7 a.m. to 9 p.m. every day except Sunday, when he spent approximately four hours at home in the afternoon. The plaintiff and the defendant never took a vacation, and the defendant took only four or five days off from work during seventeen years of marriage. After the plaintiff and the defendant were married, the defendant received $30 net weekly pay for approximately one year. The defendant’s net pay increased to $60 per week for two years, and then to $80 per week for approximately one and one-half years. His net pay then increased to $200 per week for approximately two years and then to $250 per week from approximately 1982 through 1985. The defendant’s net weekly pay finally increased to $362.17, the amount he was earning at the time of the dissolution hearing. For a period of five or six years between 1972 and 1981 or 1982, the parties received food stamps.

In December, 1988, the defendant had personal property valued at $5000, stocks valued at $1062.50, and fractional interests in the following real properties other than the marital home: (1) the Woolworth Farm; (2) the Frink Farm; and (3) the South Long Pond, Led-yard property. The trial court made the following findings of value as to these real estate interests. The Woolworth Farm, which consists of approximately 208 acres, was valued at $349,000 by agreement of the parties. The property was acquired by the defendant’s parents in January, 1987, and placed in their names and the names of the defendant and his two sisters. The defendant’s one-fifth interest in this property was valued at $69,800. The 120 acre Frink Farm was valued, also by agreement of the parties, at $269,000. This property was purchased by the defendant’s parents in 1978 and title was put in the names of the defendant and his sister, Lucille. The defendant’s one-half interest in this property was valued at $134,500. The South Long Pond property was given to the defendant and Lucille by an aunt in 1946. The trial court valued this property at $156,000. The defendant’s one-half interest in this property was valued at $78,000. The South Long Pond property is subject to a lease of $60 per year that will expire in approximately 1996.

I

The plaintiff first claims that the trial court improperly concluded that the defendant’s conveyance of his interest in the marital home to the couple’s two oldest daughters was not fraudulent as to the plaintiff. The plaintiff argues that the trial court exceeded the scope of the Appellate Court’s remand order by reconsidering the state trial referee’s conclusion that the conveyance was fraudulent. The plaintiff further contends that even if this court concludes that the trial court did not exceed its authority on remand, it nevertheless erred in concluding that the conveyance was not fraudulent as to the plaintiff.

In the previous judgment rendered by the state trial referee, the defendant had been ordered to pay periodic, nonmodifiable alimony to the plaintiff in the amount of $35 per week, terminable after three years. The state trial referee ordered that the deed transferring the marital home to the defendant’s daughters be set aside and that the house revert to the defendant. The plaintiff was given exclusive use of the house until July 13, 1991, when Heidi would reach 18 years of age, at which time the plaintiff would have to relinquish possession to the defendant. The state trial referee also ordered the defendant to pay the plaintiff $80,000 in two installments of $40,000 each, the first installment to be made within three months of the date that the plaintiff vacated the house, and the second installment to be made within two years thereafter.

The plaintiff appealed the state trial referee’s financial orders to the Appellate Court. The Appellate Court agreed with the plaintiff that ‘‘[notwithstanding the great latitude accorded to the trial court in awarding alimony and assigning property . . . the trial court could not reasonably have concluded as it did with respect to the alimony award.” Watson v. Watson, supra, 554. The Appellate Court remanded the case to the trial court for a new hearing on all financial issues.

On remand, the trial court found that on November 3, 1987, the defendant had quitclaimed his interest in the marital home to his two oldest daughters, reserving a life estate for himself and the plaintiff.* ** The trial court found further that there was no consideration for this transfer. At the remand hearing, the defendant claimed that he had made the transfer to benefit and protect his children and to give the plaintiff an interest in the property. The plaintiff testified that the defendant had conveyed the property because he had become aware that she intended to file for divorce.

The trial court ordered that the defendant pay the plaintiff periodic alimony of $75 per week. The trial court also ordered that the defendant convey to the plaintiff his life interest in the marital home, free and clear of all liens and encumbrances, subject only to the title in his daughters. The plaintiff was also awarded all of the furniture in the house. The remaining real property was assigned to the defendant.

The trial court found that the defendant’s conveyance of the marital home to his daughters had been made with fraudulent intent and without consideration. The trial court concluded, however, that the plaintiff had failed to prove the other elements necessary to set aside the conveyance. “The party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. . . . The party seeking to set aside the conveyance need not satisfy both alternatives.” (Citations omitted.) Tyers v. Coma, 214 Conn. 8, 11, 570 A.2d 186 (1990). “Whether the conveyance in question was fraudulent is purely a question of fact. . . . Fraudulent intent must be proved, if at all, by clear, precise and unequivocal evidence. . . . This standard of proof applies to intra-familial conveyances.” (Citations omitted; internal quotation marks omitted.) Id.

In applying the first test, the trial court found that the defendant’s transfer of title in the family home to his daughters had been made without substantial consideration. The trial court concluded, however, that the plaintiff had failed to prove that the defendant was rendered unable to meet his obligations as a result of the transfer and, therefore, she had not satisfied the first standard for setting aside a conveyance as fraudulent. In determining whether the plaintiff had satisfied the second test, the trial court found that the conveyance had been made with fraudulent intent but concluded that, because the plaintiff had failed to prove that the grantees participated in the fraudulent intent, the conveyance could not be set aside on that basis either.

In the plaintiffs amended complaint, she requested that the conveyance be set aside and be declared null and void as to her and that she be awarded exclusive use and possession of the family home. In her brief, however, the plaintiff states that she did not seek that the conveyance be set aside so that she could be awarded the marital home, but rather, sought that the marital home be included in the marital estate so that she could be awarded a monetary amount representing her equitable share. We conclude, therefore, that the plaintiff has effectively abandoned her claim that the conveyance should be set aside.

We now consider the plaintiff’s claim that the trial court should have included the value of the family home in the marital estate so that she could be awarded a monetary amount representing her equitable share of the property. We conclude that the value of the family home should properly have been included in the marital assets even though the trial court concluded that the plaintiff failed to satisfy the second prong of either test for setting aside the conveyance.

In Miller v. Miller, 22 Conn. App. 310, 577 A.2d 297 (1990), the defendant and his brother each owned a one-half interest, valued at $312,500, in two separate corporations and the realty upon which stores owned by those corporations were located. The defendant transferred his interest in each of the properties to his brother without consideration. The trial court concluded that the transfers had been fraudulently accomplished in order to deprive the plaintiff of her interest in the marital assets. The trial court set aside only one of the transfers, however, ordering that the defendant pay to the plaintiff the amount of his interest, as determined by the trial court, in the other transferred property. The defendant appealed, claiming that the trial court had improperly awarded the plaintiff a monetary amount representing the defendant’s interest in the one transferred property when the trial court had not set aside the transfer. The Appellate Court upheld the remedy fashioned by the trial court. Id., 315.

We agree with the Appellate Court in Miller that the trial court in a dissolution action may properly consider as part of the marital estate property that has been fraudulently transferred even though for some reason the trial court has chosen not to set aside the transfer. Such an outcome prevents a party to a dissolution action from inequitably benefitting from his fraudulent transfer of real property by reducing the assets that would otherwise be included in the marital estate and available for assignment pursuant to General Statutes § 46b-81. The trial court in the present case found that the defendant’s conveyance of the family home to his daughters was made without substantial consideration and with fraudulent intent. Accordingly, we are persuaded that the value of the family home should properly have been included in the marital assets.

II

The plaintiff next claims that the trial court abused its discretion in not awarding her any amount of money or property representing her interest in the real property owned by the defendant. The plaintiff was awarded a life estate in the marital home, which has a fee simple value of only $160,000, whereas the defendant retained his fee simple fractional interests, valued at $282,300, in the remaining real property. The plaintiff was also awarded the assets listed on her financial affidavit, totaling $1760.38, and her interest as beneficiary of a trust fund, the value of which was not assessed by the trial court. The defendant was awarded the stock listed on his affidavit valued at $1062.

Other than the marital home, to which the plaintiff made a direct financial contribution, the real properties owned by the defendant were acquired by gift, either from his parents or, in the case of the South Long Pond property, from his aunt. The defendant argues, therefore, that the “[plaintiff’s efforts to care for and raise a family . . . are unrelated to the acquisition or preservation of [this] real estate.”

“This court has reiterated time and again that awards of financial settlements ancillary to a marital dissolution rest in the sound discretion of the trial court. . . . Although the court is required to consider the statutory criteria of length of marriage, causes for dissolution, the age, health, station in life, occupation, amount and sources of income, assets and opportunity for future acquisition of assets of each of the parties . . . no single criterion is preferred over all the others. In weighing the factors in a given case the court is not required to give equal weight to each of the specified items. Nevertheless, it is rather obvious that in making financial determinations the financial circumstances, both actual and potential, are entitled to great weight.” (Citations omitted; internal quotation marks omitted.) Valante v. Valante, 180 Conn. 528, 530-31, 429 A.2d 964 (1980).

“In order to conclude that a trial court abused its discretion in a domestic relations case we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” Weiman v. Weiman, 188 Conn. 232, 234-35, 449 A.2d 151 (1982). The trial court, in making the property assignment, stated that it had “carefully considered all of the relevant statutory criteria.” Considering the trial court’s findings regarding the marital assets at the beginning of the marriage and at the time of dissolution in light of the statutory factors enumerated in § 46b-81, however, we are unable to discern how the trial court could reasonably have concluded as it did in this case.

When the plaintiff and the defendant were first married, the defendant owned only a one-half interest in the South Long Pond property. He was employed on his parents’ farm at a very modest rate of pay. Section 46b-81 authorizes the trial court to assign to either party to a dissolution proceeding “all or any part of the estate of the other.” We have stated that “the purpose of property division is to unscramble the ownership of property, giving to each spouse what is equitably his [or hers].” Id., 234. “The bare legal title to property acquired or accumulated by the spouses during marriage often does not correspond to their real rights in such property.” H. Clark, Law of Domestic Relations (1968) § 14.8, p. 450. The fact that the defendant, subsequent to his marriage to the plaintiff, received substantial real property from his parents in his name only does not operate to exclude this property from the marital assets. Cf. North v. North, 183 Conn. 35, 39, 438 A.2d 807 (1981) (property acquired by inheritance may be assigned under § 46b-81). These gifts of real property were made to the defendant over the course of a seventeen year marriage during which the plaintiff made a substantial financial contribution toward the construction of the family home, served as the exclusive homemaker, provided care for three children, including a severely autistic child, and worked outside the home as a cleaning woman for ten years. The plaintiffs contribution both as a homemaker and a wage earner was thus integral to the financial survival of the marriage.

The trial court found that the breakdown of the marriage was equally attributable to both parties. The assignment to the plaintiff of only a life use of the family home and to the defendant of the remaining real property interests, however, virtually ignored the cdntribution that the trial court found the plaintiff had made to the marriage. The trial court’s failure to include the value of the family home in the marital assets no doubt contributed to this skewed division of property. Accordingly, we conclude that the trial court abused its discretion in this case.

While we conclude that the trial court did not properly consider the plaintiff’s contribution toward the acquisition of the marital assets, including the family home, we recognize that the trial court must be accorded discretion in fashioning an equitable assignment of property. “ ‘The power to act equitably is the keystone to the court’s ability to fashion relief in the infinite variety of circumstances which arise out of the dissolution of a marriage. Without this wide discretion and broad equitable power, the courts in some cases might be unable fairly to resolve the parties’ dispute ....’” Sunbury v. Sunbury, 210 Conn. 170, 174, 553 A.2d 612 (1989). “ ‘While the trial court must consider the delineated statutory criteria, no single criterion is preferred over the others, and the court is accorded wide latitude in varying the weight placed upon each item under the peculiar circumstances of each case. . . .’ ” (Citation omitted.) Id., 174-75. Accordingly, we remand this case to the trial court for a new hearing on all financial matters.

The judgment as to all financial matters is reversed and the case is remanded for a new hearing.

In this opinion the other justices concurred.

       The trial court did not make a finding as to the benefit, if any, that the plaintiff received from the trust fund. The defendant claims that the trust fund has a value of $14,000.

       The trial court concluded, pursuant to Sunbury v. Sunbury, 216 Conn. 673, 583 A.2d 636 (1990), that all property in the marital estate on the date of dissolution should be considered in making the property assignments pursuant to General Statutes § 46b-81 and that the values assigned at the December, 1988 dissolution hearing should apply. In Sunbury, this court construed § 46b-81 (a) and General Statutes § 46b-82 as follows: “ ‘In the absence of any exceptional intervening circumstances occurring in the meantime, [the] date of the granting of the divorce would be the proper time as of which to determine the value of the estate of the parties upon which to base the division of property.’ ” Id., 676. While the hearing on remand was pending, the defendant conveyed his one-fifth interest in the Woolworth Farm to his sisters. The defendant also executed a mortgage deed to his parents for $25,000 on the marital home. Because the defendant made these transactions after the entry of the dissolution decree, while this case was on appeal, the trial court properly treated the defendant’s interest in these properties as it existed on the date of the dissolution. In Sunbury this court concluded that an increase in the value of the property did not constitute an exceptional intervening circumstance that would allow the trial court to value the property as of the date of the remand hearing. Similarly, in the present case, the trial court could reasonably have concluded that the plaintiff did not show the requisite exceptional intervening circumstances. We note, however, that on remand, the plaintiff may avail herself of the procedure established by General Statutes § 46b-86, which authorizes the trial court to modify alimony and support orders after the entry of a dissolution judgment “upon a showing of a substantial change in the circumstances of either party . . . .”

       The Appellate Court stated: “We cannot properly limit our remand to the issue of periodic alimony. The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other. . . .” (Citations omitted; internal quotation marks omitted.) Watson v. Watson, 20 Conn. App. 551, 557, 568 A.2d 1044 (1990).

       On remand, pursuant to a motion filed by the plaintiff, the trial court made the parties’ daughters, Leslie Ann Watson and Heidi Lynn Watson, codefendants in this action. Neither daughter, however, has filed a brief in this appeal.

       After the remand hearing, the trial court issued the following orders:
      “(1) The defendant is ordered to convey by warranty deed to the plaintiff forthwith his life interest in the family home on Krug Road, free and clear of all liens and encumbrances subject only to the title in his two daughters, Leslie Watson and Heidi Watson, and the life interest in the plaintiff, Loretta Watson. All furniture in the family home is awarded to the plaintiff.
      “(2) The defendant is ordered to pay the plaintiff $75 per week as periodic alimony.
      “(3) The defendant is ordered to pay to the plaintiff as an allowance to prosecute the sum of $2,500 within six months of date.
      “(4) There is presently a balance due to counsel for the minor child the sum of $1,684. The defendant is ordered to pay that amount.
      “(5) All assets shown on the plaintiff’s December 20,1988 affidavit are awarded solely to the plaintiff, including her interest in the trust fund established in 1984.
      “(6) Each party shall pay one-half of the liabilities shown on the plaintiffs financial affidavit dated December 20, 1988.
      “(7) The defendant is solely responsible for paying all liabilities shown on his December 20,1988 financial affidavit, except for those liabilities that are also listed on the plaintiffs affidavit for which the Court has ordered that the parties pay equally. Those liabilities that are the sole responsibility of the defendant, the Court further orders that he hold the plaintiff harmless therefrom.
      “(8) Except for the family home on Krug Road, all other real estate owned by the defendant as shown on his December 20,1988 financial affidavit is awarded solely to the defendant.
      “(9) The stocks and bonds shown on the defendant’s financial affidavit are awarded solely to the defendant. Further, the 1973 lawn tractor shown on the defendant’s financial affidavit is awarded to the defendant unless said lawn tractor is at the family residence as of December 20, 1988, in which event, it is awarded solely to the plaintiff.
      “(10) The defendant is ordered to pay to the plaintiff as support for Leslie and Heidi the sum of $40 per week per child. When Leslie reaches age 18, the support order for Heidi shall be automatically increased to $60 per week.
      “(11) No support order is entered for Amy. The plaintiff shall continue to receive and administer the social security award which is for the benefit of Amy. The defendant is to furnish medical insurance for the benefit of Leslie and Heidi and any unreimbursed or uncovered medical expenses are to be shared equally between the parties.
      “(12) Custody of Leslie and Heidi is awarded to the plaintiff with reasonable rights of visitation awarded to the defendant.
      “(13) The defendant is responsible for paying the full tuition costs for the benefit of Heidi at St. Bernard’s School.
      “(14) A contingent wage execution is ordered.
      “(15) The defendant is ordered to pay appraisal fees in the amount of $1,000 within six months of date to the plaintiff.
      “(16) The defendant shall cooperate and execute any and all documents to enable the plaintiff to elect medical coverage under his medical insurance plan for the maximum period allowed or until the plaintiff becomes eligible for medical benefits under a medical coverage plan maintained by a future employer of the plaintiff, whichever occurs first. The cost for such coverage under the defendant’s insurance policy shall be paid by the plaintiff. Any unreimbursed or uncovered medical expenses shall be the sole responsibility of the plaintiff. Any explanations of benefits for payments received by the defendant for claims made by the plaintiff shall forthwith be forwarded to the plaintiff.”

       General Statutes § 52-552 provides: “All fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”

       In a footnote to her brief, the plaintiff states: “This court should note that the wife did not seek that the conveyance be set aside so that she could be awarded the marital home. Rather, she sought that the marital home be included as an item in the marital estate, so that she could be awarded a monetary amount representing her equitable share of the marital home. See Miller v. Miller, 22 Conn. App. 310, 577 A.2d 297 (1990).”

       The trial court found that the defendant had sufficient assets other than the marital home to satisfy his obligation to the plaintiff. The plaintiff, relying primarily on Gaudio v. Gavdio, 23 Conn. App. 287, 580 A.2d 1212, cert. denied, 217 Conn. 803, 584 A.2d 471 (1990), argues that in the context of a dissolution action, a party seeking to set aside a conveyance as fraudulent need not prove, under the first test for setting aside a conveyance, that the transfer rendered the transferor unable to meet his obligations. We need not address this argument, however, since we conclude that the plaintiff has abandoned her claim that the defendant’s conveyance of the marital home should have been set aside. We note, moreover, that at oral argument before this court, the plaintiff conceded that she had not objected to the relitigation on remand of the issue of whether the conveyance was fraudulent.

       In 1978, the defendant was earning only $80 per week working on his father’s farm. That year, the defendant was given a one-half interest in the Frink Farm, which, at the time of the dissolution hearing, was valued at $134,500. Nevertheless, for a five to six year period between 1972 and 1981 or 1982, the parties’ income was so low that they qualified for and received food stamps from the town of Preston.

       Because the trial court must consider all financial orders de novo, we do not consider the plaintiff s third and fourth claims concerning the sufficiency of the trial court’s award of periodic alimony and counsel fees. As this court has previously stated: “[T]he trial court on remand could no more fashion just and equitable financial orders by reconsidering only the issue of [property distribution], than it could reassemble a broken vase with only one piece.” Suwbury v. Sunbury, 210 Conn. 170, 173, 553 A.2d 612 (1989).


author: Covello, J. Berdon, J.,

text:
    State of Connecticut v. Jason Gray
    (14172)
    Shea, J., Glass, Covello, Borden and Berdon, Js.

      Argued December 5, 1991
    decision released April 21, 1992

      David M. Reilly, with whom were Matthew G. Galligan and Peter B. Reilly, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   Covello, J.

This is the defendant’s appeal from his conviction of arson in the first degree in violation of General Statutes § 53a-lll (a) (l). Following a jury-trial and a guilty verdict, the trial court rendered judgment sentencing the defendant to fifteen years imprisonment, execution suspended after six years, and five years probation. The issues on appeal are: (1) whether the evidence presented at trial was sufficient to support the defendant’s conviction; (2) whether the trial court improperly ruled on the admissibility of certain evidence; (3) whether the trial court improperly refused to charge the jury upon a variety of subjects as requested by the defendant; and (4) whether the proceedings, when viewed in their totality, denied the defendant the right to a fair trial. We affirm the judgment.

The jury might reasonably have found the following facts. At the time of the July 7, 1989 fire, the defendant and Calvin Hugins both worked under the supervision of Peter Keselewski in the parts department at Ekblade Oldsmobile (Ekblade), an automobile dealership and service center in Hamden. The defendant had been employed in the parts department for two months, picking up and delivering parts to various automobile dealerships, garages and automotive body shops. Hugins had been employed as the clerk at the parts department service counter for two years, supplying parts to either the service center or retail customers.

The parts department is located in a two story building. The first floor contained, inter alia, a service counter, metal bins, and a desk. Ekblade used the service counter to display small quantities of high demand items such as oil filters and antifreeze. The metal bins contained small parts and various chemicals, including WD-40 and Siloo, a diesel fuel antigel. Ekblade did not store these chemicals on the second floor. The second floor, which can only be reached by a flight of stairs at the rear of the first floor, contained, in part, cartons of oil filters and large parts. It is a five foot by thirty-three foot room with a plywood floor, a concrete ceiling supported by joists, and rows of storage shelves.

On July 6, 1989, at 3 p.m., the defendant informed Hugins that he had noticed a chemical smell emanating from the second floor of the parts department. Hugins, unable to detect any chemical odor, told the defendant to speak to their supervisor, Keselewski. Also that day, the defendant told an Ekblade employee from another department, Marianne McKeon, that he smelled something unusual coming from the second floor. McKeon, like Hugins, did not notice anything unusual but, similarly, urged the defendant to inform Keselewski. Later, at 4 p.m., Keselewski asked the defendant to close a window on the second floor. After returning from the second floor, the defendant said nothing about any unusual odors coming from the second floor. At no time did the defendant ever mention his concerns about chemical smells to Keselewski. Keselewski, like McKeon and Hugins, did not detect any chemical smell when he closed the parts department between 5:30 and 6 p.m.

The next day, July 7,1989, Hugins opened the parts department at 7 a.m. At 8 a.m., the defendant again told Hugins that he smelled chemicals emanating from the second floor. Hugins searched the second floor but did not notice any unusual chemical smell. Approximately fifteen minutes later, between 8:15 and 8:20 a.m., Hugins noticed that the defendant was restocking the parts counter with oil filters that the defendant had obtained from the second floor. At 8:30 a.m., when Keselewski called Hugins from another car dealership, the defendant was talking with McKeon. About twenty to twenty-five minutes after Hugins observed the defendant shelving the oil filters, Hugins saw smoke coming from the area of the stairs to the second floor. Hugins turned off the first floor lights and reported the fire by telephoning the “911” emergency number. The defendant told McKeon that he had to get his keys and rushed toward his desk in the rear of the first floor. McKeon, who attempted to follow the defendant but then turned back because of the blinding smoke, did not see the defendant again until sometime between 11 a.m. and 12 p.m. when he stated: “[T]hey think I did it.”

At 8:44 a.m., Hamden firefighters were sent to Ekblade and they arrived shortly thereafter. The firefighters encountered dense smoke and extreme heat and noticed flames in the eastern and southeastern corner of the second floor. By 9:30 a.m., approximately thirty-five to fifty firefighters were able to subdue the flames.

I

The defendant first claims that the record reflects insufficient evidence to support his conviction. He argues that the state failed to establish, beyond a reasonable doubt, that: (1) the fire was intentionally set; and (2) he was the person criminally responsible for its occurrence. We disagree.

A

Experts for both parties presented conflicting testimony at trial as to whether the fire was incendiary or accidental in nature. The state’s expert witnesses, Robert Westervelt, Hamden’s fire marshal, Joseph Tuscano, a senior arson inspector, and Jack Hubbell, the chemist in the state forensic laboratory, proffered opinions that tended to show that the fire was intentionally set. Westervelt inspected the scene on the morning of July 7,1989, the day of the fire. Tuscano examined the parts department later that month. They both opined that the fire started in the southeast corner of the second floor where there was a “classic pour pattern” on the floor created by the ignition of a flammable accelerant. Westervelt theorized that the arsonist used approximately twelve to fifteen ounces of a liquid accelerant to start the fire. Westervelt and Tuscano noted that the extensive charring at the base of the shelves was consistent with this theory. Tuscano further testified that the rate at which the fire developed was consistent with the ignition of a flammable accelerant.

Westervelt explained that, in contrast to fires ignited by ordinary, combustible items, which start slowly and gradually build in size and strength, fires started by a flammable accelerant burn rapidly. He testified that the pattern of burning on the walls did not follow a straight line, as occurs with a slow burning fire, and that the second floor window panes were clear and did not exhibit the heavy glaze commonly associated with a slow burning fire.

Westervelt further supported his theory that a flammable accelerant had been utilized to start the fire by explaining how he caused forensic tests to be performed on materials he had collected from the scene of the fire. He testified that, at various times, he had taken samples from the second floor area where the fire originated. Among these were liquid that had been sponged from the floor, debris from the southeast corner of the floor, and a can of Siloo. He placed the samples into cans, sealed them and brought them to the state forensic laboratory for analysis. Hubbell tested the floor debris with a mass spectrometer and found the presence of xylenes, an extremely flammable liquid. Upon performing a spectrometric analysis of the Siloo and comparing it to the xylenes found in the floor debris, Hubbell found that the two samples had an “almost perfect match” in their chemical constituents.

In discounting other possible theories, Westervelt eliminated the second floor light bulbs as a cause of the fire. He determined that all of the bulbs were intact except for one located one foot north of the fire’s point of origin. Although the glass portion of that bulb was missing, Westervelt found that the wires and connections were still intact and that there was no evidence of pitting or melting consistent with temperatures that would give rise to sparking. Further, he did not see any material either in contact with or lying on the floor directly beneath this fixture.

The defendant’s expert witness, Matthew Conlon, concluded, however, that the fire probably originated at a light bulb and then radiated downward. Conlon based his testimony on examinations of photographs of the fire scene; he did not visit the actual scene of the fire. Conlon opined that a light bulb of a wattage too high for the fixture could have melted and then dripped molten material to the floor causing secondary ignition. Alternatively, he testified that a bulb could have come into contact with material on the upper portion of a shelf thereby causing a fire. Conlon maintained that the burn patterns on the floor were caused by material that had dropped to the floor after the fire had already ignited above ground.

Conlon testified further that an electrical cord, which had originated on the first floor and extended to the second floor, may have been a cause of the fire. He also opined that Hugins would have noticed the fire sooner if the defendant had indeed ignited the flammable accelerant twenty to twenty-five minutes earlier.

It is well established that in reviewing a claim of insufficient evidence, a two-part inquiry is undertaken.

“We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Citations omitted.) State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985). Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991). In finding facts in cases of conflicting expert testimony, a jury may choose to believe one expert over another. State v. Famiglietti, 219 Conn. 605, 612, 595 A.2d 306 (1991).

The jury in this case was entitled to reject Conlon’s testimony and credit the testimony of the state’s experts that the pour pattern on the floor was a manifestation of the ignition of the flammable accelerant Siloo and that the fire spread from this source. In declining to believe Conlon, the jury was aware that he had never visited the site even though he admitted that it would have been “much better” for purposes of his investigation if he had done so. Additionally, the jury knew that Conlon’s theory that the light bulbs had ignited the fire had been rejected by the state’s experts. “Once the state’s expert testimony was found credible by the jury . . . that evidence established beyond a reasonable doubt that the fire in this case was incendiary in origin.” State v. Famiglietti, supra, 612.

The defendant claims, however, that even if Siloo was the agent used to ignite the fire, there were innocent explanations for its presence in the floor debris. We disagree.

The “jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . [I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Grant, 219 Conn. 596, 604, 594 A.2d 459 (1991), quoting State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985). Here, the jury was entitled to draw, from conflicting evidence, the following reasonable inferences that reject the defendant’s theories and that are consistent with guilt: (1) Siloo was not inadvertently tracked onto the second floor by automobile mechanics because either Hugins or the defendant, not the mechanics, obtained the parts from the second floor; (2) Siloo was not introduced onto the second floor as a result of being left on an automobile cylinder head that was stored there, due to the mechanics’ practice of cleaning spare parts prior to storage; (3) the presence of Siloo in the sample can containing debris from the southeast corner was not attributable to contamination during storage from another can leaking Siloo because the leaking can contained a different brand of diesel fuel antigel that would have been detected by the mass spectrometer had it contaminated any of the samples; and (4) the absence of Siloo from samples of the floor and floor board on the second floor could be explained either by evaporation and burning away or by the washing of the floor by firefighters after the floor debris samples had been taken but before the floor and floor board in question were analyzed.

B

The defendant next claims that, even if the fire was incendiary, there was insufficient evidence to show that he was culpable. He argues that the evidence was insufficient because: (1) he did not have the exclusive opportunity to cause the fire; and (2) there was no proof of motive. Because we have never held that proof of either motive or exclusive opportunity is required to convict an accused of arson, we conclude that these claims are without merit. State v. Famiglietti, supra, 614 (state did not have to establish a motive for arson); State v. McPhail, 213 Conn. 161, 171, 567 A.2d 812 (1989) (jury was entitled to convict defendant of arson even though others had motive and opportunity to set dwelling on fire).

The jury had before it sufficient evidence to conclude that the defendant was culpable. Based upon evidence that he had an opportunity to set the fire, that he had ready access to Siloo, the flammable accelerant that had started the fire, that he appeared after the fire started to have an insider’s knowledge about the nature and location of the fire, and that he manifested before and after the fire a consciousness of guilt, the jury could have reasonably concluded that the defendant was guilty beyond a reasonable doubt. We discuss these conclusions seriatim.

Other than the time, on the morning of the fire, that Hugins spent inspecting the second floor following the defendant’s protestations about “chemical smells,” the evidence showed that the defendant was the only person who had been on the second floor that day, before Hugins noticed the fire. See State v. Famiglietti, supra, 614 (accused’s presence on premises shortly before start of fire was probative of issue of identity). The defendant’s presence on the second floor immediately preceding the fire was especially significant in view of Keselewski’s testimony that it was unprecedented for the defendant to have gone to the second floor on his own initiative to obtain parts. Further, the defendant had ready access to Siloo, which was stored on the first floor near the service counter. See State v. Cimino, 194 Conn. 210, 213, 478 A.2d 1005 (1984) (access to flammable accelerant probative of issue of identity).

The jury could have reasonably concluded that the defendant knew about the origin and location of the fire when he ran to the back of the first floor to get his keys even after Hugins had noticed the smoke and called “911.” The jury was entitled to compare and contrast the defendant’s and McKeon’s reactions to the dense smoke and conclude that, while McKeon did not follow the defendant toward his desk because the smoke was so thick that she could not see in front of her face nor discern the location of the fire, the defendant was not dissuaded from attempting to retrieve his keys because he was aware that the fire was confined to the second floor.

The jury could also have reasonably concluded that the defendant exhibited a consciousness of guilt both before and after the fire. Before the fire, his attempts at drawing attention to phantom chemical smells on the second floor could reasonably lead one to believe that the defendant was trying to lay the basis for his exoneration by creating the impression that the conditions for a fire were present before the morning of the fire and that it was simply an accidental conflagration. None of the witnesses to the defendant’s queries concerning chemical odors noticed any such odor themselves and, significantly, the defendant never mentioned his concern to Keselewski, even after his fellow employees urged him to do so. Following the fire, the defendant told McKeon: “[T]hey think I did it.” The defendant made this statement while Westervelt was still investigating the fire at Ekblade and before he had determined that the fire had been deliberately set. The jury might have reasonably concluded that the defendant was experiencing pangs of guilt before any determination of wrongdoing had been made. This is not a case in which the state’s evidence is improbable and unconvincing; great deference must be given to the jury’s conclusion that the defendant’s conduct and statements manifested a consciousness of guilt. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

II

The defendant next claims that the trial court improperly ruled on the admissibility of certain evidence by: (1) denying his motion to strike McKeon’s testimony that the defendant told her that “they think I did it”; (2) admitting the results of tests done on a can of debris taken from the second floor; and (3) admitting the rebuttal testimony of state inspector Tuscano. We address these claims in order.

A

The defendant claims that McKeon’s testimony that he had told her “they think I did it,” should have been stricken because it lacked relevance for the purpose of demonstrating consciousness of guilt. He argues that the statement is consistent with innocence and that the state never disproved his contention that law enforcement agents had spoken to him about the fire prior to his making the statement. The defendant maintains on appeal that he had made the statement to McKeon because he had inferred, after the authorities posed questions to him about whether he had been smoking, that they thought that he might have been responsible for the fire.

“Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters.” Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987). Although the trial court found that the defendant’s statement could support inferences that were consistent with both guilt and innocence, “[e]vidence need not be conclusive to be relevant; State v. Greene, 209 Conn. 458, 478, 551 A.2d 1231 (1988); and ‘[t]he fact that evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.’ State v. Reid, [193 Conn. 646, 656 n.12, 480 A.2d 463 (1984)]; see State v. Morrill, 197 Conn. 507, 508, 498 A.2d 76 (1985).” State v. Joly, 219 Conn. 234, 252, 593 A.2d 96 (1991).

We conclude that, even if the statement were susceptible to different interpretations, the trial court did not abuse its discretion in determining that the defendant’s assertion was relevant. Further, the defendant has not pointed to any evidence other than his own statements, nor do we find any, that indicates that the authorities had spoken to the defendant before he made the statement. The jury might reasonably have concluded that the defendant volunteered this statement not because of any urge to respond to innuendo that he was the responsible party but rather out of a consciousness of guilt. “No one doubts that the state of mind which we call ‘guilty consciousness’ is perhaps the strongest evidence . . . that the person is indeed the guilty doer. . . .” 2 J. Wigmore, Evidence (Chadbourn Rev. 1979) § 273 (1).

B

The defendant claims next that the trial court improperly admitted into evidence the spectrometric analysis of the contents of the can of debris taken from the second floor near the eastern wall. The defendant asserts that there was no proof that the debris was not contaminated in some way other than by arson. He argues that: (1) the debris could have come into contact with a cylinder head on the second floor that was covered with Siloo, the flammable accelerant found in the same debris; (2) prior to the time that the debris was subject to spectrometric analysis, Siloo could have been absorbed into the can containing the debris while the can was in storage; and (3) the results of the spectrometric analysis lacked probative value because: (a) the debris samples were not taken from the area where Westervelt identified a burn pattern; and (b) Westervelt’s opinion on the origins of the fire did not refer to the state chemical laboratory test results. Because we conclude that there is no reasonable probability that the debris contained in state’s exhibit T was contaminated by a source other than arson, the trial court did not abuse its broad discretion in determining that the evidence was probative and in admitting this evidence. State v. Asherman, 193 Conn. 695, 722, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The trial court might reasonably have concluded that: (1) the cylinder head was not a cause of any alleged contamination because Keselewski had testified that all spare parts were cleaned prior to being stored on the second floor; and (2) the debris was not contaminated with Siloo while in storage because the different brands of diesel fuel antigel, including Siloo, had been stored in separate boxes and the only can that had leaked was a diesel fuel antigel of a different brand than Siloo—a brand that would have been detected by the spectrometric analysis. Further, contrary to the defendant’s contention, Westervelt testified that he had taken his samples from the area where the fire originated. Westervelt also testified that he took samples and sent them to the state laboratory for analysis. The fact that Hubbell, the state laboratory chemist, testified as to the results of his tests on the samples Westervelt sent to him after Westervelt testified does not mean, as the defendant maintains, that the jury could not have concluded that Hubbell’s testimony supported Westervelt’s opinion that the fire had been started with the aid of a flammable accelerant. The jury is entitled to apply its own knowledge and common sense to the evidence. State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539 (1985).

C

The defendant next argues that Tuscano’s testimony was not proper rebuttal testimony but merely bolstered the state’s prior testimony that the burn patterns were consistent with arson instead of specifically addressing or refuting the possibilities raised by the defense of accidental causes of the fire. For these reasons he maintains that the trial court should not have admitted Tuscano’s testimony.

“The admission of rebuttal evidence is . . . within the sound discretion of the trial court.” State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). There is no requirement that a rebuttal witness must respond to every alternate theory offered by the defendant concerning the possible origin of the fire; a general contradiction of the testimony given by the defendant is considered permissible rebuttal testimony. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986). Tuscano’s assessment that the burn patterns at the fire scene were consistent with the ignition of a flammable accelerant generally contradicted the testimony of defense expert Conlon. Moreover, Tuscano’s testimony directly refuted Conlon’s testimony that the fire burned at a rate that was inconsistent with the use of a flammable accelerant.

Ill

The defendant next claims that the trial court improperly failed to instruct the jury as requested in a number of areas. We address these claims seriatim.

A

The defendant first claims that the trial court improperly failed to charge, as requested, that there would be insufficient evidence of identity if the state failed to demonstrate that he had exclusive access to the second floor. We have already addressed the merits of this claim in reviewing the defendant’s contention that the evidence was insufficient to convict him. As we stated with respect to that claim, we have never held that the state must prove that the defendant had exclusive access to the scene of the fire in order to obtain a conviction. State v. McPhail, 213 Conn. 161, 171, 567 A.2d 812 (1989). “The principal function of a jury charge is ‘to assist the jury in applying the law correctly to the facts which they might find to be established. . . .’ ” State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112 (1991), quoting State v. Sumner, 178 Conn. 163, 170, 422 A.2d 299 (1979). We conclude that the trial court accomplished just that in its charge.

B

The defendant next claims that the trial court improperly refused to charge, as requested, that the state must proffer evidence that rules out all innocent explanations for the cause of the fire that are reasonably possible. We disagree.

“Proof of guilt [beyond a reasonable doubt] must exclude every reasonable supposition of innocence. . . . [I]t need not exclude every possible supposition of innocence.” (Internal quotation marks omitted.) State v. Little, 194 Conn. 665, 672, 485 A.2d 913 (1984). Here, the trial court correctly charged the jury that proof beyond a reasonable doubt must exclude every reasonable hypothesis inconsistent with guilt.

C

The defendant next claims that the trial court improperly refused to charge, as requested, that the jury could not infer that the author of an article relied upon by the defendant had been disciplined or fired for employing improper laboratory techniques based solely upon questions to that effect posed by the prosecutor. Although briefed in a most limited fashion, the gravamen of the defendant’s claim appears to be that questions posed by the prosecutor did not constitute evidence or a basis for drawing factual inferences. “If a requested charge is in substance given, the court’s failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.” State v. Ortiz, 217 Conn. 648, 662, 588 A.2d 127 (1991). Although the trial court did not specifically instruct as requested, the jury received the substance of the request in the instruction that evidence is confined to either exhibits or the testimony of witnesses. Further, “[t]he jury is presumed, in the absence of a fair indication to the contrary, to have followed the [trial] court’s instructions as to the law.” State v. Gabriel, 192 Conn. 405, 416, 473 A.2d 300 (1984).

IV

The defendant’s final claim is that he was denied a fair trial pursuant to the due process guarantees of the fifth and fourteenth amendments to the United States constitution. The defendant essentially repeats, in a summary fashion, the allegations raised throughout the rest of his brief. The absence of merit underlying those claims refutes this last claim.

The judgment is affirmed.

In this opinion Shea, Glass and Borden, Js., concurred.

Berdon, J.,

dissenting. I disagree. The evidence construed in the light most favorable to sustaining the jury’s verdict; State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); is insufficient to support the finding of guilt beyond a reasonable doubt, even if we assume the fire was incendiary—that is, intentionally set.

In making our determination of whether the evidence was sufficient to convict the defendant, we place great weight on the trial court’s decision on the motion to set aside the verdict and the motion for judgment of acquittal; State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987); but its decision does not carve the conviction in stone. “The trial court’s findings of fact are not conclusive, however, and we will reverse a judgment where the state’s evidence is improbable and unconvincing and where all the facts found are insufficient to prove the guilt of the defendant beyond a reasonable doubt.” State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).

The majority predicates its conclusion that there was sufficient evidence to support the conviction of the defendant on the following: (1) The defendant had an opportunity to set the fire, including ready access to Siloo, the accelerant the state theorized had been used to start the fire; (2) the defendant had an “insider’s knowledge about the nature and location of the fire”; and (3) the defendant had manifested a consciousness of guilt. The collective effect of this evidence, however, was insufficient to establish beyond a reasonable doubt the defendant’s guilt.

First, although the defendant had the opportunity to set the fire, he did not have sole access to the second floor where the fire originated or to the accelerant. We have held that opportunity alone, although a consideration, proves nothing. State v. Villano, 176 Conn. 301, 303, 407 A.2d 969 (1978); State v. Skinner, 132 Conn. 163, 167, 43 A.2d 76 (1945). State v. Famiglietti, 219 Conn. 605, 614, 595 A.2d 306 (1991), to which the majority cites, is inapposite. In Famiglietti, the defendant arrived at the store shortly before the fire, the store was locked and no one else was visible inside. The jury heard testimony from the Sonitrol operator that the defendant had “coded out” just minutes before he noticed the fire. The operator also testified that he had heard “crackling” and “loud popping noises” while the defendant was still in the building. Id., 613. In the present case, however, the state concedes that the defendant did not have exclusive access to the premises. At least two other people, Calvin Hugins and Peter Keselewski, had unlimited access to the fire scene and to the Siloo, which gave them the same opportunity the defendant had to set the fire. Moreover, the majority concedes that Hugins had been to the second floor on the morning of the fire. Additionally, there was proof of access to the second floor by a rear door and there was no proof that it was closed, or locked, and no evidence that it was guarded, or under anyone’s observation.

In State v. Villano, this court reversed the defendant’s conviction for burglary, even though the defendant had been given a key to the house and, therefore, had sole access to it. The evidence in Villano showed that “[a]ll the doors and windows, including those in the cellar, were found locked. There was no sign of a forced entry. The [complainants] had not given anyone but the defendant permission to enter their home and no one else had a key to the premises.” Id., 302. Notwithstanding the defendant’s sole access to the premises, this court concluded in Villano that “it is clear that there was not sufficient evidence before the [trial] court to establish beyond a reasonable doubt that the defendant was guilty of the crimes charged.” Id., 303. I cannot reconcile the majority’s opinion in the present case, given that here the defendant did not have sole access to the premises where the fire originated, with the just result reached in Villano.

Second, the defendant’s culpability cannot be predicated on the claim that the defendant “had an insider’s knowledge about the nature and location of the fire.” The defendant never stated that he had known that the fire had been located on the second floor. I cannot see how the jury could have reasonably concluded that the defendant’s act of running to the back of the first floor to retrieve his truck keys amounted to an “insider’s knowledge” of the origin and location of the fire. The reverse is more logical—that is, had he set the fire, he would not have left his keys in the building in the first place.

Third, the majority states that the defendant’s behavior, both before and after the fire, had “manifested a consciousness of guilt.” Before the fire, the defendant repeatedly stated that he had smelled chemicals. Although this behavior could arguably be construed as laying the foundation that the fire had been accidental in nature, the opinion fails to cite any authority to support this “pre-crime” consciousness of guilt. Actions or words manifesting a consciousness of guilt, unlike evidence establishing the defendant’s motive or plan, are logically predicated on the crime already having been committed. See, e.g., State v. Joly, 219 Conn. 234, 251, 593 A.2d 96 (1991); State v. Smith, 219 Conn. 160, 165, 592 A.2d 382 (1991); State v. Thomas, 214 Conn. 118, 121, 570 A.2d 1123 (1990).

The majority further states that the defendant’s statement to Annie McKeon after the fire, that “they think I did it,” manifested a consciousness of guilt. The reasoning is based on the claim that no one had spoken to the defendant accusing him of setting the fire before he had made the statement. There is not a shred of evidence, however, to support this claim. Furthermore, the “they think I did it” statement is taken wholly out of context. McKeon went on to testify as follows:

“Q. On that date do you recall whether or not you were asked a question on 7/28/89, question, ‘Has he given any indication that he personally had started the fire?’
“A. Yeah, I remember the question.
“Q. And what was [your] answer to that question?
“A. No.
“Q. At that time you told Mr. Dunham [a detective] that he had given no indication that he personally had started the fire?
“A. No.”

Again, without more, I cannot see how the defendant’s statement to McKeon revealed a consciousness of guilt. Surely, to convict the defendant on the basis of this evidence, “the jury would have had to resort to speculation and conjecture and to have drawn unwarranted inferences from the facts presented.” State v. Osman, supra, 437.

Lastly, and perhaps most troubling for me, is the lack of a motive. The absence of motive was also troubling for the sentencing court. Although I am aware that it is not necessary to prove motive in an arson prosecution; see State v. Pinnock, 220 Conn. 765, 792, 601 A.2d 521 (1992); in a case where the evidence is paper thin, lack of motive is significant. In Pinnock, we held that “presence or absence of motive ... is a circumstance to be weighed with other evidence for the jury to consider. . . . State v. Ruffin, 206 Conn. 678, 681, 539 A.2d 144 (1988); State v. Annunziato, 169 Conn. 517, 530, 363 A.2d 1011 (1975). An instruction on motive and lack of motive is sometimes required because [ejvidence tending to show the existence or nonexistence of motive often forms an important factor in the inquiry as to the guilt or innocence of the defendant. State v. Rathbun, 74 Conn. 524, 529, 51 A. 540 (1902). State v. Harris, 182 Conn. 220, 224, 438 A.2d 38 (1980). The role motive plays in any particular case necessarily varies with the strength of the other evidence in the case. The other evidence may be such as to justify a conviction without any motive being shown. It may be so weak that without a disclosed motive the guilt of the accused would be clouded by a reasonable doubt. State v. Rathbun, supra, 529-30.” (Emphasis in original; internal quotation marks omitted.) State v. Pinnock, supra, 790. Indeed, under the facts of this case, the lack of a disclosed motive presented a fatal blow to an already weak case.

“It is axiomatic that any conclusion, reasonably to be drawn from the evidence, which is consistent with the innocence of the accused must prevail. State v. Guilfoyle, 109 Conn. 124, 139, 145 A. 761 [1929]. State v. Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955); State v. Morrill, [193 Conn. 602, 610, 478 A.2d 994 (1984)]. The trier may not reach a conclusion of guilt where the facts, established by the evidence, including those reasonably and logically inferred from other proven facts, are rationally consistent with the innocence of an accused. A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion. State v. Smith, 138 Conn. 196, 200, 82 A.2d 816 [1951]. State v. Foord, supra, 295; State v. Martin, [195 Conn. 166, 173, 487 A.2d 177 (1985)]; State v. Morrill, supra, 610-11. Moreover, inferences which do not have a basis in facts established by the evidence cannot be drawn or relied upon to sustain a verdict. State v. Jackson, 176 Conn. 257, 264, 407 A.2d 948 (1978). The jury may not resort to speculation and conjecture. State v. Saracino, 178 Conn. 416, 419, 423 A.2d 102 (1979). If the evidence is insufficient to sustain the burden of proof beyond a reasonable doubt, the verdict must be set aside. State v. Jackson, supra, 262.” (Internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 84, 570 A.2d 203 (1990). It is clear to me that the defendant was deprived of his state and federal constitutional rights to due process of law because, given the tenuous nature of the evidence used to convict him, the state did not meet its burden of proof beyond a reasonable doubt and, therefore, to convict the defendant, the jury must have resorted to speculation and conjecture. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Carpenter, supra, 82.

Because I would vacate the judgment and remand the matter to the trial court with direction to render judgment that the defendant was not proven guilty of the crime of arson in the first degree beyond a reasonable doubt, I have not discussed the defendant’s other claims of error. By not addressing them, I do not adopt the conclusion and reasoning of the majority on some of these issues. Accordingly, I respectfully dissent.

       General Statutes § 53a-lll (a) (1) provides that “[a] person is guilty of arson in the first degree when, with intent to destroy or damage a building, as defined in section 53a-100, he starts a fire or causes an explosion, and (1) the building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied.”

       We agree with the dissent that the facts of this case are distinguishable from those in State v. Famiglietti, 219 Conn. 605, 595 A.2d 306 (1991), in that, here, the defendant did not have sole access to the scene of the fire. The cases are similar, however, insofar as “the record in this case contains direct evidence of the defendant’s presence at the premises shortly before the fire and of his continued presence there at a time when [the fire started].” Id., 614. This presence is probative of the perpetrator’s identity. It is conceivable that someone other than the defendant could have started the fire but not likely. Hugins and Keselewski were never under any suspicion and, furthermore, Keselewski was at another automobile dealership on the morning of the fire. Moreover, although it is hypothetically possible that an unidentified person could have entered the building through the rear door, proceeded to the second floor, lit the fire, and then left undetected, the jury could have reasonably rejected such speculation.

       The defendant has raised two other claims related to the admission of his statement. Both merit little discussion.
      In light of the lack of evidence that the authorities had spoken to the defendant before he made his statement, we conclude that there is no merit to the defendant’s claim that he was forced, in violation of the fifth and fourteenth amendments to the United States constitution, to testify against himself in order to exonerate himself with respect to his statement.
      Because we determine that the trial court did not abuse its discretion in admitting the statement, we disagree with the defendant’s claim that a curative instruction was required with respect to the admission of the statement into evidence.

       The sentencing court stated: “To say the obvious, this is a case that troubles the Court very much. It troubled me during the course of the trial, because, as everyone will recall, even as a part of the arguments in the case and with reference to the instructions, there never appeared to be any particular motive for whatever happened [at] Eckblade on that particular day.”

       Moreover, “especially when the prosecution’s case against the criminal defendant is circumstantial, the fact that the defendant had some motive, good or bad, for committing the crime is one of the circumstances which, together with other circumstances, may lead the factfinder to conclude that he did in fact commit the crime; whereas lack of any discernible motive is a circumstance pointing in the direction of his innocence.” 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 3.6 (b), p. 324.