text:
    John N. Adriani, Sr. v. Commission on Human Rights and Opportunities et al.
    (14687)
    Peters, C. J., Borden, Norcott, Katz and Palmer, Js.
    Argued October 27, 1993—
    decision released February 15, 1994

      Leon M. Rosenblatt, for the appellant (plaintiff).

      Charles Krich, staff attorney, with whom was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).

      Susan K. Krell, with whom were Peter M. Wendzel and, on the brief, Andrew A. Cohen, for the appellee (defendant United Illuminating Company).
   Norcott, J.

The dispositive issue in this appeal is whether the trial court properly determined that the commission on human rights and opportunities (commission) had applied correctly the reasonable cause standard to the facts of this case. The plaintiff, John N. Adriani, Sr., appeals from the judgment of the trial court dismissing his claims of procedural irregularities during a hearing before the commission. He claims that the trial court: (1) incorrectly determined that the commission’s investigator (investigator) had properly applied the standard of reasonable cause in his consideration of the plaintiffs complaint; and (2) improperly-refused to allow the plaintiff to elicit testimony from the investigator as to how he had applied the reasonable cause standard to particular factual disputes. We affirm the judgment of the trial court.

The facts of this case were previously set forth in Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 309-14, 323-25, 596 A.2d 426 (1991). They are summarized briefly as follows: The plaintiff resigned from his position as a buyer for the defendant United Illuminating Company (United Illuminating), after he had been given the choice of resigning or being fired. The plaintiff subsequently filed a complaint with the commission alleging that United Illuminating had violated his rights under General Statutes (Rev. to 1987) § 46a-60 (a) (l) by discriminating against him on the basis of a physical disability. The commission dismissed his complaint without a hearing on the basis of its finding that there was no reasonable cause to believe that a discriminatory practice had been committed by United Illuminating against the plaintiff. The plaintiff appealed to the Superior Court, which (1) denied the plaintiffs motion to supplement the administrative agency record by introducing testimony of the investigator in order to prove alleged procedural irregularities in the commission’s disposition of his case, and (2) dismissed his complaint on the grounds that there was substantial evidence in the record to support the investigator’s finding, adopted by the commission, that there was no reasonable cause to believe that United Illuminating had committed a discriminatory act in violation of § 46a-60 (a) (1). The plaintiff appealed to this court and, upon consideration of his claims, we remanded the case to the trial court with direction to conduct an evidentiary hearing to afford the plaintiff an opportunity to supplement the agency record with evidence of alleged procedural irregularities. Id., 329. Following our remand, the trial court determined that the investigator had understood and applied the standard of reasonable cause to the plaintiff’s case correctly, and the plaintiff appealed.

I

The plaintiff first claims that the investigator improperly applied the reasonable cause standard to his case. He argues that evidence introduced at the trial court hearing indicated that the investigator had applied a subjective test rather than an objective test to the facts of his case. The plaintiff further claims that since the trial court’s memorandum of decision does not contain a detailed explanation of its conclusion that the investigator had understood and properly applied the reasonable cause standard to his case, this court should review the decision of the trial court de novo. We disagree.

Appellate review of fact bound rulings of the trial court is limited to a determination of whether there has been a clearly erroneous finding of fact. Einbinder v. Board of Tax Review, 217 Conn. 240, 242, 584 A.2d 1188 (1991); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); see also Practice Book § 4061. “The resolution of conflicting factual claims falls within the province of the trial court.” (Internal quotation marks omitted.) Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 666, 594 A.2d 958 (1991). “This court cannot retry the facts or pass on the credibility of witnesses.” Vesce v. Lee, 185 Conn. 328, 335, 441 A.2d 556 (1981).

In Adriani v. Commission on Human Rights & Opportunities, supra, 315-17, we held that reasonable cause determinations made pursuant to General Statutes (Rev. to 1987) § 46a-83 require an investigator to consider all reliable probative evidence, including evidence unfavorable to a complainant’s claim. We further held that the term “reasonable cause” as used in § 46a-83 is synonymous with the term “probable cause.” Id., 316. “Probable cause is a bona fide belief in the existence of facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Probable cause is a flexible common sense standard. ... It deals with probabilities, and the application of the factual and practical considerations of everyday life on which reasonable and prudent men act.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.

At the evidentiary hearing before the trial court, the plaintiff elicited testimony from the investigator. The investigator testified repeatedly that he had understood the reasonable cause standard and had applied it to the facts of the plaintiff’s case. The trial court found that the investigator had “fully understood the ‘reasonable cause’ standard” as it has been interpreted by this court, and that that standard had been applied correctly by the investigator to the facts of the plaintiff’s case. The plaintiff cites no authority for his invitation to review this finding of the trial court de novo. We have no reason, therefore, to disturb the trial court’s finding.

II

The plaintiff also claims that the trial court abused its discretion when it prevented him from questioning the investigator about his mental process in applying the reasonable cause standard to the specific facts of the plaintiff’s case. He argues that when an investigator has made a finding of no reasonable cause, an inquiry into the specific mental processes used by the investigator in reaching that decision is necessary to facilitate appellate review. We disagree.

In reviewing decisions made by an administrative agency, a reviewing court must sustain the agency’s determination if “an examination of the record discloses evidence that supports any one of the reasons given. . . . The evidence, however, to support any such reason must be substantial . . . (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 588, 628 A.2d 1286 (1993). “[A]n adjudicating official may not ordinarily be subjected to inquiry concerning the mental process used in reaching a decision.” Henderson v. Department of Motor Vehicles, 202 Conn. 453, 459, 521 A.2d 1040 (1987); Martone v. Lensink, 215 Conn. 49, 54, 574 A.2d 803 (1990).

The plaintiff urges us to allow inquiry into an investigator’s subjective impressions of individual pieces of evidence. Such an inquiry, as a practical matter, would allow a litigant to challenge each factual determination of an investigator, and would require a reviewing court to conduct a de novo review of an administrative agency’s findings. We have consistently held that de novo review is inappropriate for review of the factual findings of administrative agencies. DeBeradinis v. Zoning Commission, 228 Conn. 187,199, 635 A.2d 1220 (1993); Samperi v. Inland Wetlands Agency, supra, 587; Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). Reasonable cause is determined upon a consideration of all of the evidence. See part I of this opinion. Reasonable cause determinations are not made as to individual facts. Accordingly, the plaintiff’s claim is without merit.

The judgment is affirmed.

In this opinion the other justices concurred.

       The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       General Statutes (Rev. to 1987) § 46a-60 (a) (1) provides: “It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation or physical disability, including, but not limited to, blindness.”

       Practice Book § 4061 provides: “The court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”

       As was noted in Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 313 n.6, 596 A.2d 426 (1991), General Statutes (Rev. to 1987) § 46a-83 was amended by No. 89-332 of the 1989 Public Acts to provide a statutory definition of the “reasonable cause” standard. Section 46a-83 (a) thereafter provided in relevant part: “As used in this section and section 46a-84, reasonable cause means a bona fide belief that the material issues of fact are such that a person of ordinary caution, prudence and judgment could believe the facts alleged in the complaint.”
      The amended version of the statute does not apply to complaints pending on January 1,1990, and is therefore not applicable to the present case.

       For example, the following colloquy took place during the evidentiary hearing in the trial court:
      “[The Plaintiffs Counsel]: What does reasonable cause mean?
      “[Investigator]: Reasonable cause would mean that upon reviewing all the facts that you found on investigation of a case that you then make a determination based on your analysis . . . whether a person of reasonable rational thought could make a decision [like] that.”


source: Caselaw Access Project

author: Santaniello, J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Keith DePastino
    (14695)
    Peters, C. J., Callahan, Borden, Berdon and Santaniello, Js.

      Argued November 2, 1993—
    decision released February 22, 1994

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

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, chief state’s attorney, and John M. Massameno, senior assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, Keith DePastino, was convicted by a jury of two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), two counts of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l) and one count of risk of injury to a child in violation of General Statutes § 53-21. He was sentenced by the trial court to a total effective term of imprisonment of forty years, execution of which was suspended after thirty years with five years probation. The defendant appealed from the judgment of conviction to the Appellate Court pursuant to General Statutes § 54-95 (a), and we transferred the case to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

On appeal, the defendant claims that the trial court improperly: (1) denied his motion for a new trial based upon the loss of stenographic notes that precluded him from having a complete trial transcript; (2) denied his motion for a new trial based upon a violation of his right to a speedy appeal; (3) admitted evidence of the defendant’s alleged threats to the victims’ mother and grandmother as evidence of consciousness of guilt; (4) permitted a constancy of accusation witness to testify before the victim had testified; (5) admitted certain constancy of accusation evidence; (6) admitted the victim’s videotaped interview as constancy of accusation evidence; (7) denied his motion for a judgment of acquittal for the offense of sexual assault in the first degree of the younger victim; (8) violated his right against double jeopardy by allowing his convictions for sexual assault in the first and second degree of each victim to stand; and (9) instructed the jury that a reasonable doubt is a doubt for which a valid reason can be assigned. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1985, the defendant resided in an apartment with his girlfriend, her three year old daughter and their eighteen month old daughter. On November 1, 1985, while alone in the apartment with the children, the defendant sexually assaulted the older child. Subsequently, the older child watched the defendant sexually assault the younger child in her crib and make that child cry. Eight days later the defendant struck the older child, bruising her cheek.

When the children’s maternal grandmother learned of the physical abuse, she took the older child to live with her. A few days later, the grandmother noticed a vaginal rash on the older child and brought her to a counseling center. During the second visit to the center, through the use of anatomically correct dolls, the child told the director what had happened. The director brought the older child and her grandmother to a pediatrician whose practice included the diagnosis and treatment of child victims of sexual abuse. The doctor also examined the younger child. The doctor concluded that both children had been sexually abused. An examination of both children by a second physician confirmed the diagnosis.

I

The defendant first claims that the trial court improperly denied his motion for a new trial. His motion was based on the fact that certain stenographic notes of his trial were lost thus preventing him from having a complete trial transcript for appeal. The defendant contends that the unavailability of a complete trial transcript has deprived him of his constitutional right to meaningful appellate review. We disagree.

The absence of the court reporter’s notes for the testimony of one of the defendant’s witnesses was discovered while the transcript of his trial was being prepared. The trial court conducted a hearing to investigate the extent of the notes that were missing and the effect on the defendant’s appeal. At this hearing the court learned that the court reporter had recorded testimony of the witness in question during the trial. When the court examined a copy of the available transcript that had been prepared during the trial, however, it discovered that the transcript was incomplete. Although the transcript included the witness’ entire trial testimony, the text of any objections or discussions that had occurred during the testimony had been omitted and replaced with the word “objection” or “discussion.”

The transcript of the witness’ testimony is approximately 200 pages in length and contains five objections raised by the state during direct examination, thirteen objections raised by the defendant during cross-examination, and one objection raised by the state during redirect examination. The word “discussion” appears twenty times during cross-examination. The entire trial transcript is approximately 1800 pages in length.

In its memorandum of decision on the defendant’s motion for a new trial, the trial court stated that it had conducted a line by line review of the witness’ testimony and found the transcript “sufficiently complete” to enable the defendant to pursue his appeal. The court noted that although the transcript does not indicate what transpired during the “discussions,” the defendant’s trial attorney could recollect nothing unusual happening, and had not made any notations of unusual occurrences. The court also noted that the subject of the objections, and the court’s rulings thereon, could be determined with a high degree of probability from a careful reading of the transcript and, therefore, that the transcript was sufficient for an appellate court to “determine if errors were made.” Finally, the court noted that the primary purpose of the witness’ testimony was to impeach testimony that had been introduced to show constancy of accusation. The available transcript indicated that the witness had been sufficiently allowed to testify for such purpose.

“The absence of a portion of the trial transcript does not mandate a new trial.” State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). The state is not required to furnish to the defendant a verbatim transcript of the underlying trial. Id. The state must ensure only that the record is adequate for effective appellate review of any claims of error raised by the defendant. Id., 106. A new trial is required only if the record, as reconstructed, is inadequate for this purpose. Id., 105.

“The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court's finding that the reconstructed record was sufficient unless the appellate court finds that the trial court’s determination was ‘clearly erroneous.’ ” Id., 106.

In most cases concerning reconstructed transcripts, the missing portion of the transcript consists primarily of the testimony of witnesses. See, e.g., id., 104-105 (proceedings of one afternoon of trial missing); Commonwealth v. Harris, 376 Mass. 74, 78-79, 379 N.E.2d 1073 (1978) (entire transcript missing); People v. King, 160 App. Div. 531, 532, 554 N.Y.S.2d 517, appeal denied, 76 N.Y.2d 847, 559 N.E.2d 1291, 560 N.Y.S.2d 132 (1990) (state’s entire case missing). In the present case, however, the testimony given by the witness had been recorded. Only the text of objections and discussions were omitted.

Before a defendant can establish that he is entitled to a new trial on the basis of an incomplete trial record, he must identify a specific claim of error that the appellate court will be unable to review effectively using the reconstructed record. State v. Williams, supra, 109. The defendant disputes the trial court’s conclusion that the witness had been called mainly to impeach the constancy of accusation testimony of the state’s witness. He asserts that the witness’ testimony was offered to dispute the victim’s testimony as well as the testimony of the state’s expert witness. The defendant has not, however, identified a claim of error that cannot be reviewed on the basis of the reconstructed record, nor has he shown that he has been prejudiced in advancing any identified claims of error.

Finally, the defendant claims that, because he is represented on appeal by different counsel, he is unfairly prejudiced by the absence of the portions of the transcript. The defendant’s counsel on appeal, however, has been in communication with his trial counsel, and has had the benefit of the trial counsel’s recollections of what transpired at trial. The trial counsel has no recollection of any unusual rulings by the trial court, and had made no notes of possible errors to be raised on appeal. Although she was not the trial counsel, the appellate counsel has not been unduly prejudiced by the reconstructed transcript.

We conclude that the trial court’s ruling that the reconstructed record was adequate for effective appellate review was not clearly erroneous.

II

The defendant next claims that the trial court improperly denied his request for a new trial based upon an alleged violation of his right to a speedy appeal. We disagree.

In May, 1989, after the defendant had filed his appeal and ordered a copy of the trial transcript, he learned that the court reporter who had transcribed the defendant’s trial was no longer employed by the state and had refused to prepare the transcript at the rate mandated by statute. The state therefore employed a note reader to prepare the transcript. In December, 1990, the court conducted a hearing concerning a missing portion of the transcript and discrepancies between the note reader’s transcript and one prepared by the court reporter before she had left the state’s employ.

At a subsequent hearing, on August 26, 1991, the court determined that the note reader’s transcript was inadequate for appellate review, and ordered the original court reporter to prepare a complete transcript of the trial by April 6,1992. When the court reporter had not complied with the court’s order by April 14,1992, the court found the reporter in contempt and ordered her to complete the transcript by June 15, 1992. The court reporter complied with this order of the court.

A criminal defendant does not have a constitutional right to appeal his conviction. Abney v. United States, 431 U.S. 651, 656, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). Once that right has been established, however, the state must ensure that the right to appeal is not unduly delayed. State v. Files, 183 Conn. 586, 589, 441 A.2d 27 (1981). In determining whether a defendant’s right to a speedy trial has been violated, this court has balanced, on a case by case basis, several factors first identified by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Gaines v. Manson, supra, 521; State v. Files, supra. The “four factors which form the matrix of the defendant’s right to speedy adjudication [are] ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ” State v. Files, supra, quoting Barker v. Wingo, supra. We apply the same factual matrix to the defendant’s claim of a lack of a speedy appeal.

There was approximately a three year delay from the time the defendant filed his appeal until the trial court’s denial of his motion for a new trial. The trial court compared the delay in the present case to the delays in Gaines v. Manson, supra, and concluded that the delay was unacceptable. A three year delay is sufficient to require the court to proceed to consider the remaining factors in the test. See State v. Files, supra, 590.

The delay in the present case was caused by the refusal of a court reporter, who was no longer employed by the state, to prepare a transcript at the rate paid to state-employed reporters. We have previously noted that claims for relief for appellate delay caused by delays in the delivery of transcripts must include a showing of actual prejudice when the failures involved were individual rather than systemic. Gaines v. Manson, supra, 526-27.

The defendant contends that the state has provided an inadequate means to obtain transcripts from court reporters who leave state service and, therefore, that the delay should be characterized as institutional rather than individual. This argument is unpersuasive. The defendant has not shown that his difficulty in obtaining a transcript was anything more than a problem with one uncooperative former court reporter. He has not provided any evidence to demonstrate that this occurrence was part of an institutional practice.

The trial court acknowledged that the defendant had consistently asserted his right to a speedy appeal. The state asserts that it also has diligently pursued a solution to this matter.

The defendant contends that he has been prejudiced by his continued incarceration. He also asserts that he may suffer prejudice in organizing his defense should he be awarded a new trial. The trial court noted that “[a]s far as I can see, there’s no prejudice in prosecuting the appeal, once it gets under way.” The trial court noted that, because the defendant had been incarcerated for three years while he was unable to prosecute his appeal due to this delay, the defendant’s bond should be reduced so that he could be released pending the completion of his appeal as long as he complied with the conditions of his bond. The defendant’s bond was subsequently reduced and he was released pending his appeal.

We conclude that the delay in this case was caused by an individual rather than an institutional failure. The cause of the delay, therefore, does not weigh against the state in the balancing process. The defendant claims that the delay prejudiced him by his continued incarceration. The trial court, recognizing this problem, remedied it by recommending revision on his bond enabling him to be released from custody pending his appeal. The defendant has not demonstrated that he suffered actual prejudice by the delay caused by the incomplete transcript. The trial court, after balancing the factors discussed above, correctly determined that the defendant’s right to a speedy appeal was not violated in this case.

Ill

The defendant further claims that the trial court improperly allowed the state to introduce, as evidence of consciousness of guilt, threats he had made to his girlfriend. We disagree.

On November 22,1985, the older child first revealed that she had been sexually assaulted. On November 23, 1985, the defendant entered a restaurant and approached his girlfriend while she was having dinner with friends and threatened his girlfriend and her mother. The defendant argued that the state had not established that, at the time he made the threats, the defendant was aware of an investigation into his conduct with the children, and that the prejudicial effect of the testimony outweighed its probative value.

The trial court rejected the defendant’s argument and ruled that a fair inference could be drawn from the conversation between the defendant and his girlfriend that he “had knowledge that there was some type of an investigation [in] progress.” The trial court also concluded that the prejudicial effect of the threats did not outweigh their probative value.

“In a criminal trial, it is relevant to show the conduct of an accused, as well as any statement made by him subsequent to the alleged criminal act, which may fairly be inferred to have been influenced by the criminal act. State v. Cronin, 64 Conn. 293, 304-305, 29 A. 536 [1894].” (Internal quotation marks omitted.) State v. Maturo, 188 Conn. 591, 597, 452 A.2d 642 (1982). Evidence of threats by the defendant against a witness may be admitted “on the theory that such conduct is inconsistent with the defendant’s claim of innocence or on the theory that the making of such threats evinces a consciousness of guilt.” State v. Walker, 214 Conn. 122, 129, 571 A.2d 686 (1990). The court must consider whether the probative value of such testimony outweighs its prejudicial effect before admitting consciousness of guilt evidence. State v. Moynahan, 164 Conn. 560, 596, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973).

The trial court exercises broad discretion over the admissibility of evidence. In reviewing the actions of the trial court, “every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 17, 629 A.2d 386 (1993).

After examining the record, we find that it was reasonable for the trial court to conclude that the defendant was aware that a criminal investigation of his behavior either had already begun or would soon commence. The children’s grandmother had accused the defendant of child abuse on November 10,1985, when she removed the older child from his home. Additionally, the defendant’s statement that his girlfriend was taking her mother’s side indicates that he was aware of a worsening problem concerning his treatment of the children. The threats were highly probative of the defendant’s guilt. We conclude that the trial court did not abuse its discretion in admitting testimony concerning the threats made by the defendant as evidence of consciousness of guilt.

IV

The defendant next claims that the trial court improperly permitted one of the state’s witnesses, a physician, to testify regarding the older victim’s statement to the physician that the defendant had abused her. Specifically, the defendant claims that the evidence was inadmissible either (a) as constancy of accusation evidence because the victim had not yet testified, or (b) under the medical diagnosis and treatment exception to the hearsay rule.

The state offered the testimony of the physician under the medical diagnosis and treatment exception to the hearsay rule. The physician testified that his pediatric practice includes examining child victims of sexual abuse. As part of the examination he interviews the child to ensure that the child does not remain in a dangerous situation and to enable him to recommend counseling for the child. The physician examined the older child on November 22, 1985, and observed symptoms of sexual abuse including redness and irritation. When the physician asked her what had happened to her vaginal area, the child told him that “Daddy touched me there.”

The defendant objected to the admission of the physician’s testimony on the ground that the physician was not the child’s treating physician. The trial court ruled, however, that the physician’s testimony was admissible under the medical diagnosis and treatment exception to the hearsay rule.

Out-of-court statements made by a patient to a physician may be admitted into evidence if the declarant was seeking medical diagnosis or treatment, and the statements are reasonably pertinent to achieving these ends. State v. Wood, 208 Conn. 125, 134, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988). Statements concerning the cause of the injury or the identity of the person who caused the injury usually are not relevant to treatment and, therefore, are not admissible under the medical diagnosis and treatment exception to the hearsay rule. State v. Dollinger, 20 Conn. App. 530, 534, 568 A.2d 1058, cert. denied, 215 Conn. 805, 574 A.2d 220 (1990). However, “ ‘[i]n cases of sexual abuse in the home, hearsay statements made in the course of medical treatment which reveal the identity of the abuser, are reasonably pertinent to treatment and are admissible.’ State v. Maldonado, [13 Conn. App. 368, 374, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988)]. If the sexual abuser is a member of the child victim’s immediate household, it is reasonable for a physician to ascertain the identity of the abuser to prevent recurrences and to facilitate the treatment of psychological and physical injuries.” State v. Dollinger, supra, 535.

The defendant contends that the physician was not the child’s treating physician and, therefore, that her statements to the physician were not motivated by a desire for treatment. The physician conducted a complete physical examination of the child, asked questions to confirm his diagnosis and to formulate a recommendation for treatment, and conducted a follow-up examination several weeks later. Although the child and her grandmother were brought to the physician by the director of the counseling center, there was sufficient evidence for the trial court reasonably to conclude that the purpose of the visits to the physician was for treatment. The defendant has failed, therefore, to demonstrate that the trial court abused its discretion because the physician’s testimony does not fall under the medical diagnosis and treatment exception to the hearsay rule.

The defendant contends, however, that the physician’s testimony was intended to show constancy of accusation and, therefore, that the trial court improperly permitted him to testify before the older child had testified. We have consistently held that constancy of accusation testimony is admissible to corroborate the victim’s story after the victim has first testified as to what transpired and to whom she related the event. State v. Brice, 186 Conn. 449, 453, 442 A.2d 906 (1982); State v. Segerberg, 131 Conn. 546, 548-49, 41 A.2d 101 (1945). Even if we assume that the physician’s testimony was admitted to show constancy of accusation and that permitting the physician to testify before the child testified would therefore have been improper, we must determine whether the trial court’s arguably improper ruling “was so prejudicial to the rights of the defendant as to deprive him of a fair trial, and so, to constitute harmful error.” State v. Ruth, 181 Conn. 187, 196, 435 A.2d 3 (1980).

The physician began his testimony and discussed his examination of and conversation with the older child before she testified. During his direct examination, he was called away by an emergency. Following the older child’s testimony, the physician completed his testimony. The conclusion of the direct examination of the physician, and his entire cross-examination, therefore, followed the child’s testimony.

Because the defendant’s cross-examination of the physician occurred after the child had testified, he was able to question the physician concerning any possible discrepancies between the older victim’s testimony at trial and the physician’s recollection of what she had told him. We conclude that the rights of the defendant were not prejudiced by the events at the trial. Any impropriety caused by permitting the physician to begin testifying before the older child had testified, therefore, was harmless.

y

The defendant further contends that the trial court violated his state and federal rights to confrontation and a fair trial by admitting the testimony of five constancy of accusation witnesses. The defendant concedes that he did not preserve this claim at trial. He seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

The constancy of accusation rule “is an evidentiary rule of long standing in this jurisdiction.” State v. Dabkowski, 199 Conn. 193, 199, 506 A.2d 118 (1986). Although the hearsay rule and the confrontation clause are intended to protect similar rights, the confrontation clause is not merely a codification of the hearsay rule. State v. Brigandi, 186 Conn. 521, 531-32, 442 A.2d 927 (1982). In the present case, the defendant was able to cross-examine the older child as well as each constancy of accusation witness to test their credibility. We find no violation of the defendant’s right to confrontation. Because this claim fails the second prong of the test set forth in State v. Golding, supra, we decline to review it further. We have consistently denied review of the same unpreserved claim that the defendant attempts to raise here. See, e.g., State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992); State v. Allen, 216 Conn. 367, 385, 579 A.2d 1066 (1990); State v. Rogers, 199 Conn. 453, 462, 508 A.2d 11 (1986); State v. Brigandi, supra, 531-32; State v. Brice, 186 Conn. 449, 458, 442 A.2d 906 (1982).

VI

The defendant next claims that the trial court improperly admitted a videotaped interview of the older child as constancy of accusation evidence. We disagree.

During the testimony of a social worker assigned to investigate the case by the department of children and youth services, the state offered as constancy of accusation evidence a videotaped interview that the social worker had conducted with the older child. The interview had been videotaped for use by the police in their investigation so that the police would not have to interview the child a second time. Statements made by the older child to the social worker at earlier unrecorded interviews were also introduced as constancy of accusation evidence. The trial court overruled the defendant’s objection to the introduction of the videotaped interview.

The Appellate Court has previously rejected a similar claim that the admission of a tape-recorded statement of the victim is inadmissible as constancy of accusation evidence. State v. Bethea, 24 Conn. App. 13, 20-21, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). The defendant contends that the circumstances of this case should be distinguished because the videotape was prepared for use by the prosecution. We disagree. The facts in this case are indistinguishable from those in State v. Bethea, supra, where the victim gave a tape-recorded statement to the police. Furthermore, the defendant had the opportunity to cross-examine the older child about her accusations as well as the social worker about the circumstances under which the child’s statement was recorded. In sum, we agree with the reasoning of the Appellate Court in State v. Bethea, supra, on this issue.

Other jurisdictions have also admitted videotaped statements of sexual assault victims as constancy of accusation evidence. See, e.g., Commonwealth v. Lavalley, 410 Mass. 641, 574 N.E.2d 1000 (1991); State v. Robinson, 782 S.W.2d 694 (Mo. App. 1989). We can perceive no difference between tape-recorded and videotaped statements for evidentiary purposes. The trial court, therefore, properly admitted the videotaped statement.

YII

The defendant next argues that the trial court improperly denied his motion for acquittal for the offense of sexual assault in the first degree of the younger child. He asserts that “the state failed to prove the requisite elements of compulsion, and that the use or threat of use of force reasonably caused [the younger child] to fear physical injury.” We disagree.

“[W]e have ‘consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction.’ ” State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). “ ‘First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’ ” Id. That the evidence is circumstantial rather than direct does not diminish the probative force of that evidence. State v. Carpenter, 214 Conn. 77, 79, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034,112 S. Ct. 877,116 L. Ed. 2d 781 (1992).

General Statutes § 53a-70 (a) in pertinent part defines sexual assault as compelling “another person to engage in sexual intercourse by the use of force against such other person . . . .” General Statutes § 53a-65 (7) includes within the definition of the term “use of force” “use of actual physical force or violence or superior physical strength against the victim.” The state contends that in light of this statutory definition, it could meet its burden of proof that the defendant had committed sexual assault in the first degree against the younger child by producing evidence that he had used superior physical strength to compel her to engage in sexual intercourse.

The state presented evidence that the older child saw the defendant pull down the side of the younger child’s crib and insert his penis into her vagina. The younger child cried during the sexual assault. A physician testified that the younger child’s vaginal area was red, swollen and bruised. He also testified that the insertion of any object into the younger child’s vagina would have been extremely painful. Considering the relative size difference between the defendant and his eighteen month old daughter, the injuries to her vaginal area, the fact that she was crying during the assault and the testimony of the physician that the assault would have been very painful to the child, the jury from the evidence reasonably could have concluded beyond a reasonable doubt that the defendant compelled the younger child to engage in sexual intercourse by using superior physical strength.

We conclude that the trial court properly denied the defendant’s motion for acquittal on the charge of sexual assault in the first degree of the younger child.

VIII

The defendant also claims that his convictions for sexual assault in the first degree and second degree for each victim violate his right against double jeopardy under the state and federal constitutions.

The defendant has not provided a separate analysis under state constitutional law. Accordingly, we will apply only the traditional federal constitutional analysis to his claim. See, e.g., State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991).

Double jeopardy prohibits multiple punishments for the same offense. State v. Snook, 210 Conn. 244, 260, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258,106 L. Ed. 2d 603 (1989). “Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) Id., 264. “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision required proof of a fact which the other does not.” (Internal quotation marks omitted.) Id; see also Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

The Appellate Court, on two prior occasions, has rejected identical claims. See State v. Russell, 25 Conn. App. 243, 248-52, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991); State v. Blackwell, 20 Conn. App. 193, 195-98, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989). In this case, each statute requires proof of a fact that the other does not. To be convicted of sexual assault in the second degree, the defendant must have had sexual intercourse with a person under the age of fifteen. Sexual assault in the first degree, however, is intended to protect all persons, without age limitation, from compelled sexual assault. State v. Russell, supra, 251. Additionally the legislative history of these statutes does not indicate that the legislature intended that these two statutes “be classified as two nominally distinct crimes for which only one punishment could be imposed.” Id. The defendant has offered no reasoned analysis to persuade us that we should now overrule Russell and Blackwell and we decline to do so. Accordingly, this claim is without merit.

IX

Finally, the defendant claims that the trial court improperly defined a reasonable doubt as “a doubt for which a valid reason can be assigned.” Because this claim was not preserved at the trial, the defendant seeks review under the procedure set forth in State v. Golding, supra.

We have repeatedly held that this exact instruction is not constitutionally defective. See State v. Gomez, 225 Conn. 347, 353, 622 A.2d 1014 (1993), and the cases cited therein. This claim, therefore, does not satisfy the third prong of the Golding test. Accordingly, we will not review it.

The judgment is affirmed.

In this opinion Peters, C. J., Callahan and Borden, Js., concurred.

Berdon, J.,

dissenting.

The constancy of accusation rule, as applied in Connecticut, raises serious constitutional questions under the state and federal rights to confrontation. See C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 11.22.1. I would reach this important issue.

The court fails to analyze the issue, stating that the second prong of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), has not been met. This prong requires that the claim be “of constitutional magnitude alleging the violation of a fundamental right . . . .’’Id., 239. Of course, the right of the defendant to confront witnesses against him is a fundamental right under the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut.

Accordingly, I respectfully dissent.

       At the time the defendant committed the offense, General Statutes (Rev. to 1985) § 53a-70 (a) provided: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       At the time the defendant committed the offense, General Statutes (Rev. to 1985) § 53a-71 (a) (1) provided in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under fifteen years of age . . . .”

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

       General Statutes § 54-95 (a) provides in relevant part: “Any defendant in a criminal prosecution, aggrieved by any decision of the superior court, upon the trial thereof, or by any error apparent upon the record of such prosecution, may be relieved by appeal . . . .”

       General Statutes § 51-199 (c) provides in relevant part: “The supreme court may transfer to itself a cause in the appellate court . . . .”

       The defendant bases this constitutional claim on General Statutes § 54-95, the statutory provision that provides to defendants the right to appeal, and decisions of the United States Supreme Court holding that any right to appeal provided by statute must be a meaningful review of the proceeding below. See, e.g., Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).

       The transcript of this witness’ testimony had been prepared at the request of an assistant district attorney in California.

       In Gaines v. Manson, 194 Conn. 510, 521, 481 A.2d 1084 (1984), indigent prisoners had waited from two to four and one-half years before a public defender was made available to work on their appeals.

       The state made an offer of proof concerning the threats. “The defendant said something to the effect of why are you doing this? You are going to take her side, referring to [the girlfriend’s] mother. He asked the witness to go out and so that they could talk about it. She refused and said no. He responded by saying you better watch out, you might end up dead, and your mother better be careful when she starts her car. He began to bang on the table, and finally left.”
      The girlfriend’s testimony was consistent with the state’s offer of proof.

       The defendant does not claim that there is insufficient evidence in this record from which the trial court could have reasonably concluded that this admittedly very young victim was aware that she was visiting the physician in order to alleviate the symptoms discovered in her vaginal area. Cf. State v. Dollinger, 20 Conn. App. 530, 536, 568 A.2d 1058 (1990) (two and one-half year old child was aware of discomfort and of need for medical attention); State v. Maldonado, 13 Conn. App. 368, 372, 530 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988) (three year old was aware that she needed medical attention).

       The four conditions that must be satisfied before a defendant may prevail on an unpreserved claim of constitutional error are: (1) the record must be adequate to review the claim; (2) the claim must be of constitutional dimension, alleging the violation of a fundamental right; (3) the alleged constitutional violation must clearly exist and must have deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state must have failed to demonstrate harmlessness beyond a reasonable doubt. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).


author: Norcott, J.

text:
    Joseph Woronecki v. Wanda H. Trappe
    (14754)
    Peters, C. J., Borden, Berdon, Norcott and Katz, Js.
    Argued December 2, 1993—
    decision released February 22, 1994

      Jon L. Schoenhorn, with whom, on the brief, was Susan M. Phillips, legal intern, for the appellant (defendant).

      Michael H. Agranojf, with whom, on the brief, was Fatima T. Lobo, for the appellee (plaintiff).
   Norcott, J.

This appeal involves the right of a homeowner to recover compensatory damages and attorney’s fees from a home improvement contractor pursuant to: (1) the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; for a violation of the registration requirement of General Statutes (Rev. to 1989) § 20-427 (b) of the Home Improvement Act (HIA); General Statutes § 20-418 et seq.; and (2) General Statutes § 49-51, *4*6for failure to discharge an invalid mechanic’s lien. The plaintiff, Joseph Woronecki, doing business as J & J Excavating Company, initiated an action to foreclose a mechanic’s lien against the defendant, Wanda H. Trappe, who filed an answer claiming, inter alia, that the lien was invalid because the plaintiff had violated the HIA.* * The defendant also filed a counterclaim alleging, inter alia, that the plaintiff’s conduct constituted an unfair trade practice under CUTPA and that the mechanic’s lien was invalid and should be discharged pursuant to § 49-51. The trial court ruled in favor of the defendant on the complaint and in favor of the plaintiff on the counterclaim. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We reverse the judgment of the trial court on the counterclaim and remand for further proceedings.

The relevant facts are as follows. The defendant owned a thirty-five acre tract of residential property located in Somers, on which were located two houses, a pasture and a horse barn. In April, 1990, the parties entered into an oral agreement whereby the plaintiff was to grade a portion of the defendant’s property, clear brush from the pasture and spread a pile of horse manure. The plaintiff commenced the work on April 19, 1990. A number of disputes arose concerning the scope of the job, the price of the job and alleged damage to the defendant’s property. After working for three days, the plaintiff left the property without having completed the projects and never returned. Subsequently, the plaintiff sent a bill to the defendant in the amount of $2300 for the work that he had completed. At the bottom of the bill the plaintiff had typed: “U/2% Interest will be charged per month on unpaid balance.” After receiving only $205 from the defendant, the plaintiff filed a mechanic’s lien against the defendant’s property.

The plaintiff initiated the present action to foreclose the mechanic’s lien and recover the balance allegedly due under the oral agreement. The defendant denied liability on the ground that the plaintiff’s failure to comply with the registration requirement of the HIA invalidated the lien and thereby precluded any recovery. In addition, the defendant filed a counterclaim alleging that the plaintiffs violation of the HIA entitled her to compensatory damages and attorney’s fees under CUTPA. The defendant also sought, by her counterclaim, to have the lien adjudged invalid pursuant to § 49-51 and to collect damages and attorney’s fees under that statute.

The trial court concluded that the services that had been performed by the plaintiff fell within the purview of the HIA, and that the plaintiff had not been “registered as a home improvement contractor at the time the work was performed.” On the basis of our decision in Barrett Builders v. Miller, 215 Conn. 316, 576 A.2d 455 (1990), the trial court concluded that the plaintiff could not recover for any home improvement services rendered because he was not registered as required by the HIA. Accordingly, the trial court rendered judgment for the defendant on the complaint and ordered that the mechanic’s lien be discharged.

The trial court also rejected each count of the defendant’s counterclaim. Notwithstanding its conclusion that the plaintiff had violated the HIA, the trial court held that the defendant had failed to prove a CUTPA violation. The court concluded that the plaintiff’s filing of an invalid lien was “not so egregious as to constitute an unfair trade practice” because, before trial, it was not clear “whether the Home Improvement [Act] would apply to landscaping around a horse barn.” The court further held that charging interest at 1.5 percent per month on the unpaid balance of the bill was not “such an unethical or unscrupulous act [as] to constitute a violation” of CUTPA. In addition, the trial court rejected the defendant’s application for discharge of the mechanic’s lien on the ground that the relief sought had been ordered in the judgment on the complaint.

On appeal, the defendant first argues, and the plaintiff has conceded, that the trial court could not simultaneously have ruled that the plaintiff’s actions violated the HIA, but did not result in a violation of CUTPA. The defendant correctly observes that the plain language of § 20-427 (b) and our decision in A. Secondino & Son, Inc. v. LoRicco, 215 Conn. 336, 576 A.2d 464 (1990), control the disposition of this case. In A. Secondino & Son, Inc., we concluded that the failure to comply with the HIA “is a per se violation of CUTPA by virtue of General Statutes § 20-427 (b), which provides that any violation of the Home Improvement Act is deemed to be an unfair or deceptive trade practice.” Id., 343. Because the trial court found that the plaintiff’s actions had violated the HIA, it was thus bound to render judgment for the defendant with respect to the CUTPA count of her counterclaim.

The defendant next argues that the trial court improperly rendered judgment for the plaintiff with respect to count five of the defendant’s counterclaim in which she applied for the discharge of the mechanic’s lien pursuant to § 49-51. The defendant argues that, as a result of the trial court’s ruling on the complaint, she had met all of the requirements of § 49-51, and that the trial court, therefore, was compelled to find in her favor on this counterclaim as a matter of law. “Section 49-51 permits any person having an interest in any real estate ‘described in any certificate of lien which lien is invalid but not discharged of record’ to give notice to the lienor to discharge the lien and, if such request is not complied with in thirty days, to bring his complaint to the court which would have jurisdiction of the foreclosure of such lien, if valid, claiming such discharge. That court may adjudge the validity or invalidity of the lien, and a certified copy of a judgment of invalidity recorded on the land records shall fully discharge it.” Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 375-76, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976). Notwithstanding the trial court's ruling as to the invalidity of the lien, the defendant, as the moving party, had the burden of proving compliance with the statutory notice requirement. Guilford Yacht Club Assn., Inc. v. Northeast Dredging, Inc., 192 Conn. 10, 13, 468 A.2d 1235 (1984).

Although the defendant presented evidence that she had sent the proper notice to the plaintiff, the trial court did not make a factual finding to that effect. Instead, the record reveals that the trial court found for the plaintiff on this count because, as it stated in its memorandum of decision, “the relief sought (discharge of the lien) was hereinbefore ordered.” In light of this statement, it is clear that the trial court did not consider the merits of this claim. It is axiomatic that the trial court must consider and dispose of all of the issues properly raised that are material to the resolution of the case. Joyce v. Templeton, 57 Md. App. 101, 106, 468 A.2d 1369 (1984); Blackstone Valley Gas & Electric Co. v. Rhode Island Transmission Co., 64 R.I. 204, 230, 12 A.2d 739 (1940). On remand, therefore, the trial court must determine whether the plaintiff met the statutory requirements for relief under § 49-51.

The defendant finally claims that if judgment is rendered for her on her counterclaim, then she is entitled, on remand, to damages and attorney’s fees under CUTPA and § 49-51 (a). In response, the plaintiff argues that the issue of attorney’s fees was fully litigated and that the trial court did not abuse its discretion when it pronounced: “Counsel fees are not awarded under the circumstances of this case.” The plaintiff’s argument is untenable, however, because the trial court’s statement must be construed in the context of its opinion in its entirety, including its rejection of the defendant’s counterclaim. Having determined, mistakenly, that the defendant had not established a violation of CUTPA or of § 49-51, the court never had the occasion to exercise its discretion with regard to the defendant’s alleged entitlement to damages or attorney’s fees under these statutes.

The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the trial court. A-G Foods, Inc., v. Pepperidge Farm, Inc., 216 Conn. 200, 218, 579 A.2d 69 (1990); Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988); Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983). Furthermore, the awarding of attorney’s fees under both CUTPA and § 49-51 (a) is delegated by statute to the discretion of the trial court. See footnote 7; see also Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987) (“[ajwarding punitive damages and attorney’s fees under CUTPA is discretionary”). A remand, therefore, is necessary in order to allow the trial court the opportunity properly to exercise its discretion regarding the award of damages and attorney’s fees.

The judgment is reversed with respect to the counterclaim and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1989) § 20-427 (b) provides: “No person shall: (1) Present or attempt to present, as his own, the certificate of another, (2) knowingly give false evidence of a material nature to the commissioner for the purpose of procuring a certificate, (3) represent himself falsely as, or impersonate, a registered home improvement contractor or salesman, (4) use or attempt to use a certificate which has expired or which has been suspended or revoked, (5) offer to make or make any home improvement without having a current certificate of registration under this chapter, (6) represent in any manner that his registration constitutes an endorsement of the quality of his workmanship or of his competency by the commissioner, (7) employ or allow any person to act as a salesman on his behalf unless such person is registered as a home improvement salesman, or (8) fail to refund the amount paid for a home improvement within ten days of a written request mailed or delivered to the contractor’s last known address, if no substantial portion of the contracted work has been performed at the time of the request and more than thirty days has elapsed since the starting date specified in the written contract. In addition to any other remedy provided for in this chapter, any person who violates any provision of this subsection shall be fined not more than five hundred dollars or imprisoned for not more than one year or be both fined and imprisoned. A violation of any of the provisions of this chapter shall be deemed an unfair or deceptive trade practice under subsection (a) of section 42-110b.”

       General Statutes § 49-51 provides: “discharge of invalid lien. (a) Any person having an interest in any real or personal property described in any certificate of lien, which lien is invalid but not discharged of record, may give written notice to the lienor sent to him at his last-known address by registered mail or by certified mail, postage prepaid, return receipt requested, to discharge the lien. Upon receipt of such notice, the lienor shall discharge the lien by sending a release sufficient under section 52-380d, by first class mail, postage prepaid, to the person requesting the discharge. If the lien is not discharged within thirty days of the notice, that person may apply to the superior court for such a discharge, and the court may adjudge the validity or invalidity of the lien and may award the plaintiff damages for the failure of the defendant to make discharge upon request. If the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.
      “(b) When a lien on real property is adjudged invalid or is otherwise discharged by the court, a certified copy of the judgment of invalidity or discharge recorded on the land records of the town where the certificate of lien was filed fully discharges the lien. If such a discharged or invalid lien is a lien filed on personal property pursuant to section 52-355a, a release of lien in the form prescribed by subsection (c) of section 52-380d, certified to by a clerk of the superior court, with reference to and the date of the court order of discharge or invalidity, fully discharges the lien on filing with the secretary of the state.”

       The defendant also filed four other special defenses, not at issue in this appeal, denying liability on the grounds that: (1) all payments due the plaintiff had been satisfied in full; (2) no valid contract had ever existed between the parties; (3) the plaintiff had “performed his services in an unsatisfactory and unworkmanlike manner, and failed to fulfill the terms of the ‘agreement’ ”; and (4) the plaintiff’s demands constituted “fraud, unfair and deceptive trade practice and unjust enrichment.”

       The counterclaim also included claims for damages for breach of contract, negligence and breach of warranty. These claims are not involved in this appeal.

       The defendant remitted the $205 with a note stating that it was her understanding that the price upon which they had agreed was $1700. The note further stated that the $205 reflected the difference between the damage allegedly done by the plaintiff to the defendant’s property and the agreed price.

       The trial court concluded that the defendant had failed to carry her burden of proof on her claims that the plaintiff had damaged her property and had not completed the job in a workmanlike manner. Accordingly, the trial court ruled for the plaintiff on the defendant’s counterclaim alleging breach of contract, negligence and breach of warranty. These rulings are not at issue in this appeal.

       Both CUTPA and General Statutes § 49-51 provide that damages and attorney’s fees may be awarded at the discretion of the court. Under CUTPA, damages and attorney’s fees are available under General Statutes § 42-110g, which provides in relevant part: “(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.”
      In addition, § 49-51 (a) provides that, in conjunction with the discharge of a lien, “[i]f the court is of the opinion that such certificate of lien was filed without just cause, it may allow, in its discretion, damages to any person aggrieved by such failure to discharge, at the rate of one hundred dollars for each week after the expiration of such thirty days, but not exceeding in the whole the sum of five thousand dollars or an amount equal to the loss sustained by such aggrieved person as a result of such failure to discharge the lien, which loss shall include, but not be limited to, a reasonable attorney’s fee, whichever is greater.”