text:
    Allstate Insurance Company v. Bennie Ferrante, Administrator (Estate of Sylvia Ferrante)
    (12707)
    Peters, C. J., Healey, Shea, Dannehy and S. Freedman, Js.
    Argued October 7
    decision released December 2, 1986

      Jeffrey L. Williams, with whom, on the brief, was Carl F. Yeich, for the appellant (plaintiff).

      Stanley Cohen, with whom, on the brief was Gary Greene, for the appellee (defendant).
   Peters, C. J.

The sole issue in this case, which comes to us by way of reservation, is whether an occupant of an automobile is entitled to aggregate uninsured motorist coverage for each of two automobiles separately covered by one automobile insurance pojicy. The plaintiff insurer, Allstate Insurance Company, brought this suit for a declaratory judgment, pursuant to General Statutes § 52-29, to determine the extent of its potential liability to the defendant, Bennie Ferrante, administrator of the estate of Sylvia Ferrante, who died as a result of injuries sustained in a two car motor vehicle accident. The trial court granted a motion for reservation upon stipulated facts to determine the amount of uninsured motorist coverage available to satisfy the claim of the defendant administrator. We hold that the reserved question is to be answered in the affirmative.

The parties stipulated to the following facts. On October 7, 1982, Sylvia Ferrante was a passenger in an automobile owned by Frank DeSouza and operated by Carolyn DeSouza. Sylvia Ferrante died as a result of a collision on route 3, in Rhode Island, between the DeSouza automobile and an automobile owned by Rene Laliberte. Damages attributable to Sylvia Ferrante’s fatal injuries could exceed $200,000.

Both of the automobiles involved in the accident were covered by insurance. A Continental Insurance Company policy, for the Laliberte automobile, provided bodily injury liability insurance up to a limit of $25,000 per person. Pursuant to that policy, Continental Insurance paid the defendant $25,000 on behalf of its insured, Laliberte.

Because this payment did not provide full compensation for the defendant’s damages, the defendant then pursued his insurance claims under the insurance policy that the plaintiff Allstate had issued to Frank DeSouza. That multiple vehicle policy included underinsured and uninsured motorist insurance for each of DeSouza’s two cars: the automobile involved in the accident and a second unrelated automobile. As to each automobile, this insurance policy provided liability coverage of $100,000 per person and $300,000 per accident, and uninsured motorist coverage of $100,000 per person and $300,000 per accident. By the express terms of the policy, its uninsured motorist coverage included accidents involving underinsured as well as uninsured motorists. DeSouza had paid a separate premium for the uninsured motorist coverage applicable to each DeSouza automobile. Neither Sylvia Ferrante nor the defendant, her personal representative, was a named insured under the Allstate policy, and neither of them had paid any premiums under this policy.

The plaintiff paid the defendant $75,000, which represented the limit of its liability under the uninsured motorist coverage applicable to the DeSouza automobile in which the defendant was a passengér. The disagreement between the parties concerns the defendant’s claim that he is also entitled to reach the uninsured motorist coverage applicable to the second DeSouza automobile. The defendant maintains that he may aggregate or “stack” the uninsured motorist coverage for the two DeSouza automobiles insured under the Allstate policy. The plaintiff responds that the insurance policy precludes stacking on behalf of someone who was merely a passenger in one of the covered vehicles.

In addressing the question that has been reserved to us, we may usefully begin by noting what is not at issue. There is no dispute that the Allstate insurance policy, in its uninsured motorist coverage, expressly creates two classes of insureds: (1) the named policyholder and resident members of his family, and (2) other occupants of an insured car. There is likewise no dispute that the provisions of the insurance policy that define the scope of the plaintiffs liability make no express distinction between these two classes in defining the extent of coverage for injuries attributable to uninsured motorists. Furthermore, there is no dispute that, if the claimant had been either the policyholder or a resident member of his family, our prevailing case law would render unenforceable the language in the insurance policy that purports, without class distinction, to preclude “stacking.” Finally, there is no dispute that, if the defendant were to be entitled to “stack,” the recovery would not exceed the damages actually attributable to the injuries that Sylvia Ferrante sustained.

What we must decide, therefore, is whether the fact that the defendant’s decedent in this case was a mere passenger justifies enforcing a provision in an insurance contract that we have previously held unenforceable as violative of governing insurance statutes and regulations. That question cannot be answered without a careful review of the reasoning of our prior case law on “stacking.”

This court has, on a number of occasions, considered the “stacking” of uninsured and underinsured automobile insurance coverage for two passenger cars. Three principles of law emerge from our cases. First, we have noted that the issue of aggregation of coverage for multiple vehicles can arise with regard either to “inter-policy stacking” under separate and distinct insurance policies, or to single policy, “intra-policy stacking.” Regardless of this difference in form, we have repeatedly held that General Statutes § 38-175c permits an injured claimant to “stack” coverages. Dixon v. Empire Mutual Ins. Co., 189 Conn. 449, 453, 456 A.2d 335 (1983); Nationwide Ins. Co. v. Gode, 187 Conn. 386, 394-97, 446 A.2d 1059 (1982); Safeco Ins. Co. v. Vetre, 174 Conn. 329, 333-35, 387 A.2d 539 (1978); Pecker v. Aetna Casualty & Surety Co., 171 Conn. 443, 448-49, 370 A.2d 1006 (1976). Second, in the context of cases involving “intra-policy stacking,” such as the one presently before us, we have held that such stacking is particularly appropriate when, as here, “ ‘each of the insured vehicles is separately described, the coverage granted under the policy is separately listed for each vehicle and a separate premium is charged for the coverage afforded to each of the described vehicles.’ ” Safeco Ins. Co. v. Vetre, supra, 334; Nationwide Ins. Co. v. Gode, supra, 395. Third, relying on regulations enacted pursuant to General Statutes §§ 38-175a and 38-175c, we have concluded that an insurer may not, by contract, reduce its liability for such uninsured or underinsured motorist coverage except as § 38-175a-6 of the Regulations of Connecticut State Agencies expressly authorizes. Dixon v. Empire Mutual Ins. Co., supra, 452-53; Nationwide Ins. Co. v. Code, supra, 398-99; Safeco Ins. Co. v. Vetre, supra, 332-33; Pecker v. Aetna Casualty & Surety Co., supra, 448-51. That regulation permits an insurer to limit its liability to the extent that damages have been paid by or on behalf of any person responsible for the injury, have been paid or are payable under any workers’ compensation or disability benefits law, have been paid under the policy in settlement of a liability claim, or have been paid or are payable under any provisions of the policy for direct indemnity for medical expense or basic reparations benefits. The regulation nowhere authorizes an insurer contractually to interdict “stacking.” Accordingly, we have held that uninsured and underinsured motorist coverage can be “stacked” despite language in the relevant insurance policy that purports explicitly to prohibit “stacking” of such coverage in the event that two automobiles are insured under the same policy. Dixon v. Empire Mutual Ins. Co., supra; Nationwide Ins. Co. v. Gode, supra; Safeco Ins. Co. v. Vetre, supra; Pecker v. Aetna Casualty & Surety Co., supra.

The plaintiff argues that these principles do not apply here because the underlying cases are distinguishable. According to the plaintiff, a claimant who is a mere passenger has a lesser claim to “stack” uninsured or underinsured motorist coverage, for two reasons. First, the plaintiff maintains that the statutes and the regulations requiring uninsured motorist coverage do not expressly require that such coverage be made available to the mere occupant of an insured automobile who is neither the policyholder nor a resident relative. Second, the plaintiff argues that “stacking” is contractually inappropriate because, while a policyholder who pays a separate premium for multiple coverages can reasonably expect to aggregate the amounts that he is entitled to recover, a mere occupant or passenger cannot reasonably be said to have entertained such expectations. The plaintiff urges us, therefore, to follow the rulings in other jurisdictions that have denied mere occupants the right to “stack” uninsured or underinsured motorist coverages under a single policy covering multiple automobiles. See, e.g., Hampton v. Allstate Ins. Co., 126 Ariz. 403, 405, 616 P.2d 78 (1980); Sharples v. General Casualty Co. of Illinois, 85 Ill. App. 3d 899, 902, 407 N.E.2d 674 (1980); Pettid v. Edwards, 195 Neb. 713, 719, 240 N.W.2d 344 (1976); General Accident Ins. Co. v. St. Peter, 334 Pa. Super. 6, 11, 482 A.2d 1051 (1984); Abshere v. Prudential Ins. Co., 38 Wash. App. 1, 2-6, 683 P.2d 625, cert. denied, 102 Wash. 2d 1013 (1984). We find neither of the plaintiffs arguments persuasive.

Addressing first the plaintiffs legislative argument, we note that our cases have uniformly authorized the “stacking” of coverages for multiple vehicles without any inquiry into the auspices of the insured claimant’s standing to recover. We have not discovered anything in the relevant statutory or regulatory language that suggests that stacking is to be limited to injured insured persons of a certain class, nor has the plaintiff been able to point to any legislative distinction of this sort. Nothing in this legislative record ties the right to “stack” to the degree of intimacy between the claimant and the policyholder. It is self-evident that, in all cases of “stacking,” the injured person can only have been the occupant of one of the multiply-insured vehicles. We have, however, characterized our insurance statutes as “person oriented” rather than “vehicle oriented” and have thus emphasized that insurance coverage “attaches to the insured person, not the insured vehicle.” Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248, 449 A.2d 157 (1982). From that perspective, the crucial question is whether an injured person has coverage under the terms of the policy, and that question must be answered in the affirmative in this case. See also Estate of Calibuso v. Pacific Ins. Co., Ltd., 62 Hawaii 424, 428-32, 616 P.2d 1357 (1980).

Even if we were to view “stacking” as not unequivocally mandated' by statute with respect to a mere occupant, “stacking” would still be appropriate in this case because it has not been explicitly precluded by the terms of the Allstate insurance contract. The terms of the Allstate policy nowhere make an explicit distinction, for coverage purposes, between its two classes of insureds. The policy’s only express antistacking provision is a clause denominated “limits of liability,” which purports, for all classes of insureds, to limit the plaintiff’s liability for uninsured motorist coverage to “the amount shown for any one auto.” In Nationwide Ins. Co. v. Gode, supra, 397-400, we held a virtually identical clause to have been unenforceable. The language of the Allstate clause gives no clue that it was intended to operate more restrictively for mere passengers than for others covered by the insurance policy. On the face of this policy, therefore, the benefits under this insurance policy flow equally to all the persons insured thereunder. Sayers v. Safeco Ins. Co. of America, 628 P.2d 659, 661-62 (Mont. 1981); see also Allstate Ins. Co. v. Anderson, 87 Mich. App. 539, 542, 274 N.W.2d 66 (1979), rev’d on other grounds, 409 Mich. 878, 295 N.W.2d 228 (1980).

The plaintiff maintains that its failure expressly to preclude stacking is not fatal to its position because the injured claimant in this case, having not paid any of the premiums for any of the DeSouza automobile insurance, cannot reasonably have expected to benefit from multiple coverage of the DeSouza automobiles. That argument fails, however, because it focuses on the expectations of the wrong person. If we were to inquire into the reasonable expectations generated by this contract, we would have to look to the intentions of the purchaser of the policy, the policyholder who agreed to pay separate premiums for coverage of each of his two automobiles. The stipulated facts do not tell us what the policyholder intended when he purchased a policy that divides into two classes those claimants who qualify as insureds because of a compensable injury arising out of the use of one of his covered automobiles. Bearing in mind that the class of mere passengers would include nonresident members of the policyholder’s own family, as well as other occupants of one of his automobiles, we do not find it implausible that the policyholder might well have intended to purchase protection for all those occupying either of the two insured cars. To the extent, therefore, that the reasonable expectations of the insured are relevant in determining the amount of insurance coverage that has been obtained, these expectations do not preclude Allstate’s liability under the terms of the policy. See Jeffries v. Stewart, 159 Ind. App. 701, 708-709, 309 N.E.2d 448 (1974); Cacavas v. Maine Bonding & Casualty Co., 128 N.H. 204, 512 A.2d 423, 425-26 (1986).

The question that was reserved to this court stated the issue as follows: “Is Sylvia Ferrante, the defendant’s decedent, entitled to uninsured motorist coverage under the Allstate policy applicable to the second DeSouza vehicle, which the defendant’s decedent was not occupying at the time of the accident, and for which said decedent paid no premium?” For the reasons stated above, our answer to the reserved question is “Yes.”

No costs will be taxed in this court to either party.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 52-29. SUPERIOR COURT MAY DECLARE RIGHTS and legal relations, (a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed. The declaration shall have the force of a final judgment.
      “(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.”

       During the pendency of this appeal, Andrew Ferrante was substituted for Bennie Ferrante, the latter now being deceased.

       The Allstate policy provides, in relevant part: “Persons insured (1) You and any resident relative. (2) Any person while in, on, getting into or out of your insured auto with your permission.”

       “[General Statutes] Sec. 38-175c. uninsured motorist coverage. (a) (1) Every such policy shall provide insurance, herein called uninsured motorist coverage, in accordance with such regulations, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom, provided each insurer licensed to write automobile liability insurance in this state shall provide such uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but such insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of such policy issued to such named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle owned by such insured. Every such policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1, 1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.
      “(2) Notwithstanding any provision of this section to the contrary, every such policy issued or renewed on or after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals unless changed in writing by the insured.
      “(b) (1) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(2) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subdivision (1) of subsection (b) of this section.”

       Section 38-175a-6 of the Regulations of Connecticut State Agencies provides in relevant part: “minimum provision for protection against uninsured motorists . . . . (d) limits of liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of § 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workmen’s compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under the bodily injury liability coverage to the extent of the payment.”
      We note that the legislature, although on notice about our consistent interpretation of the relevant statutes and regulations, has taken no action to indicate its disagreement with our construction of the legislative mandate.

       A number of the cases denying a mere occupant the right to “stack” multiple coverages are clearly distinguishable because the cases involved insurance for a fleet of vehicles. See, e.g. Holloway v. Nationwide Mutual Ins. Co., 376 So. 2d 690, 694-95 (Ala. 1979); Ohio Casualty Ins. Co. v. Stanfield, 581 S.W.2d 555, 556-59 (Ky. 1979); Linderer v. Royal Globe Ins. Co., 597 S.W.2d 656 (Mo. App. 1980); Utica Mutual Ins. Co. v. Contrisciane, 504 Pa. 328, 336-38, 473 A.2d 1005 (1984); American Universal Ins. Co. v. Russell, 490 A.2d 60, 62-63 (R.1.1985); Cunningham v. Ins. Co. of North America, 213 Va. 72, 74-77, 189 S.E.2d 832 (1972); Continental Casualty Co. v. Darch, 27 Wash. App. 726, 731, 620 P.2d 1005 (1980). Issues arising under a commercial umbrella liability insurance policy are similarly not before us today. See, e.g., Trinity Universal Ins. Co. v. Metzger, 360 So. 2d 960, 962 (Ala. 1978); Hartbarger v. Country Mutual Ins. Co., 107 Ill. App. 3d 391, 394-96, 437 N.E.2d 691 (1982); Southern American Ins. Co. v. Dobson, 441 So. 2d 1185, 1190-92 (La. 1983); Matarasso v. Continental Casualty Co., 82 App. Div. 2d 861, 862, 440 N.Y.S.2d 40 (1981). Finally, such cases as Lumbermens Mutual Casualty Co. v. Martin, 399 So. 2d 536, 537-38 (Fla. App. 1981), and Block v. Reliance Ins. Co., 433 So. 2d 1040, 1045 (La. 1983), are unpersuasive because they arise in the different context of state statutes that, in marked distinction to the prevailing legislative pattern in this state, expressly prohibit “stacking” of uninsured motorist coverages except under certain designated circumstances. See, e.g., Fla. Stat. Ann. § 627.4132 (West 1984); La. Rev. Stat. Ann. § 22:1406 (D) (1) (c) (West 1978).

       The limits of liability clause in the Allstate insurance contract provides, in relevant part: “Limits of Liability
      “The coverage limit stated on the declarations page for:
      “(1) ‘each person’ is the total limit for all damages arising out of bodily injury to one person in any one motor vehicle accident.
      “(2) ‘each accident’ is the total limit for all damages arising out of bodily injury to two or more persons in any one motor vehicle accident.
      “The uninsured motorists limits apply to each insured auto as stated on the declarations page. This means the insuring of more than one person or auto under this or other auto policies won’t increase our uninsured motorists limit of liability beyond the amount shown for any one auto, even though a separate premium is charged for each auto.”


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Elkie Lee Crump
    (11224)
    Healey, Shea, Dannehy, Callahan and Quinn, Js.
    Argued October 10
    decision released December 2, 1986

      Bruce L. Levin, special public defender, for the appellant (defendant).

      Patricia B. Perkins, special assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Susann E. Gill, deputy assistant state’s attorney, and Marc Needelman, former deputy assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The crimes involved in this case arose out of a robbery of a restaurant in Hartford on January 29, 1981. After a trial to the court, Kremski, J., the defendant, Elkie Lee Crump, was found guilty under both counts of a substitute information which charged the crimes of robbery in the second degree, in violation of General Statutes § SSa-lSB, and conspiracy to commit robbery in the second degree, in violation of General Statutes §§ 53a-135 and 53a-48. This appeal followed.

On appeal, the defendant claims that there was “insufficient evidence” to sustain the trial court’s finding that he was guilty of robbery in the second degree and conspiracy to commit robbery in the second-degree, that he did not knowingly and intelligently waive his right to a jury trial and that he was denied the effective assistance of counsel. We find no error.

We turn first to the claim that the evidence was “insufficient.” Although the defendant does not dispute the factual findings made, he does claim that those findings fail to support a conclusion of guilt of either crime charged. “ ‘This court will construe the evidence in the light most favorable to sustaining the trial court’s verdict and will affirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Perez, 182 Conn. 603, 606, 438 A.2d 1149 (1981); see, e.g., State v. Gaynor, 182 Conn. 501, 503, 438 A.2d 749 (1980); State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980); State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 118 (1979). Our review is the same whether the trier of fact is a judge, a panel of judges, or a jury. State v. Perez, supra; see State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977).’ State v. D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982).” State v. Vincent, 194 Conn. 198, 206, 479 A.2d 237 (1984). “ ‘The trier of the facts determines with finality the credibility of witnesses and the weight to be accorded their testimony. “We cannot retry the facts or pass upon the credibility of the witnesses.” Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).’ ” State v. Haddad, 189 Conn. 383, 389, 456 A.2d 316 (1983), quoting State v. Penland, 174 Conn. 153, 157-58, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). In reviewing the evidence upon which the trier of fact relied in reaching its conclusion, we must recognize that “the burden rested upon the [state] to prove the guilt of the accused, i.e., to prove each material element of the offense[s] charged beyond a reasonable doubt. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 [1975] . . . . ” State v. Haddad, supra, 388.

It will be useful in our review of the defendant’s claim to set out at this point the findings upon which the trial court based its conclusions. These findings include: On the date in question, the defendant entered a restaurant in Hartford with two other black males. The three then had a conversation among themselves, after which the defendant and another of the men went to the counter near the cash register while the third left the restaurant. One of the two men who remained (the defendant or his companion) ordered a soft drink at the counter and money was proffered to the victim, Julia Pelarinos, for the drink which was presented. When Pelarinos opened the cash register to deposit the money, she was pushed aside by the man who had ordered the soft drink. He then took approximately $300 from the opened cash register drawer. The two men immediately hurried from the restaurant. The man who did not take the money from the cash register opened the door “to assist” the man with the $300 to leave. After exiting the restaurant, both entered a waiting automobile “being operated” by the third man, who had left the restaurant earlier. The automobile then left the scene.

Initially, the defendant claims that he could not be found guilty as an accessory on the robbery count, as the state now contends, because the state did not so charge him in the substitute information, did not so claim at trial and did not advance that theory as an alternative ground of affirmance under Practice Book § 3012 (a) (now § 4013 [a] [1]). This argument lacks merit because the fact that the defendant was not formally charged as an accessory does not preclude his being so convicted. State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981); State v. Ives, 172 Conn. 322, 323, 374 A.2d 244 (1977); see State v. Raffone, 161 Conn. 117, 128, 285 A.2d 323 (1971).

Contrary to the defendant’s claim, there was sufficient evidence to prove that he was guilty of robbery in the second degree. A robbery is committed when, in the course of committing a larceny, a person uses or threatens the immediate use of physical force upon another person for any of the purposes set out in General Statutes § 53a-133. Conviction of a simple larceny requires proof of the taking of the property of another with the intent to deprive the owner of possession permanently. State v. Kurvin, 186 Conn. 555, 556, 442 A.2d 1327 (1982); see General Statutes §§ 53a-118, 53a-119.

The findings contained in the trial court’s decision, as originally given and as later articulated, which we have set out, are adequate to justify beyond a reasonable doubt the conclusion that the defendant was guilty of being an accessory to the crime of robbery in the second degree. The commission of a robbery in the context of the larceny with its accompanying use or threat of use of immediate force upon Pelarinos for either of the purposes set out in General Statutes § 53a-133 was proven. In this case, the defendant or his companion actually pushed Pelarinos away from the open cash register and took the $300 from it. It is not required that the proof show that the defendant was the actual perpetrator because the proof does show that the perpetrator “[was] aided by another person actually present.” General Statutes § 53a-135 (a) (l). The defendant contends that the state did no more than prove that he was merely innocently present. We do not agree. We recognize that “ ‘[m]ere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and wilfully assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it.’ State v. Laffin, 155 Conn. 531, 536, 235 A.2d 650 (1967).” State v. Maltese, 189 Conn. 337, 343, 455 A.2d 1343 (1983). We find, however, that the evidence in this case supports the conclusion of the trial court of the defendant’s complicity as either a principal or an accessory in the crime of robbery in the second degree.

Whether a person who is present at the commission of a crime aids or abets its commission so as to be criminally liable depends on the circumstances surrounding his presence there and his conduct while there. “ ‘The accessory statute, § 53a-8, sets forth the element of intent as a twofold requirement: that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. See LaFave & Scott, Criminal Law (1972), p. 505 n.53, § 64.’ (Emphasis in original.) State v. Harrison, [178 Conn. 689, 694, 425 A.2d 111 (1979)].” State v. Haddad, supra, 399. “A person acts ‘intentionally’ with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” General Statutes § 53a-3 (11). Intent is a mental process, and absent an outright declaration of intent, must be proved through inferences drawn from the actions of an individual, i.e., by circumstantial evidence. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979). There is, of course, no legal distinction between direct and circumstantial evidence as far as probative force is concerned. State v. Wilson, 178 Conn. 427, 434, 423 A.2d 72 (1979). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981); see State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). “It is clear that since the guilt of one who aids or abets is equal to the guilt of one who actually commits the crime, that statute [here General Statutes § 53a-8] renders anyone who comes within its terms guilty as a principal offender.” State v. Raffone, supra. The findings show that the defendant was “not passively acquiescent nor acting innocently.” State v. Haddad, supra.

The defendant next claims that the evidence upon which the trial court relied was insufficient to support its conclusion that the defendant participated in a conspiracy to commit robbery in the second degree. We do not agree.

At the end of the trial, the trial court, after stating orally its findings of fact and conclusions on the robbery count, then immediately went on and stated: “With regard to the charge of conspiracy to commit robbery in the second degree, the court finds that the facts as indicated by the court there was an intent to engage in criminal activity, that is, the robbery of that building. That intent is inferred from the facts that the three parties entered together, had a conference, that they split up each taking a particular position, that the robbery occurred, that there was an agreement, however sketchy, that agreement or plan was a plan devised by the parties and carried out. An overt act was committed, the taking of the money. All three parties left the premises at the same moment. Based on those facts, the court finds that Elkie Lee Crump is guilty of the charge of conspiracy.”

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982). ‘The existence of a formal agreement between the parties need not be proved; it is sufficient to show that they “knowingly engaged in a mutual plan to do a forbidden act.” State v. Holmes, 160 Conn. 140, 149, 274 A.2d 153 [1970]. A conviction of the crime of conspiracy can be based on circumstantial evidence, for conspiracies, by their very nature, are formed in secret and only rarely can be proved otherwise than by circumstantial evidence. State v. Holmes, supra, 150.’ State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); State v. Hayes, 127 Conn. 543, 554, 18 A.2d 895 (1941).” State v. Vessichio, 197 Conn. 644, 656, 500 A.2d 1311 (1985), cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986). Thus, because a conspiracy can rarely be proved by direct evidence, “[i]t may be inferred from the activities of the accused persons.” State v. Baker, 195 Conn. 598, 604, 489 A.2d 1041 (1985); State v. Faillace, 134 Conn. 181, 185, 56 A.2d 167 (1947).

The evidence and the reasonable inferences therefrom establish the necessary proof under General Statutes § 53a-48 that there was an agreement between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act by the actual robber in furtherance of the conspiracy. We are aware that the commission of a substantive offense and a conspiracy to commit it are separate and distinct offenses. State v. Johnson, 162 Conn. 215, 219, 292 A.2d 903 (1972); see Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 90 L. Ed. 1489, reh. denied, 329 U.S. 818, 67 S. Ct. 26, 91 L. Ed. 697 (1946).

The defendant also claims that the trial court erred both in “assuming” that his waiver of his right to a jury trial was knowingly and voluntarily made and in accepting his election of a court trial in violation of his rights under the sixth amendment to the United States constitution, General Statutes § 54-82b and Practice Book § 839. Referring to State v. Marino, 190 Conn. 639, 642, 462 A.2d 1021 (1983), he claims that although this claim was never made at the trial, it is nevertheless reviewable under the Evans bypass rule. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Despite dicta to the contrary in Marino, the defendant argues that a claimed failure to comply with the statute and the Practice Book is reviewable under Evans because the failure to comply with those provisions constitutes plain error. In any event, the defendant expressly acknowledges that these arguments are “ancillary” to his constitutional claims. In addition, he argues that, given his claim of ineffective assistance of counsel, it would be incongruous not to review these claims.

In State v. Marino, supra, 642, we said: “Although the claim of an ineffective jury trial waiver is being raised for the first time on appeal, it is unquestionable that this issue involves a fundamental constitutional right guaranteed by the sixth amendment and that we must review the record to determine whether it clearly indicates that the defendant has been deprived of that right illegally. State v. Evans, [supra, 70].” Even though in this case, unlike Marino, the defendant claims that the procedures set forth in General Statutes § 54-82b and Practice Book § 839 were not followed, we do not consider the deviation from those procedures by itself to “constitute a claim of constitutional error eligible for appellate review sufficient to overcome our general prohibition against raising on appeal issues never presented to the trial court.” State v. Marino, supra, 643; see State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

“Under both the United States and Connecticut constitutions the defendant was entitled to a trial by jury on the charges upon which he was presented and in fact tried. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, reh. denied, 392 U.S. 947, 88 S. Ct. 2270, 20 L. Ed. 2d 1412 (1968); Conn. Const., art. I, §§ 8, 19; State v. Olds, 171 Conn. 395, 408, 370 A.2d 969 (1976). Any defendant may waive that right but only if he does so knowingly and intelligently. Schneckloth v. Bustamonte, 412 U.S. 218, 237-38, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Singer v. United States, 380 U.S. 24, 34, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965).” State v. Shockley, 188 Conn. 697, 705-706, 453 A.2d 441 (1982). Whether there is such a waiver “must depend upon the unique circumstances of each case.” Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S. Ct. 236, 87 L. Ed. 268 (1942), reh. denied and amended, 317 U.S. 605, 63 S. Ct. 442, 87 L. Ed. 568 (1943); see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Similar to that in State v. Marino, supra, 643, “[t]he issue before us, however, is not in full measure whether the defendant acted knowingly and intelligently in waiving a jury trial, as in cases where an evidentiary hearing upon that subject has been held.” We must now decide from what is properly before us whether there exists “sufficient assurance of an effective waiver at least to satisfy constitutional requirements for the disclosure of such a waiver on the record.” Id., 644.

The defendant argues that the written waiver, standing alone without an acknowledgment by him orally, is an insufficient basis to establish a knowing and intelligent waiver of his jury trial right. Our examination of the waiver claim requires that we examine the proceedings below including the court file and the transcripts filed with this court. We may “take judicial notice of all papers forming a part of the file in the case and use them for any proper purpose.” Krawiec v. Kraft, 163 Conn. 445, 451, 311 A.2d 82 (1972); see State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964); Jackson v. United States, 262 A.2d 106, 108 (D.C. App. 1970) (“[clerical entries made in the regular course of court business are presumptively true”—waiver of jury trial); W. Maltbie, Connecticut Appellate Procedure §§ 312, 313. “The notations made by the clerk upon the original papers and in the docket need no particular authentication but, appearing as made by him in the appropriate place, may be presumed to be accurate.” State v. Lindsay, 109 Conn. 239, 243, 146 A. 290 (1929).

In this case, the defendant was arrested on February 19,1981, pursuant to an arrest warrant. On February 20, 1981, he was, before his plea, advised by the court, Shaughnessy, J., of his constitutional rights according to statute. General Statutes § 54-lb. On that date, the court appointed, by name, the public defender who filed his appearance, represented the defendant from that time through the trial and also filed this appeal. On February 27,1981, the defendant pleaded not guilty to an information in one count charging him with the crime of robbery in the second degree in violation of General Statutes § 53a-135. On June 8,1981, at a hearing on a motion filed during the proceedings, counsel for the state informed the court that the case was “presently scheduled for the firm jury on June 16th of this year.” This motion, which had been filed by the state, alleged in part: “That this matter was assigned to the Jury docket on February 27,1981.” On June 11, 1981, the state filed a substitute information in two counts. The first count charged the defendant with the crime of robbery in the second degree in violation of General Statutes § 53a-135 and the second count charged the crime of conspiracy to commit robbery in the second degree in violation of General Statutes § 53a-48. On September 8, 1981, the defendant, with his own signature as well as that of his public defender, filed his written “Change of Election” with the court. On September 15, 1981, the court, Doyle, J., ordered the case to be transferred from the jury to the court docket. On September 17,1981, the defendant pleaded not guilty to both counts of the substitute information. At that time, defense counsel said: “Your Honor, consistent with the election that was filed with the court last week, we elect a trial to the court.” The court did not directly address the defendant but said: “Very well. Pleas of not guilty may enter, a court trial is noted. ...” The trial in chief commenced on September 18, 1981.

It is fair to say that the defendant, who was represented by counsel from the outset, elected a jury trial. His case then was assigned to the jury docket for trial where it remained until the court, on September 15, 1981, pursuant to his written change of election filed earlier, ordered the defendant’s case off the jury docket and marked it as a ready case for a court trial. The change of election was signed by both the defendant and his attorney. This document explicitly acknowledged that he had been advised of his rights under both the United States and the Connecticut constitutions and that he was thereby waiving his right to be tried by a jury and electing to be tried by the court in this case. There is no claim that at any stage of the proceedings he was illiterate or incompetent or incapable of understanding the language used in the writing he signed.

We have noted that insofar as the right to a jury trial is based on the federal constitution, we could appropriately consider the procedure prescribed for an effective jury trial waiver under rule 23 (a) of the federal rules of criminal procedure. State v. Marino, supra, 644. That rule provides: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.” The concern, in requiring under rule 23 (a) that the waiver be in writing, “is to insure a greater probability of a defendant understanding what he is doing, if and when he waives his right to trial by jury.” Pool v. United States, 344 F.2d 943, 945 (9th Cir.), cert. denied, 382 U.S. 832, 86 S. Ct. 73, 15 L. Ed. 2d 76 (1965). The only record of the waiver required by most of the federal courts is the executed document itself. Id. While personal interrogation of the defendant in determining his understanding of the significance of his execution of the waiver is the better practice, Marino pointed out that “personal interrogation” is not essential under either the federal constitution or the rule. State v. Marino, supra.

The issue of whether a constitutionally valid waiver of a jury trial must be supported by a contemporaneous colloquy has also arisen in state courts. “The general view appears to be that there is not such a constitutional requirement, and that, when the validity of a jury waiver is attacked, the necessary proof may be made through facts or occurrences outside the proceeding in which the waiver was formally made and accepted.” Ciummei v. Commonwealth, 378 Mass. 504, 507-508, 392 N.E.2d 1186 (1979), and cases therein cited. “Although we fully recognize the value of the right to trial by jury, we believe that “it is not unreasonable for courts to refrain, in the case of the jury right, from constitutionalizing a particular means of demonstrating the legality of the waiver [of that right].” Ciummei v. Commonwealth, supra, 508; We therefore conclude that the defendant validly waived his constitutional right to a jury trial under all the circumstances.

This conclusion applies not only to the original information which was in one count but to the substitute information in two counts to which he pleaded not guilty on September 17, 1981. What occurred in open court on that date cannot be considered in a vacuum. While it undoubtedly would have been the better practice and eminently more preferable had the trial court addressed the defendant directly to determine his understanding of his earlier change of election in view of the two count substitute information to which he was pleading, we find a valid jury trial waiver on the substitute information. In doing so, we keep in mind that whether there has been an “intelligent” waiver depends upon the facts and circumstances of each case “including the background, experience, and conduct of the accused.” Naples v. United States, 307 F.2d 618, 625 (D.C. Cir. 1962), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Additionally, as in State v. Marino, supra, 646, where we emphasized the limited nature of our holding, our concern here is only with the adequacy of what is properly before us to show a jury trial waiver “when its effectiveness is first questioned on appeal without the benefit of a factual exploration of that issue at some evidentiary proceeding.”

It is important to remember that defendant’s counsel, after the defendant’s plea to the substitute information, told the trial court that, consistent with the election filed earlier, “we” elect a trial to the court. This earlier election had been signed by the defendant and was markedly explicit. While the defendant did not personally announce his continued desire for a court trial, in this case we determine that his failure to protest, when and after his counsel informed the court that “we” persist in the court trial election, must be taken to reflect his knowing acquiescence in that position. See State v. Jelks, 105 Ariz. 175, 461 P.2d 473 (1969), cert. denied, 398 U.S. 966, 90 S. Ct. 2179, 26 L. Ed. 2d 549 (1970); State v. Watson, 19 Ariz. App. 369, 507 P.2d 981 (1973); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973); State v. Olivera, 53 Hawaii 551, 497 P.2d 1360 (1972); State v. Long, 408 So. 2d 1221 (La. 1982); see also State v. Swain, 61 Hawaii 173, 599 P.2d 282 (1979). This is not a case of a silent record. The record here, unlike those in other cases, has more than a bare “election” by counsel of a court trial. As we have demonstrated, the record discloses that the defendant was advised of his constitutional rights, that he personally signed a waiver of a jury trial, and that he ratified or acquiesced in that waiver after pleading to the substitute information. As in State v. Marino, supra, “[tjhere is nothing before us to indicate that the defendant was not of ordinary intelligence and educational background and that the choice of court [reflected by his conduct] was not fully discussed with him by his counsel.” We cannot assume, despite wholly conclusory claims of ineffective assistance of counsel, that his counsel did not advise him of the consequences not only of his change of election when originally filed but also of his persistance in such an election. See generally id. Our careful review of the court file, which includes a number of motions filed by defense counsel, the transcripts of pretrial motion hearings and the trial itself, serves to convince us that the defects claimed on the waiver issue do not vitiate the fundamental fairness of the proceedings below so as to justify the drastic sanction of setting aside the convictions entered in this case. On the basis of our review of the proceedings in this case, we conclude that the constitutional requirement for an affirmative disclosure of an effective jury waiver was satisfied.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-135 provides in part: “(a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       General Statutes § 53a-48 provides in part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”

       Although the defendant’s amended statement of issues and his brief refer to the insufficiency of the evidence to sustain the guilty finding on the crime of robbery in the first degree, it is clear from the structure of his brief and oral argument that this was meant to refer to conspiracy to commit robbery in the second degree, one of the crimes with which he was charged and of which he was found guilty.

       This claim of error requires no discussion as it is improperly before us. State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

       After the parties had rested, the trial court, in an oral decision, made certain findings of fact upon the basis of which it concluded that the defendant was guilty of the crimes charged in both counts of the substitute information. Some time later and after a motion for articulation by the defendant’s appellate counsel, the trial court more fully articulated its decision by responding to specific inquiries in that motion. See generally Practice Book § 4061 (formerly § 3060D); State v. Lafferty, 192 Conn. 571, 572, 472 A.2d 1275 (1984).

       After the trial court’s response to the “Motion for Articulation,” the defendant’s appellate counsel filed a “Motion for Further Articulation” in which he asked the trial court to state which of the two men ordered the soft drink ‘ ‘if known, ’ ’ as well as which of them gave the money to the victim “if known.” In its “Further Articulation” the trial court stated that “it is not known” which one ordered the soft drink or which presented the money for its payment.

       General Statutes § 53a-8, entitled “Criminal liability for acts of another,” provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-133, which defines robbery, provides: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       General Statutes § 53a-119 provides in 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. . . .”

       The 1971 comments of the commission to revise the criminal statutes contain the following concerning General Statutes § 53a-135: “Robbery in the second degree makes the presence of an accomplice an aggravating factor. The rationale is that the accomplice is equal to a person armed and therefore would generate a higher degree of fear in the victim.” Conn. Gen. Stat. Ann. § 53a-135 (West), see State v. Acklin, 171 Conn. 105, 118, 368 A.2d 212 (1976).

       See footnote 2, supra.

       The sixth amendment to the United States constitution provides in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State . . . wherein the crime shall have been committed . . . .”

       General Statutes § 54-82b (b) provides: “In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.”

       Practice Book § 839 provides: “The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time he is put to plea, he elects a trial by the court, the judicial authority shall advise the defendant of his right to a trial by jury. If the defendant does not then elect a jury trial, his right thereto may be deemed to have been waived.”

       The waiver issue was never raised by the defendant in his motion for a new trial or in his preliminary statement of issues. It was first raised in his amended statement by present appellate counsel.

       We note that although the defendant’s amended statement of issues referred to the Connecticut constitution, article first, § 19, on this issue, the Connecticut constitutional issue has not been briefed and we need not discuss it. See State v. Corchado, 188 Conn. 653, 670, 453 A.2d 427 (1982); Rodriguez v. Mallory Battery Co., 188 Conn. 145, 148-49, 448 A.2d 829 (1982).

       The written change of election was as follows: “CHANGE OF ELECTION
      “The defendant, Elkie Lee Crump, having been advised of Ms rights under the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 8 and 19 of the Connecticut Constitution, hereby waives his right to be tried by a jury and elects to be tried by the Court in the above-entitled action.
      “The Defendant (Defendant’s Signature)
      Elkie Lee Crump “(Atty. Connors’ Signature)
      Kevin C. Connors His Attorney”

       We do so despite the defendant’s claim of ineffective assistance, the validity of which is better determined in another proceeding. State v. Leecan, 198 Conn. 517, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).


author: Dannehy, J.

text:
    State of Connecticut v. Reginald Hill
    (12830)
    Peters, C. J., Healey, Shea, Dannehy and S. Freedman, Js.

      Argued October 7
    decision released December 9, 1986

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Robert J. OBrien, assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Dannehy, J.

A jury found the defendant, Reginald Hill, guilty of the offense of possession of a sawed-off shotgun in violation of General Statutes § 53a-211 (a). The defendant forthwith filed a motion to set aside the verdict. The trial judge denied the motion and sentenced the defendant to the custody of the commissioner of correction for five years. In the same trial the defendant was also convicted of using a motor vehicle without the owner’s permission, but the defendant does not claim error with regard to that conviction.

There is no dispute as to the following facts. On June 12,1984, Irene Lasko notified the police that her car was missing. In the early morning of the following day, Officer Vincent Raucci of the New Haven police department and his partner Officer Richard Poulten were patrolling in East Rock Park in New Haven when they observed a motor vehicle approaching from the opposite direction. When the approaching car reached a distance of about fifty feet from the officers’ vehicle, the driver of the car negotiated a U-turn, accelerated the vehicle, and sped away. The pursuing officers radioed for a check on the registration of the vehicle. They were informed by return broadcast that the car was the stolen Lasko vehicle. After a chase for a distance of approximately one half mile, the officers stopped the fleeing car. The vehicle was occupied by the defendant, who was in the driver’s seat, and a single passenger, Vaughn Outlaw, who was seated in the front passenger’s seat. An examination of the car disclosed in the middle of the front seat a red nylon “gym bag” which contained five .16 gauge shotgun shells and a Bic lighter. On the floor beneath the front passenger’s seat was a sawed-off shotgun. Both the driver and the passenger were arrested and charged with possession of a sawed-off shotgun and larceny in the second degree.

The defendant did not testify at the trial; Outlaw testified for the prosecution. His testimony indicated that he had known the defendant for about five years. It was also brought to the jury’s attention that at the time of this incident the witness was on furlough from the Connecticut Correctional Institution, Cheshire. Outlaw related to the jury that at approximately 12:30 a.m. on June 13,1984, as he was walking to his aunt’s house, the defendant stopped the car he was driving and offered him a ride. Outlaw got into the car, and, after they had gone some distance, the defendant drove into East Rock Park and there they were apprehended and arrested. According to Outlaw, the defendant told him not to worry and to tell the police that the defendant had picked him up. Outlaw testified that he had not brought into the car any of the items seized by the police, and that he had not seen the red gym bag while he was riding with the defendant. He also repeatedly stated that he was unaware of the presence of the sawed-off shotgun.

After Outlaw had testified for the state, defense counsel cross-examined Outlaw extensively about the charges pending against him, his furlough status and any arrangement between Outlaw and the state. Defense counsel was allowed great latitude to ask pointed questions in an attempt to show the jury why Outlaw might be motivated to slant his testimony in order to avoid being convicted on the charges pending against him. The defendant then called his cousin, Darryl Henry, as a witness. Through Henry’s testimony, the defendant sought to show that Outlaw, and not the defendant, was the one in possession of the sawed-off shotgun. According to Henry, he saw Outlaw on June 12,1984, and, at that time, Outlaw showed him a sawed-off shotgun in a gym bag. Henry claimed that Outlaw told him that the shotgun was his “Mastercharge” and that “[w]ith this I can get anything.” Henry identified the sawed-off shotgun and gym bag exhibited in evidence as those displayed to him by Outlaw on June 12,1984.

Thus, it appears that the case was in great part one of credibility of the defense witness as opposed to that of Outlaw and the other witnesses who were called by the state. It is unnecessary to relate additional facts, as this appeal is based wholly upon the defendant’s claims that the trial court erred in denying his oral motion for a mistrial and in a certain instruction to the jury.

The defendant’s first claim on appeal is that the trial court erred in refusing to discharge the jury because of what he asserts was inadmissible and prejudicial testimony. The incident to which the defendant refers occurred during the redirect examination of Outlaw’s mother, Barbara Bethea, called as a witness by the state. On recross-examination, Bethea had testified that the defendant in a conversation with her had said “that he was going to see that Vaughn [Outlaw] walked.” Bethea also testified that in the same conversation she had told the defendant that unless the situation involving her son was cleared up, she “was going to come down here and tell . . . what [she] knew.” Her redirect examination proceeded as follows: “Q. When you say you were going to come down here and tell what you know, what were you referring to? A. What was I referring to? The conversation I had with his mother. She had told me it was Reggie’s gun.” The defendant objected to the hearsay response and asked that it be stricken. The objection was sustained. The court struck the answer from the record and admonished the jury not to consider it. When Bethea finished her testimony, the trial was interrupted at the defendant’s request, and a proceeding took place outside the presence of the jury during which defense counsel moved for a mistrial. The trial judge stated to defense counsel that he saw no grounds for finding any attempt on the part of the state to elicit the hearsay response. The defense counsel agreed but told the court: “What I think, your Honor, it presents us in a precarious position where I don’t think [the defendant] can receive a fair trial at this point. I don’t think a jury can disregard such a statement.” The trial judge denied the motion, noting, in effect, that the occurrence could be cured by instruction.

Our general rule on the subject of motions for mistrial is well settled. A motion for mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been deprived of the opportunity for a fair trial. State v. Gaston, 198 Conn. 490, 495, 503 A.2d 1157 (1986); State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). A determination of whether a mistrial is warranted is left to the sound judgment and discretion of the trial judge. State v. Gaston, supra, 496; State v. Maldonado, supra. When Bethea repeated a statement made to her out of court and outside the presence of the defendant, the trial judge was in the best position to decide whether the statement was so prejudicial, in light of the entire proceedings, as to deny the defendant a fair trial. The trial judge acted promptly in striking the hearsay statement and in instructing the jury not to consider it in reaching a decision. The instruction was repeated in the final charge. We must assume that the trial judge was satisfied that Bethea’s hearsay response did not place the defendant in a “precarious position” from which a curative instruction could not extricate him. Under these circumstances, we find no error in the trial court’s determination that the hearsay statement did not deprive the defendant of a .fair trial. State v. Ubaldi, supra, 563. The motion for a mistrial on the basis of Bethea’s hearsay response was properly denied.

We next consider the defendant’s contention that the jury was erroneously instructed regarding “possession,” an element of the offense with which the defendant was charged. The defendant argues that the statutory definition of the word “possess,” contained in General Statutes § 53a-3 (2) is satisfied in only two situations: first, where a person has actual physical possession; and second, where a person has exercised dominion or control over an object. The essence of the defendant’s claim is that the trial judge erroneously defined “possession” to include a third situation: Where a person has the opportunity or power to exercise dominion or control over an object.

We must first consider whether this issue was properly preserved for review. At the conclusion of both the court’s instructions and reinstruction, extended colloquy occurred between the court and defense counsel in which counsel made a number of suggestions to the court concerning the instructions and took exception to a part of the instructions. Defense counsel did not, however, suggest that the court had not accurately defined the word “possession,” nor did he object or except to the definition given. We generally do not consider a claimed error regarding the giving of or failure to give an instruction “unless the matter is covered by a written request to charge or exception has been taken . . . immediately after the charge is delivered.” Practice Book § 852 (formerly § 854); see State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); State v. Alston, 5 Conn. App. 571, 573, 501 A.2d 764 (1985), cert. denied, 198 Conn. 804, 503 A.2d 1186 (1986). In addition, the exception taken must “state distinctly the matter objected to and the ground of objection.” Practice Book § 852.

Because this procedure was not followed, we need not consider the defendant’s challenge to the court’s instructions unless his allegations raise a claim that he has been denied a fundamental constitutional right and a fair trial. See State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. U.S. Const., amend. XIV; Conn. Const., art. I, § 8; see In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). This court has consistently held that a claim like the one made here, that the judge improperly instructed the jury on an element of an offense, is appealable even if not raised at trial. State v. Zayas, 195 Conn. 611, 616, 490 A.2d 68 (1985); State v. Smith, supra; State v. Maltese, 189 Conn. 337, 341-42, 455 A.2d 1343 (1983).

Having determined that the defendant’s second claim is properly before us, we must now consider whether the judge’s instructions were so erroneous as to deprive the defendant of his constitutional right to a fair trial. State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986). For an individual to be guilty of possession of a sawed-off shotgun, the state must prove that he “owns, controls or possesses” the shotgun. General Statutes § 53a-211 (a). The trial judge instructed the jury that “[t]he law recognizes two kinds of possession; actual possession and constructive possession.” After defining actual possession, the judge explained the meaning of constructive possession in the following language: “A person who, although not in actual possession, knowingly has the power and the intention at a given time of exercising dominion and control over a thing is then in constructive possession.” The defendant argues that this explanation, coupled with the examples of possession given by the judge, expanded the meaning of the term “possess” beyond its statutory definition. We disagree.

General Statutes § 53a-3 (2) provides: “Except where different meanings are expressly specified, the following terms have the following meanings when used in this title . . . ‘Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property.” General Statutes § 53a-211 (a), which describes the crime of possession of a sawed-off shotgun, does not define the word “possess.” The meaning prescribed in § 53a-3 (2) is therefore controlling. The latter part of § 53a-3 (2) makes clear that the definition of “possess” includes not only actual possession but also the exercise of “dominion or control” over an object. Connecticut has long recognized this concept of constructive possession. State v. Gabriel, 192 Conn. 405, 423, 473 A.2d 300 (1984); State v. Williams, 169 Conn. 322, 335, 363 A.2d 72 (1975); State v. Gonski, 155 Conn. 463, 467, 232 A.2d 483 (1967); State v. Lopez, 5 Conn. App. 599, 607, 502 A.2d 418 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146 (1986). The definition and examples of constructive possession given here by the trial judge are nearly identical to those approved by this court in State v. Williams, supra. The defendant correctly points out, however, that in Williams a challenge was not made under the definition of “possess” found in § 53a-3 (2). He argues that because penal statutes are to be strictly construed; see State v. Paradise, 189 Conn. 346, 352, 456 A.2d 305 (1983); the phrase “to exercise dominion or control” in § 53a-3 (2) should be construed to include only a scenario in which a person has exercised dominion or control, but not one in which a person knowingly has the power and intention to exercise dominion or control. We decline to adopt the defendant’s narrow reading of the statutory definition of “possess.”

We note that in Williams the defendant was charged with possession of a controlled substance with intent to sell in violation of General Statutes (Rev. to 1972) § 19-480 (a), and possession of a narcotic substance in violation of General Statutes (Rev. to 1972) § 19-481 (a). State v. Williams, supra, 323-24. These offenses are not included in our penal code, Title 53a of the Connecticut General Statutes, and, consequently, are not subject to the definition of possession found in § 53a-3. The statutes are, however, criminal in nature and, like the offense of possession of a sawed-off shotgun, involve the unlawful possession of an item. Related statutory provisions, or statutes “in pari materia,” often provide guidance in determining the meaning of a particular word. Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980); Doe v. Institute of Living, Inc., 175 Conn. 49, 58, 392 A.2d 491 (1978); 2A J. Sutherland, Statutory Construction (4th Ed. 1984) § 51.01. An approved definition of “constructive possession” in the context of possession of narcotics is therefore a persuasive precedent for our determination of the scope of the word “possess” as defined by § 53a-3 (2), as long as that approved definition is not inconsistent with the statutory definition.

To “possess,” according to § 53a-3 (2), is to have actual physical possession “or otherwise to exercise dominion or control . . . .” In construing statutes, we have repeatedly adhered to the rule that words and phrases are to be construed according to the commonly approved usage of the language. State v. Young, 191 Conn. 636, 656, 469 A.2d 1189 (1983) (Peters, J., dissenting); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); State v. Moore, 158 Conn. 461, 465, 262 A.2d 166 (1969). The phrase “to exercise dominion or control” as commonly used contemplates a continuing relationship between the controlling entity and the object being controlled. Webster’s Third New International Dictionary defines the noun “control” as the “power or authority to guide or manage.” The essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object. State v. Avila, 166 Conn. 569, 573, 353 A.2d 776 (1974); State v. Harris, 159 Conn. 521, 531, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971). Construing the phrase “to exercise dominion or control” in § 53a-3 (2) to refer only to a case where an individual has exercised control, as defendant urges, would alter the meaning of the term “possess” as defined by the legislature in § 53a-3 (2).

The definition of “possess” contained in § 53a-3 (2) first appeared in our penal statutes in 1969, the year in which our penal code was extensively revised. The drafters of the new code relied heavily upon the Model Penal Code and various state criminal codes, especially the penal code of New York. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1,1969 Sess., p. 11. The definition of “possess” contained in the New York penal code is identical to that found in § 53a-3 (2). See N.Y. Penal Law § 10.00 (8) (McKinney 1975). The New York provision, which first appeared in that jurisdiction’s statutes in 1967, has been interpreted to include situations where a person knowingly has the power and the intent to exercise dominion or control. See People v. Perez, 127 Misc. 2d 309, 310, 485 N.Y.S.2d 913 (1984); People v. Stapleton, 94 Misc. 2d 850, 852, 406 N.Y.S.2d 223 (1978). We acknowledge that similarity of language between the New York and Connecticut penal codes does not compel a like construction. State v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978). The New York construction of an identical statute, however, combined with our approval of the same interpretation in a related context; see State v. Williams, supra; and the common usage of the phrase “to exercise dominion or control,” ineluctably lead us to conclude that the trial judge’s instructions in the present case were not erroneous.

There is no error.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-211. possession of a sawed-off shotgun or silencer: class d felony, (a) A person is guilty of possession of a sawed-off shotgun or a silencer when he owns, controls or possesses any sawed-off shotgun that has a barrel of less than eighteen inches or an overall length of less than twenty-six inches or when he owns, controls or possesses any silencer designed to muffle the noise of a firearm during discharge.”

       After Barbara Bethea had been examined and cross-examined, several sets of redirect and recross-examination followed. The allegedly prejudicial instance referred to here occurred during the third recross-examination and the fourth redirect examination.

       The entire colloquy was as follows:
      “Mr. Brunswick: Your Honor, before I could object Mrs. Bethea volunteered some information that Reginald Hill’s mother told her that the gun—
      “The Court: Told her that the gun was Reginald’s gun.
      “Mr. Brunswick: Right. Now I know your Honor instructed the jury to disregard it, but I think such a statement is of such a volatile nature that I think I should move for a mistrial. I know it’s not something done intentionally on the part of the State, the witness volunteered it.
      “The Court: What was the question asked by the State?
      “Mr. Brunswick: Something totally unrelated to what Reginald—
      “Mr. O’Brien: Something about what she said to Mr. Brunswick’s question she would come down and tell all she knew.
      “The Court: Who was asking the questions? Let’s have the question read back.
      (Whereupon the reporter read back the following [question].)
      “The Court: Well, it doesn’t appear to be any deliberate attempt on the State’s part to [elicit] this improper response.
      “Mr. Brunswick: I am not saying it’s any attempt on the part of the State to [elicit] this response. I am sure he didn’t even know what the response would be or that that would be the response.
      “Mr. O’Brien: No, I anticipated she would just reiterate—
      “Mr. Brunswick: What I think, your Honor, it presents us in a precarious position where I don’t think he can receive a fair trial at this point. I don’t think a jury can disregard such a statement.
      “The Court: Well, we ask the jury to disregard things they hear all of the time. We have to give them some credit for honesty and intelligence. I think I will deny the motion at this time.”

       “[General Statutes] Sec. 53a-3. definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title ... (2) ‘Possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property.”

       The trial judge used the following examples: “You possess the articles on your person because they obviously are within your immediate control or dominion. I possess the book on this desk in front of me, even though it actually belongs to the State of Connecticut, simply because it is before me and subject to my control and dominion. Ownership, therefore, is not required for possession. I also possess a briefcase which happens to be in the office because it’s under my control. I possess my car which is out in the parking lot, but it’s also under my control. I possess the furniture and other items in my home even though I am not actually there.”
      Although these examples appear to omit the mental intent necessary for possession, this element was adequately explained in the court’s explanation of the concept of constructive possession.

       The trial judge in State v. Williams, 169 Conn. 322, 335 n.2, 363 A.2d 72 (1975), instructed the jury as follows: “Now, a person who although not in actual possession knowingly has the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The word possession as used in the statute has no technical meaning. It does not mean that one must have a narcotic substance upon his person although that is one form of possession. It means having something under one’s control or dominion. As you ordinarily speak of things, we possess a thing which we have under our immediate control or dominion. You possess the articles on your person because they obviously are within your immediate control or dominion. I possess this book on the desk in front of me even though it actually belongs to the State of Connecticut simply because it is before me and subject to my control and dominion. I also possess a briefcase which happens to be in my chambers because it is under my control. I possess my car which is out in the parking lot because it is also under my control. I possess the furniture and other items in my home even though I am not actually there now for the same reason. . . . Regarding the question of dominion and control of the heroin, you are entitled to draw reasonable and logical inferences from the evidence that is before you.”

       We recognize that General Statutes § 53a-2 provides that the provisions of Title 53a “shall apply to any offense defined in this title or the general statutes, unless otherwise expressly provided . . . Because § 53a-3 expressly provides that the definitions contained therein “have the following meaning when used in this title” (emphasis added) it appears the legislature intended to restrict the scope of this provision to Title 53a only. See also General Statutes § 53a-5. Language found in General Statutes § 53a-3 (6) to the effect that a particular definition does not apply to certain statutes outside the penal code does not contravene this conclusion. The legislative history of that language indicates that the language was considered unnecessary but was added to cure some misinterpretations of the former statute. See 17 H.R. Proc., Pt. 6, 1974 Sess., pp. 3076-77; Conn. Joint Standing Committee Hearings, Judiciary, 1974 Sess., pp. 224, 238.