Kortner v. Martise ( 2014 )

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MARY H. KORTNER, ADMINISTRATRIX (ESTATE
OF CAROLINE KENDALL KORTNER)
v. CRAIG L. MARTISE
(SC 18793)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and
Vertefeuille, Js.*
Argued March 13, 2013—officially released June 10, 2014
Christopher C. Burdett, for the appellant-appellee
(plaintiff).
Philip Russell, with whom, on the brief, was Steven
Hartong, certified legal intern, for the appellee-appel-
lant (defendant).
Royal J. Stark and Jean M. Aranha filed a brief for
Connecticut Legal Services, Inc., as amicus curiae.
Daniel J. Klau filed a brief for the Connecticut Pro-
bate Assembly et al. as amici curiae.
Kirk W. Lowry and Sally Zanger filed a brief for the
Connecticut Legal Rights Project as amicus curiae.
Sandra L. Sherlock-White, Alexander J. Cuda and
Michael S. Schenker filed a brief for the Connecticut
Bar Association as amicus curiae.
Opinion
EVELEIGH, J. The plaintiff, Mary H. Kortner, the
administratrix of the estate of her daughter, Caroline
Kendall Kortner (Kendall),1 appeals from the judgment
of the trial court, rendered after a jury trial, in favor of
the defendant, Craig L. Martise.2 On appeal, the plaintiff
claims that the trial court improperly denied her motion
to set aside the verdict and for a new trial because a
document that was not properly admitted into evidence
mistakenly was given to the jury during its deliberations
and had the potential to have a highly prejudicial impact
on the jury. For the reasons stated in this opinion, we
agree with the plaintiff and, accordingly, reverse the
judgment of the trial court. We address the plaintiff’s
additional claim that the trial court improperly denied
her motion to strike and motion in limine regarding
Kendall’s ability to consent to sexual conduct and the
defendant’s claims, raised in his cross appeal,3 that the
trial court improperly instructed the jury to consider
Kendall’s status as a conserved person when determin-
ing her capacity to consent to sexual conduct, and that
the trial court improperly submitted interrogatories ask-
ing the jury to determine whether the defendant showed
Kendall pornographic photographs and videos, because
these issues are likely to arise again on remand and
are adequately briefed.4 We answer these additional
questions in the negative.
The record reveals the following facts, which the
jury reasonably could have found, and the following
procedural history. Kendall was born on July 21, 1970.
Throughout her life, Kendall struggled with a severe
eating disorder and other psychological issues, which
required repeated hospitalizations. During her lifetime,
she was diagnosed with clinical depression, borderline
personality disorder, obsessive compulsive disorder,
anorexia nervosa, bulimia nervosa, and periodic dysto-
nia and catatonia. In 1994, at the recommendation of
one of the physicians treating Kendall for her eating
disorder, the plaintiff filed the initial application to be
appointed as the conservator of Kendall’s person. The
court granted the plaintiff’s application on the ground
that Kendall was unable to manage her own affairs.5
In 1999, Kendall was living in an apartment in Stam-
ford. She received the help of an aide, who attended
to her on a daily basis, and oversight from the plaintiff.
One of Kendall’s treating physicians arranged for Ken-
dall to receive a computer and instruction on how to
use it in an effort to enrich her life. At that time, Kendall
began reading Internet sites for women suffering from
eating disorders and posted a profile on the Internet
indicating that she was interested in helping people
deal with eating disorders. The profile also indicated
where Kendall lived.
Shortly thereafter, Kendall received her first instant
message, which was from the defendant. Kendall did
not know the defendant at the time, but in the message
he explained that he had dated a girl with an eating
disorder while in college and that he was curious about
them. The defendant only identified himself by his first
name. Kendall did not respond at first. Then, the defen-
dant proceeded to send approximately ten more instant
messages to Kendall. After these additional messages,
Kendall responded and they began communicating by
instant messages.
The defendant was a computer programmer, and he
helped Kendall learn how to use her computer. The
relationship between Kendall and the defendant contin-
ued exclusively online for several years. During this
time, Kendall revealed details of her life to the defen-
dant, including the sexual abuse she had suffered as a
child and in college, her psychological problems, her
many hospitalizations for her eating disorder and the
fact that the plaintiff had been appointed as her conser-
vator. They never exchanged last names, never spoke
on the telephone and never met in person. Their only
form of communication was by e-mail and instant mes-
sages. During this time, Kendall was not aware that the
defendant was married and had four children.
In May, 2001, Kendall suffered a stroke, which
resulted in a lengthy hospitalization, during which she
suffered failure of multiple organs and underwent
numerous medical procedures. After her hospitaliza-
tion, she underwent extensive physical therapy and
rehabilitation. After the stroke, Kendall suffered some
paralysis, which affected, among other things, her abil-
ity to walk without the use of a walker or other device.
In late November, 2002, after the plaintiff had
begun transitioning back to her apartment, Kendall
reconnected with the defendant and they began to com-
municate by e-mail and instant messages again. Some-
time in late December, 2002, the defendant and Kendall
began talking on the telephone.
After several requests by the defendant, in February,
2003, the defendant and Kendall met for the first time
at her apartment. At first, the defendant and Kendall
developed a platonic relationship—the defendant
helped her with the computer, and they would watch
movies and talk. Eventually, their relationship became
sexual and developed into a sadomasochistic sexual
relationship.
In August, 2003, the plaintiff became aware of Ken-
dall’s sexual relationship with the defendant when she
noticed a change in Kendall’s behavior and saw bruising
on her body. The plaintiff then made an appointment
for Kendall to see her physician and psychiatrist. At
the advice of her physician, Kendall discontinued the
relationship with the defendant. Thereafter, Kendall
filed a complaint with the Stamford Police Department.
In 2006, the plaintiff, as conservator of the person
of Kendall, filed a three count complaint against the
defendant, which was subsequently amended, alleging
that the defendant committed sexual battery, civil
assault and intentional infliction of emotional distress.
The plaintiff sought compensatory and punitive
damages.
The matter was tried to a jury over ten days in Decem-
ber, 2009. The jury returned a verdict for the defendant
on all three counts of the complaint. Thereafter, the
plaintiff filed a motion in arrest of judgment, to set
aside the verdict and for a new trial on the ground that
a document identified as ‘‘plaintiff’s exhibit 7’’ had been
improperly sent to the jury, despite never being admit-
ted into evidence at trial. The trial court denied the
plaintiff’s motion and rendered judgment in accordance
with the verdict. The plaintiff appealed and the defen-
dant cross appealed.6
I
We begin with the threshold jurisdictional question
of whether the plaintiff, as conservator of Kendall’s
person, had standing to bring the present action in
which damages were sought for alleged intentional torts
committed against Kendall by the defendant.7 The plain-
tiff asserts that she had standing to bring the present
action as conservator of the person of Kendall under
General Statutes §§ 45a-650 and 45a-656 as they existed
at the time this action was brought in 2006. Specifically,
the plaintiff asserts that, under the prior versions of
§§ 45a-650 and 45a-656, the powers and duties of the
conservator were unlimited except when the order
appointing the conservator limited them, and that the
order appointing the plaintiff as Kendall’s conservator
in the present case contained no limitation. The defen-
dant asserts that the plaintiff did not have standing
to bring the present claim because the powers of a
conservator are limited and the conservatorship in the
present case did not grant the plaintiff the authority to
bring a claim on Kendall’s behalf. We conclude that,
even assuming, arguendo, that the plaintiff did not have
standing to bring this action in 2006, any defect was
cured when she was substituted as administratrix of
Kendall’s estate pursuant to General Statutes § 52-109.
With respect to the applicable legal principles, we
have explained that ‘‘[s]tanding is the legal right to set
judicial machinery in motion. One cannot rightfully
invoke the jurisdiction of the court unless he [or she]
has, in an individual or representative capacity, some
real interest in the cause of action, or a legal or equitable
right, title or interest in the subject matter of the contro-
versy.’’ (Internal quotation marks omitted.) Wilcox v.
Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053
(2009).
Nevertheless, ‘‘[s]tanding is not a technical rule
intended to keep aggrieved parties out of court; nor is
it a test of substantive rights. Rather it is a practical
concept designed to ensure that courts and parties are
not vexed by suits brought to vindicate nonjusticiable
interests and that judicial decisions which may affect
the rights of others are forged in hot controversy, with
each view fairly and vigorously represented.’’ (Internal
quotation marks omitted.) Canty v. Otto, 304 Conn.
546, 556, 41 A.3d 280 (2012). ‘‘These two objectives are
ordinarily held to have been met when a complainant
makes a colorable claim of direct injury he has suffered
or is likely to suffer, in an individual or representative
capacity. Such a personal stake in the outcome of the
controversy . . . provides the requisite assurance of
concrete adverseness and diligent advocacy.’’ (Internal
quotation marks omitted.) Pond View, LLC v. Plan-
ning & Zoning Commission, 288 Conn. 143, 155, 953
A.2d 1 (2008). ‘‘Standing [however] requires no more
than a colorable claim of injury . . . .’’ (Internal quota-
tion marks omitted.) Electrical Contractors, Inc. v.
Dept. of Education, 303 Conn. 402, 411, 35 A.3d 188
(2012).
Even if we were to assume, arguendo, that the plain-
tiff did not have standing to bring the action when it
was commenced in 2006, any jurisdictional defect was
cured by her substitution as plaintiff in 2010 pursuant
to § 52-109.
In 2010, after Kendall passed away and the plaintiff
had been appointed administratrix of her estate, the
plaintiff sought substitution pursuant to § 52-109. On
April 23, 2010, the trial court granted substitution of
the plaintiff as administratrix of Kendall’s estate as the
plaintiff in this matter.
Section 52-109 provides as follows: ‘‘When any action
has been commenced in the name of the wrong person
as plaintiff, the court may, if satisfied that it was so
commenced through mistake, and that it is necessary
for the determination of the real matter in dispute so
to do, allow any other person to be substituted or added
as plaintiff.’’
In DiLieto v. County Obstetrics & Gynecology Group,
P.C., 297 Conn. 105, 150, 998 A.2d 730 (2010), this court
explained that ‘‘[o]ur rules of practice . . . permit the
substitution of parties as the interests of justice require.
. . . These rules are to be construed so as to alter
the harsh and inefficient result that attached to the
mispleading of parties at common law. . . . [Section]
52-109 and [what is now] Practice Book § [9-20] allow
a substituted plaintiff to enter a case [w]hen any action
has been commenced in the name of the wrong person
as plaintiff . . . . Both rules, of necessity, relate back
to and correct, retroactively, any defect in a prior plead-
ing concerning the identity of the real party in interest.’’
(Citation omitted; internal quotation marks omitted.)
This court also recognized that our rules regarding
substitution of parties are analogous to the federal rules
and that federal courts have observed ‘‘that [when] the
change is made on the plaintiff’s side to supply an indis-
pensable party or to correct a mistake in ascertaining
the real party in interest, in order to pursue effectively
the original claim, the defendant will rarely be unfairly
prejudiced by letting the amendment relate back to the
original pleading. . . . As long as [the] defendant is
fully apprised of a claim arising from specified conduct
and has prepared to defend the action, his ability to
protect himself will not be prejudicially affected if a
new plaintiff is added . . . . Thus, an amendment sub-
stituting a new plaintiff [will] relate back if the added
plaintiff is the real party in interest.’’ (Citation omitted;
internal quotation marks omitted.) Id., 150–51.
‘‘[R]emedial statutes such as [§ 52-109] were intended
to soften the otherwise harsh consequences of strict
construction under the common law: Over-technical
formal requirements have ever been a problem of the
common law, leading [legislative bodies] at periodic
intervals to enact statutes . . . [that], in substance,
told the courts to be reasonable in their search for
technical perfection. . . . Under § 52-109, substitution
is permitted only when the trial court determines that
the action was commenced in the name of the wrong
plaintiff through mistake, which properly has been
interpreted to mean an honest conviction, entertained
in good faith and not resulting from the plaintiff’s own
negligence that she is the proper person to commence
the [action]. . . . [O]nce such a determination is made
. . . the substituted party is let in to carry on a pending
suit, and is not regarded as commencing a new one.
After he is substituted he is . . . treated and regarded
for most purposes just as if he had commenced the
suit originally. The writ, the complaint, the service of
process, attachment made, bonds given, the entry of
the case in court, the pleadings if need be, in short all
things done in the case by or in favor of the original
plaintiff . . . remain for the benefit of the plaintiff who
succeeds him, as if done by and for him originally and
just as if no change of parties had been made. So far
as the defendant is concerned, the same suit upon the
same cause of action, under the same complaint and
pleadings substantially in most cases, goes forward to
its final and legitimate conclusion as if no change had
been made.’’ (Citations omitted; internal quotation
marks omitted.) Id., 151–52.
Indeed, in DiLieto, this court also favorably cited a
federal case, Health Research Group v. Kennedy, 82
F.R.D. 21, 30 (D.D.C. 1979), for the proposition that the
substitution of a real party in interest as the plaintiff
cures the lack of standing of the original plaintiff.
DiLieto v. County Obstetrics & Gynecology Group,
P.C., supra, 297 Conn. 151.
The relevant provision of our rules of practice is set
forth in Practice Book § 9-20, which provides: ‘‘When
any action has been commenced in the name of the
wrong person as plaintiff, the judicial authority may, if
satisfied that it was so commenced through mistake
and that it is necessary for the determination of the
real matter in dispute so to do, allow any other person
to be substituted or added as plaintiff.’’ To quote the
commentary to this rule in the Connecticut Practice
Series: ‘‘This section prevents the failure of an action
when the wrong person is named as plaintiff. If a motion
is granted to substitute the correct plaintiff, the motion
relates back to commencement of the suit. [Federal
Deposit Ins. Corp.] v. Retirement Management Group,
Inc., 31 Conn. App. 80, 623 A.2d 517 (1993).’’ W. Hor-
ton & K. Knox, 1 Connecticut Practice Series: Connecti-
cut Superior Court Civil Rules (2013–2014 Ed.) § 9-20,
p. 488. The commentary continues: ‘‘This section
applies to the assignee when the assignor improperly
brought the action, [as in] United States Trust Co. [of
New York] v. DiGhello, 179 Conn. 246, [247 n.1, 425
A.2d 1287] (1979), or to an assignor when the assignee
improperly brought the action, [as in] Bowen v.
National Life [Assn.], 63 Conn. 460, 474–77, [27 A. 1059]
(1893). Bowen is especially important because it
allowed the substitution of the correct plaintiff after
the statute of limitations has run.’’ 1 W. Horton & K.
Knox, supra, § 9-20, p. 489.
On the basis of the foregoing, we conclude that even
assuming, arguendo, that the plaintiff did not have
standing to bring the claim when she commenced the
action in 2006, any defect was cured when she, as
administratrix of Kendall’s estate, was substituted as
the plaintiff in 2010 and that substitution related back
to the commencement of the action. Our conclusion is
not meant to suggest that any person who is appointed
an administrator of an estate becomes a proper party
to any claim. As § 52-109 requires, the substitution of
an administrator of an estate ‘‘is necessary for the deter-
mination of the real matter in dispute . . . .’’ In the
present case, it is clear that Kendall herself had ‘‘a
colorable claim of injury,’’ therefore, the substitution
of the plaintiff, as administratrix of the estate, cured
any possible jurisdictional defect. See Electrical Con-
tractors, Inc. v. Dept. of Education, supra, 303 Conn.
411. Accordingly, we conclude that there are no jurisdic-
tional defects created by standing in the present case.
II
We next turn to the plaintiff’s claim that the trial
court improperly denied her motion to set aside the
verdict and for a new trial. Specifically, the plaintiff
asserts that the trial court abused its discretion by deny-
ing her motion after becoming aware of the misconduct
that infected the trial process. Namely, the plaintiff
asserts that the trial court clerk’s failure to alert the
court of a question from the jury regarding a particular
exhibit constituted misconduct in the trial process
requiring reversal. We agree with the plaintiff.
The record reveals the following additional facts and
procedural history, which are relevant to the plaintiff’s
claim. Prior to the trial in this case, the trial court and
counsel for both parties agreed that the parties would
premark each exhibit and exchange copies of each
exhibit. It was agreed that if the parties could not agree
on the admissibility of an exhibit, it would be marked
for identification purposes only. If all counsel agreed
on an exhibit, it would be marked as a full exhibit. The
parties agreed that the clerk who was overseeing the
marking of exhibits would fill out the exhibit sheet
listing each of the exhibits and indicate whether it was
a full exhibit or for identification purposes only. On
November 20, 2009, counsel for both parties and the
clerk met, marked and exchanged exhibits. On the same
day, the clerk marked ‘‘plaintiff’s exhibit 7’’ as a full
exhibit.
Plaintiff’s exhibit 7 is a typewritten letter dated Febru-
ary 15, 2003. The letter is addressed to the XYZ Housing
Authority at 482 West Main Street in Stamford. This
letter states as follows: ‘‘I have been a disabled resident
of 482 West Main Street for seven years. Events over
the past two years have forced me to bring a matter of
serious concern to your attention to be addressed.
Please be advised by this letter that I expect these
concerns to be rectified immediately or I will take fur-
ther action in other forums.
‘‘Specifically, one of your employees John Jones . . .
for the past two years has consistently made unwanted,
inappropriate and threatening sexual advances to me.
For example:
‘‘Unwanted and [i]nappropriate sexual behavior
including, but not limited to, hugging, attempted kissing,
getting into bed with me without my consent, inappro-
priate touching, conversing in a sexual nature, and gen-
erally behaving in both actions and deeds in a manner
that makes me uncomfortable and feeling extremely
threatened and sexually abused.
‘‘Threatening behavior including, but not limited to,
constantly visiting and loitering around my front door
and in my apartment, constantly telling me how he
wants to ‘get together with me’, not leaving when I ask
him to leave, sitting in the chair by my bed for extended
periods of time (for no reason), telling/threatening me
that ‘he’ll be back’ and generally acting in words and
deeds in a manner that makes me feel vulnerable,
defenseless and that my safety is in extreme jeopardy.
‘‘If any of these actions persist in any way from this
point forward, for my own safety I will be forced to
address these concerns with higher authorities in both
the civil and criminal forums; as well as getting other
bodies (i.e. [s]tate, [f]ederal, [m]edicare, [Better Busi-
ness Bureau], etc.) to deal with them as severely as
they should be treated.
‘‘Lastly, to avoid further harassment, I expect all
future communications in this matter be addressed
either in writing or with both my mother and I present.
‘‘Sincerely, Kendall Kortner.’’ (Emphasis omitted.)
Although the plaintiff has consistently alleged that the
document was drafted by the defendant, no testimony
or other evidence regarding the source or nature of the
document was ever presented to the jury.
Prior to the start of trial, the plaintiff had filed a
motion in limine seeking to prohibit the defendant from
presenting evidence regarding Jones. After hearing
argument on the motion in limine, the trial court ruled
that the defendant was not to inquire into that issue
without first alerting the court of his intention to do
so, but reserved its decision on the admissibility of such
evidence to be made based on the testimony at the time
of trial. Plaintiff’s exhibit 7 had been marked as an
exhibit prior to the court making a final ruling on the
motion in limine during trial. Thereafter, during trial,
the trial court ultimately ruled that ‘‘[t]here will be no
questions regarding [Jones].’’
During the trial in this matter, neither counsel for the
plaintiff nor counsel for the defendant ever introduced
plaintiff’s exhibit 7 into evidence or presented any testi-
mony regarding that exhibit. After final arguments, the
trial court instructed the jury, in relevant part, as fol-
lows: ‘‘If you have any questions, put them in writing
and deliver them to the court personnel who will deliver
them to the court, in other words, to me.
‘‘Likewise if you wish to make a request to hear any
of the testimony again, as you have the right to, put
the request in writing and please try to be as specific
as possible.
‘‘Now I just want to tell you about these writings that
come from the foreperson. When you write a note to
the court and ask for either some testimony to be played
back or you have a question to the court, that should
be in writing, and the foreperson should sign the note,
okay, with his name and the date and time that you are
making the request to the court, so you’ll be very spe-
cific in that respect.’’
Thereafter, counsel for both parties reviewed the doc-
uments provided to the jury for their deliberation, and
confirmed the submission of all exhibits to the jury,
including plaintiff’s exhibit 7. Neither counsel for the
plaintiff nor counsel for the defendant informed the
court that plaintiff’s exhibit 7 should be removed from
the exhibits based on the trial court’s ruling during trial.
After the jury’s verdict had been read and accepted
and court was adjourned, the trial court met with the
jury to thank them for their service. At that time, one of
the jurors mentioned plaintiff’s exhibit 7 and expressed
confusion about the fact that he had not heard about
it during trial. The trial court did not offer an explana-
tion of the exhibit, but stated that it had been marked
as a full exhibit. The trial court excused the jurors and
told them they were permitted to speak with anyone
about their service, including counsel, but not to speak
about their deliberations.
Thereafter, the plaintiff filed a motion to set aside
the verdict and for a new trial. The plaintiff submitted
two affidavits from jurors as part of her motion, includ-
ing one affidavit from the foreperson. In one of these
affidavits, a juror explained that he was confused about
plaintiff’s exhibit 7 during deliberations and that the
jury ‘‘discussed whether to send a general question to
the judge asking about the exhibits we were supposed
to have during our deliberations, or whether to send
a note specifically about [p]laintiff’s [e]xhibit 7.’’ The
affidavit continues, ‘‘[e]ventually, the foreperson pre-
pared a note specifically about [p]laintiff’s [e]xhibit 7,
and we sent for the clerk.’’ The juror further explained,
‘‘[w]e then showed the clerk [p]laintiff’s [e]xhibit 7 and
said that it was what we were concerned about, and
the clerk replied that she was familiar with it and that
it was supposed to be a part of the evidence we should
consider.’’ The affidavit also states: ‘‘We asked whether
our question about [p]laintiff’s [e]xhibit 7 needed to be
answered by the court, but we believed that the clerk
had essentially answered the question for the court, so
we accepted that answer, the foreperson discarded the
note he had prepared for the judge, and we went on
with our deliberations.’’
In another affidavit, the foreperson explained as fol-
lows: ‘‘In response to my question about sending a note
to the judge, the clerk said it would not be necessary,
since everything in the box of exhibits which had been
brought in to us for our deliberations was supposed to
be there.’’ The affidavit further states that the foreper-
son recalled ‘‘asking a couple of times, and the clerk
seemed quite confident that it was unnecessary to alert
the judge.’’ The foreperson also indicated in his affidavit
that he ‘‘had actually written a quick note to the judge,
which [he thought] several of the other jurors saw,
inquiring about this exhibit, but because of the clerk’s
comments, we did not forward the note to the judge.’’
As the ground for her motion set aside the verdict
and for a new trial, the plaintiff claimed that because
it was not offered or admitted into evidence during trial,
plaintiff’s exhibit 7 was not properly submitted to the
jury pursuant to Practice Book § 16-15 and that, had
the jury’s written question about plaintiff’s exhibit 7
been submitted to the trial court, the court would have
made further inquiry and had the ability to withdraw
it and issue a curative instruction. The plaintiff further
claimed that the potential harmfulness and prejudice
of plaintiff’s exhibit 7 is both highly significant and
self-evident because the jury never heard testimony
identifying or explaining the document and the nature
of the document went to a central issue in the case,
namely, Kendall’s ability to resist unwelcome sexual
advances.
The trial court denied the plaintiff’s motion. In doing
so, the trial court relied on the fact that the plaintiff’s
counsel reviewed the exhibits that were submitted to
the jury prior to their submission and that neither plain-
tiff’s counsel nor defendant’s counsel objected to the
submission of plaintiff’s exhibit 7 to the jury. In denying
the plaintiff’s motion, the trial court also relied on the
fact that the plaintiff had not demonstrated that the
jury was affected by the exhibit.8 The trial court also
rejected the plaintiff’s claim that the clerk’s failure to
allow the jury to present a note to the court was not
itself reason to set aside the verdict and grant a new
trial. Furthermore, the trial court concluded that ‘‘the
exhibit at issue was introduced and [premarked] by the
plaintiff as a full exhibit. This marking was made even
though it was clear that the parties had the right to
mark any exhibits which were not agreed upon as an
exhibit for identification. There was never a request to
correct the marking during the days of trial or to with-
draw the exhibit as a full exhibit. More importantly, as
the exhibits were prepared for submission to the jury
for consideration in the deliberation, the plaintiff specif-
ically noted plaintiff’s exh[ibit] 7 as a document to be
submitted to the jury. These actions by the [plaintiff]
can lead to no other conclusion than that [she] waived
any objection to the submission of the exhibit to the
jury.’’
We begin our analysis of the plaintiff’s first claim by
setting forth the applicable standard of review. ‘‘The
proper appellate standard of review when considering
the action of a trial court in granting or denying a motion
to set aside a verdict is the abuse of discretion standard.
. . . In determining whether there has been an abuse
of discretion, every reasonable presumption should be
given in favor of the correctness of the court’s ruling.
. . . Reversal is required only [when] an abuse of dis-
cretion is manifest or [when] injustice appears to have
been done.’’ (Citations omitted; internal quotation
marks omitted.) Label Systems Corp. v. Aghamoham-
madi, 270 Conn. 291, 303, 852 A.2d 703 (2004). ‘‘[T]he
role of the trial court on a motion to set aside the jury’s
verdict is not to sit as [an added] juror . . . but, rather,
to decide whether, viewing the evidence in the light
most favorable to the prevailing party, the jury could
reasonably have reached the verdict that it did.’’ (Inter-
nal quotation marks omitted.) Hunt v. Prior, 236 Conn.
421, 429 n.21, 673 A.2d 514 (1996). ‘‘In reviewing the
action of the trial court in denying [or granting a motion]
. . . to set aside the verdict, our primary concern is to
determine whether the court abused its discretion
. . . . The trial court’s decision is significant because
the trial judge has had the same opportunity as the jury
to view the witnesses, to assess their credibility and
to determine the weight that should be given to [the]
evidence. Moreover, the trial judge can gauge the tenor
of the trial, as [this court], on the written record, cannot,
and can detect those factors, if any, that could improp-
erly have influenced the jury.’’ (Internal quotation
marks omitted.) Childs v. Bainer, 235 Conn. 107, 113,
663 A.2d 398 (1995).
On appeal, the plaintiff asserts that the trial court
improperly denied her motion to set aside the verdict
and for a new trial. Specifically, the plaintiff asserts
that, the submission of plaintiff’s exhibit 7 to the jury
for consideration constitutes juror misconduct because
it was not admitted into evidence and it is highly likely
that it prejudiced the jury because the jurors never
heard any testimony explaining the document and the
document addressed an issue central to the plaintiff’s
case, namely Kendall’s ability to resist unwelcome sex-
ual advances. The plaintiff also asserts that she did not
waive any objections to the admission of the document
and was improperly denied the opportunity to ask the
trial court to rectify the mistake. In response, the defen-
dant asserts that the trial court did not abuse its discre-
tion in denying the plaintiff’s motion to set aside the
verdict. Specifically, the defendant claims that plain-
tiff’s exhibit 7 was properly before the jury because it
was marked by the plaintiff as a full exhibit prior to
trial. The defendant further asserts that the plaintiff
waived any claim that plaintiff’s exhibit 7 was improp-
erly submitted to the jury. The defendant also claims
that, even if plaintiff’s exhibit 7 was improperly pro-
vided to the jury, the plaintiff did not meet her burden
of establishing that she was entitled to a new trial. We
agree with the plaintiff.
A
We first address the threshold issue raised by the
plaintiff’s claim—namely, whether plaintiff’s exhibit 7
was evidence in the case. The plaintiff asserts that plain-
tiff’s exhibit 7 was not evidence in the case because it
was never offered or received in evidence during the
course of the trial and that the premarking of that docu-
ment as a full exhibit did not make it evidence in the
trial. The defendant claims that plaintiff’s exhibit 7 was
properly before the jury because the parties had marked
it as a full exhibit prior to trial. We agree with the
plaintiff.
The text of Practice Book § 5-7 supports the conclu-
sion that exhibits must be received in evidence during
the course of the trial. Specifically, § 5-7 provides as
follows: ‘‘Unless otherwise ordered by the judicial
authority, the clerk shall mark all exhibits not marked
in advance of trial and shall keep a list of all exhibits
marked for identification or received in evidence dur-
ing the course of the trial.’’ (Emphasis added.) As § 5-7
indicates, a document can only be received in evidence
during trial and the clerk must maintain a list of docu-
ments received in evidence during the trial.
The defendant asserts that plaintiff’s exhibit 7 was
admitted into evidence because it was premarked as a
full exhibit prior to trial. The procedure for premarking
exhibits is explained in the Civil Jury Trial Management
Order (trial management order), a standing order of
the Judicial Branch. See B. Quinn & L. Lager, ‘‘Civil
Jury Trial Management Order,’’ (last modified March
11, 2011), p. 2, available at http://jud.ct.gov/external/
super/Standorders/Civil/_TMC_Order_Jury.pdf (last
visited May 22, 2014). This order explains as follows:
‘‘Before the start of evidence, all exhibits each side
reasonably expects to introduce must be [premarked]
as full . . . if all sides agree, or for identification only
. . . . Unless otherwise ordered by the court at the
trial management conference or by the assigned trial
judge, exhibits shall be marked in accordance with the
instructions contained in Form JD-CL-28 (List of Exhib-
its) and the form must be submitted to the court on or
before the first day of evidence. Any exhibit that is
offered at trial but is not on the List of Exhibits will
not be admitted, except for good cause shown or if the
exhibit is offered as rebuttal or impeachment evidence.’’
(Emphasis added.) Id. The language of the trial manage-
ment order specifically indicates that, at trial, a party
must still introduce an exhibit that has been premarked
as a full exhibit. Indeed, the premarking of an exhibit
as full only indicates that a party ‘‘reasonably expects
to introduce’’ it as an exhibit and, if it is offered, the
other party will not object. Id. Nothing in these orders
or the Practice Book suggests that the premarking of
an exhibit replaces the actual offering of an exhibit into
evidence at trial. Furthermore, the language of the order
specifically contemplates that the marking of an exhibit
as full does not require that the exhibit necessarily be
used as evidence during the trial.
Indeed, during the course of this trial, counsel for
the plaintiff and counsel for the defendant and the judge
all operated with the understanding that documents
that were premarked as full exhibits still needed to be
offered into evidence during the course of the trial.
For instance, at trial, when counsel for the plaintiff
attempted to ask the plaintiff about a document that
had been premarked as a full exhibit, counsel for the
defendant interrupted saying, ‘‘[i]f Your Honor please,
I don’t know if the document has been offered or not
at this point.’’ The trial court then responded, ‘‘[h]as
not. Are you offering that as a full exhibit, counsel?’’
Counsel for the plaintiff responded as follows: ‘‘Well it
was marked as a full exhibit before, but at this point
I’ll withdraw the offer and we’ll deal with it when we
can do it in a logical fashion.’’ This colloquy makes
clear that counsel for both parties and the judge in
the present case understood that the premarking of a
document as a full exhibit did not constitute offering
that document into evidence.
On the basis of the foregoing, we conclude that plain-
tiff’s exhibit 7 was not properly admitted into evidence.
Plaintiff’s exhibit 7 was never received into evidence
by the judge and never published to the jury. It is undis-
puted that plaintiff’s exhibit 7 was only premarked as
a full exhibit, was never mentioned during the course
of the trial and was never shown to the judge or the
jurors during the course of the trial. Therefore, we con-
clude that it was not properly received into evidence
and should not have been given to the jury pursuant to
Practice Book § 16-5.
The defendant asserts that the plaintiff waived any
claim related to plaintiff’s exhibit 7 because she
requested that it be marked as a full exhibit prior to
trial and never asked that it be removed from the exhib-
its that were provided to the jury for their deliberation.
We disagree.
The defendant claims that the plaintiff waived her
claim regarding plaintiff’s exhibit 7 because she affirma-
tively premarked the exhibit as a full exhibit. As we
explained previously herein, the plaintiff did not offer
plaintiff’s exhibit 7 into evidence at trial, but merely
asked that it be placed on the list of exhibits that she
reasonably expected to introduce at trial, in accordance
with the trial management order. A review of the trial
management order, however, reveals that ‘‘all exhibits
each side reasonably expects to introduce must be pre-
marked as full . . . if all sides agree . . . .’’ B. Quinn &
L. Lager, supra, p. 2. Therefore, the plaintiff’s decision
to mark plaintiff’s exhibit 7 as a full exhibit for the
exhibit list is not grounds to find that she waived any
later claim about that document.
Moreover, it is important to remember that at the time
the plaintiff asked that plaintiff’s exhibit 7 be marked as
a full exhibit, the trial court had not ruled on the plain-
tiff’s motion in limine seeking to exclude evidence
related to Jones. Once the trial court ruled on the plain-
tiff’s motion in limine and determined that evidence
related to Jones would not be admissible, plaintiff’s
exhibit 7 could not be admitted into evidence in the
absence of a new ruling by the trial court.
The defendant also claims that the plaintiff waived
any claim related to the submission of plaintiff’s exhibit
7 to the jury when plaintiff’s counsel had the opportu-
nity to conduct a final review of the documents to be
submitted to the jury on December 17, 2009. Although,
we agree with the plaintiff’s counsel’s acknowledgment
that he made a mistake in not asking that plaintiff’s
exhibit 7 be removed from the exhibits submitted to the
jury, we cannot conclude that this mistake constitutes
waiver or induced error. The plaintiff consistently took
the position, through her motion in limine, that any
evidence related to Jones—thereby necessarily includ-
ing plaintiff’s exhibit 7—should be excluded. Addition-
ally, the plaintiff had no reason to believe that a
document that was never actually offered or received
into evidence during the course of trial would be
included in the exhibits submitted to the jury. Based on
the foregoing, we cannot conclude that any inadvertent
failure on her counsel’s part to object to the inclusion
of plaintiff’s exhibit 7 in the exhibits being submitted
to the jury is sufficient to constitute waiver, especially
since counsel for the defendant also had the same obli-
gation to alert the court to any mistake in the exhibits
being submitted to the jury in light of the judge’s ruling
that all testimony regarding Jones was inadmissible.
Furthermore, the clerk’s failure to alert the judge to
the jury’s concerns deprived the plaintiff and the trial
court of the opportunity to rectify the inadvertent mis-
take of providing plaintiff’s exhibit 7 to the jury for
deliberation. As explained previously in this opinion,
the trial court instructed the jury to put any questions
in writing and submit them to the clerk. The jury
attempted to follow this instruction by preparing a note
regarding plaintiff’s exhibit 7 and calling for the clerk.
According to the court’s instructions, the jury under-
stood that the clerk would deliver that note to the court.
The clerk, however, did not follow the procedure as
described in the instructions. Instead, the clerk took it
upon himself or herself to respond to the jurors’ ques-
tion about plaintiff’s exhibit 7 and to never alert the
judge or the parties to the jurors’ concerns about the
exhibit. It was this interference with the trial process
that prevented the trial court and the parties from hav-
ing the opportunity to rectify the inadvertent error of
providing plaintiff’s exhibit 7 to the jury for their deliber-
ations.9
A clerk must always convey a jury’s question to the
judge, as explained in the model jury instructions. See
Connecticut Civil Jury Instructions (4th Ed. 2008)
instruction 2.9-3, available at http://www.jud.ct.gov/JI/
civil/part2/2.9-3.htm (last visited May 22, 2014) (copy
contained in the file of this case in the Supreme Court
clerk’s office) (‘‘If you have questions during your delib-
erations, the foreperson should write the jury’s question
on a sheet of paper, sign and date it, and knock on the
door. The marshal will then bring the question to me,
and I will respond in open court. It may take a few
minutes to assemble the staff before you are brought
to the courtroom to hear the response. Please try to
make any questions very precise. We cannot engage in
an informal dialogue, and I will respond only to the
question on the paper.’’). The actions of the clerk in
this matter tainted this process. We do not know what
the judge would have done if presented with the issue
during the trial. We do know, however, that the actions
of the clerk prevented the trial court from considering
the matter. At oral argument before this court, the coun-
sel for the plaintiff acknowledged that he made a mis-
take allowing the exhibit to go to the jury, but asserted
that the mistake could have been rectified if the judge
was notified of the jury’s question and conducted an
inquiry into the matter. We also know based on the
representations made by the counsel for the defendant
at oral argument that he would not have objected to
removing plaintiff’s exhibit 7 from the exhibits given
to the jury. The clerk’s action, therefore, is further
ground for concluding that the plaintiff did not waive
her claim regarding the improper consideration of plain-
tiff’s exhibit 7 by the jury.
The trial court relied on cases in which this court has
concluded that evidence admitted without objection is
in evidence. See State v. Rawls, 198 Conn. 111, 118, 502
A.2d 374 (1985) (‘‘[w]here hearsay evidence is admitted
without objection, such evidence may be given such
weight as the trier of fact deems that it is worth’’ [inter-
nal quotation marks omitted]). We conclude that such
cases are distinguishable from the present case
because, as we have explained previously in this opin-
ion, plaintiff’s exhibit 7 was never admitted into evi-
dence. The defendant does not cite, and we cannot
find, any authority for the proposition that a document,
which is not properly admitted into evidence during
trial, becomes evidence by being provided to the jury
after the close of evidence. Therefore, we conclude that
the trial court’s reliance on these cases was improper.
On the basis of the foregoing, we conclude that plain-
tiff’s exhibit 7 was not properly admitted into evidence
and, therefore, was not properly before the jury.
B
Having concluded that plaintiff’s exhibit 7 was not
properly admitted into evidence, we must determine
whether the submission of that document to the jury
constitutes reversible error. In the present case, the
plaintiff asserts that the jury’s consideration of material
not in evidence was such that it is probable that the
jury was so influenced by it as to cause prejudice. Spe-
cifically, the plaintiff claims that the jury’s improper
consideration of plaintiff’s exhibit 7 prejudiced the jury
because it related to a central issue in the case, namely
whether Kendall was able to consent to or resist sexual
advances. We agree.
Although the parties analyze this issue as one of juror
misconduct, because there is no allegation that any of
the jurors acted improperly themselves and, indeed, the
jurors in the present case properly followed the jury
instructions, we find it more appropriate to analyze this
claim as we would an evidentiary impropriety since it
involved the jury considering material that was improp-
erly before it.
We have repeatedly recognized that ‘‘an evidentiary
impropriety in a civil case is harmless only if we have
a fair assurance that it did not affect the jury’s verdict.’’
(Internal quotation marks omitted.) Hayes v. Camel,
283 Conn. 475, 489, 927 A.2d 880 (2007).
‘‘ ‘A determination of harm requires us to evaluate
the effect of the evidentiary impropriety in the context
of the totality of the evidence adduced at trial. Vasquez
v. Rocco, 267 Conn. 59, 72, 836 A.2d 1158 (2003). Thus,
our analysis includes a review of: (1) the relationship
of the improper evidence to the central issues in the
case, particularly as highlighted by the parties’ summa-
tions; (2) whether the trial court took any measures,
such as corrective instructions, that might mitigate the
effect of the evidentiary impropriety; and (3) whether
the improperly admitted evidence is merely cumulative
of other validly admitted testimony. . . . Prentice v.
Dalco Electric, Inc., [280 Conn. 336, 358, 907 A.2d 1204
(2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167
L. Ed. 2d 230 (2007)]; see also id., 360–61 (noting that
during summation, plaintiff described issue encom-
passing improperly admitted scientific evidence as criti-
cal and emphasized that evidence); Hayes v. Caspers,
Ltd., 90 Conn. App. 781, 800, 881 A.2d 428 (cautionary
instruction addressed prejudicial impact of expert’s tes-
timony that included arguably improper discussion of
pending federal action), cert. denied, 276 Conn. 915,
888 A.2d 84 (2005); Raudat v. Leary, 88 Conn. App. 44,
52–53, 868 A.2d 120 (2005) (improperly admitted expert
testimony was harmful error when it related to central
issue in case, namely, condition of purchased horse);
DeMarkey v. Fratturo, [80 Conn. App. 650, 656–57, 836
A.2d 1257 (2003)] (improperly admitted hearsay evi-
dence about cause of motor vehicle accident was harm-
less because it was cumulative of properly admitted
testimonial and diagram evidence). The overriding
question is whether the trial court’s improper ruling
affected the jury’s perception of the remaining evi-
dence. Swenson v. Sawoska, 215 Conn. 148, 153, 575
A.2d 206 (1990).’ . . . Hayes v. Camel, supra, 283
Conn. 489–90.’’ Sullivan v. Metro-North Commuter
Railroad Co., 292 Conn. 150, 162–63, 971 A.2d 676
(2009).
In the present case, the plaintiff claimed that the
defendant committed sexual battery, civil assault and
intentional infliction of emotional distress. In response,
inter alia, the defendant asserted as a special defense
that Kendall consented to any and all sexual contact
with him. Because of these claims and the special
defense proffered by the defendant, Kendall’s ability to
consent or resist sexual advances was a central issue in
this case. Therefore, a letter in which Kendall expressly
stated her lack of consent to sexual advances and for-
mally complained of unwanted sexual advances had
the potential for significant impact on the jury. A jury
could have found that the letter itself demonstrated
that Kendall had the ability to consent and was not, as
the plaintiff alleged, unable to consent to sexual
conduct.
An examination of the evidence adduced at trial dem-
onstrates that the parties focused much of the testimony
on Kendall’s capacity to consent. The plaintiff adduced
testimony to demonstrate that, despite Kendall’s appar-
ent intelligence, she was unable to care for herself and
make her own decisions, including being unable to con-
sent to sexual conduct.
For instance, Kendall herself testified that she per-
formed very well in high school, achieving a straight A
average, and then received admission to a number of
top colleges. Kendall also testified that, at first, she
performed very well academically in college at the Uni-
versity of North Carolina, Chapel Hill, but left during
her sophomore year after being the victim of a gang
rape. Kendall further testified that her health dramati-
cally declined after that period and that her weight went
below eighty-five pounds at that point and remained
that low. Kendall testified that she became so mentally
and physically challenged after that and spent most of
her twenties going in and out of hospitals for treatment
of her eating disorder. Kendall also explained that she
received shock therapy a few times, was fed by a feeding
tube against her consent and that her weight went as
low as fifty-five pounds. Kendall also testified that she
took a number of medications, including those for
depression, anxiety, extreme pain, and a mood stabi-
lizer. She also explained that she had a nurse or the
plaintiff in each day to administer her medications and
an aide to assist her with her daily tasks of living, includ-
ing showering and light housework.
Kendall also testified that in May of 2001, she suffered
a stroke like episode that caused a dramatic decline in
her health. She explained that she was on total life
support, almost had her legs amputated and underwent
fasciotomies, in which they made incisions running
from her ankles to her knees on the inside and outside
of both legs. She also explained that after the stroke
she needed to use braces and a wheelchair and learn
how to eat again. Kendall further testified that she con-
tinued to have problems with her urinary function up
to the time of trial, which caused her not to know when
she had to urinate and that she needed to wear diapers
to address this problem. Kendall also testified that she
suffered mental confusion after her stroke and fre-
quently could not think of simple words. Kendall also
testified that after the stroke she needed to learn to
read again.
In addition, Timothy Dolan, a detective with the Stam-
ford Police Department who had interviewed Kendall
once her relationship with the defendant was reported
to the police, also testified at trial. Dolan testified that
Kendall had told him that the defendant told her to tell
him to stop if anything he was doing hurt her and that
she only told him to stop one time.
During cross-examination by defense counsel, Ken-
dall testified as follows:
‘‘Q. Did he ever say to you, ‘[i]f you don’t want to do
something or if I’m hurting you . . . then tell me to
stop and I will stop?’
‘‘A. He just did what he pleased when the time came.
He said ‘fire truck.’ He said say ‘Fire Truck,’ if it gets
out of hand. No matter what I said, he finished what
he was doing and it was like relevant.
‘‘Q. Right. So he ignored you when you told him
to stop?
‘‘A. Yes.
‘‘Q. How many times—
‘‘A. He just kept on going.
***
‘‘A. He just kept going.
***
‘‘Q. He just kept going?
‘‘A. Yeah.
‘‘Q. And he ignored you when you told him to stop?
‘‘A. Yes.’’
On the other hand, the defendant testified as follows:
‘‘She never said no. She said that all the kinky fooling
around stuff that we’d ever done, she said that she had
a lot of lost time to make up on. And, you know, she
wanted to experiment.’’
Furthermore, George Chapar, a psychologist who
treated Kendall for many years also testified at trial. In
particular, Chapar testified on direct examination by
the plaintiff’s counsel as follows:
‘‘Q. [Dr.] Chapar, let me ask a very different question.
Can you tell us what the psychological components are
of capacity to consent to a sexual relationship?
‘‘A. I think there are a host of elements that are
important. Obviously, one has to be of an appropriate
age based upon statutes that you know better than I.
One has to have the cognitive ability to weigh the risks
and benefits of a sexual relationship in order to make
a sound judgment. One has to be able to determine, in
essence, risk, whether situations are dangerous or safe
to take care of oneself in that way. To have the maturity
to enter into a relationship in such a way that the self
is protected both physically and emotionally, and, in
essence, to be mature enough to be able to take care
of oneself might be an essential way to put it.
‘‘Q. And using those standards, in your opinion, does
Kendall have the psychological and developmental
capacity to consent to a sexual relationship? . . .
‘‘A. Kendall, throughout her life, since her—at least
since her—since her mid-teens, has been unable to fend
for herself, to assess risk and benefit, to make sound
judgments, to, in essence, be able to even keep herself
alive without constant intensive, both parental and pro-
fessional intervention constantly.
‘‘It’s not just one disorder that she has that creates
this situation, but the constellation or combination of
all of the illnesses and pyschopathologies that she has
now, also coupled with physical disabilities, and now
in essence brain damage from the stroke, that render
her unable to make independent decisions about virtu-
ally anything.
‘‘Sexual relationships are probably one of the more
complex relationships or decisions that we as people
make as adults. Kendall is incompetent to make such
a decision or to engage in such a relationship with any
degree of safety or forethought or judgment.’’
On the other hand, the defendant introduced evi-
dence tending to show Kendall’s capacity to consent.
Specifically, the defendant produced Reena Kapoor, a
psychiatrist who evaluated Kendall at the request of
the defendant for the purposes of the litigation. Kapoor
testified that Kendall understood the physiological dif-
ferences between males and females and what is
involved in sexual intercourse. Kapoor further
explained that Kendall understood that women can get
pregnant and that both men and women can get sexually
transmitted diseases from sexual intercourse. Kapoor
acknowledged that Kendall had deficits in many areas
of her general functional abilities. Nevertheless, Kapoor
testified on direct examination by defense counsel as
follows:
‘‘Q. . . . Can you say with a fair degree of medical
certainty, based on the evaluative criteria that you used,
whether Kendall Kortner was competent to consent to
sexual intercourse?
‘‘A. Yes.
‘‘Q. And what is your opinion?
‘‘A. That she did have the capacity to consent at the
time of this relationship.’’
The foregoing testimony demonstrates that the issue
of Kendall’s capacity to consent to a sexual relationship
was central to the present case and that the testimony
presented at trial did not clearly answer the question
one way or the other, but had to be closely evaluated
by the jury.
Moreover, an examination of the parties’ summations
also demonstrates that the issue of the plaintiff’s capac-
ity to consent to sexual conduct during the 2003 time
period was a central focus of the case. Indeed, both
the plaintiff’s counsel and the defendant’s counsel spent
a great amount of time in their summations focusing
on the issue of Kendall’s capacity to consent and, in
particular, attempting to establish what her capacity
was to consent at the time she was involved in a sexual
relationship with the defendant—namely, during 2003.
The plaintiff’s counsel emphasized the following evi-
dence during his summation: ‘‘Now the issue of consent
in this case, as I said, is obviously one of the critical
issues. It is my position that by virtue of the fact alone,
that [the plaintiff] has been ‘‘Kendall’s’’ conservator
since 1994.
‘‘Kendall could not consent to enter into this relation-
ship. That that is proof enough of her inability to con-
sent to this relationship, so that’s proposition
number [one].
‘‘Proposition number [two] is that as . . . Chapar
told you in some detail, Kendall is incapable of con-
senting to a sexual relationship such as this and cer-
tainly incapable of consenting to the kind of abuse to
which the defendant subjected her and . . . Chapar
talked about that at some length in his testimony.
‘‘The third proposition is that even if you conclude
that Kendall has the capacity to consent . . . to such
a relationship and that she did consent to any of it, the
evidence is clear that in the latter part of the relation-
ship, she stopped consenting.
‘‘The defendant escalated the abuse to which he sub-
jected Kendall over the entire six month period of their
relationship; and you’ve heard evidence about that and
you heard Kendall talk about it.
‘‘It was almost like a drug addiction and he needed
more and more. It became more violent. It became
more aggressive. It was almost like he couldn’t get the
gratification he wanted without escalating the whole
pattern.
‘‘And clearly, there came a time when Kendall
stopped him or tried to stop him and he kept right on
going; tying her up, abusing her; hitting her with belts,
burning wax on her, all the other horrible things that
he did.
‘‘Now the court will instruct you on the law and I’m
not going to presume to interfere with that. The court
will explain what consent means and we’ll talk to you
about the legal standards for consent.
‘‘I simply suggest to you that if you look at . . . Cha-
par’s testimony, there is simply no way you can con-
clude that Kendall was capable of consenting to the
kind of abuse that [the defendant] subjected her to.
‘‘Let me go back to . . . Chapar for one minute
because I think that the summary that he gave at the end
of his testimony is very important for you to consider. I
took it down as much as I could write it, as fast as I
could write but again, it’s your recollection that counts
or as the Judge has already told you, you can ask to
have testimony reread if you want it or played back.
‘‘But recollection is that . . . Chapar said that for
her entire life, Kendall . . . has been unable to fend
for herself, to assess the risks and benefits; to make
sound judgments, even to keep herself alive without
constant parental and professional intervention and
supervision.
‘‘It is not just one condition but a combination of
them and the brain damage caused by the history of
malnutrition caused by the anorexia.
‘‘She is pretty much unable to make sound judgments
about anything. Sexual relationships are one of the most
complex forms of human contact and she is unable to
decide about such a relationship, any degree of safety,
judgment or forethought.
‘‘Now the defense called . . . Kapoor and obviously,
she was here to refute that. She was here to say that
after six hours with Kendall and after the review of some
incomplete medical records, records that were current.
‘‘Records that were missing after some standardized
testing which is not controversial, and we didn’t chal-
lenge it because it says what it says.
‘‘And it was done properly and it shows that Kendall
had a significant decline in her intelligence level and
mental functioning between the time, certainly, that she
was in college and now.
‘‘[Kapoor] tries to suggest to you that Kendall was
perfectly capable of consenting to everything that hap-
pened and that this is simply a situation where a young
woman got upset because her relationship with her
boyfriend broke up. [Kapoor] actually used the term
‘breakup.’
‘‘Now I will concede that . . . Kapoor’s a lovely
young woman. She’s smart. She’s successful. She’s done
very well in a short period of time, but I think it’s
important for you to remember that it is a short period
of time.
‘‘She graduated from college ten years ago. She gradu-
ated from medical school six years ago. She spent the
first four years of her training doing psychodynamic
therapy and treatment as a resident at the Harvard
Medical School and at the Deaconess Hospital in Bos-
ton, and only in the last two years has she gone into
forensic psychology at all.
‘‘On the basis of her six hours of interviews with
Kendall, the standardized testing and her review of the
records that we talked about; and I remind you, by the
way, she did not interview anyone else.
‘‘She didn’t talk to . . . Chapar. She relied on his
deposition transcript which was very one-sided taken
by the defense, not by me. She relied on . . . [the plain-
tiff’s] deposition transcript.
‘‘She didn’t talk to any of the medical doctors. She
didn’t talk to the nurses aid. She didn’t talk to anybody,
and yet she concluded that Kendall’s perfectly capable
of caring for herself and perfectly capable of consenting
to the kind of treatment to which the defendant had
subjected her.
‘‘[Kapoor] told us that there were six elements to
consider in determining capacity to consent to a sexual
relationship like this. The patient’s understanding of
the nature of sexual activity, but as she readily admitted,
any [twelve] year old can answer that.
‘‘The patient’s understanding of the consequences of
sexual activity such as pregnancy and sexually transmit-
ted diseases. Again, any middle school has had that
taught to them in public health.
‘‘She didn’t want to talk so much about the emotional
consequences of sexual activity because she hadn’t
really evaluated Kendall’s ability to appreciate the emo-
tional consequences.
‘‘Then she talked about the more important factors.
The patient’s general functional abilities and compe-
tence in other areas, to care for herself and to commu-
nicate.
‘‘Well the Probate Court had found [twelve] years
earlier that Kendall couldn’t care for herself. [Chapar]
told you that Kendall’s incapable of caring for herself.
‘‘[Kortner] told you that Kendall’s never been able to
care for herself, at least not since she was in college, and
even then she obviously had some serious problems.
‘‘And yet on the basis of six hours of interviews and
review of some of the medical records . . . Kapoor
reaches the opposite conclusion. She also concludes
that Kendall’s got the ability to make safe choices and
avoid exploitation, the ability to say no.
‘‘Well Kendall did say no in some cases, some
instances with the defendant but not very successfully.
‘‘And then finally, she suggested that one needs to
look at whether the behavior is consistent with the
person’s established beliefs and values; and you will
remember I cross-examined . . . Kapoor about that
and in point of fact, Kendall’s behavior with. . . [the
defendant] was the antithesis of her established beliefs
and values.
‘‘It was exactly the opposite of everything she ever
believed and every value she had ever held because of
the traumatic experiences she had suffered.
‘‘[Kapoor’s] analysis was based on an exam in 2009
and yet she suggests there were no differences between
2003 and 2009. That’s notwithstanding six years of ther-
apy. That’s notwithstanding six years of introspection.
That’s notwithstanding all that’s involved in bringing
this lawsuit to the court.
‘‘[Kapoor] thinks that’s totally irrelevant. She did
agree with . . . Chapar about the concept of psycho-
logical age, although she tried to downplay its signifi-
cance and ultimately admitted that it’s not something
that she used in her analysis of this case.
‘‘She did agree and I think this is really important.
She did agree that Kendall is mentally handicapped.
There’s simply no question about that.’’
In his summation, the defendant’s counsel empha-
sized the following: ‘‘So now we come to the issue
of is Kendall capable of consent. Is Kendall mentally
capable of consent?
‘‘And we find out some pretty startling things about
the standard or the level that people in the psychological
and the psychiatric profession use to measure whether
people are capable of consent.
‘‘And notwithstanding what we learned . . . Chapar
gets up here with a straight face and says [Kendall’s]
incapable of consent. She has the developmental age
of a [twelve] year old.
‘‘Well now here comes . . . Kapoor, and it turns out
that if you have the developmental age of a [twelve]
year old, guess what? If you’re not [twelve] years old,
you’re capable of consenting to sex. Thanks, doc. For
once, you two agreed on something.
‘‘Do you know what a penis is? Do you know how it
fits into a vagina? Do you know that that’s where babies
come from? This is the kind of functioning that makes
a human being enjoy the civil privacy right that’s recog-
nized in our law to have sex with someone else.
‘‘Are you a retarded citizen? That’s not a bar to having
sex. We don’t sterilize people or arrest them for hav-
ing sex.
‘‘Are you mentally ill? Are you taking Zanax? Maybe
you can’t have sex if you’re taking Zanax. I don’t know
but I know this. The standard for consent is very,
very low.
‘‘And the doctor who said that Kendall . . . can’t
make it makes things up. Hey doc, by the way, just a
freebie on the way out. She reads love novels, doesn’t
she, romance novels? Remember them folks?
‘‘[Dr.] Chapar, oh, yes, she reads romance novels,
okay? Hey, Kendall . . . by the way, just not for noth-
ing, do you read romance novels? No.
‘‘If they can’t get that right, how are they going to
prove life-altering damages. Now, I don’t mean to be
mean but we do have to be rudely realistic about this,
okay? Kendall . . . is going to die of her disease and
sadly, she’s not going to be here in [forty] years.
‘‘So now, the plaintiff comes in here with a table and
she says, oh, this is a table that shows that Kendall
. . . will live [forty] more years. No. Objection. It just
says a person may live [forty] more years, okay?
‘‘Again, stop trying to push that train through the
desert. Put it on the tracks. Stop telling us what almost
is. Just move it six inches, we’re back onto that railroad
track; and all of a sudden oh, okay, a healthy person
will live until [eighty-one].
‘‘Don’t get me wrong, okay. The plaintiff really wishes
that Martise brutally assaulted Kendall . . . . The
plaintiff, counsel, the doctor, they all really do believe
that this bad thing happened, but ladies and gentlemen,
you’re the jury.
‘‘You like the people in those records, you don’t have
a dog in this fight and you bring to us the ability to
referee this argument fairly.
‘‘And we’re not saying [the defendant is] a good guy
and we’re not saying you’re going to like [the defen-
dant]. In fact, I think I promised some of you that you
wouldn’t like him at the end of the trial.
‘‘And I ask you if you didn’t like him and you didn’t
like what he did and you didn’t think he was a good
guy, could you still do what the law requires, which is
this, ladies and gentlemen.
‘‘If they haven’t convinced you that that train is six
inches away from a track and that Foxwoods happened
in the wintertime; and that the life expectancy table is
for Kendall . . . it’s not for every female in the United
States in 2005.
‘‘And if they haven’t convinced you that post-trau-
matic stress shouldn’t be in hundreds and thousands
of pages generated by days and days of encounters, it
can convince you that plaintiff’s [exhibit] 11 –- it’s called
plaintiff’s [exhibit] 11 but it’s my exhibit. [Nicholas]
Kopeloff [an internist] had all those tests done but
there’s no treating records. If they can convince that
all of that is real, if they can convince you that . . .
Dolan, [the] police investigator . . . got it wrong.
‘‘If they can convince you that she didn’t consent,
then yeah. I don’t know what you’d do with that. Then
I guess you’d have to go to damages but remember, if
you believe that she consented and if you believe that
. . . Dolan wrote it down because she did consent, [the
defendant] told me if he’s doing something I don’t like,
to say no, and I never said no.
‘‘All right. Now, I don’t know what you’re going to
do with that testimony. That’s like Mount Everest.
You’ve got to climb over that to get to where you can
talk about damages because the Judge will tell you that
if you find that she consented, game’s over. We go home.
‘‘If Kendall . . . consented, if Kendall . . . was
capable of consent, we’re out of here. We’re done. We
go home. We go back to our wife and our four children
and this case is over. That’s the first mountain.
‘‘Now I want to talk to you about the second moun-
tain. The second mountain is that if you find that . . .
Dolan is not reliable, if you find that . . . Dolan got
it wrong.
‘‘If you want to find that Kendall . . . didn’t tell . . .
Dolan on October 14 that she consented to everything
that was done to her, if you want to find that, then you
may consider damages.’’
The foregoing testimony and summations by counsel
demonstrate that the issue of Kendall’s capacity to con-
sent or object to sexual conduct during the 2003 time
period was the central issue in the case. Therefore, a
written document dated after Kendall’s stroke and from
2003 in which Kendall clearly expressed her lack of
consent to a romantic or physical relationship with a
man was very relevant to the key issue in the case. As
the foregoing evidence demonstrates, the parties spent
a great deal of time at trial presenting conflicting evi-
dence about what Kendall’s abilities were. The physi-
cians who testified had conflicting opinions about her
ability to consent, and one of the plaintiff’s main criti-
cisms of the testimony of the defendant’s expert was
that Kapoor did not interview Kendall during 2003, but
her opinion was based on an interview conducted in
2009 and was not an accurate analysis of Kendall’s
abilities in 2003. On the basis of this debate between
the experts, plaintiff’s exhibit 7 served as an important
document demonstrating what Kendall was able to com-
municate regarding consent to sexual conduct at the
precise time in question. It served, essentially, as the
only documentary piece of evidence from 2003 that was
written by Kendall and related to her ability to consent.
Indeed, we need not speculate as to whether the jury
paid particular attention to plaintiff’s exhibit 7 because
the affidavits from the jurors and the questions to the
court clerk and judge demonstrate that the jurors were
taking note of the document and that it influenced
their decision.10
Moreover, we find that the failure of the clerk to alert
the judge as to the jurors’ questions regarding plaintiff’s
exhibit 7 is significant in the present case. Specifically,
the failure of the clerk to alert the judge caused the
trial court not to conduct any inquiry into the alleged
jury’s consideration of material not in evidence. Without
such a hearing, the plaintiff was unable to request any
remedy. Had the trial judge been properly made aware
of the jurors’ concerns, the plaintiff would have had
the opportunity to request that plaintiff’s exhibit 7 be
removed from the jurors’ consideration and that a cura-
tive instruction be given. Instead, by ignoring the jurors’
concerns, the clerk prohibited the plaintiff from timely
addressing the issue. Instead, the trial court required
the plaintiff to prove that plaintiff’s exhibit 7 probably
prejudiced the jury.
As we stated previously herein, in analyzing whether
a particular evidentiary impropriety is harmless, we
consider the following: ‘‘(1) the relationship of the
improper evidence to the central issues in the case,
particularly as highlighted by the parties’ summations;
(2) whether the trial court took any measures, such as
corrective instructions, that might mitigate the effect
of the evidentiary impropriety; and (3) whether the
improperly admitted evidence is merely cumulative of
other validly admitted testimony. . . .’’ (Internal quota-
tion marks omitted.) Sullivan v. Metro-North Com-
muter Railroad Co., supra, 292 Conn. 162. In the present
case, all of these factors demonstrate that the eviden-
tiary impropriety was not harmless. Plaintiff’s exhibit
7 was directly related to the central issue in the case
as demonstrated by the evidence and the parties’ sum-
mations. The trial court did not undertake any correc-
tive measures to mitigate the effect of the evidentiary
impropriety because the clerk failed to properly relay
the jurors’ question to the trial court. Plaintiff’s exhibit 7
was not cumulative of other validly admitted testimony
because neither side was able to provide any demon-
strative evidence of Kendall’s ability to consent to sex-
ual conduct or to communicate that consent or lack
thereof during the 2003 time period. Accordingly, we
conclude that the consideration of plaintiff’s exhibit 7
by the jury in the present case was not harmless.
Although we recognize that the trial court was not
made aware of the allegation that the jury considered
material not in evidence until after judgment was ren-
dered, the trial court abused its discretion in denying
the plaintiff’s motion to set aside the verdict and for a
new trial in light of the jury’s improper consideration
of a document not in evidence and the probability that
the jury was influenced by it. Accordingly, we reverse
the trial court’s judgment and remand the case to that
court with direction to grant the plaintiff’s motion to
set aside the verdict and for a new trial.
III
Although our conclusion in part II of this opinion
requires that the case be remanded to the trial court
for a new trial, we also address the plaintiff’s claim that
the trial court improperly denied the plaintiff’s motion
to strike and motion in limine seeking to preclude the
defendant from raising the issue of Kendall’s consent
as an affirmative defense because that issue is likely to
arise again on remand. Specifically, the plaintiff asserts
that the defendant should not have been allowed to
raise the issue of Kendall’s consent as an affirmative
defense because, as a conservatee, she did not have the
legal capacity to consent.11 In response, the defendant
asserts that the trial court properly denied the plaintiff’s
motion to strike and motion in limine related to consent.
Specifically, the defendant claims that the fact that a
person is a conserved person does not, as a matter of
law, deprive the person of the legal capacity to consent.
Instead, the defendant asserts that whether a person
consents is a factual question, even if that person is a
conservatee. We agree with the defendant, and, accord-
ingly, conclude that the trial court properly denied the
plaintiff’s motion to strike and motion in limine related
to the issue of consent.
The following additional facts and procedural history
are necessary to our resolution of the second issue.
In response to the plaintiff’s complaint alleging sexual
battery, civil assault and intentional infliction of emo-
tional distress, the defendant raised the special defense
that ‘‘[a]ny and all sexual contact between [the defen-
dant] and [Kendall] was conduct between two capable,
willing and consenting adults.’’ Thereafter, the plaintiff
filed a motion in limine seeking to preclude the defen-
dant from ‘‘raising, directly or indirectly, any claim,
assertion, argument, suggestion or inference that the
plaintiff’s ward, [Kendall], either explicitly or implicitly
consented to any of the sexual conduct of the defendant
as set forth in the complaint . . . .’’ The plaintiff also
filed a motion to strike, seeking to strike the defendant’s
special defense that Kendall consented to the sexual
conduct alleged. As grounds for her motions, the plain-
tiff claimed that Kendall was not capable of consenting
to sexual conduct because the plaintiff had been
appointed the conservator of her person.
The trial court denied both the plaintiff’s motion in
limine and her second motion to strike. In doing so,
the trial court determined that although a Probate Court
had found Kendall incompetent to handle certain of her
affairs, that did not necessarily mean that she was not
able to consent to a sexual relationship with the defen-
dant. Indeed, the trial court pointed to the fact that
Kendall was allowed to spend time alone in her own
apartment, was able to use the computer, was able to
converse with certain people, and engage in basic
chores that required decision making, such as shopping
and cleaning. The trial court determined that the Pro-
bate Court’s decision appointing the plaintiff as Ken-
dall’s conservator should not deprive the defendant
from ‘‘inquiring whether [Kendall] had the ability to
knowingly and voluntarily enter into the sexual relation-
ship with the defendant and/or continue such conduct
and relationship.’’ Instead, the trial court determined
that ‘‘[t]he jury should, given the facts which will be
presented to them at this trial, determine if [Kendall]
had the ability to consent.’’ Accordingly, the trial court
denied the plaintiff’s motion to strike and motion in
limine.
We begin with the well established standard of review
regarding motions to strike. ‘‘A motion to strike attacks
the legal sufficiency of the allegations in a pleading.
. . . In reviewing the sufficiency of the allegations in
a complaint, courts are to assume the truth of the facts
pleaded therein and to determine whether those facts
establish a valid cause of action.’’ (Citation omitted.)
Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089
(2011). ‘‘Because a motion to strike challenges the legal
sufficiency of a pleading, and, consequently, requires
no factual findings by the trial court, our review of
the court’s ruling on [a motion to strike] is plenary.’’
(Internal quotation marks omitted.) Connecticut Coali-
tion for Justice in Education Funding, Inc. v. Rell,
295 Conn. 240, 252, 990 A.2d 206 (2010).
Furthermore, although the plaintiff’s claim does not
directly raise a claim of statutory construction, her
claim that a conserved person is not able to consent
to sexual conduct requires us to interpret the statutory
scheme creating conservatorships.12 ‘‘It is well settled
that in construing statutes, [o]ur fundamental objective
is to ascertain and give effect to the apparent intent of
the legislature. . . . [W]e seek to determine, in a rea-
soned manner, the meaning of the statutory language
as applied to the facts of [the] case, including the ques-
tion of whether the language actually does apply. . . .
Finally, we review de novo the trial court’s construction
of the relevant statutory provisions.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Greco v. United Technologies Corp., 277 Conn. 337,
347–48, 890 A.2d 1269 (2006).
Under Connecticut’s current statutory scheme, two
types of conservatorships may be established. A conser-
vator of the estate is appointed to ‘‘supervise the finan-
cial affairs of a person found to be incapable of
managing his or her own affairs’’ or of a person who
voluntarily requests the Probate Court to make such
an appointment. General Statutes § 45a-644 (a).13 A con-
servator of the person is appointed to ‘‘supervise the
personal affairs of a person found to be incapable of
caring for himself or herself’’ or of a person who volun-
tarily requests the Probate Court to make such an
appointment. General Statutes § 45a-644 (b).
Section 45a-650 (f)14 provides in relevant part as fol-
lows: ‘‘(2) If the court finds by clear and convincing
evidence that the respondent is incapable of caring for
himself or herself, that the respondent cannot be cared
for adequately without the appointment of a conserva-
tor and that the appointment of a conservator is the least
restrictive means of intervention available to assist the
respondent in caring for himself or herself, the court
may appoint a conservator of his or her person after
considering the factors set forth in subsection (g) of
this section . . . .’’ (Emphasis added.)
Section 45a-650 (l) provides as follows: ‘‘The court
shall assign to a conservator appointed under this sec-
tion only the duties and authority that are the least
restrictive means of intervention necessary to meet
the needs of the conserved person. The court shall find
by clear and convincing evidence that such duties and
authority restrict the decision-making authority of the
conserved person only to the extent necessary to pro-
vide for the personal needs or property management
of the conserved person. Such personal needs and prop-
erty management shall be provided in a manner appro-
priate to the conserved person. The court shall make
a finding of the clear and convincing evidence that
supports the need for each duty and authority assigned
to the conservator.’’ (Emphasis added.) The legisla-
ture’s repeated use of the term ‘‘the least restrictive
means possible’’ to define the duties assigned to the
conservator indicates that the legislature intended for
a conservatorship to be as limited in scope as possible.
Section 45a-656 (b)15 proscribes the manner in which
a conservator should carry out his or her role as conser-
vator. Specifically, it provides as follows: ‘‘In carrying
out the duties and authority assigned by the court, the
conservator of the person shall exercise such duties
and authority in a manner that is the least restrictive
means of intervention and shall (1) assist the conserved
person in removing obstacles to independence, (2)
assist the conserved person in achieving self-reliance,
(3) ascertain the conserved person’s views, (4) make
decisions in conformance with the conserved person’s
reasonable and informed expressed preferences, (5)
make all reasonable efforts to ascertain the health care
instructions and other wishes of the conserved person,
and (6) make decisions in conformance with (A) the
conserved person’s expressed health care preferences,
including health care instructions and other wishes, if
any, described in section 19a-580e, or validly executed
health care instructions described in section 19a-580g,
or (B) a health care decision of a health care representa-
tive described in subsection (b) of section 19a-580e,
except under a circumstance set forth in subsection
(b) of section 19a-580e. The conservator shall afford
the conserved person the opportunity to participate
meaningfully in decision-making in accordance with the
conserved person’s abilities and shall delegate to the
conserved person reasonable responsibility for deci-
sions affecting such conserved person’s well-being.’’
General Statutes § 45a-656 (b).
Furthermore, the legislature has defined ‘‘ ‘[l]east
restrictive means of intervention’ ’’ as ‘‘intervention for
a conserved person that is sufficient to provide, within
the resources available to the conserved person either
from the conserved person’s own estate or from private
or public assistance, for a conserved person’s personal
needs or property management while affording the con-
served person the greatest amount of independence
and self-determination.’’ General Statutes § 45a-644 (k).
Reading these statutes together demonstrates that the
legislature intended not only for a conservatorship to
be as limited in scope as possible, but also that the
conservatorship be carried out so as to maintain the
most independence and self-determination for the con-
served person. Indeed, § 45a-650 (k) explicitly provides
that ‘‘[a] conserved person shall retain all rights and
authority not expressly assigned to the conservator.’’
On the basis of the foregoing statutory scheme, which
demonstrates that the legislature intended for conserva-
torships not only to be limited in scope but also not to
unnecessarily restrict the independence of the person
under the conservatorship, we conclude that the statu-
tory scheme supports the conclusion that a conserved
person has the ability to consent to sexual conduct.
Indeed, it has previously been noted that, ‘‘[e]ven
more importantly, the overarching principle defining
the contours of the relationship between the court, the
conservator and the conserved person is the duty to
safeguard the best interests of the conserved person.’’
Gross v. Rell, 304 Conn. 234, 40 A.3d 240 (2012)
(McLachlan, J., concurring and dissenting). This court
has previously recognized that ‘‘there is no difference
in the court’s duty to safeguard the interests of a minor
and the interests of a conserved person . . . [and that]
[t]he purpose of statutes relating to guardianship is to
safeguard the rights and interests of minors and [adult
incapable] persons, and it is the responsibility of the
courts to be vigilant in seeing that the rights of such
persons are properly protected . . . . This is reflected
in the statutory scheme governing conservatorships,
which requires the Probate Court to be guided by the
conserved person’s best interests in establishing the
conservatorship and selecting the conservator . . . .’’
(Citations omitted; internal quotation marks omitted.)
Lesnewski v. Redvers, 276 Conn. 526, 540, 886 A.2d
1207 (2005).
In examining the current statutory scheme for conser-
vatorships, it is important to understand the historical
context in which this scheme developed. ‘‘Prior to 1998,
in all cases in which a court found that a respondent
was incapable, it was obligatory to appoint a plenary
conservator. While amendments in Connecticut law
later permitted appointment of a conservator on a lim-
ited basis, and permitted courts to decline to intervene
in situations in which there was already a less restrictive
means in place to manage the respondent’s needs, ple-
nary appointments continued to be the norm.’’16 K.
McEvoy, 20 Connecticut Practice Series: Connecticut
Elder Law (2012–2013 Ed.), §13:10, p. 775.
‘‘This has changed due to the comprehensive amend-
ments that were made in the 2006 legislative session.
The amendments reflect years of debate on the national
scene concerning standards and procedure for appoint-
ment of a guardian. . . . These recommendations have
inspired reform in many states, and have had a signifi-
cant influence on the drafting of model legislation.’’ Id.,
pp. 775–76.
In 1994, the Commission on National Probate Stan-
dards issued a revised set of standards that focused
on the following requirements, inter alia: ‘‘[1] greater
emphasis on the individual’s functional limitations; [2]
consideration of less restrictive alternatives; [3] use of
prehearing court visitors to discuss with respondents
the potential for deprivation of rights, and to investigate
assertions made petitions; [4] the role of counsel as
advocate for the respondent . . . [5] due process pro-
tections including personal notice, expedient hearings,
and strengthened evidentiary standards; and [6] a pre-
sumption of limited, evidence-based, individually-tai-
lored appointments.’’ Id., p. 776.
This individual centered approach was also the focus
in 1997, when the National Conference of Commission-
ers on Uniform State Laws revised the Uniform Guard-
ianship and Protective Proceedings Act to reflect that
guardians should be: appointed only when necessary;
only for so long as necessary; and only with such powers
as are necessary. Id.
In 2002 and 2004, the American Bar Association Com-
mission on Law and Aging convened experts in the field
to discuss means including education, research and
funding, by which reforms on guardianship could be
achieved. Id. This group developed ‘‘a detailed ‘map’ of
action steps for areas including interstate jurisdiction,
training and standards of court practice, presumption
of limited guardianship and monitoring standards.’’ Id.,
p. 777.
In the 2006–2007 legislative session, the Connecticut
legislature made significant amendments to the statu-
tory scheme governing conservatorships. Specifically,
pursuant to No. 07-116 of the 2007 Public Acts, the court
could limit the powers and duties given to a conservator
but needed to make specific findings to justify any limi-
tation. See also General Statutes (Rev. to 2007) § 45a-
650 (h). The amendment required that the court limit
the duties of the conservator to only the duties and
authority that are the least restrictive intervention nec-
essary to meet the person’s needs and that the manage-
ment be provided in an appropriate manner. Public Act
07-116, § 16. The statutory amendments also required
the court to find by clear and convincing evidence that
the duties and authority restrict the person’s decision
making only to the extent necessary to provide for
personal needs or property management and make a
finding of the clear and convincing evidence that sup-
ports the need for each duty and authority. This act
also added the provision that specifies that the person
retains all rights and authority not expressly given to
the conservator. Public Act 07-116, § 16.
In describing Public Act 07-116, the Office of Legisla-
tive Research stated as follows: ‘‘Among the bill’s most
important changes, it: 1. requires the [P]robate [C]ourt
to record proceedings on appointing conservators, set-
ting their powers and duties, and terminating conserva-
torships; 2. requires appeals of hearings appointing a
conservator to be on record and sets the standard for
court review; 3. changes the definitions of incapacity,
which is required for the court to find appointment of
a conservator necessary; 4. includes specific language
for a notice to the person who is the subject of a petition
for appointment of a conservator; 5. adds specific provi-
sions about the right to an attorney and to choose an
attorney, for a person who has a conservator appointed
for him or her or is the subject of a petition for the
appointment of one; 6. requires the [P]robate [C]ourt
to consider certain factors and changes the standard
the court must apply before deciding to appoint a con-
servator, including requiring a finding that appointing
the conservator is the least restrictive intervention
available to assist the person; 7. requires the [P]robate
[C]ourt to give a conservator only the least restrictive
duties and authority necessary to meet the person’s
needs, and the court must make specific findings on
the need for each duty or authority; 8. requires a conser-
vator to carry out the duties and authority assigned by
the court in a manner that is the ‘least restrictive means
of intervention’ . . . 9. makes a number of similar
changes to provisions on appointing a temporary con-
servator; 10. imposes specific requirements on the con-
servator of the person, including assisting in removing
obstacles to the conserved person’s independence,
ascertaining the person’s views, and making decisions
that conform with the person’s reasonable and informed
preferences; 11. creates a procedure for the [P]robate
[C]ourt to hold a hearing on changing a conserved per-
son’s residence similar to the provisions in current law
for a conservator placing a person in a long-term care
institution; and 12. allows a conserved person to peti-
tion the [P]robate [C]ourt to terminate the conservator-
ship at any time.’’ Office of Legislative Research, Bill
Analysis Substitute Senate Bill 1439, ‘‘An Act Concern-
ing Conservators and Appeals of Conservatorships and
Guardianships’’ (2007) available at http://www.cga.ct.-
gov/2007/BA/2007SB-01439-R01-BA.htm (last visited
May 23, 2014). ‘‘ ‘Although the comments of the [O]ffice
of [L]egislative [R]esearch are not, in and of themselves,
evidence of legislative intent, they properly may bear
on the legislature’s knowledge of interpretive problems
that could arise from a bill.’ Harpaz v. Laidlaw Transit,
Inc., 286 Conn. 102, 124 n.15, 942 A.2d 396 (2008); cf.
State v. Tabone, 279 Conn. 527, 542, 902 A.2d 1058 (2006)
(consulting analysis of bill by [O]ffice of [L]egislative
[R]esearch to ascertain legislative intent).’’ State v.
Courchesne, 296 Conn. 622, 700, 998 A.2d 1 (2010); Butts
v. Bysiewicz, 298 Conn. 665, 688 n.22, 5 A.3d 932
(2010) (same).
During debate in the House on the bill, Representative
Gerald Fox, a sponsor of the bill explained the follow-
ing: ‘‘[It] essentially is a comprehensive [overhaul] of
our laws regarding conservatorships. It is the product
of a tremendous amount of work by a [c]ommittee
that was chaired by Hartford Judge [Robert] Killian,
including law professors, [health-care] professionals,
legal aid and legal rights groups. And they all came
together to form a compromise that is the product that
we have before us here this afternoon. The goals of
this [c]ommittee were twofold. They were to ensure
that the highest two due process safeguards are in place
before a [P]robate [C]ourt interferes with an individual’s
civil rights by forming a conservatorship.’’ 50 H.R. Proc.,
Pt. 16, 2007 Sess., pp. 5150–51.
Representative Fox further explained that the new
requirements put in place ‘‘also clearly establish that
the conservatorship is a last resort, and that it is the
least intrusive means available by which the individual’s
affairs can be handled. . . . And only if the [c]ourt
finds by clear and convincing evidence that the respon-
dent, the person being conserved cannot manage their
own affairs, and they find that the appointment is that
least restrictive means available, than only then will a
conservator be appointed.’’ Id., pp. 5151–52.
The current statutory scheme governing conservator-
ships and its historical development make it abundantly
clear that the legislature intends for conserved persons
to retain as much decision-making authority and inde-
pendence as possible, and that a conservator’s role
should be limited so as to accomplish that objective.
Indeed, the fact that a conservator is appointed does
not mean that the conserved person loses all of his or
her civil rights. Rather, the conservator is to manage the
conserved person’s affairs through the least restrictive
means possible. With that in mind, we turn to the plain-
tiff’s claim in the present case. The crux of the plaintiff’s
claim is that it was improper for the trial court to allow
the defendant to present evidence that Kendall con-
sented to the sexual conduct between her and the defen-
dant on the ground that Kendall was legally unable to
consent because she was a conserved person. As we
have explained previously herein, a conservatorship is
to be narrowly tailored to meet its objectives, a conser-
vator only has the authority specifically assigned to him
or her and any other decision-making authority remains
in the conserved person. On the basis of the statutory
scheme for conservatorships, we cannot conclude that
any conserved person is legally unable to consent to
sexual conduct. Instead, we conclude that the issue of
whether a conserved person is able to consent to sexual
conduct is a factual question for the jury to decide
based on the nature of the particular conservatorship
and the abilities of the conserved person.
In the present case, the plaintiff did not establish, or
even allege, that her appointment as conservator of
Kendall’s person specifically included the duty to man-
age Kendall’s interpersonal and/or romantic relation-
ships. Indeed, as the trial court recognized, the evidence
demonstrated that Kendall lived in her own apartment,
spent unsupervised time there, and was able to make
decisions about her household chores and carry on
interpersonal relationships, including those on the com-
puter. Instead, the plaintiff maintains that the fact that
Kendall was a conserved person was sufficient by itself
to demonstrate that she was unable to consent to sexual
conduct. We disagree. A bright line rule on this issue,
as suggested by the plaintiff, would be contrary to the
clear legislative intent as exemplified by the statutory
scheme. It would further affect the civil liberties of all
conserved persons. Therefore, we conclude that the
final determination of whether Kendall had the ability
to consent to sexual conduct is a factual question that
the jury must decide.
Accordingly, we cannot conclude that the trial court
improperly denied the plaintiff’s motion to strike and
motion in limine regarding consent. To the contrary,
we agree with the trial court that the defendant was
entitled to inquire into Kendall’s ability to consent to
sexual conduct and to raise her consent as a defense
to the claims made by the plaintiff.
IV
Although our conclusion in part II of this opinion
requires that the case be remanded to the trial court
for a new trial, we also address the defendant’s claim17
that the trial court improperly instructed the jury to
consider Kendall’s conservatorship in determining her
capacity to consent to sexual conduct because it is
likely to arise again on remand. The defendant asserts
that the trial court should not have instructed the jury
to consider the fact that Kendall was a conserved person
because being a conserved person does not constitute
a bar from consent.
We first set forth the standard of review applicable
to a challenge to a jury instruction. ‘‘When reviewing
[a] challenged jury instruction . . . we must adhere to
the well settled rule that a charge to the jury is to be
considered in its entirety, read as a whole, and judged by
its total effect rather than by its individual component
parts. . . . [T]he test of a court’s charge is not whether
it is as accurate upon legal principles as the opinions
of a court of last resort but whether it fairly presents
the case to the jury in such a way that injustice is not
done to either party under the established rules of law.
. . . As long as [the instructions] are correct in law,
adapted to the issues and sufficient for the guidance
of the jury . . . we will not view the instructions as
improper.’’ (Internal quotation marks omitted.) Arch-
ambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 42,
946 A.2d 839 (2008).
In the present case, the trial court instructed the jury
as follows on the issue of consent: ‘‘As to the issue
of whether [Kendall] consented, you must determine,
based upon the testimony and the evidence, whether
the plaintiff has proved that [Kendall] did not consent.
‘‘As to the special defense of consent alleged by the
defendant, he has the burden of proof on this special
defense by a fair preponderance of the evidence to
prove that he is not liable for the damages alleged
because [Kendall] had the capacity and did consent.
‘‘Based upon the claims by each party, you then must
determine if consent was or was not given. Consent is
an expression or a willingness for something to occur. It
implies voluntariness, free will; reasoned or intelligent
choice; physical or moral power of acting in an act of
concurrence unclouded by fraud, distress or mistake.
It may be manifested by words, by actions or by inac-
tion, and to avoid liability, it must be legally valid.
‘‘For your purposes, any person is presumed by law
to be capable of consenting to sexual conduct unless
such person is barred by law. For instance, such as the
age of the person or the degree of kinship between the
parties or . . . unless the other person knows or has
reason to know of some mental or psychological abnor-
mality, whether temporary or permanent, which would
impair the ability to consent and render that consent
invalid.
‘‘In this regard, the [plaintiff] contends that [Kendall]
was not capable of giving consent as I have defined it
because of the appointment of a conservator. She fur-
ther contends that even without considering the
appointment, the testimony and evidence demonstrate
at the time in question between February, 2003, and
August, 2003, [Kendall] was not capable of consent
because she did not understand and appreciate the
nature of the sexual act, its character or the probable
consequences which are part of the act.
‘‘Further, you must determine that she did not volun-
tarily, freely and knowingly enter into the relationship.
The ability to give knowing consent involves more than
a person’s I.Q. or cognitive ability.
‘‘It is a question of fact for you to determine based
upon the totality of the testimony and evidence whether
the plaintiff and the defendant has sustained their bur-
den as to this element of consent. In making a finding,
you may consider the following: Number 1, was [Ken-
dall] legally capable of consenting to the relationship
because she has a conservator appointed by the Probate
Court. Number 2, was [Kendall] mentally capable, that
is voluntarily, knowingly and freely consenting to the
relationship which includes the scope of the sexual
relationship between her and the defendant. And [num-
ber] 3, did [Kendall] demonstrate by her words, by her
conduct or by her inaction that she either consented
or did not consent to each of the sexual acts.
‘‘As to the capability to consent, you have heard testi-
mony and received evidence that in 1994, the Probate
Court in Stamford appointed [the plaintiff] as a conser-
vator for [Kendall]. This appointment was made pursu-
ant to our law to give authority to the [plaintiff] to
consent to [Kendall’s] medical or other professional
care, counsel, treatment or service. This appointment
is a factor that you may consider in determining whether
[Kendall] consented to the sexual relationship.
‘‘This appointment of conservator without more is
not necessarily conclusive proof of the capability of
[Kendall] to consent to the sexual relationship.’’
As we explained in part III of this opinion, the fact
that Kendall was a conserved person at the time of her
relationship with the defendant is not determinative of
whether she had the capacity to consent. Instead, the
final determination of whether Kendall had the ability
to consent to sexual conduct is a factual question that
the jury must decide based on all of the evidence, includ-
ing the fact that she was a conserved person. Reviewing
the challenged jury instruction in the present case, in
its entirety and read as a whole, we cannot conclude
that it was improper. The challenged instruction
explained the factual considerations that are relevant
to a determination of whether Kendall consented,
including the fact that she was a conserved person at
the time of her relationship with the defendant. On the
basis of our conclusion in part III of this opinion, we
conclude that the instruction was proper.
V
We also address the defendant’s claim that the trial
court improperly submitted interrogatories asking the
jury to determine whether the defendant showed Ken-
dall pornographic photographs and videos because it
is likely to arise again on remand.
‘‘In Freedman v. New York, N.H. & H. R. Co., 81
Conn. 601, [612] 71 A. 901 (1909), this court observed
. . . that the purpose of interrogatories was to elicit a
determination of material facts, [and] to furnish the
means of testing the correctness of the verdict ren-
dered, and of ascertaining its extent. Gaulton v. Reno
Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d
311 (1979); see also Blanchette v. Barrett, 229 Conn.
256, 262–63 n.6, 640 A.2d 74 (1994) (interrogatories [pro-
vide] a means by which the jury [could] record the
findings of fact [that] form[ed] the basis for their verdict
. . . . The power of the trial court to submit proper
interrogatories to the jury, to be answered when
returning their verdict, does not depend upon the con-
sent of the parties or the authority of statute law. In
the absence of any mandatory enactment, it is within
the reasonable discretion of the presiding judge to
require or to refuse to require the jury to answer perti-
nent interrogatories, as the proper administration of
justice may require. Freedman v. New York, N.H. & H.
R. Co., [supra, 612]. . . . The trial court has broad dis-
cretion to regulate the manner in which interrogatories
are presented to the jury, as well as their form and
content.’’ (Citation omitted; internal quotation marks
omitted.) Viera v. Cohen, 283 Conn. 412, 449–50, 927
A.2d 843 (2007).
In the present case, the trial court’s interrogatories
included three questions asking the jury to determine
whether the plaintiff had proved by a preponderance
of the evidence that the defendant ‘‘repeatedly showed
Kendall pornographic [photographs] and videos.’’ These
interrogatories were part of the interrogatories related
to claims of sexual battery, civil assault and intentional
infliction of emotional distress. There was evidence
presented at trial to form a basis for these interrogato-
ries. Indeed, the plaintiff claimed that the defendant
showed Kendall pornographic photographs and videos
as part of his scheme to overpower and take advantage
of her. Accordingly, we conclude that it was within the
trial court’s discretion to submit interrogatories to the
jury on this issue.
VI
The defendant also raised other claims in his brief
that we decline to review because they were inade-
quately briefed. ‘‘We are not obligated to consider issues
that are not adequately briefed.’’ West Haven v. Norback,
263 Conn. 155, 177, 819 A.2d 235 (2003). ‘‘Whe[n] an
issue is merely mentioned, but not briefed beyond a
bare assertion of the claim, it is deemed to have been
waived.’’ Bridgeport Hospital v. Commission on
Human Rights & Opportunities, 232 Conn. 91, 115, 653
A.2d 782 (1995). In addition, mere conclusory assertions
regarding a claim, with no mention of relevant authority
and minimal or no citations from the record, will not
suffice. See Celentano v. Rocque, 282 Conn. 645, 659,
923 A.2d 709 (2007); Northeast Ct. Economic Alliance,
Inc. v. ATC Partnership, 272 Conn. 14, 44 n.20, 861
A.2d 473 (2004); West Haven v. Norback, supra, 177;
see also Practice Book § 67-4.
First, the defendant claims that the trial court improp-
erly denied the defendant’s motion to dismiss various
counts of the plaintiff’s complaint at the close of the
plaintiff’s evidence because the plaintiff’s expert wit-
ness was conclusory and misstated the requisite level
of competence. The defendant only offers two short
paragraphs with no analysis, no citations to the record
or transcripts to direct this court to the trial court’s
discussion of the defendant’s motion to dismiss18 at the
close of the plaintiff’s evidence. The only legal citations
provided relate to the standard of review for directed
verdicts. Accordingly, we consider this claim inade-
quately briefed and do not review it.
The defendant also claims that the trial court improp-
erly instructed the jury to consider certain statutory
exceptions to the defense of consent for persons in
positions of authority. The defendant addresses this
claim in less than one page of his brief, provides no
citations to the record, only a citation to General Stat-
utes § 53a-73a,19 and provides no analysis of the claim.
Therefore, we consider this claim inadequately briefed
and do not review it.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion ROGERS, C. J., and NORCOTT and
ZARELLA, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
Kortner instituted the present civil action against the defendant in her
capacity as the conservator of Kendall’s person. After trial, Kendall died
and Kortner was appointed as administratrix of Kendall’s estate. Thereafter,
the trial court granted a motion substituting Kortner, in her capacity as
administratrix, as the plaintiff in the present case. For the sake of simplicity,
we refer to Kortner, in her capacity as both conservator and administratrix,
as the plaintiff throughout this opinion.
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-2.
3
The defendant filed a cross appeal from the judgment of the trial court
to the Appellate Court; see footnote 4 of this opinion; and we transferred
the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice
Book § 65-2.
4
The defendant cross appealed from the judgment of the trial court claim-
ing that the trial court improperly: (1) denied his motion to dismiss various
counts of the plaintiff’s complaint at the close of the plaintiff’s evidence
because the plaintiff’s expert witness was conclusory and misstated the
requisite level of competence; (2) instructed the jury to consider (a) Kendall’s
conservatorship in determining her capacity to consent to sexual conduct
and (b) certain statutory exceptions to the defense of consent for persons
in positions of authority; and (3) submitted interrogatories to the jury to
determine whether the defendant showed Kendall pornographic photo-
graphs and videos where it was asserted that the viewing of such materials
by adults is neither illegal nor tortious. We note, however, that the defendant
was not aggrieved by the judgment of the trial court and, therefore, lacked
standing to file an appeal. See State v. T.D., 286 Conn. 353, 358–59, 944 A.2d
288 (2008). Accordingly, as stated previously in this opinion, we consider
these issues only to the extent that they are likely to arise again on retrial
and are adequately briefed.
5
The plaintiff was last reappointed as conservator of Kendall’s person in
October, 2009.
6
See footnotes 2 and 3 of this opinion.
7
Following oral argument, we ordered the parties, sua sponte, to submit
simultaneous briefs on the following issues: ‘‘1. When the Probate Court
has ordered a conservatorship of the person only and has not expressly
granted authority to the conservator to sue on behalf of the conserved
person, does the conservator have standing to commence an action in the
conservator’s own name in her capacity as conservator for intentional torts
against the conserved person by a third party? 2. If not, can such a subject
matter jurisdictional defect be cured by the trial court’s decision granting the
conservator’s motion to substitute herself in her capacity as administratrix of
the conserved person’s estate following the death of the conserved person
[postjudgment]?’’ Because we conclude that, even if the plaintiff lacked
standing to bring this action in 2006, any defect was cured by her substitution
as administratrix of Kendall’s estate, we do not reach the first question.
8
After hearing argument on the motion to set aside the verdict and for
a new trial, the trial court requested that both counsel submit memoranda
as to whether a further evidentiary hearing was necessary to determine
what effect, if any, the inclusion of plaintiff’s exhibit 7 had on the jury. Both
parties submitted memoranda to the court in which they argued that the
court should not conduct an evidentiary hearing into the allegations regard-
ing the jury considering material not in evidence.
9
Assuming, arguendo, that the actions of the plaintiff’s counsel constituted
a waiver regarding plaintiff’s exhibit 7, the clerk’s failure to inform the trial
court of the jurors’ concerns about the exhibit trumps the waiver by the
plaintiff’s counsel. If the court had been made aware of the problem and
properly informed the parties about it, the court would have abused its
discretion if it failed to remove the exhibit from the jury’s consideration
and instructed them accordingly. This is particularly true in light of the fact
that, during oral argument, counsel for the defendant conceded that he
would not have objected to that course of action.
10
Justice McDonald asserts in part II B of his concurring and dissenting
opinion that ‘‘there is no evidence that remotely would suggest that the
jury did consider, or would have considered, [plaintiff’s] exhibit 7 in its
deliberations.’’ We disagree. The record demonstrates that plaintiff’s exhibit
7 was considered by the jury. The jury reviewed the exhibit, drafted a
question for the judge about the exhibit, spoke with the trial court clerk
about it, and even showed it to the trial court when she spoke to the jurors
after the verdict. The mere number of times that the jury attempted to
inquire about the exhibit is evidence of the impact the exhibit had on the jury.
Justice McDonald further asserts that plaintiff’s exhibit 7 ‘‘lends some
support to the plaintiff’s case and is consistent with Kendall’s own testi-
mony.’’ We disagree. In the affidavits, the jury foreperson explained as
follows: ‘‘The jury was confused, and some members were troubled, about
why this letter was a plaintiff’s exhibit and why it was in the box of exhibits
sent in to us, but based on the clerk’s comments, we assumed that the
exhibit was properly before us and that we were supposed to see it even
without any previous explanation.’’ Another juror explained in his affidavit
as follows: ‘‘In spite of all this, I was never able to understand why [exhibit
7] was a plaintiff’s exhibit and why it had been given to us but never
discussed or explained by anyone during the trial.’’ (Emphasis in original.)
The jury’s own confusion over why the exhibit was offered by the plaintiff
belies Justice McDonald’s assertion that the letter was actually consistent
with the plaintiff’s case.
Furthermore, a careful review of the letter demonstrates that it was not
consistent with the plaintiff’s case. First, as we have explained previously
in this opinion, the plaintiff’s case was premised on the fact that Kendall
lacked the capacity to consent to sexual conduct. As Justice McDonald
acknowledges, ‘‘evidence that a person has expressed that he or she does
not consent to engage in certain conduct would be relevant evidence of
that person’s capacity to consent.’’ Therefore, a letter in which Kendall
expressed her lack of consent to engage in sexual conduct with one individ-
ual was not consistent with the plaintiff’s case, but directly in opposition
to it.
Second, plaintiff’s exhibit 7 actually bolstered the credibility of the defen-
dant. The defendant’s entire defense was premised on the fact that Kendall
was able to consent to sexual conduct and had, in fact, consented to all
sexual conduct between them. Therefore, a letter, which appeared to have
been written by Kendall expressing her lack of consent to engage in sexual
conduct with another individual at the same time she was beginning a sexual
relationship with the defendant supported his claim that Kendall had the
capacity to consent to sexual conduct and that, if Kendall did not consent
to the sexual conduct with the defendant, she would have expressed her
lack of consent in the same way she expressed her lack of consent to sexual
conduct by Jones.
Third, plaintiff’s exhibit 7 damages the credibility of Kendall. Plaintiff’s
exhibit 7 is dated February, 2003, and states that ‘‘one of your employees
. . . for the past two years has consistently made unwanted, inappropriate
and threatening sexual advances to me.’’ In February, 2003, Kendall had
just recently moved back into her apartment after the stroke that occurred
in 2001. The testimony at trial, including the plaintiff and Kendall’s own
testimony established that Kendall was not living in her apartment between
May, 2001 and late November, 2002. Instead, she had been staying in a
hospital, a rehabilitation facility, and at the plaintiff’s house during that
period. Accordingly, a letter in which she accused an employee of her
apartment complex of consistently engaging in unwanted, inappropriate and
threatening sexual advances during a time period when he would have been
unable to engage in such conduct, because she was under supervised care,
would damage her credibility with the jurors because the jurors would see
the inconsistency between that accusation and the other testimony pre-
sented.
Moreover, prior to trial, the plaintiff had filed a motion in limine seeking the
court to prohibit ‘‘the defendant from inquiring into, making any reference to,
or offering any exhibits relating to’’ Jones and two other individuals whom
she had alleged engaged in inappropriate sexual advances. The basis of the
plaintiff’s motion was that references to these prior accusations of sexual
advances were more prejudicial than probative and would be used by the
defendant in an attempt to show that Kendall accused every man she met
of engaging in sexual misconduct. After hearing argument on the motion in
limine, the trial court ruled that the defendant was not to inquire into the
prior complaints without first alerting the court of his intention to do so,
but reserved its decision on the admissibility of such evidence to be made
based upon the testimony at the time of trial. During trial, the trial court
ultimately ruled on the motion and determined that ‘‘[t]here will be no
questions regarding this individual named [Jones].’’ The trial court’s ruling
on the plaintiff’s motion in limine demonstrates that it had determined that
references or exhibits related to the plaintiff’s allegations regarding Jones
would be prejudicial to the plaintiff. Accordingly, we conclude that the
improper consideration of plaintiff’s exhibit 7 likely ‘‘affected the jury’s
perception of the remaining evidence.’’ Sullivan v. Metro-North Commuter
Railroad Co., supra, 292 Conn. 163.
Justice McDonald seems to suggest that the testimony of the experts, and
not Kendall’s credibility, was a paramount factor in the jury’s determination
as to whether Kendall had the capacity to consent. We disagree. Justice
McDonald’s concurring and dissenting opinion is substituting a particular
view of how a jury should have considered the evidence in the present case
rather than acknowledging the fact that, in a case of this nature, Kendall’s
testimony and credibility was the key element of the case and an exhibit
that called any of her testimony into question would have swayed the jury.
11
The plaintiff also asserts that the defendant’s defense of consent should
have been barred because, as a matter of public policy, an individual should
not be allowed to consent to the nature of the sexual conduct alleged in
the present case. The plaintiff did not provide and we cannot find any
support for the proposition that, as a matter of law, consent is not a defense
to a civil action because of the types of sexual acts alleged. As we explain
more fully herein, whether the defendant and Kendall engaged in the sexual
conduct alleged by the plaintiff and whether Kendall consented to that
sexual conduct was properly a question of fact for the jury to determine.
12
As we explain subsequently in this opinion, the legislature has made
significant changes to the statutes governing conservatorships since the
events underlying the present appeal. See, e.g., Public Acts 2007, No. 07-
116, § 16. We note that, to the extent that we examine the question of
legislative intent in this opinion, we refer to the current revision of General
Statutes §§ 45a-644, 45a-650 and 45a-656.
13
See footnote 12 of this opinion.
14
See footnote 12 of this opinion.
15
See footnote 12 of this opinion.
16
In 1998, the legislature enacted No. 98-219, § 17, of the 1998 Public Acts,
which allowed the court to limit the powers of a conservator upon a specific
finding that such limitation was in the best interests of the conserved person.
17
The defendant referred to this claim as an issue on cross appeal. The
defendant was not aggrieved by the judgment of the trial court and, therefore,
cannot appeal. See footnote 4 of this opinion. Nevertheless, we address
those claims that ‘‘should be considered on appeal in the event the appellant
is awarded a new trial . . . .’’ Practice Book § 63-4 (a) (1) (B).
18
Indeed, the plaintiff asserts that the defendant never moved for dismissal
at the close of the plaintiff’s evidence.
19
This court notes that there is no mention of § 53a-73a in the court’s
charge in the present case.