State v. Wohler

Landau, J.,

concurring. Although I concur in the result, I write separately because I disagree with the majority’s granting of review of this issue. The majority concludes that, in reviewing a sufficiency of the evidence claim, “[i]f the oral findings are insufficient and no articulation is requested and furnished, we may also examine pertinent portions of the trial transcript.” Regardless, as I stated in my previous dissent, “[b]ecause of the conflicting findings made by the [trial] court regarding the intent of the defendant, I believe that review is effectively impossible. ... I maintain that the majority cannot review the merits of this appeal based on a sufficiency analysis.1 ‘Either we adhere to *282the rules or we do not adhere to them.’ Osborne v. Osborne, 2 Conn. App. 635, 639, 482 A.2d 77 (1984). By positing this, I do not seek to place form over substance. This being a sufficiency claim, however, the very essence of the question is framed by parameters set in the trial court’s findings. For us to require any less diminishes the effectiveness of judicial review.” State v. Wohler, 30 Conn. App. 571, 579-80, 621 A.2d 751 (1993) (Landau, J., dissenting).

Absent compliance by the trial court with Practice Book § 4059 and by the appellant with Practice Book § 4061, the appellate tribunal cannot ascertain the reasoning and findings on which the decision is based. See footnote 2 of the majority opinion.

This case differs from State v. Roy, 233 Conn. 211, 658 A.2d 566 (1995). In Roy, our Supreme Court held that an unpreserved sufficiency of the evidence claim was nonetheless reviewable in light of the due process guaranteed by the United States constitution. The problem with the defendant’s claim in this case is not that it is unpreserved, but that the record is inadequate for us to consider it properly.