State v. Dunbar

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State v. Dunbar

STATE OF CONNECTICUT v. MALIK T. DUNBAR
(AC 46846)
Suarez, Clark and Seeley, Js.

Syllabus

The defendant, who had been on probation in connection with his convic-
tions, in two separate criminal dockets, of larceny in the second degree and
sexual assault in the second degree, appealed to this court from the judg-
ments of the trial court revoking his probation and imposing an effective
sentence of seven years of incarceration. He claimed, inter alia, that the
court violated his constitutional due process right to cross-examine adverse
witnesses by failing to engage in a balancing analysis pursuant to State v.
Shakir (130 Conn. App. 458) before admitting certain hearsay evidence. Held:

The trial court’s finding that the defendant violated his probation in the
sexual assault case was not based on his discharge from a certain sex
offender treatment program and, thus, the defendant’s claim that the court
violated his constitutional right to due process by admitting certain evidence
concerning his discharge from that program failed.

The trial court, having properly admitted into evidence, under the business
records exception to the rule against hearsay, a discharge report from a
domestic violence program that the defendant was required to attend as a
special condition of his probation in the larceny case was not required, under
Shakir, to balance the defendant’s interest in cross-examination against
the state’s good cause for denying the right to cross-examination prior to
admitting the report into evidence.

The trial court did not abuse its discretion in revoking the defendant’s
probation in each case, as the record demonstrated that the court properly
considered the beneficial purposes of probation and balanced the defen-
dant’s interests in liberty and rehabilitation against the need to protect the
public in rendering its judgments.
Argued February 10—officially released June 24, 2025

Procedural History

Information, in each of two cases, charging the defen-
dant with violation of probation, brought to the Superior
Court in the judicial district of Waterbury, geographical
area number four, where the cases were consolidated
and tried to the court, Kwak, J.; judgment in each case
revoking probation, from which the defendant appealed
to this court. Affirmed.
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State v. Dunbar

Chad L. Edgar, assigned counsel, for the appellant
(defendant).
Olivia M. Hally, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Alexandra Arroyo and Marsha Beckford,
deputy assistant state’s attorneys, for the appellee
(state).
Opinion

SEELEY, J. The defendant, Malik T. Dunbar, appeals
from the judgments of the trial court finding him in
violation of, and revoking, his probations, pursuant to
General Statutes § 53a-32,1 that were imposed under
two separate criminal dockets. On appeal, the defen-
dant claims that the court (1) violated his right to due
process under the federal constitution by failing to
engage in a due process balancing analysis under State
v. Shakir, 130 Conn. App. 458, 467, 22 A.3d 1285, cert.
1
General Statutes § 53a-32 provides in relevant part: ‘‘(a) At any time
during the period of probation . . . the court or any judge thereof may
issue a warrant for the arrest of a defendant for violation of any of the
conditions of probation . . . .
‘‘(c) Upon . . . an arrest by warrant as herein provided, the court shall
cause the defendant to be brought before it without unnecessary delay for
a hearing on the violation charges. At such hearing the defendant shall be
informed of the manner in which such defendant is alleged to have violated
the conditions of such defendant’s probation . . . shall be advised by the
court that such defendant has the right to retain counsel and, if indigent,
shall be entitled to the services of the public defender, and shall have the
right to cross-examine witnesses and to present evidence in such defendant’s
own behalf. . . .
‘‘(d) If such violation is established, the court may . . . (4) revoke the
sentence of probation . . . . If such sentence is revoked, the court shall
require the defendant to serve the sentence imposed or impose any lesser
sentence. Any such lesser sentence may include a term of imprisonment,
all or a portion of which may be suspended entirely or after a period set
by the court, followed by a period of probation with such conditions as the
court may establish. No such revocation shall be ordered, except upon
consideration of the whole record and unless such violation is established
by the introduction of reliable and probative evidence and by a preponder-
ance of the evidence. . . .’’
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State v. Dunbar

denied, 302 Conn. 931, 28 A.3d 345 (2011),2 before admit-
ting certain hearsay evidence and (2) abused its discre-
tion in revoking his probation. We disagree and affirm
the judgments.

The following facts, which the court reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. The defendant was serving
two separate terms of probation stemming from his
convictions in two criminal cases. In State v. Dunbar,
Superior Court, judicial district of Waterbury, Docket
No. CR-XX-XXXXXXX-T, he was convicted, on a plea of
guilty, of larceny in the second degree in violation of
General Statutes § 53a-123 (larceny case) and sen-
tenced to ten years of incarceration, execution sus-
pended after four years, followed by three years of
probation. His probationary period initially commenced
on September 10, 2018; however, on February 13, 2020,
following a hearing, the court found the defendant in
violation of his probation, revoked his probation and
sentenced him to six years of incarceration, execution
suspended after eighteen months, followed by proba-
tion for the remainder of the originally imposed term
of probation. In addition to the standard conditions of
probation that were imposed on the defendant, the
court added, as a special condition, that he ‘‘[c]omplete
the Explore program,’’ a twenty-six session program
Our courts previously have identified this analysis in a variety of ways,
2

including as a ‘‘balancing test’’; State v. Polanco, 165 Conn. App. 563, 571,
140 A.3d 230, cert. denied, 322 Conn. 906, 139 A.3d 708 (2016); as the ‘‘Shakir
balancing test’’; State v. Tucker, 179 Conn. App. 270, 281, 178 A.3d 1103,
cert. denied, 328 Conn. 917, 180 A.3d 963 (2018); and as the ‘‘Crespo balancing
test’’; State v. Wade, 351 Conn. 745, 761, 333 A.3d 90 (2025); see State v.
Crespo, 190 Conn. App. 639, 647, 211 A.3d 1027 (2019); whereas, it is referred
to as an ‘‘interest-of-justice determination’’ by federal courts. (Internal quota-
tion marks omitted.) United States v. Diaz, 986 F.3d 202, 211 (2d Cir. 2021).
Because the parties and the court all have referred to the test in the present
case as the Shakir balancing analysis, for the sake of consistency we do
so as well in this opinion.
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State v. Dunbar

designed to educate participants on domestic violence,
which is administered by Wheeler Clinic.
In State v. Dunbar, Superior Court, judicial district of
Waterbury, Docket No. CR-XX-XXXXXXX-T, the defendant
was convicted, on a plea of guilty, of sexual assault in
the second degree in violation of General Statutes § 53a-
71 (a) (1) (sexual assault case) on April 1, 2021. In that
case, he was sentenced to ten years of incarceration,
execution suspended after two years, followed by ten
years of probation with special conditions. The condi-
tions of probation imposed in relation to the defendant’s
sexual assault case required, inter alia, that he (1)
‘‘[s]ubmit to any medical and/or psychological examina-
tion, urinalysis, alcohol and/or drug testing, and/or
counseling sessions required by the [c]ourt’’; (2) register
as a sex offender for a period of ten years; (3) not move
from his place of residence or sleep elsewhere overnight
without notifying and obtaining the permission of a
probation officer; (4) engage in ‘‘[s]ex offender evalua-
tion and treatment as deemed appropriate’’ by [the]
Office of Adult Probation,3 which required him to
engage in a sex offender treatment program at The
Connection, ‘‘a statewide community based human ser-
vices agency that connects individuals with a variety
of resources’’; In re Caiden B., 220 Conn. App. 326,
330, 297 A.3d 1025, cert. denied, 348 Conn. 904, 301
A.3d 527 (2023); (5) not have any contact with the victim
and comply with a standing criminal protective order
that was in effect until 2070 and that prohibited him
from contacting the victim; (6) ‘‘notify [his] [p]robation
[o]fficer of any new or existing romantic or sexual rela-
tionship’’; and (7) not go to or loiter near places primar-
ily used by children under the age of sixteen or where chil-
dren might congregate, including, inter alia, any ‘‘malls,’’
3
We note that, in 2022, the Office of Adult Probation was dissolved and
replaced with Adult Probation Services. See footnote 18 of this opinion. We
will use both office titles in this opinion as appropriate.
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State v. Dunbar

‘‘fairs,’’ ‘‘carnivals,’’ ‘‘flea market[s]’’ or ‘‘beaches.’’ The def-
endant’s probationary period for both cases commenced
on October 28, 2021, upon his release from the custody
of the Department of Correction.
By April, 2022, Deanna Recchia, the defendant’s pro-
bation officer, had become aware of numerous potential
violations of probation committed by the defendant.
First, in January, 2022, she learned that the defendant
twice had gone to the Brass Mill Center, a mall in Water-
bury. Next, in February, 2022, during a compliance
check of the defendant’s cell phone, she learned that
he had contacted the victim in his sexual assault case.
Later that month, Recchia was notified that the defen-
dant had been discharged from Wheeler Clinic after
refusing to agree to comply with the intake and atten-
dance rules for participation in the Explore program.
Then, in March, 2022, Recchia learned that the defen-
dant had begun a new romantic relationship and moved
from his place of residence without notifying her. At
some point, Recchia also became aware that the defen-
dant had been unsuccessfully discharged from services
at The Connection. Finally, on April 21, 2022, Recchia
discovered that the defendant had failed to update his
address on the sex offender registry during a sex
offender registry compliance check. Recchia subse-
quently applied for two warrants to arrest the defen-
dant—one for each of his separate terms of probation—
and, on April 29, 2022, the court issued arrest warrants
for the defendant for violations of probation pursuant
to § 53a-32. The defendant was arrested on May 5, 2022.
Subsequently, Recchia requested and received a dis-
charge report from Wheeler Clinic relating to the defen-
dant’s discharge from the Explore program (discharge
report).4
4
The discharge report from Wheeler Clinic is dated June 5, 2023, was
prepared by ‘‘Kelly W.,’’ and was transmitted electronically from Wheeler
Clinic to Recchia. The title at the top of the document reads: ‘‘Judicial
Branch Court Support Services Division Explore Discharge Report.’’ The
report contains a ‘‘[f]inal [m]onth [p]rogress [n]ote’’ stating that ‘‘[the defen-
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State v. Dunbar

A consolidated probation revocation hearing took
place before the court, Kwak, J., on June 12, 2023. At the
outset of the hearing, as a preliminary matter, defense
counsel raised a concern to the court regarding certain
hearsay evidence that the state might elicit from
Recchia regarding, inter alia, the defendant’s participa-
tion in the court-ordered programs at Wheeler Clinic
and The Connection, and requested that the court per-
form a balancing test pursuant to State v. Shakir, supra,
130 Conn. App. 467,5 when deciding whether to admit
such hearsay evidence.6 The court responded that it
dant] did not attend any Explore group sessions.’’ It also contains a ‘‘[d]etails’’
section that lists various entries from February, 2021, to February, 2022,
summarizing unsuccessful attempts made by staff at Wheeler Clinic to com-
plete the defendant’s intake, as well as attempts that had been made to
contact the defendant and any responses from him, including that he would
not ‘‘agree to group rules as attendance policy is not reasonable.’’ A notation
on the report states that, because the defendant ‘‘refused to agree to the
rules and expectations of the Explore [p]rogram,’’ the client care coordinator
for the program ‘‘was unable to complete the intake and recommended that
the [defendant] follow up directly with his probation officer.’’ The report
further notes that the defendant was discharged from Wheeler Clinic on
February 23, 2022, due to his refusal to agree to the rules and expectations
of the program.
5
‘‘In State v. Shakir, [supra, 130 Conn. App. 467], we noted that the due
process safeguards [guaranteed in a probation revocation proceeding] are
codified in Federal Rule of Criminal Procedure 32.1 and include ‘an opportu-
nity to . . . question any adverse witness unless the court determines that
the interest of justice does not require the witness to appear. . . .’ . . . We
further explained that the court must balance the defendant’s interest in
cross-examination against the state’s good cause for denying the right to
cross-examine. . . . Specifically, we cited to case law from the United
States Court of Appeals for the Second Circuit and stated: ‘In considering
whether the court had good cause for not allowing confrontation or that
the interest of justice [did] not require the witness to appear . . . the court
should balance, on the one hand, the defendant’s interest in confronting
the declarant, against, on the other hand, the government’s reasons for not
producing the witness and the reliability of the proffered hearsay.’ ’’ (Citation
omitted.) State v. Polanco, 165 Conn. App. 563, 570–71, 140 A.3d 230, cert.
denied, 322 Conn. 906, 139 A.3d 708 (2016).
6
Specifically, defense counsel stated in relevant part: ‘‘[T]he defense antic-
ipates that the state is going to . . . bring on one witness, the probation
officer who supervised [the defendant] and then through that probation
officer intends to elicit hearsay evidence about information they didn’t have
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State v. Dunbar

would ‘‘take [counsel’s] objections into mind’’ as the
case moved forward with the presentation of evidence.
The court then heard testimony from Recchia, who
described the previously discussed violations of proba-
tion by the defendant as alleged by her in the arrest
warrants.
During the state’s direct examination of Recchia,
defense counsel again objected when the prosecutor
asked Recchia if she had ‘‘receive[d] information as
to whether [the defendant] had completed his court-
ordered [Explore] program’’ and if she ‘‘ever sp[oke] to
anyone over at the Explore program as to what exactly
happened.’’ Defense counsel stated that the ground for
his objection was hearsay and asked ‘‘that the court
perform a balancing test as in Shakir to determine
whether or not somebody from Explore should come
here. I think the court needs to come to a determination
of why . . . a witness isn’t being called in order to
allow hearsay testimony about what they would testify
to.’’ The court overruled both objections. In doing so,
the court stated: ‘‘[O]bviously, we have a discharge
report which is a business record kept in a normal
business so, that’s allowed, and since the information
is in there, I’m going to allow . . . Recchia to testify
as to what she heard from Wheeler Clinic. So, based
firsthand knowledge of. For example, his participation in the sex offender
program, [and] his participation in the Explore program. Both of those are
run by other entities . . . and the defense anticipates the hearsay testimony
is going to come in through this one witness on each of these topics . . . .
So, we ask that instead of, you know, objecting at the exact moment that
these things may be elicited, I just ask now that the state or the court
consider . . . [Shakir] and perform a balancing test when deciding whether
or not to admit the hearsay evidence in those . . . areas from those . . .
sources. The court would need to find good cause for specifically not
allowing confrontation, that case relies on the confrontation—the right to
confront witnesses against [the defendant] and by not having these people
come in, it limits his right to confrontation so there needs to be, the defense
would argue, some justifiable reason for not bringing these people in to
testify in front of the court and allow them to be cross-examined.’’
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State v. Dunbar

on her experience as well as the number of times that
she speaks with providers from Wheeler [Clinic], not
on just [the defendant’s] case but in other cases, I find
that it’s reliable so I’m going to overrule your motion
to have other people from Wheeler Clinic be here in
person.’’

Nonetheless, defense counsel further argued that
‘‘the [discharge report] is not in evidence at this point.
It’s a business record . . . . [T]here’s no one from
Wheeler [Clinic] to authenticate it as that, and under
Shakir the court’s heard nothing about why this witness
hasn’t been produced. There needs to be good cause
as to why we’re using hearsay . . . rather than some-
body from there and I would argue if the excuse is, ‘We
just didn’t call them because we didn’t think we had
to,’ I don’t believe that’s sufficient to allow somebody
else to testify to the information that they know.’’ After
hearing from the prosecutor,7 the court reiterated its
prior ruling on the defendant’s hearsay objections, stat-
ing: ‘‘I’m going to allow . . . Recchia to continue to
provide testimony and, if I believe that there’s [a] need
for someone from Wheeler Clinic to be here in person,
then I can make that decision afterwards.’’ The state
subsequently laid a foundation for Recchia’s familiarity
with the discharge report, eliciting testimony from her
that Adult Probation Services electronically receives
such discharge reports ‘‘when someone is discharged
either successfully or unsuccessfully,’’ and that such
7
In response to defense counsel’s objections, the prosecutor argued:
‘‘[T]he state didn’t produce the witness from Wheeler [Clinic] because it’s
not necessary because it is reliable that he did not successfully complete
the program. It’s reliable because probation works with—the probation
office works with Wheeler Clinic on supervising thousands of probationers.
Quite frankly, there is case law . . . that treatment letters are admissible
at a violation of probation hearing. So, [defense] counsel’s—I think his
reliance on Shakir is misplaced because reliable hearsay is admissible, and
I think that’s exactly what we have here.’’
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State v. Dunbar

documents are prepared in the ordinary course of busi-
ness at or near the time when the probationer is dis-
charged.
The state then offered the discharge report as a full
exhibit, and defense counsel requested an opportunity
to conduct voir dire.8 Following his voir dire, defense
counsel objected to the admission of the discharge
report into evidence on hearsay grounds and asked the
court to engage in a Shakir balancing analysis. Specifi-
cally, defense counsel argued that the discharge report
did not qualify as a business record because ‘‘it was
not produced . . . close to the time [of] the events that
are described in it’’ and because Recchia was not the
proper witness through which the alleged business
record could be introduced, as she did not produce the
document herself.9 After excusing the witness, taking
8
Defense counsel’s voir dire proceeded as follows:
‘‘[Defense Counsel]: When was that document produced?
‘‘[Recchia]: Because it was a subpoenaed document, I called and asked
them to actually send it and then I provided [it] to the judge per our policy
for treatment records.
‘‘[Defense Counsel]: I’m going to ask it again, when was that document
produced?
‘‘[Recchia]: This is dated June 5 of 2023.
‘‘[Defense Counsel]: Okay, and did you produce that document?
‘‘[Recchia]: I did not produce this document. I requested the document
from Wheeler [Clinic], and they sent it. I then printed it and provided it to
the court and to the judge that was going to be sitting in and asked to
provide a copy to the state’s attorney and the defense attorney for this
[violation of probation] hearing.’’
9
In particular, defense counsel argued in relevant part: ‘‘I would object
that the document is hearsay, it was not produced even close to the time
[of] the events that are described in it. It was produced days ago and it’s
describing events that happened over a year ago and it wasn’t produced by
this witness, there’s not a proper foundation to submit this document in
evidence as a business record. . . . [I]n order for it to be admitted as a
business record, it has to be generated close in time to the events that are
described within the record. This was not. This was generated in preparation
for this hearing, not to document the events that are described in it. It was
produced the other day . . . . [This is] talking about things that happened
in 2021 and 2022, as the witness said. Here we are in the middle of June of
2023. So, just on that part of a business record admission it shouldn’t come
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State v. Dunbar

a brief recess and hearing from the prosecutor and
defense counsel, the court overruled the defendant’s
objection, stating in relevant part: ‘‘I reviewed [§ 8-4 of]
the Connecticut Code of Evidence10 . . . which specifi-
cally talks about the admissibility of business entries
even without the preparer being present go[ing] to the
weight of the evidence, not to admissibility. So, I’m
going to deny your motion to preclude this document
because [the] court finds that it is a business record.’’
(Footnote added.) Following the court’s ruling, the dis-
charge report was admitted into evidence, and the state
continued with its direct examination of Recchia.
Shortly thereafter, the state questioned Recchia
about whether the defendant was compliant with his
court-ordered participation in the program at The Con-
nection, to which defense counsel objected, arguing in
relevant part: ‘‘[T]hey haven’t produced the witness. I’d
ask that the court make a finding under . . . Shakir
that there’s good cause for not producing someone from
The Connection to provide testimony about [the defen-
dant’s] work in that program.’’ In response, the prosecu-
tor argued in relevant part: ‘‘[T]his is reliable hearsay
in. But then also, this isn’t the witness where this would come in as a
business record. This is a witness who had requested the document be
produced by somebody else but didn’t produce it [her]self. . . . It’s some-
thing that [she] obtained in the course of [her] work, but it’s not something
that she produced. So, on those two grounds I’d say this just isn’t the witness
to bring it in and it wasn’t produced close enough in time to the events that
are described today. . . . [U]nder Shakir, there needs to be a weighing of
[the defendant’s] constitutional right, and this is for a violation of probation
hearing, to confront witnesses against him with this reason for why this
person isn’t here.’’
10
Section 8-4 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(b) . . . The writing or record shall not be rendered inadmissible by
(1) a party’s failure to produce as witnesses the person or persons who
made the writing or record, or who have personal knowledge of the act,
transaction, occurrence or event recorded or (2) the party’s failure to show
that such persons are unavailable as witnesses. Either of such facts and all
other circumstances of the making of the writing or record, including lack
of personal knowledge by the entrant or maker, may be shown to affect
the weight of the evidence, but not to affect its admissibility. . . .’’
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State v. Dunbar

that is probative as to why [the defendant] was unsuc-
cessful in his probation. So, the state is not required to
produce them because again, the rules of evidence do
not apply to this type of hearing.’’ After hearing from
both of the parties’ counsel, the court overruled the
defendant’s objection without providing an explana-
tion, and the contested question was then asked and
answered.11
At the close of the evidentiary phase, the court
recessed briefly before returning and making the follow-
ing relevant findings. The court found that the state
had proven, by a fair preponderance of the evidence,
that the defendant had violated the conditions of his
probation, and it found Recchia’s testimony concerning
the defendant’s activities ‘‘to be very credible . . . .’’
The court then set forth the specific conditions of which
it had found the defendant to be in violation, namely,
the conditions that he complete the Explore program,
inform the sex offender registry of his current address,
not start a new romantic relationship without prior
approval, not contact the victim of the sexual assault
in violation of the standing criminal protective order,
and stay away from areas where minors may be present,
which included malls.12
11
In particular, the relevant questioning of Recchia by the state proceeded
as follows:
‘‘[The Prosecutor]: Did you receive any information as to [the defendant]
with regard to his compliance in The Connection program?
‘‘[Recchia]: Yes.
‘‘[The Prosecutor]: And what was that?
‘‘[Recchia]: Well, he was noncompliant for several variables. One was he
communicated with the victim. One was not attending sessions regularly.
His first intake appointment, my recollection is he had overslept and didn’t
make the first appointment, and I believe that’s in my warrant. But when
he did complete his intake, he didn’t attend as he was scheduled to, and
[engaged in] victim contact and noncompliance with probation. Therefore,
he was unsuccessfully discharged.’’
12
Notably, the court did not find a violation of probation on the basis of
the defendant’s discharge from sex offender treatment at The Connection.
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State v. Dunbar

Thereafter, the court heard from counsel regarding
the dispositional phase,13 after which it found that the
‘‘beneficial aspects of probation were not being served’’
by the defendant continuing probation. Notably, the
court stated: ‘‘I need to consider the well-being of soci-
ety and the victim in this matter, particularly the victim
in this matter, the underlying [sexual assault case].
[The] court is extremely concerned that, after pleading
guilty to this charge, sex with a minor fourteen year
old, he continued to contact the victim in violation of
a standing criminal protective order. I’m very concerned
with that and as well as the conditions of probation.
[The] court finds that society will not be well served
with [the] defendant continuing on probation.’’ The
court also stated its belief that the defendant ‘‘was basi-
cally picking and choosing what he wanted to follow,
and [that] he can’t do that,’’ and that ‘‘all [of] those
factors necessitate that the defendant no longer be on
probation.’’ It therefore rendered judgments14 revoking
the defendant’s separate term of probation in each case
and sentenced the defendant to a total effective term
of seven years of incarceration.15 This appeal followed.
I
On appeal, the defendant claims that the court’s
admission of certain hearsay evidence at the revocation
of probation hearing violated his constitutional right to
13
We note that, during the evidentiary phase, Recchia testified as to her
belief that continuing the defendant’s probation would not serve a useful
rehabilitative purpose for the defendant due to his issues with authority
and history of noncompliance with conditions of probation.
14
We note that, although the record does not contain a written decision
of the trial court, it does include a signed transcript of the court’s oral
decision. See Practice Book § 64-1 (a).
15
With respect to the sexual assault case, the court sentenced the defen-
dant to seven of the eight years of incarceration that had been suspended.
As to the larceny case, the court sentenced the defendant to four years and
six months of incarceration that had been suspended, to run concurrently
with the sentence it imposed in the sexual assault case.
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State v. Dunbar

due process. Specifically, his claim pertains to three
pieces of evidence: (1) Recchia’s testimony about the
defendant’s discharge from the program at The Connec-
tion, which relates to the sexual assault case; (2) a letter
concerning the defendant’s discharge from the sex
offender treatment program at The Connection (letter),
which also concerns the sexual assault case; and (3)
the discharge report from the Explore program, which
concerns the larceny case.16
16
On appeal, the defendant has not raised a separate claim concerning
Recchia’s testimony about the discharge report. Although he notes in his
principal appellate brief that defense counsel objected at trial to hearsay
testimony from Recchia about the defendant’s discharge from the Explore
program, the claim raised in his appellate brief focuses on the court’s admis-
sion of the discharge report under the business records exception to the
hearsay rule. In the section of his brief addressing the harmfulness of the
court’s alleged error in admitting the report, he asserts, without citation
to authority, that ‘‘the trial court also erroneously admitted into evidence
statements from representatives of the [Explore program] regarding [the
defendant’s] discharge because they were not made by the declarants in
court but through the probation officer. They were rank hearsay not subject
to any hearsay exception. Without the discharge [report] and the hearsay
statements of the [program’s] representatives, the [court] had no basis to
find that [the defendant] was discharged from . . . the Explore . . . pro-
gram.’’ To the extent that this can be construed as raising a due process
claim regarding the admission of Recchia’s testimony, we conclude that
any such claim is inadequately briefed and decline to review it. See, e.g.,
Connecticut Coalition Against Millstone v. Connecticut Siting Council,
286 Conn. 57, 87, 942 A.2d 345 (2008) (noting that when ‘‘an issue is merely
mentioned, but not briefed beyond a bare assertion of the claim, it is deemed
to have been waived’’ (internal quotation marks omitted)); State v. Nathaniel
T., 230 Conn. App. 45, 52–53, 329 A.3d 285 (2024) (declining to review claim
as inadequately briefed when defendant did not provide any analysis or
citation to authority in support of claim).
Although the defendant’s failure to challenge Recchia’s testimony about
his discharge from the Explore program would ordinarily be fatal to his
challenge to the admission of that same information via the discharge report;
see, e.g., State v. Martinez, 171 Conn. App. 702, 758 n.20, 158 A.3d 373 (any
error in failure to suppress defendant’s written statement to police would
have been harmless given that statement was cumulative of other evidence,
admission of which defendant did not challenge), cert. denied, 325 Conn.
925, 160 A.3d 1067 (2017); we nevertheless address his claim regarding the
admission of the discharge report under the business records exception to
the hearsay rule, given the lack of clarity in his brief.
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We begin by setting forth our standard of review and
general principles of law pertaining to revocation of
probation proceedings. ‘‘A revocation of probation
hearing has two distinct components and two purposes.
A factual determination by a trial court as to whether
a probationer has violated a condition of probation
must first be made. If a violation is found, a court must
next determine whether probation should be revoked
because the beneficial aspects of probation are no
longer being served. . . . [A] probation revocation pro-
ceeding is civil in nature and, therefore, does not require
all of the procedural components associated with an
adversary criminal proceeding. . . . As such, the
state’s burden in probation revocation proceedings is
governed by the fair preponderance of the evidence
standard, which is the ordinary civil standard of proof.’’
(Citation omitted; internal quotation marks omitted.)
State v. Giovanni P., 155 Conn. App. 322, 326, 110 A.3d
442, cert. denied, 316 Conn. 909, 111 A.3d 883 (2015).

‘‘Whether a party was deprived of his due process
rights is a question of law to which appellate courts
grant plenary review.’’ (Internal quotation marks omit-
ted.) Houghtaling v. Commissioner of Correction, 203
Conn. App. 246, 279, 248 A.3d 4 (2021). ‘‘The due process
clause of the fourteenth amendment to the United
States constitution requires that certain minimum pro-
cedural safeguards be observed in the process of revok-
ing the conditional liberty created by probation. . . .
Th[is] . . . [c]ourt, relying on United States Supreme
Court cases, has held that those federal due process
protections include a defendant’s right—albeit, not an
absolute right—to confront adverse witnesses at a pro-
bation revocation hearing. See State v. Shakir, [supra,
130 Conn. App. 467–68 and 467 n.6] . . . see also Gag-
non v. Scarpelli, [411 U.S. 778, 782, 93 S. Ct. 1756,
36 L. Ed. 2d 656 (1973)] (due process guarantees are
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identical for revocation of parole, probation and super-
vised release); Morrissey v. Brewer, [408 U.S. 471, 489,
92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)] (due process
mandates at parole revocation hearings the right to
confront and cross-examine adverse witnesses . . .
unless the hearing officer specifically finds good cause
for not allowing confrontation . . . ). In [State v.
Crespo, 190 Conn. App. 639, 647, 211 A.3d 1027 (2019)],
th[is] . . . [c]ourt reiterated its previous holdings and
held that [t]he exercise of the right to confront adverse
witnesses in a probation revocation proceeding is not
absolute, but rather entails a balancing inquiry con-
ducted by the court, in which the court must balance
the defendant’s interest in cross-examination against
the state’s good cause for denying the right to cross-
examine. . . . In considering whether the court had
good cause for not allowing confrontation or that the
interest of justice [did] not require the witness to appear
. . . the court should balance, on the one hand, the
defendant’s interest in confronting the declarant,
against, on the other hand, the government’s reasons
for not producing the witness and the reliability of the
proffered hearsay.’’ (Citation omitted; footnote omitted;
internal quotation marks omitted.) State v. Wade, 351
Conn. 745, 758–60, 333 A.3d 90 (2025).

We also, however, have recognized that ‘‘[f]ederal
decisions have suggested . . . that [a] court is not
required to conduct such balancing in all circum-
stances. [U]nder [United States v. Jones, 299 F.3d 103,
113 (2d Cir. 2002)], the balancing analysis need not
be made where the proffered out-of-court statement is
admissible under an established exception to the hear-
say rule.’’ (Emphasis added; internal quotation marks
omitted.) State v. Giovanni P., supra, 155 Conn. App.
335; see id., 336. With these principles in mind, we turn
to the defendant’s due process claim.
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A
We first address the defendant’s due process claim
as it relates to the evidence at issue in the sexual assault
case. The defendant claims that the court violated his
constitutional right to due process by admitting into
evidence a letter concerning his discharge from sex
offender treatment at The Connection, as well as
Recchia’s hearsay testimony about his discharge from
The Connection. We disagree.
First, the defendant misconstrues the court’s decision
because, although the letter was referenced at trial dur-
ing Recchia’s testimony, the letter was never admitted
into evidence as a full exhibit. Second, although Recchia
testified about the defendant’s noncompliance with the
program at The Connection, the court did not base its
determination that the defendant violated his probation
on his discharge from The Connection. Rather, the tran-
script of the revocation of probation proceeding shows
that the court found that the defendant violated his
probation in the sexual assault case by (1) failing to
update his address with the sex offender registry, (2)
starting a new romantic relationship without notifying
his probation officer, (3) violating a standing criminal
protective order by having contact with the victim, and
(4) violating the condition of his probation that he stay
away from areas where minors may be present.17 The
defendant’s claim with respect to the letter and testi-
mony relating to his discharge from The Connection is
thus premised on a ground on which the court did not
base its decision. In other words, because the court’s
finding that the defendant violated his probation in the
sexual assault case was not based on his discharge from
17
The defendant has not challenged these other findings that supported
the court’s determination that he violated his probation in the sexual assault
case. In his principal appellate brief, he states: ‘‘Here, [the defendant] was
found in violation of other conditions of probation where the evidence
supporting those violations cannot be successfully challenged.’’
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the program at The Connection, his claim that the court
revoked his probation on the basis of improperly admit-
ted evidence concerning his discharge from the pro-
gram at The Connection necessarily fails. See State v.
Muhammad, 117 Conn. App. 181, 185–87, 979 A.2d 501
(2009) (there was no merit to claim that court revoked
defendant’s probation on basis of clearly erroneous
finding when record showed that court did not base
decision to revoke probation on alleged finding); see
also State v. Brito, 170 Conn. App. 269, 295 n.9, 154 A.3d
535 (declining to address aspect of claim that concerned
ground on which court did not base its decision), cert.
denied, 324 Conn. 925, 155 A.3d 755 (2017); Chief Disci-
plinary Counsel v. Rozbicki, 150 Conn. App. 472, 482
n.8, 91 A.3d 932 (claim that court improperly based
denial of motion for summary judgment on defendant’s
failure to plead preclusion claims by way of special
defense was misplaced because court did not base its
decision on that ground), cert. denied, 314 Conn. 931,
102 A.3d 83 (2014).
B
Next, the defendant claims that the court violated
his constitutional due process right to cross-examine
adverse witnesses by failing to engage in a balancing
analysis pursuant to Shakir when it admitted the dis-
charge report into evidence. We disagree.
The following additional facts are relevant to our
resolution of his claim. Recchia testified that she has
been working as a probation officer for eighteen years
and that her work ‘‘entails ensuring that [probationers]
are complying with court orders, community safety,
and also aiding in their rehabilitation . . . . ’’ As part
of her duties, she regularly refers probationers ‘‘for
programs associated with their risk and needs,’’ she
works ‘‘closely with treatment providers,’’ and she is
responsible for making ‘‘daily decisions on anything
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that’s going on with [probationers] and for communicat-
ing and collaborating with treatment agencies . . . .’’
When a court orders a specific treatment as a condition
of probation, like the requirement that the defendant
complete the Explore program, Recchia makes a ‘‘refer-
ral for the program that the court ordered and then
[she makes] sure that—[she] attempt[s] to make sure
that the [probationer] completes—participates and
completes that program successfully.’’ She explained
further that, ‘‘once a referral is made, the treatment
provider will let [her] know when the intake is sched-
uled for or when the intake is completed and when the
[probationer] is scheduled to begin their program. . . .
Treatment providers provide status reports [at] a mini-
mum of once a month. If someone is not compliant
with what we are asking them to do, such as an intake
or attending treatment sessions, then they will be letting
us know a probationer missed a treatment session, we
get those notices all the time. Any time it’s one of our
providers, when someone misses a treatment session,
or does not do what they are asked . . . then we are
notified. . . . The treatment provider puts information
into their case management system and then that infor-
mation gets put in our case management information
system if it’s one of our providers.’’ Wheeler Clinic is
a contracted provider with the Judicial Branch’s Court
Support Services Division.18
With respect to the Explore program in particular,
Recchia testified that she regularly communicates with
18
General Statutes § 51-1d provides in relevant part: ‘‘There is established
a Court Support Services Division within the Judicial Branch consisting of
Adult Probation Services, Family Services, Pretrial Services, Juvenile Ser-
vices and Juvenile Clinical, Educational and Residential Services. Notwith-
standing any provision of the general statutes, the duties of the various
offices, divisions and personnel which comprise the Court Support Services
Division are transferred to the Court Support Services Division, and the
Office of Adult Probation, Office of Alternative Sanctions, Office of the Bail
Commission, Family Division and Juvenile Detention Services Division are
dissolved. . . .’’
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State v. Dunbar

individuals responsible for administering the program
with regard to all probationers, not just the defendant,
and that such individuals regularly give her updates
regarding how probationers are doing. She further testi-
fied that she received information that the defendant
had been discharged from the Explore program in Feb-
ruary, 2022, ‘‘because he did not agree to comply with
their rules of doing the intake and attending the treat-
ment sessions.’’ When asked if she ever spoke with
anyone at the Explore program as to what exactly hap-
pened, she responded that she did. The prosecutor then
showed her the defendant’s discharge report from the
Explore program, and she explained that she receives
such documents electronically for any probationer that
is discharged from the program and that such document
is prepared in the ordinary course of business, at or
near the time when the probationer is discharged. When
questioned by defense counsel, Recchia acknowledged
that she did not produce the document but, rather, had
requested it, and that, after it was sent to her electroni-
cally, she printed it and provided it to the court.

Because the court overruled the defendant’s objec-
tion to the admission of the discharge report on the
ground that it was admissible as a business record,
we first must examine whether the court’s ruling was
proper, as we have stated that, if the ‘‘proffered out-
of-court statement is admissible under an established
exception to the hearsay rule’’; (internal quotation
marks omitted) State v. Giovanni P., supra, 155 Conn.
App. 335; a court need not undertake a Shakir balancing
analysis. See id.

‘‘Hearsay is an out-of-court statement offered to
prove the truth of the matter asserted. . . . If the prof-
fered evidence consists of business records, the court
must determine whether the documents satisfy the
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modest requirements under [General Statutes] § 52-
18019 to admit them under the business records excep-
tion to the hearsay rule. . . . To be admissible under
the business record[s] exception to the hearsay rule, a
trial court judge must find that the record satisfies each
of the three conditions set forth in . . . § 52-180. The
court must determine, before concluding that it is
admissible, [1] that the record was made in the regular
course of business, [2] that it was the regular course
of such business to make such a record, and [3] that
it was made at the time of the act described in the
report, or within a reasonable time thereafter. . . . In
applying the business records exception, the statute
. . . should be liberally interpreted. . . . In part, this
is because the statute recognizes the inherent trustwor-
thiness of documents created for business rather than
litigation purposes. . . . [Our Supreme Court] repeat-
edly has held that [i]t is not necessary . . . that the
witness have been the entrant himself or in the employ
of the business when the entry was made. . . . It is
sufficient for a witness to testify that it was the regular
business practice to create a document within a reason-
able time after the occurrence of the event. This is
sufficient to ensure that the document was created at
19
General Statutes § 52-180 provides in relevant part: ‘‘(a) Any writing or
record, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any act, transaction, occurrence or event, shall
be admissible as evidence of the act, transaction, occurrence or event, if
the trial judge finds that it was made in the regular course of any business,
and that it was the regular course of the business to make the writing or
record at the time of the act, transaction, occurrence or event or within a
reasonable time thereafter.
‘‘(b) The writing or record shall not be rendered inadmissible by (1) a
party’s failure to produce as witnesses the person or persons who made the
writing or record, or who have personal knowledge of the act, transaction,
occurrence or event recorded or (2) the party’s failure to show that such
persons are unavailable as witnesses. Either of such facts and all other
circumstances of the making of the writing or record, including lack of
personal knowledge by the entrant or maker, may be shown to affect the
weight of the evidence, but not to affect its admissibility. . . .’’
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State v. Dunbar

the time when the event was fresh in the author’s mind.
. . . To require the defendant to produce a witness that
could testify from personal knowledge as to the specific
time that a particular document was made would unduly
constrain the use of the business records exception and
directly contradict the liberal interpretation that this
court has accorded to § 52-180.’’ (Citations omitted;
footnote added; internal quotation marks omitted.)
State v. Williams, 202 Conn. App. 355, 364–65, 245 A.3d
830, cert. denied, 336 Conn. 917, 245 A.3d 802 (2021).
‘‘To the extent [that] a trial court’s admission of evi-
dence is based on an interpretation of the [Connecticut]
Code of Evidence, our standard of review is plenary.
For example, whether a challenged statement properly
may be classified as hearsay and whether a hearsay
exception properly is identified are legal questions
demanding plenary review. . . . We review the trial
court’s decision to admit evidence, if premised on a
correct view of the law, however, for an abuse of discre-
tion.’’ (Internal quotation marks omitted.) State v.
Bonds, 172 Conn. App. 108, 116–17, 158 A.3d 826, cert.
denied, 326 Conn. 907, 163 A.3d 1206 (2017). Because
the defendant challenges the applicability of the busi-
ness records exception in the present case, we apply
plenary review to his claim. See LM Ins. Corp. v. Con-
necticut Dismanteling, LLC, 172 Conn. App. 622, 631,
161 A.3d 562 (2017).
On appeal, the parties do not dispute that the dis-
charge report contains hearsay. Rather, the defendant’s
sole basis for claiming that the court improperly admit-
ted the discharge report pursuant to the business
records exception to the hearsay rule is that Recchia
was not the proper person through whom the exhibit
should have been admitted. Specifically, he contends
that ‘‘the witness has to be able to speak knowingly of
the practices that generated the record at issue. Here,
[Recchia] was not an employee of the Explore program.
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Further, she was not able to speak to the Explore pro-
gram’s recordkeeping practices. All that she could
speak to was that she was in regular receipt of reports
from the Explore program rather than that she pro-
duced such reports.’’ He refers to Recchia’s ‘‘outsider
status’’ in arguing that she did not ‘‘demonstrate any
firsthand knowledge of the program’s recordkeeping
practices.’’ We are not persuaded.
This court addressed circumstances similar to those
in the present case in State v. Huckabee, 54 Conn. App.
758, 738 A.2d 681 (1999). The sole issue on appeal in
Huckabee was ‘‘whether the trial court improperly
admitted into evidence an attendance report without
which the defendant claim[ed] there was insufficient
evidence to find a probation violation.’’ Id., 759. The
defendant’s probation officer in Huckabee, Suzanne
Kuziak, had referred the defendant to ‘‘Project More, a
service provider for the alternative incarceration center
program.’’ Id., 760. The Office of Adult Probation makes
‘‘referrals to and contracts with the alternative incarcer-
ation program and Project More [but] neither entity is
part of the [O]ffice of [A]dult [P]robation.’’ Id. Kuziak
subsequently ‘‘received a report from . . . Project
More dated January 10, 1997, that indicated that the
defendant had missed twenty-one days by that date and
that the alternative incarceration program was seeking
to terminate him. Kuziak testified that she is required
to keep records of the defendant’s attendance at the
alternative incarceration program as part of the supervi-
sion. After admonishing the defendant about the need to
improve his attendance and persuading the alternative
incarceration program not to terminate him, Kuziak
noted that the defendant’s attendance slipped again in
February and that he also missed two appointments
with her. Kuziak applied for a warrant for the defen-
dant’s arrest on February 19, 1997. Upon finding a pro-
bation violation by a preponderance of the evidence,
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State v. Dunbar

the trial court revoked probation . . . . [On appeal]
[t]he defendant claim[ed] that the trial court improperly
admitted Project More’s attendance report, that the
report was hearsay and that, but for the improper admis-
sion of this report, there would have been insufficient
evidence to support the trial court’s finding of a viola-
tion.’’ (Footnote omitted.) Id., 760–61.
This court in Huckabee rejected the defendant’s claim
on appeal, stating: ‘‘Kuziak testified that the [O]ffice
of [A]dult [P]robation contracted with the alternative
incarceration program for its services. The program
provided regular attendance records, and it was Kuzi-
ak’s duty to keep those records. Kuziak testified that
she had utilized the records regularly to keep track of
persons on probation and that she had found them to
be reliable. We conclude that the trial court properly
admitted the attendance report under the business
records exception.’’ Id., 762–63.
Similarly, in the present case, the state presented
testimony from Recchia that it was within the normal
course of business for the Explore program, as a con-
tracted provider of services, to provide her with regular
updates regarding, inter alia, the defendant’s attendance
and compliance with the program, and that it was her
responsibility as the defendant’s probation officer to
ensure that he was complying with the court’s orders.
In fact, when the prosecutor asked Recchia about the
defendant’s discharge report from the Explore program,
she explained that she receives such documents elec-
tronically for any probationer that is discharged from
the program and that such document is prepared in the
ordinary course of business, at or near the time when
the probationer is discharged.
In light of Huckabee and the liberal interpretation we
must afford to § 52-180; see State v. Williams, supra,
202 Conn. App. 364; we conclude that the defendant
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has failed to demonstrate that the court’s admission of
the discharge report under the business records excep-
tion to the rule against hearsay was improper. ‘‘In Con-
necticut, our appellate courts do not presume error on
the part of the trial court. . . . Rather, the burden rests
with the appellant to demonstrate reversible error.’’
(Internal quotation marks omitted.) State v. Papineau,
182 Conn. App. 756, 771–72, 190 A.3d 913, cert. denied,
330 Conn. 916, 193 A.3d 1212 (2018). As we already
have pointed out, the only ground that the defendant
asserts on appeal in support of his challenge to admis-
sion of the discharge report concerns Recchia and
whether she had the requisite knowledge regarding the
report to establish its admission as a business record.
Although the defendant acknowledges that a witness
testifying regarding a business record need not be the
preparer of the record or an employee of the business
that generated the record, he nonetheless repeatedly
refers in his appellate brief to the fact that Recchia is not
an employee of the Explore program. ‘‘[Our Supreme
Court, however] repeatedly has held that [i]t is not
necessary . . . that the witness have been the entrant
himself or in the employ of the business when the entry
was made. . . . It is sufficient for a witness to testify
that it was the regular business practice to create a
document within a reasonable time after the occurrence
of the event.’’ (Internal quotation marks omitted.) State
v. Williams, supra, 202 Conn. App. 364–65. Moreover,
§ 52-180 (b) clearly states that ‘‘[t]he writing or record
shall not be rendered inadmissible by (1) a party’s fail-
ure to produce as witnesses the person or persons who
made the writing or record, or who have personal
knowledge of the act, transaction, occurrence or event
recorded,’’ and that such facts, ‘‘including lack of per-
sonal knowledge by the entrant or maker, may be shown
to affect the weight of the evidence, but not to affect
its admissibility.’’ See also Conn. Code Evid. § 8-4 (b).
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26 ,0 0 Conn. App. 1
State v. Dunbar

Therefore, with respect to the question of whether the
discharge report should have been admitted as a busi-
ness record, it is of no consequence that Recchia did
not produce the document or work for the Explore
program. Her testimony, which the court specifically
credited, provided a sufficient basis for the court’s
admission of the discharge report under the business
records exception to the hearsay rule.
Accordingly, because we have concluded that the
discharge report was admitted properly under the busi-
ness records exception to the hearsay rule, the court
was not required, under Shakir, to balance the defen-
dant’s interest in cross-examination against the state’s
good cause for denying the right to cross-examination
prior to admitting the report into evidence. See State
v. Shakir, supra, 130 Conn. App. 467; see also State v.
Crespo, supra, 190 Conn. App. 647. The defendant’s due
process claim, therefore, fails.
II
The defendant also claims that the court abused its
discretion in revoking his probation. We disagree.
‘‘The standard of review of the trial court’s decision
at the sentencing phase of the revocation of probation
hearing is whether the trial court exercised its discre-
tion properly by reinstating the original sentence and
ordering incarceration. . . . 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
where an abuse of discretion is manifest or where injus-
tice appears to have been done. . . . On the basis of
its consideration of the whole record, the trial court
may continue or revoke the sentence of probation . . .
[and] . . . require the defendant to serve the sentence
imposed or impose any lesser sentence. . . . In making
this second determination, the trial court is vested with
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broad discretion. . . . In determining whether to
revoke probation, the trial court shall consider the bene-
ficial purposes of probation, namely rehabilitation of
the offender and the protection of society. . . . The
important interests in the probationer’s liberty and reha-
bilitation must be balanced, however, against the need
to protect the public.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Rodriguez, 130 Conn. App.
645, 649–50, 23 A.3d 826 (2011), aff’d, 320 Conn. 694,
132 A.3d 731 (2016).
In the present case, the court rendered judgments
revoking the defendant’s separate terms of probation
in each case. With respect to the sexual assault case,
the court sentenced the defendant to seven of the eight
years of incarceration that had been suspended, noting
that it was ‘‘going to give him some credit . . . [and
not] sentence him to the full eight years.’’ As to the
larceny case, the court sentenced the defendant to four
years and six months of incarceration that had been
suspended, to run concurrently with the sentence
imposed in the sexual assault case. The court sentenced
the defendant to a total effective term of seven years
of incarceration.
On appeal, the defendant asserts that the court’s deci-
sion to revoke his probation was focused on his dis-
charges from the Explore and Connection programs,
which he contends were not properly before the court.
In other words, he claims that the court revoked his
probation ‘‘partially, if not primarily, on evidence that
should not have been considered [which] rendered the
[court’s] decision without a solid foundation.’’ In the
dispositional phase of the proceeding, however, the
court never made a reference to The Connection or
any evidence relating to it, let alone make any finding
indicating that it was revoking the defendant’s proba-
tion in the sexual assault case on the basis of his failure
to complete the program at The Connection, and as we
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State v. Dunbar

already have stated in this opinion, the court did not
find the defendant in violation of that condition of his
probation in the sexual assault case. In light thereof,
and given our conclusion in part I B of this opinion
rejecting the defendant’s claim regarding the hearsay
evidence related to the Explore program, this claim
necessarily fails as well.
In the disposition phase, the court determined that
the ‘‘beneficial aspects of probation were not being
served’’ by the defendant continuing probation, that it
had to ‘‘consider the well-being of society’’ and the
fourteen year old victim in the underlying sexual assault
case, that it was ‘‘extremely concerned’’ that the defen-
dant had contacted the victim in violation of a standing
criminal protective order, and that ‘‘society will not be
well served with [the] defendant continuing on proba-
tion.’’ The record demonstrates that the court, in decid-
ing to revoke the defendant’s probations in both cases,
properly considered the beneficial purposes of proba-
tion, namely, the defendant’s rehabilitation and the pro-
tection of society, and balanced the defendant’s inter-
ests in liberty and rehabilitation against the need to
protect the public. See State v. Rodriguez, supra, 130
Conn. App. 650. The defendant has not otherwise chal-
lenged these findings. On the basis of the record before
us and affording every reasonable presumption in favor
of the correctness of the court’s decision, we cannot
conclude that the court abused its discretion in revoking
the defendant’s probations and sentencing him to a total
effective term of seven years of incarceration.
The judgments are affirmed.
In this opinion the other judges concurred.