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State v. Henry B.-A.
STATE OF CONNECTICUT v. HENRY B.-A.*
(AC 46967)
Clark, Seeley and DiPentima, Js.
Syllabus
Convicted, following a jury trial, of sexual assault in the second degree and
risk of injury to a child, the defendant appealed. He claimed that he was
deprived of his due process right to a fair trial as a result of improper
remarks the prosecutor made during closing and rebuttal arguments to the
jury. Held:
The prosecutor did not improperly vouch for the victim’s credibility when
he referred to the defendant by his nickname, ‘‘Zeus,’’ as that reference was
based on the victim’s testimony, as well as a message and a video the
defendant had sent her that was admitted into evidence, and the prosecutor
never made a statement that could be construed as his personal opinion
concerning the victim’s veracity.
The defendant’s assertion that the prosecutor’s statements that the defendant had threatened the victim and that she cried when he sexually abused
her were comments on facts that were not in evidence and improperly
appealed to the jurors’ emotions was unavailing, as those statements were
based on the evidence or reasonable inferences that could be drawn therefrom.
This court was not persuaded that the prosecutor’s statement that the victim
‘‘got victimized in the hospital,’’ made during the prosecutor’s discussion
of the medical examination that the victim underwent at the hospital after
disclosing the sexual abuse, improperly appealed to the jurors’ emotions,
as the jury reasonably could have inferred from the prosecutor’s statement
that the defendant had continued to victimize the victim while she was at
the hospital, in that his presence there compounded the vulnerable state
she was in while undergoing an invasive medical examination.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106,
136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
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State v. Henry B.-A.
There was no merit to the defendant’s unsupported claim that the prosecutor
injected the trial with sarcasm by referring to the defendant by his nickname,
‘‘Zeus,’’ which was based on the victim’s testimony, and the trial transcript
demonstrated that the prosecutor merely substituted the nickname in place
of referring to the defendant.
Although the prosecutor improperly stated that the victim’s mother had
known that the defendant had been referring to himself as ‘‘Zeus,’’ that
single, isolated transgression did not substantially prejudice the defendant
or deprive him of a fair trial, as it was not severe when considered in the
context of the entire trial, defense counsel did not perceive it as warranting
an objection, it was neither egregious nor inexcusable, and the prosecutor’s
improper statement was not, as the defendant contended, central to the
victim’s credibility but was one aspect of her extensive, detailed testimony
about the defendant’s sexual abuse of her that did not affect the jury’s
consideration of the evidence.
Argued April 16—officially released August 5, 2025
Procedural History
Substitute information charging the defendant with
three counts of the crime of risk of injury to a child
and one count of the crime of sexual assault in the
second degree, brought to the Superior Court in the
judicial district of Fairfield and tried to the jury before
E. Richards, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Gary A. Mastronardi, assigned counsel, for the
appellant (defendant).
Heather M. Mansfield, certified legal intern, with
whom were Ronald G. Weller, senior assistant state’s
attorney, and, on the brief, Joseph T. Corradino, state’s
attorney, Joseph J. Harry, senior assistant state’s attorney, and Alexander O. Kosakowski, certified legal
intern, for the appellee (state).
Opinion
SEELEY, J. The defendant, Henry B.-A., appeals from
the judgment of conviction, rendered following a jury
trial, of sexual assault in the second degree in violation
of General Statutes § 53a-71 (a) (1), risk of injury to a
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State v. Henry B.-A.
child in violation of General Statutes § 53-21 (a) (1),
and two counts of risk of injury to a child in violation
of § 53-21 (a) (2). On appeal, the defendant claims that
he was deprived of his due process right to a fair trial
as a result of prosecutorial improprieties that allegedly
occurred during the prosecutor’s closing and rebuttal
arguments. We disagree and affirm the judgment of
the court.
The jury reasonably could have found the following
facts on the basis of the evidence presented at trial.
The victim, who was from Puerto Rico, came to New
York in September, 2015, with her mother and two
siblings when she was twelve years old. Upon arriving
in New York, the victim and her family initially lived
with the defendant and his family, which included the
defendant’s mother, Brenda A., and his brother, Joshua
A. Brenda A. is the victim’s aunt, and the defendant
and the victim are cousins, although their relationship
was more akin to that of uncle and niece. Shortly thereafter, the victim and her family lived part-time with a
different aunt in Connecticut and continued to reside
in New York at the residence of the defendant’s family
on weekends until December, 2015, when the victim
and her family moved to a residence in Bridgeport.
Throughout this time and afterward, the two families
continued to socialize and visit with one another.
The victim met the defendant for the first time when
she came to New York. She testified that she initially
got along with the defendant, who referred to the victim
by the nickname ‘‘Negrita.’’1 The victim testified that
by January, 2016, her relationship with the defendant
had changed in that ‘‘[h]e treated [her] with more love
than normal.’’ She explained that ‘‘the relationship [of]
1
According to the victim, with the exception of some of her family members who live in Puerto Rico, only the defendant referred to her by this
nickname.
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State v. Henry B.-A.
uncle-niece became closer and it was more affectionate
when we got to know each other,’’ although she was
not becoming more affectionate with the defendant.
According to the victim, in or about January and February, 2016, the defendant also gave the victim the nickname of ‘‘Athena,’’ while referring to himself as ‘‘Zeus,
the God.’’
In March, 2016, the defendant came to the victim’s
thirteenth birthday party at her residence in Connecticut. During that visit, the defendant gave the victim a
chain with a heart and the initial of her first name. The
victim also received a cell phone as a gift from her
mother. The victim testified that, after she received the
cell phone, the defendant would communicate with her
via Snapchat and acted ‘‘with more affection than normal’’ toward her.
In the beginning of April, 2016, the victim and her
family went to the defendant’s house in New York to
celebrate his twenty-sixth birthday and stayed overnight. As part of the sleeping arrangements for that
evening, the victim was supposed to sleep in the living
room with Brenda A. on an inflatable mattress. Brenda
A., however, just prior to falling asleep on a couch, told
the victim to go sleep in the bedroom of the defendant,
who had left the residence briefly to take a friend home.
Because the door to the defendant’s bedroom was
locked, the victim waited for him to come home, and
when he did so, she explained that his mother had
told her to sleep in his bedroom. They entered the
defendant’s bedroom, he locked the door, and the victim
began to fall asleep when the defendant started to touch
her legs and tried to pull down her pants. When the
victim asked the defendant what he was doing, he
responded that ‘‘nothing bad would happen to [her].’’
After the defendant pulled down the victim’s pajamas
and panties, she started to cry and asked what he was
doing, and the defendant told her not to scream because
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State v. Henry B.-A.
her mother would ‘‘scold’’ her. Thereafter, the defendant stood up, retrieved a condom, and took out a gun
and put it on top of a shelf in the bedroom, after which
he told the victim that, if she ‘‘said something or . . .
screamed, something would happen to [her] and [her]
family.’’ The victim continued to cry as the defendant
forcefully opened the victim’s legs and penetrated her
vagina with his penis. He also forced his penis into the
victim’s mouth. While this occurred, the victim continued to struggle and cry out loud, and the defendant
placed his hand over her mouth. When the defendant
was finished, he made the victim promise that she would
not say anything and allowed her to go to the bathroom,
where she discovered that she was bleeding. The victim
testified that she was scared the next morning and did
not tell her mother what had happened.
The victim’s mother testified that, on the morning
after the defendant’s birthday party, she noticed that
the victim woke up in the defendant’s bedroom, that
the victim explained that Brenda A. had told her to
sleep there, and that the victim was acting ‘‘scared’’ and
‘‘was not being herself.’’ Subsequently, through the rest
of April and continuing to October, 2016, the defendant,
along with his mother and brother, frequently visited
the victim’s home in Connecticut on weekends, staying
overnight. The victim testified that, during many of
those overnight stays, the defendant sexually assaulted
her by penetrating her vaginally and anally, and forcing
her to perform oral sex.2 The defendant also continued
2
For example, the victim testified regarding a visit to her home by the
defendant’s family on the weekend of May 14, 2016. That evening, the victim
went to sleep in her bedroom with her brother and sister. The defendant
came into the bedroom and pulled on the victim’s feet to get her attention,
and when she indicated that she did not want to go with him, he pointed
his finger at her younger sister, which frightened the victim, who did not want
anything to happen to her sister. The victim thus went with the defendant
to her brother’s bedroom, where the defendant was sleeping by himself for
that evening. The defendant showed the victim a pornographic video on his
cell phone, stating that that was what he was going to do to the victim.
Thereafter, he pushed the victim onto the bed, took her clothes off, and
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State v. Henry B.-A.
to communicate with the victim via Snapchat, reminding
her not to tell anyone what had happened. He also
would tell her that there was nothing wrong with what
he was doing and that ‘‘he was just loving’’ the victim.
By May, 2016, the victim’s mother had noticed a
change in the victim’s demeanor. She recalled that, prior
to that time, the victim ‘‘was a happy girl, kind, she was
always dancing, she loved modeling and singing, she
was always singing. She was respectful, [a] good daughter, [and a] good sister.’’ The victim also previously
never had night terrors or issues with sleeping, school,
or bodily functions such as defecating or urinating.3 By
May, 2016, however, the victim’s mother noticed that
the victim ‘‘was always sad, she always wore a hoodie,
she covered herself. She was not the same. She had
panic attacks. She didn’t comb her hair.’’ Between April
and September, 2016, the victim also began to have
panic attacks at school.
In October, 2016, the defendant spent the Columbus
Day weekend at the victim’s home in Bridgeport, staying
until Monday. On Monday, October 10, 2016, after the
victim’s mother went to work, the defendant penetrated
the victim anally, made the victim perform oral sex on
him, and gave the victim a hickey on her neck. When
the victim’s mother returned from work, she discovered
the hickey on the victim’s neck. The victim initially told
her mother that she got the mark when she was playing
and roughhousing with her brother. Thereafter, the victim’s mother took her into the bathroom and demanded
to be told the truth. Ultimately, the victim acknowledged that the defendant was abusing her and was
inserted his penis into her vagina. Afterward, the defendant threatened to
take the victim away to Canada ‘‘because in Canada he would be able to
marry a minor,’’ and he stated that he ‘‘was able to do to [the victim] whatever
he wanted.’’
3
The victim testified that, following the sexual assaults by the defendant,
she had difficulty urinating and having bowel movements, and she had
trouble sleeping and experienced nightmares.
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State v. Henry B.-A.
responsible for the hickey on her neck. By the time the
victim exited the bathroom, the defendant was gone.
The victim’s mother called the police, who came to her
home and took a statement from the victim’s mother,
and the victim went to the emergency department at
Bridgeport Hospital the next day, where she underwent
a medical examination.4 While the victim was at the
hospital, the defendant came to the hospital and tried to
talk with Sergeant Paul Scillia of the Bridgeport Police
Department, who had gone to the hospital to provide
assistance regarding the victim’s complaint of sexual
abuse. Specifically, the defendant wanted to talk with
Scillia about a crime of which he thought he might be
accused. Scillia obtained information from the defendant, including his phone number and driver’s license,
of which he made a photocopy, and passed the information to the police officer who was investigating the
matter. The victim was informed of the defendant’s
presence at the hospital while she was there. When a
doctor was asking her questions at the hospital, the
victim was ‘‘[n]ervous, she was crying.’’
Subsequently, the victim met with Brenda L. Concepcion, a licensed clinical school social worker, for a
forensic interview. During that interview, the victim
reported that her cousin, the defendant, had been sexually abusing her, and she described the first sexual
assault that occurred in New York the night of the
defendant’s birthday party. The victim also was examined by Janet L. Murphy, a registered nurse who specializes in child sexual abuse. In her report regarding that
At the hospital, the victim was examined by Nurse Emma Myers, who
4
conducted a preexamination of the victim, and Dr. Thomas Lamonte, who
conducted an examination of the victim’s genital area. At that time, the
victim had bruising and bite marks on her neck, and had complained of
pain while urinating and having bowel movements. The victim also reported
pain ‘‘[a]nally, vaginally, and orally.’’ Myers testified that the victim had
‘‘physical indicators of sexual abuse,’’ even though the rest of her examination of the victim’s body appeared to be normal. Following his examination
of the victim, Lamonte did not document any abnormal findings.
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State v. Henry B.-A.
examination, Murphy noted the concerns of the victim’s
mother that, for the past four to five months, the victim
had been ‘‘staying in her room, was not eating, stopped
making herself look pretty with makeup, [has been]
having panic attacks . . . [and] was having problems
with constipation and bleeding from her rectal area
with [bowel movements].’’ In her assessment set forth
in her report, Murphy, after noting the victim’s allegations of sexual abuse by her cousin, stated that the
examination revealed ‘‘normal genitalia and anus,’’ and
that ‘‘[a] normal exam neither confirms not refutes the
possibility of sexual abuse,’’ as ‘‘[m]ost children or teens
who have experienced sexual abuse, including those
having experienced penetration, will have a normal
exam.’’ She also noted that the victim’s ‘‘[g]enital and
anal complaints’’ could ‘‘be a consequence of the alleged
sexual trauma.’’ Claudia King, an employee with the
Department of Children and Families (department),
also met with the victim and her family for the purpose
of assisting the family with any services it needed.
After October 10, 2016, the defendant no longer went
to the victim’s home for weekend visits, and the victim
had no communication with the defendant until he contacted her in December, 2017, via Snapchat. The victim
was in a classroom at school when she received the
communication, which came in the form of a text message and a short, five second video of the defendant,
both of which were admitted into evidence. The message referred to the victim by her nickname, Negrita,
stating, ‘‘it’s Zeus. I saw you, you’re beautiful. Take care
a lot. And I only ask you not to say that it was me or
to say that it was not me.’’ When the victim saw the
video and message, she had an anxiety attack and was
taken to the hospital by ambulance.
The defendant subsequently was arrested and charged
in an amended substitute information with sexual
assault in the second degree in violation of § 53a-71 (a)
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State v. Henry B.-A.
(1), risk of injury to a child in violation of § 53-21 (a)
(1), and two counts of risk of injury to a child in violation
of § 53-21 (a) (2). The case was tried to a jury. The
state presented testimony from a number of witnesses,
including, inter alia, the victim; the victim’s mother;
Scillia; Concepcion; Murphy; and King.
The state also presented expert testimony from Lisa
Melillo, a nationally certified school psychologist and
forensic interviewer. Melillo never interviewed or
examined the victim; she presented expert testimony
regarding behavioral characteristics of children after
they had been sexually abused and aspects of forensic
interviewing. She testified that it is ‘‘extremely difficult
for a child to report sexual abuse,’’ and that the child’s
abuser is often someone very well known to the child
and who is in a position of trust and authority with
respect to the child. When asked whether, if the abuser
is a relative of the child, the child can have both a
respectful relationship and a hateful relationship, she
responded in the affirmative, stating that the sexual
abuse is one aspect of the relationship and does not
define it, and that the child can still have loyalty to his
or her abuser, yet also, at times, be fearful of the abuser.
Additionally, the state introduced various exhibits into
evidence, including, inter alia, the copy of the defendant’s driver’s license Scillia had made at the hospital,
various photographs, the Snapchat message and video,
medical records of the victim, a transcript of the victim’s
forensic interview and a report summarizing the interview prepared by Concepcion, and a report by Murphy.
The jury returned verdicts of guilty on all four counts.
On June 14, 2023, the court sentenced the defendant
to a total effective term of twenty years of incarceration,
execution suspended after fifteen years, nine months
of which were mandatory, and ten years of probation
with conditions. This appeal followed. Additional facts
and procedural history will be set forth as necessary.
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State v. Henry B.-A.
On appeal, the defendant claims that he was deprived
of his due process right to a fair trial as a result of
prosecutorial improprieties that allegedly occurred during the prosecutor’s closing and rebuttal arguments.
Specifically, he contends that certain remarks of the
prosecutor improperly vouched for the credibility of
the victim, appealed to the passions and emotions of
the jurors, and referred to facts not in evidence. The
defendant further contends that the cumulative effect
of these improprieties deprived him of his due process
right to a fair trial. We address these contentions in turn.
We first set forth general principles governing our
review of claims of prosecutorial impropriety. ‘‘[W]hen
a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show . . . that the remarks were
improper . . . .’’ (Internal quotation marks omitted.)
State v. Turner, 181 Conn. App. 535, 557,
187 A.3d 454
(2018), aff’d, 334 Conn. 660,
224 A.3d 129 (2020); see
also State v. Taft, 306 Conn. 749, 762,
51 A.3d 988 (2012).
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . The two
steps are separate and distinct. . . . We first examine
whether prosecutorial impropriety occurred. . . . Second, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fairness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process violation involves a separate and distinct inquiry. . . .
‘‘[O]ur determination of whether any improper conduct by the [prosecutor] violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540,
529 A.2d 653 (1987)],
with due consideration of whether that [impropriety]
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State v. Henry B.-A.
was objected to at trial. . . . These factors include: [1]
the extent to which the [impropriety] was invited by
defense conduct or argument . . . [2] the severity of
the [impropriety] . . . [3] the frequency of the [impropriety] . . . [4] the centrality of the [impropriety] to
the critical issues in the case . . . [5] the strength of the
curative measures adopted . . . and [6] the strength
of the state’s case. . . . The question of whether the
defendant has been prejudiced by prosecutorial [impropriety] . . . depends on whether there is a reasonable
likelihood that the jury’s verdict would have been different absent the sum total of the improprieties. . . .
Under the Williams general due process standard, the
defendant has the burden to show both that the prosecutor’s conduct was improper and that it caused prejudice
to his defense. . . . The two steps of [our] analysis are
separate and distinct, and we may reject the claim if
we conclude [that] the defendant has failed to establish
either prong. . . . State v. Pernell, 194 Conn. App. 394,
403–404, 221 A.3d 457, cert. denied,
334 Conn. 910,
221
A.3d 44 (2019).
‘‘Because the claimed prosecutorial improprieties
occurred during [closing and] rebuttal . . . argument[s], we also set forth the following legal principles.
It is well established that prosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . When making closing arguments to the jury, [however, counsel] must be allowed a
generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined precisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
Thus, as the state’s advocate, a prosecutor may argue
the state’s case forcefully, [provided the argument is]
fair and based [on] the facts in evidence and the reasonable inferences to be drawn therefrom. . . .
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State v. Henry B.-A.
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence [on] jurors. . . . While the privilege of counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment [on], or to suggest
an inference from, facts not in evidence, or to present
matters [that] the jury ha[s] no right to consider. . . .
State v. Courtney G., 339 Conn. 328, 341–42,
260 A.3d
1152 (2021).’’ (Internal quotation marks omitted.) State
v. Maurice B., 228 Conn. App. 720, 726–28,
324 A.3d
850, cert. denied,
350 Conn. 929,
326 A.3d 249 (2024).
Furthermore, in cases in which defense counsel did
not object to any of the remarks that form the basis of
a claim of prosecutorial impropriety on appeal, ‘‘[o]ur
Supreme Court has explained that a defendant’s failure
to object at trial to each of the occurrences that he
now raises as instances of prosecutorial impropriety,
though relevant to our inquiry, is not fatal to review of
his claims. . . . This does not mean, however, that the
absence of an objection at trial does not play a significant role in the determination of whether the challenged
statements were, in fact, improper. . . . To the contrary, we continue to adhere to the well established
maxim that defense counsel’s failure to object to the
prosecutor’s argument when it was made suggests that
defense counsel did not believe that it was [improper]
in light of the record of the case at the time.5 . . . State
5
‘‘[U]nder settled law, a defendant who fails to preserve claims of prosecutorial [impropriety] need not seek to prevail under the specific requirements
of State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), and, similarly,
it is unnecessary for a reviewing court to apply the four-pronged Golding
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State v. Henry B.-A.
v. Ross, 151 Conn. App. 687, 694–95,
95 A.3d 1208, cert.
denied, 314 Conn. 926,
101 A.3d 271 (2014).’’ (Footnote
in original; internal quotation marks omitted.) State v.
Maurice B., supra, 228 Conn. App. 728–29. Keeping
these principles in mind, we turn to the defendant’s
claims.
I
The defendant first claims that, during closing and
rebuttal arguments, the prosecutor improperly vouched
for the credibility of the victim when the prosecutor
repeatedly referred to the defendant as ‘‘Zeus.’’ In particular, the defendant asserts that, ‘‘on no less than eight
separate occasions6 during the course of the state’s
test. . . . State v. Courtney G., supra, 339 Conn. 340 n.4.’’ (Internal quotation
marks omitted.) State v. Maurice B., supra,228 Conn. App. 729 n.12.
6
The defendant describes the eight instances as follows:
‘‘(1) In addressing, during summation, [the victim’s] claim in her testimony
that, on October 10, 2016, she was alone with the defendant at her residence
in Connecticut because the defendant’s mother and brother, who had come
to Connecticut with the defendant, had left without him and returned to
New York, the prosecutor sarcastically remarked: ‘Brenda [A.] [took] Joshua
[A.] [and they went] home . . . leaving Zeus with [the victim]’ . . . .
‘‘(2) In suggesting to the jury that the defendant had intimidated [the
victim] because the notable difference in size and stature between the
defendant and [the victim] had prevented [the victim] from even thinking
about resisting the defendant’s sexual advances, the prosecutor sarcastically
asked the jury: ‘What do you think Zeus is going to do to her [if she resisted
him]?’ . . .
‘‘(3) In addressing the purported physical injuries [the victim] claimed
the defendant’s alleged sexual abuse had inflicted on her, the prosecutor
sarcastically observed: ‘[The victim] said she had no physical problems
before April [of 2016]. No nightmares, no urinary problems, no defecation
problem. And all of a sudden in April, after Zeus went at her, she started
getting nightmares, urinary problems, defecation, stomach issues, issues in
school.’ . . .
‘‘(4) At the trial, the defense presented to [the victim], during cross-examination, a video and some spring and summer vacation photographs,
all of which had been generated during the relevant period between April
and October of 2016. The photographs and video depicted [the victim], with
either the defendant, or with members of both families, and the individuals
depicted, including [the victim], all, obviously, were shown to be happy and
smiling, and having a good time together. In commenting on the evidentiary
weight to which the prosecutor believed the jury should give that photo-
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State v. Henry B.-A.
summation, the prosecutor sarcastically ‘gave the
defendant a title,’ i.e., ‘Zeus,’ which painted [the complainant] as a victim and the defendant as a groomer
and sexual abuser of children, thereby improperly planting in the minds of the jurors the state’s endorsement
that the defendant was guilty as charged. Clearly, each
time, during his summation, that the prosecutor labelled
the defendant ‘Zeus,’ the prosecutor’s undeniable intent
was to indirectly, and improperly, vouch for the credibility of [the victim’s] testimony.’’ (Footnote added; footnote omitted.) We are not persuaded.
‘‘[Although a] prosecutor is permitted to comment
[on] the evidence presented at trial and to argue the
inferences that the jurors might draw therefrom, he is
graphic evidence, he sarcastically remarked: ‘[I]f you notice . . . those photos and their video [were] shot during the daytime, okay, when there [were]
other people around and Zeus didn’t have, you know, access to her.’ . . .
‘‘(5) In addressing the defense argument that [the victim] never reported
any of the threats which she now claimed the defendant had made to her
and her family, the prosecutor sarcastically stated: ‘[N]ow, defense counsel
has repeatedly asked [the victim], you never told [anybody] about [your]
fear . . . . I submit to you on pages 7, 15, 24 and 33 [of Concepcion’s
report] [the victim] exhibits the fear that Zeus put her through.’ . . .
‘‘(6) Toward the end of his initial argument in summation, he stated: ‘[The
victim] got victimized for six months. She got victimized in the hospital.
And for three days, we questioned her on the most private areas . . . [a]nd
at no time did she waver. . . . We have the medical evidence; we have her
in therapy. . . . It’s your decision whether to believe her or not because
the elements are there.’ He then remarked, sarcastically: ‘You only have to
find if he has sexual contact—Zeus had sexual contact with [the victim]
between April and September of 2016. . . . You find that, the defendant is
guilty as charged.’ . . .
‘‘(7) The prosecutor then concluded the initial portion of his argument
by first reminding the jury that its verdict must be based on the evidence
and, then, by telling the jury: ‘[Y]ou look at the defendant and you find
Zeus guilty’ . . . .
‘‘(8) Finally, in his rebuttal argument, in response to a claim by the defense
attacking the adequacy of the police investigation based upon, inter alia, the
failure of the police to photograph the alleged crime scenes, the prosecutor
sarcastically asked: ‘Who cares [if the police took pictures of] the room[s]?
Does that affect whether Zeus violated [the victim]?’ ’’ (Citations omitted;
emphasis in original.)
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not permitted to vouch personally for the truth or veracity of the state’s witnesses.’’ (Emphasis added; internal
quotation marks omitted.) State v. Hinds, 344 Conn.
541, 558,
280 A.3d 446 (2022); see also State v. Baltas,
311 Conn. 786, 826–27,
91 A.3d 384 (2014) (‘‘[a] prosecutor may not impermissibly vouch for a witness’ credibility by expressing his or her own personal opinion as
to the credibility of a particular witness’’ (emphasis
added)). ‘‘Such expressions of personal opinion are a
form of unsworn and unchecked testimony, and are
particularly difficult for the jury to ignore because of
the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has prepared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions. . . . We have held, however, that [i]t is not
improper for the prosecutor to comment [on] the evidence presented at trial and to argue the inferences
that the jurors might draw therefrom . . . . We must
give the jury the credit of being able to differentiate
between argument on the evidence and attempts to
persuade them to draw inferences in the state’s favor,
on one hand, and improper unsworn testimony, with
the suggestion of secret knowledge, on the other hand.’’
(Citation omitted; internal quotation marks omitted.)
State v. Elmer G., 176 Conn. App. 343, 376,
170 A.3d
749 (2017), aff’d,
333 Conn. 176,
214 A.3d 852 (2019);
see also State v. Gary S., 345 Conn. 387, 411–12,
285
A.3d 29 (2022) (‘‘A prosecutor, in fulfilling his duties,
must confine himself to the evidence in the record. . . .
[A] lawyer shall not . . . [a]ssert his personal knowledge of the facts in issue, except when testifying as a
witness. . . . Statements as to facts that have not been
proven amount to unsworn testimony, which is not the
subject of proper closing argument.’’ (Internal quotation
marks omitted.)).
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We disagree with the defendant’s assertion that the
prosecutor impermissibly vouched for the victim’s credibility when he referred to the defendant by his nickname ‘‘Zeus’’ during closing and rebuttal arguments.
First, the victim testified at trial that the defendant gave
her the nickname of ‘‘Athena’’ and referred to himself
as ‘‘Zeus, the God,’’ and the Snapchat message to the
victim from ‘‘Zeus,’’ along with the video from the
sender, were admitted into evidence. The prosecutor’s
references to the defendant as ‘‘Zeus,’’ therefore, were
based on that testimony and evidence. Second, in the
eight instances that the prosecutor referred to the
defendant as Zeus to which the defendant directs our
attention; see footnote 6 of this opinion; the prosecutor
never once made a statement that can be construed as
a statement of his personal opinion concerning the
veracity of the victim’s testimony, either directly or
indirectly. We do not agree that these references by the
prosecutor to a nickname attributed to the defendant,
alone, constituted improper vouching for the veracity
of the victim’s testimony. See, e.g., State v. Michael T.,
338 Conn. 705, 730–31,
259 A.3d 617 (2021) (prosecutor’s
rhetorical question and statements appealing to jury to
evaluate victim’s credibility—stating that ‘‘ ‘[t]he state
submits to you [that the victim’s emotions] absolutely
. . . were [real],’ ’’ and that ‘‘ ‘it is [hard] to fake emotion like you saw [in] the forensic [interview] and on
that witness stand’ ’’—were not improper, as ‘‘the statements appealed to the jurors’ common sense and life
experiences, and referred to evidence that had been
presented at trial’’); State v. Ciullo, 314 Conn. 28, 42,
100
A.3d 779 (2014) (‘‘four claimed instances of vouching
in the prosecutor’s closing argument [did] not purport
to convey the prosecutor’s personal opinion of the
credibility of the witnesses; instead, the prosecutor’s
statements, when placed in the context in which they
were made, are reasonable inferences the jury could
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State v. Henry B.-A.
have drawn from the evidence adduced at trial’’ (emphasis in original)); State v. Baltas, supra, 311 Conn. 826–27
(The prosecutor did not impermissibly vouch for the
witness’ credibility during closing argument but, rather,
‘‘merely urged the jury not to disbelieve [the witness’]
testimony solely because of her lifestyle. Such a comment did not suggest that the prosecutor ‘may have
access to matters not in evidence . . . which the jury
may infer to have precipitated the personal opinions’
. . . which is the evil this rule is designed at preventing.
A prosecutor is always free ‘to comment upon the evidence presented at trial and to argue the inferences
that the jurors might draw therefrom’ . . . which is
what the prosecutor did here.’’ (Citations omitted.)).
Finally, we note that the nickname Zeus does not
intrinsically have a negative connotation such that its
use by the prosecutor was inherently improper.7 See,
7
We note that the defendant has not directed our attention to any Connecticut authority to support his claim that the prosecutor’s references to his
nickname were improper. Rather, he asserts that, ‘‘just as it would be
improper for a defendant to be called a criminal or guilty person [at] trial,
giving a [defendant] a title that assumes the defendant’s guilt tends to
undermine the principle that the state has the burden to prove guilt beyond
a reasonable doubt.’’ (Emphasis omitted; internal quotation marks omitted.)
In his principal appellate brief, the defendant mistakenly attributes this
quoted language to our Supreme Court’s decision in State v. Thompson, 266
Conn. 440, 472–73,
832 A.2d 626 (2003). The language, instead, derives from
a decision of the Supreme Court of Oregon in State v. Sperou, 365 Or.
121, 133–34,
442 P.3d 581 (2019), in which the court stated that, ‘‘giving a
complaining witness a title that assumes a defendant’s guilt’’ undermines
the state’s burden to prove guilt beyond a reasonable doubt. (Emphasis
added.) The defendant also cites State v. Albino, 130 Conn. App. 745, 762,
24 A.3d 602 (2011), aff’d,
312 Conn. 763,
97 A.3d 478 (2014), for the proposition that, ‘‘in a case where there is a challenge as to whether a crime
occurred, repeated use of the [word] victim . . . is improper.’’ We find
Albino to be factually inapposite to the present case, in which the term
victim was not used and the nickname attributed to the defendant in no
way painted the complainant as a victim. In other words, referring to the
defendant by a nickname that was supported by testimony at trial is not
the same as referring to a complaining witness as a victim in a case in which
a dispute exists as to whether a crime occurred. Moreover, the prosecutor
did not give the defendant a title; rather, he referred to the defendant by a
nickname, which came into evidence through the testimony of the victim.
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e.g., State v. Huckabee, 41 Conn. App. 565, 573,
677 A.2d
452 (defendant’s nickname ‘‘ ‘Snake’ ’’ was not sufficiently negative to warrant limiting instruction), cert.
denied, 239 Conn. 903,
682 A.2d 1009 (1996). But see
State v. Santiago, 269 Conn. 726, 755–56,
850 A.2d 199
(2004) (The prosecutor’s repeated use of the defendant’s nickname, ‘‘ ‘Danger,’ ’’ during closing argument
was improper, especially because the prosecutor did
not use it ‘‘merely to refer to the defendant, but also
incorporated it into his argument when he stated: ‘[R]eal
danger lurked around the corner in the name of Daniel
Santiago. That’s who it is. That’s Danger.’ ’’); State v.
Thompson, 266 Conn. 440, 472–73,
832 A.2d 626 (2003)
(prosecutor’s repeated references to defendant as
‘‘ ‘killer’ ’’ stigmatized defendant and ‘‘were improper
comments on the defendant’s guilt’’); State v. Couture,
194 Conn. 530, 561, 562–63,
482 A.2d 300 (1984) (prosecutor’s statements that defendant and codefendant
were ‘‘ ‘murderous fiends,’ ‘rats,’ ‘utterly merciless killers’ and ‘inhumane, unfeeling and reprehensible creatures’ ’’ were stigmatizing, egregious and improper),
cert. denied, 469 U.S. 1192,
105 S. Ct. 967,
83 L. Ed. 2d
971 (1985); State v. Holloway,
116 Conn. App. 818, 842,
977 A.2d 750 (prosecutor’s ‘‘inappropriate and inflammatory language’’ referring to defendant as ‘‘rapist’’ was
improper), cert. denied, 294 Conn. 902,
982 A.2d 646
(2009); State v. McCarthy, 105 Conn. App. 596, 630,
939
A.2d 1195 (prosecutor’s two references to witnesses
‘‘as ‘bums’ was improper and inappropriate’’ because
‘‘[t]he term ‘bum’ is pejorative and disrespectful’’), cert.
denied, 286 Conn. 913,
944 A.2d 983 (2008). We, therefore, reject the defendant’s first claim.8
II
Next, the defendant claims9 that the prosecutor
improperly appealed to the passions and emotions of
8
‘‘Because we conclude that there was no prosecutorial impropriety as
claimed by the defendant, we need not address the Williams factors.’’ State
v. Robert B., 200 Conn. App. 637, 650,
240 A.3d 1077 (2020).
9
We address the defendant’s claims in an order different from the one
presented in his principal appellate brief.
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State v. Henry B.-A.
the jurors, and, at the same time, referred to facts not
in evidence. This claim is premised on the prosecutor’s
statements during closing argument that (1) ‘‘[the defendant] was [the victim’s] uncle and she’s Latino, she’s
supposed to respect him. . . . She cried, no one heard.
He threatened her, no one heard,’’ and (2) the victim
‘‘got victimized in the hospital.’’ The defendant also
asserts that ‘‘the prosecutor’s references during summation to the defendant as ‘Zeus’ involved a distinct element of ‘sarcasm,’ ’’ citing State v. Rizzo, 266 Conn.
171, 263–64,
833 A.2d 363 (2003), for the proposition
that ‘‘the use of needless sarcasm by the state’s attorney
called upon the jurors’ feelings of disdain, and likely
sent them the message that the use of sarcasm, rather
than reasoned and moral judgment, as a method of
argument was permissible and appropriate for them to
use. . . . It is the responsibility of the state’s attorney,
however, in the exercise of his high office, to attempt
to avoid expressing those feelings in needless and inappropriate ways. That responsibility [is] not met when
[a] state’s attorney engag[es] in excessive sarcasm in
his final argument to the jury . . . .’’ We address these
alleged instances of impropriety in turn.
We first set forth relevant legal principles that guide
our resolution of these claims. ‘‘It is well established
that a prosecutor should not appeal to the emotions,
passions and prejudices of the jurors. . . . [S]uch
appeals should be avoided because they have the effect
of diverting the [jurors’] attention from their duty to
decide the case on the evidence. . . . When the prosecutor appeals to emotions, he invites the jury to decide
the case, not according to a rational appraisal of the
evidence, but on the basis of powerful and irrelevant
factors [that] are likely to skew that appraisal. . . . It
must be acknowledged that the line between comments
that risk invoking the passions and prejudices of the
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jurors and those that are permissible rhetorical flourishes is not always easy to draw. The more closely the
comments are connected to relevant facts disclosed by
the evidence, however, the more likely they will be
deemed permissible. . . . By contrast, statements that
have no reasonable connection to evidence offered or
issues presented in a case are more likely to be deemed
improper.’’ (Citations omitted; internal quotation marks
omitted.) State v. Sullivan, 351 Conn. 798, 812,
334 A.3d
446 (2025).
‘‘[T]he prosecutor [also] has a heightened duty to
avoid argument that strays from the evidence or diverts
the jury’s attention from the facts of the case. [The
prosecutor] is not only an officer of the court, like every
attorney, but is also a high public officer, representing
the people of the [s]tate, who seek impartial justice for
the guilty as much as for the innocent. . . . By reason
of his office, he usually exercises great influence [on]
jurors. . . . [Although] the privilege of counsel in
addressing the jury should not be too closely narrowed
or unduly hampered, it must never be used as a license
to state, or to comment [on], or to suggest an inference
from, facts not in evidence, or to present matters [that]
the jury ha[s] no right to consider. . . . When making
closing arguments to the jury, [however] [c]ounsel must
be allowed a generous latitude in argument, as the limits
of legitimate argument and fair comment cannot be
determined precisely by rule and line, and something
must be allowed for the zeal of counsel in the heat of
argument.’’ (Citation omitted; internal quotation marks
omitted.) State v. Dabate, 351 Conn. 428, 451,
331 A.3d
1159 (2025).
We do not agree with the defendant that the prosecutor improperly appealed to the emotions of the jurors
and commented on facts not in evidence when he made
the statements that the victim was supposed to respect
the defendant because he was her uncle and that ‘‘[s]he
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State v. Henry B.-A.
cried, no one heard. He threatened her, no one heard
. . . .’’ First, the defendant asserts in a conclusory fashion that those statements appealed to the emotions of
the jurors, without providing an explanation or analysis
of how they did so. Second, he asserts that ‘‘there was
no evidence that [the victim] had ever cried out, wanting
to be heard, or that she had been threatened in a way
that people might have been able to hear her.’’ (Internal
quotation marks omitted.) We disagree with the defendant’s characterization of the prosecutor’s statements
and conclude that the statements were based on the
evidence in the record or reasonable inferences therefrom.
The jury had before it testimony that the victim and
the defendant had an ‘‘uncle-niece relationship.’’ The
state also presented expert testimony from Melillo regarding sexual abuse of a child when the abuser is a family
member. Melillo testified that the child who is being
sexually abused can have a respectful relationship during the daytime with the family member who is perpetrating the abuse but can be fearful of that person and
feel threatened at night. Additionally, the victim testified that she cried during some of the sexual assaults
and that the defendant had covered her mouth with his
hand. There also was testimony that the sexual assaults
occurred when a number of other individuals were
sleeping in the homes at the time, and no witness testified to having heard anything during the incidents of
sexual abuse described by the victim. The victim also
testified concerning various threats that the defendant
had made to her about keeping quiet regarding the
sexual abuse. Thus, the prosecutor’s statement that the
victim cried and no one heard her was supported by
the testimony in the record and did not suggest that
the victim cried because she wanted to be heard. The
same is true regarding the prosecutor’s statement about
the defendant’s threats; the victim testified that the
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State v. Henry B.-A.
defendant had threatened her during the assaults, when
family members were in nearby bedrooms, and there
was no testimony from anyone who was in the homes
at the time of the sexual assaults that such threats
were heard.
We also are not persuaded by the defendant’s claim
that the prosecutor improperly appealed to the jurors’
emotions and commented on facts not in evidence when
he told the jury that the victim ‘‘got victimized in the
hospital . . . .’’ We examine this statement in the context in which it was made, namely, while the prosecutor
was discussing the invasive medical examination that
the victim underwent at the hospital, after having been
sexually abused for six months. Also, while at the hospital, the victim was made aware that the defendant was
there as well, and she testified that, at that time, she
was still afraid to tell people what had happened to
her. Under these circumstances, we conclude that the
jury reasonably could have inferred from the prosecutor’s statement that the defendant continued to victimize the victim while she was at the hospital, in that his
presence there compounded the vulnerable state she
was in while undergoing an invasive medical examination.
Finally, we find no merit to the defendant’s claim
that there was an element of sarcasm in the prosecutor’s
references to the defendant as Zeus. We are unable to
discern any sarcastic tone in those references from the
transcripts of the trial. The references were based on
the victim’s testimony that the defendant used the nickname Zeus, and the transcript demonstrates that the
prosecutor, in a number of instances, merely substituted the nickname Zeus in place of referring to the
defendant.
‘‘It is well settled that [a] prosecutor may not seek
to sway the jury by unfair appeals to emotion and prejudice . . . . [O]ur Supreme Court has recognized that
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State v. Henry B.-A.
repetitive and excessive use of sarcasm is one method
of improperly swaying the fact finder. . . . Additionally, we have recognized that the excessive use of sarcasm may improperly influence a jury. . . . A prosecutor’s frequent and gratuitous use of sarcasm can [call
on] the jurors’ feelings of disdain, and likely sen[d]
them the message that the use of sarcasm, rather than
reasoned and moral judgment, as a method of argument
[is] permissible and appropriate for them to use.’’ (Internal quotation marks omitted.) State v. Turner, supra,
181 Conn. App. 565. The present case, however, does
not present such a situation. There is no support in the
record for the defendant’s claim that the prosecutor
improperly injected the trial with sarcasm. This claim,
therefore, fails.10
III
The defendant’s next claim is that the prosecutor
improperly commented on facts that were not in evidence when he suggested that the victim’s mother knew
that the defendant called himself Zeus. We are not persuaded that the challenged comment of the prosecutor
deprived the defendant of a fair trial.
The following additional facts are relevant to our
resolution of this claim. At trial, King, a department
employee, testified as a witness for the state. During
her testimony, King stated that, as part of her investigation into the allegations of sexual abuse of the victim,
she spoke with the victim’s mother, who had relayed
to King information regarding the defendant and Brenda
A. Specifically, the victim’s mother mentioned to King
that, in May or June, 2016, she had warned Brenda A.
about the defendant and the victim. The victim’s mother
also testified about this issue, stating that, sometime in
May or June, 2016, she had told King that she was
worried about the defendant and asked Brenda A. to
10
See footnote 8 of this opinion.
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State v. Henry B.-A.
watch out for her daughter. During his closing argument, the prosecutor summarized King’s testimony and
stated: ‘‘Now, you heard . . . King . . . . King testified . . . that she interviewed . . . [the victim’s
mother] . . . . And she also indicated that . . . in
May and June of 2016 . . . [the victim’s mother]
warned Brenda [A.] [to] watch the relationship of
Zeus—she didn’t say Zeus, but knew he was calling
himself Zeus other than [the victim].’’ (Emphasis added.)
The defendant asserts that ‘‘nowhere in King’s testimony does she ever say that [the victim’s mother] had
reported to [the department] a conversation with
[Brenda A.] in which [the victim’s mother] warned her
to ‘watch the relationship of Zeus.’ ’’ (Emphasis in original.) The defendant further contends that, ‘‘[n]ever
once, during either the prosecutor’s direct examination
or the [defense] cross-examination, did [the victim’s
mother] ever even hint that she had any knowledge
whatsoever, must less personal knowledge, that the
defendant had, in the past, referred to himself as
‘Zeus.’ ’’ (Emphasis in original.) The state counters by
arguing, inter alia, that, even if the prosecutor’s comment did refer to facts not in evidence, ‘‘it was an isolated misstatement that did not rise to the level of an
impropriety.’’
It is well established that ‘‘[a] prosecutor may invite
the jury to draw reasonable inferences from the evidence; however, he . . . may not invite sheer speculation unconnected to evidence. . . . A prosecutor, in
fulfilling his duties, must confine himself to the evidence in the record.’’ (Citation omitted; internal quotation marks omitted.) State v. Turner, supra, 181 Conn.
App. 560. ‘‘Statements as to facts [that] have not been
proven amount to unsworn testimony . . . . [W]hen a
prosecutor suggests a fact not in evidence, there is a
risk that the jury may conclude that he or she has
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State v. Henry B.-A.
independent knowledge of facts that could not be presented to the jury.’’ (Citations omitted; internal quotation marks omitted.) State v. Michael T., supra, 338
Conn. 720.
‘‘There is [however] a distinction between misstatement and misconduct. State v. Dawes, 122 Conn. App.
303, 314,
999 A.2d 794, cert. denied,
298 Conn. 912,
4
A.3d 834 (2010); see also State v. Orellana, [
89 Conn.
App. 71, 105,
872 A.2d 506] (isolated misstatement not
prosecutorial impropriety) [cert. denied, 274 Conn. 910,
876 A.2d 1202 (2005)]. . . . [W]e do not scrutinize each
individual comment in a vacuum, but rather we must
review the comments complained of in the context of
the entire trial.’’ (Internal quotation marks omitted.)
State v. Chankar, 173 Conn. App. 227, 255,
162 A.3d
756, cert. denied,
326 Conn. 914,
173 A.3d 390 (2017).
‘‘This court previously has recognized that closing argument and closing rebuttal argument can require counsel
to think on [their] feet and quickly recall and comment
on evidence that was presented at trial, all while also
reacting to arguments advanced by opposing counsel.
Under such circumstances, it is appropriate that counsel be afforded some leeway for minor misstatements
. . . in order to not impede counsel from zealously
advocating for clients. . . . [I]n the heat of argument,
counsel may be forgiven for hitting the nail slightly off
center but not wholly inventing facts. To conclude that
[an] isolated [misstatement] constitute[s] a prosecutorial impropriety and that the defendant suffered harm
from [it], we would need to minutely examine the prosecutor’s word choice in a vacuum, ignoring the broader
context of the whole trial. This is not an appropriate
approach to such considerations. . . . Not every misstatement constitutes impropriety.’’ (Citations omitted;
internal quotation marks omitted.) State v. Harris, 198
Conn. App. 530, 552–53,
233 A.3d 1197, cert. denied,
335 Conn. 961,
239 A.3d 1214 (2020).
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We agree with the defendant that the prosecutor
improperly commented on facts not in evidence when
he suggested that the victim’s mother knew, in 2016,
that the defendant had been referring to himself as
Zeus. ‘‘We long have held that a prosecutor may not
comment on evidence that is not a part of the record
and may not comment unfairly on the evidence in the
record. . . . A prosecutor may invite the jury to draw
reasonable inferences from the evidence; however, he
or she may not invite sheer speculation unconnected
to evidence. . . . The rationale for the rule prohibiting
the state from making such a reference is to avoid
giving the jury the impression that the state has private
information, not introduced into evidence, bearing on
the case. . . . State v. Stevenson, 269 Conn. 563, 587,
849 A.2d 626 (2004).’’ (Citation omitted; internal quotation marks omitted.) State v. Santiago,
103 Conn. App.
406, 424–25,
931 A.2d 298, cert. denied,
284 Conn. 937,
937 A.2d 695 (2007). In the present case, the prosecutor’s statement was not grounded on any evidence in the
record. Moreover, not only did the statement ‘‘wholly
[invent] facts’’; (internal quotation marks omitted) State
v. Harris, supra,198 Conn. App. 552; but it also offered
corroboration for the victim’s testimony that the defendant had used the nickname Zeus. Accordingly, we conclude that the prosecutor improperly commented on
facts not in evidence. See State v. Santiago, supra, 424–
25.
Although we agree with the defendant that the prosecutor improperly commented on facts not in evidence,
the defendant ‘‘is not entitled to a new trial on this
ground unless the prosecutor’s impropriety caused him
to suffer substantial prejudice.’’ State v. Batista, 101
Conn. App. 623, 637,
922 A.2d 1116, cert. denied,
284
Conn. 918,
933 A.2d 721 (2007). Following our review
of the relevant factors as applied to the circumstances
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State v. Henry B.-A.
of this case, we are not persuaded that the defendant’s
due process rights were violated.
In order to demonstrate substantial prejudice, the
defendant ‘‘must establish that the trial as a whole was
fundamentally unfair and that the [impropriety] so
infected the trial with unfairness as to make the conviction a denial of due process. . . . In weighing the significance of an instance of prosecutorial impropriety, a
reviewing court must consider the entire context of the
trial, and [t]he question of whether the defendant has
been prejudiced by prosecutorial [impropriety] . . .
depends on whether there is a reasonable likelihood
that the jury’s verdict would have been different [in the
absence of] the sum total of the improprieties. . . .
‘‘To aid us in determining whether prosecutorial
impropriety so infected the proceedings with unfairness
as to deprive a defendant of a fair trial, this court applies
the factors set forth in State v. Williams, [supra,204
Conn. 540]. These factors include: the extent to which
the [impropriety] was invited by defense conduct or
argument . . . the severity of the [impropriety] . . .
the frequency of the [impropriety] . . . the centrality
of the [impropriety] to the critical issues in the case
. . . the strength of the curative measures adopted
. . . and the strength of the state’s case.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Hinds, supra, 344 Conn. 563–64.
Applying these factors to the present case, we conclude that the prosecutor’s one, isolated improper statement did not deprive the defendant of a fair trial. The
impropriety, which was not invited by defense conduct
or argument, was not severe when considered in the
context of the entire trial. Notably, the impropriety ‘‘was
[not] perceived by defense counsel as being so severe
as to warrant an objection. See, e.g., State v. Weatherspoon, 332 Conn. 531, 558,
212 A.3d 208 (2019)
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State v. Henry B.-A.
(defense counsel’s failure to object to allegedly improper
comments is ‘a strong indication that they did not carry
substantial weight in the course of the trial as a whole
and were not so egregious that they caused the defendant harm’) . . . .’’ (Citation omitted.) State v. Hinds,
supra,344 Conn. 564. Moreover, the impropriety was
neither egregious nor inexcusable. See State v. Sulli-
van, supra,351 Conn. 823 (when defense counsel does
not object, request curative instructions or ask for mistrial, ‘‘only instances of grossly egregious [prosecutorial
impropriety] will be severe enough to mandate reversal’’
(internal quotation marks omitted)); State v. Sinclair,
173 Conn. App. 1, 23,
162 A.3d 43 (2017) (‘‘[b]eyond
defense counsel’s failure to object, in determining the
severity of prosecutorial impropriety, we look to
whether the impropriety was blatantly egregious or
inexcusable’’ (internal quotation marks omitted)), aff’d,
332 Conn. 204,
210 A.3d 509 (2019). It is also significant
that the impropriety was isolated and made only once.
Given the lack of eyewitnesses and physical evidence,
the central issue in this case concerned the credibility of
the victim’s testimony about the sexual abuse. Although
the defendant contends that the impropriety was central
to boosting the victim’s credibility, we are not convinced. At best, to the extent that the prosecutor’s statement provided support for the victim’s testimony about
the nickname, the impropriety was tangentially related
to the central issue. We reach this determination giving
due consideration to the fact that the victim’s testimony
that the defendant referred to himself as Zeus was but
one aspect of her extensive and detailed testimony
regarding the defendant’s alleged sexual abuse, which
spanned more than three days of trial. After the victim’s
initial testimony about the nickname, the reference to
Zeus did not arise during the trial until the state introduced the Snapchat message and video sent by the
defendant to the victim in December, 2017. Although
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State v. Henry B.-A.
the message said it was from Zeus and the defendant
disputes that he sent the message, it was accompanied
by a video, which the jurors were able to view and
determine for themselves whether the defendant was
the person in the video and, thus, the sender who identified himself as Zeus. We do not perceive the prosecutor’s isolated misstatement about the victim’s mother’s
knowledge of the nickname Zeus as affecting the jury’s
consideration of that evidence. Thus, the defendant’s
claim to the contrary notwithstanding, our review of
the transcript of the entire trial demonstrates that the
testimony about the defendant’s nickname was not central to the state’s case or to the elements of any of the
crimes of which he was convicted. Moreover, even if
we were to conclude that it was central to a critical
issue in the case, when viewed in the context of the
entire trial, the impact of the prosecutor’s improper
comment was minimal. See State v. Courtney G., supra,
339 Conn. 365.
Although no curative measures were taken by the trial
court, ‘‘the absence of such measures is attributable
to [defense counsel’s] failure to object or request any
curative instruction from the court.’’ (Internal quotation
marks omitted.) State v. Hinds, supra,344 Conn. 564;
see also State v. Sullivan, supra,351 Conn. 824 (‘‘the
defendant bears much of the responsibility for the fact
that [the] claimed improprieties went uncured because
defense counsel did not object to the prosecutor’s statements at trial’’ (internal quotation marks omitted)). The
court, however, in its instructions to the jurors, stated
that they were ‘‘the sole judges of the facts’’ and of the
credibility of the witnesses, that they had to determine
the facts on the basis of the testimony and exhibits that
had been received into evidence, and that arguments
and statements of counsel are not evidence, and our
Supreme Court has found similar instructions to be
‘‘more than adequate to counteract any harm resulting
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State v. Henry B.-A.
from . . . alleged improprieties.’’ State v. Hinds,
supra, 564; see also State v. Kenneth K.,
232 Conn.
App. 657, 667, A.3d (2025) (‘‘ ‘[b]arring contrary
evidence, we must presume that juries follow the
instructions given them by the trial judge’ ’’). In addition, the prosecutor, in his closing remarks, reminded
the jurors multiple times that his arguments were not
evidence and that the jurors should rely on their memories.
Finally, with respect to the strength of the state’s
case, although ‘‘a sexual assault case lacking physical
evidence’’ can be regarded as ‘‘not particularly strong’’;
State v. Ritrovato, 280 Conn. 36, 57,
905 A.2d 1079
(2006); we must be mindful that ‘‘[t]he sexual abuse of
children is a crime [that], by its very nature, occurs
under a cloak of secrecy and darkness. It is not surprising, therefore, for there to be a lack of corroborating
physical evidence . . . . Given the rarity of physical
evidence in [sexual assault cases involving children], a
case is not automatically weak just because a child’s
will was overborne and he or she submitted to the abuse
. . . . [Our Supreme Court has] never stated that the
state’s evidence must have been overwhelming in order
to support a conclusion that prosecutorial [impropriety]
did not deprive the defendant of a fair trial.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Courtney G., supra, 339 Conn. 365–66.
In the present case, despite the lack of physical evidence, the jury had before it other evidence in addition
to the testimony of the victim. The victim’s mother
testified regarding changes in the victim that corresponded with the defendant’s birthday party in New
York, as well as about a warning she had given to Brenda
A. regarding the defendant and the victim, which was
corroborated by King’s testimony about the warning.
The state also presented expert testimony from Melillo
about common behaviors of children who have been
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State v. Henry B.-A.
sexually abused, including how it is ‘‘extremely difficult
for a child to report sexual abuse,’’ and that when the
child’s abuser is a relative, the child can have both a
respectful relationship and a hateful relationship with
the abuser in that the child can still have a sense of
loyalty to his or her abuser, yet also, at times, be fearful
of the abuser, which was consistent with the victim’s
behaviors during the time of the sexual abuse. Additionally, the state introduced a photocopy of the defendant’s
driver’s license taken by Scillia at the hospital, as well
as Scillia’s testimony that the person who gave him the
license, the defendant, wanted to discuss a crime of
which he thought he might be accused, and the Snapchat message from Zeus and the video of the sender
were admitted into evidence for the jury to review.
The jury also had before it a transcript of the victim’s
forensic interview and Concepcion’s report summarizing that interview, as well as Murphy’s report of her
examination, all of which included the victim’s accounts
of the sexual abuse by her cousin, the defendant. Thus,
although the evidence presented by the state in the
present case was not overwhelming, we conclude ‘‘that
the state’s case was ‘not so weak as to be overshadowed’
by’’ a single improper comment made by the prosecutor.
State v. Courtney G., supra, 339 Conn. 366; see also
State v. Sullivan, supra,351 Conn. 825; State v. Gary
S., supra, 345 Conn. 420; State v. Carlos E.,
158 Conn.
App. 646, 669,
120 A.3d 1239, cert. denied,
319 Conn.
909,
125 A.3d 199 (2015).
Accordingly, we conclude that the occurrence of this
single, isolated impropriety, coupled with the failure of
defense counsel to object to the impropriety or to
request curative instructions or a mistrial, did not substantially prejudice the defendant or deprive him of a
fair trial. See State v. Sullivan, supra, 351 Conn. 825–26.
The judgment is affirmed.
In this opinion the other judges concurred.
