************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. App. 1
State v. Daren S.
STATE OF CONNECTICUT v. DAREN S.*
(AC 46859)
Elgo, Clark and Westbrook, Js.
Syllabus
Convicted of several crimes, including sexual assault in the first degree, in
connection with an incident involving his adult stepdaughter, A, the defendant appealed. He claimed, inter alia, that the trial court improperly admitted
evidence of uncharged sexual assaults he committed against A when she
was a minor. Held:
The trial court properly exercised its discretion in permitting A to testify
about three prior incidents of uncharged sexual assault against her for the
purpose of establishing the defendant’s propensity to engage in similar
aberrant sexual behavior pursuant to the exception to the hearsay rule in
a provision (§ 4-5) of the Connecticut Code of Evidence, as the charged
offense and the uncharged misconduct both involved aberrant sexual behavior and were similar in nature and circumstance to the charged conduct,
the uncharged misconduct was relevant in that it was not too remote in
time from the charged offense and was committed against the same person,
and the highly probative value of the uncharged misconduct evidence outweighed its prejudicial effect, which the court mitigated by giving the jury
a limiting instruction.
This court was not convinced that the trial court abused its broad discretion
by permitting the state to offer expert testimony about why A never reported
the defendant’s past misconduct against her, as the testimony was relevant
to the jury’s assessment of A’s credibility, and the defendant provided no
authority to support his argument that the expert’s testimony was irrelevant
simply because A’s delay in reporting pertained to only the properly admitted
uncharged misconduct evidence.
This court rejected the defendant’s unpreserved claim that his conviction
of both sexual assault in the first degree and sexual assault in the third
degree amounted to multiple punishments for the same act in violation of
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and family violence, 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.
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. App. 1 ,0 3
State v. Daren S.
his fifth amendment right against double jeopardy, there having been no
constitutional violation as required under State v. Golding (213 Conn. 233),
as those two charged crimes were separate offenses under the test set forth
in Blockburger v. United States (284 U.S. 299) because each required proof
of a fact that the other did not, and the defendant’s assertion that the
Blockburger test was not controlling lacked merit, as the sexual assault
statutes at issue and their legislative history contained no language suggesting any intent by the legislature to disallow multiple punishments if a
person uses force to compel sexual intercourse with someone he knows to
be a close relation.
The defendant could not prevail on his unpreserved claim that his conviction
of both unlawful restraint and sexual assault in the first degree violated the
fifth amendment’s prohibition of double jeopardy because his restraint of
A was merely incidental to his commission of first degree sexual assault,
as the defendant failed to show that he received multiple punishments for
the same offense.
The defendant’s unpreserved claim that the trial court erred by not giving
the jury an instruction regarding the charge of unlawful restraint similar to
that required by State v. Salamon (287 Conn. 509), was not of constitutional
magnitude, as Salamon’s holding and instructional requirement did not apply
to unlawful restraint charges, and the instruction the court did give regarding
unlawful restraint could not have misled the jury or resulted in an injustice.
Argued May 20—officially released November 18, 2025
Procedural History
Substitute information charging the defendant with
the crimes of sexual assault in the first degree, sexual
assault in the third degree and unlawful restraint in the
first degree, brought to the Superior Court in the judicial
district of New Haven, where the court, Alander, J.,
denied the defendant’s motions to preclude certain evidence; thereafter, the case was tried to the jury; verdict
and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
Kayla R. Stephen, deputy assistant public defender,
for the appellant (defendant).
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, were John P. Doyle, state’s attorney,
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. App. 1
State v. Daren S.
Kelly Davis, senior assistant state’s attorney, and Danielle M. Hottin, assistant state’s attorney, for the appellee (state).
Opinion
WESTBROOK, J. The defendant, Daren S., appeals
from the judgment of conviction, rendered following a
jury trial, of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (1), sexual assault in
the third degree in violation of General Statutes § 53a-
72a (a) (3), and unlawful restraint in the first degree in
violation of General Statutes § 53a-95. The defendant
claims that (1) the trial court improperly admitted evidence of uncharged sexual assaults of the victim, A, by
the defendant when she was a minor; (2) the court
improperly admitted expert testimony on delayed
reporting by victims of child sexual abuse because A
was an adult when the charged conduct occurred and
did not delay reporting that conduct; (3) the convictions
of sexual assault in the first degree and sexual assault
in the third degree amounted to multiple punishments
for the same act in violation of the guarantee against
double jeopardy set forth in the fifth amendment to
the United States constitution as applied to the states
through the fourteenth amendment; and (4) the conviction of unlawful restraint in the first degree cannot
stand because, consistent with our Supreme Court’s
holding in State v. Salamon, 287 Conn. 509,
949 A.2d
1092 (2008), the restraint used was merely incidental
to his commission of sexual assault in the first degree.
We reject the defendant’s claims and, accordingly,
affirm the judgment of the court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. In 2009, A’s mother, K, married the defendant,
and the defendant became A’s stepfather. K and the
defendant had four children together. When A was
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. App. 1 ,0 5
State v. Daren S.
twelve years old, the defendant started hitting, kicking,
punching, and yelling at her. At that time, A did not tell
anyone that the defendant was abusing her because the
defendant told her that, if she did, she and her siblings
would be placed in foster care where they would experience worse abuse.
One day in the summer of 2014, when A was fourteen
years old, she and the defendant went hiking together.
When they got near the top of a mountain, the defendant
began touching A over her clothing. He then pushed
her down onto the ground, unbuttoned his pants, pulled
down her pants, and penetrated her vagina with his
penis. At the time, A did not tell anyone what had
happened because she was afraid that the defendant
would hurt her, K, or her siblings.
In January, 2016, when A was fifteen years old, she
and the defendant were home alone together one afternoon while K left to pick up A’s siblings from school.
While K was gone, the defendant brought A to his room
and pushed her down onto the bed. He penetrated her
vaginally with his penis. Later that evening, because he
was upset that she had not consented to having sex,
he chased her around the house and tried to beat her.
As a result of this incident, A believed that she could not
trust people because, in her words, ‘‘[she] was running
around saying he was going to kill [her] . . . and no
one did anything about it.’’1
On December 24, 2016, when A was sixteen years
old, she stayed up late to help K and the defendant
prepare Christmas presents and decorations. That
night, after A went to bed, she was awakened by the
1
A testified at trial that the police were called but that she was unaware
of whether anything had happened to the defendant as a result. The parties
later entered into a stipulation at trial that the Hamden Police Department
does not have any record of a call for service and/or report on that date
with respect to the defendant, A, or the relevant address.
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. App. 1
State v. Daren S.
defendant touching her over her clothing in her bedroom. The defendant forced A out of her bedroom and
made her perform oral sex on him in a hallway. K was
asleep in her bedroom at the time.
Between 2016 and 2021, A participated in therapy
services, but she did not tell her therapist about what
the defendant had done to her because she was worried
about her siblings being taken away and placed in foster
care. A did, however, write about the defendant’s abuse
contemporaneously in her personal journals.
In the fall of 2018, A left for college but would return
home for breaks and due to COVID-19 shutdowns. On
January 17, 2021, A and the defendant got into an argument about washing dishes during which he followed
A into her room and choked her. K heard yelling, so
she went to A’s room and saw the defendant put his
hands on A’s shoulders and push her down onto her
bed. A called the police, but the defendant was not
arrested.
In July, 2021, A had returned from college and was
living at K’s apartment with K, her four siblings, and
the defendant. On July 18, 2021, K and the siblings were
outside in the backyard with the defendant while A
was inside the apartment in the kitchen. The defendant
entered the kitchen and started touching A over her
clothing around her breasts and genital area. A resisted,
but the defendant grabbed her right wrist and pulled
her down a hallway. A tried to pull away but was unsuccessful because the defendant was hurting her wrist.
The defendant then pulled A into his bedroom, pushed
her onto the bed, and pulled her pants and underwear
down to her knees. A was not able to get up because
the defendant had his body weight on top of her. The
defendant spit on his hand and then unbuttoned his
pants and penetrated her vagina with his penis. K
walked into the bedroom about one minute later, the
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. App. 1 ,0 7
State v. Daren S.
defendant immediately stopped, and A pulled her pants
up and ran to the kitchen. The defendant told K that
he was giving A a massage and that his shorts fell down.
K yelled at the defendant to get out of the apartment.
K then went to the kitchen and asked A whether the
defendant had penetrated her with his penis. A told K
that he had, and then K called the police to report a rape.
When the police arrived at the house, Officer Jenna
Davis of the Hamden Police Department interviewed
A. A told Davis that the defendant had forced her into
the bedroom, pushed her on the bed, and penetrated
her vagina with his penis for approximately sixty to
ninety seconds. A also told Davis that she was hesitant
to fight back because she was in fear of being further
assaulted. Davis asked A if the defendant had sexually
abused her in the past, and A told Davis that he had.
A also told Davis that K had walked into the bedroom
during the assault. During the interview, A was crying.
K, who was present for some of the interview, was
supportive.
Police officers arrested the defendant on charges of
sexual assault in the first degree in violation of § 53a-
70 (a) (1) and unlawful restraint in the second degree
in violation of General Statutes § 53a-96. Officers also
seized evidence from the scene, including sheets from
the bed, A’s clothes, the defendant’s clothes, and the
defendant’s phone. The state later obtained a buccal
swab from the defendant’s mouth.
A was transported to a hospital, where Vanessa
Dixon, a sexual assault forensic examiner nurse, administered a sexual assault kit on A. Dixon conducted a
physical examination of A, took some of her clothing,
asked her questions, and swabbed her genitals. During
Dixon’s internal examination of A’s genitals, she noted
that A had a small tear in her genitals and blood in
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. App. 1
State v. Daren S.
her cervix, and that her cervix was open. Two police
detectives interviewed A at the hospital.
On October 28, 2022, the state filed a substitute information charging the defendant in three counts. Count
one charged the defendant with sexual assault in the
first degree, alleging that, on July 18, 2021, he compelled
A to engage in sexual intercourse by the use of force.
Count two charged him with sexual assault in the third
degree, alleging that, on July 18, 2021, he engaged in
sexual intercourse with A knowing that she was his
stepchild. Count three charged him with unlawful
restraint in the first degree, alleging that, on July 18,
2021, he restrained A under circumstances that exposed
her to a substantial risk of physical injury.
The court, Alander, J., conducted a jury trial over
four days from May 31 to June 5, 2023. The state presented the testimony of Davis; A; K; Angela Vialotti, a
forensic science examiner with the state forensic laboratory; Dixon; Monica Vidro Madigan, a licensed clinical
social worker who was offered as an expert witness on
delayed reporting; and Frances Rue, a forensic science
examiner with the state forensic laboratory who conducted DNA analysis. The defendant did not testify but
presented testimony from a single witness, Anthony
Frank Campagna, a clinical psychologist who treated
A from May, 2020, through December, 2021. Campagna
testified in relevant part that, although A had discussed
the July 18, 2021 assault with him, she never reported
any incidents of prior abuse by the defendant.
On June 5, 2023, the jury returned a verdict of guilty
on all counts, which the trial court accepted and
ordered recorded. On July 31, 2023, the court sentenced
the defendant to a total effective term of fifteen years
of incarceration, two years of which were a mandatory
minimum, suspended after ten years, followed by ten
years of probation with special conditions. The court
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. App. 1 ,0 9
State v. Daren S.
also issued a standing criminal protective order that,
inter alia, prohibited the defendant from contacting the
victim. This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
The defendant first claims that the trial court improperly admitted evidence of three instances of uncharged
sexual assaults of A by the defendant when she was a
teenager. According to the defendant, any probative
value of this evidence was substantially outweighed by
the risk of undue prejudice, and the admission of the
evidence likely had a substantial impact on the jury’s
verdict. The state responds that the court, consistent
with § 4-5 (b) of the Connecticut Code of Evidence2
and State v. DeJesus, 288 Conn. 418,
953 A.2d 45 (2008),
reasonably concluded that the evidence was admissible
to demonstrate the defendant’s propensity for engaging
in aberrant sexual behavior with A, and, pursuant to
§ 4-5 (c) of the Connecticut Code of Evidence, it also
was admissible to provide relevant context with respect
to the crimes charged. We agree with the state that the
2
Section 4-5 of the Connecticut Code of Evidence provides in relevant
part: ‘‘(a) Evidence of other crimes, wrongs or acts of a person is inadmissible
to prove the bad character, propensity, or criminal tendencies of that person
except as provided in subsection (b).
‘‘(b) Evidence of other sexual misconduct is admissible in a criminal case
to establish that the defendant had a tendency or a propensity to engage
in aberrant and compulsive sexual misconduct if: (1) the case involves
aberrant and compulsive sexual misconduct; (2) the trial court finds that
the evidence is relevant to a charged offense in that the other sexual misconduct is not too remote in time, was allegedly committed upon a person
similar to the alleged victim, and was otherwise similar in nature and circumstances to the aberrant and compulsive sexual misconduct at issue in the
case; and (3) the trial court finds that the probative value of the evidence
outweighs its prejudicial effect.
‘‘(c) Evidence of other crimes, wrongs or acts of a person is admissible
for purposes other than those specified in subsection (a), such as to prove
intent, identity, malice, motive, common plan or scheme, absence of mistake
or accident, knowledge, a system of criminal activity, or an element of the
crime, or to corroborate crucial prosecution testimony.’’
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. App. 1
State v. Daren S.
court properly admitted the evidence of prior uncharged
misconduct.
The following additional facts and procedural history
are relevant to our discussion of this claim. Two months
prior to trial, the state filed notice of its intent to offer
uncharged misconduct evidence at trial regarding three
prior assaults of A by the defendant when she was
fourteen, fifteen, and sixteen years old. According to
the state, the evidence of A’s prior abuse by the defendant was admissible to show the defendant’s propensity
to engage in the type of sexual misconduct charged and
to give relevant context and to ‘‘ ‘complete the whole
picture’ ’’ for the jury.
On April 25, 2023, the defendant filed an objection and
moved to preclude the uncharged misconduct evidence.
The defendant argued that the policy rationales set forth
in DeJesus justifying the admission of evidence of
uncharged sexual misconduct was lacking in the present case; the prior misconduct was too remote in time
and had occurred while A was a minor, whereas A was
an adult when the charged crimes allegedly occurred;
and, because the uncharged misconduct involved the
same victim, it would unfairly bolster A’s credibility.
The defendant also argued that the resulting prejudice
from the admission of evidence that the defendant sexually assaulted A when she was a child would substantially have outweighed any probative value of that evidence.
Two weeks before the trial, the court conducted a
hearing regarding the uncharged misconduct evidence.
After hearing arguments from counsel, the court ruled
that evidence of the prior sexual abuse was admissible
under DeJesus, as codified in § 4-5 (b) of the Connecticut Code of Evidence, because it (1) involved the same
victim as did the charged assault, (2) involved similar
conduct as the charged assault, and (3) was not too
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. App. 1 ,0 11
State v. Daren S.
remote in time. Although the court acknowledged that
admitting the uncharged misconduct evidence could
‘‘raise the emotions’’ of the jurors, it believed that,
because the prior assaults were committed against the
same victim, the probative value of such evidence was
‘‘overwhelming . . . and outweigh[ed] any prejudicial
impact.’’ Moreover, the court concluded that it could
give the jury a limiting instruction that would help to
mitigate any prejudicial impact.
The trial court also concluded that the evidence of
the uncharged misconduct was admissible because it
helped to show the nature of the relationship between
the defendant and the victim and ‘‘completes the story.’’
The court explained that, to rule otherwise, would leave
the jury ‘‘with a vacuum as to what was the nature of
their relationship, if any, sexually, prior to age twenty-one.’’
At trial, during her direct examination, A testified
that she initially had a good relationship with the defendant but that their relationship changed after he started
physically abusing her when she was twelve years old
and then began sexually abusing her when she reached
fourteen years of age. At that point in A’s testimony,
the court gave the jury the following limiting instruction
regarding the uncharged misconduct: ‘‘[T]he state is
submitting evidence that the defendant engaged in sexual misconduct with [A] when she was a minor. The
defendant has not been charged in this case with any
offenses related to this alleged conduct. In a criminal
case such as this in which the defendant is charged
with a crime involving sexual misconduct, and in this
case—the charges in this case involve alleged sexual
misconduct when [A] was an adult . . . evidence of
other misconduct is . . . admissible and may be considered to prove that the defendant had the propensity
or tendency to engage in the type of criminal sexual
behavior with which he is charged; however, evidence
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. App. 1
State v. Daren S.
of prior misconduct on its own is not sufficient to prove
the defendant guilty of the crimes charged in the information. It is for you to determine whether the defendant
committed any uncharged sexual misconduct and, if
so, the extent, if any, to which the evidence establishes
that the defendant had the propensity or tendency to
engage in criminal sexual behavior. . . . [A]s I said,
the defendant has not been charged in this case with
any offenses related to prior misconduct that’s being
claimed here when [A] was a minor.
‘‘The [state] has also offered evidence of instances
of prior sexual misconduct between [A] and the defendant for the limited purpose of showing or explaining
the full extent of the relationship between the defendant
and [A] and to establish the complete story of what
happened to [A]. It is for you to determine, one, whether
such acts occurred, and, two, if they occurred, whether
they establish what the state . . . seeks to establish.’’
Following the limiting instruction, A provided detailed
testimony about the three prior instances of sexual
assault by the defendant that occurred in the summer
of 2014 and in January and December, 2016, and how
the defendant’s threatening behavior toward her kept
her from reporting those assaults. After A finished testifying regarding the uncharged assaults, the trial court
repeated its instruction to the jury that the defendant
was not charged with any crimes related to the alleged
assaults that occurred when the victim was a minor.
During its final charge to the jury, the trial court gave
a more detailed instruction regarding the uncharged
sexual abuse: ‘‘The state has submitted evidence that
the defendant engaged in sexual misconduct with [A]
when she was between the ages of fourteen and seventeen years old. The defendant has not been charged
in this case with any offenses related to this alleged
conduct. In a criminal case such as this, in which the
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. App. 1 ,0 13
State v. Daren S.
defendant is charged with a crime involving sexual misconduct, evidence of the defendant’s commission of
other sexual misconduct is [admissible] and may be
considered to prove that the defendant had the propensity or a tendency to engage in the type of criminal
sexual behavior with which he is charged. However,
evidence of prior misconduct on its own is not sufficient
to prove the defendant guilty of the crimes charged in
the information. It is for you to determine whether the
defendant committed any uncharged sexual misconduct and, if so, the extent, if any, to which that evidence
establishes that the defendant had the propensity or a
tendency to engage in criminal sexual behavior. The
defendant has not been charged in this case with any
offenses related to this prior misconduct. The state has
also offered evidence of instances of prior misconduct
between [A] and the defendant for the limited purpose
of showing or explaining the full extent of the relationship between the defendant and [A] and to establish
the complete story of what had happened to [A]. It is
for you to determine, one, whether such acts occurred
and, two, if they occurred, whether they establish what
the state seeks to establish. Bear in mind as you consider this evidence that, at all times, the state has the
burden of proving that the defendant committed each
of the elements of the offenses charged in the information. I remind you that the defendant is not on trial for
any act, conduct or offense not charged in the information.’’
We turn next to our standard of review and generally
applicable legal principles pertinent to the defendant’s
claim. ‘‘The admission of evidence of prior uncharged
misconduct is a decision properly within the discretion
of the trial court. . . . [E]very reasonable presumption
should be given in favor of the trial court’s ruling. . . .
[T]he trial court’s decision will be reversed only [if]
abuse of discretion is manifest or where an injustice
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. App. 1
State v. Daren S.
appears to have been done. . . . [T]he burden to prove
the harmfulness of an improper evidentiary ruling is
borne by the defendant . . . [who] must show that it
is more probable than not that the erroneous action of
the court affected the result.’’ (Internal quotation marks
omitted.) State v. Heck, 128 Conn. App. 633, 638,
18
A.3d 673, cert. denied,
301 Conn. 935,
23 A.3d 728 (2011).
‘‘Generally, [e]vidence of other crimes, wrongs or acts
of a person is inadmissible to prove the bad character,
propensity, or criminal tendencies of that person
. . . .’’ (Internal quotation marks omitted.) State v.
Daren Y., 350 Conn. 393, 418,
324 A.3d 734 (2024).
‘‘Exceptions exist, however, and [e]vidence of other
sexual misconduct is admissible in a criminal case to
establish that the defendant had a tendency or a propensity to engage in aberrant and compulsive sexual misconduct if certain conditions are satisfied. . . .
‘‘Consequently, this court has long recognized, and
our Code of Evidence has codified, that such evidence
is admissible in a criminal case to establish that the
defendant had a tendency or a propensity to engage in
aberrant and compulsive sexual misconduct if: (1) the
case involves aberrant and compulsive sexual misconduct; (2) the trial court finds that the evidence is relevant to a charged offense in that the other sexual misconduct is not too remote in time, was allegedly
committed upon a person similar to the alleged victim,
and was otherwise similar in nature and circumstances
to the aberrant and compulsive sexual misconduct at
issue in the case; and (3) the trial court finds that the
probative value of the evidence outweighs its prejudicial effect. . . .
‘‘As [our Supreme Court] acknowledged in [State v.
DeJesus, supra,288 Conn. 468], strong public policy
reasons . . . exist to admit evidence of uncharged misconduct more liberally in sexual assault cases than in
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. App. 1 ,0 15
State v. Daren S.
other criminal cases. . . . First, in sex crime cases generally, and in child molestation cases in particular, the
offense often is committed surreptitiously, in the
absence of any neutral witnesses. Consequently, courts
allow prosecutorial authorities greater latitude in using
prior misconduct evidence to bolster the credibility of
the complaining witness and to aid in the obvious difficulty of proof. . . . Second, because of the unusually
aberrant and pathological nature of the crime of child
molestation, prior acts of similar misconduct, as
opposed to other types of misconduct, are deemed to
be highly probative because they tend to establish a
necessary motive or explanation for an otherwise inexplicably horrible crime . . . and assist the jury in
assessing the probability that a defendant has been
falsely accused of such shocking behavior.’’ (Citations
omitted; internal quotation marks omitted.) Id., 418–19.
Having carefully reviewed the record in the present
case, we conclude that the trial court properly exercised
its discretion in admitting A’s testimony regarding the
three prior instances of uncharged sexual assault by
the defendant. As we previously set forth, subsection
(b) of § 4-5 of the Connecticut Code of Evidence codifies the exception, first recognized in DeJesus, that
courts may admit evidence of prior sexual misconduct
to show a defendant’s propensity to engage in similar
misconduct. The court in the present case, prior to trial,
made all the determinations required under the rule to
admit evidence of prior sexual misconduct for propensity purposes.
Specifically, the trial court was required to determine
whether the present case in which the prior misconduct
evidence was being offered ‘‘involves aberrant and compulsive sexual misconduct . . . .’’ Conn. Code Evid.
§ 4-5 (b) (1). The court properly determined that both
the charged offense and the prior uncharged misconduct involved aberrant sexual behavior. With respect
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. App. 1
State v. Daren S.
to the charged offenses, the defendant was alleged to
have physically restrained his stepdaughter and forced
her to engage in penile-vaginal intercourse. The
uncharged misconduct evidence similarly involved the
defendant having sexually assaulted his stepdaughter
while she was a minor. Such behavior clearly constitutes aberrant and potentially compulsive sexual misconduct and was sufficient to support an initial determination by the court as to the applicability of the propensity
exception in this case.
The trial court also was required to determine if A’s
testimony about the prior sexual misconduct was relevant to the offense currently charged. The relevancy
requirement is met if the prior sexual misconduct ‘‘is
not too remote in time, was allegedly committed upon
a person similar to the alleged victim, and was otherwise
similar in nature and circumstances to’’ the charged
misconduct. Conn. Code Evid. § 4-5 (b) (2). The court
properly found that each of these requirements was
met.
First, the defendant’s charged sexual assault of A
occurred when she was twenty-one years old. The prior
misconduct occurred when A was a teenager, between
the ages of fourteen and seventeen years old. ‘‘[T]he
inquiry as to remoteness is to be resolved with reference
to the period between the cessation of the prior misconduct and the beginning of the charged sexual abuse.’’
State v. Romero, 269 Conn. 481, 499 n.20,
849 A.2d
760 (2004). Accordingly, only four years had passed
between the cessation of the uncharged assaults and the
charged conduct, and the earliest misconduct occurred
only seven years prior to the charged conduct. Our
Supreme Court has upheld the admission of more
remote uncharged sexual misconduct evidence. See id.
(uncharged conduct occurring nine years prior to
charged conduct was proximate in time); see also State
v. Jacobson, 283 Conn. 618, 632–33,
930 A.2d 628 (2007)
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. App. 1 ,0 17
State v. Daren S.
(uncharged conduct occurring between six to ten years
prior to charged conduct was proximate in time). We
thus agree with the trial court that, viewing this factor
in conjunction with the other relevancy factors, the
uncharged sexual assaults of A by the defendant were
not too remote in time so as to render them inadmissible
for propensity purposes.
Second, the trial court also properly determined that
the sexual assaults were committed against ‘‘a person
similar to the alleged victim . . . .’’ Conn. Code Evid.
§ 4-5 (b) (2). Here, both the uncharged and charged
assaults were perpetrated against A. See State v. Andersen, 132 Conn. App. 125, 135,
31 A.3d 385 (2011)
(‘‘[b]ecause the prior misconduct involved the same
victim, there was no issue as to whether it was committed upon a person similar to the prosecuting witness’’),
cert. denied, 305 Conn. 906,
44 A.3d 182 (2012).
Finally, the sexual assaults at issue were sufficiently
similar in nature and circumstances. The charged conduct involved the defendant holding A down to engage
in penile-vaginal intercourse. The first and second
instances of uncharged misconduct also involved the
defendant holding down the victim and forcing penile-vaginal intercourse. The third instance involved forced
fellatio and digital penetration. Thus, all charged and
uncharged misconduct involved the defendant forcing
A to engage in a penetrative sexual act and is sufficiently
similar to uphold the trial court’s determination that
the state had satisfied the final DeJesus criteria with
respect to the uncharged misconduct. See State v.
Smith, 313 Conn. 325, 337,
96 A.3d 1238 (2014) (charged
crime and uncharged misconduct sufficiently similar
because both were sexual assaults in which defendant
choked victim).
The court next properly considered whether the probative value of A’s testimony outweighed its prejudicial
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. App. 1
State v. Daren S.
effect and provided the jury with a limiting instruction
that comported with the instruction set forth in
DeJesus, the purpose of which was to limit any prejudicial effect. See State v. DeJesus, supra,288 Conn. 474
n.36. It is axiomatic that ‘‘[t]he primary responsibility
for conducting the balancing test to determine whether
the evidence is more probative than prejudicial rests
with the trial court, and its conclusion will be disturbed
only for a manifest abuse of discretion. . . . [Accordingly, appellate] review of such rulings is limited to the
questions of whether the trial court correctly applied
the law and [whether it] reasonably could have reached
the conclusion that it did.’’ (Citations omitted; internal
quotation marks omitted.) State v. James G., 268 Conn.
382, 396,
844 A.2d 810 (2004). Although the defendant
claims that there is a strong likelihood that the admission of A’s testimony unduly aroused the jurors’ emotions and that this prejudicial effect outweighed any
probative value, we are unconvinced.3
The trial court concluded that the similarities
between the charged conduct and the prior sexual
assaults of A made the uncharged acts highly probative.
Given that the defendant was charged with sexually
assaulting his stepdaughter while his wife was in the
house, it is not likely that A’s testimony that similar
3
As explained in the commentary to § 4-3 of the Connecticut Code of
Evidence, which governs the exclusion of evidence on the ground of prejudice, ‘‘[a]ll evidence adverse to an opposing party is inherently prejudicial
because it is damaging to that party’s case. . . . For exclusion, however,
the prejudice must be unfair in the sense that it unduly arouse[s] the jury’s
emotions of prejudice, hostility or sympathy . . . or tends to have some
adverse effect upon [the party against whom the evidence is offered] beyond
tending to prove the fact or issue that justified its admission into evidence.’’
(Citations omitted; internal quotation marks omitted.) The commentary further provides that ‘‘unfair surprise [is] a factor to be weighed against the
probative value of the evidence’’ and that the court may ‘‘exclude relevant
evidence [if] its probative value is outweighed by factors such as confusion
of the issues or misleading the jury . . . .’’ (Citations omitted; internal
quotation marks omitted.) Conn. Code Evid. § 4-3, commentary.
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. App. 1 ,0 19
State v. Daren S.
acts had occurred when she was a teenager would have
unduly aroused the emotions or passions of the jurors
further. The testimony regarding the prior misconduct
was relatively brief, did not raise any distracting side
issues, and the defense was not surprised by the testimony, having been given notice that the state intended
to offer it as uncharged misconduct. Viewed in the context of the trial as a whole, we are not persuaded that the
court abused its discretion by admitting A’s testimony.
II
The defendant next claims that the trial court improperly admitted expert testimony on delayed reporting by
victims of child sexual abuse because, with respect to
the charged conduct, A was an adult and there was no
delay in reporting the charged misconduct.
The following additional facts and procedural history
are relevant to the present claim. Prior to trial, the state
filed a notice disclosing an expert to testify regarding
delayed reporting and grooming in the context of child
sexual abuse.4 The defendant filed a motion to preclude
such testimony, arguing that, because he was charged
with sexual assault of an adult and there was no evidence of delayed reporting with respect to that charge,
it was not relevant. The defendant contended that, even
if there were ‘‘some relevance’’ to the three instances of
alleged prior misconduct, allowing the proffered expert
testimony ran the risk of unfairly bolstering A’s credibility with respect to the uncharged misconduct. The court
later held a hearing on all outstanding pretrial motions
at which it denied the defendant’s motion to preclude
the expert testimony regarding delayed reporting, concluding that, having decided to admit the evidence of
4
Approximately one week before trial, the state gave notice that the expert
it had initially disclosed was no longer available and that the state would
instead call Madigan to testify consistent with the state’s initial proffer.
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. App. 1
State v. Daren S.
uncharged misconduct, the expert testimony was relevant to the jury’s evaluation of A’s credibility regarding
that evidence.5
At trial, Madigan testified on direct examination by
the state that she was not involved with A’s case and
had never met with A. She explained to the jury the
concept of delayed reporting and that a victim of child
sexual abuse will have various reasons why he or she
might delay reporting the abuse. If the victim knows
the abuser or the abuser is a family member, the child
may be afraid to disclose because of fear or threats of
5
The colloquy between the trial court and defense counsel at the hearing
was, in relevant part, as follows:
‘‘[Defense Counsel]: . . . [T]he defense [having done] a very wide search
both in this state, outside of this state, and federally, can find no instance
where an expert was allowed to testify only to a subject matter that pertains
to uncharged misconduct. . . .
‘‘The Court: . . . [T]his might be that rare case where the defendant is
not on trial for sex assault when the person was a child that they’re now
on trial for an adult sexual assault when there was prior—that’s—I’ve never
had a case like that. I’ve never had—usually at some point the child disclosed,
but they may disclose as an adult but it’s for when they were a child. So,
the fact that there’s no case law on this doesn’t necessarily mean I’m wrong
to let it in; it just means that it doesn’t usually occur this way. . . .
‘‘[Defense Counsel]: . . . Your Honor, the defense would just say that
this is not . . . this may be a special circumstance for Your Honor and
maybe others in this courtroom; however, this is not arising simply because
it’s a sexual assault case. If someone is charged with a murder through a
shooting and the defendant is faced with uncharged misconduct of a robbery,
the state is not allowed to bring in a gun expert to talk about the gun used
in the robbery. It’s just—
‘‘The Court: No, because there’s not going to be any evidence of the
robbery in the murder trial.
‘‘[Defense Counsel]: But now there’s evidence of this sexual assault and
late disclosure where that would not have taken place if it was just the
charged conduct because, again, there’s no delayed disclosure when it comes
to the charged conduct. The expert is testifying simply to the uncharged
misconduct.
‘‘The Court: Yeah, no, I understand your point. I just don’t think that’s an
argument for keeping it out. If I’m letting the uncharged misconduct in,
which I am, it then becomes relevant to issues in this case; and if I’m wrong
on the first, I’ll be wrong on this one. Anything else?
[Defense Counsel]: No, thank you, Your Honor.’’
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. App. 1 ,0 21
State v. Daren S.
ramifications to the family, including other siblings.
Such fears may continue even when the child becomes
an adult. Madigan explained that a child victim might
even choose to maintain a relationship with the perpetrator into adulthood. Madigan also testified about
grooming type behavior and its effect on victims.
On cross-examination, the defendant challenged
Madigan’s credibility as a neutral expert witness on
the basis of her training, including on how to present
forensic interview evidence before a court. She reiterated that she had never met with A, reviewed the police
reports in this case, or conducted a forensic interview.
Madigan testified that children sometimes do report
sexual abuse immediately after it occurs and agreed
with defense counsel that a report of sexual abuse is
not more likely true just because it is delayed. She also
agreed that there was no checklist of behaviors from
which a professional could conclude with certainty that
someone had in fact been sexually abused.
Regarding the law pertaining to expert testimony,
‘‘[t]he trial court has wide discretion in ruling on the
qualification of expert witnesses and the admissibility
of their opinions. . . . The test for admissibility of
expert testimony is whether (1) the witness has a special skill or knowledge directly applicable to a matter
in issue, (2) that skill or knowledge is not common to
the average person, and (3) the testimony would be
helpful to the court or jury in considering the issues.’’
(Citation omitted; internal quotation marks omitted.)
State v. Francis D., 75 Conn. App. 1, 12–13,
815 A.2d
191, cert. denied,
263 Conn. 909,
819 A.2d 842 (2003).
Because the determination of a witness’ credibility
and the weight to be accorded to his or her testimony
is solely the function of the jury as the trier of fact,
‘‘[e]xpert witnesses cannot be permitted to invade the
province of the jury by testifying as to the credibility
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. App. 1
State v. Daren S.
of a particular witness or the truthfulness of a particular
witness’ claims. . . . An expert witness ordinarily may
not express an opinion on an ultimate issue of fact,
which must be decided by the trier of fact . . . .’’ (Internal quotation marks omitted.) State v. Favoccia, 306
Conn. 770, 786,
51 A.3d 1002 (2012). ‘‘In a sexual assault
case wherein the subject of the perpetrator’s identity
is not a matter of dispute, and the defense focuses on
the credibility of the complainant, the ultimate issue
. . . [is] whether the [complainant] had been sexually
abused . . . and expert testimony vouching for the
complainant’s credibility is not helpful to the jury in
deciding [that] precise question . . . .’’ (Citations omitted; internal quotation marks omitted.) Id., 786–87.
Our Supreme Court has held that, in cases in which
‘‘defense counsel has sought to impeach the credibility
of a complaining minor witness in a sexual abuse case,
based on inconsistency, incompleteness or recantation
of the victim’s disclosures pertaining to the alleged incidents, the state may offer expert testimony that seeks to
demonstrate or explain in general terms the behavioral
characteristics of child abuse victims in disclosing
alleged incidents. . . . Such expert testimony is
admissible because the consequences of the unique
trauma experienced by minor victims of sexual abuse
are matters beyond the understanding of the average
person. . . . Consequently, expert testimony that
minor victims typically fail to provide complete or consistent disclosures of the alleged sexual abuse is of
valuable assistance to the trier in assessing the minor
victim’s credibility.’’ (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 787. Expert
testimony on delayed disclosure does not usurp the
jury’s function of assessing the credibility of witnesses,
provided ‘‘the expert was not asked about the credibility
of the particular victims in this case, nor did she testify
as to their credibility. The cases that have considered
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. App. 1 ,0 23
State v. Daren S.
this issue have noted the critical distinction between
admissible expert testimony on general or typical behavior
patterns of minor victims and inadmissible testimony
directly concerning the particular victim’s credibility.’’
(Internal quotation marks omitted.) Id., 788.
In the present case, the sole witness called by the
defendant at trial was Campagna, A’s former therapist
who testified that A never reported any past abuse by
the defendant. We agree with the state that, without
the expert testimony on delayed reporting and grooming, ‘‘the jury would have been left to evaluate the victim’s credibility based on the widely held misconception
that someone in [A’s] position would have immediately
reported the prior abuse or fought harder to prevent
the charged assault from occurring.’’ We also agree that
the defendant has provided no authority supporting
his argument that Madigan’s testimony was rendered
irrelevant simply because, in the present case, the delay
in reporting pertained only to the properly admitted
uncharged misconduct, not to the charged offenses. In
short, we are unconvinced that the trial court abused
its broad discretion by admitting Madigan’s expert testimony on the ground that it was relevant to the jury’s
assessment of A’s credibility, and, in particular, to why
she never reported the defendant’s prior misconduct.
We have considered all of the defendant’s arguments
to the contrary and reject them.
III
The defendant also claims on appeal that his conviction of sexual assault in the first degree and sexual
assault in the third degree amounted to multiple punishments for the same act in violation of his right against
double jeopardy. Although the defendant concedes that
his claim was not preserved before the trial court, he
seeks review pursuant to State v. Golding, 213 Conn.
233, 239–40,
567 A.2d 823 (1989), as modified by In re
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. App. 1
State v. Daren S.
Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).6
Although we agree with the defendant that the record
before us is adequate for review and that his claim is
of constitutional magnitude; see State v. Porter, 328
Conn. 648, 654 n.3,
182 A.3d 625 (2018); we disagree,
however, that he can prevail under Golding’s third
prong because we conclude that there was no constitutional violation. Accordingly, we reject the defendant’s
double jeopardy claim.
The double jeopardy clause of the fifth amendment
to the United States constitution, which is applicable
to the states through the due process clause of the
fourteenth amendment to the United States constitution, provides: ‘‘[N]or shall any person be subject for
the same offense to be twice put in jeopardy of life or
limb . . . .’’ U.S. Const., amend. V. ‘‘This constitutional
guarantee prohibits not only multiple trials for the same
offense, but also multiple punishments for the same
offense in a single trial. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a [two step] process, and, to succeed, the defendant must satisfy both steps. . . . First, the charges
must arise out of the same act or transaction [step one].
Second, it must be determined whether the charged
crimes are the same offense [step two]. Multiple punishments are forbidden only if both conditions are met.
. . . At step two, we [t]raditionally . . . have applied
the [test set forth in Blockburger v. United States, 284
U.S. 299, 304,
52 S. Ct. 180,
76 L. Ed. 306 (1932)
6
‘‘[A] defendant can prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40.
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. App. 1 ,0 25
State v. Daren S.
(Blockburger test)] to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both statutes in double jeopardy:
[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact which the other does not. . . .
‘‘Our case law has been consistent and unequivocal
as to whether a court may consider evidence offered
at the trial in the second step of this two step process:
the answer is a resounding no. . . . This court has
consistently held that the Blockburger test conducted
at step two is a technical one and examines only the
statutes, charging instruments, and bill of particulars as
opposed to the evidence presented at trial.’’ (Citations
omitted; footnotes omitted; internal quotation marks
omitted.) State v. Porter, supra, 328 Conn. 655–56.
As previously stated, in count one of the operative
information, the state charged the defendant with sexual assault in the first degree in violation of § 53a-70
(a) (1), which provides in relevant part that ‘‘[a] person
is guilty of sexual assault in the first degree when such
person . . . compels another person to engage in sexual intercourse by the use of force against such other
person . . . or by the threat of use of force against
such other person . . . which reasonably causes such
person to fear physical injury to such person . . . .’’
The state alleged in the information that, on July 18,
2021, the defendant had compelled A ‘‘to engage in
sexual intercourse, to wit: penile penetration of the
vaginal opening, by the use of force against [A] and/or
by the threat of the use of force against [A] which
reasonably caused [A] to fear physical injury . . . .’’
The trial court instructed the jury that, to find the defendant guilty on this count, it must find that he compelled
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. App. 1
State v. Daren S.
A to engage in sexual intercourse and that he did so
by the use of force.
Count two of the information charged the defendant
with sexual assault in the third degree in violation of
§ 53a-72a (a) (3), which provides in relevant part that
‘‘[a] person is guilty of sexual assault in the third degree
when such person . . . engages in sexual intercourse
with another person whom the actor knows to be
related to him or her within any of the degrees of kindred specified in [General Statutes §] 46b-21.’’7 The state
alleged with respect to the second count that, on July
18, 2021, the defendant ‘‘engage[d] in sexual intercourse
with [A], whom he knew was . . . his stepchild.’’ The
court instructed the jury that, to find the defendant
guilty on count two, it must find that the defendant and
A engaged in sexual intercourse and that the defendant
knew at that time that the victim was his stepchild.
The parties agree, and we concur, that the two sexual
assault convictions arose from the same transaction,
namely, the defendant’s actions on July 18, 2021, during
which he forcibly penetrated his stepdaughter’s vagina
with his penis. Accordingly, the defendant has satisfied
the first step of the double jeopardy analysis. Having
reviewed the statutes and charging instruments, however, we conclude that the two sexual assault provisions
that form the basis of the defendant’s convictions each
require proof of a fact that the other does not. Sexual
assault in the first degree, in the manner charged,
required proof of the use of force against A by the
defendant; sexual assault in the third degree does not
require a finding of use of force. Sexual assault in the
third degree in the manner charged required proof that
A was closely related to the defendant, specifically, that
7
General Statutes § 46b-21 prohibits and voids any marriage between a
person and his or her ‘‘parent, grandparent, child, grandchild, sibling, parent’s
sibling, sibling’s child, stepparent or stepchild.’’
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. App. 1 ,0 27
State v. Daren S.
she was his stepchild; sexual assault in the first degree
requires no such proof. Consequently, because each
provision requires proof of a fact which the other does
not, the Blockburger test is not met here and, therefore,
the two crimes charged are separate offenses for which
the defendant properly may be sentenced without implicating double jeopardy.
The defendant acknowledges that appellate courts
have rejected similar double jeopardy challenges to
multiple convictions for varying degrees of sexual
assault involving a single act of penetration, citing State
v. Kulmac, 230 Conn. 43,
644 A.2d 887 (1994), State v.
Carlos P., 171 Conn. App. 530,
157 A.3d 723, cert. denied,
325 Conn. 912,
158 A.3d 321 (2017), State v. Mezrioui,
26 Conn. App. 395,
602 A.2d 29, cert. denied,
224 Conn.
909,
617 A.2d 169 (1992), and State v. Russell,
25 Conn.
App. 243,
594 A.2d 1000, cert. denied,
220 Conn. 911,
597 A.2d 338 (1991). Nevertheless, he argues that the
Blockburger statutory analysis should not control here
because the legislature purportedly has expressed an
intent to disallow multiple punishments like those
imposed on the defendant, which is an argument that
was not addressed in any of the aforecited cases. This
argument lacks merit.
If the Blockburger test is not satisfied, as in the present case, ‘‘there is a presumption, albeit a rebuttable
one, that a defendant’s conviction under [different statutes] for the same transaction does not violate the double jeopardy clause.’’ State v. Wright, 319 Conn. 684,
692, 127 A.3d 147 (2015). The Blockburger test, however,
as ‘‘a rule of statutory construction . . . serves as a
means of discerning [legislative] purpose [and] the rule
should not be controlling [if], for example, there is a
clear indication of contrary legislative intent. . . .
Thus, the Blockburger test creates only a rebuttable
presumption of legislative intent, [and] the test is not
controlling [if] a contrary intent is manifest. . . . [If]
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. App. 1
State v. Daren S.
the conclusion reached under Blockburger is that the
two crimes do not constitute the same offense . . . the
defendant [retains the burden] to demonstrate a clear
legislative intent to the contrary.’’ (Citation omitted;
emphasis added; internal quotation marks omitted.) Id.,
690. The defendant fails to satisfy that burden here.
The statutes at issue contain no language that suggests any intent by the legislature, let alone an intent
that is clear and manifest, to disallow multiple punishments if a person, through force, compels sexual intercourse with someone they know to be a close relation
such as a stepchild. The defendant has not directed us
to any such statutory language or to case law construing
the statutes in this fashion. Moreover, the defendant’s
reliance on the legislative history is wholly misguided.
All that we can discern from the brief exchanges
between legislators relied on by the defendant, is that
there was an awareness that someone who had intercourse with a close relative who was also underage
faced the possibility of being charged under multiple
statutes. There is no indication in the exchanges or
in any other portion of the legislative history that the
legislature clearly intended to disallow multiple punishments, as is suggested by the defendant.
Moreover, we agree with the state that punishment
for sexual assault in the first degree and sexual assault
in the third degree pursuant to § 53a-72a (a) (3) serves
distinct legislative purposes and that, accordingly, multiple punishments are justified. Whereas the purpose
of criminalizing sexual assault in the first degree is
‘‘the protection of all persons from being compelled to
engage in sexual activity by force or threat of force’’;
(emphasis added; internal quotation marks omitted)
State v. Kulmac, supra,230 Conn. 70; sexual assault in
the third degree under § 53a-72a (a) (3) is intended
to criminalize sexual activity between close relatives,
whether coerced or consensual, the purpose being ‘‘to
0, 0 CONNECTICUT LAW JOURNAL Page 27
0 Conn. App. 1 ,0 29
State v. Daren S.
promote and protect family harmony, to protect children from the abuse of parental authority, and because
society cannot function in an orderly manner when
age distinctions, generations, sentiments and roles in
families are in conflict.’’ (Internal quotation marks omitted.) State v. John M., 94 Conn. App. 667, 693,
894 A.2d
376 (2006), rev’d on other grounds sub nom. State v.
John F.M., 285 Conn. 528,
940 A.2d 755 (2008). Because
the two statutes each have unique legislative purposes
in addition to requiring proof of different factual elements, we are satisfied that punishment under both
statutes does not offend the fifth amendment’s prohibition against double jeopardy.
IV
The defendant’s final claim is that his conviction of
unlawful restraint in the first degree should be reversed
because the act of restraint was merely incidental to
his commission of sexual assault in the first degree.
The defendant effectively seeks an expansion of our
Supreme Court’s holding in State v. Salamon, supra,287 Conn. 509. The precise nature of the defendant’s
claim and the analytical pathway he suggests that we
follow is not readily apparent from his briefing of this
claim. We, like the state, construe the defendant’s analysis as asserting either that his conviction of unlawful
restraint violates constitutional double jeopardy principles, that the court committed instructional error by
not giving a Salamon type instruction, or both. The
defendant’s claim nevertheless fails on either ground.
The defendant again acknowledges that the present
claim is unpreserved, but he seeks Golding review or,
alternatively, asks us to exercise our supervisory
authority over the administration of justice to reach the
claim. As already stated, Golding review is available
for unpreserved double jeopardy claims arising from a
single trial. See State v. Porter, 167 Conn. App. 281, 286
Page 28 CONNECTICUT LAW JOURNAL 0, 0
30 ,0 0 Conn. App. 1
State v. Daren S.
n.4, 142 A.3d 1216 (2016), aff’d,
328 Conn. 648,
182
A.3d 625 (2018). Moreover, this court has also afforded
Golding review to an unpreserved claim that a trial
court failed to give a Salamon instruction, analogizing
such an omission to ‘‘[a]n improper instruction on an
element of an offense,’’ which ‘‘is of constitutional
dimension.’’ (Internal quotation marks omitted.) State
v. Strong, 122 Conn. App. 131, 139,
999 A.2d 765, cert.
denied, 298 Conn. 907,
3 A.3d 73 (2010). For the reasons
that follow, we conclude that the defendant’s claim,
whether analyzed under double jeopardy principles or
as a claim of instructional error, fails under the third
prong of Golding because the defendant has failed to
meet his burden of showing the existence of a constitutional violation.8
Before addressing the two distinct aspects of the
defendant’s claim, our discussion will be aided by a
brief review of our Supreme Court’s decision in State
v. Salamon, supra,287 Conn. 509. In Salamon, our
Supreme Court overruled its prior, long-standing interpretation of our kidnapping statutes, pursuant to which
it previously had held that ‘‘a person who restrains
another person with the intent to prevent that person’s
liberation may be convicted of kidnapping even though
the restraint involved in the kidnapping is merely incidental to the commission of another offense perpetrated against the victim by the accused.’’ Id., 513. The
court did so after ‘‘examination of the common law of
kidnapping, the history and circumstances surrounding
the promulgation of our current kidnapping statutes
and the policy objectives animating those statutes, [and
concluded as follows]: Our legislature, in replacing a
single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from
8
Because we review both aspects of the defendant’s claim under Golding,
we do not consider whether review in this case would be warranted through
an exercise of our supervisory authority. See State v. Elson, 311 Conn. 726,
767–71, 91 A.3d 862 (2014).
0, 0 CONNECTICUT LAW JOURNAL Page 29
0 Conn. App. 1 ,0 31
State v. Daren S.
unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the
scope of the more serious crime of kidnapping and its
accompanying severe penalties those confinements or
movements of a victim that are merely incidental to
and necessary for the commission of another crime
against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant
must intend to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which is necessary to commit the other crime.
‘‘Our failure previously to recognize such an exclusion largely has eliminated the distinction between
restraints and abductions and effectively has merged
the statutory scheme such that it now closely resembles
the provision that the scheme was intended to replace.
Unfortunately, that interpretation has afforded prosecutors virtually unbridled discretion to charge the same
conduct either as a kidnapping or as an unlawful restraint
despite the significant differences in the penalties that
attach to those offenses. Similarly, our prior construction of the kidnapping statutes has permitted prosecutors—indeed, it has encouraged them—to include a kidnapping charge in any case involving a sexual assault
or robbery. In view of the trend favoring reform of the
law of kidnapping that existed at the time that our
statutes were enacted, and in light of the [stated goal
of the Commission to Revise the Criminal Statutes in
1969] of creating a modern, informed and enlightened
penal code, it is highly likely that our legislature
intended to embrace that reform, thereby reducing the
potential for unfairness that had been created under
this state’s prior kidnapping statutes.’’ (Footnote omitted.) Id., 542–44.
Whether a victim’s confinement or movement was
merely incidental to and necessary for the commission
Page 30 CONNECTICUT LAW JOURNAL 0, 0
32 ,0 0 Conn. App. 1
State v. Daren S.
of another crime depends on the facts and circumstances of each individual case, and, therefore, the issue
is one of fact for the jury, provided that ‘‘the evidence
reasonably supports a finding that the restraint was not
merely incidental . . . .’’ (Emphasis in original.) Id.,
547–48. Our Supreme Court identified the following six
factors that a jury should be instructed to consider in
deciding the factual issue: ‘‘[T]he nature and duration
of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred
during the commission of the separate offense, whether
the restraint was inherent in the nature of the separate
offense, whether the restraint prevented the victim from
summoning assistance, whether the restraint reduced
the defendant’s risk of detection and whether the
restraint created a significant danger or increased the
victim’s risk of harm independent of that posed by the
separate offense.’’ Id., 548.
The court in Salamon was careful to describe its
holding as ‘‘relatively narrow’’ and intended to directly
affect only those cases in which the state could not
‘‘establish that the restraint involved had independent
significance as the predicate conduct for a kidnapping.’’ (Emphasis added.) Id. Of particular significance
with respect to the matter before us, the court in Salamon expressly emphasized that ‘‘we do not retreat from
the general principle that an accused may be charged
with and convicted of more than one crime arising out
of the same act or acts, as long as all of the elements
of each crime are proven. Indeed, because the confinement or movement of a victim that occurs simultaneously with or incidental to the commission of another
crime ordinarily will constitute a substantial interference with that victim’s liberty, such restraints still may
be prosecuted under the unlawful restraint statutes.’’
(Emphasis added.) Id.
0, 0 CONNECTICUT LAW JOURNAL Page 31
0 Conn. App. 1 ,0 33
State v. Daren S.
A
We first turn to whether the defendant’s conviction
of both unlawful restraint and sexual assault in the first
degree violates the constitution’s prohibition against
double jeopardy. The defendant argues that the issue
here is akin to the type of double jeopardy violation that
arises from conviction of greater and lesser included
offenses. We disagree.
We set forth the principles governing our review of
double jeopardy claims in part III of this opinion and
will not repeat them in detail here. To summarize, as
previously stated, double jeopardy analysis in the context of a single trial involves a two step process. The
first step requires the defendant to show that the
charges arose out of the same act or transaction. The
second step requires the defendant to show that the
charged crimes are the same offense, which, utilizing
the Blockburger test, requires an examination of the
charged offenses to determine if each requires proof
of a fact that the other does not. If they do, then they
are not the same offense, and a defendant may be punished for both charges even if they arose out of a singular act.
Looking to the charges at issue in the present case,
we assume, without deciding, that, pursuant to the first
step of the double jeopardy analysis, the sexual assault
and unlawful restraint charges arose out of the same
act or transaction.9 The defendant must also show that
the charged crimes constitute the same offense under
9
The state disputes that the sexual assault and unlawful restraint convictions arose from the same criminal act, arguing that the sexual assault
conviction arose from the defendant’s act of penetrating A’s vagina with
his penis, whereas the unlawful restraint conviction was based on the defendant’s immediately preceding, albeit legally distinct, act of holding the victim
down onto the bed. Nevertheless, the state concedes that it is unnecessary
for us to resolve that issue because the defendant cannot prevail under the
second step of the double jeopardy analysis.
Page 32 CONNECTICUT LAW JOURNAL 0, 0
34 ,0 0 Conn. App. 1
State v. Daren S.
the Blockburger test. Our Supreme Court, in State v.
Rothenberg, 195 Conn. 253,
487 A.2d 545 (1985), rejected
a defendant’s claim that his prosecution, conviction,
and sentencing on both sexual assault in the first degree
and unlawful restraint in the first degree unconstitutionally placed him in double jeopardy. See id., 264–65. The
court, utilizing the Blockburger test, determined that
the crimes did not constitute the same offense because
each required ‘‘proof of a fact not required for conviction of the other. For a conviction of first degree sexual
assault, the state must prove compelled sexual intercourse, which is not a necessary element of the crime
of first degree unlawful restraint. For a conviction of
first degree unlawful restraint, the state must prove
exposure of the victim to a substantial risk of physical
injury, which is not a necessary element of the crime
of first degree sexual assault, since the latter crime
can be committed by threatening the safety of a third
person.’’ Id., 265. Here, as in Rothenberg, the defendant
has failed to show that he received multiple punishments for the same offense.
Moreover, to the extent that the defendant argues
that the legislature has expressed an intent to preclude
multiple punishments for sexual assault and unlawful
restraint arising out of a singular criminal act, the defendant has failed to direct our attention to any evidentiary
support for such a proposition. Nothing in the text of
the statutes supports the defendant’s position, nor has
the defendant provided any legislative history evincing
a clear legislative intent to bar multiple convictions and
punishments for sexual assault and unlawful restraint.
The defendant would have us glean the necessary legislative intent from our Supreme Court’s holding in Salamon. We reject that argument, however, because our
Supreme Court’s decision in Salamon was not founded
on double jeopardy principles regarding multiple punishments but on principles of statutory construction.
0, 0 CONNECTICUT LAW JOURNAL Page 33
0 Conn. App. 1 ,0 35
State v. Daren S.
More importantly, the Supreme Court expressly stated
that its holding did not apply to or curtail dual convictions of unlawful restraint. Simply put, to the extent
that the defendant asserts a double jeopardy violation,
we conclude that he has failed to meet his burden under
the third prong of Golding to demonstrate that a violation exists.
B
Finally, we turn to that aspect of the defendant’s
claim suggesting that the trial court committed a constitutionally significant instructional error by not giving
the jury a Salamon type instruction regarding the
charge of unlawful restraint and whether that restraint
was merely incidental to the sexual assault charges.
The defendant has failed again to demonstrate any constitutional violation.
[U]nder . . . Golding, a defendant may prevail on an
unpreserved constitutional claim of instructional error
only if, considering the substance of the charge rather
than the form of what was said, [i]t is reasonably possible that the jury was misled. . . . In determining
whether the jury was misled, it is well established that
[a] charge to the jury is not to be critically dissected
for the purpose of discovering possible inaccuracies of
statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct
verdict in the case. . . . The charge is to be read as a
whole and individual instructions are not to be judged
in artificial isolation from the overall charge. . . . The
test to be applied to any part of a charge is whether
the charge, considered as a whole, presents the case
to the jury so that no injustice will result. . . . Furthermore, [a] jury instruction is constitutionally adequate
if it provides the jurors with a clear understanding of
the elements of the crime charged, and affords them
proper guidance for their determination of whether
Page 34 CONNECTICUT LAW JOURNAL 0, 0
36 ,0 0 Conn. App. 1
State v. Daren S.
those elements were present.’’ (Internal quotation
marks omitted.) State v. Aponte, 63 Conn. App. 82, 85–
86, 774 A.2d 1035 (2001), aff’d,
259 Conn. 512,
790 A.2d
457 (2002).
The defendant has failed to demonstrate that the trial
court’s instruction regarding unlawful restraint could
have misled the jury or resulted in an injustice. We
agree with the state that, to the extent the defendant
has framed his claim as one of instructional error premised on the holding in Salamon, it fails because, as we
have explained in part III A of this opinion, by its express
terms, Salamon’s holding and instructional requirements do not apply to unlawful restraint charges. The
court in Salamon was concerned with making sure that
a defendant was charged with the additional serious
crime of kidnapping only in those cases in which a jury
found additional movement or asportation of a victim
that had ‘‘independent criminal significance . . . .’’
State v. Salamon, supra,287 Conn. 547. As our Supreme
Court explained in Hinds v. Commissioner of Correction, 321 Conn. 56,
136 A.3d 596 (2016), ‘‘[t]he court in
Salamon indicated that unlawful restraint, not kidnapping, would be the proper charge in the absence of such
independent significance.’’ Id., 90. This court lacks the
authority to alter or reevaluate existing Supreme Court
precedent and, accordingly, this is not the appropriate
forum for the defendant’s arguments to expand the
holding of Salamon in a manner seemingly inconsistent
with that precedent. See, e.g., State v. Joseph, 174 Conn.
App. 260, 282 n.16,
165 A.3d 241 (‘‘As an intermediate
appellate body, it is axiomatic that this court is bound
by Supreme Court precedent and [is] unable to modify
it . . . . [W]e are not at liberty to overrule or discard
the decisions of our Supreme Court . . . . [I]t is not
within our province to reevaluate or replace those decisions.’’ (Internal quotation marks omitted.)), cert.
denied, 327 Conn. 912,
170 A.3d 680 (2017).
0, 0 CONNECTICUT LAW JOURNAL Page 35
0 Conn. App. 1 ,0 37
State v. Daren S.
The defendant cannot establish a constitutional violation arising from the court’s jury instruction and, in
particular, its failure to give a Salamon like instruction
in a nonkidnapping prosecution. Accordingly, this
aspect of the defendant’s claim also fails under the third
prong of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
