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STATE OF CONNECTICUT v. ROBERT R.*
(SC 20355)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
Convicted of sexual assault in the first degree in connection with the sexual
abuse of M, the stepsister of the defendant’s girlfriend, S, the defendant
appealed. At trial, M testified that the defendant had sexually assaulted
her on four occasions, the first three of which occurred when M was
a minor and the defendant was in his twenties. The fourth incident,
which led to the defendant’s conviction, occurred when M was eighteen
years old. With respect to the latter incident, M testified that she was
home alone when the defendant knocked on the door and that, after
she asked him to leave, the defendant entered the home, grabbed her
arm, pushed her toward the living room couch, and sexually assaulted
her. M further testified that, after the defendant was startled by an
outside noise, he went into the kitchen, where he ejaculated into a paper
towel that he threw into a garbage can. At trial, the defendant denied
that he ever sexually assaulted M, but he admitted to having consensual
sex with her during that incident. He also denied that he ejaculated into
a paper towel and threw it in the garbage. N, a forensic biologist, testified
at trial regarding tests she conducted on the paper towel, which M had
provided to the police shortly after the incident. N testified that those
tests revealed the presence of semen but were negative for spermatozoa.
P, a forensic science examiner, testified that tests she performed on
the paper towel revealed the presence of the defendant’s skin cells but
were inconclusive as to whether his sperm cells were also present.
Neither N nor P could indicate how the various substances came to be
on the towel. During closing arguments, defense counsel focused on
attacking M’s credibility and exposing her motive to falsely accuse the
defendant. Specifically, defense counsel attempted to present the defendant’s theory of the case that M had planted evidence by wiping herself
with the paper towel after engaging in a consensual sexual encounter
with the defendant and then presenting that paper towel to the police.
The trial court nevertheless sustained the prosecutor’s objection and
precluded defense counsel from making that argument, concluding that
it was not supported by any evidence in the record. On appeal, the
defendant contended, inter alia, that the trial court had violated his
constitutional right to the assistance of counsel by precluding defense
counsel from arguing to the jury that M had planted physical evidence
on the paper towel in an effort to falsely accuse the defendant. Held:
1. The trial court improperly precluded defense counsel from arguing to the
jury during closing argument that M had planted physical evidence on
the paper towel in an effort to substantiate her false allegations against
the defendant, in violation of the defendant’s constitutional right to the
assistance of counsel, and, accordingly, this court reversed the judgment
of conviction and remanded the case for a new trial:
a. The trial court improperly restricted the scope of defense counsel’s
closing argument by barring him from presenting the defendant’s theory
of the case, as there was sufficient evidence in the record from which
the jury reasonably could have inferred that M planted the evidence on the
paper towel to substantiate her false allegations against the defendant:
defense counsel relied on reasonable inferences from the facts in evidence, including the conflicting testimony of M and the defendant regarding the incident and whether the defendant ejaculated into the paper
towel, testimony that it was M who provided the paper towel to the police,
the testimony of N and P regarding their findings, and the testimony of
one of M’s stepsisters that M had a history of making false claims;
moreover, the evidence presented at trial, namely, that M had a tumultuous relationship with her family, that she had a history of making false
claims, and that she had been engaged in a consensual romantic relationship with the defendant, who married S only months after the incident
in question, provided a basis for the jury to reasonably infer that M had
a motive for planting evidence of the defendant’s DNA on the paper towel.
b. The trial court’s improper limitation on the scope of defense counsel’s
closing argument deprived the defendant of his constitutional right to
the assistance of counsel, and, accordingly, the defendant was entitled
to a new trial; M’s testimony was the only source of evidence from which
the jury reasonably could have concluded that the sexual encounter
with the defendant was not consensual, the only argument presented by
defense counsel to establish reasonable doubt as to the defendant’s guilt
concerned M’s credibility, and, because the evidence regarding the paper
towel provided the strongest evidence, from the defendant’s perspective,
that M lied about the incident, depriving defense counsel of the opportunity to make that argument was to deprive the defendant of the full and
fair participation of his counsel in the adversary process.
2. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of sexual assault in the first degree
on the ground that the state failed to prove that he used force or the
threat of force; M’s testimony with respect to the alleged sexual assault,
including that the defendant grabbed her arm, pushed her toward the
couch, removed her underwear, and inserted his penis inside of her as
she tried to push him off and protested, was sufficient to establish the
force element required for a conviction of first degree sexual assault.
3. This court declined to address the defendant’s claim that the trial court
had abused its discretion in admitting the testimony of an expert in
the field of child and adolescent sexual abuse, insofar as the expert’s
expertise was in child sexual abuse and M was eighteen years old
when the incident at issue occurred; although it was possible that the
defendant’s claim would arise during the defendant’s new trial if the
prosecutor elected to call the same expert, the trial court may further
evaluate the issue on remand, as the prosecutor may call that expert
and probe her experience in working with eighteen year olds or may
call a different expert, in which case the record would look different
from the one presently before this court.
Argued May 6—officially released August 6, 2021**
Procedural History
Substitute information charging the defendant with
three counts of the crime of risk of injury to a child,
and with one count each of the crimes of sexual assault
in the first degree and sexual assault in the second
degree, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before Russo,
J.; verdict and judgment of guilty of sexual assault in
the first degree, from which the defendant appealed.
Reversed; new trial.
Cameron L. Atkinson, with whom, on the brief, were
Norman A. Pattis, Kevin Smith and Zachary Reiland,
for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, and Ann F. Lawlor, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
McDONALD, J. The defendant, Robert R., appeals
from the judgment of conviction, rendered after a jury
trial, of one count of sexual assault in the first degree.
On appeal, the defendant claims that (1) the trial court
violated his sixth amendment right to the assistance of
counsel by precluding defense counsel during closing
argument from arguing to the jury that the complainant,
M, had planted physical evidence on a paper towel in
an effort to substantiate her false allegations against
the defendant, (2) there was insufficient evidence to
prove that the defendant used force or the threat of
force, as required to sustain his conviction of sexual
assault in the first degree, and (3) the trial court improperly admitted expert testimony from a witness who
specializes in child and adolescent sexual abuse. We
agree with the defendant with respect to his first claim
and, accordingly, reverse the judgment of conviction.
The jury reasonably could have found the following
relevant facts. When M was twelve years old, she moved
to Bridgeport to live with her father, Louis, stepmother,
Dora, and stepsister, Isabelle. Another of M’s stepsisters, Stephanie, was dating the defendant. Stephanie
and the defendant lived together down the street from
Louis and Dora. At the time M moved to Bridgeport,
the defendant was in his mid-twenties. M testified that
the defendant sexually assaulted her on multiple occasions and exposed her to sexually inappropriate situations when she was between the ages of thirteen and
eighteen years old. Specifically, M testified to four
incidents.
The first incident described by M occurred when she
was thirteen years old. One evening, the defendant came
to M’s house because he had an argument with Stephanie. Louis told the defendant that he could ‘‘stay on
the couch.’’ M testified that, when she brought the
defendant a blanket, he ‘‘touch[ed] [her] butt,’’ followed
her to her bedroom, and sexually assaulted her. M testified that, the next morning, the defendant sexually
assaulted her a second time in her bedroom. M told
Louis about the sexual assaults, and Louis and Dora
then took her to Bridgeport Hospital. M ultimately left
the hospital before being examined by a physician.
Louis’ testimony regarding this incident, however, varied from M’s. He testified that, on the evening in question, he and the defendant were watching wrestling and
drinking beer in the living room. The defendant went
upstairs to use the bathroom. Louis recalled that he
went upstairs and found the defendant, fully clothed,
looking in on M while she slept. He then told the defendant to ‘‘get the hell out,’’ and the defendant left the
house. Louis also testified that he found the defendant
hiding in the closet in M’s bedroom one morning but
could not recall if it was the morning after he first found
the defendant looking in on M.
M also recounted a second incident. She testified
that, when she was thirteen years old, the defendant
asked her to send him nude pictures of herself. M testified that she complied and that the defendant then
sent her a nude picture of himself. Isabelle, however,
testified that she was present when the defendant and
Stephanie informed Louis that M had been sending the
defendant nude pictures of herself. Isabelle also testified that she did not know anything about the defendant
sending pictures to M. Finally, Isabelle recalled that M
had a history of ‘‘making false claims.’’
M described a third incident that occurred when she
was fourteen or fifteen years old. M testified that, one
night, when her friend, V, slept over at her house, the
defendant came into M’s bedroom, removed her clothes,
and sexually assaulted her. V confirmed that she regularly slept over at M’s house. She stated that, during
the sleepovers, she would sleep in M’s twin bed with
M. V testified, however, that she did not recall the defendant ever entering M’s bedroom while she slept over.
Finally, M testified that a fourth incident occurred
on July 28, 2016, when M was eighteen years old. Specifically, M recounted that, after returning home from a
summer program at a nearby university, she let her dog
out into her fenced in backyard. Shortly thereafter, the
defendant knocked on the front door. When M opened
the door, she saw the defendant holding her dog, and
he explained that he found the dog down the street
from M’s house. M took the dog from the defendant,
and the defendant asked M where Louis was. M
responded that he had not arrived home from work. M
then asked the defendant to leave because Louis did
not want him there when M was home alone. M testified
that the defendant, instead of leaving, kept inching into
the home, until he grabbed M’s arm, pushed her toward
the living room couch, and sexually assaulted her. M
testified that, during the assault, ‘‘I was trying to push
him off me with my arms, but he kept holding [them]
down, so I kept turning my body like this, with my
knees, trying to push him off me, and he didn’t want
to get off. And I was yelling, help, can you stop, can
you get off me, and then he didn’t want to get off me.’’ M
testified that the defendant ended the assaultive sexual
intercourse with her suddenly when he was startled by
a car pulling out of a neighbor’s driveway. According
to M, the defendant got off of her, went into the kitchen,
began to masturbate, ejaculated into a paper towel,
threw the paper towel into a garbage can, and left.
Following the assault, M called Louis and told him
what had just transpired. She also texted Isabelle that
the defendant had ‘‘touched’’ her and that she ‘‘fe[lt]
disgusted.’’ The police were subsequently called, and
M reported the incident to officers on the scene and
provided them with the paper towel into which she
claimed the defendant had ejaculated. M was then taken
by ambulance to the hospital, where medical personnel
performed a physical examination and administered a
sexual assault evidence collection kit. The defendant
was interviewed by the police and denied having any
sexual contact with M.
In connection with the allegations made by M, the
state charged the defendant with one count of sexual
assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (1), one count of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2), and two counts of
risk of injury to a child in violation of § 53-21 (a) (1).
At trial, the defendant testified in his own defense.
He denied each allegation, stating that he never sexually
assaulted M. The defendant, however, did admit to having consensual sex with M on July 28, 2016, when she
was eighteen years old, a claim that he denied when
he was initially questioned by the police. He explained
to the jury that he lied to the police initially because
he was being interviewed within earshot of Stephanie,
and she did not know at that point that he had ‘‘cheat[ed]
on’’ her with M. The defendant testified that he began
having consensual, physical encounters with M in
March, 2016. He stated that the encounters began with
‘‘romantic conversations’’ in the car, then progressed
to making out, and eventually led to the two having
consensual sex. The defendant testified that they had
consensual sex on two occasions: first, approximately
one week prior to the July, 2016 incident in M’s home,
and, the second time, on July 28, 2016.
With respect to the July 28, 2016 incident, the defendant testified that he had found M’s dog on the street
and took it back to her house. When M opened the
door, she hugged him, and they began to kiss. According
to the defendant, things quickly progressed, and the two
began having sex against the doorway. The defendant
testified that, shortly after moving to the couch, he
became self-conscious, realizing that this was the time
that Louis typically arrived home from work, and he
was worried that Louis would walk in on them. The
defendant further testified that, as a result, he ended
the encounter, left the house, and went home. The
defendant specifically denied M’s claim that he ejaculated into a paper towel and threw it in the garbage
can, explaining that, after he stopped having sexual
intercourse, he just pulled up his pants and left. He
also testified that M did not seem upset when he left
the house.
Jennifer Nelson, a forensic biologist, also testified at
trial. Nelson testified that she analyzed the bodily fluids
found on the paper towel at the state forensic laboratory. Specifically, she conducted tests on the paper
towel, looking for the presence of semen and spermatozoa.1 These tests revealed the presence of semen on
the paper towel but were negative for spermatozoa.
Nelson testified that she did not know how the substances came to be on the paper towel. Angela Przech,
who works as a forensic science examiner at the state
forensic laboratory, testified that she performed DNA
testing on a stain found on the paper towel. Przech’s
testing revealed that the defendant’s DNA profile was
included in a DNA mixture found in an epithelial fraction sample of the stain.2 Przech testified that she
assumed that M was the other DNA contributor. Regarding the DNA profile found in the sperm-rich fraction
sample, M was eliminated as a source, and the defendant’s ‘‘profile was inconclusive when compared to the
evidentiary sample.’’ In short, Przech’s testing revealed
that the defendant’s skin cells were on the paper towel,
but her testing was inconclusive as to whether his sperm
cells were also present. Przech also testified that she
did not know how the substances came to be on the
paper towel.
The jury ultimately found the defendant guilty of sexual assault in the first degree in connection with the
events of July 28, 2016, and not guilty of the remaining
charges. The court sentenced the defendant to a total
effective sentence of twenty years’ incarceration, two
of which are the mandatory minimum, suspended after
eight years, and ten years of supervised probation. This
appeal followed. Additional facts will be set forth as
necessary.
I
We first consider the defendant’s claim that the trial
court improperly precluded defense counsel during
closing argument from arguing to the jury that M had
planted physical evidence on the paper towel in an
effort to substantiate her false allegations against the
defendant, thereby violating the defendant’s right to the
assistance of counsel under the sixth amendment to
the United States constitution.
During closing argument, defense counsel focused
on attacking M’s credibility and exposing her motive
to falsely accuse the defendant. Specifically, with
respect to the events of July 28, 2016, defense counsel
‘‘attempted to present [his] theory that [M] wiped her
genitals with the paper towel after the defendant left
. . . following their consensual, sexual encounter, and
then presented that paper towel to the police in an
effort to manufacture evidence to support her false
claim that the intercourse was not consensual, but sexual assault.’’ Specifically, the following exchange transpired:
‘‘[Defense Counsel]: So, when you look at that event,
you know, July 28, 2016, [M’s] version is—is not—is
not credible. And I should say it isn’t a competition
between which version you find more credible. It is
whether . . . the evidence that’s presented here con-
vinces you beyond a reasonable doubt. And, again, the
judge will instruct you as to what that means, but it
means more than possibly or probably.
‘‘And with respect to the evidence with the paper
towel, you heard . . . Nelson testify that they did not
find sperm on that towel, they found components of
semen. And I did ask her, wouldn’t you expect to find
sperm on there if there was ejaculate on there? She
said, well, not necessarily, or something along those
lines. But—and you heard [the defendant] testify, I
never touched a paper towel, he doesn’t know what
they’re talking about. Well, then, how does [his] DNA
get on the paper towel? And the answer is it comes
from [M]. That’s her house, her kitchen. And—
‘‘[The Prosecutor]: I’m going to object, Your Honor;
there was no evidence to that.
‘‘The Court: [Defense counsel]?
‘‘[Defense Counsel]: It’s argument, Your Honor.
‘‘The Court: I don’t think there was any evidence in
the record of what you are explaining to the jury now.
I’m going to sustain the state’s objection.
‘‘[Defense Counsel]: Very good, Your Honor. So, again,
the case comes down to credibility, and the center of
the state’s case is the complaining witness, [M], and
her testimony is not credible, certainly not credible
enough to remove the state’s burden of [proof] beyond
a reasonable doubt.’’ (Emphasis added.)
During the state’s rebuttal closing argument, the prosecutor focused on bolstering M’s credibility and attacking
the defendant’s credibility. The prosecutor also highlighted M’s testimony regarding the paper towel. Specifically, the prosecutor stated: ‘‘[M] told us how a
neighbor was pulling out of the driveway, [she and the
defendant] could hear the neighbor pulling out of the
driveway. The driveway, according to [M], was right
next to the—or abutted the living room in the home.
And the defendant heard that, jumped up, ejaculated
into a paper towel in the kitchen, which is a big, open
room, and left.’’
The defendant contends that defense counsel’s argument, that M planted the defendant’s DNA on the paper
towel, was consistent with the physical evidence collected from the paper towel and the defendant’s testimony. Had defense counsel been allowed to argue that
M planted the evidence on the paper towel, the defendant claims, M’s ‘‘credibility would have been further
challenged.’’ In short, the defendant contends that the
state had the opportunity to fully present its theory of
the case to the jury but that he was not afforded the
same opportunity.
The state disagrees and contends that the defendant’s
claim on appeal ‘‘is meritless because there was no
evidence before the jury from which it reasonably could
have concluded that the semen stains found on the
paper towel were put there by M.’’ Therefore, the state
argues, ‘‘the trial court properly precluded [defense
counsel] from urging the jury to reach a conclusion
based solely on speculation.’’ Alternatively, the state
contends that, even if the trial court’s ruling was
improper, it did not deprive the defendant of his sixth
amendment right to the assistance of counsel.
We begin with the standard of review and relevant
legal principles. ‘‘The sixth amendment guarantee in
the federal constitution of the right to assistance of
counsel has been held to include the right to present
closing arguments.’’3 (Internal quotation marks omitted.) State v. Ames, 171 Conn. App. 486, 516,
157 A.3d
660, cert. denied,
327 Conn. 908,
170 A.3d 679 (2017).
As the United States Supreme Court has explained,
‘‘[t]here can be no doubt that closing argument for the
defense is a basic element of the adversary [fact-finding]
process in a criminal trial. Accordingly, it has universally been held that [defense counsel] has a right to
make a closing summation to the jury, no matter how
strong the case for the prosecution may appear to the
presiding judge.’’ Herring v. New York,
422 U.S. 853,
858,
95 S. Ct. 2550,
45 L. Ed. 2d 593 (1975).
‘‘In general, the scope of final argument lies within
the sound discretion of the court . . . subject to appropriate constitutional limitations. . . . It is within the
discretion of the trial court to limit the scope of final
argument to prevent comment on facts that are not
properly in evidence, to prevent the jury from considering matters in the realm of speculation and to prevent
the jury from being influenced by improper matter that
might prejudice its deliberations. . . . [Although] we
are sensitive to the discretion of the trial court in limiting argument to the actual issues of the case, tight
control over argument is undesirable when counsel is
precluded from raising a significant issue.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Arline,
223 Conn. 52, 59–60,
612 A.2d 755 (1992).
Although defense counsel may not make speculative
arguments to the jury, we have explained that ‘‘counsel
may comment [on] facts properly in evidence and [on]
reasonable inferences drawn therefrom.’’ (Emphasis
added.) State v. Kinsey,
173 Conn. 344, 348,
377 A.2d
1095 (1977).
It is beyond dispute that, ‘‘[i]f the trial court denies
the defendant an opportunity to give closing arguments,
the reviewing court should grant a new trial.’’ State v.
Plaskonka,
22 Conn. App. 207, 211,
577 A.2d 729, cert.
denied,
216 Conn. 812,
580 A.2d 65 (1990). We have
gone further and held that ‘‘[t]he right to present a
closing argument is abridged not only when a defendant
is completely denied an opportunity to argue before
the court or the jury after all the evidence has been
admitted, but also when a defendant is deprived of the
opportunity to raise a significant issue that is reasonably
inferable from the facts in evidence. This is particularly
so when . . . the prohibited argument bears directly
on the defendant’s theory of the defense.’’ State v.
Arline, supra,
223 Conn. 64.
Here, defense counsel’s closing argument focused on
attacking M’s credibility and exposing her motive to
falsely accuse the defendant of sexual assault. Defense
counsel sought to present his theory of the case to the
jury—that M had planted the evidence on the paper
towel by wiping herself following a consensual, sexual
encounter with the defendant. It is clear to us that this
argument was proper because it is based on reasonable
inferences from facts in evidence. Contrary to the trial
court’s conclusion that there was no evidence in the
record to support the argument, we conclude that
defense counsel’s argument relied on reasonable inferences from the following evidence: (1) M’s testimony
that the defendant ejaculated into the paper towel following the alleged sexual assault; (2) testimony from
both M and an officer who responded to the scene that
M provided the paper towel to the police; (3) Nelson’s
testimony that no spermatozoa were present on the
paper towel; (4) Przech’s testimony that she assumed
that the DNA found on the paper towel matched M’s;
(5) the defendant’s testimony denying M’s claim that
he ejaculated into a paper towel and his version of
events that, after he stopped having sex, he just pulled
up his pants and left; (6) the fact that only M and the
defendant were home at the time of the incident; and
(7) according to at least one witness, M had a history
of ‘‘making false claims.’’
Moreover, the jury reasonably could have concluded,
on the basis of various testimony throughout trial, that
M’s relationship with her family was strained and that
M and the defendant were engaged in a romantic, consensual relationship. For example, M testified that she
was worried that Louis would not believe her about the
July 28, 2016 assault because she and Dora did not
have a good relationship. The nature of M and Dora’s
relationship was confirmed by Dora, who testified that
she ‘‘tried to have a relationship with [M], but she never
let me in,’’ and that M told her many times, ‘‘you’re not
my mother.’’ Dora also told the police that M was ruining
her relationship with Louis. Additionally, Isabelle testified that she was aware of ‘‘a history of [M] making
false claims.’’ For her part, Stephanie testified that she
does not speak to Louis and they are not on good terms
as a result of the July 28, 2016 incident. These facts
provided a basis for the jury to reasonably infer that
M had a motive for planting the defendant’s DNA on
the paper towel.
As to the nature of the relationship between M and
the defendant, the defendant testified that, in March,
2016, he and M began ‘‘having romantic conversations,’’
they began ‘‘getting intimate,’’ and were in a ‘‘romantic
relationship . . . .’’ The defendant also testified that,
by July, 2016, he and M ‘‘were already in a relationship,
and not a relationship as boyfriend and girlfriend, more
as we were making out type stuff.’’ Indeed, during her
rebuttal closing argument, the prosecutor emphasized
the defendant’s characterization of the nature of his
relationship with M as a ‘‘love affair . . . .’’ Finally, the
defendant testified that he was engaged to Stephanie
and ultimately married her just three months after M
alleged that he had sexually assaulted her. Again, these
facts tended to make reasonable the defendant’s theory
regarding the paper towel.
It would not have been an unreasonable inference
for the jury to conclude that M had planted the evidence
on the paper towel after the sexual encounter with the
defendant ceased, either because of her tumultuous
relationship with her family or because she was romantically interested in the defendant and was not happy
that he was engaged to Stephanie. Moreover, regardless
of her motive for allegedly planting the evidence, the
jury was presented with two versions of events based
solely on the testimony of M and the defendant. M
testified that the defendant ejaculated into a paper
towel. The defendant testified that he did not. Given
that it is undisputed that the only two people in the
home at the time of the alleged sexual assault were M
and the defendant, if the jury accepted the defendant’s
testimony that he did not ejaculate into a paper towel,
it would not have been an unreasonable inference to
conclude that the only other way the defendant’s DNA
could have gotten on the paper towel was by M’s act
of placing it there. To be sure, it is no less reasonable
than an inference that the defendant ejaculated into
the paper towel. As the prosecutor conceded at oral
argument, Nelson and Przech did not testify that it was
more likely than not that the defendant’s DNA ended
up on the paper towel as a result of the defendant’s
ejaculating into it. They both testified that they did not
know how the defendant’s DNA came to be on the
paper towel. Thus, the jury’s determination as to how
the defendant’s DNA came to be on the paper towel was
based solely on the testimony of M and the defendant.
Defense counsel’s argument was not ‘‘sheer speculation’’
or ‘‘rhetorical advocacy’’; (internal quotation marks
omitted) State v. Manley,
195 Conn. 567, 580,
489 A.2d
1024 (1985); rather, it was based on logical inferences
from the facts as presented to the jury if it credited the
defendant’s testimony.
In Arline, we ‘‘agree[d] with the reasoning of the
Maine Supreme [Judicial] Court in State v. Liberty,
498
A.2d 257 (Me. 1985).’’ State v.
Arline, supra,
223 Conn.
65 n.11. In Liberty, the Maine high court concluded that
the trial court erred in restricting defense counsel from
arguing in summation certain evidence that had been
admitted without objection. State v.
Liberty, supra, 258.
The court explained: ‘‘In a closing argument each party
should be permitted to summarize the case from the
perspective of that party’s interpretation of all the evidence in the case and the inferences to be drawn therefrom. It is not for the presiding [judge] to proscribe
argument as to a portion of the evidence which the
jury has heard.’’
Id., 259. Likewise, in the present case,
defense counsel should have been permitted to present
the defendant’s theory of the case to the jury, just as
the state did, given that there was sufficient evidence
in the record from which the jury reasonably could
have inferred that M planted the evidence on the paper
towel to substantiate her false allegations against the
defendant.
The state nevertheless contends that the defendant’s
argument relies on ‘‘the assumption that, if the jury
credited the defendant’s testimony, the only way it
could have reconciled that testimony with the lab
results was by concluding that M had wiped her genitals
after a consensual encounter’’ with the defendant. The
state purports to negate that assumption by speculating
about other possible conclusions the jury could have
reached on the basis of the defendant’s testimony and
the other evidence in the record. We are not persuaded.
The defendant is not required to prove that the only
way the jury could have reconciled the testimony and
other evidence was by concluding that M wiped herself
with the paper towel. The defendant need only establish
that one way the jury could have reconciled all the
testimony and other evidence was by concluding that
M wiped herself. In other words, the defendant does
not have to conclusively establish that the jury would
have accepted his argument; he need only establish that
it was a reasonable inference for the jury to make on
the basis of the evidence. See, e.g., State v.
Kinsey,
supra,
173 Conn. 348 (‘‘counsel may comment [on] facts
properly in evidence and [on] reasonable inferences
drawn therefrom’’).
Accordingly, we conclude that the trial court improperly restricted the scope of defense counsel’s closing
argument when it barred counsel from arguing to the
jury that M had planted physical evidence in an effort to
substantiate her false allegations against the defendant.
We next consider whether the trial court’s action in
denying the defendant the opportunity to present his
theory of the case to the jury denied him the right to
the assistance of counsel.
The right to the assistance of counsel ensures an
‘‘opportunity to participate fully and fairly in the adversary [fact-finding] process.’’ Herring v. New
York,
supra,
422 U.S. 858. ‘‘It can hardly be questioned that
closing argument serves to sharpen and clarify the
issues for resolution by the trier of fact in a criminal
case. For it is only after all the evidence is in that
counsel for the parties are in a position to present their
respective versions of the case as a whole. Only then
can they argue the inferences to be drawn from all
the testimony, and point out the weaknesses of their
adversaries’ positions. And for the defense, closing
argument is the last clear chance to persuade the trier
of fact that there may be reasonable doubt of the defendant’s guilt.’’
Id., 862. ‘‘In a criminal trial, which is in
the end basically a [fact-finding] process, no aspect of
[partisan] advocacy could be more important than the
opportunity finally to marshal the evidence for each
side before submission of the case to judgment.’’
Id.
Our appellate courts have previously found reversible
error when the trial court precluded defense counsel
from discussing certain issues during closing argument,
particularly when an issue was significant and ‘‘[bore]
directly on the defendant’s theory of the defense.’’ State
v.
Arline, supra,
223 Conn. 64. For example, in Arline,
this court reversed the judgment of the Appellate Court
and remanded the case for a new trial when the trial
court improperly precluded defense counsel from questioning the credibility of the complainant during closing
argument.
Id., 64–65. Specifically, we concluded that
the trial court improperly precluded defense counsel
during closing argument from commenting on certain
facts that had been elicited from the complainant on
cross-examination that tended to establish her motive
or bias.
Id., 55–56, 62–63. We explained that the defendant’s theory of defense was centered on attacking the
complainant’s credibility, and, although there were other
pieces of evidence that called the complainant’s credibility into question, the testimony elicited on cross-examination provided the only evidence of motive or
bias.
Id., 64. Given the centrality of the issue to the
case, we concluded that preventing defense counsel
from arguing motive or bias of the state’s chief witness
deprived the defendant of his sixth amendment right
to the assistance of counsel.
Id., 64–65; see, e.g., State
v. Ross,
18 Conn. App. 423, 433–34,
558 A.2d 1015 (1989)
(defendant was entitled to new trial when trial court
prohibited defense counsel from commenting on fact
that sole eyewitness to shooting, under state’s theory
of case, did not testify at trial).
Here, M’s testimony was the only source of evidence
from which the jury reasonably could have concluded
that the defendant sexually assaulted her.4 The results
of the forensic testing and the sexual assault evidence
collection kit did not establish that the July 28, 2016
sexual encounter, which the defendant admitted occurred,
was nonconsensual.5 The only argument presented by
defense counsel to establish reasonable doubt of the
defendant’s guilt was directed at M’s credibility.
Although there were numerous evidentiary bases from
which M’s credibility could be challenged,6 the testimony and other record evidence regarding the paper
towel provided the strongest evidence, from the defendant’s perspective, that M lied about the July 28, 2016
encounter. To deprive defense counsel of the opportunity to argue that the state’s chief witness lied, when
the linchpin of the defense was attacking the credibility
of that witness, is to deprive the defendant of the full
and fair participation of his counsel in the adversary
process. See, e.g., State v.
Arline, supra,
223 Conn. 64
(‘‘The right to present a closing argument is abridged
. . . when a defendant is deprived of the opportunity
to raise a significant issue that is reasonably inferable
from the facts in evidence. This is particularly so when
. . . the prohibited argument bears directly on the
defendant’s theory of the defense.’’).
The trial court’s restriction on defense counsel’s closing argument was particularly significant in this case
because the state argued that M’s testimony was credible because she had no motive to fabricate her testimony. During the state’s rebuttal closing argument, the
prosecutor argued: ‘‘Why on earth, if [M and the defendant] are in a sexual relationship, would [M] call [Louis]
and call and text Isabelle about the defendant sexually
assaulting her, and then [talk] to the police about it,
[talk] to the people at the hospital about it? Why would
she do that? How does [M’s] life get any better by
making this up? Ask yourselves that.’’ What’s more, the
prosecutor emphasized to the jury that the defendant
had lied to the police when he was initially questioned.
Specifically, the prosecutor stated: ‘‘In assessing the
defendant’s credibility, I would ask—I would urge you
to consider the lies that the defendant told, that he
admitted he told while he was—when he was testifying
here. We know that he lied to the police about being
in the house on July 28, 2016. He lied. He was in the
house. . . . We know that he lied to the police about
not having sexual contact with [M] on that date. . . .
He lied to [Stephanie]. He admitted to lying about that.’’
This case turns on questions of credibility, and we
find it disconcerting that the defendant was not afforded
an equal opportunity to emphasize his theory that M
also lied about the July 28, 2016 incident. The entire
case with respect to the July 28, 2016 incident centered
on the credibility of the only two eyewitnesses to that
incident. The effectiveness of the defendant’s arguments regarding M’s credibility was critical to the outcome, particularly when there was other testimony
from M’s stepsister, Isabelle, that M had a history of
‘‘making false claims.’’ Indeed, this is particularly noteworthy because the jury did not credit M’s version of
events with respect to the other instances of alleged
misconduct given that it found the defendant not guilty
of the remaining charges. Accordingly, we conclude
that the trial court’s limitation of the scope of defense
counsel’s closing argument was improper and deprived
the defendant of his constitutional right to the assistance of counsel.
Once a violation of the sixth amendment right to the
assistance of counsel has been established, we need
not inquire as to whether the error resulted in prejudice
to the defendant. ‘‘[A] per se rule of automatic reversal
more properly vindicates the denial of the defendant’s
fundamental constitutional right to assistance of counsel guaranteed by the sixth amendment.’’ State v. Mebane,
204 Conn. 585, 595,
529 A.2d 680 (1987), cert.
denied,
484 U.S. 1046,
108 S. Ct. 784,
98 L. Ed. 2d 870
(1988); see, e.g., State v.
Arline, supra,
223 Conn. 65.
We, therefore, reverse the judgment of the trial court
and remand the case for a new trial.
II
We next turn to the defendant’s contention that the
evidence presented at trial was insufficient to prove
that he used force or the threat of force, as required
to sustain his conviction of sexual assault in the first
degree. Although we have determined that the defendant is entitled to a new trial, we address this claim
because, if it is meritorious, a retrial would be barred
by principles of double jeopardy. See, e.g., State v.
Hedge, 297 Conn. 621, 655,
1 A.3d 1051 (2010).
The defendant concedes that this claim was not properly preserved at trial. It is well established, however,
that ‘‘any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional
right, and would therefore necessarily meet the four
prongs of [State v. Golding,
213 Conn. 233, 239–40,
567
A.2d 823 (1989), as modified by In re Yasiel R.,
317
Conn. 773, 781,
120 A.3d 1188 (2015)]. . . . Accordingly, because there is no practical significance . . .
for engaging in a Golding analysis, we review an unpreserved sufficiency of the evidence claim as though it had
been preserved.’’ (Citation omitted; internal quotation
marks omitted.) State v. Revels,
313 Conn. 762, 777,
99
A.3d 1130 (2014), cert. denied,
574 U.S. 1177,
135 S. Ct.
1451,
191 L. Ed. 2d 404 (2015).
To establish that the defendant violated § 53a-70 (a)
(1), the state was required to prove that the defendant
‘‘compel[led] 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 . . . .’’ The defendant contends that the state’s
evidence of force or threat of force was improbable and
unconvincing, and that the state presented no physical
evidence to support M’s allegation of sexual assault
by force.
‘‘The standard of review [that] we [ordinarily] apply
to a claim of insufficient evidence is well established.
In reviewing the sufficiency of the evidence to support
a criminal conviction we apply a [two part] test. First,
we construe the evidence in the light most favorable
to sustaining the verdict. Second, we determine whether
[on] the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably
could have concluded that the cumulative force of the
evidence established guilt beyond a reasonable doubt.’’
(Internal quotation marks omitted.) State v. Cook,
287
Conn. 237, 254,
947 A.2d 307, cert. denied,
555 U.S. 970,
129 S. Ct. 464,
172 L. Ed. 2d 328 (2008). Importantly,
we have previously held that ‘‘a single witness is sufficient to support a finding of guilt beyond a reasonable
doubt.’’ State v. Whitaker,
215 Conn. 739, 757 n.18,
578
A.2d 1031 (1990).
Here, with respect to the July 28, 2016 incident, M
testified: ‘‘[The defendant] grabbed my arm, and I told
him to let me go, and he did not want to release me.
And then I ended up tripping toward the couch, where
he pushed me toward . . . . I was wearing a dress,
and I had shorts underneath, and he ended up pulling
down my pants and my underwear and inserting his
penis inside me. . . . I was pushing him off, yelling,
telling him to stop and get off me. . . . He kept forcing
himself on me.’’ She also testified that, during the
assault, ‘‘I was trying to push him off me with my arms,
but he kept holding [them] down, so I kept turning my
body like this, with my knees, trying to push him off
me, and he didn’t want to get off. And I was yelling,
help, can you stop, can you get off me, and then he didn’t
want to get off me.’’ This testimony alone is sufficient
to establish the force element required for a conviction
of sexual assault in the first degree in violation of § 53a-
70 (a) (1).7 See, e.g., State v. White,
139 Conn. App.
430, 436–37,
55 A.3d 818 (2012) (rejecting sufficiency
challenge to first degree sexual assault conviction when
complainant’s testimony, if credited, satisfied all elements of § 53a-70 (a) (1)), cert. denied,
307 Conn. 953,
58 A.3d 975 (2013); see also, e.g., State v. Antonio W.,
109 Conn. App. 43, 52–53,
950 A.2d 580, cert. denied,
289 Conn. 923,
958 A.2d 153 (2008).
This evidence, viewed in the light most favorable to
sustaining the guilty verdict, is sufficient to support the
defendant’s conviction of sexual assault in the first
degree.
III
The defendant’s final claim is that the trial court
abused its discretion by admitting the testimony of
Janet Murphy, an expert in the field of child and adolescent sexual abuse. Specifically, the defendant contends
that the trial court improperly admitted Murphy’s testimony given that her expertise was in child sexual abuse
and that M was an adult when the July 28, 2016 incident
occurred. The defendant further contends that ‘‘[t]he
state failed to show that Murphy had sufficient knowledge from her experience, training, or education to
testify as an expert in the field of adult sexual abuse
. . . .’’ (Emphasis omitted.) As such, the defendant
claims that Murphy’s expertise was inapplicable to the
present case. The state contends that this argument is
unpreserved. Alternatively, the state contends that the
claim is substantively meritless because M was eighteen
at the time of the July 28, 2016 incident and Murphy
testified that she ‘‘see[s] kids really up into the early
twenties, more up to eighteen, but some delayed adults
we’ll see into the early twenties . . . .’’
As a general matter, when our appellate courts reverse
a judgment and remand the case for a new trial, only
claims likely to arise on retrial are addressed by the
reviewing court. See, e.g., State v. T.R.D., 286 Conn.
191, 195,
942 A.2d 1000 (2008). In this case, we are
remanding the case for a new trial with respect to the
charge of sexual assault in the first degree in connection
with the July 28, 2016 incident. It is undisputed that, at
the time of this incident, M was eighteen years old.
Although we cannot say that the claim relating to Murphy’s expert testimony is unlikely to arise on remand,
because the state may elect to call Murphy and further
probe her experience working with eighteen year olds,
or it may call another expert, that evidentiary presentation would involve a record different from the one presently before us, and, accordingly, we decline to address
this claim at this time. See, e.g., State v. Jackson,
334
Conn. 793, 822,
224 A.3d 886 (2020); State v. Rizzo,
266
Conn. 171, 250–51 n.44,
833 A.2d 363 (2003). We leave
it to the trial court to further evaluate the issue if Murphy is called to testify at the defendant’s new trial.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
… August 6, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
Nelson testified that spermatozoa are ‘‘sex cell[s] that [are] deposited
in semen when ejaculated from a male.’’
2
Przech explained that sperm cells and epithelial cells are different: ‘‘[E]pithelial cells are like your skin cells, and the sperm cells are from sperm.’’
3
The sixth amendment to the United States constitution provides in relevant part: ‘‘In all criminal prosecutions, the accused shall enjoy the right
. . . to have the assistance of counsel for his defense.’’
The sixth amendment right to the assistance of counsel applies to state
criminal proceedings by incorporation through the due process clause of
the fourteenth amendment. See, e.g., Gideon v. Wainwright, 372 U.S. 335,
342,
83 S. Ct. 792,
9 L. Ed. 2d 799 (1963).
4
As defense counsel emphasized during closing argument, ‘‘[t]his case
essentially comes down to one witness. All of these accusations stem from
one individual, the complaining witness, [M]. There are medical reports
and—and other reports that are there, but she is the source of that information. There isn’t any independent information in those reports. So, we should
look at her testimony and her credibility and assess [that evidence] to see
if it supports a finding of [guilt] beyond a reasonable doubt . . . .’’
5
Although the results of the sexual assault evidence collection kit established that the defendant’s DNA was included in the sperm-rich fraction
sample of the vaginal swab, they contained no evidence that the July 28,
2016 incident was nonconsensual. Indeed, the nurse who administered the
sexual assault evidence collection kit testified that there was no evidence
of trauma, scratches, or bruises, and no physical injuries were noted in
the report.
6
For example, although M testified that she was violently sexually
assaulted, her text to Isabelle indicated that the defendant had ‘‘touched’’
her. Additionally, the state did not introduce any evidence of physical injuries
or ripped clothing.
7
In addition to M’s testimony, the emergency medical technician (EMT)
who responded to M’s house on July 28, 2016, testified that M was ‘‘visibly,
tearfully upset’’ and was ‘‘very . . . uncomfortable . . . .’’
