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STATE OF CONNECTICUT v. GARY S.*
(SC 20438)
McDonald, D’Auria, Mullins, Ecker,
Alexander and Keller, Js.
Syllabus
Pursuant to statute (§ 53a-71 (a) (4)), ‘‘[a] person is guilty of sexual assault
in the second degree when such person engages in sexual intercourse
with another person and . . . such other person is less than eighteen
years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare . . . .’’
Convicted of numerous crimes, including sexual assault in the second degree
and risk of injury to a child, in connection with the sexual abuse of S
and A, the defendant appealed to this court. S is the biological daughter
of the defendant and his former spouse, D, and A is D’s granddaughter,
whom D was raising. The defendant allegedly began to abuse S when
she was twelve years old, after the defendant married D for the first
time. At that point, the defendant was living with D, S, and A, and caring
for S and A while D was at work. Over the course of approximately
four years, the defendant forced S to have vaginal and oral intercourse
with him numerous times. On some of those occasions, the defendant
told S that her ‘‘pussy was his’’ and that she ‘‘better not give it up
to anybody.’’ On one occasion, S successfully resisted the defendant’s
advances, leading him to say, ‘‘fuck you, bitch.’’ Following these incidents, the defendant often would threaten to kill S and D, if S told
anyone what had happened. One or two years after the defendant last
had vaginal intercourse with S, he attempted to force A, who was six
or seven years old, to perform oral sex on him. A was able to resist
those efforts, but the defendant proceeded to digitally penetrate A’s
vagina. At some point during this period, D separated from, and eventually divorced, the defendant due to his domestic abuse toward her.
The defendant and D later remarried but separated again due to the
defendant’s continued abuse. Several years later, S disclosed to T, D’s
daughter from a prior relationship, that the defendant had sexually
assaulted her. T then told S that she also had been sexually assaulted
by the defendant. Upon hearing of T’s and S’s disclosures, A made her
own disclosure. The state subsequently charged the defendant in an
eight count information with various crimes, including, in count three,
risk of injury to a child for allegedly subjecting A to contact with the
defendant’s intimate parts, and, in counts five, six, and seven, sexual
assault in the second degree in violation of § 53a-71 (a) (4) for his
assaults on S on ‘‘uncertain dates’’ during a specified four year period
of time, while he purportedly was responsible for the general supervision
of S’s welfare. At trial, there was conflicting testimony as to where the
defendant was living when those sexual assaults took place. Specifically,
certain dates D provided at trial with respect to when she and the
defendant separated and whether they had resumed living together contradicted certain dates provided by S and A during their respective
testimonies. D had testified, however, that her memory with respect to
dates was adversely affected by her tendency to block out trauma.
During closing argument, the prosecutor highlighted the ‘‘vulgar’’ and
‘‘disgusting’’ remarks that the defendant made to S and remarked that
D could not explain why she remarried the defendant because she
was exposed to trauma and was a victim of domestic violence. On the
defendant’s appeal from the judgment of conviction, held:
1. Although the evidence was sufficient to support the defendant’s conviction
of the counts of sexual assault in the second degree pertaining to S,
the evidence was insufficient to support his conviction of risk of injury
to a child pertaining to A:
a. A testified that she successfully resisted the defendant’s efforts to
force her to perform oral sex on him, the state conceded that there was
no evidence presented at trial that A had contact with the defendant’s
intimate parts, which was required under the portion of the risk of injury
statute (§ 53-21 (a) (2)) under which the defendant had been charged
in connection with his conduct toward A, and, accordingly, this court
accepted the state’s concession that there was insufficient evidence to
support the defendant’s conviction of risk of injury to a child pertaining
to A, reversed the defendant’s conviction as to that charge, and remanded
the case with direction to render a judgment of acquittal as to count
three of the information.
b. The evidence presented at trial was sufficient to support the defendant’s conviction of the three counts of sexual assault in the second
degree pertaining to S, as the jury reasonably could have concluded that
the defendant was S’s guardian or otherwise responsible for the general
supervision of her welfare at the time of the charged sexual misconduct:
Contrary to the defendant’s claim that he was acting as a mere babysitter
to S during the relevant time period, when the sexual assaults took
place, the jury reasonably could have concluded that the defendant
was exercising sufficient authority and control over S such that he was
responsible for her general supervision for purposes of § 53a-71 (a) (4)
at the time of the assaults, especially in light of the fact that the defendant
is S’s biological father and S’s testimony that the defendant assaulted
her on numerous occasions while he lived in the same residence as her
and that the incidents of abuse occurred when D was working and when
the defendant was the only adult in the home.
Moreover, although S’s and D’s testimony conflicted as to whether the
defendant was residing with them when the assaults occurred, the jury
was free to resolve any inconsistencies by crediting S and A’s combined
testimony over the admittedly dubious recollection of D, who testified
that she had a difficult time recalling dates due to past trauma.
2. The defendant could not prevail on his claim that the prosecutor had
committed certain improprieties during closing and rebuttal arguments,
in violation of the defendant’s due process right to a fair trial:
a. The prosecutor did not improperly appeal to the jurors’ emotions
by emphasizing certain ‘‘vulgar’’ and ‘‘disgusting’’ comments that the
defendant had made while he sexually assaulted S, as the challenged
remarks were based on the evidence presented at trial, were relevant
to the charges, and supported the state’s theory that S delayed in her
disclosure of the sexual abuse because she was afraid of the defendant:
The prosecutor’s remark that the defendant got so angry and frustrated
with S that he said, ‘‘fuck you, bitch,’’ was relevant to the charge of
attempt to commit sexual assault with respect to S because it illustrated
that the defendant had the intent to sexually assault S and became so
frustrated when he was unsuccessful that he addressed his own daughter
using vulgar language.
The prosecutor’s reference to the defendant’s comments, made while
he was having intercourse with S, regarding S’s ‘‘pussy’’ having belonged
to him, was relevant to the charge of sexual assault in the second degree
because it illustrated that the defendant and S engaged in sexual intercourse and was also relevant to the charge of risk of injury to a child
because it illustrated that the defendant caused S to have contact with
his intimate parts in a sexual and indecent manner that was likely to
impair her morals, and those comments also supported the state’s theory
that S delayed in her disclosure of the sexual abuse because of her fear
of the defendant and the embarrassing nature of the incidents.
The prosecutor’s characterization of the defendant’s comments as ‘‘vulgar’’ and ‘‘disgusting,’’ and his remark that ‘‘[t]his is how he talks to a
twelve year old, his own biological daughter,’’ did not amount to an
impermissible personal attack on the defendant, as that commentary
was based on S’s testimony and was not so gratuitous, crudely phrased,
or inflammatory as to rise to the level of an improper personal attack.
b. Although not all of the prosecutor’s challenged remarks constituted
unsworn testimony or improperly vouched for the credibility of the
state’s witnesses, as the defendant claimed, certain remarks the prosecutor made regarding the defendant’s domestic abuse of D were improper:
The prosecutor’s remark, regarding the disclosures made by T, S, and
A, that ‘‘[t]his isn’t a case of [the three girls] get[ting] together and
get[ting] [their] stories straight’’ did not constitute unsworn testimony
or improperly vouch for the credibility of the state’s witnesses, as it was
based on evidence presented at trial, namely, the testimony of T, S, and
A regarding how their disclosures occurred and the lack of any evidence
that they had conversations to conspire against the defendant prior
to their disclosures, the jury reasonably could have inferred from that
evidence that the girls had not coordinated their accusations out of some
conspiratorial vengeance, and there was no merit to the defendant’s
contention that the prosecutor improperly relied on constancy of accusation evidence in making the challenged remark.
The prosecutor’s remark that S had a ‘‘flat affect’’ while testifying did
not improperly usurp the jury’s role in judging S’s credibility but, instead,
served to urge the jury to draw a reasonable inference from the evidence
presented at trial, including S’s testimonial demeanor and certain expert
testimony on the effects of trauma, that S’s demeanor was consistent
with the demeanor of individuals who have experienced trauma, and this
court found unavailing the defendant’s argument that such an inference
involved a matter requiring the jury to have special expertise, akin to
that of making a psychiatric diagnosis.
The prosecutor’s remarks regarding how D could not explain why she
remarried the defendant because she was exposed to trauma and was
a victim of domestic violence were improper because they violated a
limiting instruction that the trial court had given to the jury that evidence
of the defendant’s abuse of D was to be used only for the purpose of
explaining why S and A had delayed in their disclosures of the sexual
abuse, and evidence that properly was admitted at trial could not be
used for a purpose for which it was not admitted.
c. The prosecutor’s improper remarks regarding the domestic abuse of
D did not deprive the defendant of his right to a fair trial, as the jury’s
verdict would not have been different in the absence of the prosecutor’s
improper remarks:
The improper remarks were not frequent or severe, defense counsel did
not object to the remarks, and they were counterbalanced by the trial
court’s instructions following closing arguments that evidence of the
defendant’s abuse of D could be used only to explain why S and A had
delayed in their disclosures of the sexual abuse.
Moreover, although the credibility of the witnesses was a central issue
in the case and the remarks had some bearing on credibility, the defense,
at least in part, invited the remarks, and the state’s case, which included
the testimony of T, S, and A, all of whom had experienced the defendant’s
sexual abuse, was not overshadowed by those improper remarks as to
D, especially in view of the trial court’s jury instructions.
Argued September 12—officially released December 6, 2022
Procedural History
Substitute information charging the defendant with
three counts of the crime of sexual assault in the second
degree, two counts each of the crimes of attempt to
commit sexual assault in the first degree and risk of
injury to a child, and one count of the crime of sexual
assault in the first degree, brought to the Superior Court
in the judicial district of Middlesex and tried to the jury
before Suarez, J.; verdict and judgment of guilty, from
which the defendant appealed. Reversed in part; judgment directed.
John R. Weikart, assigned counsel, with whom was
Emily Graner Sexton, assigned counsel, for the appellant (defendant).
Thadius L. Bochain, assistant state’s attorney, with
whom were Russell Zentner, senior assistant state’s
attorney, and, on the brief, Michael A. Gailor, state’s
attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Gary S., appeals1 from
the judgment of conviction, rendered after a jury trial,
of two counts of attempt to commit sexual assault in
the first degree in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-70 (a) (2), one count of sexual assault
in the first degree in violation of General Statutes § 53a-
70 (a) (2), three counts of sexual assault in the second
degree in violation of General Statutes § 53a-71 (a) (4),
and two counts of risk of injury to a child in violation
of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that (1) the evidence was insufficient to
support his conviction on certain counts, and (2) the
prosecutor made improper remarks during closing and
rebuttal arguments that deprived the defendant of his
constitutional right to a fair trial. Because the state
concedes that the evidence presented at trial was insufficient to support the defendant’s conviction on the
charge of risk of injury to a child pertaining to one
of the complainants, A, we reverse the trial court’s
judgment with respect to that count. We reject each
of the defendant’s remaining claims and, accordingly,
affirm the judgment of conviction in all other respects.
The jury reasonably could have found the following
facts on the basis of the evidence presented at trial. In
1990, the defendant and his girlfriend, D, had a daughter,
S. At that time, D also had two children from a previous
relationship, a daughter, T, and a son, C. For most of
that decade, the defendant, D, S, and C lived together
in a three bedroom home located in Middletown.
Although T resided with her grandmother, she would
occasionally come to visit overnight. In 1993, D started
working the ‘‘third shift’’ as a certified nurse assistant.
As a result, the defendant was normally the only adult
in the home from 11 p.m. to 7 a.m.
Evidence adduced during the course of the trial suggested that, between 1994 and 1996, the defendant sexually assaulted T more than ten times. T testified at
trial that, during her overnight visits at the Middletown
residence, the defendant would sometimes take her to
the master bedroom, engage in vaginal intercourse with
her, and then direct her not to tell anyone about it. At
that time, T was between the ages of eleven and thirteen
years old.2
Subsequently, the defendant married D for the first
time when S was approximately ten years old.3 In 2001,
C fathered his own daughter, A. C moved out of the
Middletown residence shortly thereafter, leaving A to
be raised by D. D testified at trial that, around this same
time, she was working between forty and eighty hours
per week at a hospital and left the defendant home
alone with S and A.
In the summer of 2002, when S was twelve years old,
the defendant forced her to have vaginal intercourse
with him while they were alone in the basement of the
Middletown residence. As he was having intercourse
with her, the defendant said that her vagina was ‘‘his
pussy’’ and that she ‘‘better not give it up to anybody.’’
On another occasion that summer, the defendant attempted to have vaginal intercourse with S while A, then an
infant, was present, but S was able to resist, leading
the defendant to respond, ‘‘fuck you, bitch.’’4
Between the summer of 2002 and the end of December, 2006, the defendant forced S to have vaginal intercourse with him more than twenty times and to perform
oral sex on him more than ten times, and he performed
cunnilingus on S more than ten times. The last time
the defendant had vaginal intercourse with S was in
December, 2006, when she was sixteen years old. Each
time the defendant sexually assaulted S during this
period, no other adults were present in the house. The
defendant usually would assault S inside the master
bedroom with the door locked. Following these incidents of sexual abuse, the defendant often would
threaten to kill S and D, if S told anyone what had
happened. S took these threats seriously and feared the
defendant. In addition, on numerous occasions when
the defendant had vaginal intercourse with S during
this period, he would continue to tell her that her ‘‘pussy
was his’’ and that she ‘‘better not be giv[ing] it to anybody . . . .’’
In 2007 or 2008, when A was six or seven years old,
the defendant entered the master bedroom, which he
shared with D, where A was watching television. The
defendant then proceeded to pull his penis out of his
pajama pants and attempted to force A to perform oral
sex on him ‘‘by putting his hand on the back of [her]
head . . . .’’ At trial, A testified that she ‘‘moved it,’’
‘‘kept saying no,’’ and was ultimately able to resist his
efforts. The defendant then undressed A and digitally
penetrated her vagina. A testified that the defendant
stopped only after he heard a knock at the front door
of the residence. The defendant told A that he would
kill her if she told anyone about what had happened.
The defendant was the only adult at home during this
incident, and this was the only time that the defendant
sexually assaulted A. A testified that, when she was
growing up, the defendant supervised her ‘‘[a]ll the
time’’ while D was at work and that he played the role
of a father. A also testified that the defendant was residing in the home when this particular assault against her
took place.
D separated from, and eventually divorced, the defendant after separate incidents of domestic abuse.5 D later
remarried the defendant in ‘‘secret’’ because he needed
to obtain health insurance. When asked why she remarried the defendant despite the abuse, D testified that
she could not explain why. During the second marriage,
the defendant was still abusive, and the pair separated
once again in 2011 or 2012.6
For years, S and A did not report what the defendant
had done to them to anyone out of fear that he would
harm them.7 S also did not disclose the incidents to D
because she thought D would not believe her. S indicated that D would always put men first before her own
children. In March, 2017, S called T and revealed to
her for the first time that the defendant had sexually
assaulted her. T, in turn, told S that she also had been
sexually assaulted by the defendant.
A few days after the conversation between S and T,
T disclosed to D that the defendant had assaulted both
her and S.8 A was present at the time and told D and
T that the defendant had also assaulted her in 2007 or
2008. This was the first time that A had told anyone
about what the defendant had done to her. D then called
the Middletown Police Department, which commenced
a criminal investigation. Detective Derek Puorro obtained
statements from S, A, T, and D. S, A, and T were each
interviewed separately by Puorro. No forensic evidence
of the sexual assaults was obtained because of the amount
of time that had passed between the assaults and disclosure.
Following his arrest, the state charged the defendant,
in a third substitute information, with eight counts.
Counts one through three pertain to the defendant’s
assault on A, while counts four through eight pertain
to the defendant’s assaults on S. As to the assaults on
A, the state charged that, ‘‘on an uncertain date between
December 31, 2007, and December 31, 2009,’’ the defendant attempted to commit sexual assault in the first
degree, namely, attempted fellatio, in violation of
§§ 53a-49 (a) (2) and 53a-70 (a) (2) (count one); sexual
assault in the first degree, namely, digital vaginal penetration, in violation of § 53a-70 (a) (2) (count two); and
risk of injury to a child, namely, subjecting A to contact
with the defendant’s intimate parts, in violation of § 53-
21 (a) (2) (count three).
As to S, the state charged the defendant with one
count of attempt to commit sexual assault in the first
degree in violation of §§ 53a-49 (a) (2) and 53a-70 (a) (2),
alleging attempted vaginal intercourse on ‘‘an uncertain
date in the summer of 2002’’ (count four); three counts
of sexual assault in the second degree in violation of
§ 53a-71 (a) (4), alleging vaginal intercourse (count
five), fellatio (count six), and cunnilingus (count seven)
on ‘‘uncertain dates between March 30, 2003, and
December 31, 2006’’; and one count of risk of injury to
a child in violation of § 53-21 (a) (2), alleging that the
defendant had caused S to come in contact with his
intimate parts on ‘‘uncertain dates between March 30,
2003, and December 31, 2006’’ (count eight).
After the state rested its case, the defendant moved
for a judgment of acquittal as to all eight counts of the
state’s information, arguing that the evidence presented
was insufficient to support a conviction. The trial court
denied the motion, and the defense rested its case without presenting any evidence. The jury found the defendant guilty on all eight counts. The defendant then filed
a motion for a judgment of acquittal as to counts five,
six, and seven on the basis that the state had failed
to establish that the defendant was S’s ‘‘guardian’’ or
‘‘otherwise responsible for the general supervision of
[S’s] welfare’’ between the period of March 30, 2003, and
December 31, 2006. (Internal quotation marks omitted.)
The trial court denied the motion, concluding that ‘‘the
jury could reasonably infer that, at the time of the
alleged sexual assault, the defendant was [S’s] guardian
and/or responsible for her general supervision.’’ The
trial court sentenced the defendant to a term of thirty years
of imprisonment, with five years of special parole.9 This
direct appeal followed. Additional facts and procedural
history will be set forth as necessary.
I
The defendant first claims that the evidence was
insufficient to support his conviction of risk of injury
to a child relating to A and his convictions of sexual
assault in the second degree relating to S. For the reasons that follow, we accept the state’s concession that
the evidence was insufficient to support the defendant’s
conviction of risk of injury to a child pertaining to A,
as charged in count three of the state’s information,
but we conclude that the state’s evidence was sufficient
to support the defendant’s convictions of sexual assault
in the second degree pertaining to S, as charged in
counts five, six, and seven of the information.
The standard of review applicable to both of these
claims is well established. ‘‘When reviewing a sufficiency of the evidence claim, we do not attempt to
weigh the credibility of the evidence offered at trial,
nor do we purport to substitute our judgment for that
of the jury. . . . [W]e construe the evidence in the light
most favorable to sustaining the verdict. . . . We then
determine whether the jury reasonably could have concluded that the evidence established the defendant’s
guilt beyond a reasonable doubt. . . . [W]e do not ask
whether there is a reasonable view of the evidence that
would support a reasonable hypothesis of innocence.
We ask, instead, whether there is a reasonable view of
the evidence that supports the [finder of fact’s] verdict
of guilty. . . . When a claim of insufficient evidence
turns on the appropriate interpretation of a statute, our
review is plenary.’’ (Citations omitted; internal quotation marks omitted.) State v. Lamantia, 336 Conn. 747,
755,
250 A.3d 648 (2020). We consider the defendant’s
claims of insufficiency of the evidence in turn.
A
The defendant first claims that the evidence pre-
sented in connection with the charge of risk of injury
to a child pertaining to A, in violation of § 53-21 (a) (2),10
as charged in count three of the state’s information,
was insufficient to support his conviction because there
was no evidence that A had contact with the defendant’s
‘‘intimate parts.’’ In particular, the defendant argues
that, because A testified that, on one occasion, she
successfully resisted the defendant’s efforts to force
her to perform fellatio on him, there was no evidence
that she came in contact with the defendant’s genital
area during that incident. The state concedes that the
evidence presented during the trial on this count was
insufficient in this regard. Accordingly, we accept the
state’s concession, reverse the defendant’s conviction
as to that charge, and remand the case to the trial court
with direction to render a judgment of acquittal as to
count three.
B
The defendant next claims that the evidence presented in connection with the charges of sexual assault
in the second degree, relating to S, in violation of § 53a-
71 (a) (4), as charged in counts five, six, and seven of
the state’s information, was insufficient to support his
convictions on those counts. Specifically, he contends
that he was not responsible for S’s ‘‘general supervision,’’ as required under the charged portion of the
statute, between the period of March 30, 2003, and
December 31, 2006.
The following additional facts are relevant to this
claim. At trial, the state called multiple witnesses to
testify, including S, D, and A. There was conflicting
testimony from S and D as to whether the defendant
was living in the Middletown residence when the sexual
assaults on S took place between March 30, 2003, and
December 31, 2006, the period relevant to counts five,
six, and seven of the state’s information. On direct
examination, after describing the incidents of sexual
assault that occurred after the summer of 2002, S indicated that, at some point, the defendant and D separated, and the defendant moved out of the residence. S
testified that, after this separation, the defendant would
continue to reside in the residence periodically. She
testified that the assaults would stop when the defendant did not live with them but would resume when he
moved back in.11 S also testified that she would stay
outside ‘‘all day’’ or go to her grandmother’s house to
avoid the defendant. On cross-examination, S testified
that, although she resided at the Middletown residence
until 2017, the defendant only lived there for ‘‘some of
those years,’’ ‘‘[f]rom, like, 1996 to 2006 . . . maybe.’’
D’s recollection did not follow the same chronology
as S’s with respect to the defendant’s presence in the
household. D testified that she and the defendant separated in 2003 or 2004, and that the defendant was no
longer living with them or watching S or A while D
was at work. D could not remember when she and the
defendant formally divorced after their first marriage
but thought that the defendant did not resume living
in the Middletown residence until after their remarriage
in 2010 or 2011. D testified that she and the defendant
then separated for a second time in 2011 or 2012, due
to the continued physical and verbal abuse she experienced, and that the defendant again moved out of the
residence at that time. D testified, however, that her
memory for dates is adversely affected because she
‘‘block[s] [traumatic] stuff out’’ and ‘‘[t]hat’s how [she]
cope[s].’’ D’s testimony also conflicted with the testimony of A, who testified that the defendant was residing
in the residence when he sexually assaulted her in 2007
or 2008, until ‘‘[m]aybe a few years after,’’ and that the
defendant and D remarried before the end of 2007.
The defendant contends that, because the state was
unable to prove that he was a permanent fixture in
the Middletown residence from the relevant period of
March 30, 2003, to December 31, 2006, when it is alleged
that he sexually assaulted S, he cannot be held criminally responsible under § 53a-71 (a) (4). The defendant
argues that, on the basis of the evidence presented at
trial, the jury reasonably could have concluded only
that he was acting as a mere ‘‘babysitter’’ to S during
the relevant period and that such a person falls outside
the class of persons that can be held liable under § 53a-
71 (a) (4). We disagree with the defendant’s assertion
that he was acting as a mere ‘‘babysitter’’ to S.
Section 53a-71 (a)12 provides in relevant part: ‘‘A person is guilty of sexual assault in the second degree
when such person engages in sexual intercourse with
another person and . . . (4) such other person is less
than eighteen years old and the actor is such person’s
guardian or otherwise responsible for the general supervision of such person’s welfare . . . .’’13 In counts five,
six, and seven of the information, the state charged that
the defendant committed sexual assault in the second
degree while he was responsible for S’s general supervision.14
The defendant argues that his convictions cannot be
sustained under our holding in State v. Burney, 189
Conn. 321,
455 A.2d 1335 (1983). In that case, this court
held that ‘‘the proximity of the words ‘or otherwise
responsible for’ to the word ‘guardian’ [in § 53a-71 (a)]
indicates that the legislature intended the categories to
be roughly equivalent, with the obligations and degree
of control of the actor over the child . . . to be similar
to those of legal guardianship.’’ Id., 327. The complainant in Burney had left Hartford with the defendant for
a trip to New York. Id., 323. The defendant drove the
complainant as far as New Haven, where he obtained
a motel room and proceeded to have vaginal intercourse
with her. Id. Afterward, the defendant and the complainant returned to the defendant’s home in Hartford, where
the complainant had been living for one and one-half
months. Id. When they returned to the defendant’s
home, the complainant received a message that her
mother wanted her to return home. Id. Once she
returned home, the complainant told her mother what
had happened, and the two of them went to the police
station to file a complaint. Id.
We concluded that the terms ‘‘responsible for’’ and
‘‘general supervision,’’ as used in § 53a-71 (a) (4),15 were
ambiguous. (Internal quotation marks omitted.) Id., 325.
Relying on traditional principles of statutory construction, we held that, ‘‘[although] it is clear that a judicial
decree is not necessary in order to become responsible
for the general supervision of a minor under [the statute], neither is the mere assumption by a third person
of the temporary care of a minor enough to bring that
third party within the class of persons to whom the
statute applies.’’16 Id., 326. In determining that the evidence was insufficient to establish that the defendant
was responsible for the complainant’s general supervision at the time of the assault, we considered whether
the mother had intended to relinquish responsibility for
the supervision and control of the complainant to the
defendant. Id., 328. Specifically, we observed that ‘‘[t]here
[was] no evidence that responsibility for the complainant’s welfare had been vested in the defendant by court
order or award, nor [was] there any evidence that the
. . . mother had intended to relinquish responsibility
for the supervision of [the complainant’s] welfare to
the defendant. Instead, the . . . mother testified that
she had placed a call to the defendant’s home leaving
instructions for [the complainant] to come home.’’ Id.
The present case is readily distinguishable from Burney, in which this court held that a putative father
whose paternity had never been legally established; id.,
323–24; has no responsibility for the welfare of his purported child under § 53a-71 (a) (4)17 unless the child’s
mother bestows it on him.18 Id., 328. Here, unlike in
Burney, it is undisputed that the defendant is S’s biological father. In addition, as discussed previously, the jury
heard testimony from S that, from the summer of 2002
to the last incident of vaginal intercourse in December,
2006, the defendant sexually assaulted her on numerous
occasions. S testified that the defendant resided in the
Middletown residence from 1996 to 2006 and that, each
time the defendant sexually assaulted her after the summer of 2002, he was residing in the residence. S indicated that the incidents would stop when the defendant
moved out but would resume when he moved back in.
The jury also heard testimony that these incidents of
abuse occurred when D was working and that the defendant was the only adult in the home at the time. On
the basis of this evidence, viewed in a light most favorable to sustaining the verdict, the jury reasonably could
have concluded that the defendant, a biological father
who resided with and was caring for his own daughter,
was exercising sufficient authority and control over S
to fall within the ambit of § 53a-71 (a) (4).19
Although S’s and D’s testimony conflicted as to when
the defendant was living at the Middletown residence,
the jury was free to resolve inconsistencies by crediting
S and A’s combined testimony over D’s admittedly dubious recollection. See State v. Morgan,
274 Conn. 790,
800,
877 A.2d 739 (2005) (‘‘[i]t is axiomatic that evidentiary inconsistencies are for the jury to resolve, and it
is within the province of the jury to believe all or only
part of a witness’ testimony’’ (internal quotation marks
omitted)). It was especially reasonable for the jury to
conclude that S was more credible than D on the issue
considering that D testified that she had a difficult time
recalling dates due to trauma and that D’s testimony
also conflicted with the accounts that S and A had
provided. D testified that the defendant moved out of
the residence in 2003 or 2004, after she and the defendant first separated, but that the defendant did not
resume living in the home until their remarriage in 2010
or 2011. S testified that the defendant was residing
in the residence whenever he assaulted her after the
summer of 2002 to the last incident of abuse at the
end of 2006, and A testified that D and the defendant
remarried before the end of 2007, and that the defendant
was, in fact, residing in the home in 2007 or 2008.
Accordingly, after reviewing the evidence in a light
most favorable to sustaining the jury’s verdict and the
circumstances surrounding the incidents of abuse that
took place between the period of March 30, 2003, and
December 31, 2006,20 we conclude that there was sufficient evidence presented at trial from which the jury
reasonably could have concluded that the defendant, a
father who was cohabitating with S and was the only
adult at home responsible for her care while D was
working, was exercising general supervision over S’s
welfare during the time period relevant to the charges
of sexual assault in the second degree, as set forth in
counts five, six, and seven of the state’s information.21
II
We next address the defendant’s claim that the prosecutor made improper remarks during closing and rebuttal arguments, in violation of the defendant’s constitutional right to a fair trial. The defendant argues that (1)
certain remarks by the prosecutor improperly appealed
to the jurors’ passions, emotions, and prejudices, and
(2) certain other remarks constituted unsworn testimony and improperly vouched for the credibility of
witnesses. Although we agree with the defendant that
some of the prosecutor’s remarks were improper, after
applying the factors in State v. Williams, 204 Conn.
523, 540,
529 A.2d 653 (1987), we conclude that those
improprieties were harmless.
‘‘In analyzing claims of prosecutorial impropriety, we
engage in a two step analytical process. . . . We first
examine whether prosecutorial impropriety occurred.
. . . Second, if an impropriety exists, we then examine
whether it deprived the defendant of a constitutionally
protected right. . . . [W]hen a defendant raises on
appeal a claim that improper remarks by the prosecutor
deprived the defendant of his constitutional right to a
fair trial, the burden is on the defendant to show, not
only that the remarks were improper, but also that,
considered in light of the whole trial, the improprieties
were so egregious that they amounted to a denial of due
process.’’ (Citation omitted; internal quotation marks
omitted.) State v. Courtney G.,
339 Conn. 328, 340,
260
A.3d 1152 (2021).
‘‘It is well established that prosecutorial [impropriety]
of a constitutional magnitude can occur in the course
of closing arguments. . . . When making closing arguments to the jury, [however, counsel] must be allowed a
generous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined precisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
‘‘Nevertheless, the prosecutor has a heightened duty
to avoid argument that strays from the evidence or
diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent.
. . . By reason of his office, he usually exercises great
influence [on] jurors. . . . While the privilege of counsel in addressing the jury should not be too closely
narrowed or unduly hampered, it must never be used
as a license to state, or to comment [on], or to suggest
an inference from, facts not in evidence, or to present
matters [that] the jury ha[s] no right to consider.’’ (Internal quotation marks omitted.)
Id., 341–42. We address
the defendant’s claims of impropriety in turn.
A
The defendant first claims that the prosecutor improperly appealed to the jurors’ emotions by emphasizing
in his closing and rebuttal arguments certain comments
that the defendant had made in the course of sexually
assaulting S. We conclude that those remarks did not
improperly appeal to the jurors’ emotions.
The following additional facts are relevant to this
claim. During his closing argument, when describing
the incidents of sexual assault on S between March 30,
2003, and December 31, 2006, the prosecutor stated:
‘‘[The defendant] says—again, I apologize, but this is
the testimony. He says the most vulgar, upsetting things.
He says it during these acts. Whose pussy is this? She
doesn’t answer him. Don’t give your pussy to anyone.
This is a biological father talking [in] this way to his
daughter.’’ During his rebuttal argument, the prosecutor
further stated: ‘‘There was never a motive established,
again, through the cross-examination of any of these
people what motive they may have had to come into
court and testify, particularly [S] who took the brunt
of this, as I’ve said several times now, and the defendant
uttering the most vulgar and disgusting things to her
while this is going on, this is—whose pussy is this, have
you—don’t give it up to anybody else, [and] have you
had sex with anyone else.’’ While describing the incident
that took place in the summer of 2002, when S was
able to fight off the defendant, the prosecutor stated:
‘‘But she’s able to successfully fight him off and he—
he gets so angry and so frustrated, he says, well, fuck
you, bitch. This is how he talks to a twelve year old,
his own biological daughter.’’
The defendant argues that the prosecutor’s references to the defendant’s language were irrelevant to
the offenses with which he was charged, and, accordingly, the only possible reason for the prosecutor to
mention such language was to appeal to the jurors’
emotions, passions, and prejudices. The defendant further argues that the prosecutor’s commentary that the
defendant uttered ‘‘the most vulgar, upsetting things’’
and ‘‘the most vulgar and disgusting things,’’ and that
‘‘[t]his is how [the defendant] talks to a twelve year old,
his own biological daughter,’’ was irrelevant and an
improper personal attack on the defendant.
Our case law establishes that ‘‘[a] prosecutor may
not appeal to the emotions, passions and prejudices of
the jurors. . . . When the prosecutor appeals to emotions, he invites the jury to decide the case, not
according to a rational appraisal of the evidence, but
on the basis of powerful and irrelevant factors [that]
are likely to skew that appraisal. . . . Therefore, a
prosecutor may argue the state’s case forcefully, [but]
such argument must be fair and based [on] the facts in
evidence and the reasonable inferences to be drawn
therefrom.’’ (Citations omitted; internal quotation marks
omitted.) State v. Singh, 259 Conn. 693, 719,
793 A.2d
226 (2002).
Not only were the remarks in this case based on the
evidence presented at trial, to which defense counsel
posed no objection, but they also were relevant to the
charges brought by the state. The prosecutor’s remark
that, during the incident in the summer of 2002, ‘‘[the
defendant] gets so angry and so frustrated, he says,
well, fuck you, bitch’’ is relevant to count four, the
state’s charge of attempted sexual assault of S during
‘‘an uncertain date in the summer of 2002,’’ because it
illustrates that the defendant had an intent to sexually
assault S and became so frustrated that he addressed
his own daughter in vulgar language when he was
unsuccessful. Similarly, the prosecutor’s reference to
the defendant’s comments regarding S’s ‘‘pussy’’ while
having vaginal intercourse with her is relevant to count
five, charging sexual assault in the second degree,
because it illustrates that the defendant and S engaged
in sexual intercourse.22 This reference is also relevant
to count eight, charging risk of injury to a child, because
it illustrates that the defendant caused S to have contact
with his intimate parts in a sexual and indecent manner
that was likely to impair her morals.23
In addition, the defendant’s comments that S should
not give her ‘‘pussy’’ to anyone but him are of a threatening nature and support the state’s theory that S delayed
in her disclosure of the sexual abuse because she was
afraid of the defendant. In fact, all of the prosecutor’s
references support the state’s theory that S also delayed
in her disclosure because of the embarrassing nature
of the incidents. See State v. Felix R.,
319 Conn. 1, 11,
124 A.3d 871 (2015) (prosecutor’s remarks were proper
when, ‘‘[a]lthough the underlying crime was, by its
nature, inherently charged with emotion, the prosecutor
. . . was summarizing evidence that supported [the
state’s] theory of the case’’) Accordingly, contrary to
the defendant’s assertion, the prosecutor was not
appealing to the jurors’ emotions when he made those
remarks; the defendant’s vulgar statements had significant evidentiary value.
Likewise, we disagree with the defendant that the
prosecutor’s characterization of the defendant’s comments as ‘‘vulgar’’ and ‘‘disgusting,’’ and the prosecutor’s remark that ‘‘[t]his is how he talks to a twelve
year old, his own biological daughter,’’ amounted to an
impermissible personal attack on the defendant. We
conclude that the prosecutor’s commentary, which was
based on S’s testimony, was not so gratuitous, crudely
phrased, or inflammatory as to rise to the level of an
improper personal attack. But cf. State v.
Singh, supra,259 Conn. 721 n.27 (prosecutor’s remark that ‘‘[the
defendant] acted innocent the whole time . . . but I
submit to you that that shows the same kind of arrogance that you saw here’’ was improper personal attack
on defendant that was unsupported by evidence
(emphasis omitted; internal quotation marks omitted));
State v.
Williams, supra,204 Conn. 546 (prosecutor’s
remarks during closing argument that defendant was,
among other epithets, ‘‘child-beater,’’ ‘‘baby-beater,’’
‘‘evil man,’’ and ‘‘drunken bum,’’ were improper personal attacks on defendant (internal quotation marks
omitted)).
B
The defendant next claims that certain of the prosecutor’s
remarks constituted unsworn testimony and improperly
vouched for the credibility of the state’s witnesses. We
conclude that some of the challenged remarks, but not
all, were improper.
‘‘A prosecutor, in fulfilling his duties, must confine
himself to the evidence in the record. . . . [A] lawyer
shall not . . . [a]ssert his personal knowledge of the
facts in issue, except when testifying as a witness. . . .
Statements as to facts that have not been proven
amount to unsworn testimony, which is not the subject
of proper closing argument.’’ (Internal quotation marks
omitted.) State v. Singh, supra,259 Conn. 717. Although
prosecutors may not express opinions as to a witness’
credibility, ‘‘[i]t is not improper for [a] prosecutor to
comment [on] the evidence presented at trial and to
argue the inferences that the jurors might draw therefrom . . . . We must give the [jurors] the credit of
being able to differentiate between argument on the
evidence and attempts to persuade them to draw inferences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret knowledge, on the other hand. [A prosecutor] should not be
put in the rhetorical straitjacket of always using the
passive voice, or continually emphasizing that he [or
she] is simply saying I submit to you that this is what the
evidence shows, or the like.’’ (Citation omitted; internal
quotation marks omitted.) State v. Thompson,
266
Conn. 440, 465–66,
832 A.2d 626 (2003). A prosecutor
may also comment on a witness’ testimonial demeanor,
as ‘‘a witness’ demeanor while testifying is visible to
the jurors and properly before them as evidence of . . .
credibility.’’ (Internal quotation marks omitted.) State
v. Courtney
G., supra,339 Conn. 356.
The defendant first claims that the prosecutor’s
remark that ‘‘[t]his isn’t a case of let’s get together and
get our stories straight and make this up,’’ was improper
because the prosecutor vouched for the credibility of
the state’s witnesses. During his rebuttal argument, the
prosecutor stated: ‘‘Let’s look at how this came about
as well, none of these girls who testified, [T], [S], [A],
who are all related to each other, discussed with each
other what happened. This isn’t a case of let’s get
together and get our stories straight and make this up.
That was not the case.’’ The defendant argues that the
challenged remark amounted to unsworn testimony.
We are unpersuaded.
The prosecutor’s remark was based on evidence presented at trial, and he argued an inference that the jury
might draw therefrom. T, S, and A all testified as to how
the disclosures came about. As we noted previously, S
testified that the first time she told T about the incident
was in March, 2017. During that conversation, T revealed
to S that the defendant also had sexually assaulted her.
A few days later, with S not present, T told D about
the assaults on both her and S, and A, who was present
at the time, then revealed what had happened to her.
There was no evidence presented that T, S, and A had
conversations to conspire against the defendant prior
to this chain of disclosures in 2017. Accordingly, the
jury reasonably could have inferred, on the basis of this
evidence, that T, S, and A had not coordinated the
numerous accusations of sexual abuse that they ultimately levied against the defendant in March, 2017, out
of some conspiratorial vengeance. See State v. Stevenson,
269 Conn. 563, 584,
849 A.2d 626 (2004) (prosecutor’s comment ‘‘posited a reasonable inference that the
jury itself could have drawn without access to the [prosecutor’s] personal knowledge of the case’’).24
We also reject the defendant’s contention that the
prosecutor improperly relied on constancy of accusation evidence when making this remark.25 In his closing
argument, defense counsel attacked the state’s case, in
part, due to S’s and A’s delayed reporting of the sexual
abuse. In response, the prosecutor appeared to use
evidence of out-of-court statements, not for its substance, but, in accordance with the trial court’s instruction, only ‘‘to negate any inference that [A] and [S] failed
to tell anyone about the sexual [abuse] and, therefore,
that [A’s] and [S’s] later assertion[s] could not be believed.’’26
The defendant next claims that the prosecutor’s
remark regarding S’s ‘‘flat affect’’ while testifying was
improper because it usurped the jury’s role in judging
S’s credibility. During trial, the state called Catherine
Lewis, a forensic psychiatrist, as an expert witness to
testify regarding the effects of child sexual abuse on
victims and the reasons for victims’ delays in disclosing
their experiences. While discussing the external expressions of trauma victims, Lewis noted that individuals
who experience trauma can be ‘‘very flat.’’ Specifically,
Lewis testified: ‘‘So, what we do see, though, is less
ability—you know, we see less ability to have normal—
for example, normal affect, and that’s, like, the external
expression of emotional. So, traumatized people can
be very flat. You know, they can be talking to you about
very horrible things and just no emotion.’’ Lewis had
no familiarity with the case or the parties when she
testified during the trial. At the conclusion of his closing
argument, the prosecutor commented: ‘‘I think it’s fair
to say, if you saw [S] testify, she had, you can infer,
sort of a flat affect, if you watched her demeanor and
the inflection in her voice and things of that nature.’’
The defendant argues that the prosecutor unduly
influenced the jury by commenting on S’s demeanor
and linking it to Lewis’ testimony. We disagree. The
prosecutor called on the jury to draw a reasonable
inference from the evidence presented at trial, including
S’s testimonial demeanor and Lewis’ testimony on the
effects of trauma, that S’s demeanor and inflection were
consistent with the demeanor of individuals who have
experienced trauma. See State v. Courtney
G., supra,
339 Conn. 355–56 (concluding that it was not improper
for prosecutor to comment on witness’ testimonial
demeanor and to argue inferences to be drawn from
facts in evidence). We find unavailing the defendant’s
argument that this is a matter requiring the jury to have
special expertise, akin to that of making a psychiatric
diagnosis.27
The defendant’s final claim relates to the prosecutor’s
remarks during closing and rebuttal arguments that D
could not explain why she remarried the defendant
because she was exposed to trauma and is a victim of
domestic violence. During closing argument, the prosecutor stated: ‘‘You know, using, again, your common
sense and experience, if she’s physically abused for
years and all this, I think it’s consistent to say [D] may
be someone—considered as someone who has been
exposed to much domestic violence or abuse for many
years, things you can’t explain. She says that she tends
to black out traumatic stuff. This is how—maybe that’s
how she copes with it. Many people deal with something
that traumatic and that pervasive over a long period
of time.’’ During his rebuttal argument, the prosecutor
reiterated: ‘‘[D] can’t explain why she married [the
defendant] a second time. Again, emotionally none of
us may ever understand this, maybe even intellectually,
none of us may ever understand. But that’s what happened, because I would submit, using your common
sense and experience, she may be consistent with someone who is a classic domestic violence victim.’’
The defendant argues that the prosecutor’s remarks
ignored the trial court’s express instruction to the jury,
after granting a motion in limine, that the evidence
of the defendant’s abuse toward D was for a limited
purpose: to explain why S and A had delayed in their
disclosures of the sexual abuse.28 We agree. Although
a prosecutor has significant leeway in closing argument,
evidence that properly was admitted at trial ‘‘may not
be used for a purpose for which it was not admitted.’’
State v. Camacho,
282 Conn. 328, 377,
924 A.2d 99, cert.
denied,
552 U.S. 956,
128 S. Ct. 388,
169 L. Ed. 2d 273
(2007). In the present case, the trial court admitted the
prior misconduct of the defendant as it relates to D for
the limited purpose of explaining why S and A had
delayed in their disclosures of the sexual abuse that
they experienced. The trial court instructed the parties
that the evidence was not to be used for other purposes.
As such, the prosecutor’s remarks, which tie the defendant’s misconduct to D’s decision to remarry the defendant and her inability to explain why she did so, were
improper because they violated the trial court’s limiting
instruction.29
C
Having determined that some of the prosecutor’s
remarks were improper, we now consider whether those
specific remarks deprived the defendant of his due process right to a fair trial. In deciding whether an impropriety deprived the defendant of a fair trial, this court
considers whether ‘‘(1) the impropriety was invited by
the defense, (2) the impropriety was severe, (3) the
impropriety was frequent, (4) the impropriety was central
to a critical issue in the case, (5) the impropriety was
cured or ameliorated by a specific jury charge, and (6)
the state’s case against the defendant was weak due to
a lack of physical evidence.’’ State v. Fauci, 282 Conn.
23, 51,
917 A.2d 978 (2007), citing State v.
Williams,
supra,204 Conn. 540. We must ultimately determine if
the prosecutorial improprieties ‘‘so infect[ed] the trial
with unfairness as to make the resulting conviction a
denial of due process . . . .’’ State v.
Fauci, supra,
26 n.2.
The prosecutor’s remarks were not frequent or
severe. During his lengthy closing argument, the prosecutor briefly insinuated that D could not explain her
remarriage to the defendant because she was exposed
to domestic abuse. During his rebuttal argument, the
prosecutor then made a separate, isolated comment
that D is a ‘‘classic domestic violence victim.’’ See, e.g.,
State v. Payne,
303 Conn. 538, 567,
34 A.3d 370 (2012)
(defendant’s due process rights were not violated when
prosecutor’s statements were isolated and occurred
within lengthy closing argument).
In addition, when evaluating severity, ‘‘we take into
consideration whether defense counsel object[ed] to any
of the improper remarks, request[ed] curative instructions, or move[d] for a mistrial.’’ (Internal quotation
marks omitted.) State v. Warholic,
278 Conn. 354, 398,
897 A.2d 569 (2006). Defense counsel did not object to
the prosecutor’s misuse of the defendant’s prior misconduct as it relates to D, a choice that ‘‘demonstrates that
defense counsel presumably [did] not view the alleged
impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial.’’ (Internal
quotation marks omitted.) State v. Wilson,
308 Conn.
412, 449,
64 A.3d 91 (2013). The improper remarks were
also counterbalanced by the trial court’s instructions
following closing arguments. At the conclusion of the
trial, the trial court clearly and unequivocally instructed
the jury that the evidence of the defendant’s abuse
toward D could only be used to explain why the victims
had delayed their disclosures. See State v. Ceballos,
266
Conn. 364, 413,
832 A.2d 14 (2003) (‘‘[i]n the absence
of an indication to the contrary, the jury is presumed
to have followed [the trial court’s] curative instructions’’
(internal quotation marks omitted)).30 As such, we conclude that the remarks were not so severe as to rise to
the level of egregious conduct and were adequately
addressed by the trial court’s limiting instructions.31
We next consider whether the prosecutorial improprieties were central to critical issues in the case and
whether the improprieties were invited by the defense.
Although the credibility of the witnesses was a central
issue and the remarks had some bearing on credibility,
the defendant’s reliance on centrality is counterbalanced by the fact that the defense, at least in part,
invited the remarks. During closing argument, defense
counsel argued that the state’s case was weak because
D had remarried the defendant and ‘‘the dates that [D
gave did] not square with the dates that are charged
and . . . the testimony of [S] and [A].’’ The prosecutor’s remark in his rebuttal argument, although
improper, appeared to be a response to defense counsel’s argument that D’s remarriage to the defendant and
her recollection of dates that contradicted some of the
dates provided by S and A, in turn, weakened S’s and
A’s credibility.
Finally, we consider whether the state’s case was
strong. ‘‘[T]he sexual abuse of children is a crime [that],
by its very nature, occurs under a cloak of secrecy and
darkness. It is not surprising, therefore, for there to be
a lack of corroborating physical evidence . . . . Given
the rarity of physical evidence in [sexual assault cases
involving children], a case is not automatically weak
just because a child’s will was overborne and he or she
submitted to the abuse . . . . [W]e have never stated
that the state’s evidence must have been overwhelming
in order to support a conclusion that prosecutorial
[impropriety] did not deprive the defendant of a fair
trial.’’ (Citation omitted; internal quotation marks omitted.) State v. Courtney
G., supra, 339 Conn. 365–66.
In the present case, although there was no forensic
evidence collected, the state presented numerous witnesses during trial. The jury heard testimony from S
and A, who described in detail the assaults to which
the defendant had subjected them. In addition, S, when
testifying, provided the jury with an explanation it reasonably could have inferred was the reason for D’s
remarriage to the defendant and the resulting delay
in S’s disclosure—D always put men first before her
children. The jury also heard testimony from T, who
established the defendant’s propensity to commit similar crimes of a sexual nature against other children in
his family, and from E, a friend to whom S had disclosed
the sexual abuse in the past. See footnote 7 of this
opinion. Although the prosecutor’s improper remarks
related to D’s credibility, the state’s case, which
included the testimony of S, A, and T, all three of whom
had experienced the defendant’s sexual abuse, was not
overshadowed by those improper remarks as to D, especially considering the trial court’s jury instructions. On
this record, we are confident that the jury’s verdict
would not have been different in the absence of the
prosecutor’s improper use of the defendant’s prior misconduct. See State v.
Warholic, supra,278 Conn. 396
(whether defendant is ultimately prejudiced ‘‘depends
on whether there is a reasonable likelihood that the
jury’s verdict would have been different [in the absence
of] the sum total of the improprieties’’ (internal quotation marks omitted)).
The judgment is reversed only with respect to count
three of the information and the case is remanded with
direction to render a judgment of acquittal on that count
and to resentence the defendant on the remaining
counts of conviction; the judgment is affirmed in all
other respects.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
1
The defendant appealed directly to this court pursuant to § 51-199 (b) (3).
2
The state did not ultimately bring any charges against the defendant
related to his alleged sexual assault of T because the relevant statute of
limitations had expired. The trial court admitted testimony from T about
these assaults solely as evidence of the defendant’s prior uncharged misconduct. See, e.g., State v. DeJesus, 288 Conn. 418, 463,
953 A.2d 45 (2008).
3
As previously indicated, S was born in 1990.
4
This incident of attempted sexual intercourse with S is the first incident
relevant to the charges brought by the state against the defendant in connection with the defendant’s assaults on S. In count four of the operative
information, the state alleged that, ‘‘on an uncertain date in the summer of
2002,’’ the defendant attempted to commit sexual assault, in violation of
§§ 53a-49 (a) (2) and 53a-70 (a) (2). The state’s eight count information will
be discussed subsequently in this opinion.
5
S often witnessed the defendant abusing D. As we discuss subsequently
in this opinion, evidence related to these incidents was admitted at trial for
the limited purpose of explaining S’s and A’s delay in reporting the defendant’s sexual assaults.
6
The testimony at trial from S, D, and A conflicted as to the precise date
on which the defendant was no longer residing in the Middletown residence.
D’s and A’s testimony also conflicted as to the date when D and the defendant
subsequently remarried. The testimony addressing these topics will be discussed in part I B of this opinion.
7
At trial, S testified that she previously had disclosed the sexual abuse
to a friend, E, and to C, but there was no evidence indicating that either of
them had ever reported the information. At trial, E testified as to the disclosures of sexual abuse that S had made to her.
8
T previously disclosed to D that she had been sexually assaulted by the
defendant before D remarried him. D did not contact the authorities at that
time because she was ‘‘afraid’’ of the repercussions she would face from
the defendant.
9
For the crimes against A alleged in counts one, two and three, the trial
court imposed three concurrent sentences of fifteen years of imprisonment
and five years of special parole, with special conditions. For the crimes
against S alleged in counts four, five, six, seven, and eight, the trial court
imposed four sentences of fifteen years of imprisonment, to be served
concurrently with one another but consecutively to the sentences imposed
on counts one, two, and three.
10
General Statutes § 53-21 (a) (2) provides in relevant part that a person
is guilty of risk of injury to a child when that person ‘‘has contact with the
intimate parts . . . of a child under the age of sixteen years or subjects a
child under sixteen years of age to contact with the intimate parts of such
person, in a sexual and indecent manner likely to impair the health or morals
of such child . . . .’’
We note that § 53-21 was amended by No. 13-297, § 1, of the 2013 Public
Acts and No. 15-205, § 11, of the 2015 Public Acts. Those amendments made
certain changes to the statute that are not relevant to this appeal. In the
interest of simplicity, we refer to the current revision of the statute.
11
The following colloquy occurred between the prosecutor and S during
direct examination:
‘‘Q. Did these incidents [of sexual assault] eventually end or stop for you?
Did [the defendant] eventually stop doing this? And, if so, why?
‘‘A. It did when he—when he moved out.
‘‘Q. When he moved out?
‘‘A. Yes.
‘‘Q. Were there ever times when he had left the house and then come back?
‘‘A. Yes.
‘‘Q. Okay. And why was that? Why did he leave and then come back, do
you know?
‘‘A. Him and mom split apart. Then, they got back together.
‘‘Q. There were times when they would split apart and then they would
come back together?
‘‘A. Yes.
‘‘Q. And, when the times that he was out of the house, did any of the
incidents happen then?
‘‘A. No.
‘‘Q. When he would move back in, what would happen with regard to
these incidents?
‘‘A. It would start up again.
‘‘Q. Okay. And he would . . . do the same things that you mentioned?
‘‘A. Yes.
‘‘Q. Just so the record is clear, he would—he would do vaginal intercourse
with you?
‘‘A. Yes.
‘‘Q. And, then, he would perform oral sex on you?
‘‘A. Yes.
‘‘Q. And, then, you would have to do it on him?
‘‘A. Yes.’’
Subsequently, S testified that the last time the defendant had sexually
assaulted her was in the master bedroom around ‘‘[t]he end of 2006.’’
12
We note that, although § 53a-71 has been amended by the legislature
several times since the events underlying the present case; see, e.g., Public
Acts 2013, No. 13-47, § 1; those amendments have no bearing on the merits
of this appeal. In the interest of simplicity, we refer to the current revision
of the statute.
13
Section 53a-71 (a) (4) is derived from § 213.3 of the Model Penal Code,
which, in turn, was drafted to reach ‘‘one kind of illegitimate use of authority
to gain sexual gratification’’ and ‘‘illicit intercourse achieved by misuse of
a position of authority or control.’’ 2 A.L.I., Model Penal Code and Commentaries (1980) § 213.3, comment 3, p. 387. The official commentary to the
Model Penal Code cites the relationship between a stepparent and a stepchild
as ‘‘a frequent instance of sexual imposition within the family unit,’’ and
also emphasizes that ‘‘probation officers, camp supervisors, and the like’’
are individuals who ultimately have responsibility for the general supervision
of a child’s welfare. Id.
14
By law, both biological parents of a child are legally the child’s guardian,
unless removed as such. See, e.g., General Statutes § 45a-606 (‘‘The father
and mother of every minor child are joint guardians of the person of the
minor, and the powers, rights and duties of the father and the mother in
regard to the minor shall be equal. If either father or mother dies or is
removed as guardian, the other parent of the minor child shall become the
sole guardian of the person of the minor.’’) However, because the state did
not charge the defendant as a guardian under § 53a-71 (a) (4), our analysis
and conclusion in this appeal rest solely on whether the defendant was
responsible for the general supervision of S during the relevant period.
15
When this court decided Burney, subdivision (4) of § 53a-71 (a) was
subdivision (3). In 1983, the legislature renumbered subdivision (3) as subdivision (4). See Public Acts 1983, No. 83-326, §1.
16
Although there was some evidence to support the conclusion that the
defendant in Burney was, in fact, the biological father of the complainant,
her birth certificate listed another man as the father. See State v. Burney,
supra, 189 Conn. 323–24.
17
See footnote 15 of this opinion.
18
We recognize that this court placed great emphasis on the mother’s
decision not to transfer supervision of her child to the defendant in Burney;
see State v. Burney, supra,189 Conn. 328; but the mother’s intention to
relinquish control is not necessarily dispositive. It is only one factor, among
a multitude of others, that courts in this state have considered. See, e.g.,
State v. Richard S.,
143 Conn. App. 596, 604–605,
70 A.3d 1110 (considering
defendant’s parent-child relationship with victim in concluding that there
was sufficient evidence to find guilt under § 53a-71 (a) (4)), cert. denied,
310 Conn. 912,
76 A.3d 628 (2013). We add here the obvious fact that a
biological mother is not solely responsible for the care and supervision of
a child, to the exclusion of a biological father. See footnote 14 of this opinion.
19
The present case does not require us to reconsider our suggestion in
Burney that being responsible for the general supervision of a child is
equivalent to legal guardianship; see State v. Burney, supra,189 Conn. 327;
but we do question that gloss in light of the very large number of children
placed under the supervision of adults—relatives, foster parents, daycare
and other childcare providers, and the like—whose status, although not
akin to that of a legal guardian, makes them ‘‘responsible for the general
supervision of [a child’s] welfare’’ within the meaning of § 53a-71 (a) (4).
20
We likewise reject the defendant’s argument that the state must specify
the dates when the defendant assaulted S. See State v. Stephen J. R., 309
Conn. 586, 601,
72 A.3d 379 (2013) (‘‘[t]o require [a child victim] . . . to
recall specific dates or additional distinguishing features of each incident
would unfairly favor the defendant for the commission of repetitive crimes
against a child victim’’). The state has presented sufficient evidence from
which a jury could conclude that each time S was sexually assaulted between
March 30, 2003, and December 31, 2006, the defendant was an individual
responsible for the general supervision of S.
21
Contrary to the defendant’s assertion, this conclusion also does not
conflict with our holding in State v. Snook, 210 Conn. 244,
555 A.2d 390,
cert. denied,
492 U.S. 924,
109 S. Ct. 3258,
106 L. Ed. 2d 603 (1989). In that
case, the issue centered on whether the defendant, as a biological parent
of the victim, could be subject to prosecution under § 53a-71 (a) (4). Id.,
266. We held that biological parents are not exempt from prosecution under
subsection (a) (4), as long as they are either the victim’s legal guardian or
responsible for the general supervision of the victim’s welfare. Id., 267–68;
see also State v. Richard S.,
143 Conn. App. 596, 604–605,
70 A.3d 1110
(defendant was responsible for victim’s care and general supervision when
defendant, as biological parent, provided victim with food, shelter, and
transportation, and cultivated parent-child relationship, and victim had been
residing with defendant for one month at time of sexual assault), cert.
denied,
310 Conn. 912,
76 A.3d 628 (2013). In the present case, we find that
the defendant, as S’s biological parent, falls within the ‘‘general supervision’’
category under § 53a-71 (a) (4).
22
‘‘Sexual intercourse’’ is defined as ‘‘vaginal intercourse, anal intercourse,
fellatio or cunnilingus between persons regardless of sex.’’ General Statutes
§ 53a-65 (2).
23
The term ‘‘intimate parts’’ is defined as ‘‘the genital area or any substance
emitted therefrom, groin, anus or any substance emitted therefrom, inner
thighs, buttocks or breasts.’’ General Statutes § 53a-65 (8).
24
Although the defendant argues that the prosecutor was improperly referring to the chain of disclosures that initially occurred in 2017, he also argues
that the prosecutor’s remark could have been an improper reference to the
witnesses’ preparations for trial. We disagree with this argument as well.
First, after making that remark, the prosecutor immediately proceeded to
discuss the specific chain of disclosures that occurred in March, 2017. Read
in context, it is clear that the prosecutor was asking the jury to infer that
T, A, and S did not ‘‘get together’’ prior to their disclosures in 2017. Second,
even if some ambiguity remained with respect to that issue, we would not
simply assume that such an improper form of argument was intended. See,
e.g., State v. Luster, 279 Conn. 414, 441,
902 A.2d 636 (2006) (‘‘a court should
not lightly infer that a prosecutor intends an ambiguous remark to have its
most damaging meaning or that a jury, sitting through lengthy exhortation,
will draw that meaning from the plethora of less damaging interpretations’’
(internal quotation marks omitted)).
25
The defendant argues that the prosecutor improperly used evidence
regarding S’s and A’s out-of-court statements about the incidents of sexual
assault, which was admitted by the trial court under the constancy of accusation exception for prior consistent statements, for its substance.
26
The state claims that the defendant’s argument that the prosecutor
violated the trial court’s instruction regarding constancy of accusation evidence is an improper new claim raised for the first time in the defendant’s
reply brief. We disagree. The defendant does not cite new instances of
impropriety in his reply brief. Instead, he raises a new argument in support
of a preexisting claim of impropriety. See Crawford v. Commissioner of
Correction, 294 Conn. 165, 197,
982 A.2d 260 (2009) (‘‘[a]lthough the function
of the appellant’s reply brief is to respond to the arguments and authority
presented in the appellee’s brief, that function does not include raising an
entirely new claim of error’’ (emphasis added; internal quotation marks omitted)).
27
The defendant further argues that this was an improper comment on
the defendant’s guilt. We are unpersuaded. The prosecutor’s comment did
not rise to the level of an improper opinion on the defendant’s guilt, such
as those that this court has previously condemned. See, e.g., State v. Singh,
supra, 259 Conn. 721–22 n.27; see also State v. Whipper,
258 Conn. 229, 270,
780 A.2d 53 (2001) (prosecutor’s remarks that ‘‘[t]his is an overwhelming
case of guilt . . . [the defendant] over there is guilty beyond all doubt’’
was improper personal opinion by prosecutor regarding defendant’s guilt
(internal quotation marks omitted)), overruled in part on other grounds by
State v. Cruz,
269 Conn. 97, 106,
848 A.2d 445 (2004), and State v. Grant,
286 Conn. 499, 535,
944 A.2d 947, cert. denied,
555 U.S. 916,
129 S. Ct. 271,
172 L. Ed. 2d 200 (2008).
28
The state claims that the defendant’s argument that the prosecutor
violated the trial court’s limiting instruction is also an improper new claim
raised for the first time in a reply brief. We again disagree. See footnote 26
of this opinion.
29
The defendant also claims that the prosecutor’s remarks constitute
unsworn testimony because they are not based on reasonable inferences
drawn from the evidence. Having already concluded that the prosecutor’s
remarks on this topic were improper, we need not reach this particular claim.
30
After closing arguments concluded, the trial court instructed the jury
as follows: ‘‘[T]he state offered evidence of the defendant’s allegedly being
physically abusive toward [D]. This evidence was admitted for a limited
purpose only. The evidence is not being admitted to prove any bad character,
propensity, or criminal tendencies of the defendant. Such evidence, if you
believe it, is being admitted solely to explain why the alleged victims delayed
in the responding of the alleged sexual abuse.’’ The trial court gave an almost
identical jury instruction after S testified to the incidents of domestic abuse
against D that she had witnessed.
31
In addition, the defendant’s argument that the remarks regarding domestic violence amounted to the prosecutor’s injecting his own views as to
the credibility of witnesses is further counterbalanced by the court’s jury
instruction after closing arguments. The court stated: ‘‘You should also keep
in mind that arguments and statements by the attorneys and final arguments
or during the course of the case are not evidence. You should not consider
as evidence their recollection of the facts, nor their personal beliefs as to
any facts or as to the credibility of any witness, nor any facts that any attorney
may have presented to you in argument from the attorney’s knowledge that
was not presented to you as evidence during the course of the trial.’’
