State v. Devon D. ( 2016 )

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STATE OF CONNECTICUT v. DEVON D.*
(SC 19379)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.**
Argued January 22—officially released June 14, 2016
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Anne Mahoney, senior assistant state’s
attorney, for the appellant (state).
James B. Streeto, senior assistant public defender,
for the appellee (defendant).
Opinion
ZARELLA, J. After a jury trial, the defendant, Devon
D., was convicted of four counts of sexual assault in
the first degree in violation of General Statutes § 53a-
70 (a) (2), three counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (1), and four
counts of risk of injury to a child in violation of § 53-
21 (a) (2). The charges were brought in three separate
informations and involved allegations made by three of
the defendant’s biological children—C1, C2 and C3.1
From the judgments of conviction, the defendant
appealed to the Appellate Court, which concluded that
the trial court had abused its discretion in two ways—
by permitting the three cases against the defendant to
be tried jointly and by permitting C1 to testify with a
dog at her feet for comfort and support. In the present
appeal, the state contends that the Appellate Court
incorrectly concluded that the trial court had abused
its discretion in denying the defendant’s motion to sever
the three cases and in allowing a dog to be present with
C1 during her testimony. We agree with the state.
The jury reasonably could have found the following
relevant facts and procedural history. The defendant
and his former girlfriend, GF, have several children
together, including a girl, C1, and two boys, C2 and
C3. After the defendant and GF separated in 2005, the
children visited the defendant at his residence or at his
mother’s home. In October, 2009, seven year old C1
told GF that the defendant had put his ‘‘wee-wee’’ on
her stomach and had touched her ‘‘private part’’ with
his fingers. Erin Byrne, a clinical child interview special-
ist for the Children’s Advocacy Center at Saint Francis
Hospital and Medical Center, interviewed C1 in Novem-
ber, 2009, and in March, 2010. In the first interview, C1
‘‘spoke about being in a bedroom [in her grandmother’s
house] with her father and that he had poured some
lotion on her body, as well as poured the white stuff
from his wee-wee on her body, and had contact with
her genitals with his fingers.’’ C1 also disclosed that
the defendant had inserted his finger into her vagina
while bathing her and using a rag, causing her to bleed.
He also forced C1 and her siblings to watch a porno-
graphic movie.
In the second interview, C1 told Byrne that the defen-
dant had penetrated her ‘‘private part’’ with his penis,
had attempted to penetrate her ‘‘butt’’ with his penis
and had ejaculated on her several times. She also told
Byrne that the defendant had forced her to perform
fellatio on him, causing her to vomit. Additionally, C1
told Byrne that the defendant had told her that she
might die from eating meat and that the reason he ‘‘does
the nasty stuff’’ is to get the ‘‘meat’’ she had eaten ‘‘out’’
of her body. C1 told Byrne that the defendant had put
vinegar, or a substance that stung, on her vagina and
in her ear, and that he had tried to put his penis in her
ear, causing it to bleed. C1 stated that these incidents
occurred in her grandmother’s home on different days,
and that the defendant had his clothes off or his pants
pulled down each time. The defendant warned C1 not
to say anything about these incidents.
Nine year old C2 also came forward with allegations
against the defendant in November, 2009. In an inter-
view with Stacy Karpowitz, a child forensic interview
specialist with the Children’s Advocacy Center, C2
stated that, on several occasions, the defendant had
inserted a rag covered finger into his ‘‘butt hole’’ while
C2 was bathing. C2 also stated that the defendant had
rubbed C2’s penis and made it go ‘‘up and down.’’ In
doing so, the defendant sometimes used a rag and some-
times used his hand. Finally, C2 stated that the defen-
dant had made him watch a pornographic movie with
his siblings and had warned him not to say anything.
Also, in November, 2009, Lisa Murphy-Cipolla, a clini-
cal child interview supervisor with the Children’s Advo-
cacy Center, interviewed ten year old C3. C3 stated that
the defendant had inserted his finger into C3’s ‘‘butt’’
on more than one occasion, and that he had been using
a rag, but the rag ‘‘slipped.’’ The defendant also had
squeezed C3’s penis and had pulled back the foreskin
on C3’s penis on multiple occasions. C3 further stated
that the defendant sometimes made him shower with
C2, but he did not see the defendant do anything to C2.
C3, however, had seen the defendant insert his finger
into C1’s ‘‘butt’’ on at least one occasion. Finally, C3
told Murphy-Cipolla that the defendant had made him
watch a pornographic movie with his siblings and had
warned him not to tell GF that the defendant was bath-
ing him.
On the basis of these allegations, the defendant was
arrested and charged with four counts of sexual assault
in the first degree in violation of § 53a-70 (a) (2), three
counts of risk of injury to a child in violation of § 53-
21 (a) (1), and four counts of risk of injury to a child
in violation of § 53-21 (a) (2). During a trial before a
jury, the video-recorded interviews with C1, C2 and C3
were admitted into evidence as full exhibits, and all
three recordings were played for the jury.
In its final charge to the jury, the trial court instructed:
‘‘In a criminal case in which the defendant is charged
with a crime exhibiting abhorrent and compulsive sex-
ual criminal behavior, evidence of the defendant’s com-
mission of another offense or offenses is admissible
and may be considered for its bearing on any matter
to which it is relevant. So for these three cases, you
may use [C2’s] and [C3’s] testimony in this fashion in
[C1’s] case. In [C2’s] case, you may use [C1’s] and [C3’s]
testimony for this specific purpose. In [C3’s] case, [C1’s]
and [C2’s] testimony.
‘‘However, evidence of another offense on its own is
not sufficient to prove the defendant guilty of the crime
or crimes charged in the informations. Bear in mind as
you consider this evidence that, at all times, the state
has the burden of proving beyond a reasonable doubt
that the defendant committed each of the elements of
the offense or offenses charged in each information. I
remind you that the defendant is not on trial for any
act, conduct, or offense not charged in the informations.
With regard to propensity evidence, like other evidence,
you decide to give it the weight you find reasonable.’’
Defense counsel did not object or take exception to
the trial court’s instructions to the jury.
After the jury returned verdicts of guilty as to all
counts, the trial court rendered judgments in accor-
dance with the verdicts. The defendant then appealed
to the Appellate Court, which reversed the judgments
of conviction and remanded the cases for new trials.
State v. Devon D., 150 Conn. App. 514, 550, 90 A.3d 383
(2014). We granted the state’s petition for certification
to appeal from the judgment of the Appellate Court.2
Additional facts will be set forth as necessary.
I
The first question in this certified appeal is whether
the Appellate Court incorrectly concluded that the trial
court had abused its discretion in denying the defen-
dant’s motion to sever the three cases against him. The
state contends that the cases properly were joined for
trial because the evidence in each case would have
been admitted as prior misconduct in the other cases.
We agree with the state.
The following procedural history and facts are rele-
vant to our resolution of this claim. On March 29, 2011,
the defendant filed a motion to sever the cases against
him. During argument before the trial court, defense
counsel claimed that the main concern was that the jury
would aggregate the evidence against the defendant, so
that, even if the evidence on any single charge would
not persuade the jury of his guilt, ‘‘the sum total of all
the charges . . . may persuade the jury that he’s guilty
of all of them.’’ Counsel further argued that, because
the case concerning C1 was more brutal and shocking
than the cases concerning C2 and C3, the jurors might
find the evidence in the first case so offensive that they
would not be able to deliberate objectively with respect
to the remaining two cases. Finally, defense counsel
argued that the cases should be tried separately because
they were complex, involving multiple charges, chil-
dren, witnesses, interviewers and police officers, and
because curative instructions would not be sufficient
to overcome the potential prejudice of trying the
cases jointly.
The state responded that the trial would not be
lengthy or overly complex because it involved easily
separable fact patterns. The state emphasized that many
of the witnesses would be called in all three cases and
that, under State v. DeJesus, 288 Conn. 418, 470–74, 953
A.2d 45 (2008), it expected that evidence in the three
cases would be cross admissible. Finally, the state noted
that each case was ‘‘shocking on its own, so one of
them is not more shocking than the other.’’ Defense
counsel refuted the state’s contention that the evidence
in each case would be admissible as prior misconduct
in the other cases, pointing to the fact that the victims
were different ages, that two victims were male and one
was female, and that the allegations involved different
types of penetration.
After hearing arguments from counsel, the trial court
acknowledged that the allegations in all three cases
were brutal and shocking and recognized the potential
effect on the jurors. The trial court also noted the diffi-
culties involved in satisfying the Boscarino test, which
requires a showing that the cases are discrete and easily
distinguishable, versus the DeJesus test, which requires
a showing that the cases are similar. After considering
these and other factors, including the effect of the trial
on the child victims, the applicable case law, the court’s
ability to permit jurors to take notes and to provide
cautionary instructions, and judicial economy, the court
denied the motion for severance. The court noted in
particular that the cases involved ‘‘discrete and easily
distinguishable factual features,’’ that the trial would
not be lengthy or complex, and that, because the allega-
tions in all three cases were equally brutal and shocking,
‘‘[t]he jurors are going to be shocked to some extent
in all three of these [cases].’’3
The standards for reviewing a trial court’s ruling on
a motion pertaining to joinder are discussed at length
in our decisions in State v. LaFleur, 307 Conn. 115, 159,
51 A.3d 1048 (2012), and State v. Payne, 303 Conn. 538,
544–50, 34 A.3d 370 (2012). In those cases, we rejected
the notion of a blanket presumption in favor of joinder4
and clarified that, when charges are brought in separate
informations, and the state seeks to join those informa-
tions for trial, ‘‘the state bears the burden of proving
that the defendant will not be substantially prejudiced
by joinder pursuant to Practice Book § 41-19. The state
may satisfy this burden by proving, by a preponderance
of the evidence, either that the evidence in the cases
is cross admissible or that the defendant will not be
unfairly prejudiced pursuant to the factors set forth in
State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d
1260 (1987).5 State v. Payne, supra, [549–50].’’ (Footnote
added; internal quotation marks omitted.) State v.
LaFleur, supra, 157. Although the state bears the burden
of proof in the trial court, ‘‘[i]t is the defendant’s burden
on appeal to show that joinder was improper by proving
substantial prejudice that could not be cured by the
trial court’s instructions to the jury . . . .’’ (Internal
quotation marks omitted.) Id., 158. As we emphasized
in LaFleur, ‘‘our appellate standard of review remains
intact. Accordingly, [i]n deciding whether to [join infor-
mations] for trial, the trial court enjoys broad discretion,
which, in the absence of manifest abuse, an appellate
court may not disturb.’’ (Internal quotation marks omit-
ted.) Id.
We start our analysis by determining whether the
evidence in the cases concerning C1, C2 and C3 was
cross admissible, such that evidence in each case would
have been admissible as prior misconduct in the other
cases. In DeJesus, we set forth the following standards
for determining when evidence of prior sexual miscon-
duct is admissible: ‘‘[E]vidence of uncharged sexual
misconduct properly may be admitted in sex crime
cases to establish that the defendant had a tendency
or a propensity to engage in aberrant and compulsive
criminal sexual behavior if: (1) the trial court finds that
such evidence is relevant to the charged crime in that
it is not too remote in time, is similar to the offense
charged and is committed upon persons similar to the
prosecuting witness; and (2) the trial court concludes
that the probative value of such evidence outweighs its
prejudicial effect. In assessing the relevancy of such
evidence, and in balancing its probative value against
its prejudicial effect, the trial court should be guided
by this court’s prior precedent construing the scope
and contours of the liberal standard pursuant to which
evidence of uncharged misconduct previously was
admitted under the common scheme or plan exception.
Lastly, prior to admitting evidence of uncharged sexual
misconduct under the propensity exception . . . the
trial court must provide the jury with an appropriate
cautionary instruction . . . .’’ State v. DeJesus, supra,
288 Conn. 476–77; see also Conn. Code Evid. § 4-5 (b)
(effective January 1, 2012), in 73 Conn. L.J., No. 1, p.
211PB (July 5, 2011) (codifying propensity exception
described in DeJesus).
Recognizing the difficulties of balancing the proba-
tive value of the evidence against its prejudicial effect,
we have held that ‘‘the trial court’s decision will be
reversed only whe[n] abuse of [its] discretion is mani-
fest or whe[n] an injustice appears to have been done.
. . . On review by this court, therefore, every reason-
able presumption should be given in favor of the trial
court’s ruling. . . . State v. Merriam, 264 Conn. 617,
659–61, 835 A.2d 895 (2003).’’ (Internal quotation marks
omitted.) State v. Romero, 269 Conn. 481, 497, 849 A.2d
760 (2004).
Applying these standards in the present case, we con-
clude that the trial court properly exercised its discre-
tion in permitting the cases to be tried together because
the evidence in all three cases was cross admissible.6
Turning first to the question of relevancy, it is undis-
puted that the incidents alleged by C1, C2 and C3 were
proximate in time because all of the alleged misconduct
occurred between January 1, 2006, and August 31, 2009.
See, e.g., State v. Jacobson, 283 Conn. 618, 632–33, 930
A.2d 628 (2007) (upholding admission of uncharged mis-
conduct that occurred approximately six and ten years
before charged offenses). Second, it cannot reasonably
be claimed that C1, C2 and C3 are not sufficiently similar
witnesses. All three victims are prepubescent children
of similar age who are the defendant’s biological chil-
dren. We are not convinced by the defendant’s sugges-
tion that the victims cannot be deemed similar wit-
nesses simply because they do not share the same gen-
der. This singular difference does not outweigh their
shared attributes. See State v. Romero, supra, 269 Conn.
501 (although victims were different genders, both were
prepubescent children who were of similar age when
abuse began and were under defendant’s care when
it occurred).
Finally, the defendant’s conduct with respect to each
victim was sufficiently similar to demonstrate that he
had a propensity toward aberrant sexual behavior. See,
e.g., State v. DeJesus, supra, 288 Conn. 474–75. Because
of the familial relationship, the defendant had access
to and time alone with each victim. All of the sexual
abuse occurred during the defendant’s unsupervised
visitation with the victims, either at his residence or
his mother’s residence. The defendant forced all of the
victims to watch a pornographic movie. Although none
of the victims needed help bathing, the defendant used
the cover of bathing in each case as a means of touching
them inappropriately. In each case, the defendant used
a rag to maintain the pretense of washing, but, in each
case, the purported washing resulted in digital anal or
vaginal penetration. Not only did all three cases involve
allegations that the defendant had used the rag to cam-
ouflage the inappropriate digital penetration, but all
three victims also alleged that the defendant touched
them inappropriately when he was not using the rag.
Lastly, the defendant warned each victim not to tell
anyone about his conduct. Given the extensive similari-
ties between the conduct in the three cases, and in view
of the liberal standard of admissibility governing the
use of prior misconduct evidence in sexual assault
cases, we cannot conclude that the trial court abused
its discretion in denying the motion for severance.
We disagree with the Appellate Court’s conclusions
that ‘‘the only conduct arguably common to all three
victims was the defendant’s insertion of his finger into
their ‘butts’ while they bathed’’ and that C1’s allegations
‘‘reflect[ed] significant qualitative differences from the
facts alleged in the cases involving C2 and C3 . . . .’’
State v. Devon D., supra, 150 Conn. App. 529. Specifi-
cally, the Appellate Court focused on the following dif-
ferences: (1) C1 alleged that the defendant was partially
or fully undressed and that some of the abuse occurred
in the bedroom, whereas C2 and C3 alleged that he
remained clothed and that all of the abuse occurred in
the bathroom; (2) C1 alleged penile penetration and
fellatio, in addition to digital penetration; and (3) the
‘‘alleged conduct toward C1 [unlike the conduct toward
C2 and C3] in no way could have been mistaken for an
aggressive bathing practice.’’ Id., 528.
With respect to the similarity of the charged and
uncharged misconduct, this court has repeatedly recog-
nized that it ‘‘need not be so unusual and distinctive as
to be like a signature . . . .’’ (Internal quotation marks
omitted) State v. Gupta, 297 Conn. 211, 228–29, 998
A.2d 1085 (2010). Rather, the question is whether the
evidence is sufficiently similar to demonstrate a propen-
sity ‘‘to engage in the type of aberrant and compulsive
criminal sexual behavior with which he . . . [was]
charged.’’ (Internal quotation marks omitted.) Id., 224.
As we discussed previously in this opinion, the defen-
dant engaged in multiple types of similar conduct with
all three victims. The fact that the defendant was
unclothed during his abuse of C1 and engaged in addi-
tional types of sexual misconduct with her does not
outweigh these numerous similarities or erode the pro-
bative value of that evidence.
In addition, the fact that the defendant engaged in
additional types of sexual misconduct with C1 does not
render his conduct with her so much more severe and
shocking than his conduct with C2 and C3 that sever-
ance is required. As the trial court noted, the allegations
in all three cases were shocking, and the defendant’s
inappropriate touching and digital penetration of all
three victims can only be characterized as severe. The
fact that the defendant engaged in additional types of
sexual misconduct with C1 does not render the defen-
dant’s conduct toward C2 and C3 any less severe. Even
if the conduct toward C1 was significantly more egre-
gious than his conduct toward C2 and C3, however, this
court previously has upheld the admission of uncharged
sexual misconduct when it differed in degree from the
charged conduct. See, e.g., State v. Jacobson, supra,
283 Conn. 637–38; State v. McKenzie-Adams, 281 Conn.
486, 530–33, 915 A.2d 822, cert. denied, 552 U.S. 888,
128 S. Ct. 248, 169 L. Ed. 2d 148 (2007).
In Jacobson, the defendant hockey coach, Scott
Jacobson, developed close relationships with two boys,
M and B. State v. Jacobson, supra, 283 Conn. 622–23.
He met with them frequently, gave them gifts, became
friends with their mothers, invited them to sleep at his
home and slept in the same bed with them. Id. M alleged
that, during a sleepover, he awoke to find Jacobson
performing oral sex on him. Id., 623. B alleged that,
during a sleepover, he awoke to find Jacobson touching
his penis with his hands and his mouth. Id., 624. B also
alleged that, on subsequent occasions, Jacobson forced
B to touch his penis and attempted to have B sodomize
him. Id., 625. During trial, the court permitted K, the
mother of a boy who had been involved in a close
relationship with Jacobson, to testify as evidence of a
common scheme or plan. Id., 628–30. On appeal, this
court rejected Jacobson’s claim that K’s allegations
were not sufficiently similar to the allegations by M and
B. See id., 637. We concluded that, ‘‘although [Jacobson]
never sexually assaulted K’s son, K’s description of
[Jacobson’s] relationship with and actions toward her
son—in particular, sleeping in the same bed with him
at [Jacobson’s] home—was sufficient to permit an infer-
ence that [Jacobson] was grooming K’s son for the same
kind of sexual abuse that [Jacobson] later inflicted on
M and B.’’ Id.
In McKenzie-Adams, the defendant high school
teacher, Van Clifton McKenzie-Adams, was charged
with multiple counts of sexual assault in connection
with his relationships with two female students, N.R.
and P.L. See State v. McKenzie-Adams, supra, 281 Conn.
490–91. The relationship with both victims began with
intimate conversations in the school library, proceeded
to embraces in the school hallway and ultimately
resulted in sexual relations. See id., 491–95. The state
also introduced the testimony of a third student, R.S.,
who testified that she and P.L. had had a conversation
of a sexual nature with McKenzie-Adams in the school
library and that he had embraced her in a sexual manner
in the school hallways on several occasions. Id., 528.
We concluded that the trial court properly exercised
its discretion in admitting the testimony of R.S. as evi-
dence of a common scheme or plan because McKenzie-
Adams’ sexual misconduct with R.S. was similar to his
sexual misconduct during the initial stages of his rela-
tionships with both N.R. and P.L. See id., 530–31.
In the present case, the sexual misconduct in each
case was much closer in degree of severity than in
Jacobson and McKenzie-Adams. If anything, the basis
for the cross admissibility of the evidence in the present
case is stronger than in Jacobson or McKenzie-Adams
given the extensive similarities between the victims and
their allegations. Moreover, our holdings in State v.
Gupta, supra, 297 Conn. 229, and State v. Ellis, 270
Conn. 337, 358, 852 A.2d 676 (2004), are consistent with
our conclusion that the evidence was cross admissible.
In both of those cases, the charged and uncharged mis-
conduct did not share the significant similarities that
are present here. In Ellis, two of the victims, Julia S.
and Kristin C., played softball for the defendant coach,
Robert Ellis, and alleged that he had touched their
breasts inappropriately. State v. Ellis, supra, 344–46.
The third victim, Sarah S., did not play softball on Ellis’
team but was connected to him through her sister and
her father. Id., 346. Ellis’ conduct toward her started
with explicit telephone conversations and then became
physical. See id., 347–48. Ellis’ behavior progressed
from touching Sarah S. inappropriately, to exposing
himself to her and attempting to force her to touch him
with her hands and mouth, to digital penetration of her
vagina and attempted penile penetration. Id., 347–49.
This court emphasized that ‘‘there were few similari-
ties’’ between Ellis’ abuse of Sarah S. and the other two
victims. Id., 358.
Similarly, in Gupta, we specifically recognized that
there were few similarities between the victims and the
conduct alleged. In that case, the defendant physician,
Sushil Gupta, touched two patients’ breasts inappropri-
ately during a medical examination. State v. Gupta,
supra, 297 Conn. 215–17. With the third victim, who
had been employed by Gupta’s medical group for four
years, Gupta engaged in far more overtly sexual behav-
ior. See id., 217–19. In Gupta, as in Ellis, we emphasized
the lack of similarity between the charged and the
uncharged misconduct, emphasizing that ‘‘the only con-
duct common to all three victims’’ was that Gupta had
felt the victims’ breasts with his fingertips and grabbed
them. Id., 226. In both cases, the uncharged misconduct
had limited relevance because it shared virtually no
similarities with the charged misconduct. That is not
the case here.
Finally, we strongly disagree that, if the cases had
been tried separately, the defendant in the present case
could have raised a plausible claim that he was merely
bathing C2 and C3. Cf. id., 222–33 (Gupta arguably could
assert that improper touching of two victims’ breasts
was part of legitimate medical exam whereas his
improper sexual comments and more overtly sexual
acts toward third victim clearly did not constitute legiti-
mate medical procedure). Notably, the defendant never
claimed that joinder impaired his ability to assert such
a theory with respect to C2 and C3, only that it made
it likely that the jury would aggregate the evidence.
Therefore, the state did not have an opportunity to
make a proffer as to why such a claim would not be
plausible. Accordingly, in view of the evidence pre-
sented by the state, it is clear that the facts simply
would not support this assertion. C2, who was nine
years old at the time of the abuse, testified that he had
been bathing himself since he was five years old, that
nothing had happened to make him especially dirty
before the defendant bathed him, that the defendant
never said anything to indicate that he was showing
C2 how to clean himself appropriately, and that the
defendant penetrated his anus in such a manner as to
cause pain. C2 also testified that, on more than one
occasion, the defendant touched C2’s penis without the
rag and made it go ‘‘up and down.’’ C3, who was ten
years old at the time of the abuse, offered similar testi-
mony as to all of these circumstances, including that
the defendant squeezed C3’s penis and manipulated
the foreskin of his penis on several occasions and for
sufficient duration to cause pain. Given these allega-
tions, the defendant could not make a credible claim
that he was merely vigorously bathing C2 and C3.
Having determined that the misconduct evidence was
relevant to prove that the defendant had a propensity
to engage in aberrant sexual behavior, we turn to
whether the prejudicial value of the evidence out-
weighed its probative value. The defendant claims that
the trial court did not address whether the prejudicial
value of the evidence outweighed its probative value.
He also claims that the trial court’s instructions ‘‘exacer-
bated’’ the prejudicial effect of the misconduct evidence
because ‘‘[t]he jury was told that [it was] to consider
such evidence only to show that the defendant has a
propensity to commit sex offenses.’’ We disagree with
both claims.
‘‘We previously have held that the process of balanc-
ing probative value and prejudicial effect is critical to
the determination of whether other crime[s] evidence
is admissible. . . . At the same time, however, we . . .
do not . . . requir[e] a trial court to use some talis-
manic phraseology in order to satisfy this balancing
process. Rather . . . in order for this test to be satis-
fied, a reviewing court must be able to infer from the
entire record that the trial court considered the prejudi-
cial effect of the evidence against its probative nature
before making a ruling.’’ (Citations omitted; emphasis
omitted; internal quotation marks omitted.) State v.
James G., 268 Conn. 382, 395, 844 A.2d 810 (2004). In
conducting this balancing test, the question before the
trial court ‘‘is not whether [the evidence] is damaging
to the defendant but whether [the evidence] will
improperly arouse the emotions of the jur[ors].’’ (Inter-
nal quotation marks omitted.) State v. Smith, 275 Conn.
205, 218, 881 A.2d 160 (2005).
In the present case, we are satisfied that the trial
court weighed the prejudicial effect of the evidence
against its probative value before ruling on the motion
to sever. The court acknowledged the shocking nature
of the allegations and recognized their potential effect
on the jurors. The court also considered the interests
of judicial economy, the effect of the trial on the child
victims, the applicable case law and the ability to use
cautionary instructions to mitigate any prejudice stem-
ming from the shocking nature of the evidence. Only
after balancing these numerous factors did the trial
court deny the motion for severance.
We also reject the defendant’s claim that the trial
court’s cautionary instructions ‘‘exacerbated’’ any prej-
udice to the defendant by informing the jurors that they
could consider the uncharged misconduct evidence
‘‘only’’ to show that the defendant had a propensity
to engage in such conduct. We do not agree that the
defendant has properly characterized the trial court’s
instruction,7 and, even if we did, there is no merit to
this claim because DeJesus stands for the proposition
that uncharged misconduct evidence in sexual assault
cases ‘‘may be admitted in sex crime cases to establish
that the defendant had a tendency or a propensity to
engage in aberrant and compulsive criminal sexual
behavior’’; State v. DeJesus, supra, 288 Conn. 476; and
requires a cautionary instruction to that effect. Id., 477.
In sum, we conclude that the trial court properly
exercised its discretion in permitting the three cases
against the defendant to be tried jointly. The defendant
cannot demonstrate that he was substantially preju-
diced by the denial of his motion for severance because
the evidence in all three cases would have been cross
admissible to show that the defendant had a tendency
or a propensity to engage in aberrant and compulsive
sexual misconduct.
II
The second issue in this certified appeal is whether
the Appellate Court correctly concluded that the trial
court had abused its discretion in permitting a dog to
sit near C1 during her testimony to provide comfort
and support. The state challenges the Appellate Court’s
conclusion, arguing that the trial court properly exer-
cised its discretion by balancing its determination that
the dog’s presence likely would help C1 to provide
complete and reliable testimony against the possibility
of prejudice to the defendant. We agree with the state.
The following facts and procedural history are rele-
vant to our resolution of this claim. On July 5, 2011,
the state filed a motion to permit a dog ‘‘to sit in close
proximity to [C1] during [C1’s] testimony, provided that
such dog and the dog’s handler shall not obscure [C1]
from the view of the defendant or the jury . . . .’’ The
state filed the motion after C1, who was eight years old
at the time of trial, ‘‘had indicated to the victim witness
advocate that she was concerned about people looking
at her in the courtroom . . . .’’ Recognizing that the
state’s motion presented an issue of first impression in
Connecticut, the court determined that it would con-
duct a full evidentiary hearing in accordance with State
v. Jarzbek, 204 Conn. 683, 704, 529 A.2d 1245 (1987),
cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed.
2d 982 (1988), and would ‘‘apply the more exacting
standard of clear and convincing [evidence] . . . .’’ The
court emphasized that its ‘‘reading of the case law indi-
cate[d] that [the hearing] might not be necessary, but
it appears to be the more prudent course of action
. . . .’’ The state did not object to the hearing but noted
that it did not believe a hearing was necessary.
During the hearing, David Meyers, a licensed clinical
social worker, testified that approximately 40 percent
of his practice during the previous ten years had
involved the treatment of child trauma victims, includ-
ing victims of sexual assault. He testified that the dog
that would sit near C1 during her testimony, Summer,
had been trained to be a service dog and occasionally
provided support to children in his practice who experi-
enced anxiety. At the time of trial, Summer had not yet
been certified as a service dog8 because she had only
just reached the testing age of two. Meyers testified
that he and Summer met C1 two hours before the hear-
ing began. C1 initially refused to touch Summer but
‘‘became more and more comfortable as she began to
pet her. She even touched her teeth and . . . sat with
her on the floor and . . . appeared to be more con-
nected and less fearful.’’ Meyers explained that, in his
practice, Summer ‘‘decreases people’s level of anxiety,
and she increases people’s ability to engage and share
difficult life situations.’’ Meyers testified that he saw a
similar response with C1 and that Summer’s presence
increased C1’s ability to engage, to answer questions
and to talk. After spending one hour with Summer, C1
was ‘‘more visibly relaxed, she was able to talk to [the
prosecutor], she was able to talk to me about anecdotes
about Summer and [was] visibly comfortable.’’ Accord-
ing to Meyers, C1 said that having Summer near her
would ‘‘help her feel more comfortable.’’ When defense
counsel asked Meyers whether he had any way of know-
ing ‘‘whether . . . [C1 would] be able to be more truth-
ful, more reliable, have better memory of events that
are a couple of years old with the presence of a dog
or without a dog,’’ Meyers responded that, in his experi-
ence, ‘‘when kids are anxious, they’re less likely to
be able to talk about those things, memories and life
experiences. [C1] appeared less anxious during our
time, so I’m not sure if that’s a clear answer to your
question, but it would be my opinion, as a dog handler
child therapist, that she appeared more comfortable.’’
In response to questioning from the court, Meyers
explained that Summer would be able to lay still for
five or six hours.
Defense counsel objected to the dog’s presence,
arguing that General Statutes § 54-86g (b),9 which enu-
merates the procedures that a court may employ when
a child testifies in a sexual assault case, does not con-
template the use of dogs. In response to questioning
from the trial court, defense counsel clarified that he
was not making a confrontation clause claim.10 Rather,
he claimed that the defendant’s due process rights
would be prejudiced because Summer’s presence would
improperly influence the jury by making it appear that
C1 is someone with whom the jury should sympathize.
Counsel suggested alternative procedures, such as hav-
ing C1 testify outside the presence of the jury on closed
circuit television or letting her hold a teddy bear or
letting a trusted adult sit by her during her testimony.
He also requested a curative instruction in the event
that the court permitted Summer to be present. The
state emphasized that it had considered counsel’s sug-
gestion to permit GF to sit with C1 but opted not to do
so because the theory of the defense was that GF had
coached her children to make false allegations against
the defendant and because the procedure would defeat
any sequestration order. The state also emphasized that
the court possessed the inherent discretionary author-
ity, ‘‘separate and apart from [§ 54-86g],’’ to permit C1
to testify with Summer nearby. Although the state also
had prepared a motion to permit C1 to testify outside
of the courtroom, it indicated that it would not pursue
that more drastic measure unless it became necessary.
Following the hearing, the court recognized the need
to ‘‘balance the [defendant’s] due process rights . . .
against the need to provide an atmosphere in which all
witnesses can testify and provide the truth reliably, fully
and completely,’’ and emphasized that the defendant
was ‘‘entitled to the jury’s direct observation of all wit-
nesses.’’ The court opined that permitting Summer to
be present would prevent ‘‘the need for the more drastic
and onerous’’ procedure of video recording C1’s tes-
timony.
After taking these considerations into account and
applying a standard of clear and convincing evidence,
the court concluded that it ‘‘should allow all reasonable
tools to make the courtroom a place of comfort and
reliability for any witness, but especially a child witness,
who, it is alleged, has faced child sexual abuse.’’ The
court concluded that permitting Summer to be present
was within its discretion, that C1’s testimony would be
assisted, but not directed, by Summer’s presence, and
that the defendant’s rights would not be prejudiced by
Summer’s presence with proper curative instructions
and safeguards. The court directed that Summer would
be ‘‘put in place [on the witness stand] . . . in such a
way that the dog will not be viewed by the jury in any
way, shape or form,’’11 and solicited suggestions from
counsel with respect to additional safeguards and cura-
tive instructions. Subsequently, counsel stipulated that
the instructions would indicate that ‘‘[t]he witness is
anxious about testifying in front of a group of people.
The dog is not present due to any concern the witness
has with the defendant’s presence. The . . . dog met
the witness [the day before] in preparation for court
trial.’’ The jury heard these instructions when the trial
commenced, just before C1 testified, and as part of the
court’s final charge. Each time the court offered these
instructions, it also admonished the jurors to disregard
the presence of the dog, to draw no inference for or
against any witness using a dog, that sympathy should
play no part in its considerations or ultimate delibera-
tion, and to ‘‘[t]hink of the dog like an interpreter, an
aid to get the witness’ testimony across to you more
clearly.’’
On appeal to the Appellate Court, the defendant
claimed that the trial court’s ruling constituted an abuse
of discretion and violated his confrontation and due
process rights. See State v. Devon D., supra, 150 Conn.
App. 516, 538 and n.9. The Appellate Court concluded
that, although the trial court had the inherent discretion-
ary authority, apart from § 54-86g, to permit Summer
to sit near C1 while she testified, ‘‘the court abused its
discretion in granting the state’s motion to [use this
procedure] . . . because there was no finding [or] . . .
a showing . . . that this special procedure was
needed.’’12 Id., 549. Although the Appellate Court held
that a showing of need was required, it did not discuss
what constitutes a showing of need. The defendant
argues, on appeal to this court, that, under State v.
Jarzbek, supra, 204 Conn. 704, the state was required
to prove a compelling need for Summer’s presence. The
state argues, to the contrary, that the procedures in
Jarzbek do not apply under these circumstances and
that ‘‘the question on appeal is whether the trial court
abused its discretion in balancing the likelihood that
the accommodation—in this case, the . . . dog—
would help [C1] testify truthfully and completely by
reducing . . . her stress or trauma against the poten-
tial for prejudice to the defendant.’’ We agree with the
state. After considering the record and relevant author-
ity, we conclude that the trial court properly exercised
its discretion in granting the state’s motion for spe-
cial procedures.
Whether a trial court may permit a dog to sit near a
witness during testimony in a criminal trial to provide
comfort and support presents a question of first impres-
sion for this court. With respect to statutory authority
for such a procedure, we agree with the Appellate
Court’s analysis and conclusion that § 54-86g (b) does
not specifically authorize the use of a dog. See State v.
Devon D., supra, 150 Conn. App. 541–42. As the Appel-
late Court noted, although § 54-86g enumerates various
special procedures that the court may use when a child
testifies in a case involving sexual assault or abuse, it
does not list the use of a dog among the authorized
procedures. Id., 542.
We further agree with the Appellate Court’s conclu-
sion that, although § 54-86g does not authorize such a
procedure, the trial court has inherent discretionary
authority, separate and apart from the statute, to order
special procedures or accommodations to assist a wit-
ness in testifying. See id., 543. As the Appellate Court
recognized, it is well established that ‘‘[t]he function of
the court in a criminal trial is to conduct a fair and
impartial proceeding. . . . A trial judge in a criminal
case may take all steps reasonably necessary for the
orderly progress of the trial. . . . When the rights of
those other than the parties are implicated, [t]he trial
judge has the responsibility for safeguarding both the
rights of the accused and the interests of the public in
the administration of criminal justice. . . . Moreover,
[t]he [ability] of a witness [to testify reliably] is a matter
peculiarly within the discretion of the trial court and
its ruling will be disturbed only in a clear case of abuse
or of some error in law.’’ (Internal quotation marks
omitted.) Id., quoting State v. Torres, 60 Conn. App.
562, 569–70, 761 A.2d 766 (2000), cert. denied, 255 Conn.
925, 767 A.2d 100 (2001). The trial court may, for exam-
ple, exercise its discretion to permit a child to bring a
special doll or comfort object from home. See State v.
Aponte, 249 Conn. 735, 744–45, 738 A.2d 117 (1999); see
also State v. Torres, supra, 569 (court did not abuse its
discretion in permitting witness’ fiance´ to sit beside her
while she testified); State v. McPhee, 58 Conn. App. 501,
506–508, 755 A.2d 893 (court did not abuse its discretion
in permitting witness to hold stuffed animal while testi-
fying), cert. denied, 254 Conn. 920, 759 A.2d 1026 (2000).
We therefore agree with the Appellate Court’s conclu-
sion that the trial court possessed the broad discretion-
ary authority to order special procedures to ensure that
C1 was able to testify reliably.
We disagree, however, with the Appellate Court’s
conclusion that the trial court abused its discretion in
permitting C1 to testify with Summer at her feet. State
v. Devon D., supra, 150 Conn. App. 550. Specifically,
we disagree with the Appellate Court’s conclusion that
the trial court was required to make an express finding
that ‘‘there was a need for this special procedure to
be implemented for C1, and that use of such special
procedure would not deny the defendant a fair trial.’’
(Emphasis in original.) Id. We conclude that the pivotal
question is not whether the special procedure is neces-
sary but whether it will aid the witness in testifying
truthfully and reliably.13 We further conclude that the
record in the present case demonstrates that the trial
court expressly found that Summer would help C1 to
testify more reliably and completely and that Summer’s
presence would not violate the defendant’s right to a
fair trial. Finally, the record indicates that the trial court
took extensive measures to ensure that the jurors never
saw Summer. On the basis of the record, we conclude
that the trial court properly exercised its discretion.
We start our analysis by clarifying the applicable stan-
dard of review. Although we apply an abuse of discre-
tion standard to review the trial court’s decision to
permit Summer to sit near C1 during her testimony, we
engage in plenary review with respect to the standard
and procedures that the trial court used in making this
determination. See, e.g., In re Tayler F., 296 Conn. 524,
537, 995 A.2d 611 (2010). With respect to those stan-
dards and procedures, the defendant argues that the
trial court was required to find, by clear and convincing
evidence, that the state had shown a compelling need
for the use of Summer. See State v. Jarzbek, supra, 204
Conn. 707. The state contends that the compelling need
test set forth in Jarzbek is not applicable because the
defendant’s right of confrontation is not at issue. We
agree with the state and conclude that the appropriate
standard is whether the trial court has balanced the
extent that the special accommodation will aid the relia-
bility of the witness’ testimony against any possible
prejudice to the defendant’s right to a fair trial.
Because this court has not considered the appro-
priate standards and procedures that apply in this pre-
cise context, we turn to other jurisdictions for guidance.
In the five cases in which courts have considered chal-
lenges to a trial court’s decision to permit a dog to sit
with a testifying witness to provide comfort and sup-
port, all have concluded that the trial court may exercise
its discretion to permit such an accommodation. See
People v. Chenault, 227 Cal. App. 4th 1503, 1517, 175
Cal. Rptr. 3d 1 (2014), review denied, California
Supreme Court, Docket No. S220741 (Cal. October 15,
2014); People v. Spence, 212 Cal. App. 4th 478, 517,
151 Cal. Rptr. 3d 374 (2012), review denied, California
Supreme Court, Docket No. S208415 (Cal. April 10,
2013); People v. Tohom, 109 A.D. 3d 253, 266–67,
969 N.Y.S.2d 123 (2013), appeal denied, 22 N.Y.3d 1203,
9 N.E.3d 918, 986 N.Y.S.2d 423 (2014); State v. Jacobs,
Docket No. 27545, 2015 WL 6180908, *6 (Ohio App.
October 21, 2015), appeal denied, 145 Ohio St. 3d 1406,
46 N.E.2d 701 (2016); State v. Dye, 178 Wash. 2d 541,
553–55, 309 P.3d 1192 (2013). As the court noted in
Jacobs, ‘‘[t]hese cases reveal three principles that guide
us . . . . First, trial courts are in the best position to
determine how to control trial proceedings, especially
the mode of interrogating witnesses. Second, in light
of the trial courts’ position and their discretion, it is
not erroneous for them to approve a variety of special
allowances for child victims of sexual abuse. And, third,
these special allowances may include using a . . . dog
during the child victim’s testimony under certain cir-
cumstances.’’ State v. Jacobs, supra, *6.
In each of these cases, the appellate court upheld
the trial court’s exercise of discretion when it was clear
from the record that the dog’s presence ‘‘would likely
assist or enable [the witnesses] to testify completely
and truthfully without undue harassment or embar-
rassment’’; People v. Chenault, supra, 227 Cal. App. 4th
1520; would make the witness feel ‘‘ ‘more comfort-
able’ ’’; State v. Jacobs, supra, 2015 WL 6180908, *6;
would alleviate the witness’ anxiety and help her to
more easily discuss the conduct at issue; People v.
Tohom, supra, 109 A.D. 3d 267; or would serve to
facilitate the testimony of a witness who was signifi-
cantly anxious about testifying and who had develop-
mental disabilities. State v. Dye, supra, 178 Wash. 2d
554, 557.
In Chenault, the California Court of Appeal held that
‘‘[i]nstead of requiring a case-specific finding that an
individual witness needs the presence of a . . . dog
. . . in exercising its discretion . . . a trial court
should consider the particular facts of the case and the
circumstances of each individual witness and determine
whether the presence of a . . . dog would assist or
enable that witness to testify without undue harassment
or embarrassment and provide complete and truthful
testimony. . . . If the trial court finds that the presence
of a . . . dog would likely assist or enable the individ-
ual witness to give complete and truthful testimony and
the record supports that finding, the court generally
will act within its discretion . . . by granting a request
for the presence of the . . . dog when that witness
testifies.’’ (Footnote omitted.) People v. Chenault,
supra, 227 Cal. App. 4th 1517. After reviewing the record
in Chenault, the California Court of Appeal held that
the trial court properly exercised its discretion, noting
that it ‘‘made implicit findings that the presence of [the
dog] . . . would assist or enable [the child victims] to
testify completely and truthfully without undue harass-
ment or embarrassment.’’ Id., 1520; see also People v.
Tohom, supra, 109 A.D. 3d 256–58, 267 (upholding
decision to allow dog to accompany child witness dur-
ing her testimony when social worker testified that dog
would decrease witness’ anxiety, allow her to communi-
cate better, and better express herself). We find the
reasoning in Chenault and Tohom persuasive because
it focuses the trial court’s attention on the central ques-
tion of whether a special accommodation will serve to
aid a witness in testifying reliably and completely. Such
testimony, in turn, helps to ensure a fair and impar-
tial trial.
We also agree with the state that the compelling need
standard set in Jarzbek does not apply in the present
case because the defendant’s right of confrontation is
not at issue. In State v. Jarzbek, supra, 204 Conn. 684,
this court considered whether a child victim in a case
involving alleged sexual abuse could testify through the
use of a video recording made outside the defendant’s
physical presence. Because this procedure necessarily
infringed on the defendant’s constitutional right of con-
frontation, this court concluded that ‘‘a trial court must
determine, at an evidentiary hearing, whether the state
has demonstrated a compelling need for excluding the
defendant from the witness room during the [video
recording] of a [child] victim’s testimony.’’ Id., 704. This
court also held that the state ‘‘bears the burden of prov-
ing such compelling need by clear and convincing evi-
dence.’’ Id., 705.
The rigorous procedures set forth in Jarzbek are not
appropriate in the present case because the defendant’s
right of confrontation is not at issue. See, e.g., State v.
McPhee, supra, 58 Conn. App. 507–508 (declining to
extend Jarzbek standard to case in which defendant
claimed special accommodations to witness aroused
jurors’ sympathies). Defense counsel informed the trial
court that the defendant was not claiming that Sum-
mer’s presence violated his right of confrontation, and
the defendant makes no claim on appeal that Summer
interfered with counsel’s ability to cross-examine C1
or impeded his view or the jury’s view of C1. In fact,
as the trial court noted, permitting Summer to sit near
C1 during her testimony was intended to obviate the
need for the more drastic measure of securing C1’s
testimony by video recording.
We conclude that the trial court may exercise its
discretion to permit a dog to provide comfort and sup-
port to a testifying witness. Before doing so, the court
must balance the extent to which the accommodation
will help the witness to testify reliably and completely
against any possible prejudice to the defendant’s right to
a fair trial. The trial court should consider the particular
facts and circumstances for the request to have a dog
accompany the particular witness, the extent to which
the dog’s presence will permit the witness to testify
truthfully, completely and reliably, and the extent to
which the dog’s presence will obviate the need for more
drastic measures to secure the witness’ testimony. The
trial court should balance these factors against the
potential prejudice to the defendant and the availability
of measures to mitigate any prejudice, such as limiting
instructions and procedures to limit the jury’s view of
the dog.
Applying these standards in the present case, we con-
clude that the trial court properly exercised its discre-
tion in permitting Summer to sit near C1 during her
testimony. The court heard testimony that C1 was anx-
ious about testifying, that children who are anxious are
less likely to be able to talk about their experiences, and
that Summer made C1 feel more comfortable. Meyers
testified that Summer helped C1 to be less anxious and
more verbal, to engage, to answer questions, and to
talk. On the basis of this evidence, the court found that
C1’s testimony would be ‘‘supported and assisted in an
appropriate manner by [Summer’s] presence . . . .’’
The court recognized its duty to ‘‘balance the [defen-
dant’s] due process rights . . . against the need to pro-
vide an atmosphere in which all witnesses can testify
and provide the truth reliably, fully and completely.’’
In doing so, the court considered a number of factors,
including that the defendant was ‘‘entitled to the jury’s
direct observation of all witnesses,’’ that a dog would
not be able to coach C1’s testimony, and that permitting
Summer to sit near C1 during her testimony would
obviate the need for capturing C1’s testimony through
a video recording. After considering these factors, the
court concluded that the defendant’s rights would not
be prejudiced by Summer’s presence. Moreover, the
jurors never saw Summer because the court excused
the jury prior to C1’s testimony so that Summer would
be on the witness stand, out of view, before the jury
returned. This procedure eliminated the possibility that
the jurors might be swayed by the presence of ‘‘[a] cute
little kid with her cute dog,’’ as the defendant feared.14
After examining the record in the present case, we
conclude that the trial court properly exercised its dis-
cretion in permitting Summer to sit near C1 during her
testimony. We therefore reverse the judgment of the
Appellate Court.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgments of the trial
court.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of
victims of sexual assault 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.
** This case originally was scheduled to be argued before a panel of
this court consisting of Chief Justice Rogers and Justices Palmer, Zarella,
Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers
was not present when the case was argued before the court, she has read
the briefs and appendices, and listened to a recording of oral argument
prior to participating in this decision.
1
To be consistent with the Appellate Court’s decision in the present case,
we refer to the victims as C1, C2 and C3, and refer to the defendant’s former
girlfriend as GF. See State v. Devon D., 150 Conn. App. 514, 516, 90 A.3d
383 (2014).
2
We granted the state’s petition for certification to appeal, limited to the
following two questions: First, ‘‘[d]id the Appellate Court properly conclude
that the trial court erred by joinder of the three sexual assault cases against
the defendant?’’ State v. Devon D., 314 Conn. 909, 100 A.3d 402 (2014).
Second, ‘‘[d]id the Appellate Court properly determine that the trial court’s
decision to allow an eight year old victim to testify accompanied by a comfort
canine constituted an abuse of discretion?’’ Id.
3
Although the trial court did not rule specifically on whether the evidence
would have been cross admissible, it instructed the jury that the evidence
in each case was admissible in the other cases to prove the defendant’s
propensity to commit crimes of an abhorrent and compulsive sexual nature.
We conclude that the Appellate Court properly reviewed the issue of whether
the evidence was cross admissible to show propensity because ‘‘both parties
address[ed] this claim in light of the propensity standard for the admission
of misconduct evidence in cases concerning crimes of a sexual nature that
was adopted in State v. DeJesus, supra, 288 Conn. 470–74’’; State v. Devon D.,
supra, 150 Conn. App. 522 n.5; and because the test for admitting misconduct
evidence to show a common scheme or plan also applies to admitting
misconduct evidence to show a propensity to commit crimes of an abhorrent
and compulsive sexual nature. See State v. DeJesus, supra, 476–77.
4
When the trial in the present case took place, there was a presumption
in favor of joinder. Although the presumption no longer applies; see State
v. Payne, supra, 303 Conn. 548, 549; the trial court’s reliance on the presump-
tion is not dispositive because the question before us on appeal remains
the same. That question is whether the defendant has satisfied his burden
of ‘‘showing that the denial of severance resulted in substantial injustice,
and that any resulting prejudice was beyond the curative power of the
court’s instructions.’’ (Internal quotation marks omitted.) State v. LaFleur,
supra, 307 Conn. 159.
5
In Boscarino, we identified the factors that a trial court should consider
in determining whether separate trials might be necessary to ‘‘avoid undue
prejudice resulting from consolidation of multiple charges for trial. These
factors include: (1) whether the charges involve discrete, easily distinguish-
able factual scenarios; (2) whether the crimes were of a violent nature or
concerned brutal or shocking conduct on the defendant’s part; and (3) the
duration and complexity of the trial. . . . If any or all of these factors
are present, a reviewing court must decide whether the trial court’s jury
instructions cured any prejudice that might have occurred.’’ (Internal quota-
tion marks omitted.) State v. LaFleur, supra, 307 Conn. 156.
6
Because we conclude that the evidence was cross admissible, we need
not consider whether the trial court properly applied the Boscarino factors.
State v. LaFleur, supra, 307 Conn. 155 (‘‘[w]here evidence is cross admissible
. . . our inquiry ends’’); State v. Pollitt, 205 Conn. 61, 68, 530 A.2d 155 (1987)
(when evidence is cross admissible, ‘‘the defendant would not ordinarily be
substantially prejudiced by joinder of the offenses for a single trial’’).
7
The defendant does not raise a formal challenge to the trial court’s
instructions and does not cite to any specific language in the charge. In
addition, defense counsel did not object or take exception to the trial court’s
instructions to the jury at trial.
8
As the Appellate Court noted in its decision, there is a difference between
service dogs, comfort dogs, therapy dogs, companion dogs and facility dogs,
and these and additional terms are often used interchangeably. See State
v. Devon D., supra, 150 Conn. App. 538 n.10. Hereinafter, we use the term
‘‘dog’’ or refer to Summer by name.
9
General Statutes § 54-86g (b) provides: ‘‘In any criminal prosecution of
an offense involving assault, sexual assault or abuse of a child twelve years
of age or younger, the court may, upon motion of the attorney for any party,
order that the following procedures be used when the testimony of the child
is taken: (1) Persons shall be prohibited from entering and leaving the
courtroom during the child’s testimony; (2) an adult who is known to the
child and with whom the child feels comfortable shall be permitted to sit
in close proximity to the child during the child’s testimony, provided such
person shall not obscure the child from the view of the defendant or the
trier of fact; (3) the use of anatomically correct dolls by the child shall be
permitted; and (4) the attorneys for the defendant and for the state shall
question the child while seated at a table positioned in front of the child,
shall remain seated while posing objections and shall ask questions and
pose objections in a manner which is not intimidating to the child.’’
10
We agree with the Appellate Court’s conclusion that the defendant
waived any right to assert that Summer’s presence violated his constitutional
right of confrontation. See State v. Devon D., supra, 150 Conn. App. 538 n.9.
11
The record indicates that Summer was, in fact, put into place on the
stand, out of view, before the jurors entered the courtroom for C1’s testi-
mony. There is nothing in the record to suggest that the jurors ever saw
Summer, and the defendant does not claim that the jurors ever viewed
the dog.
12
The Appellate Court concluded that the defendant had waived his claim
that the trial court’s ruling violated his constitutional right of confrontation;
State v. Devon D., supra, 150 Conn. App. 538 n.9; see footnote 10 of this
opinion; and noted that, because the cases were being remanded for new
trials, there was no need to consider whether any possible prejudice to the
defendant had been cured by the trial court’s instructions. State v. Devon
D., supra, 550 n.13. Those questions are not before us in this certified appeal,
which is limited to whether the Appellate Court properly determined that
the trial court had abused its discretion in permitting Summer to sit near
C1 while she testified. To the extent that the defendant has referred to these
issues in his brief, both claims are unavailing. Not only do we agree with the
Appellate Court’s conclusion that the defendant waived any confrontation
clause claim, but there is nothing in the record to suggest that Summer’s
presence interfered with the ability of defense counsel to view or cross-
examine C1, or interfered with the jury’s view of C1. Similarly, although the
defendant makes the blanket statement that he was harmed by Summer’s
presence because it ‘‘implied that C1 had been traumatized . . . made her
more sympathetic . . . [and] implied she [was] telling the truth,’’ he refers
to nothing in the record to substantiate this statement.
13
Because truthful and reliable testimony is an essential component of a
fair trial, a finding that an accommodation will help a witness to testify
more reliably also constitutes a finding that the accommodation is necessary.
14
The jury was instructed that ‘‘[t]he witness [C1] is anxious about testi-
fying in front of a group of people. The dog is not present due to any concern
the witness has with the defendant’s presence.’’ The court also informed
the jurors that C1 had only just met Summer, and that they were to disregard
Summer’s presence and to ‘‘[t]hink of the dog like an interpreter, an aid to
get the witness’ testimony across to you more clearly.’’ To the extent that
the defendant now claims that the trial court’s instructions actually exacer-
bated any prejudice to the defendant, we note that defense counsel specifi-
cally requested the foregoing instructions.