State v. Wright ( 2016 )

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STATE OF CONNECTICUT v. CHYWON WRIGHT
(SC 19233)
(SC 19234)
Rogers, C. J., and Palmer, Zarella, McDonald, Espinosa,
Robinson and Vertefeuille, Js.
Argued February 10, 2015—officially released April 19, 2016
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were Maureen Platt,
state’s attorney, David A. Gulick, senior assistant
state’s attorney, and Rocco A. Chiarenza, assistant
state’s attorney, for the appellant in Docket No. SC
19233 and the appellee in Docket No. SC 19234 (state).
Annacarina Jacob, senior assistant public defender,
for the appellee in Docket No. SC 19233 and the appel-
lant in Docket No. SC 19234 (defendant).
Opinion
ZARELLA, J. The defendant in these certified appeals,
Chywon Wright, was convicted of various crimes stem-
ming from his involvement in a sexual assault that
occurred on November 1, 2008. On that date, ‘‘the vic-
tim1 accompanied Bryan Fuller, a member of a street
gang, to a vacant second floor apartment at 19 Taylor
Street in [the city of] Waterbury. The victim went to
the apartment expecting Fuller to pay her $250. Fuller’s
fellow gang members, including the defendant, were
present at the apartment. Inside the apartment, several
of the gang members, including the defendant, took
turns openhandedly hitting the victim on her breasts,
buttocks and vagina, and engaged in oral intercourse
with the victim for approximately one-half hour.
‘‘The victim was then moved to a second room. In
this room, the defendant engaged in oral intercourse
with the victim and vaginally penetrated the victim
while wearing a black plastic convenience store bag on
his penis. Also, in that room, several of the defendant’s
fellow gang members engaged in oral, vaginal and anal
intercourse with the victim. These events lasted for
approximately one and one-half hours. Eventually, the
victim left the apartment, wearing her clothes but leav-
ing her shoes, cell phone and purse behind. Shortly
thereafter, the victim went to Saint Mary’s Hospital in
Waterbury, where she reported the sexual assault and
the medical staff [examined her and utilized] a sexual
assault evidence collection kit . . . .’’ (Footnote
added.) State v. Wright, 144 Conn. App. 731, 733–34,
73 A.3d 828 (2013).
Subsequently, the defendant was charged with, and
found guilty of, two counts of aggravated sexual assault
in the first degree in violation of General Statutes § 53a-
70a (a) (4) and one count each of conspiracy to commit
aggravated sexual assault in the first degree in violation
of General Statutes §§ 53a-70a (a) (4) and 53a-48 (a),
conspiracy to commit kidnapping in the first degree in
violation of General Statutes §§ 53a-92 (a) (2) (A) and
53a-48 (a), assault in the third degree in violation of
General Statutes § 53a-61 (a) (1), and conspiracy to
commit assault in the third degree in violation of §§ 53a-
61 (a) (1) and 53a-48 (a).2 The trial court, Cremins, J.,
rendered judgment in accordance with the jury verdict
and sentenced the defendant to a total effective term
of twenty years of incarceration and ten years of spe-
cial parole.
The defendant appealed to the Appellate Court from
the trial court’s judgment, claiming, first, that the trial
court improperly had precluded him from introducing
certain evidence of the victim’s prior sexual conduct,
thereby violating his constitutional rights of confronta-
tion and to present a defense. Id., 735–36. Second, the
defendant claimed that his sentence on all three con-
spiracy counts, which were based on a single agreement
with multiple criminal objectives, violated the double
jeopardy clause of the federal constitution. Id., 745. The
Appellate Court rejected the defendant’s first claim,
concluding that ‘‘[t]he record demonstrates that
although the [trial] court initially precluded the
[defense] from presenting evidence as to the victim’s
prior sexual conduct, it later allowed the [defense] to
present such evidence to the jury.’’ Id., 744–45. The
Appellate Court did agree, however, with the defen-
dant’s double jeopardy claim. See id., 747. The Appellate
Court further concluded that, under State v. Polanco,
308 Conn. 242, 61 A.3d 1084 (2013), the proper remedy
for such violation was to remand the case to the trial
court with direction to vacate the judgment as to two
of the conspiracy counts, to render judgment on one of
the conspiracy counts, and to resentence the defendant
accordingly. State v. Wright, supra, 144 Conn. App. 748–
49. The defendant and state each appealed from the
Appellate Court’s judgment, and we granted certifica-
tion in both appeals. The defendant claims that the
Appellate Court incorrectly concluded that the trial
court had appropriately limited, under General Statutes
§ 54-86f,3 his ability to present evidence of the victim’s
prior sexual conduct. In its appeal, the state argues that
the Appellate Court incorrectly concluded that vacatur
was the appropriate remedy for the double jeopardy
violation stemming from the sentence for the defen-
dant’s conviction on the three conspiracy counts. After
oral argument, we ordered supplemental briefing in the
defendant’s appeal. The parties were asked to brief (1)
whether State v. DeJesus, 270 Conn. 826, 856 A.2d 345
(2004), should be overruled to the extent that it con-
strued the term ‘‘material,’’ as used in § 54-86f (4), to
refer to material in the constitutional sense rather than
the evidentiary sense, (2) if the first question is
answered in the affirmative, whether the trial court
improperly excluded the challenged evidence, and, if
so, whether such error is subject to harmless error
analysis, and (3) if questions one and two are answered
in the affirmative, whether the exclusion of the chal-
lenged evidence was harmless beyond a reasonable
doubt. Additional facts and procedural history will be
set forth as necessary.
I
We first address the defendant’s argument that the
trial court violated his constitutional rights of confron-
tation and to present a defense through its application
of § 54-86f. The defendant contends that the trial court’s
application of § 54-86f, the rape shield statute, improp-
erly precluded defense counsel from questioning the
victim in the presence of the jury about certain sexual
conduct that closely preceded the Taylor Street inci-
dent, namely, (1) the victim’s offer to Fuller to have
sex with multiple men, for multiple hours, for $500, and
(2) the victim’s act of engaging in consensual oral sex
with Fuller and his friend at a different residence on
Wolcott Street in Waterbury for the promise of $250.
The defendant argues that these lines of inquiry would
have supported his defense theory that the Wolcott
Street conduct was part of a larger, consensual, sex-
for-hire transaction that extended to Taylor Street, and
that the victim had fabricated allegations of sexual
assault and other crimes after she was not paid for the
transaction. His alternative defense theory was that he
reasonably believed that the victim had consented to
having sexual relations with him at Taylor Street. Citing
State v. DeJesus, supra, 270 Conn. 826, and Demers v.
State, 209 Conn. 143, 547 A.2d 28 (1988), the defendant
maintains that evidence of a victim’s prostitution may
be relevant and material in a sexual assault case if
consent is raised as a defense. Thus, the defendant
argues that defense counsel should have received
greater latitude in his examination of the victim under
the exception to the rape shield statute providing that
evidence of the sexual conduct of a victim may be
admissible if it is ‘‘so relevant and material to a critical
issue in the case that excluding it would violate the
defendant’s constitutional rights.’’ General Statutes
§ 54-86f (4). In his supplemental brief, the defendant
further claims that this court incorrectly concluded in
DeJesus that evidence must be material in the constitu-
tional sense to be admissible under § 54-86f (4) and,
therefore, should be overruled. Moreover, the defen-
dant avers that the excluded evidence was both relevant
and material in an evidentiary sense and that its exclu-
sion violated his constitutional rights of confrontation
and to present a defense. Finally, the defendant claims
that the state cannot demonstrate that such error was
harmless beyond a reasonable doubt.
In response, the state argues that defense counsel
was allowed to question the victim about the two afore-
mentioned prostitution related topics and thus was not
actually restricted from developing either of the defense
theories of consent.4 In its supplemental brief, the state
agrees with the defendant that DeJesus should be over-
ruled insofar as this court held that the term ‘‘material,’’
in the context of § 54-86f (4), means material in the
constitutional sense. Nevertheless, the state maintains
that the trial court allowed defense counsel to question
the victim and others regarding the $250 payment and
the offer to engage in sexual activities for $500, and,
thus, the court reasonably exercised its discretion and
upheld the defendant’s constitutional rights. The state
also claims that, even if the trial court improperly
excluded the evidence, such error was harmless beyond
a reasonable doubt.
A
The record reveals the following additional facts and
procedural history that are relevant to the resolution
of this claim. On the first day of trial, the state com-
menced its case by calling the victim as a witness. The
victim testified before the jury to the following facts:
On November 1, 2008, she went into a second floor
apartment on Taylor Street because Fuller owed her
money and told her that it was inside. After she entered
the apartment, someone immediately locked the door
behind her. The defendant and his fellow gang members
crowded around the victim, yelled curses at her, yanked
at her clothes, and took turns openhandedly hitting her
breasts, buttocks, and vagina. The victim was frightened
and scared of being hurt, and complied with an order
from Elizer Gibbs, who was the gang’s ringleader, to
remove her clothes and to get on her knees. The defen-
dant then made the victim perform oral sex on him.
Five or six of the defendant’s fellow gang members
similarly forced the victim to have oral sex with them.
The victim later went into a different room where
Gibbs urinated on her face and body. The defendant
then took a plastic bag from the floor, covered his penis
with it, and vaginally penetrated the victim. The victim
explained that this felt as though ‘‘there [were] a thou-
sand knives in [her] vagina.’’ Other gang members there-
after took turns having compelled oral, vaginal, and
anal sex with the victim. They also penetrated the victim
with sex toys that they found in her purse. The gang
members tried to convince a nearby woman, Yamile
Rivera, to partake in penetrating the victim with the
sex toys, but Rivera rebuffed their efforts and instead
punched the victim in the face.
At one point, while the victim was with the gang
members, she used her cell phone to call a friend, Cath-
erine Jortner. The victim was allowed to make the call,
while being monitored on speakerphone, after she told
everyone that ‘‘another girl would come up and . . .
join the fun . . . .’’ When no one appeared to be paying
attention, the victim told Jortner, ‘‘I need help . . . .’’
One of the gang members noticed this cry for help,
however, and ‘‘took the cell phone and said into it, ‘your
friend’s about to get fucked up,’ and then threw the
phone against the wall.’’5 Eventually, after being forced
to engage in additional sexual activities, the victim was
allowed to take a cigarette break on a second floor
porch. On the porch, someone commented that they
could be the victim’s ‘‘pimp . . . .’’ Gibbs interrupted
the victim’s cigarette break by telling her, ‘‘get back in
the house, we’re not done with you yet.’’ Members of
the gang resumed forcing the victim to have various
forms of sex but complained that her vagina was dry.
Someone then inserted a forty ounce beer bottle into
the victim’s vagina and poured beer inside of her. The
victim later saw Fuller in a bathroom and remarked
that what had happened ‘‘was really messed up,’’ to
which Fuller responded that ‘‘it wasn’t supposed to go
down like that.’’ She explained that she understood that
to mean ‘‘that his friends got out of control and that
they weren’t supposed to do that.’’
Finally, the victim was able to dress and leave Taylor
Street but was in such a hurry to do so that she left
her shoes and other personal belongings behind. As the
victim walked home, the defendant followed her, asking
if she ‘‘like[d] what happened in there?’’ The victim,
who was crying, replied, ‘‘no,’’ and the defendant pro-
ceeded to taunt her by telling male bystanders that she
would ‘‘get [them] off’’ for $20. When she arrived home,
the victim told three different friends that she had been
raped and needed to go to the hospital. The victim went
to Saint Mary’s Hospital later that night, where she was
examined and the police were contacted. The victim’s
direct examination concluded with her testimony that
she never consented to having any form of sex with
the defendant, or anyone else, while she was at Tay-
lor Street.
During cross-examination of the victim,6 defense
counsel attempted to ask her why Fuller owed her
money. After the assistant state’s attorney (prosecutor)
objected to that question on the ground that it was
covered by a motion in limine, the trial court excused
the jury from the courtroom. Defense counsel explained
that, although he had not filed any response to the
state’s motion in limine, he was raising consent as a
defense and wished to question the victim about certain
prior sexual conduct pursuant to § 54-86f (4). Under
the circumstances, the trial court determined that it
was necessary to hold a rape shield hearing before the
jury returned.
During the hearing, the victim testified that, prior to
going to Taylor Street, she had a conversation with
Fuller in which she had offered to have sex with him
and three other people for four hours in exchange for
$500. The victim further testified that, ultimately, she
engaged in sexual activities with Fuller and another
person at Wolcott Street for the promise of $250. Fuller
did not have any money when those sexual activities
concluded, however, and took the victim to Taylor
Street. On the way, Fuller explained that there would
be three or four other people at Taylor Street, but the
victim did not believe that there was a plan for her to
have sex with them. After hearing this testimony and
arguments from the state and the defense, the trial court
determined that there was an insufficient offer of proof
to establish the victim’s consent to engage in sexual
relations with the defendant or the defendant’s reason-
able belief that such consent had occurred. Conse-
quently, the trial court ruled that questions about the
victim’s prior sexual conduct at Wolcott Street would
be precluded until the defense presented an adequate
offer of proof as to consent.
Later, during the state’s case-in-chief, the prosecutor
sought to admit a redacted version of the defendant’s
statement to the police into evidence. After excusing
the jury from the courtroom, the trial court reviewed
the redacted text. This portion of the text stated that,
after Fuller and the victim arrived at Taylor Street,
Fuller had pulled the defendant aside to say ‘‘that he
told this girl that he was gonna give her some money
because he was with her all day, and she was giving
him and another boy head all day.’’ The trial court found
that this text reflected the defendant’s knowledge that
the victim was a prostitute and thus implicated the issue
of consent. The trial court ruled that, if the prosecutor
wanted to admit the defendant’s statement to the police
into evidence, he needed to do so using a version that
was not redacted.
Once the jury returned, a complete version of the
defendant’s statement to the police was read into evi-
dence. It included the following admissions: ‘‘[A]round
Halloween, I was over on Taylor Street . . . chilling
with my homies. . . . [We] are all ‘Bloods.’ . . . While
we was there, another guy that is a Blood showed up,
he is [Fuller], and he was with [the victim]. . . . Then
[Fuller] grabbed me aside and said that he told this girl
that he was gonna give her some money because he
was with her all day, and she was giving him and another
boy head all day. Giving head means getting oral sex.
I heard [Fuller] tell this girl that the money he owes
her is upstairs on the second floor but I knew he was
lying to her because he told me that and I also know
that the second floor is a vacant apartment. The girl
kept asking him for the money, so we all went up to
the second floor . . . . The whole time this was going
on the girl thought she was gonna get her money, but
[Fuller] was telling all of us that we was gonna fuck
this girl. . . . I was the first one to get my dick sucked.
[Gibbs] told the girl to suck me first. . . . Then [Gibbs]
was telling us all to smack her ass, so we all took turns
doing it. The reason we do what [Gibbs] says is because
he is a General in the Bloods, which means he is in
charge . . . . I know she didn’t like us smackin her
ass because she told us it hurt and to stop. [Gibbs] told
her to shut up and take it. . . .
‘‘After some time, I started to fuck this girl from
behind. I didn’t have a rubber so I used a black plastic
bag . . . . Then this girl said she wanted to call a friend
. . . to come over. She said that her friend would want
to do this too. While she was on her cell phone, [Gibbs]
snatched the phone from her and threw it. . . . Then
I grabbed the . . . girl and put her head on my dick
so she would suck it. . . . Then the other guys took
turns telling this girl that she better suck their dicks
. . . . We kept telling her that she likes it. I could tell
at this point that this girl wasn’t liking this and she
started to look scared. . . . Then [Gibbs] found some
[sex toys] in this girl’s pocketbook and took them out
and started to use them on the girl. . . . Then the girl
was on her knees and [Gibbs] told her to open her
mouth and, when she opened her mouth, [Gibbs] pissed
in her mouth and all over her. . . . [Gibbs] was telling
[Rivera] to smack the girl but [Rivera] just punched her
in the face. We were all trying to get [Rivera] to mess
around with this girl . . . . The . . . girl then said that
she was scared and afraid that we was gonna kill her.
We was telling her that we ain’t gonna kill her but we
wanna fuck her. I told her to shut up and put my dick
in her mouth, so she did. . . . [W]e wasn’t letting her
leave until we were done with her. . . . [Later on,
someone] put a [forty ounce] bottle of beer in the girl’s
[vagina]. . . . Then the girl left and walked down the
street. A few minutes after she left Taylor Street, I left
too. . . . [A]s I walked by her, I asked her if she liked
what happened, and she was like, ‘no.’ I could see she
was crying real hard. I didn’t say nothing else and just
kept walking and I went home.’’
Subsequently, the prosecutor called Steven Garrett,
one of the defendant’s fellow gang members who was
present at 19 Taylor Street on November 1, 2008. In
large part, Garrett’s testimony was consistent with the
undisputed facts. In his brief, however, the defendant
claims that ‘‘Garrett testified that [the victim] had not
been forced to engage in sex’’ and ‘‘consented’’ to the
sexual acts. This characterization of Garrett’s testimony
is generous. Garrett testified that he personally did not
force the victim to have oral sex and that she seemingly
‘‘accepted’’ having sexual relations with others ‘‘at first
. . . .’’ Indeed, Garrett disclaimed any knowledge as to
whether the defendant had forced the victim to engage
in any sexual acts. Garrett also testified that the victim
looked afraid after Gibbs urinated on her. While he was
in the apartment, Garrett did not think that the victim
was free to leave because Gibbs would not have let
her. In fact, throughout the course of the sexual assault,
Garrett left the apartment at least three times, and, upon
returning each time, the apartment door was locked.
Garrett further testified that, during the victim’s ciga-
rette break, he talked to the victim about ‘‘pimping’’
her. Specifically, he said ‘‘she don’t need to be doing
what she’s doing at that moment in time to get money
when I know people, older guys, that get . . . Social
Security [Income] checks . . . that would . . . give
more for less.’’ The victim did not respond to Garrett.
Later, Garrett took credit for pouring beer into the vic-
tim’s vagina and laughing about it.
The prosecutor also called Fuller as a witness, who
gave inconsistent testimony regarding what the victim
knew prior to and when arriving at Taylor Street. Fuller
initially testified that he brought the victim to Taylor
Street with assurances that she would be paid after she
‘‘[took] care of [his] boys . . . .’’ Fuller then refreshed
his memory with a copy of his statement to the police,
however, and repeatedly testified that the victim was
unaware that she was being brought to Taylor Street
to have sex.7 Near the conclusion of his testimony,
Fuller clarified that there was no preexisting arrange-
ment for the victim to have sex with the gang members
at Taylor Street for money; rather, the victim was merely
expecting to retrieve a $250 payment there. Without the
victim’s knowledge, however, Fuller had called ahead to
two gang members at Taylor Street and told them that
he was bringing the victim over to have sex.8 In his own
words, Fuller’s ‘‘whole intention [was] for [the victim]
to go there and [to] have sex with them,’’ and he ‘‘set
the whole thing up without her know[ledge] [of that
intention] . . . .’’ Fuller testified that, following the vic-
tim’s arrival at Taylor Street, she was forced to give
the defendant oral sex at Gibbs’ urging.9 According to
Fuller, Gibbs was swearing and angrily saying things
like ‘‘give them head, have sex with us or you’re not
going nowhere.’’ Fuller verified that the victim was uri-
nated on, penetrated with a plastic bag, and penetrated
with a forty ounce beer bottle. Fuller also testified that,
during the victim’s subsequent cigarette break, the gang
members told the victim that she could leave, but Fuller
‘‘could tell by [her] facial expression and by her voice
. . . she was a little scared [that], if she left, something
would happen to her.’’ Eventually, Fuller encountered
the victim in the bathroom immediately before she
departed and told her that ‘‘it wasn’t supposed to go
down like that.’’
The defense commenced its case by recalling the
victim as a witness. The victim testified that she had
told Fuller that she would ‘‘do some stuff for 500 bucks.’’
As defense counsel attempted to explore this topic
through questioning, the prosecutor objected, and the
trial court excused the jury from the courtroom. The
victim then explained that the $500 was supposed to
be compensation for activities on Wolcott Street. She
also reiterated that Fuller had told her that she could
collect $250 at Taylor Street. The victim testified that
she had no intention of having sexual relations with
the men at Taylor Street and that she had received
no payment for doing so. Interjecting, the trial court
explained that it was not persuaded that the Wolcott
Street and Taylor Street incidents were part of a single
transaction, and ruled that asking the victim about her
prior sexual conduct on Wolcott Street would not be
allowed pursuant to § 54-86f.
The jury returned, and defense counsel continued
questioning the victim. She denied ever making an offer
to Fuller to have sex with multiple people at Taylor
Street for $250 or $500. When the victim was asked,
more generically, if she had a conversation with Fuller
during which ‘‘$500 came up as a fee for [her] services,’’
she responded, ‘‘[r]ight, for Wolcott Street.’’ Using a
copy of the victim’s statement to the police, defense
counsel attempted to refresh her recollection with
respect to the details of this conversation about the $500
fee, but the trial court interrupted and again excused the
jury. Defense counsel explained that, in the victim’s
statement to the police, she had described telling Fuller
‘‘he could do whatever he wanted for four hours [for
$500].’’ The trial court cautioned that, ‘‘[t]o the extent
that the $500 related to discussions at Wolcott Street,
I am not allowing that.’’
Defense counsel then called Fantasia Daniels as the
final defense witness. Daniels testified that she saw the
victim at Taylor Street on the night of the incident and,
moreover, that the victim had said that she was there
‘‘for sex with the guys.’’ According to Daniels, the victim
stated that ‘‘[s]he [had] to use her [sex] toys to get
started’’ and seemed to like what had transpired
because she was smiling during the cigarette break.
Daniels testified that, at the end of the night, the victim
asked Fuller where her $250 was. After Fuller replied
‘‘there’s no [$250],’’ the victim said she was going to
report the matter to the police.10 After this questioning
of Daniels, the defense rested its case.
B
Prosecutions for sexual assault are governed by spe-
cial rules of evidence, including § 54-86f. That statute
‘‘was enacted specifically to bar or limit the use of prior
sexual conduct of an alleged victim of a sexual assault
because it is such highly prejudicial material.’’ (Internal
quotation marks omitted.) State v. Rolon, 257 Conn.
156, 176, 777 A.2d 604 (2001). In enacting § 54-86f, the
legislature intended to ‘‘[protect] the victim’s sexual
privacy and [shield the victim] from undue harassment,
[encourage] reports of sexual assault, and [enable] the
victim to testify in court with less fear of embar-
rassment. . . . Other policies promoted by the law
include avoiding prejudice to the victim, jury confusion
and waste of time on collateral matters.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Chris-
tiano, 228 Conn. 456, 469–70, 637 A.2d 382, cert. denied,
513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994).
Thus, to determine whether the prostitution related
evidence was properly excluded, we must begin our
analysis with the relevant language of the rape shield
statute. Section 54-86f prohibits a defendant from pre-
senting evidence of an alleged sexual assault victim’s
prior sexual conduct, ‘‘unless such evidence is [among
other things] . . . otherwise so relevant and material
to a critical issue in the case that excluding it would
violate the defendant’s constitutional rights.’’ General
Statutes § 54-86f (4).
In State v. DeJesus, supra, 270 Conn. 841–42, we
addressed the meaning of ‘‘material’’ in the context of
§ 54-86f (4). In that case, we concluded that subdivision
(4) of § 54-86f referred to the constitutional standard
for materiality, and, relying on United States v. Agurs,
427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), and
United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375,
87 L. Ed. 2d 481 (1985), held that evidence was material
only ‘‘if, considering the case without the excluded evi-
dence, there is a probability sufficient to undermine
confidence in the guilty verdict.’’ State v. DeJesus,
supra, 842. In the present case, we consider whether
DeJesus was correct on this point.
The defendant and the state both argue that DeJesus
should be overruled insofar as it held that § 54-86f (4)
refers to materiality in the constitutional sense. The
defendant claims that the plain language of the statute
demonstrates that the legislature was referring to noth-
ing more than the ordinary test for the admissibility
of evidence, namely, that the evidence is relevant and
material, and that evidence is material in the evidentiary
sense ‘‘if it is of consequence to the determination of
the action.’’ He further asserts that such a reading of
the statute is supported by the legislative history. In
addition, the defendant contends that our current read-
ing of the statute places trial courts in the nearly impos-
sible position of having to apply an appellate standard
of review at trial. Similarly, the state claims that ‘‘mate-
rial’’ is a legal term of art with two plausible meanings,
namely, materiality in the constitutional sense or mate-
riality in the evidentiary sense, and that the structure
of the rape shield statute supports the inference that
the legislature intended to refer to material in the evi-
dentiary sense. The rape shield statute establishes four
exceptions to the inadmissibility of an alleged victim’s
prior sexual conduct. The first three cover specific
types of sexual conduct evidence11 and the fourth is
a catchall exception that allows for the admission of
unspecified sexual conduct evidence. The first three
exceptions to the rape shield statute, the argument goes,
reflect the legislature’s judgment as to what types of
sexual conduct evidence are material, whereas the
fourth exception allows for the admission of other types
of sexual conduct evidence after materiality has been
established.12 The state claims that there is nothing to
suggest that the legislature intended it to be more diffi-
cult to introduce evidence under the fourth exception
than it is under the first three exceptions.
The interpretation of the term ‘‘material’’ is a question
of statutory construction. When construing a statute,
we strive to determine the legislative intent, and, in
doing so, we begin with the text of the statute. See,
e.g., State v. Smith, 317 Conn. 338, 347, 118 A.3d 49
(2015); see also General Statutes § 1-2z. If the legisla-
ture’s intent is clear from the statute’s language, our
inquiry ends. See State v. Smith, supra, 346–47. If, how-
ever, the statute is ambiguous or its plain meaning yields
an absurd result, we go on to consider extratextual
evidence of its meaning, such as the statute’s legislative
history, the circumstances surrounding its enactment,
the legislative policy the statute implements, and the
statute’s relationship with existing legislation and com-
mon-law principles. E.g., State v. LeFleur, 307 Conn.
115, 126, 51 A.3d 1048 (2012).
The relevant text of § 54-86f (4) provides: ‘‘In any
prosecution for sexual assault . . . no evidence of the
sexual conduct of the victim may be admissible unless
such evidence is . . . otherwise so relevant and mate-
rial to a critical issue in the case that excluding it would
violate the defendant’s constitutional rights.’’ The stat-
ute does not define the term ‘‘material.’’ Generally, when
a statutory term is not defined, we presume that it was
intended to have its ordinary meaning as expressed in
standard dictionaries. See, e.g., State v. LaFleur, supra,
307 Conn. 128. In the present case, however, we believe
that ‘‘material’’ is a legal term of art because it is used
in conjunction with ‘‘relevant’’ and is found in an eviden-
tiary statute. Thus, we will look to legal dictionaries
and authorities to ascertain its meaning.
Around the time § 54-86f was enacted in 1982; see
Public Acts 1982, No. 82-230; Black’s Law Dictionary
defined ‘‘material’’ as: ‘‘[i]mportant; more or less neces-
sary; having influence or effect; going to the merits;
having to do with matter, as distinguished from form.
Representation relating to matter which is so substan-
tial and important as to influence party to whom made
is material.’’ (Internal quotation marks omitted.) Black’s
Law Dictionary (5th Ed. 1979) p. 880. The fifth edition
of Black’s Law Dictionary also provided the following
definition for ‘‘material evidence’’: ‘‘That quality of evi-
dence which tends to influence the trier of fact because
of its logical connection with the issue. Evidence which
has an effective influence or bearing on question in
issue is material. . . . Materiality of evidence refers to
pertinency of the offered evidence to the issue in dis-
pute. . . . Material evidence is evidence which is mate-
rial to question in controversy, and which must
necessarily enter into the consideration of the contro-
versy, and which by itself or in connection with other
evidence is determinative of the case.’’ (Citations omit-
ted; internal quotation marks omitted.) Id., p. 881. In
light of the foregoing definitions, we might conclude
that § 54-86f (4) refers to the evidentiary standard of
‘‘material,’’ that is, evidence is material when it has an
influence, effect, or bearing on a fact in dispute at trial.
That is not, however, the only plausible definition.
The law has given ‘‘material’’ another meaning as well,
as we noted in DeJesus. See State v. DeJesus, supra,
270 Conn. 841–42. In DeJesus, we adopted the United
States Supreme Court’s constitutional standard for
materiality in determining the meaning of material in
§ 54-86f (4). Id., 841. Under the constitutional standard,
‘‘[e]vidence is material only if there is a reasonable
probability that, had the evidence been [presented at
trial], the result of the proceeding would have been
different.’’ Id., quoting United States v. Bagley, supra,
473 U.S. 682 (opinion announcing judgment). Because
there are two plausible meanings of ‘‘material’’ in the
context of § 54-86f (4), we also must consider extratex-
tual evidence, specifically, the circumstances sur-
rounding the enactment of § 54-86f, the statute’s legi-
slative history, and the policy objectives that § 54-86f
was intended to implement. See, e.g., State v. LaFleur,
supra, 307 Conn. 126.
It is important to understand the state of the law
when the rape shield statute was enacted. See, e.g.,
State v. Fernando A., 294 Conn. 1, 19, 981 A.2d 427
(2009) (‘‘the legislature is presumed . . . to know the
state of existing relevant law when it enacts a statute’’
[internal quotation marks omitted]). In 1978, this court
decided State v. Mastropetre, 175 Conn. 512, 400 A.2d
276 (1978), in which the defendant, Michael Mastrope-
tre, argued that the trial court improperly ruled that a
sexual assault victim did not have to answer defense
counsel’s question regarding whether she had had sex-
ual relations with men other than Mastropetre prior to
the assault. Id., 514. On direct examination, the victim
was asked if Mastropetre had achieved an orgasm dur-
ing the assault, to which she replied: ‘‘ ‘I think so.’ ’’ Id.
Then, during cross-examination, defense counsel asked
the victim whether she was certain that Mastropetre
had an orgasm. Id. The victim responded that she was
not sure. Id. Defense counsel then asked the victim if,
prior to the assault, she had had sexual relations, to
which she responded ‘‘ ‘With him? No.’ ’’ Id. She was
then asked, ‘‘ ‘[w]ith anyone else?’ ’’ Id. She replied:
‘‘ ‘That has nothing to do with this. Why should I answer
that?’ ’’ Id. The trial judge agreed that the victim did
not have to answer the question. Id.
On appeal, Mastropetre argued that the victim’s prior
sexual conduct was relevant to the issues of consent
and the victim’s credibility. Id., 515, 518. We first con-
cluded that the evidence was not admissible as to the
issue of consent because Mastropetre denied engaging
in sexual conduct with the victim, and, therefore, con-
sent was not truly at issue. Id., 516. Moreover, we
acknowledged that the victim’s prior sexual conduct
with people other than Mastropetre was irrelevant to
consent because ‘‘[t]he fact that a [victim] may have
consented to sexual relations with others before does
not, without more, tend to establish that consent was
given on the occasion in question.’’ Id., 517.
We next considered whether such evidence was rele-
vant in weighing the victim’s credibility. See id., 518–20.
We began by dividing that question into two issues: ‘‘(1)
whether the question [posed by defense counsel] was
admissible to impeach the [victim], and (2) whether it
was admissible to clarify the source of semen found in
the [victim] on the night of the alleged crime . . . .’’
Id., 518. On the issue of impeachment, we concluded
that, as a general rule, a victim’s sexual conduct does
not ‘‘reflect [on] his or her credibility,’’ and, therefore,
evidence of such conduct is not admissible for impeach-
ment purposes. Id., 518–19. We did note, however, an
exception to that general rule. When a victim testifies
regarding her chastity prior to the assault, a defendant
is entitled to test that statement during cross-examina-
tion. Id., 518.
As to Mastropetre’s second credibility argument,
namely, clarification regarding the source of the semen,
we approved of his reasoning: ‘‘[Mastropetre’s] reason-
ing is correct: that is, had [defense counsel] asked
whether the [victim] had had sexual relations with
someone other than [Mastropetre] at any time within
the two or three days prior to the assault, the question
would have been [proper] on the issue of whether [Mas-
tropetre] was responsible for the semen, raising doubts
as to the [victim’s] credibility.’’ Id., 519. Defense coun-
sel’s question was not limited to the period immediately
preceding the assault, however, and we thus determined
that the exclusion of the question was proper. See id.,
519–20. Furthermore, we noted that evidence regarding
the semen was not admitted until after defense coun-
sel’s question was asked. Id., 520. We also stated that
it is ‘‘elementary’’ that the question would be improper
under this theory until after evidence of the semen was
presented. Id.
Finally, Mastropetre asserted that barring defense
counsel’s question regarding the victim’s prior sexual
conduct violated his confrontation rights. Id. In resolv-
ing this claim, we recognized that due process requires
that a criminal defendant be afforded a fair opportunity
to present a defense and to confront the witnesses
against him, and that excluding evidence offered by a
defendant, even when such exclusion is in accord with
evidentiary rules, infringes on these rights to some
extent. See id., 520–21. We further noted, however, that,
in cases in which courts had found that the exclusion
of a defendant’s proffered evidence violated his due
process and confrontation rights, ‘‘the excluded evi-
dence was clearly relevant and material to a critical
issue in the case.’’ Id., 521. Because we had determined
that the evidence of the victim’s prior sexual conduct
was not relevant to any issue in Mastropetre’s case,
we concluded that the exclusion of defense counsel’s
question regarding such conduct did not violate Mastro-
petre’s confrontation rights. Id.
In summary, the following can be gleaned from our
decision in Mastropetre. In a trial on sexual assault
charges, the victim’s prior sexual conduct is generally
not relevant to the issues and is therefore inadmissible.
Evidence of such conduct is admissible, however, in
some circumstances. Those circumstances include: (1)
when there is evidence of semen in the victim and the
victim is questioned about his or her sexual conduct
with individuals other than the defendant in the days
prior to the assault to prove the source of that semen;
(2) the victim testifies regarding his or her prior sexual
conduct or chastity, and the defendant tests such asser-
tions on cross-examination; (3) consent is an issue at
trial, and the defendant offers evidence of prior sexual
conduct between the victim and the defendant; and (4)
when excluding the evidence would violate the defen-
dant’s right to confront witnesses and to present a
defense.13 Also evident from Mastropetre is that we
were concerned with excluding evidence that was mate-
rial, in the evidentiary sense, to a matter at issue. When
we spoke of evidence being material, we spoke of its
materiality to a critical issue, and not to the trial as a
whole, as we do when we are concerned about material-
ity in a constitutional sense. We also noted that, when
the defendant’s evidence is irrelevant or more prejudi-
cial than probative, it could be excluded without vio-
lating his constitutional rights and without the need to
consider whether the exclusion of such evidence would
undermine our confidence in the outcome of the trial.
We presume, as we must, that the legislature was
aware of Mastropetre when it enacted § 54-86f in 1982.
See, e.g., State v. Fernando A., supra, 294 Conn. 19.
Even without such a presumption, it is apparent that
the statute was modeled after Mastropetre. For exam-
ple, the four instances we have identified in which a
victim’s sexual conduct can be admitted into evidence
are the same exceptions codified in § 54-86f. Addition-
ally, the Office of Legislative Research prepared a docu-
ment that compared the proposed legislation that
became § 54-86f to our decision in Mastropetre; Letter
from George Coppolo, Research Attorney, Office of Leg-
islative Research, to Representative Alfred J. Onorato,
Connecticut General Assembly (March 10, 1982); and,
in a letter to the Judiciary Committee, the Office of the
Chief State’s Attorney noted that the proposed legisla-
tion was consistent with our decision in Mastropetre.
Letter from Austin J. McGuigan, Chief State’s Attorney,
Office of the Chief State’s Attorney, to Members of the
Judiciary Committee (September 22, 1982). Therefore,
it seems likely that the legislature, when it codified
subdivision (4), used material in the same manner we
did, namely, the evidentiary sense. There is no evidence
that the legislature intended to modify our holding in
Mastropetre. In fact, Senator Howard T. Owens, Jr., in
calling for the passage of the rape shield statute, stated:
‘‘The history of it is that there was case law that kind
of left this with some ambiguity and we wanted to bring
this to a head.’’ 25 S. Proc., Pt. 10, 1982 Sess., p. 3250.
Thus, it appears that § 54-86f was intended to clear up
whatever ambiguities the legislature found in Mastrope-
tre and not to modify or supersede that decision.
Our construction of the term ‘‘material’’ also is sup-
ported by a close look at the legislative history of § 54-
86f. Section 54-86f was enacted in 1982 through the
passage of No. 82-120 of the 1982 Public Acts (P.A. 82-
120). When P.A. 82-120 was discussed on the floor of
the Senate, Senator Owens made clear that the intent
of the bill was to ensure that a victim of sexual assault
could not be questioned about his or her sexual conduct
when such conduct was irrelevant to the issue at trial,
specifically, whether the alleged sexual assault had
occurred. See 25 S. Proc., supra, pp. 3249–50. Senator
Owens noted that such evidence would be admissible,
however, when it was so ‘‘relevant and material to a
critical issue of the case that excluding it would violate
the defendant’s constitutional rights.’’ Id., p. 3249. Sena-
tor Owens illustrated this exception: ‘‘For example, if
an individual were to claim . . . as part of his defense
that the person that he had the contact with was in fact
a prostitute and then there was later a claim of rape
or a situation where someone was hanging around an
[A]rmy base or an [A]ir [F]orce base and enticed people
into these types of situations that would be one of the
situations that would call for constitutional confronta-
tion and due process would require that.’’ Id.
On the House floor, Representative Onorato noted
that P.A. 82-120 dealt with the admissibility of evidence
concerning a sexual assault victim’s prior sexual con-
duct and outlined three instances in which such evi-
dence would be admissible, referring to what would
become subdivisions (1), (2), and (3) of § 54-86f. 25 H.R.
Proc., Pt. 11, 1982 Sess., p. 3532. He further explained:
‘‘There’s also protection . . . for the violation of con-
stitutional rights . . . .’’ Id.
Consideration of these statements leads us to con-
clude that it is difficult to imagine that the term ‘‘mate-
rial’’ meant anything other than material in the
evidentiary sense. Neither Senator Owens nor Repre-
sentative Onorato described a situation in which courts
would consider whether the exclusion of prior sexual
conduct evidence would change the outcome of the
trial or undermine confidence in the verdict. In fact,
Senator Owens gave an example that is particularly
instructive in the present case. He explained that evi-
dence suggesting that a sexual assault victim was a
prostitute would be admissible under the exception
codified in subdivision (4) because the exclusion of
such evidence would violate the defendant’s constitu-
tional rights to due process and confrontation.14 See 25
S. Proc., supra, p. 3249.
In DeJesus, we decided ‘‘that § 54-86f (4) refers to
materiality in its constitutional sense’’ with little expla-
nation. State v. DeJesus, supra, 270 Conn. 842. Indeed,
we did not even consider the other plausible meaning
of ‘‘material’’ discussed in this opinion. Instead, we
chose to follow the definition for material evidence
provided in United States v. Bagley, supra, 473 U.S.
682 (opinion announcing judgment), without explaining
why. State v. DeJesus, supra, 841. We did not engage
in our normal process of statutory construction, and
§ 1-2z was never mentioned, even though it was in effect
at that time.15
Moreover, the construction of § 54-86f (4) set forth
in DeJesus yields an unworkable result, and the court
seemed to acknowledge as much. See id., 842 n.17.
Under the construction we gave the term ‘‘material’’ in
that case, trial courts are left to decide, either prior to
or during trial, whether the exclusion of a particular
piece of evidence will, in the event that the trial results
in a guilty verdict, undermine the court’s confidence in
that verdict. This is a precarious position for a trial
court. First, there will not yet be a guilty verdict when
the court is ruling on the admissibility of the evidence
under § 54-86f (4). Second, the court is asked to deter-
mine whether the evidence would affect the trial’s out-
come before all the evidence has been presented and
all the testimony heard, making it difficult to determine
the impact that the proffered evidence might have on
the trial. Third, implicit in DeJesus is a perplexing prop-
osition. In that case, we appear to suggest that the trial
court could commit error by excluding evidence that the
constitution requires the court to admit and, thereafter,
determine the harmfulness of the court’s error. Finally,
DeJesus directs trial courts, when making an eviden-
tiary ruling, to consider the impact a single piece of
evidence may have on a case, a task we have never
before asked trial courts to conduct when making evi-
dentiary rulings. Instead, the analysis required by
DeJesus is typically reserved for appellate courts, after
all the trial evidence has been introduced, a record
created, and a verdict reached.
In sum, in light of the statute’s text and legislative
history, along with the unworkable result that the court
in DeJesus reached, we conclude that DeJesus improp-
erly construed § 54-86f (4) and now overrule that deci-
sion to the extent that it determined that ‘‘material’’
refers to the constitutional standard for materiality.
Instead, we hold that the legislature intended material
to refer to the evidentiary standard, that is, evidence
is material when it has an influence, effect, or bearing
on a fact in dispute at trial. In addition, we overrule
DeJesus insofar as the court in that case held that ‘‘an
evidentiary ruling that excludes evidence properly
admissible under § 54-86f (4) . . . requires reversal
with no additional evaluation of harm . . . .’’ Id., 845.
C
We now turn to the facts of the present case. Because
the state contends that defense counsel was not pre-
vented from questioning the victim with respect to the
defendant’s theories of consent, we must make a thresh-
old determination as to whether the trial court used
the rape shield statute to limit the questioning of the
victim in the presence of the jury about the following
sexual conduct: (1) the victim’s offer to Fuller to have
sex with multiple men, for multiple hours, for $500; and
(2) the victim’s act of engaging in consensual oral sex
with Fuller and his friend at Wolcott Street for the
promise of $250. Our review of the record reveals that,
following the initial rape shield hearing, the court was
steadfast in its ruling that defense counsel could not
question the victim in the presence of the jury about
her sexual conduct that took place prior to the Taylor
Street incident. At multiple points during the victim’s
testimony before the jury, defense counsel posed ques-
tions regarding the two prostitution related topics. At
each of these points, the trial court ultimately sustained
the prosecutor’s objections to the questions or excused
the jury from the courtroom. The closest defense coun-
sel came to being able to explore the first prostitution
related topic with the victim in the presence of the jury
was when the victim testified that she told Fuller that
she would ‘‘do some stuff for 500 bucks’’ and that she
had a conversation with Fuller in which $500 came up
as a fee ‘‘for [her] services . . . .’’ This vague testimony
does not, however, reflect specifically whether the vic-
tim expressed a willingness, shortly before the Taylor
Street incident, to have sexual relations with multiple
partners for multiple hours. Moreover, defense counsel
was unable to question the victim in the presence of
the jury about the second prostitution related topic,
namely, her act of engaging in consensual oral sex with
Fuller and his friend at Wolcott Street for the promise
of $250. Accordingly, we agree with the defendant that
defense counsel was prevented, by virtue of the trial
court’s application of the rape shield statute, from pur-
suing his desired lines of inquiry before the jury with
respect to the victim’s prior sexual conduct.
Having determined that defense counsel was indeed
precluded from questioning the victim in the presence
of the jury about certain sexual conduct, we must pro-
ceed to consider whether such testimony was so rele-
vant and material to a critical issue in this case—
namely, actual consent or a reasonable belief of con-
sent—that precluding the testimony amounted to a vio-
lation of the defendant’s constitutional rights. See
General Statutes § 54-86f (4). ‘‘Determining whether evi-
dence is relevant and material to critical issues in a
case is an inherently fact-bound inquiry. Relevance [and
materiality depend] on the issues that must be resolved
at trial, not on the particular crime charged.’’ (Internal
quotation marks omitted.) State v. DeJesus, supra, 270
Conn. 837.
‘‘Relevant evidence is evidence that has a logical ten-
dency to aid the trier in the determination of an issue.
. . . One fact is relevant to another if in the common
course of events the existence of one, alone or with
other facts, renders the existence of the other either
more certain or more probable. . . . Evidence is irrele-
vant or too remote if there is such a want of open and
visible connection between the evidentiary and princi-
pal facts that, all things considered, the former is not
worthy or safe to be admitted in the proof of the latter.
. . . In considering whether evidence [is] sufficiently
relevant to fall under one of the exceptions enumerated
in § 54-86f, we have drawn a distinction between, on
the one hand, evidence that is relevant to establish some
portion of the theory of defense or [to] rebut some
portion of the state’s case . . . and, on the other hand,
evidence that is offered as an impermissible attempt to
establish the victim’s general unchaste character [which
is] prohibited by [§ 54-86f].’’ (Internal quotation marks
omitted.) State v. Shaw, 312 Conn. 85, 104–105, 90 A.3d
936 (2014).
We first underscore that the defense did not offer
this sexual conduct evidence to establish the victim’s
‘‘general unchaste character . . . .’’ (Internal quotation
marks omitted.) Id., 105; see also id., 104 (‘‘the defen-
dant bears the burden of showing that the proffered
evidence . . . [is] relevant to the case, rather than . . .
relevant merely to demonstrate the unchaste character
of the victim’’ [internal quotation marks omitted]).
Moreover, the defense did not argue that the victim’s
unchaste character was relevant to the jury’s determina-
tion of her credibility. See Demers v. State, supra, 209
Conn. 156–57 (‘‘[i]t is . . . generally held that a witness’
reputation for being unchaste or a prostitute, or her
prior acts of sexual misconduct are not, in and of them-
selves, relevant to her credibility or veracity as a wit-
ness’’). Instead, as defense counsel explained during
the initial rape shield hearing, he was seeking to show
that the victim negotiated and willingly consummated
a multipartner, multihour, sex-for-hire transaction that
began at Wolcott Street and ended after the ensuing
intercourse with the defendant at Taylor Street. Later,
outside of the presence of the jury, defense counsel
also attempted to support this theory of actual consent
by establishing that the victim had a motive to fabricate
her allegations of sexual assault and other crimes
because she had not been paid for the transaction at
the end of the night.
The defense’s theory of actual consent harmonized
with the proffered evidence. Defense counsel did not
attempt to elicit testimony of the victim’s prior conduct
as a prostitute that was unrelated to the charges against
the defendant. Instead, the defense wanted the jury to
hear that the victim, shortly before arriving at Taylor
Street, (1) offered to engage in sexual relations with
Fuller and three other men for four hours in exchange
for $500, and (2) engaged in consensual sexual relations
with Fuller and his friend for the promise of $250. The
proffered evidence had a strong temporal connection
with the sexual assault and showed that the victim’s
offer to engage in a multipartner, multihour, sex-for-
hire transaction was made to Bryan Fuller, the individ-
ual who accompanied her to Taylor Street. There can
be no doubt that this excluded testimony makes the
defendant’s wholesale transaction theory of consent
more probable. These two pieces of information could
suggest that the victim brokered a consensual prostitu-
tion deal with Fuller that was only partially performed
at Wolcott Street, with an expectation that more sexual
relations and complete payment would follow at Taylor
Street.16 Moreover, the excluded testimony also was
relevant to the defendant’s claim that the victim had
fabricated her allegations. Without the testimony that
the victim had offered to engage in sexual relations
with multiple men, there was no evidence that would
explain to the jury why she may have fabricated the
sexual assault allegations as a result of not receiving
the promised $250. See State v. DeJesus, supra, 270
Conn. 840 (‘‘[e]vidence suggesting a motive for a false
allegation was relevant to the jury’s assessment of the
victim’s credibility’’).
Next, we address the materiality of the evidence.
Material evidence is evidence that has an influence,
effect, or bearing on a fact in dispute at trial. See part
I B of this opinion. As we just noted, the proffered
evidence was relevant to the question of whether the
sexual conduct on Taylor Street was a continuing, sex-
for-hire transaction. In turn, whether the sexual rela-
tions on Wolcott and Taylor Streets were part of a
continuous transaction influences or bears on the criti-
cal issue in the case, namely, whether the victim con-
sented to the sexual conduct with the defendant at
Taylor Street or, alternatively, whether the defendant
could reasonably have so believed that she had done
so. Thus, because the evidence has a bearing on the
critical issue of consent, it is material.
Our conclusion that the excluded testimonial evi-
dence was relevant and material does not end our analy-
sis as to whether it should have been admitted pursuant
to § 54-86f (4). That provision also demands that the
exclusion of such evidence deprive the defendant of a
constitutionally protected right. See General Statutes
§ 54-86f (4).17
It is fundamental that the defendant’s rights to con-
front the witnesses against him and to present a defense
are guaranteed by the sixth amendment to the United
States constitution. The sixth amendment provides in
relevant part: ‘‘In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the
witnesses against him; [and] to have compulsory pro-
cess for obtaining witnesses in his favor . . . .’’ ‘‘A
defendant’s right to present a defense is rooted in the
compulsory process and confrontation clauses of the
sixth amendment . . . . See, e.g., Crane v. Kentucky,
476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636
(1986). Furthermore, the sixth amendment rights to
confrontation and to compulsory process are made
applicable to state prosecutions through the due pro-
cess clause of the fourteenth amendment. Pointer v.
Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d
923 (1965) (right to confrontation); see Washington v.
Texas, 388 U.S. 14, 18, 87 S. Ct. 1920, 18 L. Ed. 2d
1019 (1967) (right to compulsory process).’’ (Internal
quotation marks omitted.) State v. West, 274 Conn. 605,
622–23 n.26, 877 A.2d 787, cert. denied, 546 U.S. 1049,
126 S. Ct. 775, 163 L. Ed. 2d 601 (2005).
In plain terms, the defendant’s right to present a
defense is ‘‘the right to present the defendant’s version
of the facts as well as the prosecution’s to the jury
so that it may decide where the truth lies.’’ (Internal
quotation marks omitted.) Id., 624. It guarantees ‘‘the
right to offer the testimony of witnesses, and to compel
their attendance, if necessary . . . .’’ (Internal quota-
tion marks omitted.) Id. Therefore, exclusion of evi-
dence offered by the defense may result in the denial
of the defendant’s right to present a defense. See, e.g.,
State v. Crespo, 303 Conn. 589, 604, 35 A.3d 243 (2012);
State v. Christiano, supra, 228 Conn. 474
The right of confrontation is ‘‘the right of an accused
in a criminal prosecution to confront the witnesses
against him. . . . The primary interest secured by con-
frontation is the right to cross-examination . . . and
an important function of cross-examination is the expo-
sure of a witness’ motivation in testifying. . . . Cross-
examination to elicit facts tending to show motive,
interest, bias and prejudice is a matter of right and may
not be unduly restricted. . . .
‘‘Impeachment of a witness for motive, bias and inter-
est may also be accomplished by the introduction of
extrinsic evidence. . . . The same rule that applies to
the right to cross-examine applies with respect to
extrinsic evidence to show motive, bias and interest;
proof of the main facts is a matter of right, but the extent
of the proof of details lies in the court’s discretion. . . .
The right of confrontation is preserved if defense coun-
sel is permitted to expose to the jury the facts from
which jurors, as the sole triers of fact and credibility,
could appropriately draw inferences relating to the
reliability of the witness. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements [of the confrontation clause] of the
sixth amendment.’’ (Internal quotation marks omitted.)
State v. Baltas, 311 Conn. 786, 798–99, 91 A.3d 384
(2014).
These sixth amendment rights, although substantial,
do not ‘‘suspend the rules of evidence . . . .’’ (Internal
quotation marks omitted.) Id., 799; see also State v.
Hedge, 297 Conn. 621, 634, 1 A.3d 1051 (2010). A court
is not required to admit all evidence presented by a
defendant; nor is a court required to allow a defendant
to engage in unrestricted cross-examination. See, e.g.,
State v. Baltas, supra, 311 Conn. 799. Instead, ‘‘[a] defen-
dant is . . . bound by the rules of evidence in pre-
senting a defense . . . .’’ (Internal quotation marks
omitted.) State v. Hedge, supra, 634. Nevertheless,
‘‘exclusionary rules of evidence cannot be applied
mechanistically to deprive a defendant of his rights
. . . .’’ (Internal quotation marks omitted.) Id. ‘‘Thus,
[i]f the proffered evidence is not relevant [or constitutes
inadmissible hearsay], the defendant’s right[s] to con-
frontation [and to present a defense are] not affected,
and the evidence was properly excluded.’’ (Internal quo-
tation marks omitted.) State v. Baltas, supra, 799; see
also State v. Mastropetre, supra, 175 Conn. 521 (‘‘The
defendant’s right to confront witnesses against him is
not absolute, but must bow to other legitimate interests
in the criminal trial process. . . . Such interests are
implicit in a trial court’s accepted right, indeed, duty, to
exclude irrelevant evidence . . . .’’ [Citations omitted;
internal quotation marks omitted.]).18
There are special considerations in sexual assault
prosecutions that trial courts must keep in mind when
ruling on the admissibility of evidence, such as shielding
an alleged victim from embarrassing or harassing ques-
tions regarding his or her prior sexual conduct. See,
e.g., State v. Christiano, supra, 228 Conn. 469–70.
‘‘Although the state’s interests in limiting the admissibil-
ity of this type of evidence are substantial, they cannot
by themselves outweigh [a] defendant’s competing con-
stitutional interests.’’ Id., 470. As we previously have
observed, evidentiary rules cannot be applied mecha-
nistically to deprive a defendant of his constitutional
rights. E.g., State v. Hedge, supra, 297 Conn. 634.
‘‘We must remember that [t]he determination of
whether the state’s interests in excluding evidence must
yield to those interests of the defendant is determined
by the facts and circumstances of the particular case.
. . . In every criminal case, the defendant has an
important interest in being permitted to introduce evi-
dence relevant to his defense. Evidence is not rendered
inadmissible because it is not conclusive. All that is
required is that the evidence tend to support a relevant
fact even to a slight degree, [as] long as it is not prejudi-
cial or merely cumulative. . . . Whenever the rape
shield statute’s preclusion of prior sexual conduct is
invoked, a question of relevancy arises. If the evidence
is probative, the statute’s protection yields to constitu-
tional rights that assure a full and fair defense. . . . If
the defendant’s offer of proof is . . . more probative
to the defense than prejudicial to the victim, it must be
deemed admissible at trial. . . . When the trial court
excludes defense evidence that provides the defendant
with a basis for cross-examination of the state’s wit-
nesses, [despite what might be considered a sufficient
offer of proof] such exclusion may give rise to a claim
of denial of the right[s] to confrontation and to present a
defense.’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) State v. Rolon, supra, 257
Conn. 176–77.
In the present case, the defendant advanced a single,
continuous transaction theory of the case: (1) the victim
offered to engage in sexual relations with Fuller and
three other men in exchange for $500; (2) shortly before
arriving at Taylor Street, the victim engaged in oral sex
with Fuller and one other man at Wolcott Street; and
(3) Fuller and the victim came to Taylor Street to con-
tinue the bargained for transaction. The evidence that
the defense proffered was, as we previously noted, rele-
vant and material to a single, continuous transaction
theory. By excluding the evidence, however, the trial
court prevented the defense from presenting its version
of the events to the jury, in violation of the defendant’s
right to present a defense. See, e.g., State v. Hedge,
supra, 297 Conn. 634 (‘‘in plain terms the right to present
a defense [is] the right to present the defendant’s ver-
sion of the facts . . . to the jury’’ [internal quotation
marks omitted]). More troubling, the excluded testi-
mony was the only evidence the defense presented to
support its theory of the case. Therefore, the exclusion
of such testimony completely foreclosed the ability of
the defense to present this version of the events to the
jurors.19 Additionally, the defense theory related to a
central and critical question before the jury, namely,
whether the victim consented to the sexual conduct at
Taylor Street. Accordingly, we conclude that the defen-
dant’s right to present a defense was violated when
the trial court excluded the foregoing evidence. See
id., 636–37.
We further conclude that the trial court’s restriction
of defense counsel’s cross-examination of the victim
limited his ability to explore her possible motive for
fabricating her claims of sexual assault, in violation of
the defendant’s right of confrontation. See, e.g., State
v. Baltas, supra, 311 Conn. 798 (‘‘[c]ross-examination
to elicit facts tending to show motive, interest, bias and
prejudice is a matter of right and may not be unduly
restricted’’ [internal quotation marks omitted]). Testi-
mony that the victim had not been paid for sexual con-
duct, particularly if such admission came from the
victim herself, would have allowed the jury to weigh
the victim’s credibility and to consider her possible
motive for fabricating her allegations. We recognized
the defendant’s right to explore this possible motive in
DeJesus. See State v. DeJesus, supra, 270 Conn. 840.
In that case, counsel for the defendant, Luis DeJesus,
Jr., who was charged with sexual assault, wanted to
question the victim about ‘‘whether she had engaged
in prostitution, whether she had told an investigating
officer that she had engaged in prostitution, and
whether [DeJesus] was aware that she had engaged in
prostitution.’’ Id., 831. Defense counsel sought to offer
the testimony to establish that the sex with DeJesus
was consensual and to show the victim’s motive for
fabricating the sexual assault claim. Id., 833–34. The
defense claimed that the victim had fabricated the
charges because, when she demanded $50 after the
sexual relations had concluded, DeJesus gave her only
$30 and refused to pay her the balance. See id., 832–34.
The trial court excluded the evidence, and we con-
cluded that such exclusion was improper. Id., 834–35.
We reasoned that, ‘‘without evidence of the victim’s
prior history of prostitution, the jury heard no evidence
to explain why she would have had a reason to fabricate
a sexual assault allegation against [DeJesus].’’ Id., 840.
Similarly, in the present case, without the victim’s testi-
mony that she was owed $250 for engaging in sexual
conduct with Fuller, a confederate of the defendant’s,
and another person, the jury was without the proper
contextual framework to evaluate the victim’s tes-
timony.
The evidence that the defense proffered, through the
testimony of the victim, was both relevant and material
to a critical issue in this case, namely, consent. More-
over, the exclusion of that evidence deprived the defen-
dant of his constitutional rights of confrontation and
to present a defense. Thus, we conclude the excluded
evidence was admissible under § 54-86f (4)20 and that
the trial court abused its discretion by excluding such
evidence.21 As with all improper evidentiary rulings of
constitutional proportion, we now must consider
whether the exclusion of the evidence was harmless
beyond a reasonable doubt. See, e.g., State v. Shaw,
supra, 312 Conn. 102. ‘‘Whether such error is harmless
in a particular case depends [on] a number of factors,
such as the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumula-
tive, the presence or absence of evidence corroborating
or contradicting the testimony of the witness on mate-
rial points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case. . . . Most importantly, we must
examine the impact of the evidence on the trier of fact
and the result of the trial. . . . If the evidence may
have had a tendency to influence the judgment of the
jury, it cannot be considered harmless.’’ (Internal quota-
tion marks omitted.) Id.
After a complete and thorough review of the record,
we conclude that the trial court’s error was harmless
beyond a reasonable doubt. We first observe that the
defense had available to it other means of directly test-
ing the victim’s credibility. Indeed, defense counsel
questioned the victim in the presence of the jury more
than one-half dozen times about whether she had
intended to collect money in exchange for having sexual
relations at Taylor Street. Every time, the victim
responded to the various permutations of that question
with the answer ‘‘no.’’
Second, Fuller’s testimony, although equivocal at
first, also refutes the existence of an agreement on the
part of the victim to engage in prostitution at Taylor
Street. In fact, he testified that the $250 he owed the
victim was not for sex on Taylor Street. In addition,
Fuller admitted that it was his intention that the victim
have sex with his fellow gang members at Taylor Street
but that the victim was not aware of that intention.
Instead, she accompanied him to Taylor Street under
the false pretense that it was there that she would
receive the money he owed her.
Third, during the assault, the victim called a friend,
namely, Jortner. Both the victim and Jortner testified
that, during the call, the victim stated that she needed
help, after which the phone was taken and a male voice
exclaimed, ‘‘ ‘your friend’s about to get fucked up
. . . .’ ’’ Jortner also testified that the victim sounded
scared during the call and that, after the call, she
attempted to repeatedly reach the victim, but her calls
went directly to voice mail. The occurrence of this call
also was corroborated by the defendant’s statement to
the police, which was admitted into evidence.
Fourth, the victim’s testimony was not the sine qua
non of the state’s case, nor was this case a credibility
contest between the victim and the defendant. Indeed,
the victim’s testimony was largely uncontradicted and,
in fact, supported by the testimony of the defendant’s
confederates, Garrett and Fuller, and the defendant’s
own statement to the police. Moreover, the defendant,
through his statement, and Garrett and Fuller, in their
testimony, all acknowledged that the victim appeared
to be scared. For example, the defendant admitted to
the police that he could tell ‘‘that this girl wasn’t liking
this and she started to look scared’’ and that the victim
said ‘‘she was scared and afraid that we was gonna
kill her.’’
Fifth, Garrett testified that, when the victim and the
other men first entered the second floor apartment at
19 Taylor Street, he remained outside with a few others.
When he did decide to enter, the apartment door was
locked. Subsequently, Garrett left the apartment on
three separate occasions, and, when he returned each
time, the door was locked.
Sixth, and perhaps most damaging, the defendant, in
his statement to the police, stated that he ‘‘grabbed [the
victim] and put her head on [his] dick so she would
suck it.’’ He also said, ‘‘[t]he [victim] kept asking [Fuller]
for the money, so we all went up to the second floor
[at Taylor Street] . . . . The whole time this was going
on the [victim] thought she was gonna get her money,
but [Fuller] was telling all of us that we was gonna fuck
this girl.’’ In addition, Fuller testified that the victim
was forced to give the defendant oral sex at Gibbs’
urging. Even Garrett seemed to suggest that, at least
at some point, the conduct was not consensual.
Lastly, and importantly, defense counsel was not
entirely precluded from testing whether the victim con-
sented to an act of prostitution, although, as we already
noted, he was precluded from exploring the defendant’s
continuous transaction theory. Defense counsel was
allowed to question the victim about whether the $250
she was owed was for sexual intercourse on Taylor
Street. The victim also testified that she had made an
offer to Fuller to ‘‘do some stuff for 500 bucks’’ and
had a conversation with Fuller in which $500 came up
as a fee ‘‘for [her] services . . . .’’ In addition, the defen-
dant’s statement to the police contained the following
admission: ‘‘Then [Fuller] grabbed me aside and said
that he told [the victim] that he was gonna give her
some money because he was with her all day, and she
was giving him and another boy head all day.’’ A jury
could reasonably conclude, from the victim’s testimony
and the defendant’s statement, that the victim had
offered to engage in a sex-for-hire transaction. The
defendant seems to concede as much in his brief:
‘‘Through the testimony [of] Fuller, Garrett and . . .
Daniels, and through [the defendant’s] police statement,
the jury heard evidence to support a reasonable conclu-
sion that [the victim] was a prostitute who engaged in
consensual sexual acts with the men at the Taylor Street
apartment.’’ In light of all this evidence, we are con-
vinced that the trial court’s error was harmless beyond
a reasonable doubt.
II
DOUBLE JEOPARDY CLAIM
We next address the state’s claim that the Appellate
Court improperly concluded that, pursuant to State v.
Polanco, supra, 308 Conn. 242, vacatur is the appro-
priate remedy for the double jeopardy violation caused
by the defendant’s conviction of the three counts of
conspiracy arising from a single agreement with multi-
ple criminal objectives. As an initial matter, the state
acknowledges that, under Connecticut law; see, e.g.,
State v. Ortiz, 252 Conn. 533, 559, 747 A.2d 487 (2000);
it is a double jeopardy violation to impose cumulative
punishments for conspiracy offenses if they arise from
a single agreement with multiple criminal objectives.22
Furthermore, the state recognizes that, pursuant to the
United States Supreme Court’s decision in Rutledge v.
United States, 517 U.S. 292, 302, 116 S. Ct. 1241, 134 L.
Ed. 2d 419 (1996), a cumulative conviction can be a
form of punishment in and of itself because it may lead
a defendant to suffer adverse collateral consequences.
With these concessions in mind, the state narrowly
focuses its argument on the type of remedy that exists
for the defendant’s conviction on the three conspiracy
counts. Specifically, the state argues that ‘‘[t]his court
should limit the reach of Polanco and . . . hold that,
when a defendant receives multiple punishments for
cumulative conspiracy convictions arising from a single
agreement, merger, rather than vacatur, is the proper
remedy . . . .’’ We disagree and conclude that the
Appellate Court properly determined that vacatur was
the appropriate remedy for the defendant’s conviction
on the three conspiracy counts.
In Polanco, we readopted vacatur as the remedy for
a cumulative conviction that violates double jeopardy
protections. State v. Polanco, supra, 308 Conn. 248–49,
255. Although the holding in Polanco was limited to
cases involving greater and lesser included offenses, in
light of the issue presented, this court remarked in
dictum that it was ‘‘aware of no reason why our holding,
of logical necessity, would not apply with equal force to
other scenarios in which cumulative convictions violate
the double jeopardy clause . . . .’’ Id., 249 n.3. Since
Polanco, we have ‘‘continue[d] to end our use of the
merger approach’’ and have required that vacatur be
utilized in other scenarios in which a defendant has
been subject to cumulative convictions in violation of
the double jeopardy clause. State v. Miranda, 317 Conn.
741, 753, 120 A.3d 490 (2015); see also id., 743, 757
(vacating conviction as to felony murder and murder
counts, which violated protection against double jeop-
ardy, because they were cumulative of capital felony
count).
As we already have explained at some length,
extending the vacatur approach ‘‘promote[s] inter-juris-
dictional and intra-jurisdictional harmony, and better
safeguard[s] against unconstitutional multiple punish-
ments.’’ Id., 753. Moreover, we continue to see ‘‘no sub-
stantive obstacle to resurrecting a cumulative convic-
tion that was once vacated on double jeopardy
grounds—provided that the reasons for overturning [a]
controlling conviction would not also undermine the
vacated conviction.’’ Id. Accordingly, we conclude that
the Appellate Court correctly determined that the trial
court was required to vacate the defendant’s conviction
on two of the three conspiracy counts, to render judg-
ment of conviction on one of the conspiracy counts,
and to resentence him on that one conspiracy count.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD, ROBINSON and VERTEFEUILLE, Js., concurred.
1
In accordance with our policy of protecting the privacy interests of
sexual assault victims, we decline to identify the victim. See General Statutes
§ 54-86e.
2
The defendant also was charged with kidnapping in the first degree in
violation of § 53a-92 (a) (2) (A); however, the jury found him not guilty of
that crime.
3
We note that, subsequent to oral argument in the present case, the
legislature amended § 54-86f. See Public Acts 2015, No. 15-207, § 2. The
amendments to the statute, however, have no bearing on the merits of this
appeal. All references to the statute are to the preamendment version of
the statute, which was the version in effect at both the time of the charged
crimes and the defendant’s trial.
4
We note that the state originally argued, in the alternative, that the
prostitution related evidence was not material in the constitutional sense
and, therefore, not admissible under § 54-86f (4) and DeJesus. We need not
reach this argument, however, because we agree with the parties that
DeJesus incorrectly construed the term ‘‘material.’’
5
Jortner also was a witness for the state. She testified that the victim
called her on the night in question and that, ‘‘[i]n the beginning, [the victim]
was trying to act normal, [to] ask me if I would come . . . to Waterbury.’’
Jortner testified that the victim started to sound scared and whispered
‘‘[t]hat she was in trouble and she was on Taylor Street.’’ After the victim
said she was in trouble, ‘‘a male voice came on the phone . . . said ‘your
girl’s about to get fucked up,’ and the phone went dead.’’
6
In his brief, the defendant argues that the victim’s ‘‘memory failed her
on important facts.’’ Based on our review of the record, we disagree with
aspects of how the defendant has attempted to characterize the victim’s
testimony on cross-examination. For example, after the victim testified that
she was led up to the second floor of Taylor Street, she merely admitted
that she could not remember the precise position of the stairway because
that was an insignificant part of a ‘‘traumatic’’ memory that was three years
old. Moreover, although the victim was unsure of exactly how many people
went into the apartment, she did list many of the entrants by name, including
the defendant. Furthermore, the victim qualified that she did not ‘‘blackout’’
the night’s events but simply could not recall whether her transition between
the two rooms was prompted by a summons or by someone physically
moving her.
7
We do note, however, that Fuller repeated his testimony to the contrary,
namely, that the victim was aware that she was going to Taylor Street to
have sex with his fellow gang members and that the $250 he owed the victim
was in return for the sexual acts at Taylor Street. Fuller also testified that,
while the victim was standing next to him, he told Gibbs that she ‘‘was
willing to do whatever’’ and explained that she wanted to have sex with
them before collecting the money.
8
The defendant was not one of the people Fuller called.
9
At a divergent point in his testimony, Fuller claimed that the victim
‘‘seemed like she wanted to’’ have oral sex with all of the gang members—
or at least wanted to up until the urination and forty ounce beer bottle
episodes. Portraying Gibbs as the instigator, Fuller also stated that the
defendant had not forced the victim to have oral sex or vaginal intercourse.
10
When recalled to the witness stand, the victim denied talking to Daniels
on the night of the Taylor Street incident. Moreover, the victim specifically
denied having any conversation about sex toys with Daniels and also denied
stating that she was going to the police because she did not receive $250.
Additionally, Fuller testified that, while speaking with the victim immediately
before she left, he said that he knew she was going to leave and call the
police. He did not mention, however, that the victim had made such a threat.
11
The following evidence is admissible under the first three exceptions
to the rape shield statute: evidence ‘‘(1) offered by the defendant on the
issue of whether the defendant was, with respect to the victim, the source
of semen, disease, pregnancy or injury, or (2) offered by the defendant on
the issue of credibility of the victim, provided the victim has testified on
direct examination as to his or her sexual conduct, or (3) any evidence of
sexual conduct with the defendant offered by the defendant on the issue
of consent by the victim, when consent is raised as a defense by the defendant
. . . .’’ General Statutes § 54-86f (1) through (3).
12
The defendant and state make additional arguments as to why § 54-86f
(4) should be understood to use the term ‘‘material’’ in the evidentiary sense.
The defendant contends that our current interpretation violates the rules
of statutory construction because, if ‘‘material’’ refers to the constitutional
standard of materiality, it would render subdivision (4)’s requirement that
the exclusion violate the defendant’s constitutional rights superfluous. We
note, however, that this argument overlooks the possibility that the exclusion
of evidence may violate a defendant’s constitutional rights but nonetheless
not be constitutionally material to the outcome of the trial. The defendant
also refers to our conclusion in DeJesus that constitutionally material evi-
dence cannot be excluded even if its prejudice to the victim outweighs its
probative value and argues that such a result is absurd because it requires
a trial court to ignore the plain directive of § 54-86f that the court conduct
a weighing of all relevant sexual conduct evidence to determine whether its
probative value is outweighed by its prejudicial effect. Finally, the defendant
claims that, in states with similar rape shield statutes, courts have analyzed
the materiality of sexual conduct evidence using the evidentiary standard,
and that, as with the federal analogue; see Fed. R. Evid. 412 (b) (1) (C);
subdivision (4) was likely intended to protect defendants in circumstances
in which sexual conduct evidence does not fit within an enumerated rape
shield exception but in which the exclusion of such evidence would violate
the defendant’s constitutional rights.
The state claims that our current reading of § 54-86f (4) undermines the
legislative purpose of the rape shield statute by dispensing with the weighing
of sexual conduct evidence, thereby allowing the admission of such evidence
regardless of how prejudicial it may be to the victim. The state next argues
that DeJesus encroaches on the trial court’s wide discretion over evidentiary
matters by transmuting the standard of review for rulings on the admissibility
of evidence under subdivision (4) from abuse of discretion to plenary review.
Lastly, the state contends that DeJesus is not consistent with the view that
we have taken in subsequent cases addressing the admissibility of evidence
under § 54-86f (4).
We need not address these additional arguments because we agree that
the rape shield statute’s language and structure, as well as its legislative
history, support our conclusion that ‘‘material,’’ in the context of § 54-86f
(4), refers to the evidentiary standard.
13
We realize that some of our conclusions in Mastropetre were dicta and
not binding precedent. Nonetheless, we find our reasoning in Mastropetre
persuasive.
14
We do not suggest, nor do we think Senator Owens meant, that evidence
of prostitution on the part of a sexual assault victim will be admissible in
all cases. Instead, such evidence would be admissible in a prosecution for
sexual assault only when it is so relevant and material to a critical issue
that its exclusion would violate the defendant’s constitutional rights, for
example, when the defendant raises consent as a defense, such as in the
present case.
15
Section 1-2z became effective on October 1, 2003; see Public Acts 2003,
No. 03-154, § 1; nearly one year before DeJesus was decided on September
7, 2004. See State v. DeJesus, supra, 270 Conn. 826.
16
Although this theory was largely refuted by Fuller’s testimony that the
victim did not know she was going to Taylor Street to engage in sexual
activities, it is nonetheless relevant. See, e.g., State v. Rinaldi, 220 Conn.
345, 353, 599 A.2d 1 (1991) (‘‘[t]o be relevant, the evidence need not exclude
all other possibilities; it is sufficient if it tends to support the conclusion,
even to a slight degree’’).
17
It is hard to imagine a scenario in which evidence is so relevant and
material to a critical issue in a case but could nonetheless be excluded
without violating a defendant’s constitutional rights. On the other hand, we
can imagine a situation in which evidence is relevant and material to a
critical issue but not so much so that its exclusion would deprive a defendant
of his or her constitutional rights. One example is a sexual assault prosecu-
tion in which consent is raised as a defense. Suppose that, in that case, the
alleged victim is a prostitute. Certainly, it can be argued that the alleged
victim’s status as a prostitute is relevant and material to the issue of consent,
a critical issue in any sexual assault prosecution in which it is raised as a
defense. See, e.g., Demers v. State, supra, 209 Conn. 159 (evidence of victim’s
prostitution ‘‘could lead to a reasonable conclusion that the victim had
agreed on at least one occasion in the past to perform sexual acts for money
and that under the circumstances that conclusion would have been relevant
to the issue of consent in the petitioners’ criminal trial’’). It is possible,
however, that such evidence is not so relevant and material to the critical
issue of consent under the facts of that particular case and therefore could
be excluded without violating the defendant’s constitutional rights. For
instance, perhaps the defendant was unaware, at the time of the alleged
assault, that the victim was a prostitute. Under those facts, it seems likely
that the evidence of prostitution could be excluded without violating the
defendant’s constitutional rights. Another example may be a case in which
there are no facts to support the allegation that the assault was in fact a
sex-for-hire transaction, for example, when there is no exchange of money
or no offer of proof that the victim proposed to engage in sex for money.
In such instances, when the defendant did not know of the victim’s status
as a prostitute or the facts do not suggest that the victim and the defendant
understood that they were engaged in a sex-for-hire transaction, it is plausi-
ble that evidence that the victim has engaged in past acts of prostitution,
despite its relevance and materiality to consent, could be excluded without
violating the defendant’s constitutional rights.
Excluding the evidence in the foregoing situations would be consistent
with our precedent on this issue. In Demers, we concluded that evidence
of the victim’s prior arrest for prostitution should have been admitted at
trial when the petitioners, Mark Demers and William J. Corcoran, Jr., argued
that the sexual conduct between them and the victim was a sex-for-hire
transaction. Id., 158–59. However, the connection between the consent
defense and the victim’s prior arrest in Demers was stronger than a mere
allegation that the victim had agreed to sex in exchange for money. The
victim’s prior arrest occurred after she propositioned a plainclothes police
officer at the intersection of Central Avenue and Grove Street in Waterbury.
Id., 158. Similarly, Demers and Corcoran contended that the victim had
approached them at North Elm Street and Cherry Street in Waterbury. Id.
Therefore, the victim’s prior arrest became so relevant and material to a
critical issue because she was arrested for propositioning a police officer
only a few blocks west of where Demers and Corcoran contended she
propositioned them.
The facts in DeJesus also suggested a connection between the defendant’s
consent defense and the victim’s prior prostitution. In DeJesus, the defen-
dant, Luis DeJesus, Jr., gave the victim $30. State v. DeJesus, supra, 270
Conn. 832. At trial, DeJesus wanted to present evidence that the victim
admitted to an investigating officer that she was a prostitute and that
DeJesus, at the time of the alleged assault, knew she was a prostitute. Id.,
833. In that case, we concluded that the evidence should have been admitted,
in part, because, without it, the jury was deprived of the ‘‘necessary contex-
tual framework to evaluate properly [DeJesus’] version of [the] events,’’ i.e.,
why he gave the victim $30. Id., 839. Additionally, the present case is consis-
tent with the foregoing. In this case, as we previously discussed, there also
is a strong connection between the consent defense and the sexual conduct
evidence. First, there is the temporal relationship. It was merely hours before
the charged conduct occurred that the victim offered Fuller to engage in
sexual conduct with him and three other men for $500. Second, the Wolcott
Street and Taylor Street sexual conduct is connected by common actors,
namely, Fuller and the victim. Thus, these cases all involved instances where
the circumstances from which the sexual assault allegations arose made
the victim’s prior prostitution so relevant and material to a critical issue that
its exclusion violated the defendant’s constitutional rights. In the absence of
the highlighted facts, however, the evidence likely could have been prop-
erly excluded.
18
Insofar as Mastropetre suggested, or has been read to suggest, that a
defendant’s constitutional right to present evidence that is so relevant and
material to a critical issue must bow to the state’s general interest in pro-
tecting a sexual assault victim from prejudice; see State v. Mastropetre,
supra, 175 Conn. 521; that suggestion was incorrect. In Mastropetre, we
rightly acknowledged that a defendant’s right to confront witnesses was
not absolute and must yield to ‘‘other legitimate interests . . . .’’ (Internal
quotation marks omitted.) Id. We noted that one of those legitimate interests
was the exclusion of evidence that has ‘‘a greater prejudicial than probative
effect.’’ Id. In making that observation, however, we cited a case in which
the prejudice we were concerned with was the prejudice to the defendant,
not a third party. See id. We do not think that the prejudice to the victim ever
could outweigh a defendant’s right to present evidence that is so relevant and
material to a critical issue that its exclusion would violate a defendant’s
constitutional rights. Such a suggestion was dictum and should not be
followed.
19
We acknowledge that, when the defense recalled the victim for its case-
in-chief, the victim was allowed to testify that she offered to ‘‘do some stuff
for 500 bucks,’’ and, when asked if the $500 was a fee for her services, the
victim responded, ‘‘[r]ight, for Wolcott Street.’’ Defense counsel was not
allowed, however, to further explore the specifics of the offer to ‘‘do some
stuff’’ or whether it was limited to Wolcott Street. Thus, the defense was
effectively precluded from presenting its continuous transaction theory.
20
We note that § 54-86f requires that a trial court, after determining that
sexual conduct evidence is admissible under one of the four enumerated
exceptions, proceed to determine whether the probative value of the evi-
dence outweighs its prejudicial effect on the victim. See, e.g., State v. Crespo,
supra, 303 Conn. 602. Under subdivision (4), however, that step is unneces-
sary because it is subsumed in the relevancy and materiality determinations.
That is, all evidence that is so relevant and material to a critical issue that
its exclusion would violate the defendant’s constitutional rights is, by its
nature, more probative to the defense than prejudicial to the victim. See,
e.g., State v. Rolon, supra, 257 Conn. 177; see also State v. DeJesus, supra,
270 Conn. 844 (‘‘evidence cannot be excluded as more prejudicial to the
victim than probative when that exclusion has already been determined to
violate the defendant’s constitutional rights’’).
In their supplemental briefs, both parties argued that this court’s construc-
tion of § 54-86f (4) in DeJesus was incorrect because, among other things,
it dispensed with the statute’s requirement that the probative value of the
evidence be weighed against its prejudicial effect. The defendant claims
that DeJesus led to the absurd result of requiring trial courts to ignore the
plain language of the statute that required the application of this balancing
test, and the state contends that DeJesus ‘‘contravenes the legislative pur-
poses behind the rape shield statute’’ by allowing prior sexual conduct
evidence to be admitted without consideration of the prejudicial effect that
such evidence has on the victim. We assume that the parties would make
the same arguments regarding our conclusion that the balancing test is
subsumed in subdivision (4)’s relevancy and materiality determinations.
Nevertheless, we are not persuaded.
First, trial courts are not instructed to ignore the weighing required by
§ 54-86f. Indeed, such weighing is still required when a defendant offers
evidence under the other exceptions in § 54-86f. Moreover, our holding in
this case does not ignore the legislature’s mandate that the court admit only
evidence that is more probative to the defense than prejudicial to the victim.
Instead, it acknowledges that, when such evidence is so relevant and mate-
rial to a critical issue that its exclusion would deprive a defendant of a
constitutionally protected right, no amount of prejudice would outweigh its
probative value. Second, this conclusion does not contravene the legislative
purpose of § 54-86f. The rape shield statute is intended to prevent a defendant
from introducing irrelevant evidence of the victim’s prior sexual conduct,
shielding the victim from embarrassment and harassment. That purpose
will continue to be served under our holding in the present case because
subdivision (4) does not permit the admissibility of irrelevant evidence.
21
The concurring justice concludes that the challenged evidence is neither
relevant nor material to the defendant’s defense of consent or reasonable
belief of consent and, therefore, that the trial court did not abuse its discre-
tion in excluding the evidence. Instead, she argues that there is no nexus
between the conduct on Wolcott Street, including the victim’s offer to engage
in a multipartner, multihour, sex-for-hire transaction, on the one hand, and
the incident on Taylor Street, on the other. The concurring justice further
contends that, at its essence, the defendant’s consent defense is nothing
more than an argument that the victim had engaged in an act of prostitution
earlier in the day and, therefore, must have engaged in a similar act at Taylor
Street. Certainly, the concurring justice might be correct if the defendant
was making such an argument and the only proffered evidence was the
prior act of prostitution with Fuller and one other person. See, e.g., State
v. Shaw, supra, 312 Conn. 104–105 (noting that evidence offered in ‘‘an . . .
attempt to establish the victim’s general unchaste character . . . [is] prohib-
ited by [§ 54-86f]’’ [internal quotation marks omitted]). That, however, is
not the case. Instead, the defendant’s consent theory is that the victim
entered into a consensual, multiperson prostitution transaction that began
on Wolcott Street and continued at Taylor Street. In addition, the proffered
evidence includes not only testimony regarding the prior act of prostitution
with Fuller and one other person, but also testimony that the victim offered
to engage in sexual relations with Fuller and three other men for four hours
in exchange for $500. The concurring justice gives the evidence of such an
offer little weight by contending that it was never accepted by Fuller. More-
over, the concurring justice argues that we cannot refer to any testimony
that ‘‘evinces that such a transaction was bargained for, agreed [on], or
acted out.’’ Our review of the trial transcript, however, uncovers testimony
from the victim suggesting that such an offer was bargained for and carried
out. In turn, we did not discover any testimony suggesting that Fuller did
not accept the offer. During the state’s case-in-chief, on cross-examination
and outside the presence of the jury, the victim confirmed that she had ‘‘a
conversation with . . . Fuller [in which she] told him that, for $500, [she]
would have sex with him and three other people for four hours . . . .’’ She
was then asked, ‘‘[a]nd then you did have sex. [Fuller] didn’t have $500,
right? That’s what he told you?’’ The victim responded: ‘‘[r]ight,’’ but the
prosecutor’s hearsay objection was sustained. At a later point in the trial,
this time during the defense’s case-in-chief and in the jury’s presence, the
victim testified that she told Fuller she would ‘‘do some stuff for 500 bucks.’’
Then, after the jury had been excused, the victim testified that she had
offered to provide sexual services to four men for $500 and that the $500
was supposed to be for Wolcott Street. Surely, the victim’s affirmation that
she made the offer and then engaged in sexual conduct suggests that such
a transaction was bargained for, agreed on, and acted out. Moreover, this
testimony does not suggest that Fuller did not accept the victim’s offer. It
is true that the second time the victim was questioned about this offer, she
testified that the offer was for Wolcott Street, but that is a question of fact
for the jury to decide. In addition to the foregoing testimony regarding the
$500 offer, there was evidence that the victim had engaged in sexual activities
with two men just hours before arriving at Taylor Street with Fuller, the
purported deal broker.
The concurring justice also argues that the defendant’s consent theory is
contradicted by the testimony of both the victim and Fuller, as well as the
defendant’s own statement to the police. Such a consideration, however,
goes to the weight of the defendant’s theory and the evidence proffered,
not its admissibility. Cf. State v. Andrews, 313 Conn. 266, 275, 96 A.3d
1199 (2014) (‘‘[t]o be relevant, the evidence need not exclude all other
possibilities’’ [internal quotation marks omitted]). In addition, the concurring
justice overlooks the contradictions in Fuller’s testimony and assumes that
the defendant’s statement proves more than it actually does. First, acknowl-
edging that there was no money at Taylor Street for the victim is not the
same as admitting the conduct was not consensual. Second, although the
defendant’s other statements may suggest that the sex was compelled, they
do not necessarily require such a conclusion. For example, the victim did
not have to like that the defendant and others were ‘‘smackin her ass’’ in
order for the sexual conduct to be consensual. Finally, that Fuller did not
engage in sexual conduct with the victim at Taylor Street does not refute
that Fuller was the link between Taylor Street and Wolcott Street. In fact,
we do not understand this suggestion considering that Fuller engaged in
sex with the victim at Wolcott Street and accompanied the victim from
Wolcott Street to Taylor Street.
This is not a case, as the concurring justice suggests, in which the prior
sexual act has absolutely no connection to the charged sexual assault. Fuller,
the defendant, and their confederates were members of the same gang and,
therefore, knew each other. Moreover, Fuller was not the victim’s romantic
partner. Instead, Fuller was the victim’s sexual customer who, if the defen-
dant’s theory is believed, brokered a multipartner, multihour, sex-for-hire
transaction that began on Wolcott Street and ended on Taylor Street. More-
over, the sexual conduct on Wolcott and Taylor Streets was close in time,
and the prior act of prostitution was not the only evidence that the defense
proffered in support of the defendant’s theory. Indeed, the defense also
presented the victim’s offer to engage in sexual activities with four men for
four hours for $500. Our conclusion in the present case does not lead to the
conclusion that prostitutes cannot be raped or that prior acts of prostitution
always will be admissible in sexual assault prosecutions when the victim
is alleged to be a prostitute. As we noted previously, more than a mere
allegation of the victim’s prior acts of prostitution is required for evidence
of such acts to be admissible under § 54-86f (4).
22
We note that the state conceded before the Appellate Court that the
defendant’s conviction on the three conspiracy counts was ‘‘supported by
evidence of a single agreement to sexually assault the victim.’’ (Internal
quotation marks omitted.) State v. Wright, supra, 144 Conn. App. 747.