State v. Juan V. ( 2019 )

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STATE OF CONNECTICUT v. JUAN V.*
(AC 40889)
Prescott, Bright and Cobb, Js.
Syllabus
Convicted of four counts of the crime of risk of injury to a child in connection
with his alleged sexual abuse of the minor victim, the defendant appealed
to this court. Held:
1. The defendant could not prevail on his claim that the trial court committed
plain error by permitting the jury, during its deliberations and in the
jury room, to view, without limitation, a video recording of a forensic
interview of the victim, which had been admitted into evidence as a full
exhibit: because the video recording had been admitted into evidence
for substantive purposes as a full exhibit with the agreement of defense
counsel, the trial court correctly submitted the exhibit to the jury for
its consideration as required by the applicable rule of practice (§ 42-
23), which requires that all exhibits received into evidence be submitted
to the jury, and in a manner consistent with our Supreme Court’s stated
preference for juries to receive all exhibits, when feasible, in the jury
room; moreover, because the forensic interview was an exhibit and not
the functional equivalent of in-court testimony, such as a deposition, the
rule of practice (§ 42-26) requiring that the play back of trial testimony
at the request of the jury be conducted in the courtroom did not apply
to the jury’s viewing of the video exhibit of the forensic interview;
accordingly, because the defendant failed to demonstrate any error on
part of the trial court, his claim of plain error failed.
2. The defendant could not prevail on his unpreserved claim that the trial
court improperly instructed the jury on inferences, which was based
on his assertion that the inferences instruction was an impermissible
two-inference instruction that improperly diluted the state’s burden
of proof:
a. The defendant waived his right to challenge the inferences instruction
on appeal, as he had a meaningful opportunity at trial to review it and
expressed no concerns regarding the charge as given to the jury; the
court provided defense counsel with a copy of the proposed instructions
prior to the charging conference and held in-chambers conferences
regarding the instructions, and defense counsel declined to object or
take exception with the inferences instruction when the court read the
final instructions to the parties at the charging conference.
b. The defendant did not demonstrate that the inferences instruction
constituted an error that was so clear, obvious and indisputable as to
warrant the extraordinary remedy of reversal under the plain error
doctrine: the instruction given by the court was a correct statement of
law and did not constitute an impermissible two-inference instruction,
as it did not instruct the jury to draw a conclusion of guilt or innocence,
but to draw a conclusion that seemed reasonable and logical, it related
only to conclusions regarding individual pieces of evidence rather than
the evidence as a whole, and the instructions, taken as a whole, did not
mislead the jury as to the state’s burden to prove every element of
the charged offense beyond a reasonable doubt, and, therefore, the
defendant’s claim did not involve an error so obvious that it affected
the fairness of or public confidence in the judicial proceeding; moreover,
even if such error existed, the inferences instruction did not constitute
manifest injustice, as the defendant failed to demonstrate that the chal-
lenged instruction was of such monumental proportion that it threatened
to erode our system of justice or resulted in harm so grievous that
fundamental fairness required a new trial.
3. The trial court did not abuse its discretion by denying the defendant’s
motion for a disclosure to the defense of the victim’s school records
following an in camera review of such records; this court’s independent
review of the undisclosed records confirmed the trial court’s conclusion
that the material did not contain information that was probative of the
victim’s credibility or otherwise exculpatory.
Argued March 7—officially released July 30, 2019
Procedural History
Substitute information charging the defendant with
four counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
Danbury and tried to the jury before Russo, J.; verdict
and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, was Stephen J. Sedensky, state’s
attorney, for the appellee (state).
Opinion
COBB, J. The defendant, Juan V., appeals from the
judgment of conviction, rendered after a jury trial, of
two counts of risk of injury to a child in violation of
General Statutes § 53-21 (a) (1)1 and two counts of risk
of injury to a child in violation of General Statutes § 53-
21 (a) (2).2 On appeal, the defendant claims that the
court improperly (1) permitted the jury to have with it
during its deliberations a video recording of a forensic
interview between the victim and a forensic inter-
viewer, which was admitted as a full exhibit, (2)
instructed the jury on inferences in a manner that
diluted the state’s burden of proof, and (3) denied his
motion for a disclosure of the victim’s school records.
The defendant’s first two claims concededly are unpre-
served and we conclude that the defendant has failed
to demonstrate that this court should review them or
that he should prevail pursuant to the doctrines on
which he relies. As to the defendant’s third claim of
error, we have reviewed the victim’s school records
and conclude that they do not contain any information
that is exculpatory or otherwise bears on the victim’s
credibility. Accordingly, we affirm the judgment of the
trial court.
The jury reasonably could have found the following
facts. In 2006, the defendant began dating the victim’s
mother, E, and after about six months, the defendant
moved in with E and the victim. At that time, the victim
was approximately four years of age. In 2008, the defen-
dant and E married, and the defendant adopted the
victim in 2009.3
When the victim was approximately ten years old,
the defendant began touching her inappropriately when
E was not home. Specifically, the defendant ‘‘touched
[the victim] on [her] breasts and vagina with . . . [h]is
mouth, his hands and his penis.’’ On one occasion, the
defendant attempted to put his penis inside of the vic-
tim’s vagina. At another point, the defendant mastur-
bated in front of the victim and ejaculated onto her leg.
On April 2, 2014, after watching a video in health
class about sexually transmitted diseases, the victim,
who was twelve years old, told two friends, J and S,
that the defendant had touched her inappropriately. J
and S encouraged the victim to tell her mother or
another adult about the defendant’s conduct, but the
victim said that she was too afraid to do so. Later that
day, at an after school program that the victim, J, and
S attended, a program counselor overheard J and S
discussing what the victim had told them about the
defendant and reported what she had heard to her
supervisor, who, in turn, contacted the Department of
Children and Families (department).
The next day, the department contacted E. That same
day, E met with Terry Harper, a department social
worker, and Harper informed E about the victim’s alle-
gations. That evening, E and the victim met with Donna
Meyer, a forensic interviewer and consultant for the
department’s multidisciplinary investigative team.
Meyer conducted a videotaped interview of the victim,
during which the victim stated that the defendant began
touching her inappropriately when she was ten years
old and that his inappropriate conduct continued until
approximately three weeks before her twelfth birthday.
Specifically, the victim stated that the defendant
touched her breasts and vagina multiple times and tried
to kiss her on the mouth once or twice. The victim also
stated that the defendant once came into the bathroom
while she was showering. The victim described another
occasion when the defendant showed her a porno-
graphic video on his tablet computer and touched her
breast. The victim stated that she was worried about
contracting HIV because the defendant once licked his
hand before touching her vagina.
After the forensic interview, Veronica Ron-Priola, a
board certified pediatrician and a medical consultant
for the department’s multidisciplinary investigative
team, performed a medical examination of the victim.
The victim informed Ron-Priola that the defendant
‘‘touched her breast and her private parts, under her
clothes.’’ The victim also stated that the defendant
‘‘tried to put his thing in [her] private parts.’’ Ron-Priola
asked the victim whether, by ‘‘thing,’’ she meant the
defendant’s penis, and the victim responded ‘‘yes.’’ The
victim also told Ron-Priola that it ‘‘hurt’’ when the defen-
dant put his finger inside of her ‘‘privates’’ and that ‘‘a
couple of times it hurt to go pee-pee’’ after the defendant
touched her. Ron-Priola reported that the results of the
victim’s medical examination were normal.
The defendant subsequently was arrested and
charged with two counts of risk of injury to a child in
violation of § 53-21 (a) (1) and two counts of risk of
injury to a child in violation of § 53-21 (a) (2). On Sep-
tember 29, 2016, following a jury trial, the defendant
was convicted of all charges. On June 28, 2017, the
defendant was sentenced to a total effective sentence
of thirty years of incarceration, execution suspended
after twelve years, and twenty years of probation. The
defendant then filed the present appeal. Additional facts
and procedural history will be set forth as necessary.
I
The defendant’s first claim on appeal is that the court
improperly permitted the jury to have with it during its
deliberations the videotaped recording of the victim’s
forensic interview, which had been received into evi-
dence as a full exhibit. Specifically, the defendant
claims that the court should not have allowed the
exhibit to be viewed by the jury in the jury room, but
should have required that the exhibit be maintained
separately and viewed only in open court upon request
by the jury. The defendant argues that by allowing the
jury ‘‘unfettered access’’ to the recording, the court
permitted the jury to afford the victim’s forensic inter-
view more weight than the rest of the evidence or other
exhibits. We disagree.
The following additional facts and procedural history
are relevant to this claim. Prior to trial, the state filed a
notice of its intent to offer into evidence the videotaped
recording of the victim’s April 3, 2014 forensic interview
and a transcript of the interview. In response, the defen-
dant filed a written objection. In the defendant’s memo-
randum of law filed in support of the objection, he
argued that if the victim testified at trial, ‘‘the video
should only be admitted if anything in her testimony
contradicts the statements made to the forensic inter-
viewer.’’
On May 10, 2017, the victim testified at trial. During
direct examination, the victim testified in detail regard-
ing numerous instances of sexual assault by the defen-
dant that she had described in the forensic interview.
The victim also testified to additional incidents of sex-
ual assault by the defendant that she had not described
in the forensic interview. Additionally, during her trial
testimony, the victim stated that she did not recall tell-
ing Meyer of one occasion of assault and that she had
misstated the location of another one of the assaults
she had described in the forensic interview.
Immediately following this testimony by the victim,
the state offered the video recording and a transcript
of the forensic interview for substantive purposes. The
defendant agreed that the recording and transcript
should be admitted as full exhibits, ‘‘given the nature
of the testimony here today and what is contained on
the . . . video . . . .’’ The video recording and the
transcript were admitted into evidence as full exhibits.
The state then played the entire videotaped forensic
interview for the jury, and then finished its direct exami-
nation of the victim. During the defendant’s cross-exam-
ination of the victim, the defendant referenced the
forensic interview multiple times.
During closing argument, defense counsel pointed
out discrepancies between the victim’s forensic inter-
view and her testimony at trial. Defense counsel
expressly informed the jury that the recording and a
transcript of the forensic interview were full exhibits
in the case, that it would have them in the jury room
during deliberations, and urged them to review the
video recording in evaluating the victim’s credibility.4
After the court charged the jury, it reviewed the
exhibits with counsel prior to delivering them to the
jury for deliberations. The courtroom clerk informed
the parties that the video recording of the forensic inter-
view was a full exhibit. The prosecutor then asked
whether the necessary equipment would be provided
to the jury in the jury room so that it could view the
exhibit. The clerk responded, ‘‘That’s my understand-
ing.’’ Defense counsel raised no objection to the exhibit
being submitted to the jury in the jury room for its
deliberations in the same way as the other exhibits.
During deliberations, the court received a note from
the jury asking to hear ‘‘[the victim’s] full testimony
. . . .’’ In response to this note, the court reminded the
jury that the victim’s testimony included the videotaped
recording of her forensic interview.5 The court then
informed the jury that the recording was a full exhibit
and that they could watch it ‘‘in the privacy of the jury
room . . . .’’6 The court also informed the jury: ‘‘If you
want to send an additional note, specifying further
exactly what you’d like to hear, I’ll dismiss you for a
couple of seconds . . . .’’ The jury responded that it
wanted to hear the victim’s live testimony only and not
the video recording of the forensic interview. The court
then had the victim’s in-court testimony played back
for the jury.
Although the defendant agreed that the video
recording of the forensic interview should be admitted
as a full exhibit and encouraged the jury to view the
recording in the jury room during the jury’s delibera-
tions, he now claims that it was error for the court to
permit the jury to have unlimited access to the exhibit,
and that the court should have withheld the exhibit
from the jury and allowed it to watch the recording
only in open court upon request by the jury.
The defendant concedes that this claim is unpre-
served but argues that the judgment should be reversed
under the plain error doctrine. ‘‘It is well established
that the plain error doctrine . . . is an extraordinary
remedy used by appellate courts to rectify errors com-
mitted at trial that, although unpreserved . . . are of
such monumental proportion that they threaten to
erode our system of justice and work a serious and
manifest injustice on the aggrieved party. [T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine that
this court invokes in order to rectify a trial court ruling
that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires rever-
sal of the trial court’s judgment . . . for reasons of
policy. . . . In addition, the plain error doctrine is
reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.’’ (Internal quotation marks
omitted.) State v. Ruocco, 322 Conn. 796, 803, 144 A.3d
354 (2016).
‘‘Our Supreme Court . . . clarified the two step
framework under which we review claims of plain error.
First, we must determine whether the trial court in fact
committed an error and, if it did, whether that error
was indeed plain in the sense that it is patent [or] readily
discernable on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.
. . . [T]his inquiry entails a relatively high standard,
under which it is not enough for the defendant simply
to demonstrate that his position is correct. Rather, the
party seeking plain error review must demonstrate that
the claimed impropriety was so clear, obvious and indis-
putable as to warrant the extraordinary remedy of rever-
sal. . . . [U]nder the second prong of the analysis we
must determine whether the consequences of the error
are so grievous as to be fundamentally unfair or mani-
festly unjust. . . . Only if both prongs of the analysis
are satisfied can the appealing party obtain relief.’’
(Internal quotation marks omitted.) State v. Ruocco, 151
Conn. App. 732, 739–40, 95 A.3d 573 (2014), aff’d, 322
Conn. 796, 144 A.3d 354 (2016).
In the present case, the defendant argues that the
trial court committed plain error because allowing the
video recording of the victim’s forensic interview to be
viewed by the jury in the jury room without limitation
is contrary to the Supreme Court’s decision in State v.
Gould, 241 Conn. 1, 9, 695 A.2d 1022 (1997). The state
disagrees and argues that the trial court had discretion
to determine how the jury viewed the exhibit under
State v. Jones, 314 Conn. 410, 419–24, 102 A.3d 694
(2014). We agree with the state that the trial court did
not commit an error that was so clear, obvious, and
indisputable as to warrant the extraordinary remedy of
reversal under the plain error doctrine.
The submission to the jury of the video recording
was required by Practice Book § 42-23, which provides
in relevant part: ‘‘(a) The judicial authority shall submit
to the jury . . . (2) All exhibits received in evidence.
. . .’’ (Emphasis added.) Pursuant to this clear rule,
exhibits received in evidence during a trial should be
submitted to the jury for its consideration. The rule
requires ‘‘[a]ll’’ exhibits to be submitted to the jury and
does not contain an exception for video recordings of
forensic interviews or any other type of exhibit. The
video recording of the victim’s forensic interview was
received into evidence as a full exhibit after the defen-
dant agreed that it was admissible. The exhibit was
played in full during the trial and both parties used the
exhibit during the trial and closing arguments. Thus,
the court correctly followed the rule of practice that
expressly governs the submission of exhibits to the
jury.
The court also correctly followed the most recent
Supreme Court case to consider and interpret Practice
Book § 42-23 (a), State v. Jones, 314 Conn. 410, 102 A.3d
694 (2014). In Jones, the defendant made the opposite
argument to the one being asserted here. The defendant
claimed that the trial court violated § 42-23 (a) by ruling
that the jury could view, during deliberations, a video
exhibit of a police stop of the defendant’s car in open
court rather than the jury deliberation room. Id., 412–13.
Our Supreme Court held that ‘‘although Practice Book
§ 42-23 (a) requires trial courts to submit exhibits to
the jury, that section does not control the manner in
which exhibits must be submitted, and that the trial
court retains discretion to determine the manner in
which the jury examines submitted exhibits.’’ Id., 417.
The court, however, expressed its preference for
allowing jurors to review trial exhibits in the privacy
of the jury room, stating: ‘‘In light of the long-standing
practice of our courts to provide juries all exhibits for
their review in the privacy of the jury room . . . the
preferred option is for juries to receive all exhibits,
when feasible, in the jury room.’’ (Citation omitted;
internal quotation marks omitted.) Id., 424.
The defendant’s reliance on the earlier case of State
v. Gould, supra, 241 Conn. 1, is misplaced because that
case did not involve exhibits, but, rather, it involved
videotaped deposition testimony, admitted with the
court’s permission pursuant to different provisions of
our rules of practice. See Practice Book (1997) §§ 791
and 803 (now §§ 40-44 and 40-56).7 In Gould, the trial
court allowed the state to take a witness’ deposition in
lieu of in person trial testimony because the witness
was physically ill and unavailable to be called as a
witness at trial. Id., 10. The deposition was taken pursu-
ant to Practice Book § 791 (1), now Practice Book § 40-
44 (1), which provides that upon request of any party,
the court ‘‘may issue a subpoena for the appearance of
any person at a designated time and place to give his
or her deposition if such person’s testimony may be
required at trial and it appears to the judicial authority
that such person . . . [w]ill, because of physical or
mental illness or infirmity, be unable to be present to
testify at any trial or hearing . . . .’’ Such depositions
are taken under oath by ‘‘any officer authorized to
administer oaths.’’ Practice Book § 40-47. ‘‘The scope
and manner of examination and cross-examination [at
the deposition] shall be the same as that allowed at
trial.’’ Practice Book § 40-50. ‘‘So far as otherwise admis-
sible under the rules of evidence, a deposition may be
used as evidence at the trial or at any hearing if the
deponent is unavailable . . . .’’ Practice Book § 40-46.
Thus, the videotaped deposition testimony in Gould
was the functional equivalent of in-court testimony, and
was intended to and did serve as the witness’ trial testi-
mony. In Gould, the witness’ deposition was taken
under oath and was subject to examination and cross-
examination and then played for the jury at the trial in
lieu of the witness’ in person testimony. State v. Gould,
supra, 10–11. When trial testimony is played back for
the jury during deliberations, Practice Book § 42-268
requires that ‘‘the jury shall be conducted to the
courtroom.’’
Although the play back of the testimony in Gould
should have been conducted in the courtroom, the
Supreme Court concluded that ‘‘allowing the jury to
view the testamentary videotape of [the state’s main
witness], as it requested, was a discretionary matter for
the trial court, and [the trial] court did not abuse that
discretion.’’ State v. Gould, supra, 241 Conn. 13. The
court, however, held, under its supervisory powers,
‘‘that in the future this state’s trial courts should super-
vise the jury review of such videotaped deposition testi-
mony.’’ Id., 9. In support of this holding, the court stated:
‘‘There is value . . . in requiring trial courts to super-
vise a jury’s review of videotaped deposition testimony.
. . . Where a court decides, pursuant to that court’s
sound discretion that the jury should be permitted to
replay videotaped deposition testimony, it must be done
in open court under the supervision of the trial judge
and in the presence of the parties and their counsel.’’
Id., 15.
In the present case, the victim testified in person
at the trial. Her forensic interview was not conducted
pursuant to the rules of practice governing trial deposi-
tions. See Practice Book §§ 40-44 through 40-58. The
interview was not authorized or required by any judicial
authority, but was conducted at the behest of the
department as part of its investigation. At the interview,
the victim was not under oath or subject to cross-exami-
nation. The video recording of the interview was played
for the jury during a break in the victim’s direct exami-
nation during the trial and then admitted into evidence
as a full exhibit. The trial court followed the applicable
rules of practice in this case when, after receiving a
request by the jury to hear the victim’s testimony, it
submitted the full exhibit of the video recording of
the forensic interview to the jury for its deliberations
pursuant to Practice Book § 42-23 (a), and played back
the victim’s trial testimony in the courtroom pursuant
to Practice Book § 42-26.9
We conclude that submitting the exhibit of the
recording of the forensic interview to the jury in the
jury room was a correct application of Practice Book
§ 42-23 and our Supreme Court’s preference, expressed
in Jones, that the jury receive all exhibits, when feasible,
in the jury room. See State v. Jones, supra, 314 Conn.
424. Because allowing the jury to view the interview
recording in the jury room was not an error, let alone
an obvious, patent, or nondebateable error, we need
not delve further into plain error analysis. Accordingly,
the defendant’s claim fails.10 See State v. Jamison, 320
Conn. 589, 597, 134 A.3d 560 (2016) (‘‘[a]n appellate
court addressing a claim of plain error first must deter-
mine if the error is indeed plain in the sense that it is
. . . obvious in the sense of not debatable’’ [internal
quotation marks omitted]).
II
The defendant next claims that the trial court improp-
erly instructed the jury on inferences in a manner that
diluted the state’s burden of proof. Specifically, the
defendant argues that the instruction was an incorrect
statement of the law on permissible inferences and
‘‘violated the defendant’s right not to be convicted
unless the state proved all the elements of the crime
beyond a reasonable doubt.’’ We conclude that the
defendant waived this claim of instructional error and
that he cannot prevail pursuant to the plain error
doctrine.
The following additional facts and procedural history
are relevant to this claim. On May 15, 2017, the state
filed its request to charge, which included the following
instruction on inferences: ‘‘While you the jury must find
every element proven beyond a reasonable doubt in
order to find the defendant guilty of the charged offense,
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. If it is reasonable and logical for the jury to
conclude that a basic fact or an inferred fact is true,
the jury is permitted to consider the fact proven and
may consider it in combination with other proven facts
in determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt. . . .
‘‘With respect to individual pieces of evidence, when
the evidence is subject to two possible interpretations,
you are not required to accept the interpretation consis-
tent with innocence. You are allowed to choose the
interpretation that seems reasonable and logical.’’ In
support of its requested instruction on inferences, the
state cited State v. Stanley, 223 Conn. 674, 678, 682 n.5,
613 A.2d 788 (1992).
The defendant did not file a request to charge. Later
that day, the trial court informed the parties that it
anticipated having a revised draft of the jury charge for
counsel to review soon and that it would contact them
when the charge was ready.
On the morning of May 16, 2017, the court held an
on the record charging conference with counsel for
both parties. At the outset of the conference, the court
stated: ‘‘We have had some chambers conference[s]
. . . in connection with the . . . drafting of the charge
itself. But we have a final edition and I’ll ask the parties
to give me their attention as I go through each captioned
subsection and ask them if they have any objections
or comments to each one.’’ During the conference, the
court asked whether either counsel had any comments
or objections as to the final version of the instruction
on inferences, which was identical to the instruction
proposed by the state, except that the court added the
following penultimate sentence: ‘‘But you are also not
required to accept the interpretation consistent with
guilt.’’ Both counsel stated ‘‘[n]o comment’’ in response
to the court’s inquiry. The instructions, thereafter, were
marked as an exhibit.
Later that day, the court charged the jury consistent
with its final version of the instruction, which it had
read to counsel at the charging conference and on which
it received no comment from either party: ‘‘While you,
the jury, must find every element proven beyond a rea-
sonable doubt, in order to find the defendant guilty of
the charged offense, each of the basic and inferred
facts underlying those conclusions need not be proved
beyond a reasonable doubt. If it is reasonable and logi-
cal for the jury to conclude that a basic fact or an
inferred fact is true, the jury is permitted to consider
the fact proven and may consider it in combination
with other proven facts in determining whether the
cumulative effect of all the evidence proves the defen-
dant guilty of all the elements of the crime charged
beyond a reasonable doubt. . . .
‘‘With respect to individual pieces of evidence, when
the evidence is subject to two possible interpretations,
you are not required to accept the interpretation consis-
tent with innocence. But, you are also not required to
accept the interpretation consistent with guilt. You are
allowed to choose the interpretation that seems reason-
able and logical.’’
The defendant admits that this claim was not raised
before the trial court, but argues that it is reviewable
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015).11 The defendant argues
that Golding review is warranted ‘‘because the record
is adequate for review and it implicates the defendant’s
constitutional right not to be convicted unless the state
has proven every element of the crimes beyond a rea-
sonable doubt.’’ The state argues that ‘‘[t]he defendant’s
claim fails under the second and third prongs of Golding
because: (1) the claim is not of constitutional magni-
tude; (2) he expressly waived the claim below; and (3)
the instruction was a correct statement of law that did
not dilute the state’s burden of proof or mislead the
jury.’’ Although we agree with the defendant that the
record is adequate for review of this claim, we agree
with the state that the defendant waived this claim
pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d
942 (2011).
‘‘[A] constitutional claim that has been waived does
not satisfy the third prong of the Golding test because,
in such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . .’’ (Inter-
nal quotation marks omitted.) State v. Kitchens, supra,
299 Conn. 467; see also id., 482–83.
‘‘[W]hen the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the
record and the particular facts and circumstances of
each case.’’ (Internal quotation marks omitted.) State
v. Bellamy, 323 Conn. 400, 409, 147 A.3d 655 (2016).
In the present case, the defendant does not argue
that he lacked a meaningful opportunity to review the
proposed charge. Indeed, the court gave counsel a copy
of the proposed jury instructions prior to the charging
conference and held in-chambers conferences regard-
ing the instructions. Additionally, the trial court went
through each of the instructions, on the record, and
specifically asked whether the parties had any objec-
tions. When the court asked the parties whether they
had any objections to the instruction on inferences,
defense counsel stated ‘‘[n]o comment.’’ Thus, we con-
clude that the defendant waived this claim of instruc-
tional error.12
Alternatively, the defendant argues that he should
prevail on this claim pursuant to the plain error doc-
trine. See State v. McClain, 324 Conn. 802, 815, 155 A.3d
209 (2017) (holding Kitchens waiver does not preclude
plain error review). We agree with the state that the
defendant has failed to establish plain error.
The defendant argues that the court committed plain
error because the ‘‘error here is certainly obvious as it
goes against established precedent stating that if the
jury can reconcile the facts proven with any reasonable
theory consistent with innocence, then it cannot find
the defendant guilty’’ and ‘‘the failure to grant relief
from the court’s error would result in manifest injus-
tice.’’13 The standards for plain error review are set forth
in part I of this opinion.
The defendant cites our Supreme Court’s decision in
State v. Griffin, 253 Conn. 195, 209–10, 749 A.2d 1192
(2000), which involved a challenge to a jury instruction
commonly known as a ‘‘two-inference’’ instruction. Spe-
cifically, the charge in Griffin provided: ‘‘If two conclu-
sions reasonably can be drawn from the evidence, one
of innocence and one of guilt, you must adopt the one
of innocence.’’ (Internal quotation marks omitted.) Id.,
204 n.12. The court concluded that the trial court did
not err in giving this instruction, stating: ‘‘[T]he two-
inference charge, when viewed in the context of an
otherwise proper instruction on reasonable doubt, does
not impermissibly dilute the state’s burden of proof.
Consequently, the defendant cannot prevail on his . . .
claim of constitutional impropriety.’’ Id., 209. The court,
however, invoked its ‘‘supervisory authority over the
administration of justice to direct that, in the future,
our trial courts refrain from using the ‘two-inference’
language so as to avoid any such possible misunder-
standing.’’ (Footnotes omitted.) Id., 209–10. The court
went on to provide the following as a permissible alter-
native to the two-inference charge: ‘‘If you can, in rea-
son, reconcile all of the facts proved with any reason-
able theory consistent with the innocence of the
accused, then you cannot find him guilty.’’ (Internal
quotation marks omitted.) Id., 210 n.18.
The court in the present case did not give a two-
inference instruction. Whereas the instruction in Grif-
fin provided that if a jury could draw two inferences
from the evidence, it must adopt the inference consis-
tent with innocence, the charge in the present case did
not instruct the jury to draw a conclusion of guilt or
innocence. Indeed, the charge in the present case
explicitly provided that the jury was not required to
draw a conclusion of guilt or innocence and, instead,
instructed the jury to draw the conclusion that ‘‘seems
reasonable and logical.’’ Furthermore, the charge did
not relate to conclusions to be drawn from the evidence
as a whole, which was the issue in Griffin. In this case,
the charge related only to how the jury should evaluate
individual pieces of evidence. It was, therefore, not a
two-inference instruction.
Even if we were to assume that the specific charge
in the present case was substantively similar to the
charge in Griffin, that alone would be insufficient to
establish plain or instructional error because the stan-
dard for instructional error requires the court to exam-
ine the entirety of the charge. ‘‘The standard of review
for claims of instructional impropriety is well estab-
lished. [I]ndividual jury instructions should not be
judged in artificial isolation . . . but must be viewed
in the context of the overall charge. . . . The pertinent
test is whether the charge, read in its entirety, fairly
presents the case to the jury in such a way that injustice
is not done to either party under the established rules
of law. . . . Thus, [t]he whole charge must be consid-
ered from the standpoint of its effect on the [jurors] in
guiding them to the proper verdict . . . and not criti-
cally dissected in a microscopic search for possible
error. . . . Accordingly, [i]n reviewing a constitutional
challenge to the trial court’s instruction, [a reviewing
court] must consider the jury charge as a whole to
determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, [a
reviewing court] must consider whether the instruc-
tions [in totality] are sufficiently correct in law, adapted
to the issues and ample for the guidance of the jury.’’
(Internal quotation marks omitted.) State v. Newton,
330 Conn. 344, 359–60, 194 A.3d 272 (2018).
In the present case, the court instructed the jury
extensively on reasonable doubt and stated, at the end
of its reasonable doubt instruction and immediately
before its inferences instruction, that ‘‘[t]he state has
the burden, at all times, to establish each of the elements
of the crime charged beyond a reasonable doubt . . . .’’
In addition to its charge on reasonable doubt, the court
began its inferences instruction by reiterating that ‘‘you,
the jury, must find every element proven beyond a rea-
sonable doubt.’’ Furthermore, the court emphasized
that the inferences instruction related only to individual
pieces of evidence by beginning the second part of the
inferences instruction with the phrase ‘‘[w]ith respect
to individual pieces of evidence.’’ Taken as a whole,
therefore, the instruction did not mislead the jury as
to the state’s obligation to prove every element of the
charge beyond a reasonable doubt.
Thus, the defendant has not demonstrated that the
court’s instruction on inferences constituted an error
that was so clear, obvious, and indisputable as to war-
rant the extraordinary remedy of reversal as required
under our plain error analysis. See State v. Jackson,
178 Conn. App. 16, 24, 173 A.3d 974 (2017), cert. denied,
327 Conn. 998, 176 A.3d 557 (2018).
Moreover, even if we were to assume that such error
exists, which we decline to do, the defendant has failed
to demonstrate that the court’s instruction constituted
manifest injustice. To show manifest injustice, the
defendant must demonstrate that the error ‘‘was of such
monumental proportion that it threatened to erode our
system of justice . . . or that it resulted in harm so
grievous that fundamental fairness requires a new trial.’’
(Citation omitted; internal quotation marks omitted.)
Id., 29. Here, the defendant has failed to do so, and,
accordingly, we conclude that his claim of plain error
is without merit.
III
Finally, the defendant claims that the trial court erred
in denying his motion for a disclosure of the victim’s
school records. Specifically, the defendant claims that
the court should have granted his motion to disclose the
records because they might be germane to the victim’s
credibility and could contain exculpatory evidence. We
have reviewed the records in camera and disagree with
the defendant’s claim.
The following additional facts and procedural history
are relevant to the resolution of this claim. On Decem-
ber 28, 2016, prior to the start of trial, the defendant
filed a motion for a disclosure of the victim’s school
records. On January 25, 2017, the court held a hearing
on the motion, and defense counsel explained that he
was seeking a disclosure of the records pursuant to
State v. Esposito, 192 Conn. 166, 471 A.2d 949 (1984).
Defense counsel argued that the records might bear on
the victim’s credibility because there was evidence that
‘‘the [victim] might have been having problems at . . .
school . . . .’’ The court stated that it would review the
records in camera to determine whether they contained
any exculpatory information.
On April 4, 2017, after reviewing the records in cam-
era, the court held another hearing at which it denied
the motion and the following exchange occurred:
‘‘The Court: . . . [T]he court has reviewed th[e]
records and there is . . . next to nothing that would
be relevant to the presentation or defense of the case.
I say next to nothing because there was one, I want to
say it was March of 2014, what could be categorized
as a one time disruptive behavior where the [victim]
and her girlfriend were roughhousing in the hallway
and they both fell on the floor. They were given an in-
school suspension, both parents were called and they
came to the school and were given a letter that sug-
gested that they were roughhousing between periods
and that was not going to be tolerated. They did some
work in school and that was it. That was the only, the
only piece of information that had any type of negative
inference to it and that’s not much of one.
‘‘[The Prosecutor]: Um-huh.
‘‘The Court: The [victim’s] grades seemed to be very
consistent throughout that period, as was her school
attendance.
‘‘[Defense Counsel]: The only question I would have
for Your Honor, as Your Honor I believe was made
aware [of] during the argument for the [State v.] Espos-
ito, [supra, 192 Conn. 166] motion . . . the [victim] in
this case initially reported . . . the allegations [of
abuse] to one of her friends at school and . . . was
overheard by . . . a staff member. I would just be inter-
ested in knowing if the person that she had this little
incident with is one of the witnesses that she had
revealed the allegations to.
‘‘The Court: . . . [T]here’s nothing in the school
records that mentions any complaint, any criminal mat-
ter. [The defendant’s name] never comes up. . . .
[T]here was [also] an administrative checklist that had
to be filled out by somebody and it simply mentioned
that [the defendant] was not allowed to pick [the victim]
up or on the grounds of the school. That was it. It’s the
only thing I saw.’’
The defendant asks this court to review the school
records and determine whether the records are exculpa-
tory to the extent that they impact the victim’s credibil-
ity. The state agrees that this court should review the
records.
‘‘On review, we must determine whether the court’s
decision constituted an abuse of discretion. . . . This
court has the responsibility to conduct its own in cam-
era review of the sealed records to determine whether
the trial court abused its discretion in refusing to release
those records to the defendant. . . . While we are
mindful that the defendant’s task to lay a foundation
as to the likely relevance of records to which he is not
privy is not an easy one, we are also mindful of the
witness’ legitimate interest in maintaining, to the extent
possible, the privacy of her confidential records. . . .
The linchpin of the determination of the defendant’s
access to the records is whether they sufficiently dis-
close material especially probative of the ability to com-
prehend, know and correctly relate the truth . . . so
as to justify breach of their confidentiality . . . .
Whether and to what extent access to the records
should be granted to protect the defendant’s right of
confrontation must be determined on a case by case
basis.’’ (Internal quotation marks omitted.) State v.
Tozier, 136 Conn. App. 731, 753, 46 A.3d 960, cert.
denied, 307 Conn. 925, 55 A.3d 567 (2012).
After an in camera review of the victim’s school
records, we conclude that the trial court did not abuse
its discretion by denying the defendant’s motion for a
disclosure of those records. The records do not contain
information that is probative of the victim’s credibility
or is otherwise exculpatory.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
victim or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
1
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of (A) a
class C felony . . . .’’
2
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts, as defined in section 53a-65,
of a child under the age of sixteen years or subjects a child under sixteen
years of age to contact with the intimate parts of such person, in a sexual
and indecent manner likely to impair the health or morals of such child
. . . shall be guilty of . . . a class B felony . . . .’’
3
In 2011, the defendant and E began having marital troubles. Between
2011 and late 2013, the defendant periodically would move out of the house
that he shared with E and the victim. On December 29, 2013, the defendant
travelled to the Dominican Republic where he remained until February 1,
2014. When the defendant returned, E refused to allow him to move back
into the house. In the spring of 2014, the defendant and E divorced.
4
The state has not argued that the defendant waived any claim of error
or induced any error by expressly agreeing to the submission of the video
recording to the jury and encouraging the jury to review it.
5
The video recording of the victim’s forensic interview was not part of
her in-court testimony but was an out-of-court statement admitted for its
truth and played during the victim’s in-court testimony.
6
There is no evidence in the record to establish whether the jurors ever
watched the recording of the forensic interview in the jury room or, if they
did so, whether they watched it more than once.
7
The relevant Practice Book provisions were renumbered in 1998. Practice
Book (1997) §§ 791 and 803 are identical to Practice Book §§ 40-44 and 40-56.
8
In Gould, the court analyzed Practice Book (1997) § 863, which was
renumbered as Practice Book § 42-26 in 1998. State v. Gould, supra, 241 Conn.
11–12. Sections 863 and 42-26, however, are substantively indistinguishable.
9
The defendant also argues, on the basis of nonbinding authority from
other jurisdictions, that the court plainly erred in allowing the recording to
be submitted to the jury for its deliberations in the jury room because it
was ‘‘testimonial’’ in nature and ‘‘many courts in other jurisdictions hold it
is erroneous for the trial court to allow the jury to have unsupervised access
to either recorded testimony or recorded pretrial interviews in the jury
room during deliberations even if they have been admitted as exhibits.’’ The
defendant, however, has not provided, and the court is not aware of, any
cases that support a finding of plain error on the basis of nonbinding out-
of-state cases. We cannot conclude that such cases ‘‘demonstrate that the
claimed impropriety was so clear, obvious and indisputable as to warrant
the extraordinary remedy of reversal.’’ (Internal quotation marks omitted.)
State v. Ruocco, supra, 151 Conn. App. 740.
This is particularly true because the cases on which the defendant relies
are distinguishable. See, e.g., People v. Jefferson, 411 P.3d 823, 827 (Colo.
App. 2014) (allowing jury to view, unsupervised, recording of forensic inter-
view with child who could not recall details of alleged abuse during trial
was harmful error), aff’d, 393 P.3d 493 (Colo. 2017); McAtee v. Common-
wealth, 413 S.W.3d 608, 622 (Ky. 2013) (improper to allow jury to view
recording of witness’ statements to law enforcement in jury room); Reed v.
State, 373 P.3d 118, 122 (Okla. Crim. App. 2016) (improper to allow video-
taped forensic interview of child, which included administration of oath
wherein child affirmed she would be truthful, to be taken with jury into delib-
erations).
Unlike People v. Jefferson, supra, 411 P.3d 827, where the child victim’s
forensic interview became the main account of the alleged assault because,
at trial, the victim was unable to recall the details of what had happened,
in the present case, the victim provided a detailed description of the assaults
when she testified at trial. McAtee v. Commonwealth, supra, 413 S.W.3d
622, also is distinguishable because it involved statements made to law
enforcement, whereas the statements in the present case were made to a
forensic psychiatrist. Finally, Reed v. State, supra, 373 P.3d 122, is distinguish-
able because, prior to being interviewed, the child victim in the case was
required to swear an oath, whereas in the present case, the victim was not
asked to give any such affirmation before her forensic interview.
To the extent that the defendant relies on State v. Vines, 268 Conn. 239,
244, 842 A.2d 1086 (2004), to support his claim that the forensic interview
was testimonial, such reliance is misplaced. Vines involved the playback of
several witnesses’ in person trial testimony and not an out-of-court investiga-
tive forensic interview. Id., 241–42.
10
The defendant argues that even if this unpreserved claim is not plain
error, the court should reverse the judgment pursuant to its supervisory
powers over the administration of justice. Specifically, the defendant urges
this court to create a new rule that requires juries to review forensic inter-
views in child sex abuse cases in open court under the judge’s supervision.
‘‘Supervisory authority is an extraordinary remedy that should be used
sparingly . . . . Our supervisory powers are invoked only in the rare cir-
cumstance [in which] these traditional protections are inadequate to ensure
the fair and just administration of the courts. . . . [W]e are more likely to
invoke our supervisory powers when there is a pervasive and significant
problem . . . or when the conduct or violation at issue is offensive to the
sound administration of justice . . . .’’ (Internal quotation marks omitted.)
State v. Fuller, 158 Conn. App. 378, 392, 119 A.3d 589 (2015); see also State
v. Simmons, 188 Conn. App. 813, 846, 205 A.3d 569 (2019). Because we are
unpersuaded that there is a pervasive and significant issue in allowing juries
to replay forensic interviews outside of the presence of the court, or that
this practice is offensive to the administration of justice, we decline to
exercise our supervisory powers.
11
‘‘Under [the Golding] test, [a] defendant can prevail on a claim of consti-
tutional error not preserved at trial only if all of the following conditions
are met: (1) the record is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the violation of a fundamen-
tal right; (3) the alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject to harmless error
analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim by focusing on which-
ever condition is most relevant in the particular circumstances.’’ (Emphasis
in original; internal quotation marks omitted.) State v. Dunbar, 188 Conn.
App. 635, 644, 205 A.3d 747, cert. denied, 331 Conn. 926, 207 A.3d 27 (2019).
12
We note that the defendant did not file a reply brief. Had he done so,
he could have argued, contrary to the state’s assertion in its brief, that this
claim was not waived under Kitchens.
13
The defendant also argues that ‘‘[a]lternatively, the defendant’s convic-
tions should be reversed under this court’s supervisory powers.’’ Specifically,
the defendant asks this court to invoke its supervisory authority because
the instruction at issue ‘‘allowed the jurors to convict the defendant even
though they may have concluded that the evidence led to an interpretation
of innocence as well as guilt.’’ ‘‘Supervisory authority is an extraordinary
remedy that should be used sparingly . . . . Our supervisory powers are
invoked only in the rare circumstance [in which] . . . traditional protec-
tions are inadequate to ensure the fair and just administration of the courts.
. . . [W]e are more likely to invoke our supervisory powers when there is
a pervasive and significant problem . . . or when the conduct or violation
at issue is offensive to the sound administration of justice . . . .’’ (Internal
quotation marks omitted.) State v. Fuller, 158 Conn. App. 378, 392, 119 A.3d
589 (2015). Because the instruction at issue was a correct statement of
law, we conclude that this claim fails to meet the requirements of this
extraordinary remedy.