State v. Danovan T. , 176 Conn. App. 637 ( 2017 )

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STATE OF CONNECTICUT v. DANOVAN T.*
(AC 38727)
Mullins, Beach and Harper, Js.
Syllabus
Convicted, following a jury trial, of the crime of risk of injury to a child,
the defendant appealed to this court. Held:
1. The defendant could not prevail on his claim that the prosecutor commit-
ted improprieties that deprived him of a fair trial:
a. The prosecutor did not make an improper golden rule argument when
he asked the jurors to put themselves in the defendant’s position and
to evaluate the defendant’s statements against his claim of innocence;
the prosecutor called on the jurors to draw inferences from the evidence
and properly asked them whether a reasonable person would be likely
to concede that there was a possibility that he sexually abused a child
if he were actually innocent, and the statements were particularly appro-
priate as counterargument to the defendant’s main defense theory that
he did not commit the crime and that the allegations were fabricated.
b. Although the prosecutor made two misstatements during closing
argument in describing certain medical testimony, they did not amount
to improprieties; the misstatements, when placed in the broader context
of the trial, were isolated and minor, the defendant did not present any
evidence to demonstrate that they caused the jurors to be confused or
to misunderstand certain testimony, and the prosecutor, who made the
statements in the heat of argument, was afforded leeway for the minor
misstatements made while zealously advocating for the state.
c. The defendant failed to demonstrate that the prosecutor acted improp-
erly by facilitating the admission into evidence of a medical report that
contained prior misconduct evidence, when the prosecutor previously
represented that he would not present prior misconduct evidence; the
report, which was admitted into evidence pursuant to an agreement of
the parties, was not the only source of the jury’s knowledge of the prior
misconduct evidence, the defendant made extensive use of the report
in his own closing argument, and the prosecutor’s role in the admission of
the report could not fairly be characterized as prosecutorial impropriety.
2. This court declined to review the defendant’s claim that the trial court
deprived him of his right to confront and to impeach the witnesses
against him when the court precluded him from presenting certain testi-
mony from himself and from L to contradict that of the victim’s mother;
the defendant having failed to make an argument before the trial court
regarding the presentation of his own testimony as impeachment evi-
dence, this court was not bound to consider the claim, and his claim
with respect to the court’s exclusion of L’s testimony was moot, as the
defendant failed to challenge the ground on which the trial court ruled
in excluding L’s testimony and, thus, an independent basis for the ruling
remained unchallenged.
Argued April 17—officially released September 26, 2017
Procedural History
Substitute information charging the defendant with
two counts of the crime of risk of injury to a child, and
with the crime of sexual assault in the first degree,
brought to the Superior Court in the judicial district of
Hartford and tried to a jury before Mullarkey, J.; verdict
of guilty of two counts of risk of injury to a child;
thereafter, the state entered a nolle prosequi as to the
charge of sexual assault in the first degree; subse-
quently, the court rendered judgment in accordance
with the verdict, from which the defendant appealed
to this court. Affirmed.
Richard Emanuel, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Anthony Bochicchio, senior assistant state’s
attorney, for the appellee (state).
Opinion
HARPER, J. The defendant, Danovan T., appeals from
his conviction of two counts of risk of injury to a child
in violation of General Statutes § 53-21 (a) (2). In this
appeal, he argues that his conviction should be reversed
because (1) certain improprieties by the prosecutor
deprived him of his general due process right to a fair
trial and (2) the trial court improperly restricted his
right to present impeachment evidence against the
state’s witnesses, thereby depriving him of his constitu-
tional right to confront the witnesses against him. For
the reasons that follow, we reject these arguments and
affirm the judgment of the trial court.
The following procedural history and facts, which
the jury reasonably could have found, are relevant to
this appeal. At the time of the events giving rise to
the defendant’s conviction, he was living in a home in
Enfield with the victim, S.R., the victim’s mother, S,
and another female child, C. S had another child, A,
who was older than the other children and who, at the
time of S.R.’s molestation, was living out-of-state with
her biological father. The defendant is the biological
father of C, but not S.R. The defendant has known
S.R. and been involved in her life since 2007 or 2008,
although he did not live with her until late 2012 or early
2013, a few months before the molestation occurred.
In the Enfield home, the defendant shared one bedroom
with S, and the children shared another bedroom.
On the night of June 5, 2013, the defendant slept in
the living room, rather than in the bedroom he shared
with S. Sometime during the night, he entered the girls’
bedroom, removed S.R.’s pants, and began touching
and scratching her genitals, and digitally penetrating
her. S.R. awoke during this assault and grabbed the
defendant’s arm, digging her fingernails in to it. The
defendant continued to abuse S.R. in this manner. Even-
tually, he stopped, pulled up her pants, and left the
room. S.R. reported this incident to S the next morning.
Thereafter, S awoke the defendant, who was still
sleeping in another room, and confronted him with the
allegations. The defendant replied, ‘‘You know, this isn’t
the first time that someone has said I’ve done this to
them. A long time ago, my—my other daughter said I
did the same thing to her but her mother didn’t believe
her.’’1 The defendant stated he had never mentioned
the prior allegations because, ‘‘Well [the girl’s] mother
didn’t believe her, so I didn’t think it was true, but now
[S.R. is] the second person that says it now, so it must
be true. It must be true.’’
Later that morning, S took S.R. to New England
Urgent Care. S.R. was examined by Jeffery Sievering,
a physician’s assistant, who found that S.R.’s clitoris
was enlarged, which was potentially indicative of
‘‘repeated trauma or manipulation.’’ Thereafter, S took
S.R. to the Enfield Police Department and then to St.
Francis Hospital in Hartford. At the hospital, a second
medical examination was performed by Audrey B. Cour-
tney, a nurse practitioner, using a sexual assault foren-
sic collection kit. The medical examination did not
produce information that either supported or refuted
S.R.’s allegations. Courtney produced a report about
this exam that included the statement, ‘‘[S] states that
[the defendant’s] [fifteen] year old daughter said the
same thing happened to her.’’ S.R. also underwent a
forensic interview at the hospital in which she stated
that the defendant had touched her in a similar manner
on two prior occasions approximately one month ear-
lier. At trial, S.R. testified that she had not reported the
incidents to her mother because she feared she would
not be believed. She stated that she had decided to tell
her mother this time because she still felt pain the
next morning.
David Thomas, a detective with the Enfield Police
Department, observed the forensic interview and later
made arrangements to meet with the defendant on June
10, 2013, at the New Haven Police Department, which
was closer to the defendant’s place of employment.
During that meeting, Thomas asked whether S.R.’s alle-
gations were true, and the defendant responded, ‘‘I can’t
say that she’s lying,’’ and that he did not remember the
incident. The defendant also made other statements
relevant to his claims in this appeal, including that he
had been accused of similar conduct by a different
stepdaughter from a prior relationship, and that S had
observed A, who no longer lived with them, engaging
in some kind of sexual conduct. At the end of the inter-
view, the defendant signed a written statement that on
the night in question, he had entered the bedroom and
checked to see if S.R. had urinated in her bed.
A second interview was arranged between Thomas
and the defendant to take place at the Manchester
Police Department.2 Because the defendant did not have
a car, Thomas met the defendant at his workplace in
North Haven to transport him to Manchester. In the car,
before leaving, the defendant initiated a conversation
by stating, ‘‘I must have done it.’’ The defendant then
alluded to a ‘‘sleepwalking type of thing where . . .
sexual contact would happen.’’ The defendant provided
Thomas with a signed written statement regarding this
conversation which stated, ‘‘I would like to give the
Enfield police the following truthful statement. I would
like to admit that there is a high probability that I inap-
propriately touched [S.R.] in her groin on Thursday
morning, June 6, 2013.’’
The defendant was arrested on June 17, 2013, and
charged with one count of sexual assault in the first
degree in violation of General Statutes § 53a-70 and two
counts of risk of injury to a child in violation of § 53-
21 (a) (2). After a jury trial, the jury was unable to reach
a verdict on the charge of sexual assault in the first
degree,3 but returned guilty verdicts on the two charges
of risk of injury to a child. Thereafter, the court sen-
tenced the defendant to a total effective sentence of
twenty-five years imprisonment followed by fifteen
years of special parole with special conditions. This
appeal followed. Additional facts and procedural his-
tory will be set forth as necessary.
On appeal, the defendant argues that the prosecutor
committed several improprieties that deprived him of
a fair trial in violation of the due process clauses of the
federal and state constitutions.4 He also argues that he
was deprived of his right to confront the witnesses
against him under the federal and state constitutions.5
The state responds that the defendant’s arguments mis-
characterize the prosecutor’s conduct and other details
of the case, and should be rejected. We disagree with
the defendant and affirm the judgment of the trial court.
I
The defendant’s claim that prosecutorial improprie-
ties deprived him of a fair trial is composed of three
distinct claims. First, he asserts that the state’s attorney
made an improper ‘‘golden rule’’ argument, which is
an argument that appeals to emotion, during closing
argument in asking the jury to consider whether the
defendant’s reaction to the allegations was consistent
with innocence. Second, he claims that the state’s attor-
ney mischaracterized the medical testimony of
Sievering during closing argument in a manner that
suggested that sexual assault was the cause of certain
physical symptoms Sievering had observed in S.R.
rather than merely a possible cause. Third, he contends
that the state’s attorney improperly facilitated the
admission into evidence of a medical report that con-
tained prior misconduct evidence. He argues that these
improprieties so infected the trial with unfairness as to
make the resulting conviction a denial of due process.
The state disagrees with the defendant’s assertions that
the prosecutor committed any improprieties. We will
address each of these claims in turn, setting forth addi-
tional facts as necessary.6
We begin by setting forth our standard of review that
is applicable to each of the defendant’s prosecutorial
impropriety claims. In analyzing claims that prosecu-
torial improprieties deprived a defendant of a fair trial,
‘‘we engage in a two step analytical process. . . . The
two steps are separate and distinct. . . . We first exam-
ine whether prosecutorial impropriety occurred. . . .
Second, if an impropriety exists, we then examine
whether it deprived the defendant of his due process
right to a fair trial.’’ (Internal quotation marks omitted.)
State v. Payne, 303 Conn. 538, 560–61, 34 A.3d 370
(2012). The two steps of this analysis are separate and
distinct, and we may reject the claim if we conclude
the defendant has failed to establish either prong. Id.
‘‘[O]ur determination of whether any improper con-
duct by the state’s attorney violated the defendant’s fair
trial rights is predicated on the factors set forth in State
v. Williams, [204 Conn. 523, 540, 529 A.2d 653 (1987)],
with due consideration of whether that misconduct was
objected to at trial. . . . These factors include: the
extent to which the [impropriety] was invited by
defense conduct or argument . . . the severity of the
[impropriety] . . . the frequency of the [impropriety]
. . . the centrality of the [impropriety] to the critical
issues in the case . . . the strength of the curative mea-
sures adopted . . . and the strength of the state’s
case.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Payne, supra, 303 Conn. 561. ‘‘[W]hen a
defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show, not only that the remarks were
improper, but also that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ Id., 562–63.7
A
The defendant first claims that he was deprived of a
fair trial by an improper golden rule argument that the
prosecutor made when she asked the jury to consider
whether the defendant’s reaction to the allegations was
consistent with innocence. The following additional
facts are relevant to this claim.
This claim concerns four statements made by the
prosecutor during closing argument. First, the prosecu-
tor commented on the defendant’s first interview with
the police: ‘‘[The defendant] says . . . ‘I can’t say that
she’s lying.’ I want you to picture this. You have a child
or a stepchild. The police come to you and say you
went into that child’s room in the middle of the night,
pulled her pants down and you inappropriately touched
them and digitally penetrated them. Would your
response be ‘I can’t say she’s lying?’ Would that enter
your mind?’’ Next, the prosecutor commented on the
defendant’s decision to go to work immediately after
being accused of sexual assault: ‘‘[H]e’s shocked that
S.R.’s mother thought he wouldn’t go to work. I mean,
why wouldn’t he go to work? Let’s assume he did noth-
ing wrong and these allegations were made and the
child was concerned about this. Would you take it so
lightly? Would it be so irrelevant to you?’’ The prosecu-
tor’s closing argument returned to the topic of the defen-
dant’s reaction, describing the defendant’s response
when the police asked him whether he had assaulted
S.R.: ‘‘He even says after that, very shortly after about
ten seconds later, ‘Well, there is a way,’ and then he sort
of trails off. You’re accused of this and your comment’s
going to be, ‘Well, there is a way I could’ve done it?’ ’’
The prosecutor continued, commenting on the defen-
dant’s reaction to the police: ‘‘Look at that first state-
ment. He never denies the behavior. What he says is, ‘I
do not remember inappropriately touching S.R.’ Would
that ever be your response when confronted with some-
thing like this? I do not remember.’’
The defendant contends that these statements consti-
tuted an improper golden rule argument that personal-
ized the case by asking the jurors to put themselves in
the defendant’s position. He argues that this under-
mined the fairness of the trial because it drew on the
passions and prejudices of the jury by inviting the jurors
to consider how they would react to such repugnant
accusations. The state responds that a golden rule argu-
ment is not always improper and is particularly permis-
sible where it simply asks jurors to draw inferences
from the evidence presented based on the juror’s judg-
ment of how a reasonable person would act under the
specified circumstances, which the state argues was
the clear purpose of these comments. We agree with
the state.
‘‘[A] golden rule argument is one that urges jurors to
put themselves in a particular party’s place . . . or into
a particular party’s shoes. . . . The danger of these
types of arguments lies in their [tendency] to pressure
the jury to decide the issue of guilt . . . on considera-
tions apart from the evidence of the defendant’s culpa-
bility.’’ (Citations omitted; internal quotation marks
omitted.) State v. Long, 293 Conn. 31, 53–54, 975 A.2d
660 (2009). ‘‘[N]ot all arguments that ask jurors to place
themselves in a particular party’s situation implicate
the prohibition on golden rule argument. . . . The ani-
mating principle behind the prohibition . . . is that
jurors should be encouraged to decide cases on the
basis of the facts as they find them, and reasonable
inferences . . . rather than by any incitement to act
out of passion or sympathy for or against any party.
. . . [A] prosecutor does not violate the golden rule by
. . . asking the jurors to place themselves in [a particu-
lar position] if the prosecutor is using these rhetorical
devices to ask the jury to assess the evidence from
the standpoint of a reasonable person or to employ
common sense in evaluating the evidence.’’ (Citations
omitted; internal quotation marks omitted.) State v. Wil-
liams, 172 Conn. App. 820, 839–40, 162 A.3d 84 (2017).
The prohibition on golden rule arguments is merely a
subset of improper appeals to the jurors’ emotions. Id.,
837 n.9.
After carefully considering the record in this appeal,
we conclude that the prosecutor’s statements did not
constitute an improper golden rule argument. Each of
these statements called upon the jury to assess the
reasonableness of certain conduct reflected in the evi-
dence. This court previously has held that arguments
inviting the jury to draw reasonable inferences from
the evidence adduced at trial ‘‘patently are proper.’’
State v. Dawes, 122 Conn. App. 303, 313–14, 999 A.2d
794, cert. denied, 298 Conn. 912, 4 A.3d 834 (2010).
These were not improper appeals to passion or preju-
dice, but rather calls on the jurors to draw inferences
from the evidence that had been presented at trial
regarding the statements of the defendant, based on
the jurors’ judgment of how a reasonable person would
act under the specified circumstances. See State v. Wil-
liams, supra, 172 Conn. App. 839–40 (asking jurors to
step into role of defendant can be properly viewed as
rhetorical device designed to urge measurement against
a reasonable person).
When the prosecutor asked the jurors to put them-
selves in the defendant’s position and to evaluate his
statements against his claim of innocence, the prosecu-
tor properly was asking the jurors whether a reasonable
person in that situation would be likely to concede
that there was a possibility that he sexually abused
his stepdaughter if he were actually innocent. These
statements were particularly appropriate as counterar-
gument to the defendant’s main defense theory, which
was that he did not commit the crime and that the
allegations were fabricated. Because we conclude that
the prosecutor did not make an improper golden rule
argument, we need not consider the second step of
the analysis, namely, whether the alleged impropriety
deprived the defendant of his due process right to a
fair trial. See State v. Hickey, 135 Conn. App. 532, 553, 43
A.3d 701 (if impropriety is not identified, then prejudice
need not be considered), cert. denied, 306 Conn. 901,
52 A.3d 728 (2012).
B
Next, the defendant contends that he was deprived
of a fair trial because the prosecutor’s description of
certain medical testimony in his closing argument mis-
characterized that testimony by using words that sug-
gested sexual abuse was the probable cause of certain
symptoms observed in S.R.’s genitals rather than merely
a possible cause. The following additional facts are
relevant to this claim.
On direct examination at trial, Sievering, the physi-
cian’s assistant that first attended to S.R. on June 6,
2013, had the following exchange with the prosecutor
regarding his examination of S.R.:
‘‘Q. And what if any findings did you make in the
exam?
‘‘A. The only abnormality noted at the time was I
found that the patient’s clitoris seemed to be enlarged
more so than I would expect for a patient . . . of
that age.
‘‘Q. And from your training and experience what
would be a cause or causes of an enlarged clitoris in
a seven year old?
‘‘A. A cause could be from repeated trauma or manip-
ulation.’’
On cross-examination, Sievering had the following
exchange with defense counsel:
‘‘Q. And did you see . . . any redness or anything
unusual other than—you testified in reference to the
clitoris seemed to be enlarged? Is that correct?
‘‘A. That’s correct.
‘‘Q. And that can be done by trauma or manipulation.
Is that correct?
‘‘A. That is correct.
‘‘Q. Can it be done by self-manipulation?
‘‘A. Yes.
‘‘Q. And manipulation with toys?
‘‘A. Yes.’’
Later, during closing argument, the prosecutor
reminded the jury of Sievering’s testimony, stating: ‘‘Mr.
Sievering, who testifies he saw her that morning. This
is a seven year old girl with an enlarged clitoris. He
said likely cause could be rubbing it—a seven year old
girl.’’ During the state’s rebuttal argument, the prosecu-
tor returned to this testimony, commenting that: ‘‘You
heard the testimony of the actual physician’s assistant,
Mr. Sievering, about the enlarged clitoris on a seven
year old girl. One of the likely causes is rubbing of
that area.’’
The defendant contends that the prosecutor substan-
tively misstated Sievering’s testimony in a manner that
deprived him of a fair trial because the misstatement
implied a stronger causal link between the observed
medical evidence and the alleged crimes. He asserts
that Sievering’s testimony used the words ‘‘can’’ or
‘‘could’’ in stating that sexual assault could cause the
physical condition observed. But in closing argument
and rebuttal, the prosecutor used the word ‘‘likely’’ in
this same context. He argues that the words used by
Sievering denote a possibility of a causal link, while
the prosecutor’s word choice suggests a much stronger
causal link such that a jury may view Sievering’s testi-
mony as evidence that the crime occurred. The state
responds that the defendant’s claim amounts to an iso-
lated misstatement of the evidence, and that to find
impropriety would require this court to minutely dissect
each and every statement of the prosecutor. The state
urges the court to follow the example of State v. Orel-
lana, 89 Conn. App. 71, 105–106, 872 A.2d 506, cert.
denied, 274 Conn. 910, 876 A.2d 1202 (2005), and decline
to dissect each isolated statement made by the prosecu-
tor in order to find impropriety. We agree with the state.
It is improper for a prosecutor to make comments
during closing argument that suggest facts not in evi-
dence. See State v. LaVoie, 158 Conn. App. 256, 275,
280, 118 A.3d 708 (comment that defendant said he
intended to shoot victim was not supported by evidence
or fair inferences and was therefore improper), cert.
denied, 319 Conn. 929, 125 A.3d 203 (2015), cert. denied,
U.S. , 136 S. Ct. 1519, 194 L. Ed. 2d 604 (2016).
‘‘[T]he prosecutor [as a public officer] has a heightened
duty to avoid argument that strays from the evidence
or diverts the jury’s attention from the facts of the case.’’
(Internal quotation marks omitted.) State v. Martinez,
319 Conn. 712, 727, 127 A.3d 164 (2015). The privilege of
counsel in addressing the jury through closing argument
‘‘must never be used as a license to state, or to comment
upon, or to suggest an inference from, facts not in
evidence, or to present matters which the jury ha[s] no
right to consider.’’ (Internal quotation marks omitted.)
Id., 727–28. ‘‘[B]ecause closing arguments often have a
rough and tumble quality about them, some leeway
must be afforded to the advocates in offering arguments
to the jury in final argument. [I]n addressing the jury,
[c]ounsel must be allowed a generous latitude in argu-
ment, as the limits of legitimate argument and fair com-
ment cannot be determined precisely by rule and line,
and something must be allowed for the zeal of counsel
in the heat of argument.’’ (Internal quotation marks
omitted.) State v. Chankar, 173 Conn. App. 227, 249, 162
A.3d 756 (2017). ‘‘We do not scrutinize each individual
comment [made by the prosecutor] in a vacuum, but
rather we must review the comments complained of in
the context of the entire trial.’’ (Internal quotation
marks omitted.) State v. Orellana, supra, 89 Conn.
App. 106.
In the present case, the prosecutor made two isolated
misstatements that do not amount to improprieties. We
are mindful that closing argument and closing rebuttal
argument can require counsel to think on his feet and
quickly recall and comment on evidence that was pre-
sented at trial, all while also reacting to arguments
advanced by opposing counsel. Under such circum-
stances, it is appropriate that counsel be afforded some
leeway for minor misstatements, such as occurred in
the present case, in order to not impede counsel from
zealously advocating for clients. State v. Chankar,
supra, 173 Conn. App. 249. The minor misstatements
that occurred here are within the leeway accorded
counsel in closing argument where, in the heat of argu-
ment, counsel may be forgiven for hitting the nail
slightly off center but not wholly inventing ‘‘facts.’’ To
conclude that these isolated misstatements constitute
a prosecutorial impropriety and that the defendant suf-
fered harm from them, we would need to minutely
examine the prosecutor’s word choice in a vacuum,
ignoring the broader context of the whole trial. This is
not an appropriate approach to such considerations.
State v. Orellana, supra, 89 Conn. App. 106. When
placed in the broader context of the trial, these state-
ments are revealed to be isolated and minor. The jurors
heard Sievering’s testimony as it was delivered and the
defendant has not presented any evidence to support
the conclusion that the prosecutor’s misstatements
caused confusion among the jurors or caused them to
misunderstand Sievering’s testimony.
Viewed in the larger context of the whole trial, we
cannot conclude that these isolated and minor misstate-
ments by the prosecutor constitute prosecutorial impro-
prieties and we need not consider whether the alleged
impropriety deprived the defendant of his due process
right to a fair trial. See State v. Hickey, supra, 135 Conn.
App. 553 (if impropriety is not identified, then prejudice
need not be considered).
C
The defendant’s final claim regarding prosecutorial
improprieties is that the state’s attorney deprived him
of a fair trial by improperly facilitating the admission
into evidence of a medical report that contained prior
misconduct evidence. The following additional facts are
relevant to this claim.
As previously explained, on June 6, 2013, S.R. was
evaluated at St. Francis Hospital by Courtney, a nurse
practitioner, using a sexual assault forensic evidence
collection kit. Courtney produced a report about this
examination that included the statement, ‘‘[S] states
that [the defendant’s] [fifteen] year old daughter said
the same thing happened to her.’’ The record indicates
that S had reported to Courtney that the defendant’s
other stepdaughter, N, had made similar allegations of
sexual abuse against the defendant.
At trial, the prosecutor informed the court that the
state had no intention of presenting prior misconduct
evidence. Although Courtney was a logical witness for
the state to call, she was out-of-state and unavailable
to testify at the time of trial. The court suggested that
the parties agree to admit Courtney’s report into evi-
dence as a full exhibit in place of Courtney’s testimony.
Later in the day, the court revisited the issue asking
counsel if they had an agreement regarding the report.
The prosecutor replied that there was no agreement
yet, and ‘‘I have to look at it again, but I don’t think it
has much of anything in it is the problem. It’s not a
. . . typical medical report.’’ The parties then had an
unrelated discussion before turning back to the report.
At that time, both counsel stated they had no objection
to admission of the report. Subsequently, during its
charge to the jury, the court stated that the jury may
treat S.R.’s statements to medical or mental health pro-
fessionals as substantive evidence, and in doing so the
court specifically highlighted Sievering’s testimony and
Courtney’s report.
The defendant contends that the prosecutor’s con-
duct was improper because he did not prevent the
admission of Courtney’s report, which contained an
accusation of prior misconduct, despite previous assur-
ances that the state would not present such evidence.
The defendant faults the court, the prosecutor, and his
own counsel for the admission of this evidence, but
argues that the primary blame rests with the prosecutor.
He asserts that admission of the report was harmful
because it informed the jury that the defendant’s other
stepdaughter, N, had accused him of abusing her in the
same way. The state responds that the defendant has
failed to cite any legal authority to support the con-
tention that this situation constitutes a prosecutorial
impropriety. In particular, the state argues that the
defendant’s claim should be rejected because he agreed
to the admission of the report and made extensive use
of the report to support his defense theory that the
allegations were fabricated. Additionally, the state
argues that the harm, if any, should be considered mini-
mal because S also testified that the defendant had
told her that his stepdaughter N had accused him of
committing a similar assault. We agree with the state.
The presentation of prior misconduct evidence in
sexual assault trials is not in and of itself improper. See
State v. DeJesus, 288 Conn. 418, 473, 953 A.2d 45 (2008)
(evidence of prior sexual misconduct admissible to
establish defendant’s ‘‘propensity or a tendency to
engage in the type of aberrant and compulsive criminal
sexual behavior with which he or she is charged’’).
The defendant has not claimed that this evidence was
inadmissible, but rather that it was simply a prosecu-
torial impropriety to present this evidence after the
prosecutor informed the court that he would not do so.
The defendant cites no authority for his assertion that
the prosecutor acted improperly. The report was admit-
ted pursuant to an agreement of the parties, and at most
indicates a degree of inattentiveness by both sides. The
defendant’s arguments are difficult to accept for two
reasons. First, contrary to the defendant’s claim, this
report was not the only source of the jury’s knowledge
that the defendant had previously been accused of a
similar assault by his other stepdaughter, N. S also
testified that the defendant told her on the morning
that S.R. was molested that N had previously accused
him of touching her in the same way. Later, the defen-
dant was given the opportunity to address these allega-
tions on cross-examination and denied making the
statement to S and denied that he had molested N.
Second, the defendant made extensive use of this report
in his closing argument. It is hard to square his use
of the report at trial with his claims on appeal. The
prosecutor’s role in the admission of this report cannot
be fairly characterized as prosecutorial impropriety.
Because we conclude that this was not a prosecutorial
impropriety, we need not consider whether the alleged
impropriety deprived the defendant of his due process
right to a fair trial. See State v. Hickey, supra, 135 Conn.
App. 553 (if impropriety is not identified, then prejudice
need not be considered).
II
The defendant next claims that the trial court
deprived him of his right to confront and impeach the
witnesses against him under the state and federal con-
stitution8 when the court precluded him from presenting
testimony from other witnesses that he claims would
have contradicted the testimony of S. The defendant’s
claim implicates two different witnesses: the defendant
himself and L, a friend of S. After carefully considering
the record in this matter, we decline to review the
defendant’s claim.
Regarding his claim concerning his own testimony,
the record shows that the defendant presented a differ-
ent legal argument to the trial court than he is pursuing
in this appeal.9 Therefore, we decline to review the
defendant’s claim regarding his own testimony because
the trial court was not provided an opportunity to con-
sider this argument. See State v. Pagan, 158 Conn. App.
620, 632–33, 119 A.3d 1259 (‘‘[t]his court is not bound
to consider claims of law not made at the trial. . . .
Once counsel states the authority and ground of [his
argument], any appeal will be limited to the ground
asserted.’’), cert. denied, 319 Conn. 909, 123 A.3d 438
(2015).
Regarding the defendant’s claim concerning the testi-
mony of L, which was excluded under General Statues
§ 54-86f,10 commonly known as the rape shield statute,
we conclude that he has failed to challenge the ground
on which the trial court ruled, and we therefore also
decline to review this claim.11 See State v. Lester, 324
Conn. 519, 526–27, 153 A.3d 647 (2017) (‘‘[w]here an
appellant fails to challenge all bases for a trial court’s
adverse ruling on his claim, even if this court were to
agree with the appellant on the issues that he does
raise, we still would not be able to provide [him] any
relief in light of the binding adverse [finding not raised]
with respect to those claims. . . . [W]hen an [appel-
lant’s claim] challenges a trial court’s adverse ruling,
but does not challenge all independent bases for that
ruling, the [claim] is moot.’’ [Citation omitted; internal
quotation marks omitted.]).12
For the foregoing reasons, we conclude that the
defendant was not deprived of his general due process
right to a fair trial under the state and federal consti-
tutions.
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 sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
1
The record indicates that the defendant’s reference to ‘‘my other daugh-
ter’’ refers to his stepdaughter N, who is the biological daughter of his
former wife.
2
The record does not indicate why this interview occurred in Manchester.
3
The state later entered a nolle prosequi as to the charge of sexual assault
in the first degree.
4
The constitution of Connecticut, article first, § 8, provides in pertinent
part that, ‘‘[n]o person shall be . . . deprived of . . . liberty . . . without
due process of law . . . .’’ The fourteenth amendment to the United States
constitution provides in pertinent part: ‘‘[N]or shall any state deprive any
person of life [or] liberty . . . without due process of law . . . .’’
5
The constitution of Connecticut, article first, § 8, provides in pertinent
part that, ‘‘[i]n all criminal prosecutions, the accused shall have a right . . .
to be confronted by the witnesses against him . . . .’’ The sixth amendment
to the United States constitution, made applicable to the states by the due
process clause of the fourteenth amendment to the United States constitu-
tion, provides in pertinent part that, ‘‘[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses
against him . . . .’’
6
The defendant also argues that, even if these alleged improprieties singly
did not deprive him of a fair trial, when taken together, the combined force
of them did so taint the integrity of the trial that his right to a fair trial was
violated. Because we conclude that the cited conduct does not constitute
prosecutorial impropriety, we necessarily conclude also that the sum of this
conduct did not violate his right to a fair trial.
7
We note that the burden is different when the defendant invokes a specific
constitutional right. ‘‘[C]onsistent with our [Supreme Court’s] decisions in
[State v. Cassidy, 236 Conn. 112, 672 A.2d 899, cert. denied, 519 U.S. 910,
117 S. Ct. 273, 136 L. Ed. 2d 196 (1996)] and [State v. Angel T., 292 Conn. 262,
973 A.2d 1207 (2009)], if the defendant raises a claim that the prosecutorial
improprieties infringed a specifically enumerated constitutional right, such
as the fifth amendment right to remain silent or the sixth amendment right
to confront one’s accusers, and the defendant meets his burden of establish-
ing the constitutional violation, the burden is then on the state to prove
that the impropriety was harmless beyond a reasonable doubt.’’ State v.
Payne, supra, 303 Conn. 563.
8
See footnote 5 of this opinion.
9
At trial, the defendant argued that he should be permitted to testify
regarding statements S allegedly made to him regarding sexual behavior S
had observed occurring between A and S.R., as well as a transcript of text
messages sent between the defendant and S, on the theory that they went
to ‘‘motive, bias, prejudice, and interest.’’ During the ensuing discussion,
the court questioned the relevancy of the testimony and the text messages
to these issues and ultimately concluded that this line of inquiry should be
disallowed. Later that same day, the defendant asked the court to revisit
its ruling on the text messages, but did not mention the defendant’s testi-
mony. The defendant then proceeded to argue that the text messages should
be admissible because ‘‘the texts are inconsistent with [S’s] testimony here—
in court and contradictory, and can be considered an inconsistent state-
ment.’’ In this appeal, the defendant is now trying to apply this latter rationale
to his testimony as well. The defendant’s inconsistent statements argument
was presented to the court only in relation to the text messages.
10
General Statutes (Rev. to 2015) § 54-86f provides in relevant part that
‘‘[i]n any prosecution for sexual assault . . . no evidence of the sexual
conduct of the victim may be admissible unless such evidence is (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, or (4) otherwise so relevant and material to a
critical issue in the case that excluding it would violate the defendant’s
constitutional rights. Such evidence shall be admissible only after a hearing
on a motion to offer such evidence containing an offer of proof. . . . If,
after hearing, the court finds that the evidence meets the requirements of
this section and that the probative value of the evidence outweighs its
prejudicial effect on the victim, the court may grant the motion. The testi-
mony of the defendant during a hearing on a motion to offer evidence under
this section may not be used against the defendant during the trial if such
motion is denied, except that such testimony may be admissible to impeach
the credibility of the defendant if the defendant elects to testify as part of
the defense.’’
11
The trial court excluded L’s testimony because it considered it ‘‘violative
of the rape shield statute. It is being offered for its truth, not merely to
criticize the—or attack the credibility of [S]. Now, this is triple hearsay.
. . . It is so far removed from anything that could be admitted as substantive
evidence that it has little or no probative value and I will exclude it . . . .’’
The defendant faults this ruling as ‘‘recharacterizing’’ the purpose of his
offering this evidence from one of impeachment, which he asserts would
have been admissible, to one of substance. The record does not support
this assertion. Before ruling, the trial court asked the defendant, ‘‘do you
want to offer [L]’s testimony other than on the prior inconsistent statement
[purpose]?’’ To which the defendant responded, ‘‘Yes, Your Honor,’’ and
‘‘[t]o show a prior source of the sexual knowledge of a child, yes.’’ On
appeal, the defendant has simply asserted, with minimal citation to authority
and no analysis, that the trial court ‘‘recharacterized’’ his purpose before
he turns his argument to addressing the admissibility of the testimony as a
prior inconsistent statement for the purposes of impeachment. He does not
substantively challenge the ruling of the trial court that the evidence violates
the rape shield statute. Accordingly, we decline to consider his argument
that L’s testimony is admissible as a prior inconsistent statement for the
purpose of impeaching the credibility of S.
12
Although we decline to address the defendant’s legal arguments on this
claim, we note that the record does not support the factual substance of
his claim. When testifying, S was asked and answered questions regarding
whether she had personally observed sexual interaction between S.R. and
A, and whether she would report her personal observations to any person
or entity. By contrast, L testified regarding S’s statements about what a
school counselor had reported to S and the fact that the school counselor
intended to report the information to the Department of Children and
Families. In fact, L testified that the school counselor’s report was not
based on any observation by the counselor, but rather was based on a
statement S.R. had made to another school employee. It is not clear from
L’s testimony that anyone witnessed the alleged sexual interaction between
S.R. and A, let alone whether S witnessed it.