State v. Elmer , 176 Conn. App. 343 ( 2017 )

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STATE OF CONNECTICUT v. ELMER G.1
(AC 37596)
Alvord, Prescott and Pellegrino, Js.
Syllabus
Convicted of two counts each of the crimes of sexual assault in the second
degree and risk of injury to a child, and of three counts of the crime
of criminal violation of a restraining order in connection with his alleged
sexual abuse of the victim, his daughter, the defendant appealed to this
court. He claimed, inter alia, that the evidence was insufficient to support
his conviction of one of the counts of sexual assault in the second
degree, which was based on his alleged conduct in compelling the victim
to engage in fellatio, and all three counts of criminal violation of a
restraining order. Held:
1. The evidence was sufficient to support the defendant’s conviction of
sexual assault in the second degree, the state having presented sufficient
evidence to prove that the defendant’s penis entered into the victim’s
mouth to some degree, however slight, to establish penetration; on the
basis of the victim’s testimony, the jury reasonably could have found
that the victim performed fellatio on the defendant and that during the
course of doing so, the defendant’s penis passed into her mouth, and,
on the basis of its firsthand observation of the victim’s conduct,
demeanor and attitude when answering the prosecutor’s questions, the
jury reasonably could have construed against the defendant any ambigu-
ity in the victim’s testimony concerning penetration.
2. The defendant could not prevail on his claim that the evidence was
insufficient to support his conviction of three counts of criminal violation
of a restraining order because the state failed to prove that the ex parte
and temporary restraining orders that were issued applied to the victim
or that he knew the parameters of those orders: although the restraining
orders identified the victim’s mother as the protected person, they also
stated that they protected the minor children of the protected person,
namely, the victim and her siblings, the court specifically informed the
defendant at a hearing that although he could have some contact with
the children, that contact was limited to weekly, supervised visits, and,
therefore, there was sufficient evidence to prove that the restraining
orders prohibited the defendant from contacting the victim outside of
their weekly, supervised visits; moreover, although the restraining orders
were in English and the defendant spoke Spanish, there was sufficient
evidence to prove that he knew the terms of the temporary restraining
order and that it prohibited him from contacting the victim outside of
the weekly, supervised visits, defense counsel having represented to
the court that he was fluent in Spanish and had reviewed the terms of the
orders with the defendant, and the court, through a Spanish interpreter,
having advised the defendant that his contact with his children was
limited, and even if there was an inadequate evidentiary basis for
determining that the defendant knew the terms of the ex parte restraining
order, the evidence nevertheless was sufficient to support his conviction,
as two counts of the restraining order information pertained to conduct
that occurred during the effective period of the temporary restraining
order, not the ex parte restraining order, and although the conduct
alleged in the third count encompassed the effective periods of both
restraining orders, there was sufficient evidence presented at trial to
prove that the defendant sent a letter to the victim and that she received
the letter during the effective period of the temporary restraining order.
3. The defendant’s claim that he was deprived of a fair trial as a result of
prosecutorial improprieties was unavailing: in claiming that certain of
the prosecutor’s questions constituted improper attempts to bolster
the victim’s credibility, the defendant was attempting to transform an
unpreserved evidentiary claim challenging the admission of testimony
into a constitutional claim of prosecutorial impropriety, and this court
declined to review such an unpreserved evidentiary claim under the
prosecutorial impropriety framework; moreover, in the context of his
entire closing argument, the prosecutor, by arguing in detail why the
substance of the victim’s testimony, her demeanor on the witness stand
and the sum of the evidence presented supported a finding that the
victim was not fabricating the allegations, did not improperly vouch for
the credibility of the victim but, rather, appealed to the jurors’ common
sense and invited them to draw a conclusion on the basis of a rational
appraisal of the evidence, the prosecutor did not attempt to create
sympathy for the victim and thereby inject extraneous matters into the
trial when he asked the jurors to use their common sense to infer that
the victim’s testimony was more credible because of the hardships that
she had endured as a result of bringing the allegations against the
defendant, and the prosecutor’s reference to statements about the sexual
abuse that the victim made to her school guidance counselor, who did
not testify at trial, was based on facts in evidence and was not improper,
as the jury reasonably could have concluded, from the testimony of the
victim and a detective to whom the victim gave a statement, that the
victim had told her guidance counselor about the assault.
(One judge concurring separately)
Argued May 16—officially released September 12, 2017
Procedural History
Two substitution informations charging the defen-
dant, in the first case, with three counts each of the
crimes of sexual assault in the second degree and risk
of injury to a child, and, in the second case, with three
counts of the crime of criminal violation of a restraining
order, brought to the Superior Court in the judicial
district of Danbury, where the cases were consolidated
and tried to the jury before Pavia, J.; verdicts and
judgments of guilty of two counts each of sexual assault
in the second degree and risk of injury to a child, and
three counts of criminal violation of a restraining order,
from which the defendant appealed to this court.
Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Stephen J. Sedensky III,
state’s attorney, and Warren C. Murray, supervisory
assistant state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Elmer G., appeals from
the judgments of conviction, after a jury trial, of two
counts of sexual assault in the second degree in viola-
tion of General Statutes § 53a-71 (a) (1), two counts of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2), and three counts of criminal violation
of a restraining order in violation of General Statutes
§ 53a-223b. On appeal, the defendant claims that (1)
there was insufficient evidence presented at trial to
convict him of one of the two counts of sexual assault
in the second degree and all three counts of criminal
violation of a restraining order, and (2) certain prosecu-
torial improprieties at trial deprived him of his right to
a fair trial. We disagree and, accordingly, affirm the
judgments of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
The victim is the defendant’s daughter. The victim was
born in Guatemala and lived there until July, 2010. In
Guatemala, family members raised the victim and four
of her siblings (Guatemalan siblings) while their par-
ents, the defendant and A.N., and four younger siblings
(American siblings) resided together in Connecticut.2
The victim remembered meeting the defendant for the
first time in 2007, when she was approximately ten years
old. During that visit, the defendant began touching
the victim in a sexually inappropriate manner. In the
summer of 2010, the defendant arranged for two rela-
tives to bring the victim, who was thirteen years old,
to Connecticut illegally. Before she left Guatemala, the
defendant told her ‘‘to get a shot for pregnancy, to avoid
pregnancies . . . .’’ Approximately two weeks after
arriving in Connecticut, the defendant resumed his sex-
ual abuse of the victim and compelled her to engage
in various sexual acts, including penile-vaginal inter-
course and fellatio.
In June, 2011, the Department of Children and Fami-
lies (department) conducted an investigation into alle-
gations that the defendant was physically abusing his
son, one of the victim’s American brothers. In January,
2012, the department conducted another investigation
into domestic violence after the victim’s brother told
someone at school that the defendant had brandished
a knife at home, threatened his mother, A.N., and cut
A.N.’s leg with the knife. At about this time, the defen-
dant returned to Guatemala for a planned visit. Because
the department was concerned about the well-being of
A.N. and her children upon the defendant’s return from
Guatemala, it helped A.N. secure new housing for her-
self and her children.
When the defendant learned of these events from
relatives, he called A.N. to discuss the situation.
Because A.N. was fearful of the defendant coming to
her new residence when he returned to Connecticut,
on March 2, 2012, she applied for and was issued a two
week, ex parte restraining order against the defendant,
which protected herself and her children in Connecti-
cut. On March 5, 2012, the defendant received in-hand
marshal service of the ex parte restraining order. On
March 15, 2012, after a hearing, A.N. was issued a six
month restraining order (temporary restraining order)
against the defendant, which protected herself and her
children in Connecticut. While the ex parte restraining
order and the temporary restraining order (collectively,
restraining orders) were in effect, the defendant contin-
ued to communicate with the victim in a manner that
violated these orders.
After the department became involved with the vic-
tim’s family in January, 2012, it referred the family to
Altagracia Lara, an intensive family preservation clini-
cian with Catholic Charities. During her conversations
with the victim, Lara became concerned about the vic-
tim’s relationship with the defendant and called the
victim’s pastor, Lourdes Lopez, and encouraged her to
talk to the victim. On April 8, 2012, Lopez noticed that
the victim was crying after church services and
approached her to determine what was wrong. When
the victim was not being responsive, Lopez brought the
victim into her office, encouraged the victim to tell her
what was wrong, and reassured the victim that she
could trust her. The victim told Lopez that the defendant
was physically and sexually abusing her. Lopez drove
the victim home so they could speak with A.N. about
her disclosure, and she called Lara, who reported the
allegation to the department. The next morning, April
9, 2012, A.N. and Lara brought the victim to the police
station to report the sexual abuse. After providing a
written statement to the police, the victim was exam-
ined by a forensic pediatrician. The pediatrician found
‘‘very deep notches’’ in the victim’s hymen, which was
consistent with vaginal penetration and, after a second
examination, diagnosed the victim with a sexually trans-
mitted infection.
The defendant was subsequently charged in two
informations, one alleging, inter alia, that he sexually
abused the victim, and one alleging that he violated
the restraining orders. In the operative sexual assault
information, the defendant was charged with three
counts of sexual assault in the second degree and three
counts of risk of injury to a child. In the operative
restraining order information, the defendant was
charged with three counts of criminal violation of a
restraining order. After a joint trial on both informa-
tions, the jury found the defendant guilty of two counts
of sexual assault in the second degree, two counts of
risk of injury to a child, and three counts of criminal
violation of a restraining order. The jury found the
defendant not guilty of one count of sexual assault in
the second degree and one count of risk of injury to a
child. The court sentenced the defendant to a total
effective term of forty years of imprisonment, execution
suspended after twenty-five years, followed by twenty-
five years of probation. This appeal followed.
I
We begin with the defendant’s claim that there was
insufficient evidence presented at trial to convict him
of one count of sexual assault in the second degree
based on fellatio and three counts of criminal violation
of a restraining order. We conclude that there was suffi-
cient evidence presented at trial to support all of the
defendant’s convictions.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
we apply a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘We note that the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, [but] 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. . . .
‘‘Finally, [a]s we have often noted, proof beyond a
reasonable doubt does not mean proof beyond all possi-
ble doubt . . . nor does proof beyond a reasonable
doubt require acceptance of every hypothesis of inno-
cence posed by the defendant that, had it been found
credible by the [finder of fact], would have resulted in
an acquittal. . . . On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) State v.
Crespo, 317 Conn. 1, 16–17, 115 A.3d 447 (2015).
A
The defendant first claims that there was insufficient
evidence presented at trial to support his conviction of
sexual assault in the second degree based on fellatio.
In particular, the defendant argues that the state failed
to prove that his penis penetrated the victim’s mouth
because the victim’s testimony was too ambiguous con-
cerning whether penetration occurred. We disagree.
The following additional facts are relevant to this
claim. In count five of the sexual assault information,
the state alleged, in relevant part, that ‘‘between July,
2010, and January, 2012, the [defendant] engaged in
sexual intercourse with another person, [the victim],
by having said person perform an act of fellatio upon
him . . . .’’ With respect to the charge of sexual assault
in the second degree that was based on fellatio, the
state engaged in the following colloquy with the victim:
‘‘[The Prosecutor]: And could you just indicate to the
ladies and gentlemen of the jury what you remember?
‘‘[The Victim]: He asked me to do oral sex.
‘‘[The Prosecutor]: And what do you remember about
that specific event, if you can just tell the ladies and
gentlemen of the jury?
‘‘[The Victim]: Always with threats.
‘‘[The Prosecutor]: The actual incident itself, could
you describe the incident itself, could you describe
the incident?
‘‘[The Victim]: He made me put my mouth in his penis.
‘‘[The Prosecutor]: I’m sorry. Say that again?
‘‘[The Victim]: He made me—he forced me to put my
mouth on his penis.
‘‘[The Prosecutor]: Okay. Did—did he actually pene-
trate your mouth?
‘‘[The Victim]: No.
‘‘[The Prosecutor]: What do you mean? How about
your lips?
‘‘[The Victim]: Yes.’’
‘‘A person is guilty of sexual assault in the second
degree when such person engages in sexual intercourse
with another person and . . . [s]uch other person is
thirteen years of age or older but under sixteen years
of age and the actor is more than three years older than
such other person . . . .’’ General Statutes § 53a-71 (a)
(1). The definition of ‘‘sexual intercourse’’ includes ‘‘fel-
latio . . . between persons regardless of sex. . . .’’
General Statutes § 53a-65 (2). ‘‘Penetration, however
slight, is sufficient to complete . . . fellatio and does
not require emission of semen. . . .’’ General Statutes
§ 53a-65 (2). When analyzing our Penal Code’s definition
of penetration, our Supreme Court has observed: ‘‘ ‘Pen-
etration’ is defined as ‘the act or process of penetrating,’
and ‘penetrate’ means ‘to pass into or through’ or ‘to
extend into the interior of . . . .’’ (Emphasis in origi-
nal.) State v. Scott, 256 Conn. 517, 532, 779 A.2d 702
(2001). Thus, to prove sexual assault based on fellatio,
‘‘it is necessary for the state to establish that the defen-
dant intended to insert his penis into the victim’s
mouth.’’ (Emphasis in original.) Id., 533. Sexual acts
that do not involve the defendant’s penis entering the
victim’s mouth, such as the act of licking a penis, are
insufficient to prove penetration because licking
‘‘involves extending the tongue from the mouth, not
inserting the penis into the mouth.’’ (Emphasis in origi-
nal.) Id.
We conclude that the state presented sufficient evi-
dence to prove that the defendant’s penis entered into
the victim’s mouth to some degree, however slight. The
victim testified that the defendant ‘‘asked [her] to do
oral sex,’’ i.e., ‘‘he forced [her] to put [her] mouth on
his penis,’’ and she responded affirmatively when the
prosecutor asked her if, in doing so, the defendant’s
penis penetrated her lips. On the basis of this testimony,
the jury reasonably could have concluded that the vic-
tim performed fellatio on the defendant and that during
the course of performing fellatio the defendant’s penis
passed into her mouth.
The defendant disagrees, arguing that the victim’s
testimony that his penis did not penetrate her mouth
rendered her testimony concerning penetration too
ambiguous as a matter of law to support his conviction.
In particular, the defendant relies on State v. Hicks,
319 N.C. 84, 90, 352 S.E.2d 424 (1987). In that North
Carolina Supreme Court case, the defendant was
charged, inter alia, with a first degree sexual offense
on the basis of his alleged anal penetration of the victim.
Id., 89–90. At trial, the only evidence of anal penetration
was the seven year old victim’s testimony that the defen-
dant ‘‘ ‘put his penis in the back of me.’ ’’ Id., 90.
Although a physical examination of the victim ‘‘revealed
a broken hymen and a genital rash that appeared to
be a yeast infection’’; id., 86; the examining physician
testified that he found no evidence of anal intercourse.
Id., 90. The North Carolina Supreme Court concluded:
‘‘Given the ambiguity of [the victim’s] testimony as to
anal intercourse, and absent corroborative evidence
(such as physiological or demonstrative evidence) that
anal intercourse occurred, we hold that as a matter of
law the evidence was insufficient to support a verdict
. . . .’’ Id.
The defendant argues that this case is analogous to
Hicks because the victim’s negative response to the
prosecutor’s question about whether ‘‘he actually pene-
trate[d] your mouth’’ and affirmative response to the
prosecutor’s question—’’How about your lips?’’—ren-
dered her testimony concerning penetration too ambig-
uous as a matter of law to support his conviction. We
disagree. The victim, who was testifying with the assis-
tance of a Spanish interpreter, might simply have misun-
derstood the prosecutor’s first question, and her
misapprehension might have been apparent in her
demeanor, as observed by the jury, when responding
to the prosecutor’s questions. In reviewing sufficiency
of the evidence claims, ‘‘[w]e do not sit as a thirteenth
juror who may cast a vote against the verdict based
upon our feeling that some doubt of guilt is shown by
the cold printed record. . . . Rather, we must defer to
the jury’s assessment of the credibility of the witnesses
based on its firsthand observation of their conduct,
demeanor and attitude.’’ (Internal quotation marks
omitted.) State v. Morgan, 274 Conn. 790, 800, 877 A.2d
739 (2005). ‘‘It is . . . the absolute right and responsi-
bility of the jury to weigh conflicting evidence and to
determine the credibility of the witnesses. . . . [T]he
[jury] can . . . decide what—all, none or some—of a
witness’ testimony to accept or reject. . . . A trier of
fact is free to reject testimony even if it is uncontra-
dicted . . . and is equally free to reject part of the
testimony of a witness even if other parts have been
found credible.’’ (Internal quotation marks omitted.)
State v. Francione, 136 Conn. App. 302, 311–12, 46 A.3d
219, cert. denied, 306 Conn. 903, 52 A.3d 730 (2012).
On the basis of its firsthand observation of the victim’s
conduct, demeanor, and attitude when answering the
prosecutor’s questions, the jury reasonably could have
construed any ambiguity in the victim’s testimony con-
cerning penetration against the defendant.
In addition, the state elicited more details from the
victim about fellatio than were elicited from the seven
year old victim in Hicks about the alleged anal sex.
Prior to responding to the prosecutor’s questions about
penetration, the victim testified that the defendant
‘‘asked me to do oral sex’’ and that ‘‘he forced me to
put my mouth on his penis.’’ The jurors, on the basis
of their common sense and life experiences, could have
reasonably inferred that the seventeen year old victim
understood what oral sex under these circumstances
ordinarily involves, i.e., a man’s penis entering some-
one’s mouth. The jurors also reasonably could have
inferred that when she stated that she put her mouth
on the defendant’s penis—in direct response to the
prosecutor’s request for specific details about the time
she performed oral sex on the defendant—that she did
more than simply place the lips of her mouth against
the defendant’s penis. That is, she placed her mouth
on the defendant’s penis in a manner that caused his
penis to enter into her mouth.
Accordingly, we conclude that there was sufficient
evidence presented at trial to support the defendant’s
conviction of sexual assault in the second degree based
on fellatio.
B
The defendant next claims that there was insufficient
evidence presented at trial to support his conviction of
three counts of criminal violation of a restraining order
because the state failed to prove (1) that the restraining
orders applied to the victim or (2) that he knew the
parameters of the restraining orders. The defendant
further claims that the state failed to prove that he sent
the victim a letter while either of the restraining orders
were in effect.
The following additional facts are relevant to these
claims. The defendant was in Guatemala from January,
2012, into early March, 2012. On March 2, 2012, A.N.
was issued an ex parte restraining order against the
defendant in anticipation of his imminent return to the
United States. The ex parte restraining order identified
A.N. as the ‘‘Protected Person’’ and prohibited the
defendant from, inter alia, contacting ‘‘the protected
person in any manner, including by written, electronic
or telephone contact . . . .’’ With respect to the cou-
ple’s minor children, the ex parte restraining order (1)
stated that ‘‘[t]his order also protects the protected
person’s minor children’’; (2) awarded temporary cus-
tody of the couple’s minor children to A.N.; and (3)
denied the defendant visitation rights. The order listed
the names and birthdays of the couple’s five minor
children residing in the United States, including the
victim. The order also stated that a hearing was sched-
uled for March 15, 2012, at 9:30 a.m., the same day that
the ex parte restraining order expired. The defendant
received in-hand marshal service of the ex parte
restraining order on March 5, 2012.
On March 15, 2012, A.N. was issued a temporary
restraining order against the defendant after a hearing.
The temporary restraining order identified the pro-
tected person as A.N. and prohibited the defendant,
inter alia, from contacting ‘‘the protected person in any
manner, including by written, electronic or telephone
contact . . . .’’ With respect to the couple’s minor chil-
dren, the temporary restraining order stated that (1)
‘‘[t]his order also protects the protected person’s minor
children,’’ and (2) the defendant may have ‘‘[w]eekly
supervised visits with [the] children.’’
The terms of the temporary restraining order were
reviewed with the parties during the temporary
restraining order hearing. Specifically, at the temporary
restraining order hearing, the defendant was present
and represented by Attorney Thomas Wolff. At the
beginning of the hearing, the defendant consented to
having an employee from the department serve as a
Spanish language interpreter. Additionally, Wolff
informed the court that he was fluent in Spanish and
that he would ensure that his client, the defendant,
understood what was being said during the proceeding.
Wolff then stated that he and the victim advocate had
reviewed the proposed temporary restraining order
with the defendant and that they had answered all of
the defendant’s questions about the proposed order.
Wolff represented that the defendant was no longer
contesting the temporary restraining order. Thereafter,
the court engaged in the following colloquy with the
victim advocate:
‘‘The Court: I told you what was going to be the tenor
of my orders, and I asked you to see if you could work
out particulars just so that I don’t enter something
impractical for the parties. Were you able to do that?
‘‘The Victim Advocate: Yes, Your Honor.
‘‘The Court: Okay. Why don’t you tell me the essence
of what you’ve worked out.
‘‘The Victim Advocate: What we’ve agreed upon is
that it would be considered a no contact restraining
order.
‘‘The Court: As far as mom is concerned?
‘‘The Victim Advocate: As far as mom is concerned.
‘‘The Court: Right.
‘‘The Victim Advocate: Contact with the kids [will]
be limited to weekly supervised visits.
‘‘The Court: Contact with minor children weekly,
supervised. Yes . . . .
‘‘The Victim Advocate: He would like to visit them
as soon as possible, so next week would be the only
option available. I provided him with the number, and
they both agreed on third party contact regarding the
children be made through either [S.G.] or [C.T.].’’
(Emphasis added.)
After further discussion concerning the terms of the
order, Wolff agreed with the terms of the order as sum-
marized by the victim advocate. He also reminded the
court that the order would pertain only to the defendant
and A.N.’s children who resided in the United States,
and the court agreed that it had no jurisdiction over
the children in Guatemala. The court then instructed
the defendant as follows: ‘‘So, with that in mind, I am
going to order a temporary restraining order. Now, as
to [A.N.] and the five children, sir, you are not to assault,
threaten, abuse, harass, follow, interfere with or stalk.
You are to stay away from the home of [A.N.], or wher-
ever she’s residing, and you’re not to contact her in any
manner. As far as the children are concerned, you can
have contact with your children, but for now we need
it supervised. It’s to be weekly and supervised. . . .
Any contact that you need to have with your wife, or
that your wife needs to have with you, will go through
a third party, either [S.G.] or [C.T.].’’ (Emphasis added.)
Thereafter, the defendant began supervised visits with
all of his American children except the victim, who
refused to attend these visits. The victim testified that
the defendant persisted in his attempts to contact her,
however, by phone and by sending her messages
through her siblings.
In the operative restraining order information, the
defendant was charged with three counts of criminal
violation of a restraining order. Count one alleged, in
relevant part: ‘‘[The defendant] contacted [the victim]
in violation of a restraining order . . . . [The defen-
dant] had knowledge of the restraining order and con-
tacted [the victim] by text message on March 28, 2012
. . . .’’ Count two alleged, in relevant part: ‘‘[The defen-
dant] contacted [the victim] in violation of a restraining
order . . . . [The defendant] had knowledge of the
restraining order and contacted [the victim] by text
message on April 10, 2012 . . . .’’ Count three alleged,
in relevant part: ‘‘[The defendant] contacted [the victim]
in violation of a restraining order . . . . [The defen-
dant] had knowledge of the restraining order and con-
tacted [the victim] by letter between March 5, 2012, and
April 10, 2012 . . . .’’
At trial, the ex parte restraining order, the temporary
restraining order, and a redacted portion of the tran-
script from the temporary restraining order hearing
were entered into evidence. The victim testified that
after the restraining orders were issued, the defendant
continued to call her and send her text messages on a
regular basis but she typically ignored his calls and
deleted his text messages. She stated that she specifi-
cally recalled receiving a text message from the defen-
dant in March, 2012, because she reported that text
message to the police. The victim further explained that
she eventually changed her cell phone number in order
to avoid the defendant’s attempts to contact her. In
April, 2012, however, the victim stated that one of her
brothers brought her a letter and a new cell phone from
the defendant. The victim identified the handwriting in
the letter as the defendant’s handwriting. She also
stated that she received a text message from the defen-
dant on the cell phone that he provided her on April
10, 2012.
Lara, the family’s intensive family preservation clini-
cian, also testified concerning the defendant’s efforts
to contact the victim while the temporary restraining
order was in effect. Lara stated that on March 28, 2012,
she went with the victim to the police station to report
a text message the defendant sent the victim earlier
that day.3 In addition, Lara testified that when she went
with the victim and A.N. to the police station to report
the defendant’s sexual abuse on April 9, 2012, they
brought the letter that the defendant sent the victim,
which she translated from Spanish into English at the
police station.
In the translated letter, which was admitted into evi-
dence, the defendant references watching the victim
leave church and go to ‘‘Denis dinner’’ with her friends.
The defendant warns the victim that her church friends
are taking advantage of her. He repeatedly pleads with
the victim to call him, text message him, or meet with
him, and he references providing her with a new cell
phone. The defendant also states: ‘‘I don’t have any
issues with you, all the nice things you used to say
and now you are saying other things.’’ The defendant
proceeds to ask the victim ‘‘to forgive me, if you want
to be in God’s mercy forgive me, and if not go ahead
and live with resentment.’’
To convict a defendant of criminal violation of a
restraining order, the state must prove beyond a reason-
able doubt that a restraining order was issued against
the defendant and that the defendant, having knowledge
of the terms of the order, contacted a person in violation
of the order. General Statutes § 53a-223b (a) (2) (B);
State v. Carter, 151 Conn. App. 527, 534–35, 95 A.3d
1201 (2014), appeal dismissed, 320 Conn. 564, 132 A.3d
729 (2016) (certification improvidently granted). The
defendant claims that the state failed to prove that the
restraining orders applied to the victim, that he knew
that the restraining orders prohibited him from con-
tacting the victim, and that he sent the victim the letter
during the effective periods of the restraining orders.
We address each claim in turn.
The defendant first claims that the state failed to
prove that the restraining orders applied to the victim.
We disagree. Although the restraining orders identified
A.N. as the protected person, they also stated that the
order ‘‘protects the protected person’s minor children,’’
i.e., the victim and her American siblings. In addition,
at the temporary restraining order hearing, the court
specifically informed the defendant that, although he
could have some contact with his children, that contact
was going to be limited to weekly, supervised visits.
Viewing this evidence as we must, in a light most favor-
able to sustaining the verdict, we conclude that there
was sufficient evidence presented at trial to prove that
the restraining orders prohibited the defendant from
contacting the victim outside of their weekly, super-
vised visits.
The defendant next claims that there was no evidence
presented at trial that he knew the terms of the
restraining orders because they were in English and he
speaks Spanish. We conclude that there is sufficient
evidence to prove that the defendant knew the terms
of the temporary restraining order, and, as a result,
there was sufficient evidence presented at trial to sup-
port the defendant’s conviction of three counts of crimi-
nal violation of a restraining order. At the temporary
restraining order hearing, Wolff represented that he was
fluent in Spanish and that he and the victim advocate
had reviewed the terms of the proposed order with the
defendant and answered all of his questions concerning
its terms. In addition, the court advised the defendant
through the agreed upon Spanish language interpreter
that his contact with his children would be limited to
weekly, supervised visits for the time being. Finally,
the fact that the defendant asked the victim’s brother
to bring her the letter and new cell phone rather than
delivering these items to the victim himself suggests
that the defendant knew that he could not have contact
with the victim outside of their weekly, supervised vis-
its, which the victim was refusing to attend. As a result,
the jury reasonably could have concluded that the
defendant knew that the temporary restraining order
prohibited him from contacting the victim outside of
their weekly, supervised visits.
It is unclear, however, whether there was sufficient
evidence presented at trial to prove beyond a reason-
able doubt that the defendant knew that the terms of
the ex parte restraining order prohibited him from con-
tacting the victim. On the one hand, the defendant
appears to have understood the ex parte restraining
order enough to know that he needed to attend the
March 15, 2012 hearing; in fact, he brought counsel to
that hearing. On the other hand, there was no evidence
presented at trial that the defendant, a Guatemalan
native, was able to read and write in English. Indeed,
throughout the restraining order and criminal proceed-
ings, the defendant required the assistance of a Spanish
language interpreter. The defendant’s text messages
that were entered into evidence were all in Spanish,
and the victim testified that the defendant only ‘‘knew
a little bit’’ of English. In addition, there was no evidence
presented at trial that Wolff or anyone else translated
the terms of the ex parte restraining order for the defen-
dant. Nevertheless, even if there were an inadequate
evidentiary basis for determining that the defendant
knew the terms of the ex parte restraining order, we
would still conclude that there was sufficient evidence
presented at trial to support the defendant’s conviction.
Counts one and two of the restraining order informa-
tion pertain to conduct that occurred during the effec-
tive period of the temporary restraining order, not the
ex parte restraining order. The conduct alleged in count
three does encompass the effective periods of both
restraining orders, but there was sufficient evidence
presented at trial to prove that the defendant sent and
the victim received the letter during the effective period
of the temporary restraining order. First, the defendant
sent the victim the letter through her brother. The defen-
dant was not authorized to visit his children after the
ex parte restraining order was issued and before the
temporary restraining order authorized supervised vis-
its. Therefore, the jury reasonably could have concluded
that the victim’s brother obtained the letter from the
defendant during one of their supervised visits after the
temporary restraining order was issued. In addition, the
victim testified that she received the letter from her
brother around April, 2012, and the jury could have
reasonably inferred from that that the victim’s brother,
who lived with the victim, provided the victim with the
letter shortly after receiving it.4 It also was established
at trial that, after the temporary restraining order was
issued, the victim refused to attend her supervised visits
with the defendant and changed her cell phone number
to stop the defendant from contacting her. In his letter,
the defendant repeatedly pleads with the victim to con-
tact or meet with him, and, with the letter, the defendant
sent the victim a new cell phone. The jury reasonably
could have inferred that these pleas were in direct
response to the victim’s refusal to answer his calls and
text messages or to attend their supervised visits. Simi-
larly, the jury reasonably could have inferred that the
reason the defendant was providing the victim with a
new cell phone was that he was presently unable to
reach her by phone because he did not have her new
cell phone number.
Mindful as we are that in determining the sufficiency
of the evidence we must consider its cumulative effect
and construe the evidence in the light most favorable
to sustaining the verdict, we determine that there was
sufficient evidence presented at trial to support the
defendant’s conviction of criminal violation of a
restraining order.
II
We next address the defendant’s claims of prosecu-
torial impropriety.5 The defendant claims that the prose-
cutor improperly bolstered the credibility of two state’s
witnesses on direct examination and redirect examina-
tion. The defendant also claims that during closing argu-
ment the prosecutor improperly vouched for the
credibility of the victim, attempted to create sympathy
for the victim and thereby injected extraneous matters
into the trial, and referred to facts not in evidence.
We review claims of prosecutorial impropriety under
a two step analytical process. ‘‘We first examine
whether prosecutorial impropriety occurred. . . . Sec-
ond, if an impropriety exists, we then examine whether
it deprived the defendant of his due process right to
a fair trial. . . . In other words, an impropriety is an
impropriety, regardless of its ultimate effect on the fair-
ness of the trial. Whether that impropriety was harmful
and thus caused or contributed to a due process viola-
tion involves a separate and distinct inquiry.’’ (Citations
omitted.) State v. Fauci, 282 Conn. 23, 32, 917 A.2d 978
(2007). Specifically, in analyzing harm, ‘‘we ask whether
the prosecutor’s conduct so infected the trial with
unfairness as to make the resulting conviction a denial
of due process. . . . We do not, however, focus only
on the conduct of the state’s attorney. The fairness of
the trial and not the culpability of the prosecutor is the
standard for analyzing the constitutional due process
claims of criminal defendants alleging prosecutorial
[impropriety]. . . .
‘‘To determine whether . . . [an] impropriety
deprived the defendant of a fair trial, we must examine
it under each of the Williams factors.6 . . . Specifi-
cally, we must determine whether (1) the impropriety
was invited by the defense, (2) the impropriety was
severe, (3) the impropriety was frequent, (4) the impro-
priety was central to a critical issue in the case, (5) the
impropriety was cured or ameliorated by a specific jury
charge, and (6) the state’s case against the defendant
was weak due to a lack of physical evidence.’’ (Citations
omitted; footnote added; internal quotation marks omit-
ted.) Id., 50–51.
A
We begin with the defendant’s claims that the prose-
cutor improperly bolstered the credibility of two state’s
witnesses on direct examination and redirect examina-
tion. The defendant claims that the prosecutor improp-
erly asked the victim on direct examination, ‘‘are you
making this stuff up,’’ and, ‘‘[h]as anybody put you up
to testifying the way that you have testified here today
in court?’’ The defendant also claims that the prosecutor
improperly asked Pastor Lopez on redirect examination
whether she was telling the truth about why she talked
to the victim about her relationship with the defendant
on April 8, 2012. We conclude that these claims are
evidentiary in nature and, therefore, unreviewable
under the prosecutorial impropriety framework.
The following additional facts are relevant to these
claims. The defense’s theory of the case at trial was
that the victim fabricated the sexual abuse allegations
because A.N. had a new boyfriend and wanted to
divorce the defendant, because the victim resented the
defendant asking her to babysit her younger siblings
and to perform household chores, and to obtain ‘‘U-
Visas’’ for herself, A.N., and her Guatemalan siblings.7
At the end of direct examination, the prosecutor
engaged in the following colloquy with the victim:
‘‘[The Prosecutor]: [A]re you making this stuff up?
’’[The Victim]: No.
‘‘[The Prosecutor]: Has anybody put you up to testi-
fying the way that you have testified here today in
court?
’’[The Victim]: No.
‘‘[The Prosecutor]: In your own words, why are you
doing it?
‘‘[The Victim]: Because I wanted to get out of the life
that I had with him.’’ (Emphasis added.)
The following day, Pastor Lopez testified about her
relationship with the victim and the victim’s disclosure
that the defendant was sexually abusing her. On direct
examination, Lopez testified that she planned to ask
the victim about her home life prior to seeing the victim
crying after church on April 8, 2012, because she and
her husband were troubled by the victim’s behavior.
Lopez explained that she specifically chose to approach
the victim on April 8, 2012, ‘‘[b]ecause I realized that
she was very weak, and I felt that that was the right
time to talk to her and see if we could help her out.’’ On
cross-examination, defense counsel confronted Lopez
concerning the reason she decided to talk to the victim
about her father. In relevant part, defense counsel
engaged in the following colloquy with Lopez:
‘‘[Defense Counsel]: And you said this was a decision
on your own [i.e., to talk to the victim about her father]?
‘‘[Lopez]: Oh, you’re just trying to confuse me.
‘‘[Defense Counsel]: Do you know a woman named
Altagracia—Altagracia Lara?
‘‘[Lopez]: Yes. When she called me just to—asking
me that, that was a confirmation of what I already
observed based on [the victim’s] attitude. But that didn’t
have anything to do with the church. . . .
‘‘[Defense Counsel]: It was Altagracia Lara who asked
you to ask [the victim] about if anything was happening
with her dad. Isn’t that true?
‘‘[Lopez]: Yes.
‘‘[Defense Counsel]: And that is, in fact, why you
asked [the victim] about whether anything was happen-
ing with her father. True?
‘‘[Lopez]: Yes.’’
On redirect examination, the prosecutor engaged in
the following colloquy with Lopez concerning her deci-
sion to talk to the victim about her father:
‘‘[The Prosecutor]: You were asked a series of ques-
tions about a conversation you had with Altagracia Lara.
Do you recall those?
‘‘[Lopez]: It was just a phone call.
‘‘[The Prosecutor]: And Alta [Lara] asked you to do
something, didn’t she?
‘‘[Lopez]: She only said to me that since I was closer
to [the victim], probably I should ask her about what
was going on with her and her dad.
‘‘[The Prosecutor]: So, when you asked [the victim]
about what was happening, in your mind, when you
asked that question, you had planned to ask that ques-
tion. Correct?
‘‘[Lopez]: Yes.
‘‘[The Prosecutor]: And you said earlier you chose
that moment because you felt she was weak?
‘‘[Lopez]: Yes.
‘‘[The Prosecutor]: In addition to Altagracia [Lara]
telling you to ask that question, did you have any inten-
tion on asking that question yourself?
‘‘[Lopez]: Yes.
‘‘[The Prosecutor]: Is that the truth?
’’[Lopez]: Yes. . . .
‘‘[The Prosecutor]: Were you considering asking [the
victim] even before Alta [Lara] called you?
‘‘[Lopez]: Yes.
‘‘[The Prosecutor]: And why was—why were you
intending to do that?
‘‘[Lopez]: Because of the way [the victim] was behav-
ing.’’ (Emphasis added.)
Defense counsel did not object to any of those
questions.
On appeal, the defendant claims that the three empha-
sized aforementioned questions constituted improper
attempts by the prosecutor to bolster the credibility of
his witnesses. ‘‘Evidence accrediting or supporting a
witness’s honesty or integrity is not admissible until
after the witness’s credibility has first been attacked.’’
C. Tait & E. Prescott, Connecticut Evidence (5th Ed.
2014) § 6.27.2 (a), p. 380; accord State v. Suckley, 26
Conn. App. 65, 72, 597 A.2d 1285, cert. denied, 221 Conn.
901, 600 A.2d 1028 (1991); see also Conn. Code Evid.
§§ 6-6 (a) and 6-11 (b). Once the credibility of a witness
has been attacked on cross-examination, however, a
party is permitted to rehabilitate that witness’ credibil-
ity during redirect examination. Relying on these evi-
dentiary principles and our holdings in State v. Juan
V., 109 Conn. App. 431, 441, 951 A.2d 651, cert. denied,
289 Conn. 931, 958 A.2d 161 (2008), and State v. Albino,
130 Conn. App. 745, 774–75, 24 A.3d 602 (2011), aff’d
on other grounds, 312 Conn. 763, 97 A.3d 478 (2014),
the defendant argues that the disputed questions rose
to the level of prosecutorial impropriety. Whether these
claims constitute unpreserved evidentiary claims or
reviewable claims of prosecutorial impropriety bears
scrutiny.
In State v. Juan V., supra, 109 Conn. App. 440, the
defendant claimed that the trial court abused its discre-
tion when it allowed the prosecutor, over his objection,
to ask the four year old victim—’’‘Did you know you
were supposed to tell the truth to [the forensic inter-
viewer]?’ ’’—because this question constituted an
impermissible attempt by the state to bolster the vic-
tim’s credibility before the defense put it at issue on
cross-examination. Id., 440–41. We rejected the defen-
dant’s evidentiary claim, holding that ‘‘it is reasonable
to conclude that the state was attempting to lay a proper
foundation for admissibility of the videotape [of the
victim’s forensic interview]. Shortly after the court per-
mitted the question at issue, the state concluded its
direct examination of [the victim] and informed the
court that it was going to seek to introduce portions
of the videotaped interview under the Whelan8 and the
past recollection recorded exceptions to the rule
against hearsay. Both of these exceptions to the rule
against hearsay require the moving party to show that
the out-of-court statements were reliable. Conse-
quently, it was reasonable for the court to conclude
that the state’s question was not intended to bolster
the veracity of [the victim] but, instead, was part of
the state’s effort to lay the requisite foundation for
admissibility of the videotaped interview.’’9 (Footnotes
altered.) Id.
In State v. Albino, supra, 130 Conn. App. 774–75, we
addressed several claims of prosecutorial impropriety,
including whether the prosecutor improperly bolstered
the credibility of three state’s witnesses by asking them
if they were telling the truth or if they were prepared
to tell the truth on direct examination and on redirect
examination.10 After reviewing the aforementioned evi-
dentiary principles and our holding in Juan V., we stated
in Albino: ‘‘Our review of these questions leads us to the
conclusion that the prosecutor improperly attempted
to bolster the credibility of several of the state’s wit-
nesses.’’ Id., 775. We did not analyze further the role
that each witness played in that case or whether their
credibility was, or was likely to be, attacked on cross-
examination. Indeed, Albino contains no analysis of
why the prosecutor’s questions rose to the level of pros-
ecutorial impropriety, even though the defendant did
not object to them at trial and two of the disputed
questions occurred on redirect examination.11
Because Juan V. was addressing an evidentiary claim,
not a claim of prosecutorial impropriety, our reliance on
that case in Albino is problematic. It is well established
‘‘that [a]lthough . . . unpreserved claims of prosecu-
torial impropriety are to be reviewed under the Wil-
liams factors, that rule does not pertain to mere
evidentiary claims masquerading as constitutional vio-
lations. . . . Evidentiary claims do not merit review
pursuant to Golding . . . because they are not of con-
stitutional magnitude. [R]obing garden variety [eviden-
tiary] claims . . . in the majestic garb of constitutional
claims does not make such claims constitutional in
nature. . . . Putting a constitutional tag on a noncon-
stitutional claim will no more change its essential char-
acter than calling a bull a cow will change its gender.’’
(Internal quotation marks omitted.) State v. Alex B.,
150 Conn. App. 584, 589, 90 A.3d 1078, cert. denied, 312
Conn. 924, 94 A.3d 1202 (2014); accord State v. Elias
V., 168 Conn. App. 321, 341–44, 147 A.3d 1102, cert.
denied, 323 Conn. 938, 151 A.3d 386 (2016); State v.
Devito, 159 Conn. App. 560, 574, 124 A.3d 14, cert.
denied, 319 Conn. 947, 125 A.3d 1012 (2015); State v.
Cromety, 102 Conn. App. 425, 431, 925 A.2d 1133, cert.
denied, 284 Conn. 912, 931 A.2d 932 (2007); see State
v. Rowe, 279 Conn. 139, 151–52, 900 A.2d 1276 (2006).
Stated simply, ‘‘a defendant may not transform an
unpreserved evidentiary claim into one of prosecutorial
impropriety to obtain review of that claim . . . .’’
(Internal quotation marks omitted.) State v. Devito,
supra, 574.
Albino did not analyze whether or why the defen-
dant’s claim was not, in fact, an attempt to transform an
unpreserved evidentiary claim into one of prosecutorial
impropriety to obtain review of that claim. As a result,
we conclude that Albino does not control because we
conclude that the defendant in the present case is
attempting to transform his unpreserved evidentiary
claims, challenging the admission of testimony, into
constitutional claims of prosecutorial impropriety. Con-
sistent with our well established precedent, we decline
to review such unpreserved evidentiary claims under
the prosecutorial impropriety framework.12
B
We next address the defendant’s claims that during
closing argument the prosecutor improperly vouched
for the credibility of the victim, attempted to create
sympathy for the victim and thereby inject extraneous
matters into the trial, and referred to facts not in evi-
dence. We conclude that no improprieties occurred dur-
ing closing argument.
The following additional facts are relevant to these
claims. During closing argument, both parties focused
on the victim’s credibility and motivation in making
these allegations. In relevant part, the prosecutor made
the following remarks during his opening argument,
the emphasized portions of which the defendant now
challenges: ‘‘So, I’m making the argument to you that
the attacks on her credibility fall flat. And this creates
a problem for the defense. What it does is sort of this,
you have this original statement by her, this story which
is a compelling story. And then you look to undermine
it. And when you look to undermine it what you find
out is that the attacks don’t really hold much weight.
So we engage this thought exercise assuming that he’s—
that she’s dishonest but we find out she’s really not
based upon her analysis of the evidence.
‘‘So the failure of those—the failure of—we can sort
of rule out dishonesty. We’ve sort of done that. The
fabrications—what I’m trying to say is that if we can
rule out dishonesty and we can rule out all of those
things this sort of strengthening her claim that this [is]
a true claim, because that’s the only thing that’s left.
There’s an old problem-solving rule it’s called Occam’s
razor, but what it says is, when you have competing
hypotheses to try to explain something the simplest
explanation is always the best. Why complicate it, why
not take [the victim’s] words at their face value? She
is saying that she is the victim of incest because she
was the victim of incest. It’s not complicated, it’s sim-
ple. It is just what it appears to be. We don’t have to
engage in these convoluted attacks on her credibility
in order to establish the basic premise.
‘‘Consider this, if a young girl such as [the victim]
wanted to fabricate a lie, is this the lie they would
fabricate? I would submit to you that there is no young
girl that wants to fabricate an untruth of this extent
and this magnitude. Incest is an issue of the utmost
(indiscernible), and I’d ask you to give it your due con-
sideration; but don’t complicate it, see it as simply as the
evidence shows that [the victim] seat it—saw it. . . .
‘‘Just in conclusion, ladies and gentlemen, I—remem-
ber what the judge says about credibility. You [have]
seen how a young woman who makes up a claim of
sexual assault kind of has to come through and run
the legal gauntlet. Even the members of her family can
testify against her. But I think the evidence shows you
that [the victim’s] testimony has endured, it’s remained
intact in the core. When the defense was questioning
[the victim], and this is important, when they questioned
her, and they cross-examined her for [a] long time, they
asked her not one question about the events in this
house. You got to ask yourself, why did they do that?
‘‘I would submit to you and I would construct the
argument that they knew to stay away from that infor-
mation because that information is radioactive. Once
they got into that information, you would see her break
down and that’s why they stayed away from it. So, what
do you do? You do what they did, you attack on the
periphery, death by a thousand cuts, death by a thou-
sand suggestions. I would submit to you that these
assaults were real. I think the core of her testimony
remains intact. She told the story [to] Lourdes Lopez.
She told it to her mom. She told it to the police. She
told it to Dr. Veronica [Ron-Priola, a forensic pediatri-
cian]. She told it to Julia Jiminez [the victim’s school
guidance counselor], and she told it to this jury.
‘‘Remember what she’s had to do. She’s went through
counseling. She’s went through medical exams. She’s
went through interviews. She’s went through court
appearances. And she’s gone through cross-examina-
tion. And after all that, I am arguing to you that this
evidence shows she’s not fabricating these things.
Defense focused on all of the supposed reasons she’s
fabricating these claims except for one. There’s one
they left out. And [the victim] was asked about this,
she was asked, [the victim], she was sort of asked, you
know, why are you saying these things about your
father. And here’s what she said, ‘I had to get out of
the life I had with him.’ If you were in her position
would you feel the same way? This is exactly what a
person would say that was in this position.
‘‘I want to just thank you for your attention. And I,
remember—I want you to sort of fix in your mind the
image of [the victim] and the type of person she was,
and the credibility she ejected as a human being. And
I want you to fix that in your mind and think about
what the judge has to say about the credibility. And
while you’re reflecting on her as a young lady, I want
you to consider her honesty as it appears through her
testimony and the way she testified.’’ (Emphasis
added.)
Defense counsel began his closing remarks by
returning to his theme that the victim fabricated these
allegations because A.N. had a new boyfriend and
wanted to divorce the defendant, because the victim
resented the defendant asking her to babysit her
younger siblings and to perform household chores, and
to obtain U-Visas for herself, A.N., and her Guatemalan
siblings. Defense counsel also argued extensively about
why, on the basis of the evidence presented at trial, the
jury should not credit the testimony of the victim and
other state’s witnesses. During rebuttal argument, the
prosecutor briefly responded to various points made
by defense counsel. He then concluded his argument by
making the following remark, the emphasized portion
of which the defendant now challenges: ‘‘Fabrication,
this is how it works; once again, we get right back to
the ultimate issue is, are they [the victim and A.N.]
telling the truth or are they fabricating this? I would
argue to you that they were truthful when they testified
here. Thank you, ladies and gentlemen.’’ (Emphasis
added.)
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can occur in the course of closing argu-
ments. . . . [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. Elias V., supra, 168 Conn. App. 347.
The defendant raises various challenges to the empha-
sized portions of the prosecutor’s closing argument. We
address each category of impropriety in turn.
1
The defendant first claims that the prosecutor
improperly vouched for the credibility of the victim
during closing argument by making the following
remarks: (1) the victim ‘‘is saying that she is the victim
of incest because she was the victim of incest’’; (2) ‘‘I
would submit to you these assaults were real’’; (3)
‘‘[a]nd while you’re reflecting on her testimony as a
young lady, I want you to consider her honesty as it
appears through her testimony and the way she testi-
fied’’; and (4) ‘‘I would argue to you that they [the victim
and A.N.] were truthful when they testified here.’’ The
state responds that when these remarks are read in the
context of the prosecutor’s and defense counsel’s entire
closing arguments, they are not improper. We agree
with the state.
‘‘The parameters of the term zealous advocacy are
also well settled. The prosecutor may not express his
own opinion, directly or indirectly, as to the credibility
of the witnesses. . . . Nor should a prosecutor express
his opinion, directly or indirectly, as to the guilt of the
defendant. . . . Such expressions of personal opinion
are a form of unsworn and unchecked testimony, and
are particularly difficult for the jury to ignore because
of the prosecutor’s special position. . . . Moreover,
because the jury is aware that the prosecutor has pre-
pared and presented the case and consequently, may
have access to matters not in evidence . . . it is likely
to infer that such matters precipitated the personal
opinions.’’ (Internal quotation marks omitted.) State v.
Warholic, 278 Conn. 354, 363, 897 A.2d 569 (2006).
‘‘We have held, however, that [i]t is not improper for
the prosecutor to comment [on] the evidence presented
at trial and to argue the inferences that the jurors might
draw therefrom . . . . We must give the jury the credit
of being able to differentiate between argument on the
evidence and attempts to persuade them to draw infer-
ences in the state’s favor, on one hand, and improper
unsworn testimony, with the suggestion of secret
knowledge, on the other hand.’’ (Internal quotation
marks omitted.) State v. Fauci, supra, 282 Conn. 36.
Our Supreme Court previously ‘‘has concluded that the
state may argue that its witnesses testified credibly, if
such an argument is based on reasonable inferences
drawn from the evidence. . . . Specifically, the state
may argue that a witness has no motive to lie. . . . In
addition, jurors, in deciding cases, are not expected to
lay aside matters of common knowledge or their own
observations and experiences, but rather, to apply them
to the facts as presented to arrive at an intelligent and
correct conclusion. . . . Therefore, it is entirely proper
for counsel to appeal to a jury’s common sense in clos-
ing remarks.’’ (Citations omitted; internal quotation
marks omitted.) State v. Warholic, supra, 278 Conn. 365.
Having reviewed the disputed remarks in the context
of the prosecutor’s entire closing argument, we con-
clude that the prosecutor did not improperly express his
personal belief or opinion that the victim was credible.
During his closing argument, the prosecutor argued in
detail why the substance of the victim’s testimony, her
demeanor on the witness stand, and the sum of the
evidence presented at trial supported a finding that
the victim was not fabricating these allegations as the
defendant suggested. In making these arguments, the
prosecutor repeatedly admonished the jurors to listen
carefully to the court’s instruction on credibility and to
rely on their common sense, their life experiences, and
the evidence presented at trial when making their credi-
bility determinations. When the disputed remarks are
viewed in the context of the prosecutor’s entire argu-
ment, therefore, it becomes clear that the prosecutor
was not expressing his personal opinion about the vic-
tim’s credibility with these remarks but rather was
appealing to the jurors’ common sense and inviting
them to draw the conclusion on the basis of a rational
appraisal of the evidence presented at trial that the
victim was not fabricating these allegations.
Accordingly, we conclude that the prosecutor did not
express an improper personal opinion concerning the
victim’s credibility.
2
The defendant next challenges three remarks that
the prosecutor made during his opening argument that
he claims were improper attempts to create sympathy
for the victim and thereby inject extraneous matters
into the trial. The state responds that ‘‘the prosecutor’s
comments constituted a fair argument to the jury that
they should reject the defendant’s challenge to the vic-
tim’s credibility,’’ not to generate sympathy for the vic-
tim. We agree with the state.
Our Supreme Court ‘‘has recognized on numerous
occasions that [a] prosecutor may not appeal to the
emotions, passions and prejudices of the jurors. . . .
[S]uch appeals should be avoided because they have
the effect of diverting the [jurors’] attention from their
duty to decide the case on the evidence. . . . When
the prosecutor appeals to emotions, he invites the jury
to decide the case, not according to a rational appraisal
of the evidence, but on the basis of powerful and irrele-
vant factors which are likely to skew that appraisal.’’
(Internal quotation marks omitted.) State v. Long, 293
Conn. 31, 54, 975 A.2d 660 (2009). An improper appeal
to the jurors’ emotions can take the form of ‘‘a plea for
sympathy for the victim . . . .’’ Id., 59.
The defendant first challenges two remarks by the
prosecutor that, when assessing the credibility of the
victim and her motivation for testifying, the jury should
consider the hardships the victim has had to endure
since making her allegations.13 We conclude that these
remarks did not constitute an invitation by the prosecu-
tor for the jurors to decide the case on the basis of
their emotions. Instead, the prosecutor was asking the
jurors to use their common sense to infer that the vic-
tim’s testimony was more credible because of the hard-
ships she has endured as a result of bringing and
maintaining her allegations against the defendant, such
as invasive medical examinations and embarrassing
conversations with strangers and family members about
being sexually assaulted on several occasions by her
father. Our Supreme Court has repeatedly recognized
that this type of argument is permissible and does not
constitute an improper appeal to emotions. E.g., State
v. Felix R., 319 Conn. 1, 10, 124 A.3d 871 (2015) (‘‘state-
ments wherein the prosecutor recounted the difficulties
that the victim faced during the investigation and trial’’
not improper appeals to emotions); State v. Long, supra,
293 Conn. 48 (‘‘the comments in which the prosecutor
asked the jurors to use their common sense to infer
that [the victim’s] complaint was more credible because
it required her to undergo an uncomfortable medical
examination and embarrassing conversations with both
her family members and complete strangers, also were
proper’’); State v. Warholic, supra, 278 Conn. 377–78
(asking jurors, particularly male jurors, to assess vic-
tim’s credibility by recognizing emotional difficulty vic-
tim subjected himself to by making allegations of sexual
assault not improper appeal to emotions), citing State
v. Rose, 353 N.W.2d 565, 568 (Minn. App. 1984) (asking
jurors to assess credibility of thirteen year old victim
by identifying with difficulty she must have experienced
in testifying about sexual assault allegations not
improper appeal to emotions), review denied (Minn.
September 12, 1984).
The defendant also contends that the prosecutor
injected extraneous matters into the trial by remarking
that ‘‘if a young girl such as [the victim] wanted to
fabricate a lie, is this the lie they would fabricate? I
would submit to you that there is no young girl that
wants to fabricate an untruth of this extent and this
magnitude.’’ This remark was clearly designed to rebut
defense counsel’s various theories for why the victim
was fabricating her allegations of sexual assault by call-
ing upon the jury to apply its common sense and life
experiences when evaluating the victim’s credibility.
See, e.g., State v. Warholic, supra, 278 Conn. 365–66
(asking ‘‘jury to consider, in its assessment of [the vic-
tim’s] credibility, why he would put himself in a position
to have to explain to his father that he had performed
oral sex on an adult male’’ constituted proper appeal
to jurors’ common sense and experience in evaluating
victim’s testimony). Accordingly, we conclude that this
remark was not improper.
3
Finally, the defendant claims that during closing argu-
ment the prosecutor improperly referred to facts not
in evidence when he stated that the victim told her
school guidance counselor, Jiminez, that the defendant
sexually abused her because Jiminez never testified at
trial.14 We conclude that the prosecutor did not improp-
erly refer to facts not in evidence during closing
argument.
The following additional facts are relevant to this
claim. Although Jiminez never testified at trial, she was
mentioned during the testimony of the victim and Detec-
tive Rachael Halas. In particular, during cross-examina-
tion, defense counsel engaged in the following colloquy
with the victim concerning her allegations of sexual
abuse:
‘‘[Defense Counsel]: And then on April 8 [2012] is
when you reported the allegations to your pastor
[Lopez]?
‘‘[The Victim]: Yes.
‘‘[Defense Counsel]: And on April 9th you reported
to a social worker named Altagracia Lara?
‘‘[The Victim]: Yes.
‘‘[Defense Counsel]: And that same day, April 9th,
you provided the police with that notebook handwritten
statement? Correct?
‘‘[The Victim]: Yes.
‘‘[Defense Counsel]: And then on April 13th you go
back, and you provide another verbal statement to
the police?
‘‘[The Victim]: I don’t remember that too well.
‘‘[Defense Counsel]: Do you remember when your
guidance counselor from Danbury High School
brought you back to Detective Halas and went over
some additional questions?
‘‘[The Victim]: Yes.
‘‘[Defense Counsel]: And do you remember talking
to Mrs. Jiminez, the guidance counselor, in Spanish
on that day?
‘‘[The Victim]: Yes.
‘‘[Defense Counsel]: About the allegations?
‘‘[The Victim]: Yes.’’ (Emphasis added.)
The victim explained later in her testimony that the
reason she had to provide an additional statement on
April 13, 2012, was so that the police had more details
about her allegations against the defendant.
On direct examination, the prosecutor discussed Jim-
inez with Detective Halas. In particular, Halas testified
that she believed that another officer fluent in Spanish
and ‘‘Julia Jiminez, from Danbury High School,’’ who
is ‘‘a school counselor’’ and fluent in Spanish, assisted
Halas in taking A.N.’s statement because Halas was not
fluent in Spanish. Halas also confirmed on direct and
cross-examination that she asked the victim to provide
a supplemental statement on April 13, 2012. She
explained that she interviewed the victim through a
translator and, with the assistance of that translator,
wrote the victim’s supplemental statement in English.
Halas stated that this second interview lasted approxi-
mately one and one-half hours.
It is axiomatic that in closing argument parties are
permitted to rely on the evidence presented at trial and
to argue the reasonable inferences that the jurors might
draw therefrom. State v. O’Brien-Veader, 318 Conn.
514, 547, 122 A.3d 555 (2015) (‘‘[i]t is not improper for
the prosecutor to comment upon the evidence pre-
sented at trial and to argue the inferences that the jurors
might draw therefrom’’ [internal quotation marks omit-
ted]); State v. Camacho, 282 Conn. 328, 377, 924 A.2d
99 (‘‘[a]s a general matter a prosecutor may use any
evidence properly admitted at trial’’), cert. denied, 552
U.S. 956, 128 S. Ct. 388, 169 L. Ed. 2d 273 (2007); State v.
Arline, 223 Conn. 52, 58, 612 A.2d 755 (1992) (‘‘[c]ounsel
may comment upon facts properly in evidence and upon
reasonable inferences to be drawn from them’’ [empha-
sis omitted; internal quotation marks omitted]).
Although Jiminez did not testify at trial, it was estab-
lished through the testimony of the victim and Halas
that Jiminez was present for, and indeed served as a
translator during, the victim’s one and one-half hour
interview with Halas on April 13, 2012, during which
she provided the police with more details about the
defendant’s sexual abuse. From that testimony, the jury
reasonably could have concluded that the victim ‘‘told
her story’’ to Jiminez. Therefore, the prosecutor’s refer-
ence to Jiminez was based on facts in evidence and
not improper.
The judgments are affirmed.
In this opinion PELLEGRINO, J., concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
In addition to his nine children with A.N., the defendant has two addi-
tional biological children and one adopted child with another woman in Con-
necticut.
3
The police officer who interviewed the victim also testified that the
victim came to the police station on March 28, 2012, that she showed him
the text message from the defendant, and that the text message at issue
was time-stamped from earlier that day.
4
In April, 2012, the victim’s American brothers were between the ages of
five and ten, and lived in the same household as her. The victim did not
identify which of her brothers delivered the letter.
5
Although the defendant did not object to all of the improprieties claimed
on appeal, they are nevertheless reviewable. ‘‘We previously have recognized
that a claim of prosecutorial impropriety, even in the absence of an objection,
has constitutional implications and requires a due process analysis . . . .’’
(Internal quotation marks omitted.) State v. Gibson, 302 Conn. 653, 658–59,
31 A.3d 346 (2011).
6
See State v. Williams, 204 Conn. 523, 540, 529 A.2d 653 (1987).
7
At trial, evidence was presented that ‘‘U-Visas’’ are visas that are available
to victims of criminal activity and their qualifying family members.
8
See State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479
U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
9
Before asking the disputed question in Juan V., the prosecutor asked
the victim: ‘‘And the things that you told [the forensic interviewer], were
they true?’’ (Internal quotation marks omitted.) State v. Juan V., supra, 109
Conn. App. 439. The defendant objected, on the ground that the state was
improperly attempting to bolster the victim’s credibility, and the court agreed
to strike the question and the victim’s affirmative answer. Id. In dicta in
Juan V., we also observed that the disputed question of whether the victim
understood that she was supposed to tell the truth during the interview
was ‘‘readily distinguishable from the impermissible and previously stricken
question of whether she was, in fact, telling the truth [during the interview].
The latter is an improper invasion of the province of the jury, as it seeks
to bolster [the victim’s] credibility before it has come under attack.’’ Id., 441.
10
It appears that the prosecutor asked these questions without objection
from defense counsel. See State v. Albino, supra, 130 Conn. App. 774 n.6
(providing excerpts from the disputed examinations).
11
Although we conducted a due process analysis of the prosecutorial
improprieties that occurred at trial, the focus of our due process analysis
was on the impact of the prosecutor’s repeated and improper use of the
words, ‘‘victim,’’ ‘‘murder,’’ and ‘‘murder weapon’’ during the evidentiary
phase of trial and throughout closing argument. State v. Albino, supra, 130
Conn. App. 759.
12
Even if we were to conclude that the disputed questions rose to the
level of prosecutorial impropriety, considering these improprieties within
the framework of the entire trial, and after giving due consideration to the
factors identified in State v. Williams, 204 Conn. 523, 540, 529 A.2d 653
(1987), we would still conclude that the defendant was not denied a fair
trial, and, therefore, reversal of the defendant’s convictions would be unwar-
ranted.
13
First, the defendant challenges the prosecutor’s remark: ‘‘Remember
what she’s had to do. She’s went through counseling. She’s went through
medical exams. She’s went through interviews. She’s went through court
appearances. And she’s gone through cross-examination. And after all that,
I am arguing to you that this evidence shows she’s not fabricating these
things. Defense focused on all of the supposed reasons she’s fabricating
these claims except for one. There’s one they left out. And [the victim] was
asked about this, she was asked, [the victim], she was sort of asked, you
know, why are you saying these things about your father. And here’s what
she said, I had to get out of the life I had with him. If you were in her
position, would you feel the same way? This is exactly what a person would
say that was in this position.’’
Second, the defendant challenges the prosecutor’s argument: ‘‘You [have]
seen how a young woman who makes up a claim of sexual assault kind of
has to come through and run the legal gauntlet. Even the members of her
family can testify against her.’’
14
The defendant appears to argue that the prosecutor’s reference to the
victim making reports of sexual abuse to Jiminez and Dr. Ron-Priola were
improper because it violated the court’s constancy of accusation order. We
first observe that the court never precluded the admission of constancy of
accusation testimony; it merely ordered that such testimony had to be
admitted in accordance with our rules on the admissibility of constancy
evidence. In addition, the state never offered any constancy evidence. None-
theless, to the extent that the defendant attempts to raise a separate claim
of prosecutorial impropriety on the basis of the prosecutor’s purported
violation of an evidentiary ruling by the court, we conclude that such a
claim is inadequately briefed. See State v. Buhl, 321 Conn. 688, 724, 138
A.3d 868 (2016).