State v. Tierinni , 165 Conn. App. 839 ( 2016 )

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STATE OF CONNECTICUT v. CHRISTOPHER
TIERINNI
(AC 36903)
DiPentima, C. J., and Lavine and Schaller, Js.
Argued March 2—officially released May 31, 2016
(Appeal from Superior Court, judicial district of
Tolland, geographical area number nineteen, Graham,
J.)
Stephanie L. Evans, assigned counsel, for the appel-
lant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Matthew C. Gedansky, state’s attor-
ney, and Elizabeth C. Leaming, senior assistant state’s
attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Christopher Tieri-
nni, appeals from the judgment of conviction, rendered
after a jury trial, of four counts of sexual assault in the
second degree in violation of General Statutes § 53a-71
(a) (1) and three counts of risk of injury to a child in
violation of General Statutes § 53-21 (a) (2). On appeal,
the defendant claims that (1) he was denied his federal
and state constitutional rights to due process and a fair
trial when he was excluded from critical stages of the
proceedings and (2) the court improperly instructed
the jury. We affirm the judgment of conviction.
The jury reasonably could have found the following
facts. The victim1 met the defendant in the spring of
2011. At that time, the defendant was twenty-eight years
old and the victim was fifteen years old. Near the end
of May, 2011, the defendant kissed the victim. The
defendant told the victim that he loved her and eventu-
ally they engaged in sexual activity at his apartment on
several occasions. The victim started missing school
and stayed at the defendant’s apartment for extended
periods.
On June 17, 2011, the victim called the defendant and
asked him to pick her up at a fast food restaurant near
her home. The defendant arrived at the restaurant in
his green minivan, which the victim entered. Police
officers, who had been investigating the nature of the
relationship between the defendant and the victim,
effectuated a traffic stop and found the victim crouched
in the back seat. Although the victim initially denied
having a physical relationship with the defendant, she
eventually disclosed the sexual activity to law enforce-
ment personnel.
In an amended substitute information, the state
charged the defendant with five counts of sexual assault
in the second degree in violation of § 53a-71 (a) (1) and
four counts of risk of injury to a child in violation of
§ 53-21 (a) (2). Following a trial, the jury returned a not
guilty verdict with respect to counts one and two of
the information alleging, respectively, sexual assault in
the second degree and risk of injury to a minor for the
time period of May 20, 2011 through May 31, 2011. The
jury returned guilty verdicts for the remaining charges
for conduct that occurred on June 6, 2011, June 7, 2011,
and June 15, 2011. The court accepted the verdict, ren-
dered judgment thereon, and sentenced the defendant
to an effective term of eighteen years of incarceration
and forty-two years of special parole. This appeal fol-
lowed. Additional facts will be set forth as necessary.
I
The defendant first claims that he was denied his
federal and state constitutional rights to due process
and a fair trial when he was excluded from a critical
stage of the proceedings. Specifically, he argues that
his constitutional rights were violated by the court’s
practice of hearing arguments on evidentiary objections
at sidebar. He also contends that as a result of this
practice, the court failed to ensure that an adequate
record was created for appellate review. The defendant
concedes that this claim is unpreserved and seeks
review pursuant to State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), or, in the alternative, that
we reverse his conviction pursuant to the plain error
doctrine.2 The state counters that (1) the record is inade-
quate to review the defendant’s claim, (2) the defendant
waived this claim by expressly agreeing to the court’s
practice, (3) the defendant’s brief is inadequate and (4)
the claim fails on the merits. We agree with the state
that the defendant waived this claim.
The following additional facts aid our discussion.
Prior to the start of evidence, the court engaged in
the following colloquy with the prosecutor and defense
counsel. ‘‘If there are no other matters that need to be
clarified for counsel or rulings, I do want to mention
to counsel it’s my practice, in fact, I think you heard
one of the prospective jurors, he was not accepted,
complain about sitting here in a trial back in 2003, a
civil case with an unnamed judge and unnamed lawyers,
where he felt that they were constantly being sent out,
there were constant problems. I’ve never had the com-
ment about one of my trials yet.
‘‘What we’re going to do, what my practice is, unless
there is objection to [it], is if you have a simple objection
and you don’t need any detailed argument, you know,
then you state it: Objection, hearsay.
‘‘Let’s say, for example, [defense counsel] objects to
something and says, ‘Objection, hearsay’; if [the prose-
cutor] is claiming the medical record exception, she’ll
simply say, ‘Medical record exception,’ and then I could
rule and we’ll move on.
‘‘If, however, one of you feels the need to further
explain your position, of if, for example, it’s a relevancy
or a prejudice versus probative objection and you think
that, perhaps correctly, that I don’t know the context
of this evidence yet, then you should ask for a sidebar.
‘‘[The prosecutor is] familiar with this. We did this
the last trial she had here, but basically what I do,
[defense counsel] is if you need to speak to me further,
other than a very simple, very brief objection, such as
objection, hearsay, then ask for a sidebar. We’ll have a
sidebar over there. We’ll keep our voices low. The jury
won’t hear it. You’ll make your pitch. You’ll make your
two points or whatever. [The prosecutor] will do the
same. We’ll go back on the record. I’ll rule. The jury
will not hear the substance of what you’re saying so
that there’s no risk they’ll be prejudiced by it.
‘‘At the next break, the next time the jury is out of
the room, for example, the morning recess is half an
hour later, the jury leaves for the morning recess, you
then will have the opportunity, and I encourage you to
put on the record the substance of any discussion we
had if you wish it.
‘‘Now, sometimes in retrospect it turns out it wasn’t
important because of the answer or something of that
nature, but basically that enables us to have discussions
about evidentiary issues briefly without making the jury
go in and out, in and out, and at a later time, the next
break when the jury’s out, to place the substance of
your argument on the record, and all I ask in that regard
is that if you give me two points at sidebar, then half
an hour later, after we’ve moved on and I’ve overruled
the objection, that I don’t hear for the first time a third
point being raised because it’s too late for me to deal
with it and I won’t be happy. And I must say, in all the
years I’ve done this, only one lawyer’s done that and
he won’t ever do that again, I’m sure.
‘‘If there’s [an] objection, we won’t follow that proce-
dure, but I find it helps the trial move along and it keeps
the [jurors] from feeling that they’re getting kicked out,
kicked out, kicked out all the time. I think it might
also reduce annoyance with the attorneys or the judge,
although I’m not concerned with that, from the jurors
constantly having to leave.
‘‘And again, let me be very clear, if there’s something
you feel needs to immediately be put on the record,
tell me as soon as we get to sidebar and I’ll kick the jury
out. I’m not trying to prevent anybody from making a
record. You’ll always have the chance to make a record
at the next break. If you feel you need to make an
immediate record, just tell me that too and I’ll immedi-
ately excuse the jury. In no way am I trying to prevent
a record from being made. I’m simply trying to keep
the case moving along and reduce any annoyance on
the part of the jury. Is there any objection to that proce-
dure?’’ (Emphasis added.) Both counsel expressly
responded, ‘‘No, Your Honor.’’
During the first day of evidence, the state called the
victim as a witness. At one point, she made reference
to the defendant’s jail cell number. Defense counsel
objected and requested a sidebar. The court conducted
a sidebar discussion and ordered that the comments
regarding the defendant being in jail or his jail cell be
stricken. A few moments later, defense counsel raised
an objection when the state attempted to have state’s
exhibit A admitted into evidence. Specifically, defense
counsel requested that the jury be excused but the court
instead held a sidebar discussion, and at the conclusion
admitted state’s exhibit A into evidence. A few moments
later, defense counsel raised an objection to the state’s
next exhibit and requested a sidebar conference. After
that conference, defense counsel stated, on the record,
that the basis for her objection was that state’s exhibit
B was more prejudicial than probative. The court over-
ruled the objection, and stated that defense counsel
would have the opportunity to elaborate in a few
minutes.
After the jury was excused for lunch, the court and
counsel addressed the admission of state’s exhibits A
and B into evidence on the record. The court and the
parties continued to use this practice during the trial
and at times the jury was excused at the time an objec-
tion was made.3 At no point during the proceedings did
the defendant raise any objection to this procedure.
As we previously noted, the defendant seeks review
of his unpreserved claim under the doctrine set forth
in State v. Golding, supra, 233 Conn. 239–40. ‘‘Under
Golding review, as modified in In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015), a defendant can
prevail on a claim of constitutional error not preserved
at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim
of error; (2) the claim is of constitutional magnitude
alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial; and (4) if subject
to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Emphasis in original;
internal quotation marks omitted.) State v. D’Amato,
163 Conn. App. 536, 543 n.9, A.3d (2016); see
also State v. Yeaw, 162 Conn. App. 382, 388–89, 131
A.3d 1172 (2016).
‘‘In the usual Golding situation, the defendant raises
a claim on appeal which, while not preserved at trial,
at least was not waived at trial. . . . [A] constitutional
claim that has been waived does not satisfy the third
prong of the Golding test because, in such circum-
stances, we simply cannot conclude that injustice [has
been] done to either party . . . or that the alleged con-
stitutional violation clearly exists and clearly deprived
the defendant of a fair trial . . . . To reach a contrary
conclusion would result in an ambush of the trial court
by permitting the defendant to raise a claim on appeal
that his or her counsel expressly had abandoned in the
trial court. . . .
‘‘[W]aiver is [t]he voluntary relinquishment or aban-
donment—express or implied—of a legal right or
notice. . . . In determining waiver, the conduct of the
parties is of great importance. . . . [W]aiver may be
effected by action of counsel. . . . When a party con-
sents to or expresses satisfaction with an issue at trial,
claims arising from that issue are deemed waived and
may not be reviewed on appeal. . . . Thus, [w]aiver
. . . involves the idea of assent, and assent is an act of
understanding.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Cancel, 149
Conn. App. 86, 99–100, 87 A.3d 618, cert. denied, 311
Conn. 954, 97 A.3d 985 (2014).
Put another way, ‘‘[w]e do not look with favor on
parties requesting, or agreeing to, an instruction or a
procedure to be followed, and later claiming that that
act was improper.’’ (Internal quotation marks omitted.)
State v. Rosado, 147 Conn. App. 688, 702, 83 A.3d 351,
cert. denied, 311 Conn. 928, 86 A.3d 1058 (2014); see
also State v. Thompson, 146 Conn. App. 249, 259, 76
A.3d 273 (when party consents to or expresses satisfac-
tion with issue at trial, claims arising from that issue
deemed waived and not reviewable on appeal), cert.
denied, 310 Conn. 956, 81 A.3d 1182 (2013); State v.
Crawley, 138 Conn. App. 124, 134, 50 A.3d 349 (appellate
court cannot permit defendant to elect one course at
trial and then to insist on appeal that course which he
rejected at trial be reopened), cert. denied, 307 Conn.
925, 55 A.3d 565 (2012).
The defendant had a right to be present during his
trial. ‘‘It has long been settled that an accused enjoys
a right both at common law and pursuant to the sixth
amendment’s confrontation clause to be present at all
stages of trial. . . . It is also well settled that under
the due process clauses of the fifth and fourteenth
amendments a defendant must be allowed to be present
at his trial to the extent that a fair and just hearing
would be thwarted by his absence.’’ (Internal quotation
marks omitted.) State v. Vines, 71 Conn. App. 751, 767,
804 A.2d 877 (2002), aff’d, 268 Conn. 239, 842 A.2d 1086(2004); see also State v. Gonzalez, 205 Conn. 673, 688,
535 A.2d 345 (1987) (criminal defendant has federal and
state constitutional rights, under confrontation and due
process clauses, to be present at all critical stages of
trial). The right to be present, however, may be waived.
State v. Crawley, supra, 138 Conn. App. 131; see also
State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194(1987) (right to be present at criminal trial may be lost
by consent, waiver or misconduct).
In the present case, prior to the start of evidence,
the court set forth its procedure for hearing evidentiary
objections during the trial. It further explained that it
preferred to use this approach ‘‘to keep the case moving
and reduce any annoyance on the part of the jury.’’ The
court also stated that it would only use this procedure
if neither side objected. Several opportunities were
afforded for counsel to make a record, including the
court’s willingness to excuse the jury immediately if
such a request was made. Defense counsel stated that
she had no objection to the procedure outlined by
the court.
By agreeing to the court’s procedure, the defendant
effectively waived the claims raised in his appellate
brief regarding the court’s use of sidebars. ‘‘In
determining waiver, the conduct of the parties is of
great importance. . . . [W]aiver may be effected by
action of counsel. . . . When a party consents to or
expresses satisfaction with an issue at trial, claims aris-
ing from that issue are deemed waived and may not be
reviewed on appeal. . . . Thus, [w]aiver . . . involves
the idea of assent, and assent is an act of understand-
ing.’’4 (Emphasis added; internal quotation marks omit-
ted.) State v. McLaughlin, 135 Conn. App. 193, 198, 41
A.3d 694, cert. denied, 307 Conn. 904, 53 A.3d 219 (2012).
The defendant accepted and acquiesced to the court’s
procedure and thus waived the claim that he was denied
his right to be present at the sidebar discussions. As this
court recently observed, ‘‘[s]imply put, a constitutional
claim that has been waived does not satisfy the third
prong of Golding.’’ Delahunty v. Targonski, 158 Conn.
App. 741, 748, 121 A.3d 727 (2015); see also State v.
Reddick, 153 Conn. App. 69, 82, 100 A.3d 439, cert.
denied, 315 Conn. 904, 104 A.3d 757 (2014); State v.
Arluk, 75 Conn. App. 181, 193, 815 A.2d 694 (2003). The
defendant’s constitutional claims, therefore, must fail.5
II
The defendant next claims that the court improperly
instructed the jury. Specifically, he argues that the
court’s instructions on constancy of accusation testi-
mony6 confused the jury and failed to include an instruc-
tion that the jury could use the constancy testimony to
impeach the victim. We conclude that the defendant
failed to preserve this claim.
The following additional facts are necessary for our
discussion. The state’s second witness was Jennifer
Pinard, a therapist employed by the Wheeler Clinic.
Pinard testified that she worked ‘‘with families for three
to five months with a variety of children . . . [who
had] truancy issues, running away behaviors, some-
times substance use, difficulties in the home, difficulties
at school with academic performance.’’ She worked
with the victim following a referral from the Department
of Children and Families. On June 15, 2011, Pinard went
to the victim’s home, and learned that the victim’s
grandmother had concerns about her association with
an older man, who later was determined to be the
defendant.
Pinard testified that, approximately six weeks later,
on July 27, 2011, the victim disclosed that she had
engaged in oral sex with the defendant. Outside of the
presence of the jury, after discussing certain evidentiary
matters with counsel, the court indicated that it would
provide the jury with a limiting instruction for the use
of this testimony. Specifically, the court indicated that
‘‘[i]t’s the instruction that this witness’ testimony as to
[the victim] telling [Pinard] about having fellatio with
the defendant, the disclosure that [the victim] made on
July 27, is—that it’s admitted solely for the purposes
of corroboration of [the victim’s] testimony that there
was such an incident and not for—only to corroborate
her testimony.’’
At the conclusion of Pinard’s testimony, the court
provided the jury with the following instruction. ‘‘Ladies
and gentlemen, there was a portion—you will recall
there was a portion of Mrs. Pinard’s testimony where
she relayed—related to you that [the victim] had had
a previous—had previously had fellatio with the defen-
dant. That portion of her testimony may be used for the
sole purpose of corroborating [the victim’s] accusation
that she had fellatio with the defendant in that time-
frame, if you find it does, in fact, corroborate it. And
that portion of Ms. Pinard’s testimony may be used for
that purpose only. That direction applies only for that
portion of the testimony where she related to you what
[the victim] told her on July 27, with regard to claiming
to have had fellatio with the defendant.’’ The court then
recessed for the day.
The next morning, the court stated on the record that
following a discussion in chambers with counsel, it
would provide a corrected limiting instruction to the
jury regarding Pinard’s testimony as to what the victim
had told her on July 27, 2011. After the jury entered the
courtroom, the court stated: ‘‘Let me correct something
I said at the very end of the day yesterday after Ms.
Pinard testified. You’ll recall that she testified that on
July 27, [the victim] told Ms. Pinard about previously
performing fellatio on the defendant, and I wish to cor-
rect my caution to you yesterday about the proper use
of that portion of Ms. Pinard’s testimony. That portion
may be used only to assist you in assessing [the victim’s]
credibility and not as substantive proof of any alleged
sexual assault.’’
The defendant filed a request to charge, asking the
court to give the jury the following instruction with
respect to constancy of accusation evidence.7 ‘‘Wit-
nesses have testified that [the victim] told them that she
was the victim of a sexual assault, and these accounts of
what happened are allowed as corroboration because
it is natural for a victim of sexual assault to tell someone.
The details of these accounts are likely to be the same
if [the victim’s] claims are true, but discrepancies are
more likely if the incident did not happen.’’ The court
declined to give the charge as requested by the
defendant.8
During its charge, the court instructed the jury on
the use of evidence admitted for a limited purpose and
constancy of accusation testimony.9 At the conclusion
of the court’s charge, the defendant renewed his objec-
tion to the court’s constancy of accusation instruction.
Specifically, the defendant objected solely on the basis
of the court’s decision not to incorporate his request to
charge the jury on the use of the constancy testimony.
As an initial matter, we set forth the general legal
principles relating to claims of an improper jury instruc-
tion. ‘‘Our review of the defendant’s claim requires that
we examine the [trial] court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . [Although] a request to charge that is
relevant to the issues in a case and that accurately
states the applicable law must be honored, a [trial] court
need not tailor its charge to the precise letter of such
a request. . . . If a requested charge is in substance
given, the [trial] court’s failure to give a charge in exact
conformance with the words of the request will not
constitute a ground for reversal. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) State v. Collin, 154 Conn. App.
102, 128, 105 A.3d 309 (2014), cert. denied, 315 Conn.
924, 109 A.3d 480 (2015).
On appeal, the defendant argues that the court’s two
instructions limiting the use of the constancy of accusa-
tion testimony from Pinard, one given at the end of her
testimony and one given the next day, and the court’s
charge on the use of constancy testimony were confus-
ing. He further contends that as a result of this confu-
sion, the court was obligated to instruct the jury that
it ‘‘could consider the inconsistencies in the [victim’s]
testimony to discredit her testimony in court.’’ The
defendant also claims that the court improperly limited
the use of the constancy testimony to the charge of
sexual assault as set forth in count four of the informa-
tion. The defendant claims that by filing his request to
charge on the constancy of accusation evidence, he
properly preserved his argument for appellate review,
or, in the alternative, requests Golding review.
Before reaching the merits of the defendant’s argu-
ment relating to his claim of instructional error, we first
must consider the state’s assertion that these specific
arguments were not preserved at trial and fail to meet
the second prong of Golding, and therefore we should
not review the merits of this argument. We agree with
the state and conclude that the defendant’s claim is not
reviewable because it was not preserved at trial and is
not of constitutional magnitude.
As we recently stated, ‘‘[t]he proper time for the
defendant to preserve a claim of error with respect to
the court’s instructions, however, is when the court
proposes to give the challenged instruction or after it
gives it to the jury.’’ State v. Daley, 161 Conn. App. 861,
871, 129 A.3d 190 (2015), cert. denied, 320 Conn. 919,
132 A.3d 1093 (2016); see also Practice Book § 42-16.
Neither the request to charge filed by the defendant
nor his objection raised following the court’s charge to
the jury contained a claim that the court’s instruction
was confusing in light of the limiting instructions follow-
ing Pinard’s testimony or that it was limited improperly
to a single count in the information. The request to
charge and subsequent objection were limited to seek-
ing an instruction that discrepancies between the vic-
tim’s testimony and Pinard’s testimony regarding the
assault are more likely if the incident did not occur.
The arguments raised by the defendant on appeal were
not presented to the trial court in accordance with
our case law and rules of practice. Accordingly, we
conclude that the defendant failed to preserve this claim
for appellate review. See, e.g., State v. Smith, 156 Conn.
App. 537, 573, 113 A.3d 103, cert. denied, 317 Conn. 910,
115 A.3d 1106 (2015).
We also conclude that the defendant’s claim is not
reviewable pursuant to State v. Golding, supra, 233
Conn. 239–40. See State v. Cornelius, 120 Conn. App.
177, 181, 990 A.2d 927 (first two prongs of Golding
involve determination of whether claim is reviewable),
cert. denied, 296 Conn. 910, 993 A.2d 467 (2010). It is
well established that ‘‘[n]ot every claim of instructional
error is constitutional in nature. . . . Our Supreme
Court repeatedly has noted that it has recognized
instructional claims as raising constitutional issues only
in matters relating to the elements of an offense, burden
of proof and the presumption of innocence.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Inglis, 151 Conn. App. 283, 289, 94 A.3d 1204, cert.
denied, 314 Conn. 920, 100 A.3d 851 (2014), cert. denied,
U.S. , 135 S. Ct. 1559, 191 L. Ed. 2d 647 (2015);
see also State v. Rivera, 145 Conn. App. 344, 352, 76
A.3d 197, cert. denied, 310 Conn. 962, 83 A.3d 344 (2013).
The defendant’s claim here is not of constitutional
magnitude. Specifically, claims of instructional error
involving constancy of accusation are not constitutional
in nature and therefore do not satisfy State v. Golding,
supra, 213 Conn. 239–40. ‘‘We have previously held that
the failure of the trial court to give a limiting instruction
concerning the use of evidence . . . is not a matter of
constitutional magnitude. . . . Absent a claim of con-
stitutional magnitude, the defendant’s unpreserved
claim fails to satisfy the second prong of Golding and
is, therefore, not reviewable.’’ (Internal quotation marks
omitted.) State v. Wild, 43 Conn. App. 458, 467, 684
A.2d 720, cert. denied, 239 Conn. 954, 688 A.2d 326(1996); see also State v. Farmer, 108 Conn. App. 82, 88,
946 A.2d 1262, cert. denied, 288 Conn. 914, 954 A.2d 185(2008). Accordingly, we conclude that the defendant’s
claim of instructional error fails under the second prong
of Golding.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victims or others through whom the victims’ identities may
be ascertained. See General Statutes § 54-86e.
2
Practice Book § 60-5 provides in relevant part: ‘‘The court shall not be
bound to consider a claim unless it was distinctly raised at the trial or arose
subsequent to the trial. The court may in the interests of justice notice plain
error not brought to the attention of the trial court. . . .’’ We have noted
that ‘‘[t]he plain error doctrine is a rule of reversibility reserved for truly
extraordinary situations where the existence of the error is so obvious that
it affects the fairness and integrity of and public confidence in the judicial
proceedings. . . . That is, it is a doctrine that this court invokes in order
to rectify a trial court ruling that, although either not properly preserved
or never raised at all in the trial court, nonetheless requires reversal of the
trial court’s judgment, for reasons of policy. . . . [Thus, an appellant] can-
not prevail under [the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injustice.’’ (Internal quotation
marks omitted.) State v. Bialowas, 160 Conn. App. 417, 423–24, 125 A.3d
642 (2015); see also State v. Opio-Oguta, 153 Conn. App. 107, 118, 100 A.3d
461, cert. denied, 314 Conn. 945, 102 A.3d 1115 (2014).
3
In his appellate brief, the defendant specifically references three objec-
tions made on each of the following days: January 14, 2014, January 16,
2014, January 17, 2014, January 23, 2014, and January 24, 2014.
4
The defendant argued in his appellate brief that ‘‘the right to be present
is personal and the defense attorney cannot waive that right for the defen-
dant.’’ The only authority for this statement is a passing reference to a
dissenting opinion from the Colorado Supreme Court with no pinpoint cita-
tion. We decline to consider this contention because the defendant has not
briefed it adequately. See State v. Day, 165 Conn. App. 137, 140–41 n.4,
A.3d (2016).
5
The defendant’s claim of plain error also fails as result of his waiver.
‘‘Plain error review is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects the fairness and
integrity of and public confidence in the judicial proceedings. . . . Because
we have concluded that the defendant waived [his] claim . . . there is no
error to correct. . . . [A] valid waiver . . . thwarts plain error review of
a claim.’’ (Citations omitted; internal quotation marks omitted.) State v.
Cancel, supra, 149 Conn. App. 102–103; see also Mozell v. Commissioner
of Correction, 291 Conn. 62, 70, 967 A.2d 41 (2009); State v. Rosado, supra,
147 Conn. App. 702.
6
‘‘[T]he constancy of accusation doctrine traces its roots to the common-
law concept of hue and cry whereby victims of violent crime were expected
to cry out immediately and alert their neighbors that they had been violently
assaulted. . . . In the context of sexual assault, evidence of a victim’s hue
and cry was a necessary prerequisite for a court to hear a rape case such
that a woman who had not so complained could not have her case prose-
cuted. . . . Until 1974 in Connecticut, the state was required to offer evi-
dence corroborating a victim’s claims to obtain a conviction for sexual
assault. . . . The General Assembly repealed this requirement of corrobora-
tion in Public Acts 1974, No. 74-131. Despite the repeal of the corroboration
requirement, in cases such as the present one, the state often seeks to offer
evidence corroborating the victim’s complaint of sexual abuse. . . .
‘‘In State v. Troupe, 237 Conn. 284, 677 A.2d 917 (1996), our Supreme Court
determined that the constancy of accusation doctrine should be modified to
better accommodate the interest of the victim in being protected against
the unwarranted, but nonetheless persistent, view that a sexual assault
victim who does not report the crime cannot be trusted to testify truthfully
about the incident . . . and the interest of the accused in being protected
against an enhanced risk that the jury may be unduly swayed by the repeated
iteration of the constancy of accusation testimony. . . . [The court] thus
decided in Troupe to reject the then existing rule that a person to whom a
sexual assault victim has complained may provide substantive testimony
regarding the incident. . . . [It] concluded [that a] person to whom a sexual
assault victim has reported the assault may testify only with respect to the
fact and timing of the victim’s complaint; any testimony by the witness
regarding the details surrounding the assault must be strictly limited to
those necessary to associate the victim’s complaint with the pending charge,
including, for example, the time and place of the attack or the identity of
the alleged perpetrator. . . . Thus, such evidence is admissible only to
corroborate the victim’s testimony and not for substantive purposes. Before
the evidence may be admitted, therefore, the victim must first have testified
concerning the facts of the sexual assault and the identity of the person or
persons to whom the incident was reported. In determining whether to
permit such testimony, the trial court must balance the probative value of
the evidence against any prejudice to the defendant.’’ (Citation omitted;
internal quotation marks omitted.) State v. Gene C., 140 Conn. App. 241,
248–49, 57 A.3d 885, cert. denied, 308 Conn. 928, 64 A.3d 120 (2013).
7
‘‘It is well settled that, pursuant to Practice Book § 42-16, to preserve
for appeal a claim that the court improperly failed to give a jury instruction
on a matter, the defendant must [submit] a written request to charge, or
take exception to the jury instructions when they are given by the trial
court.’’ (Emphasis in original; internal quotation marks omitted.) State v.
Young, 161 Conn. App. 552, 560, 129 A.3d 127 (2015); see also State v.
Bullock, 155 Conn. App. 1, 19, 107 A.3d 503, cert. denied, 316 Conn. 906,
111 A.3d 882 (2015).
8
The court stated: ‘‘With regard to the [request to charge] from defense
counsel, I think the subject is adequately covered in the constancy of accusa-
tion charge. I also question whether the exact language defense counsel
used, although coming from a case, represents the state of the law. And
obviously, it was somewhat skewed toward the defendant, which is to be
expected, but I’ve elected not to give that postcharge because I think the
charge that’s in here, which is essentially from the jury instructions, the
committee approved jury instruction is adequate.’’
9
Specifically, the court instructed: ‘‘Constancy of accusation: The [victim]
. . . testified here in court before you. You may use her testimony as evi-
dence and proof of the facts asserted in that testimony and give it the
weight you find is reasonable. The state offered evidence of an out-of-court
statement made by [the victim] to Ms. Pinard that the defendant sexually
assaulted her, specifically that she performed fellatio on the defendant.
Under our law the testimony of Ms. Pinard as to that out-of-court statement
was limited in its scope to the fact and timing of [the victim’s] complaint,
the place and nature of the alleged sexual assault, and the identity of the
alleged perpetrator.
‘‘This evidence is to be considered by you only in determining the weight
and credibility you will give the [victim’s] testimony as it pertains to the
charge of sexual assault in count four. This evidence of an out-of-court
statement by the [victim] of a sexual assault against her by the defendant
is not to be considered by you to prove the truth of the matter asserted in
those out-of-court statements.
‘‘In determining whether or not this out-of-court statement corroborates
the [victim’s] testimony in court, you should consider all of the circumstances
under which it was made and to whom and whether the statement to Ms.
Pinard was or was not consistent with the [victim’s] testimony in court.
‘‘If you find any delay in her reporting the alleged incident, you may
consider such delay and any reasons which you may find for such delay in
evaluating her testimony in court. To the extent you find that what she has
said outside the courtroom is consistent with her testimony in court, you
may find her testimony in court to be corroborated or supported with respect
to the fact and timing of her complaint, the time and place of that alleged
sexual assault and the identity of the alleged perpetrator.
‘‘To the extent you find that what she has said outside the courtroom is
inconsistent with her testimony in court, you may consider the degree of
inconsistency that you find and you may consider the reasons which you
may find for the inconsistency in evaluating her testimony given in court.’’