State v. Juan A. G.-P. ( 2023 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. JUAN A. G.-P.*
(SC 20164)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Keller, Js.
Syllabus
Convicted of aggravated sexual assault of a minor and risk of injury to a
child in connection with his alleged sexual abuse of his stepdaughter, J,
and stepniece, B, and his alleged conduct in showing them pornographic
videos on an iPad, the defendant appealed to this court. Following the
disclosure of the sexual abuse, J and B were interviewed by a child
forensic interviewer and physically examined by a pediatrician. The
physical examinations revealed no signs of sexual abuse. Prior to trial,
the defendant sought the disclosure of J’s and B’s psychiatric records
and filed a motion seeking an in camera review. During a hearing on
the defendant’s motion, the guardian ad litem for J and B indicated that
she had reviewed the records, that she was not opposed to the court’s
reviewing them, and that J’s records predated the disclosures of the
sexual abuse by nearly three years, whereas B’s records were more
recent. At trial, C and D, who are sisters and the mothers of J and B,
respectively, testified for the state. The defense requested permission
to cross-examine C and D about their applications for U visas, which
allow eligible, undocumented immigrants who are the victims of a crime
to lawfully remain in the United States if they assist in the investigation
and prosecution of the crime. Defense counsel specifically sought to
use this information to show that both witnesses had a personal interest
in the outcome of the case. After a proffer outside the presence of the
jury, during which defense counsel questioned C and D, the trial court
denied the request, concluding that counsel had failed to establish a
nexus between the U visa applications and any possible interest that C
and D might have had in the outcome of the case. The court reasoned
that the proffered testimony was irrelevant insofar as it credited C’s
and D’s testimony that they were unaware of the U visa program prior
to J’s and B’s disclosures, and, therefore, their desire to obtain U visas
could not have motivated them to report the abuse or to fabricate their
testimony. After the state rested its case, the trial court informed the
parties that it had found no exculpatory evidence in either J’s or B’s
psychiatric records upon its review of those records and, therefore,
determined that the records were not subject to disclosure. On appeal
from the judgment of conviction, the defendant claimed that the trial
court had violated his federal constitutional right to confrontation by
not ordering the disclosure of J’s and B’s psychiatric records to the
defense and requested that this court conduct an independent review
of those records to determine whether the trial court had correctly
determined that they contained no exculpatory or relevant impeachment
material. The defendant further claimed that the trial court had violated
his right to confrontation by preventing defense counsel from cross-
examining C and D about their U visa applications and raised two
unpreserved claims of instructional error. Held:
1. After reviewing J’s and B’s psychiatric records, this court concluded
that the trial court improperly failed to order that the exculpatory and
relevant impeachment material contained therein be turned over to the
defense, and, because this court could not conclude that that error
was harmless beyond a reasonable doubt, it reversed the trial court’s
judgment and remanded the case for a new trial:
a. The information in J’s and B’s psychiatric records was probative of their
ability to know and relate the truth concerning the events in question:
The information in J’s psychiatric records related to behavioral, cognitive,
and emotional issues, which could have could have affected J’s ability
to observe, understand, and accurately narrate the events in question,
and indicated the existence of a conflict between J and C regarding each
other’s reporting of the events, and the information in B’s psychiatric
records concerned mental health and behavioral issues, as well as a
history of untruthfulness.
Moreover, because J’s psychiatric records predated the disclosures of
sexual abuse by nearly three years and, thus, included a period of time
during which the alleged abuse was occurring but had not yet been
disclosed, any information or lack thereof pertaining to the defendant
during that time period was necessarily relevant insofar as it may have
served to elucidate the victims’ relationship with the defendant prior to
the disclosures.
Furthermore, even inculpatory material contained in psychiatric records
was relevant information and should have been turned over to the defense
because such information may have differed from the evidence presented
at trial or may have been inconsistent with the victims’ other statements,
thereby calling into question the reliability of the state’s version of events.
b. The trial court’s failure to order the disclosure of exculpatory and
relevant impeachment material contained in J’s and B’s psychiatric
records was not harmless error:
The defense was denied access to information that was compiled by
trained professionals and was relevant to and probative of J’s and B’s
ability to know and relate the truth in a case that depended on the
credibility and reliability of their version of events, and J’s and B’s
testimony was extremely important to the outcome of the case, as it
was not cumulative of other evidence, there was no physical evidence
of abuse, and there was an absence of corroborating evidence because
C apparently inadvertently erased the data from the family’s iPad follow-
ing the disclosures.
Although the forensic interviews of J and B provided the strongest evi-
dence in the state’s case, this court disagreed with the state’s argument
that those interviews presented consistent, detailed accounts of the rele-
vant events and, therefore, constituted compelling evidence of the defen-
dant’s guilt, as the answers that each child gave to the interviewer’s
questions were generally vague and nonresponsive, and this court was
not persuaded with the state’s argument that J and B provided idiosyn-
cratic details that strongly indicated that they were sexually abused by
the defendant.
2. The trial court violated the defendant’s right to confrontation by precluding
defense counsel from questioning C and D about their U visa applications
and thereby preventing him from exposing the jury to prototypical
impeachment evidence showing that a witness or witnesses were prom-
ised or stood to gain some type of benefit from the state in return for
their cooperation:
The U visa status carries with it important benefits to immigrants, includ-
ing protections against deportation and work authorization, U visas are
awarded only if the applicant has been, is being, or is likely to be helpful
to a government agency investigating or prosecuting criminal activity,
and that duty to remain helpful to law enforcement personnel is an
ongoing responsibility that exists even after a U visa has been granted.
In the present case, the trial court took an overly narrow view with
respect to the relevance of C’s and D’s testimony about the status of
their U visa applications because, to lay a foundation for the admission
of impeachment evidence, the defendant was required to show only that
the U visa evidence was relevant to C’s and D’s motive to testify in a
certain manner, and, even if the jurors believed C’s and D’s testimony
that they did not learn about the U visa program until after discovering
the sexual abuse, that would not render the U visa evidence irrelevant,
insofar as the structure of the U visa program and its requirement that
the applicant be helpful to law enforcement personnel could create an
incentive to a witness hoping to have his or her visa granted.
Moreover, this court previously has concluded that a witness’ immigra-
tion status is a relevant subject of inquiry when there is a demonstrated
link between it and the witness’ bias, interest, or motive for testifying,
and it agreed with the reasoning of other courts that have considered
the admissibility of evidence of U visas and have held that a witness’
efforts to obtain one is necessarily relevant to the jurors’ assessment of
the witness’ bias, interest, or motive for testifying.
Because this court determined that the defendant was entitled to a new
trial on the basis of the trial court’s failure to disclose relevant portions
of J’s and B’s psychiatric records, a harmless error analysis in connection
with the U visa claim was not necessary.
3. This court directed trial courts to refrain from instructing jurors, as the
trial court did in this case, that, when the evidence is subject to two
possible interpretations, jurors are not required to accept the interpreta-
tion consistent with innocence or to accept the interpretation that is
consistent with guilt:
Such an instruction could potentially mislead or confuse jurors with
respect to the state’s burden of proof because it introduces into the
jurors’ deliberations a standard of proof at odds with the beyond a
reasonable doubt standard applicable to the charged offenses and is
inconsistent with the principle that, if jurors can, in reason, reconcile
all of the facts proven with any reasonable theory consistent with the
innocence of the accused, then they cannot find the defendant guilty.
Moreover, with respect to subsidiary facts that are not subject to the
beyond a reasonable doubt standard, it is sufficient for the trial court
simply to instruct the jurors that they may find such facts proven if it
is reasonable and logical to do so.
4. This court strongly recommend that, in cases involving multiple charges,
multiple victims, or both, trial courts instruct jurors, in accordance with
instruction 2.6-11 of Connecticut’s model criminal jury instructions, that
the jurors must consider each count separately and return a separate
verdict for each count, and that a verdict reached on one count does
not bind their decision on another count, and the trial court should so
instruct jurors regardless of whether the court is asked to do so.
Argued September 14, 2022—officially released February 6, 2023**
Procedural History
Substitute information charging the defendant with
two counts of the crime of aggravated sexual assault
of a minor and four counts of the crime of risk of injury
to a child, brought to the Superior Court in the judicial
district of Danbury and tried to the jury before Russo,
J.; verdict of guilty; thereafter, the court vacated the
conviction as to two counts of risk of injury to a child
and rendered judgment thereon, from which the defen-
dant appealed to this court. Reversed; new trial.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
Laurie N. Feldman, assistant state’s attorney, with
whom were Sharmese Walcott, state’s attorney, and,
on the brief, Stephen J. Sedensky III, former state’s
attorney, and Matthew A. Weiner, former assistant
state’s attorney, for the appellee (state).
Opinion
ALEXANDER, J. Following a jury trial, the defendant,
Juan A. G.-P., was convicted of two counts of aggravated
sexual assault of a minor in violation of General Statutes
§ 53a-70c (a) (5) and two counts of risk of injury to a
child in violation of General Statutes § 53-21 (a) (1).1
On appeal,2 the defendant claims that the trial court
violated his right to confrontation under the sixth
amendment to the United States constitution3 by not
ordering disclosure of the victims’ psychiatric records
to the defense. The defendant asks this court to conduct
an independent review of those records to determine
whether they contain exculpatory or relevant impeach-
ment material. The defendant further claims that the
trial court violated his confrontation rights by pre-
venting him from questioning the victims’ mothers
about their U visa applications.4 Lastly, the defendant
raises two unpreserved claims of instructional error.
Specifically, he claims that the trial court improperly
(1) instructed the jury that, if the evidence was subject
to two different interpretations, the jury was ‘‘not
required to accept the interpretation consistent with
innocence,’’ and (2) failed to instruct the jury, in accor-
dance with instruction 2.6-11 of Connecticut’s model
criminal jury instructions, that it must consider each
count separately and that a verdict reached on one
count does not control the verdict on any other count.
We conclude that the trial court improperly failed
to order that exculpatory and relevant impeachment
material contained in the victims’ psychiatric records
be turned over to the defense. Because we cannot con-
clude that this error was harmless beyond a reasonable
doubt, we reverse the judgment of conviction and
remand the case for a new trial. We also address the
defendant’s remaining confrontation clause claim because
it is likely to arise again at a new trial and conclude
that the trial court improperly precluded cross-exami-
nation of the victims’ mothers concerning their U visa
applications. Finally, we agree with the defendant’s
claims of instructional error.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. C and D, who are sisters,
emigrated to the United States from Brazil in 2004.
Thereafter, C gave birth to two daughters, J and S, and
D gave birth to one daughter, B. C and the defendant
began dating in 2011. In 2012, they moved in together,
and, in 2013, they married and had a son.
On the evening of February 11, 2015, B was spending
the night at C’s house. J was then nine years old, B was
about to turn nine, and S was six years old. At around
3 a.m., C went into the girls’ bedroom to check on them.5
She noticed that all three girls were sleeping in the
same bed and that the clothes they were wearing were
different from the ones they had worn to bed. Suspi-
cious, C pulled back the covers and discovered that
B’s pajama bottoms were pulled down to her knees.
‘‘[S]hocked’’ by what she saw, C shook the girls awake
and instructed B to pull her pajama bottoms up. She
then returned to her bedroom and woke the defendant,
asking him ‘‘if he had anything that he needed to tell
[her].’’ The defendant asked her ‘‘why [she] was asking
him that . . . .’’ C replied, ‘‘because I went to the girls’
bedroom, and [B] had her pajama bottoms around her
knees . . . .’’ The defendant responded, ‘‘well, you
should ask her about that’’ and ‘‘went back to sleep
. . . .’’ Too upset to sleep, C ‘‘spent the rest of the [early]
morning thinking about what might have happened.’’
At around 7:30 a.m., C confronted the girls and
demanded that they tell her why B’s pajama bottoms
had been around her knees. B responded, ‘‘oh . . . we
were playing with this bear.’’ C asked them where they
‘‘learn[ed] to play like that’’ with the bear, stating that
‘‘something strange [was] happening’’ and that she
needed to know immediately where they learned to
play like that. C could see that the girls were ‘‘getting
nervous,’’ so she told them that, if they did not answer
her, she would ‘‘call the police because something [was]
very strange.’’ At this point, J ‘‘started shaking, saying,
no, no.’’ B then turned to J and said, ‘‘tell her,’’ and J
responded, ‘‘it’s [the defendant]. He shows us videos
on the iPad.’’6
By then, C ‘‘was getting very upset’’ and took J to
another room to talk privately with her. There, she
asked J about the videos and whether the defendant
had done to her ‘‘what [she] saw in the videos . . . .’’
When J answered, ‘‘yes,’’ C told her that she was going
to call the police. Both J and B shouted for her not to
do so, but C insisted.
The defendant woke up before the police arrived,
unaware of what was happening. When he came out of
his bedroom, he asked C whether she had received an
answer from B about why her pajama bottoms were
down. C responded that B ‘‘didn’t tell [her] anything.’’
The defendant told C that she was acting ‘‘strange’’ and
went to prepare a bottle for their son.
Danbury Police Officer Jonathan Contreras arrived
at the house a short time later. The first thing he did
was gather everyone in the living room. Because C does
not speak English, she instructed J to tell Contreras
what had happened. J informed him that the defendant
had sexually abused her and B. Until that moment, J
had not mentioned that B had also been abused. When
J finished speaking, the defendant appeared ‘‘confused’’
and asked J, ‘‘love, why would you say that? Why . . .
would you lie?’’ Given the nature of the complaint,
police protocol required Contreras to summon a detec-
tive from the police department’s special victims unit.
He then separated the defendant from the rest of the
family and waited for the detective to arrive. When
Detective Kevin Zaloski arrived, the defendant was per-
mitted to gather his belongings and to leave. The defen-
dant never returned to the family home.
A week after J’s disclosure, J and B were interviewed
separately by Donna Meyer, a child forensic interviewer
and consultant to the multidisciplinary investigation team
assigned to investigate J’s accusations. Video recordings
of the interviews were entered into evidence at the
defendant’s trial and played for the jury. Transcripts of
the interviews were also entered into evidence. During
the interviews, Meyer gave the girls drawings of a naked
male and a naked female for them to indicate where
on their bodies the defendant had touched them.
During J’s interview, Meyer asked J, ‘‘[s]o, what did
you come here to talk to me about today?’’ J asked
Meyer whether she was referring to ‘‘what happened
at [her] house . . . .’’ J then stated, ‘‘um, [the police]
. . . came to my house . . . one day because, um,
because . . . my mom woke up . . . and found that
. . . [B’s] pants were down. . . . But I didn’t . . . so,
um . . . I told her a story . . . but it’s actually true.’’
Meyer asked J what story she had told her mother, and
J responded that one day, while her mother was at the
store, the defendant ‘‘grabbed [her] on the hips and
. . . put [her] on [her mother’s] bed . . . .’’ Meyer then
reassured J that she was ‘‘doing a good job,’’ and J
continued, ‘‘he . . . took out his thing . . . [b]ut, so
then he did it and then um, I ran away to my room
because I didn’t want to see him anymore. . . . And
then he said for me . . . to not tell my mom.’’ Meyer
asked J whether ‘‘this thing that happened with [the
defendant happened] one time or more than one time
. . . .’’ J responded, ‘‘[m]ore.’’ Meyer later asked J,
‘‘what was the first thing [the defendant did] when he
brought you to your mom’s room?’’ J answered, ‘‘[h]e
stuck his thing out.’’
Meyer continued, ‘‘so he took his thing out and then
what was the next thing he did?’’ J replied, ‘‘he didn’t
put it on me but like, he put it like on my pants . . .
[but] I got away, so then, um, um, I ran away like, to
my bedroom.’’ Meyer responded, ‘‘before you got away,
did [the defendant] ever make you touch his thing or
do [something] to his thing? Did he ever do anything
to his thing?’’ J replied, ‘‘[n]o.’’ When Meyer responded,
‘‘[n]o? OK,’’ J stated, [o]h! Yea, yea, yea, he would get
his saliva like this and then put it on . . . [h]is thing.
. . . And he said it felt good . . . and he said it . . .
would be hard so, but sometimes . . . he told me
secrets but and then he told me something if like if I
was telling secrets with him, but I said yes, but actually
I was lying.’’ Meyer later asked J to tell her more about
the time ‘‘when [the defendant] put the saliva on [his
thing] . . . .’’ J responded, ‘‘I don’t think he did it. . . .
He told me [about it]. He said he does it in the bathroom,
I think.’’ Meyer asked J whether the defendant had
ever made or wanted her ‘‘to do that to him,’’ and J
responded, ‘‘[n]ope.’’ When Meyer replied, ‘‘[n]o? OK,’’
J stated, ‘‘[o]h yea! He said for me like, to touch his
thing. . . . But I didn’t want to . . . so I didn’t.’’ Meyer
then continued, ‘‘OK. Was there ever a time that he
made you touch it?’’ J responded, ‘‘[n]ope.’’ When Meyer
said, ‘‘[n]o? OK,’’ J stated, ‘‘he said for me to . . . touch
his thing, but, um, but I didn’t. I said no.’’
When asked to describe ‘‘a time that something hap-
pened in the living room,’’ J responded, ‘‘like, me and
[B] . . . were . . . at my house . . . [a]nd then my
mom and my sister went to take a bath . . . so then,
um, [the defendant] called us and said come here, so
he stuck his thing on us.’’ When asked to indicate where
he stuck his thing, J responded, ‘‘on the back and on the
front [indicating her vagina and buttocks].’’ J continued,
‘‘he did it once with [B] and then me and . . . then he
did it like in my baby brother’s room . . . [but] when
my mom was about to get out . . . of the bathroom,
um, he said for us to watch TV or else my mom would
figure out . . . so we did but like . . . there was a
movie that we liked, so we wanted to finish it, so then,
um, and he would show us to, um, um, um, one boy
and two girls or one [girl] doing the thing together.’’
Meyer then asked J, ‘‘where would he show you that
stuff?’’ J responded that he had shown it to them on
the family’s iPad.
Meyer also asked J whether the defendant had ever
wanted her ‘‘to do the things that were in the videos
. . . .’’ J responded, ‘‘[h]e said let’s do the thing in the
video[s], but I didn’t want to and, um, so one day he
did it, but sometimes . . . he would call me, but some-
times I said no and sometimes I said yes and . . . some-
times I just went so uh, um, I didn’t like, actually say
yes, but I just went so then, um, so then he, he, he . . .
he got me in my mom’s bed . . . and one time he just
grabbed me and put it in here [indicating her vagina],
and, when I tried to get out, he would hold me and not
let me get out.’’ Meyer asked J whether the defendant
had ‘‘ever put his [thing] inside part of [her] body
. . . .’’ J responded, ‘‘[h]e put [it] like, um, here and
right there [indicating her vagina and buttocks].’’ When
asked, ‘‘how did that feel,’’ J responded, ‘‘[b]ad.’’
Meyer began her interview of B by asking her whether
‘‘something happened recently . . . .’’ B responded, ‘‘I
don’t remember, I think it was last week um, um . . .
I was sleeping at [J’s] and, in the morning, [J’s] mom
asked us a question and then, um, we told her it, and,
um, she had to . . . call the police, and they did that,
then, um, the police came, and she called the school and
said we weren’t going to school . . . and . . . well the
reason she called was because [the defendant], um,
touched me and her and, um, yeah, and that was pretty
much it.’’ When asked whether she could remember
the last time the defendant touched her, B responded,
‘‘[n]o, not really.’’ When asked if she remembered the
first time, B responded, ‘‘like, maybe, yeah, I don’t
remember.’’ Meyer asked B where she was the first time
it happened. B replied that she was in J’s baby brother’s
bedroom. When asked what the defendant did to her,
B responded, ‘‘first, he did it to [J].’’ When asked what
that was, B replied, ‘‘[l]ike he put his thing in her um
hands . . . and then [started] shaking her.’’
Meyer then asked her, ‘‘after he did that to [J], then
what happened?’’ B replied, ‘‘[t]hen he did it to me, but
he did it the exact same way.’’ When asked whether
she saw the defendant’s ‘‘thing,’’ B replied that she had
not seen it because her eyes were closed. Meyer asked
B, ‘‘what did he do with his thing . . . did he put it on
your skin, your clothes or something else?’’ B responded
that he put it on her skin, pointing to her vagina and
buttocks. With respect to her vagina, Meyer asked B
whether the defendant put it ‘‘on the inside, on the
outside, or something else . . . .’’ B replied, ‘‘[i]nside.’’
When asked how it felt, B stated, ‘‘[i]t felt bad . . .
[a]nd it hurt a little.’’ Meyer then asked B whether, when
he put his thing on her buttocks, ‘‘he put [it] . . . on the
inside, the outside, or something else . . . .’’ B replied,
‘‘[i]nside.’’ When asked how it felt, B stated that it ‘‘hurt
a little more.’’
When asked about the second instance of abuse, B
stated that the defendant ‘‘took out his thing and . . .
put it in [J] . . . [while] J was standing up on [a] chair,’’
and, when he was done, ‘‘he did the exact same thing
[to her].’’ When asked to describe exactly what the
defendant had done, B stated that ‘‘he put his thing in
our pants inside us and then he started shaking us like,
um, the same . . . in the [bed]room.’’
Following the forensic interviews, J and B were
referred to Veronica Ron-Priola, a pediatrician at Dan-
bury Hospital and the medical consultant for the multi-
disciplinary investigation team investigating J’s and B’s
allegations. Ron-Priola examined both girls and deter-
mined that there were no physical signs of sexual abuse.
In her reports, which were entered into evidence at
the defendant’s trial, Ron-Priola noted a ‘‘small area of
fusion’’ on J’s labia minora, which she characterized as
a normal variant. During the interview portion of J’s
examination, J informed Ron-Priola that the defendant
had put his penis inside her vagina and anus ‘‘many,
many times.’’
Ron-Priola asked each girl a series of questions during
the examinations, including whether they had ever seen
blood in their underpants after the defendant abused
them, whether it ever hurt to go to the bathroom after,
and whether they ever saw or felt anything wet come
out of the defendant’s penis. Both girls answered no to
each question. She also asked them whether they ever
experienced pain when the defendant put his penis in
them. J replied, ‘‘it hurt a little in my front and my
butt.’’ B replied, ‘‘[y]es, a little.’’ Ron-Priola noted in
both reports that a normal physical examination does
not confirm or negate child sexual abuse and that the
girls’ oral histories were consistent with having been
abused.
Approximately one week after the sexual abuse was
reported, Zaloski asked C to bring the family’s iPad to
the police station so it could be forensically examined.
When C arrived, she informed Zaloski that she inadver-
tently had reset the device while attempting to remove
an application from her iPhone. C stated that she had
wanted to remove the application because she feared
that the defendant could use it to locate her. Officer
David Antedomenico, a member of the crime scene unit
of the Danbury Police Department, examined the iPad
and determined, consistent with C’s statements, that
the device had been reset. He further determined that
any evidence the device may have contained was lost
as a result. Because the iPad was perceived to be of no
evidentiary value, Zaloski returned it to C at that time.
The defendant was subsequently arrested and charged
with two counts of aggravated sexual assault of a minor
in violation of § 53a-70c (a) (5),7 two counts of risk of
injury to a child in violation of § 53-21 (a) (1) based on
the defendant’s ‘‘showing adult videos’’ to J and B and
‘‘telling [them] to simulate the behavior [seen in the
videos] and to keep the incidents a secret,’’ and two
counts of risk of injury to a child in violation of § 53-
21 (a) (2).8
J and B were twelve years old at the time of the
defendant’s trial. On direct examination, J testified that
she was seven or eight years old when the defendant
sexually abused her for the first time. When asked if
she could ‘‘tell the jury about a time that this happened
when [B] was there,’’ J responded: ‘‘Well, um . . . he
took me and [B] to the [corner of the] living room . . .
when my mom and my sister were taking a shower
. . . . He pulled our pants down and then started to
abuse us.’’ When asked to describe what he did, J
replied, ‘‘[h]e put his penis in my behind and on my
vagina.’’ When asked, ‘‘did anything happen to [B],’’ J
replied, ‘‘[h]e did the same thing to her.’’ J was also
asked whether the defendant ‘‘ever show[ed] [her]
things . . . .’’ She replied that he showed her videos
of people having sex. When asked why she did not tell
her mother about the abuse when it started, J replied,
‘‘[bec]ause [the defendant] told me not to tell her.’’
When asked whether the defendant told her why she
should not tell her mother, J responded, ‘‘[h]e said that
. . . he would tell her that it was all a lie and that
she wouldn’t believe me.’’ During cross-examination, J
testified that she sometimes used her family’s iPad to
search the Internet on her own. She also testified that
she had not seen the defendant or spoken to him since
the day she reported the abuse.
B testified that the defendant abused her on two
occasions, once in J’s baby brother’s bedroom and once
in the dining room. When asked to describe what hap-
pened in the bedroom, B stated, ‘‘[the defendant] would
tell us to go in the room, and then he would put his
thing in our pants and . . . would, like, since we were
little, he would, like, shake us up and down.’’ When
asked to ‘‘describe for the jury how it felt,’’ B responded,
‘‘[i]t didn’t feel very good, it felt weird.’’ When asked
what she meant by ‘‘weird,’’ B stated, ‘‘[i]t felt weird
because it, like, his thing went inside of [me].’’ When
asked whether it hurt ‘‘a lot, a little, or something else,’’
B responded, ‘‘[i]t hurt . . . a little bit more than a little
bit, but it didn’t hurt that much.’’ B was also asked
whether the defendant ‘‘ever . . . show[ed] [her] what
he wanted [her] to do . . . .’’ B responded, ‘‘I remember
him getting an iPad and showing us things. I just don’t
remember the videos.’’
B was then asked about the time the defendant
abused her in the dining room. B responded, ‘‘he would
tell us to stand on a chair because we were small, and
then he would put his thing inside our pants and then
shake us up and down.’’ The questioning continued as
follows:
‘‘[The Prosecutor]: And he would have you, you said
. . . stand on a chair?
‘‘[B]: Well, he would have [J] stand on a chair, and I
would stand on my knees because I was very tall.
‘‘[The Prosecutor]: And I . . . just want to make sure
I heard you say, you said you would stand on your
knees?
‘‘[B]: Yes. . . .
‘‘[The Prosecutor]: You’re taller than [J]?
‘‘[B]: Yes.
‘‘[The Prosecutor]: So, I just want to make sure I
heard you [correctly], [J] would stand on a chair, and
you would kneel on the chair?
‘‘[B]: Yes.
‘‘[The Prosecutor]: Okay. And when this happened—
so if [J’s] standing on the chair, where were you? . . .
‘‘[B]: Well . . . we would get scared, so we would
hold each other’s hands.
‘‘[The Prosecutor]: Okay. So, you were right there
next to her?
‘‘[B]: Yes.
‘‘[The Prosecutor]: And then when you were kneeling
on the chair, where was [J]?
‘‘[B]: She was holding my hand.
‘‘[The Prosecutor]: And where was [C] when this hap-
pened?
‘‘[B]: She . . . would be out of the house or, some-
times, she would be, like, taking a shower.’’
Ron-Priola also testified at the defendant’s trial. Dur-
ing her testimony, she emphasized that, although J’s and
B’s physical examinations revealed no signs of sexual
abuse, ‘‘[a] normal physical exam . . . does not mean
that nothing happened. You can have a child that’s been
abused and the physical exam is going to be normal
most of the time.’’ During cross-examination, Ron-Pri-
ola confirmed that J’s hymen was nonestrogenized at
the time of the abuse, meaning that ‘‘her hymen was
thinner’’ and typically would have been ‘‘very sensitive
. . . to pain’’ and ‘‘more sensitive to injury, if there [had
been] . . . an assault of some kind . . . .’’ She also
confirmed that B ‘‘had a very small opening through
the hymen’’ and that there were no transections in the
hymen of either girl. Ron-Priola stated that, ‘‘if there
[had been transections in their hymens] that would
indicate . . . forceful penetration into the vagina.’’
When asked ‘‘under what circumstances would you
expect to see scarring,’’ Ron-Priola replied, ‘‘usually,
we see that in girls that have not reached puberty, when
there is forceful penetration into the vagina, there will
be cuts through the hymen, and those are . . . transec-
tions, and usually we can see that.’’
During cross-examination of C, defense counsel
asked her whether the defendant ever returned to the
family home after February 12, 2015. C replied, ‘‘[n]ot
that I know of.’’ He also asked her why she had erased
the family’s iPad immediately following J’s disclosures.
C answered that she had done it inadvertently while
attempting to reset her iPhone. When asked whether
she ever used the iPad after the police returned it to
her in 2015, she replied, ‘‘[n]o. No, it didn’t work nothing.
. . . I didn’t use it for anything nor my children.’’
D testified that, on the morning of February 12, 2015,
C called and told her to come right over but did not
tell her why. When asked to describe her reaction when
she learned of the defendant’s conduct, D replied, ‘‘I
was very shocked because I thought that it would be
anything else. I thought someone had broken into the
home, burglarized the home, [or] robbed the home. I
never thought that [the defendant] was capable of some-
thing like that.’’ During cross-examination, defense
counsel asked D how often B slept at J’s house prior
to the disclosures. She responded, ‘‘once or twice a
week . . . .’’ When asked whether B had ever resisted
going to J’s house before the disclosures, or whether
B ever appeared frightened to go there, D responded,
‘‘[B] was always happy and comfortable going over to
that house, and [J] would always ask her to come over.’’
After the state rested its case, the defendant moved
for a judgment of acquittal, and the court denied the
motion. The defense then presented its case, starting
with the testimony of Anthony Coppola, a recently retired
emergency medicine physician from Yale New Haven
Hospital with experience treating child victims of sexual
abuse. Coppola reviewed Ron-Priola’s medical reports
and testified, consistent with the testimony of Ron-
Priola, that there were no physical signs of sexual abuse
of either J or B. He further testified that, with children
as young as J and B, whose hymens are nonestrogen-
ized, he would expect to see scarring or lesions from
any trauma or injury to the vaginal openings. He also
agreed that he would expect to see ‘‘some kind of lesion
. . . scarring . . . fissures [or] things of that nature’’
in the rectal area had there been forced penetration.
Coppola stated that ‘‘[y]ou can see scars on the . . .
anus very easily’’ and that, even ‘‘if something had time
to heal . . . you should [still] be able to see it . . . .’’
The defense next presented the testimony of James
Oulundsen, a private investigator with Iris, LLC, a com-
pany that specializes in digital forensics. Oulundsen
testified that, shortly before trial, he went to the Dan-
bury Police Department to examine the family’s iPad
but found the device to be ‘‘locked,’’ which happens
when someone repeatedly attempts to unlock it with
an incorrect passcode. Subsequently, the trial court
granted the defendant’s request to have the iPad exam-
ined by Cellebrite, a company that specializes in elec-
tronic data recovery. Cellebrite was able to unlock the
iPad and to extract more than 9900 pages of data from
it. Oulundsen testified that the browsing history
revealed that someone had used the iPad to access
pornographic websites on multiple occasions between
March, 2015, and January, 2016, a period of time when
the defendant was no longer living with the family. No
data was recovered from the period when the defendant
was alleged to have used the device.
The defense also presented the expert testimony of
Nancy Eiswirth, a clinical psychologist with experience
conducting forensic interviews for the Department of
Children and Families. Eiswirth explained to the jury
the concepts of suggestibility and reinforcement as they
relate to forensic interviews, noting in particular that
the younger and less intelligent a child is, the more
suggestible he or she tends to be. Eiswirth further testi-
fied that how the interviewer responds to a child’s
answers can affect the accuracy of the information
obtained from the child. By way of example, Eiswirth
stated that, if the child answers ‘‘no’’ to a particular
question and the interviewer answers, ‘‘no . . . [in the
form of] a question, then . . . the child may then [think
that they] did . . . not get [the answer] right . . . .’’
Eiswirth explained that ‘‘[interviewers] have to be very
careful about inflections and . . . reinforcing certain
types of information over other types of information.
You don’t want to reinforce [the child when she says]
yes, he touched me, but . . . when the child says no,
he didn’t touch me, ignore that [answer].’’
During her closing argument, the prosecutor argued
that the jury could find the defendant guilty solely on the
basis of J’s and B’s testimony, stating: ‘‘The testimony
of each of these children alone is enough to convict.
The testimony of each of these children alone is direct
evidence of child sexual abuse. The testimony of these
two kids together is overwhelming. . . . If you find
these kids credible, then [the state] ask[s] for a verdict
of guilty on all counts . . . .’’
During his closing argument, defense counsel argued
that inconsistences in J’s and B’s statements—to Meyer
and Ron-Priola and at trial—should create reasonable
doubt as to the defendant’s guilt. He also asked the
jury to scrutinize ‘‘how the forensic interviews were
conducted. Were leading questions used during the
interviews? Were [some] answers . . . reinforced
while other bad answers were not?’’ To explain ‘‘how
. . . two nine year olds [could] make this up’’ or
‘‘become sexualized to know the things that they [talked
about],’’ defense counsel asserted that it was clear that
someone in the family had used the iPad to visit porno-
graphic websites between March, 2015, and January,
2016, a period of time when the defendant no longer
lived with the family, and when C claimed the device
did not work. He also questioned why, if C believed
that the defendant had used the iPad to show J and B
pornographic videos, she ‘‘reset the [device] and
remove[d] that evidence [from it] before turning it over
to the police . . . .’’ Finally, defense counsel argued the
inherent unlikelihood that the defendant would sexually
abuse his stepdaughter and stepniece ‘‘while his wife
was in the shower only steps away . . . .’’ Defense
counsel also questioned why B ‘‘would . . . continue
to go over [to J’s house] for sleepovers . . . after [the
defendant] had [done] what [is] claimed to have
occurred . . . .’’
During her rebuttal argument, the prosecutor argued
that the defendant had presented no evidence that it
was C or any of her children who had used the iPad to
visit the pornographic websites between March, 2015,
and January, 2016. She further argued that the strength
of the state’s case was underscored by the ‘‘idiosyn-
cratic details’’ J and B had provided about the sexual
abuse, details she argued J and B could not have made
up given their ages, including J’s memory of the defen-
dant’s telling her that he used saliva to get his penis
hard, and B’s recollection of ‘‘holding hands while the
abuse happen[ed] . . . .’’ Finally, the prosecutor
argued that, although Ron-Priola testified that the
fusion on J’s labia minora was a normal variant in girls
her age, she also testified that it could have been caused
by a prior irritation or by a penis rubbing against it.
The jury subsequently found the defendant guilty on
all counts. The trial court sentenced the defendant to
concurrent twenty-five year terms of imprisonment on
the aggravated sexual assault of a minor counts and
consecutive four year terms of imprisonment on each
of the remaining risk of injury to a child counts, for a
total effective sentence of thirty-three years of impris-
onment.
I
We begin with the defendant’s request, which the
state does not oppose, that we review J’s and B’s psychi-
atric records to determine whether the trial court cor-
rectly determined that they contain no exculpatory or
relevant impeachment material. The following facts are
relevant to our resolution of this issue. Before trial, the
defendant filed a motion seeking an in camera review
of J’s and B’s psychiatric records. The state thereafter
subpoenaed the records from Family and Children’s
Aid, and the records were then turned over to the chil-
dren’s guardian ad litem, Attorney Rebecca Mayo Good-
rich. At a hearing on the defendant’s motion, Goodrich
indicated that she had reviewed the records and was
not opposed to the court’s review of them in camera.
She further indicated that the records for J went back to
mid-2012, whereas the records for B were more recent,
beginning in 2015. Finally, she apprised the court that,
although J’s records were more voluminous, three quar-
ters of them concerned ‘‘an issue that ha[d] nothing to
do with this criminal proceeding.’’
After the state rested its case, the court informed the
parties that it had reviewed J’s psychiatric records and
‘‘found that there was absolutely no exculpatory infor-
mation that would be of value to anybody. In fact, [if]
the court had to pass judgment on the documents it
reviewed, there were probably more passages that were
quite inculpatory rather than exculpatory, [of] which
there [was] none.’’ The court further stated that it had
not reviewed B’s records because none was provided.
After the trial, the defendant filed a motion for rectifica-
tion of the record, which the trial court granted, and
the psychiatric records related to J (three envelopes)
were marked as court exhibit VI and the records related
to B (one envelope) were marked as court exhibit VII.
At that time, the court clarified for the record that,
contrary to what it had stated at trial, the court had
reviewed B’s records but did not realize it had done so
at the time because they were mixed in with J’s records.
The court further stated that it had found no exculpa-
tory evidence in B’s records.
The following principles guide our analysis of this
issue. ‘‘The need to balance a witness’ statutory privi-
lege to keep psychiatric records confidential against a
defendant’s rights under the confrontation clause is well
recognized. . . . The test and the associated burdens
imposed on a defendant are equally well chronicled.
If, for the purposes of cross-examination, a defendant
believes that certain privileged records would disclose
information especially probative of a witness’ ability to
comprehend, know or correctly relate the truth, he may,
out of the jury’s presence, attempt to make a preliminary
showing that there is a reasonable ground to believe
that the failure to produce the records would likely
impair his right to impeach the witness. . . . If in the
trial court’s judgment the defendant successfully makes
this showing, the state must then obtain the witness’
permission for the court to inspect the records in cam-
era. A witness’ refusal to consent to such an in camera
inspection entitles the defendant to have the witness’
testimony stricken. . . .
‘‘Upon inspecting the records in camera, the trial
court must determine whether the records are espe-
cially probative of the witness’ capacity to relate the
truth or to observe, recollect and narrate relevant occur-
rences. . . . If the court determines that the records
are probative, the state must obtain the witness’ further
waiver of his privilege concerning the relevant portions
of the records for release to the defendant, or have the
witness’ testimony stricken. If the court discovers no
probative and impeaching material, the entire record
of the proceeding must be sealed and preserved for
possible appellate review. . . . Once the trial court has
made its inspection, the court’s determination of a
defendant’s access to the witness’ records lies in the
court’s sound discretion, which we will not disturb
unless abused. . . .
‘‘Access to confidential records should be left to the
discretion of the trial court which is better able to assess
the probative value of such evidence as it relates to the
particular case before it . . . and to weigh that value
against the interest in confidentiality of the records.
. . . [T]he linchpin of the determination of the defen-
dant’s access to the records is whether they sufficiently
disclose material especially probative of the ability to
comprehend, know and correctly relate the truth . . .
so as to justify breach of their confidentiality and dis-
closing them to the defendant in order to protect his
right of confrontation.’’ (Citations omitted; footnotes
omitted; internal quotation marks omitted.) State v.
Slimskey, 257 Conn. 842, 855–57, 779 A.2d 723 (2001).
Having reviewed the psychiatric records in question,
we conclude that the defendant was denied access to
information probative of J’s and B’s ability to know and
relate the truth with respect to the events in question.
With respect to J, the information relates to behavioral,
cognitive, and emotional issues that could affect her
ability to observe, understand, and accurately narrate
the events in question. J’s records also indicate the
existence of a conflict between J and C regarding each
other’s reporting of these events. With respect to B,
the information concerns mental health and behavioral
issues, as well as a history of untruthfulness.
One other aspect of J’s psychiatric records is note-
worthy in this context. As the guardian ad litem indi-
cated, J’s psychiatric records predate the disclosures
of abuse in this case by nearly three years and, thus,
include a period of time during which the alleged abuse
was occurring but had not yet been disclosed. The
absence of any report of abuse to the treating psychia-
trist during that period may require disclosure to the
defense because, depending on the facts of a case, what
is not contained in such records may be as probative
as what is contained in them. Furthermore, any refer-
ence or information pertaining to the defendant is nec-
essarily relevant insofar as it may serve to elucidate
the victims’ relationship with the defendant prior to the
disclosures.
Finally, we observe that even inculpatory material
contained in psychiatric records is relevant information
and should be turned over to the defense. This is so
because the inculpatory information may differ from
the evidence presented at trial, or be inconsistent with
the victims’ other statements, thereby calling into ques-
tion the reliability of the state’s version of events.
‘‘Although the confrontation right is not absolute and
is subject to reasonable limitation . . . there is, never-
theless, a minimum level of cross-examination that must
be afforded to the defendant into matters affecting the
reliability and credibility of the state’s witnesses.’’ (Cita-
tion omitted.) Id., 858. In the present case, the defendant
was denied access to information compiled by trained
professionals that was relevant to and probative of J’s
and B’s ability to know and relate the truth. When this
type of information is withheld from the defense in a
case that depends on the credibility and reliability of
the victims’ version of events, the failure to disclose it
is not harmless error.
We have explained that ‘‘[t]he correct inquiry for iden-
tifying harmless constitutional error is to ask whether,
assuming that the damaging potential of the cross-exam-
ination were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond
a reasonable doubt. . . . Whether such error is harm-
less in a particular case depends [on] a number of fac-
tors, such as the importance of the witness’ testimony
in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence cor-
roborating or contradicting the testimony of the wit-
ness on material points, the extent of cross-exam-
ination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.’’ (Internal quotation
marks omitted.) Id., 859.
J’s and B’s testimony was extremely important to the
outcome of this case. As the prosecutor argued during
closing argument: ‘‘The testimony of each of these chil-
dren alone is enough to convict. . . . The testimony
of these two kids together is overwhelming. . . . If you
find these kids credible, then [the state] ask[s] for a
verdict of guilty on all counts . . . .’’ J’s and B’s testi-
mony was not cumulative of other evidence. There was
an absence of corroborating evidence due to C’s erasure
of the data from the family’s iPad, and, as previously
indicated, there was no physical evidence of abuse.
In its appellate brief, the state argues that ‘‘the nearly
forty minute [forensic] interviews of each child, disclos-
ing consistent, detailed accounts [of the defendant’s
abuse] with manifest sincerity,’’ was compelling evi-
dence of the defendant’s guilt. The state further argues
that this evidence was strengthened by ‘‘[t]he idiosyn-
cratic details [J and B] related in response to follow-
up questions [such as] the defendant’s use of saliva to
harden his penis, the girls’ holding hands out of fear
while being penetrated, [and B’s] kneeling in a position
she knew from prayer . . . .’’
We agree with the state that the forensic interviews
were the strongest evidence given that they were con-
ducted in close temporal proximity to the events in
question. We have studied them carefully—both the
video recordings and the written transcripts—and dis-
agree that they present ‘‘consistent, detailed accounts’’
of those events. The answers each child gave to Meyer’s
questions were generally vague and nonresponsive.
Although we agree that idiosyncratic details given by
a child about sexual abuse can be a strong indicator
that the child actually experienced what he or she is
describing, we find it significant that one of the idiosyn-
cratic details alluded to by the state—that the defendant
put his penis inside J’s and B’s anus and vagina in the
dining room while each girl stood (J) or knelt (B) on
a chair, holding hands—was not mentioned in any of
J’s accounts of the assaults.
As for the defendant’s putting saliva on his penis, J
disclosed this information when Meyer asked her, ‘‘[d]id
he ever do anything to his thing?’’ J initially replied
‘‘[n]o.’’ When Meyer responded, ‘‘[n]o?,’’ J stated, ‘‘[o]h!
Yea, yea, yea, he would get his saliva like this and then
put it on . . . [h]is thing. . . . And he said it felt good
. . . and he said it . . . would be hard . . . .’’ Later,
however, when Meyer asked J to tell her more about
the saliva incident, J replied that it had not really hap-
pened and that it was just something the defendant had
told her about.
Contrary to the state’s assertion, we do not believe
that the only way J could have known about a man
putting saliva on his penis is if the defendant told her
about it. The evidence established that the family’s iPad
was accessible to all members of the household and
was used to access pornographic websites, even after
the defendant no longer lived in the home.
In light of the foregoing, we cannot conclude that the
trial court’s failure to turn over J’s and B’s psychiatric
records was harmless error. The defendant is entitled
to a new trial at which, if a waiver is obtained from J
and B, defense counsel would be permitted to review
the impeachment and other relevant information con-
tained in their psychiatric records and to use that infor-
mation in his cross-examination of the witnesses.
II
Because the issue is likely to arise again at a new
trial, we next address the defendant’s claim that the
trial court deprived him of his right to confrontation
by preventing him from questioning C and D about their
U visa applications. Before addressing the merits of this
claim, it is important to understand the U visa program
and how it works.
‘‘Congress created the [U visa] through the passage
of the Victims of Trafficking and Violence Protection
Act of 2000 . . . 8 U.S.C. § 1101 (a) (15) (U) [2012].
The [a]ct created a new nonimmigrant visa classifica-
tion that permits [undocumented] immigrants who are
victims of serious crimes and who assist law enforce-
ment to apply for and receive a nonimmigrant visa called
a [U visa]. . . . The [U visa] provides legal status to
petitioners and qualifying family members to apply for
work authorization and [to] remain in the United States.’’
(Citations omitted.) Calderon-Ramirez v. McCament,
877 F.3d 272, 274 (7th Cir. 2017). ‘‘The U visa program
[which is administered by United States Citizenship and
Immigration Services (USCIS), a division of the United
States Department of Homeland Security (DHS)] is
intended to strengthen the ability of law enforcement
agencies to detect, investigate, and prosecute [certain
crimes] . . . against [undocumented immigrants],
while offering protection to victims of such offenses
. . . .
‘‘To be eligible for a U visa, a petitioner must establish
that he or she: (1) has suffered substantial physical or
mental abuse as a result of having been a victim of
qualifying criminal activity; (2) possesses information
about qualifying criminal activity; and (3) has been help-
ful, is being helpful, or is likely to be helpful to an
authority investigating or prosecuting qualifying crimi-
nal activity. 8 U.S.C. § 1101 (a) (15) (U) (i) [2018].’’
(Citations omitted; internal quotation marks omitted.)
Perez Perez v. Wolf, 943 F.3d 853, 856–57 (9th Cir. 2019).
As a practical matter, a petitioner applies for a U visa
by filing a federal Form I-918 with USCIS. See 8 C.F.R.
§ 214.14 (c) (1) (2022) (‘‘USCIS has sole jurisdiction
over all petitions for U nonimmigrant status’’). If the
USCIS determines that the petitioner meets the eligibil-
ity criteria, it ‘‘will approve [the] Form I-918.’’ Id.,§ 214.14 (c) (5) (i); see also Gonzalez v. Cuccinelli, 985
F.3d 357, 363 (4th Cir. 2021) (‘‘[w]hen a petitioning
[undocumented immigrant] has satisfied the statutory
criteria (and complied with the requisite procedures),
the agency has committed to approve the [U visa] peti-
tion and [to] grant a [U visa] (along with the immigration
protections and work authorization) subject to the
annual statutory cap set by Congress’’).
‘‘[U visa] status carries with it important benefits,
including protections against deportation9 and work
authorization. [Because] Congress capped the number
of [U visas] at 10,000 per year—meaning not all eligible
[U visa] applications can be approved . . . [USCIS]
created a waiting list for applicants whose applications
have been approved and who would have been granted
a [U visa] but for the statutory cap. Once on this waiting
list, the [undocumented immigrant] is provided [deferred
action] status and may be granted work authorization.’’
(Emphasis omitted; footnote added; internal quotation
marks omitted.) Gonzalez v. Cuccinelli, supra, 985 F.3d
361. Thus, ‘‘if USCIS decides that the principal petitioner
qualifies for a [U visa] but cannot be granted the visa
solely because of the [10,000 person] cap, USCIS
approves the application and the applicant ‘must be
placed on [the] waiting list’ per DHS regulations. [See]
8 C.F.R. § 214.14 (d) (2) [2021]. When a principal peti-
tioner is placed on the [waiting list], they and their
qualifying family members ‘will’ be accorded [deferred
action] status, and USCIS maintains ‘discretion’ to grant
them work authorization.’’10 Barrios Garcia v. United
States Dept. of Homeland Security, 25 F.4th 430, 437
(6th Cir. 2022). ‘‘[D]eferred action status means that
. . . no action will thereafter be taken to proceed
against an apparently deportable [undocumented immi-
grant] . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) Texas v. United States, 809 F.3d 134,
167 (5th Cir. 2015), aff’d, 579 U.S. 547, 136 S. Ct. 2271,
195 L. Ed. 2d 638 (2016). ‘‘As of [2021], there were
161,708 pending [U visa] applications and 108,366 pend-
ing derivative petitions.’’ Barrios Garcia v. United
States Dept. of Homeland Security, supra, 436; see id.,
436–37 (describing ‘‘deluge’’ of U visa applications and
efforts to accommodate them). ‘‘An individual can apply
for lawful permanent resident status once [he or she
has] possessed a [U visa] for three years. See 8 U.S.C.
§ 1255 (m) [2012]; see also 8 C.F.R. § 245.24 (a) (1)
[2017].’’ Taylor v. McCament, 875 F.3d 849, 851 (7th
Cir. 2017). With this background in mind, we turn to
the defendant’s claim that the trial court violated his
right to confrontation by preventing him from cross-
examining C and D about their U visa applications.
The following additional facts and procedural history
are relevant to our resolution of this claim. Prior to trial,
the defendant filed a motion for discovery, in which he
requested that the state be required to turn over ‘‘copies
of all applications and other reports and records per-
taining to the [U visa] applications . . . [of C and D].’’
The defendant argued that he needed these documents
for effective cross-examination of C and D. At a hearing
on the motion, the prosecutor informed the court that
the state was not in possession of the requested docu-
ments. Specifically, she stated that the witnesses’ U visa
applications were ‘‘not . . . done through the state’s
attorney’s office. It’s not something that we participated
in, cooperated in, or asked to participate or cooperate
in.’’ The prosecutor agreed, however, ‘‘that it’s some-
thing that the defense can cross-examine on [at trial].’’
As for the documents themselves, however, the prose-
cutor stated that the defense would have to request
them from the federal government. At the conclusion
of the hearing, the court denied the defendant’s motion,
stating that it could not compel the state to turn over
something it did not have.
During the trial, the defendant filed a motion in
limine, requesting permission to engage in ‘‘comprehen-
sive cross-examination’’ of both C and D with respect
to their U visa applications. The motion stated that, ‘‘through
investigations in preparation of trial, [the defense]
received information from parties with knowledge that
[C] and [D] met the requirements of eligibility for a
[U visa] at the time of the complaint leading to the
defendant’s arrest on March 18, 2015. This information
was supported by the investigations [of] the public
defender’s investigator leading . . . [defense counsel]
to believe that [C] and [D] may be supporting false
allegations against the defendant in the hopes of secur-
ing [U visas]. In order to obtain a [U visa], [C] and
[D] must cooperate with the state’s prosecution of the
defendant.’’ The motion further stated that, during the
initial cross-examination of D, ‘‘[defense counsel]
attempted to lay [a] foundation to develop this line of
questioning [with] respect to the witness’ knowledge
and eligibility for a [U visa]. The [prosecutor] raised an
objection as to relevance. The court called for a recess
to discuss the legal issues before defense counsel would
be permitted to continue cross-examination [with]
respect to the witness’ interests. Due to the time of day,
the court excused the jury for the day, and the witness
was permitted to step down from the [witness] stand
to retake [it] on the following day.’’
The motion concluded that ‘‘[the defendant] drafted
this motion in limine in the interim to support [defense
counsel’s] desire to continue cross-examination along
these lines. . . . The intent of engaging in this line of
question[ing] is not for the truth of the matter but,
rather, to show the jury that both witnesses have an
interest in the outcome of the case in addition to their
interests as [the witnesses’] mothers . . . . The defen-
dant has the right to confront the state’s witnesses
[with] respect to these interests.’’
Contrary to the position she had taken before trial
that the defendant could cross-examine C and D on the
issue, the prosecutor opposed the defendant’s motion,
arguing that the defendant had failed ‘‘to set forth a
foundation for the requested cross-examination.’’ Spe-
cifically, the prosecutor argued that there was no evi-
dence that C and D ever discussed J’s and B’s testimony
with them or encouraged them to testify falsely. The
prosecutor further argued that the entire line of ques-
tioning was irrelevant in the absence of evidence that
C and D were aware of the U visa program prior to J’s
and B’s disclosures.
The next day, outside the presence of the jury, the
trial court allowed defense counsel to question D about
her U visa application. Defense counsel began by stat-
ing, ‘‘[i]n this case, [B] is considered to be the victim
of a crime, correct?’’ D responded, ‘‘[y]es. The whole
family [is].’’ Defense counsel then asked D whether she
was ‘‘aware that there [is] a program for . . . family
members of [crime victims] that . . . enable[s] them
to become citizens of the United States . . . .’’ D
responded, ‘‘I learned through the Women’s Center [of
Greater Danbury (women’s center)] that there is a pro-
gram that protects families like us.’’ When asked when
she learned about the program, D responded, ‘‘[m]uch
later after I started therapy . . . at the women’s center.
. . . I think I was in therapy for a long time when [the
therapist] told me that there was a visa that would
protect family members that suffered abuse.’’ When
asked whether she had applied for a U visa, D replied,
‘‘my lawyer . . . [is] doing it. The papers are with her.
. . . I want to protect [B]. She needs me here. I don’t
want to leave this country.’’
After D finished testifying, the court denied the defen-
dant’s motion with respect to D, stating that it ‘‘found
credible and unchallenged’’ D’s testimony that she
learned about the U visa program through the women’s
center and that ‘‘it was [an attorney affiliated with the
women’s center] that prompted her to [apply for the
program] . . . some years after the reported criminal
event . . . . In the court’s view, that defeats almost
entirely any claim that this witness had an improper
intent or . . . interest in the outcome of the case [or]
any measurable motivation to fabricate anything [includ-
ing] her testimony. . . . As a result, there will be no
questions asked of this witness with respect to her
[immigration] status or . . . the [U visa] program.’’
Defense counsel later questioned C about her U visa
application, again, outside of the jury’s presence. Like
D, C testified that she learned about the U visa program
‘‘after [her] family had gone through everything’’ and
that it ‘‘was people that were working with [her] . . .
that told [her] about the [U visa].’’ When asked whether
she had applied for a U visa, C responded, ‘‘[d]o I need
to answer that?’’ When told that she must, C stated that
she had applied but could not remember when. When
asked whether she ever spoke to anyone from the Dan-
bury Police Department about applying for a U visa, C
responded that she had but that she could not remember
when she had those discussions. When asked whether
anyone beside her attorney had ever shared information
with her about the U visa program, or assisted her in
applying for a visa, C responded, ‘‘[y]es. . . . Friends
and the people who are working with me . . . through-
out the case who wanted to help me.’’
After C finished testifying, the court ruled: ‘‘Much
like the other individual who testified earlier today, the
[U visa] was brought to this witness’ attention through
folks, some of [whom are] involved in the women’s
center . . . . As a result, the court finds that . . . the
[U visa] . . . was not an incentive [for this witness] to
report the crime . . . .’’ The court further stated that
it found ‘‘no nexus’’ between C’s U visa application ‘‘and
any possible interest [in] the outcome of the case,’’ and,
further, that C ‘‘lack[ed] any improper intent or . . .
motivation to fabricate [her testimony].’’ Thus, the court
did not allow defense counsel ‘‘to ask in front of the
jury any questions regarding [C’s] status . . . in the
United States or in connection with any [U visa] applica-
tion.’’
On appeal, the defendant argues that the trial court’s
rulings deprived him of his constitutional right to con-
frontation and to have the jury decide questions related
to C’s and D’s credibility. The defendant contends that
the trial court’s rulings were ‘‘especially egregious’’
because the evidence established that C and D had applied
for U visas, and ‘‘the state had previously acknowledged
that this was an area that the defendant could cross-
examine [them] about.’’ The defendant argues that the
rulings were harmful because they prevented him from
presenting to the jury a plausible theory as to why C
and D would falsely implicate him in the alleged crimes,
and why they would manipulate their children to do so.
The state responds that the trial court properly exer-
cised its discretion in excluding the proffered testi-
mony. Specifically, the state argues that the trial court
simply ‘‘fulfilled its gatekeeping function’’ when it pro-
hibited the requested cross-examinations due to defense
counsel’s ‘‘[failure] to establish a foundation to connect
the [U visa] applications to a motive to fabricate.’’ The
state argues that, in the absence of any ‘‘temporal and
logical connection between the . . . applications and
a motive to fabricate,’’ the trial court correctly deter-
mined that the applications were irrelevant to C’s and
D’s credibility. The state contends that ‘‘[t]here was no
evidence that [C and D] knew about the [U visa] pro-
gram before their daughters revealed the abuse to [the]
police, a forensic interviewer, and a doctor. What [they]
did not know on February 12, 2015, could not have
given them a motive to fabricate [the] revelations that
occurred on that date and [in their] immediate after-
math.’’
The following principles guide our analysis of this
claim. ‘‘The right of confrontation is the right of an
accused in a criminal prosecution to confront the wit-
nesses against him. . . . The primary interest secured
by confrontation is the right to cross-examination . . .
and an important function of cross-examination is the
exposure of a witness’ motivation in testifying. . . .
Cross-examination to elicit facts tending to show
motive, interest, bias and prejudice is a matter of right
and may not be unduly restricted.’’ (Internal quotation
marks omitted.) State v. Wright, 320 Conn. 781, 817–18,
135 A.3d 1 (2016). ‘‘The right of confrontation is pre-
served if defense counsel is permitted to expose to the
jury the facts from which jurors, as the sole triers of
fact and credibility, could appropriately draw infer-
ences relating to the reliability of the witness. . . .
‘‘Although it is within the trial court’s discretion to
determine the extent of cross-examination and the
admissibility of evidence, the preclusion of sufficient
inquiry into a particular matter tending to show motive,
bias and interest may result in a violation of the constitu-
tional requirements . . . of the sixth amendment.’’
(Internal quotation marks omitted.) Id., 818. This court
has held repeatedly that ‘‘[e]vidence tending to show
the motive, bias or interest of an important witness is
never collateral or irrelevant. It may be . . . the very
key to an intelligent appraisal of the testimony of the
[witness].’’ (Internal quotation marks omitted.) State v.
Jose G., 290 Conn. 331, 345 n.11, 963 A.2d 42 (2009);
see also State v. Jordan, 305 Conn. 1, 27, 44 A.3d 794(2012) (‘‘inquiry into prototypical forms of bias is by its
very nature relevant to a witness’ testimony’’ (internal
quotation marks omitted)). ‘‘The range of matters
potentially giving rise to bias, prejudice or interest is
virtually endless.’’ Conn. Code Evid. § 6-5, commentary.
‘‘[A] criminal defendant states a violation of the [c]on-
frontation [c]lause by showing that he was prohibited
from engaging in otherwise appropriate cross-examina-
tion designed to show a prototypical form of bias on
the part of the witness . . . .’’ Delaware v. Van Arsdall,
475 U.S. 673, 680, 106 S. Ct. 1431, 89 L. Ed. 2d 674(1986). ‘‘[W]hether . . . limitations on impeachment,
including cross-examination, [were] so severe as to vio-
late [the defendant’s rights under] the confrontation
clause . . . is a question of law [that is] reviewed de
novo.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Davis, 298 Conn. 1, 11, 1 A.3d 76 (2010).
It bears emphasis that, although restrictions on the
scope of cross-examination are within the trial court’s
sound discretion, ‘‘this discretion comes into play only
after the defendant has been permitted cross-examina-
tion sufficient to satisfy the sixth amendment.’’ (Empha-
sis added; internal quotation marks omitted.) State v.
Leconte, 320 Conn. 500, 511, 131 A.3d 1132 (2016); see
also State v. Santiago, 224 Conn. 325, 331, 618 A.2d 32(1992) (‘‘[a]lthough it is axiomatic that the scope of
cross-examination generally rests within the discretion
of the trial court, [t]he denial of all meaningful cross-
examination into a legitimate area of inquiry fails to
comport with constitutional standards under the con-
frontation clause’’ (internal quotation marks omitted)).
‘‘[A] claim that the trial court unduly restricted cross-
examination generally involves a two-pronged analysis:
whether the aforementioned constitutional standard
has been met, and, if so, whether the court nonetheless
abused its discretion . . . .’’ (Internal quotation marks
omitted.) State v. Leconte, supra, 511–12. ‘‘Constitu-
tional concerns are at their apex when the trial court
restricts a defendant’s ability to cross-examine a key
government witness.’’ (Internal quotation marks omit-
ted.) State v. Jordan, supra, 305 Conn. 27.
Applying these principles, we conclude that the trial
court violated the defendant’s right to confrontation by
prohibiting defense counsel from asking C and D any
questions about their U visa applications in the presence
of the jury. As a result, the defense was prevented from
exposing jurors to prototypical impeachment evidence
showing that a witness was promised or stood to gain
some type of benefit from the government in return for
his or her cooperation. See Cazorla v. Koch Foods of
Mississippi, LLC, 838 F.3d 540, 559 (5th Cir. 2016) (‘‘U
visa applicants are analogous to [any witnesses who
stand to gain a benefit from testifying] in criminal trials,
and in that context, as one court has pithily observed,
[a]ny competent lawyer would . . . [know] that . . .
special immigration treatment by [law enforcement
agencies] [is] highly relevant impeachment material’’
(internal quotation marks omitted)); Romero-Perez v.
Commonwealth, 492 S.W.3d 902, 907 (Ky. App. 2016)
(‘‘The value of [U visa] status for those living in immigra-
tion limbo cannot be overstated. The ability to trans-
form oneself from illegal immigrant, to legal visa holder,
to permanent legal resident in a relatively short amount
of time without ever having to leave the United States,
could provide a strong motive for fabrication or embel-
lishment.’’ (Emphasis omitted.)).
The Fifth Circuit Court of Appeals’ comparison of
U visas to cooperation agreements is an apt one. See
Cazorla v. Koch Foods of Mississippi, LLC, supra, 838
F.3d 559. U visas are awarded only if the applicant ‘‘has
been helpful, is being helpful, or is likely to be helpful’’
to a governmental agency investigating or prosecuting
criminal activity. 8 U.S.C. § 1101 (a) (15) (U) (i) (III)
(2018). ‘‘ ‘Helpful’ [in this context] means the [applicant]
has been, is being, or is likely to assist law enforcement,
prosecutors, judges, or other government officials in
the detection, investigation, prosecution, conviction, or
sentencing of the qualifying criminal activity of which
he or she [or a family member] is a victim. This includes
providing assistance when reasonably requested. This
also includes an ongoing responsibility on the part of
the [applicant] to be helpful. Those who unreasonably
refuse to assist after reporting a crime will not be eligi-
ble for a U visa. The duty to remain helpful to law
enforcement exists even after a U visa is granted, and
those . . . who unreasonably refuse to provide assis-
tance after the U visa has been granted will not be
eligible to obtain lawful permanent residence and may
have the visa revoked by USCIS.’’ Dept. of Homeland
Security, U and T Visa Law Enforcement Resource Guide
(2016) p. 7, available at https://www.dhs.gov/sites/default/
files/publications/U-and-T-Visa-Law-Enforcement-Resource
%20Guide_1.4.16.pdf (last visited January 31, 2023).
In denying defense counsel’s request to cross-exam-
ine C and D about their U visa statuses, the trial court
reasoned that the proffered testimony was irrelevant
because of C’s and D’s testimony that they were not
aware of the U visa program prior to J’s and B’s disclo-
sures. Having credited C’s and D’s testimony, the trial
court reasoned that their desire to obtain U visas could
not have been the motivating force behind their daugh-
ters’ disclosures. The court therefore concluded that
the defendant had failed to establish a ‘‘nexus’’ between
C’s and D’s U visa applications ‘‘and any possible inter-
est [they could have in] the outcome of the case.’’ We
agree with the defendant that the trial court should not
have made findings concerning C’s and D’s credibility.
See State v. Porter, 241 Conn. 57, 120, 698 A.2d 739(1997) (‘‘forming impressions and intuitions regarding
witnesses is the quintessential jury function’’), cert.
denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645(1998). We further conclude that the trial court’s view
of what was relevant in this context was too narrow.
To lay a foundation for the admission of impeachment
evidence, the defendant was required to show that the
evidence was relevant to the witness’ motive to testify
in a certain manner. See Conn. Code Evid. § 6-5 (‘‘[t]he
credibility of a witness may be impeached by evidence
showing bias for, prejudice against, or interest in any
person or matter that might cause the witness to testify
falsely’’). ‘‘Evidence is relevant if it has any tendency
to make the existence of any fact that is material to
the determination of the proceeding more probable or
less probable than it would be without the evidence.
. . . All that is required is that the evidence tend to
support a relevant fact even to a slight degree, [as] long
as it is not prejudicial or merely cumulative.’’ (Emphasis
in original; internal quotation marks omitted.) State v.
Patrick M., 344 Conn. 565, 600, 280 A.3d 461 (2022).
We do not agree that the U visa evidence was irrelevant
simply because C and D testified that they did not learn
about the U visa program until after J and B had accused
the defendant. It is well established that jurors are free
to believe some, all, or none of a witness’ testimony.
See State v. Padua, 273 Conn. 138, 185, 869 A.2d 192(2005). Even if the jury believed C’s and D’s testimony,
it would not render the U visa evidence irrelevant. ‘‘One
can readily see how the [U visa] program’s requirement
of ‘helpfulness’ and ‘assistance’ by the [witness] to the
prosecution could create an incentive to [witnesses]
hoping to have their [U visas] granted. Even if the [wit-
ness] did not outright fabricate the allegations against
the defendant, the structure of the program could cause
a [witness] to embellish [his or] her testimony in the
hopes of being as ‘helpful’ as possible to the prosecu-
tion.’’ Romero-Perez v. Commonwealth, supra, 492
S.W.3d 906.
The Oregon Court of Appeals’ analysis of the issue
in State v. Valle, 255 Or. App. 805, 298 P.3d 1237 (2013),
is fully applicable in the present case: ‘‘[The] defendant
laid a sufficient foundation for the admission of evi-
dence that [the witness] had applied for a U visa on
the ground that she had been abused. . . . [A]ll [the]
defendant had to do to lay a sufficient foundation was
show that the evidence was relevant, and, to do that,
all he had to show was that the evidence had a tendency,
however slight, to demonstrate that [the witness] had
a personal interest in testifying against him. He did that.
He presented information, in the form of [the witness’]
own testimony, that [she] had applied for a U visa on
the ground that she was a victim of abuse. From that
testimony alone, a jury could infer that [the witness] had
a personal interest in testifying [against the defendant].
Simply put, [the witness] had applied for an opportunity
to stay in the country on the ground that she had been
abused; based on that fact, a jury could reasonably infer
that she had a personal interest in testifying in a manner
consistent with her application for that opportunity.
Thus, [the] defendant’s proffered impeachment evi-
dence was relevant, and . . . the trial court erred in
excluding it.’’11 (Footnote omitted.) Id., 814–15.; see also
State v. Zapata-Grimaldo, Docket No. 117,831, 2018 WL
6071478, *5 (Kan. App. November 21, 2018) (decision
without published opinion, 430 P.3d 491) (‘‘[although
the victim] applied for a [U visa] well after reporting
[the defendant] to law enforcement . . . a jury could
conclude [that she] believed [that] she needed to testify
against [him] to be helpful to the certifying agency in
its investigation or prosecution against him’’), review
denied, Kansas Supreme Court, Docket No. 117,831
(June 24, 2019); State v. Del Real-Galvez, 270 Or. App.
224, 231, 346 P.3d 1289 (2015) (‘‘[b]ecause [the victim’s]
mother had applied for an opportunity to stay in the
United States on the ground that her daughter had been
sexually abused and coerced, a jury could reasonably
infer that [the victim], out of a desire to help her mother
obtain a U visa, had a personal interest in testifying
against [the] defendant’’); State v. Dickerson, 973 N.W.2d
249, 259 n.4, 261 n.6 (S.D. 2022) (rejecting state’s asser-
tion that victim’s U visa application was not relevant
impeachment evidence because victim may not have
known about U visa program prior to reporting assault).
Although this court has not previously considered
the admissibility of evidence of a witness’ U visa appli-
cation, we have considered the admissibility of evi-
dence of a witness’ immigration status generally and
concluded that it is a relevant subject of inquiry, so
long as there is a demonstrated link between it and
the witness’ bias, interest, or motive for testifying in a
certain manner. See State v. Jordan, supra, 305 Conn.
30–31 (‘‘[T]he fact of noncitizenship, standing alone,
does not reasonably suggest that a witness will lie.
Rather, there must be some demonstrated link between
a witness’ immigration status and his or her propensity
to testify falsely.’’). With very few exceptions, courts
that have considered the admissibility of evidence of
U visas have held that a witness’ efforts to obtain one
is necessarily relevant to the jury’s assessment of the
witness’ bias, interest, or motive for testifying.12 See,
e.g., People v. Anguiano, Docket No. B304946, 2021
WL 3732619, *10 (Cal. App. August 24, 2021) (‘‘[t]o the
extent that [the witness] was made aware that her coop-
eration in the investigation or prosecution of certain
enumerated offenses could provide an avenue [toward]
permanent residence and citizenship, such knowledge
would have provided a strong ulterior motive to fabri-
cate or exaggerate any criminal charges leveled against
[the defendant]’’); People v. Villa, 55 Cal. App. 5th 1042,
1051, 270 Cal. Rptr. 3d 46 (2020) (‘‘evidence of [the
witness’] application for a U visa was relevant impeach-
ment evidence’’), review denied, California Supreme
Court, Docket No. S265552 (January 13, 2021); State v.
Dickerson, supra, 973 N.W.2d 259 (‘‘We have not before
examined whether or how a [witness’] . . . efforts to
obtain a [U visa] may be admissible to show motive to
testify in a certain manner. However, multiple other
appellate courts have examined the issue and have con-
cluded that a [witness’] immigration status is relevant
and admissible when such evidence has the tendency to
demonstrate the [witness’] bias or motive to fabricate.
While the facts of these cases are not all identical to
those at issue here, the legal reasoning underlying the
courts’ rulings is persuasive.’’ (Footnote omitted.)). We
agree with the reasoning of these cases, which further
supports the conclusion that C’s and D’s U visa applica-
tions were a proper subject of impeachment.
Having determined that the trial court deprived the
defendant of his right to confrontation by precluding
him from cross-examining C and D about their U visa
applications, we normally would consider whether the
exclusion of that testimony was harmless beyond a
reasonable doubt. See, e.g., State v. Edwards, 334 Conn.
688, 706, 224 A.3d 504 (2020) (‘‘[w]hen an [evidentiary]
impropriety is of constitutional proportions, the state
bears the burden of proving that the error was harmless
beyond a reasonable doubt’’ (internal quotation marks
omitted)). Because we already have determined that
the defendant is entitled to a new trial on the basis of
the trial court’s failure to disclose relevant portions of
J’s and B’s psychiatric records, it is unnecessary for us
to engage in a harmless error analysis in connection
with the U visa evidence.
III
Because they are also likely to arise again at a new
trial, we next consider the defendant’s unpreserved
claims of instructional error.
A
We begin with the defendant’s claim that the trial
court improperly instructed the jury that, ‘‘[w]ith
respect to individual pieces of evidence . . . [w]hen
the evidence is subject to two possible interpretations,
you are not required to accept the interpretation consis-
tent with innocence. . . . [Y]ou are also not required
to accept the interpretation consistent with guilt.’’ The
defendant claims that this instruction, which was part
of the trial court’s instructions on ‘‘[e]vidence of intent,’’13
was not a correct statement of the law, diluted the
state’s burden of proof, and misled the jurors as to the
meaning of reasonable doubt. The defendant further
contends that the challenged instruction is nothing more
than a reformulation of the ‘‘two-inference’’ instruc-
tion14 that is barred by State v. Griffin, 253 Conn. 195,
208–10, 749 A.2d 1192 (2000). The state responds, inter
alia, that the two-inference instruction proscribed by
Griffin was part of the trial court’s instructions on
reasonable doubt, which applied to inferences that
could be drawn from the evidence as a whole, whereas
the challenged instruction in the present case applies
to inferences that can be drawn from individual pieces
of evidence, and, as such, it was a proper statement of
the law because the state is not required to prove such
facts beyond a reasonable doubt. We conclude that
the challenged instruction could potentially mislead or
confuse jurors with respect to the state’s burden of
proof. Accordingly, our trial courts should henceforth
refrain from including it in their jury charges.
In Griffin, the defendant challenged the trial court’s
instruction on reasonable doubt that, ‘‘[i]f two conclu-
sions can reasonably be drawn from the evidence, one
of innocence and one of guilt, you must adopt the one of
innocence.’’ (Internal quotation marks omitted.) State
v. Griffin, supra, 253 Conn. 205. The defendant claimed
that the instruction violated his right to due process by
diluting the state’s burden of proof. Id., 203, 205. This
court disagreed, concluding that ‘‘the two-inference
charge, when viewed in the context of an otherwise
proper instruction on reasonable doubt, [did] not imper-
missibly dilute the state’s burden of proof.’’ Id., 209. We
nonetheless ‘‘recognized that the United States Court
of Appeals for the Second Circuit . . . had prohibited
the use of such an instruction because the instruction
by implication suggests that a preponderance of the
evidence standard is relevant, when it is not. Moreover,
the instruction does not go far enough. It instructs the
jury on how to decide when the evidence of guilt or
innocence is evenly balanced, but says nothing on how
to decide when the inference of guilt is stronger than
the inference of innocence but not strong enough to be
beyond a reasonable doubt.’’ (Internal quotation marks
omitted.) Id., 208; see United States v. Khan, 821 F.2d
90, 93 (2d Cir. 1987). Thus, we concluded that, although
the instruction was not misleading when considered in
the context of the charge as a whole, ‘‘standing alone,
such language may mislead a jury into thinking that the
[state’s] burden is somehow less than proof beyond a
reasonable doubt.’’ (Internal quotation marks omitted.)
State v. Griffin, supra, 209. We therefore exercised
our ‘‘supervisory authority over the administration of
justice to direct that, in the future, our trial courts
refrain from using the two-inference language so as to
avoid any such possible misunderstanding.’’ (Footnotes
omitted; internal quotation marks omitted.) Id., 209–10.
The state argues that the present case is distinguish-
able from Griffin because the challenged instruction
was given with respect to facts that the state is not
required to prove beyond a reasonable doubt. See State
v. Ortiz, 343 Conn. 566, 603, 275 A.3d 578 (2022)
(‘‘[Although] the jury must find every element proven
beyond a reasonable doubt in order to find the defen-
dant guilty of the charged offense, each of the basic
and inferred facts underlying those conclusions need
not be proved beyond a reasonable doubt. . . . If it is
reasonable and logical for the jury to conclude that a
basic fact or an inferred fact is true, the jury is permitted
to consider the fact proven and may consider it in com-
bination 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.’’ (Emphasis omitted; inter-
nal quotation marks omitted.) We are not persuaded
that the distinction drawn by the state is a meaning-
ful one.
Indeed, we expressed the same concerns regarding
the trial court’s instruction on circumstantial evidence
in State v. McDonough, 205 Conn. 352, 533 A.2d 857(1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L.
Ed. 2d 238 (1988), which, like the instruction in the
present case, also applied to facts that the state was
not required to prove beyond a reasonable doubt. In
McDonough, the trial court had instructed the jury that
‘‘[c]ircumstantial evidence involves the offering of evi-
dence of facts from which the jury is asked to infer the
existence of and so to find proven another fact or facts.
Such facts may be so found proven, but only if the jury
finds: one, that the fact or facts from which the jury is
asked to draw the inference has been proven by a fair
preponderance of the evidence; and two, that the infer-
ence asked to be drawn is not only logical and reason-
able, but is strong enough so that you can find it is
more probable than not that the fact you are asked to
infer is true.’’ (Internal quotation marks omitted.) Id.,
354. In concluding that the challenged instruction was
improper,15 this court stated: ‘‘Although, as an abstract
proposition, it is not illogical to draw an inference if
the evidence establishes that it is probable, such an
instruction in a criminal case may confuse a jury with
respect to inferring a particular fact essential to prove
an element of the crime. . . . We have disapproved
of this type of instruction because of its potential for
misleading a jury concerning the state’s burden to prove
each element of the crime beyond a reasonable doubt.’’
(Citations omitted.) Id., 355–56.
We believe that the instruction in the present case
suffers from the same infirmities as the instructions in
McDonough and Griffin. Indeed, the risk of confusion
is arguably greater in the present case than it was in
Griffin because, in Griffin, the jury was instructed
that, if two conclusions reasonably could be drawn from
the evidence, one of innocence and one of guilt, it ‘‘must
adopt the one of innocence’’; (emphasis added; internal
quotation marks omitted) State v. Griffin, supra, 253
Conn. 205; whereas, in the present case, the jury was
instructed that it was not required to accept the one
consistent with innocence. As we explained in McDo-
nough, the problem with this type of instruction is that
it introduces into the jury’s deliberations a standard of
proof at odds with the proof beyond a reasonable doubt
standard applicable to the charged offenses. See State
v. McDonough, supra, 205 Conn. 355–56. Such an instruc-
tion is also inconsistent with the principle that, if jurors
‘‘can, in reason, reconcile all of the facts proved with
any reasonable theory consistent with the innocence of
the accused, then [they] cannot find him guilty . . . .’’
(Internal quotation marks omitted.) State v. Lemoine,
256 Conn. 193, 205, 770 A.2d 491 (2001).
Going forward, therefore, trial courts should refrain
from instructing jurors, as the court did in the present
case, that, ‘‘[w]hen the evidence is subject to two possi-
ble interpretations, you are not required to accept the
interpretation consistent with innocence . . . [and]
[y]ou are also not required to accept the interpretation
[that is] consistent with guilt.’’ With respect to subsid-
iary facts that are not subject to the proof beyond a
reasonable doubt standard, it is sufficient for the trial
court simply to instruct the jury that it may find such
facts proven if it is reasonable and logical to do so.
B
We next address the defendant’s claim that the trial
court erred when it failed to instruct the jury in accor-
dance with instruction 2.6-11 of the Connecticut model
criminal jury instructions, which provides in relevant
part: ‘‘The defendant is entitled to and must be given
by you a separate and independent determination of
whether [he or she] is guilty or not guilty as to each of
the counts. Each of the counts charged is a separate
crime. The state is required to prove each element in
each count beyond a reasonable doubt. Each count
must be deliberated upon separately. The total number
of counts charged does not add to the strength of the
state’s case.
‘‘You may find that some evidence applies to more
than one count in [the] information. The evidence, how-
ever, must be considered separately as to each element
in each count. Each count is a separate entity.
‘‘You must consider each count separately and return
a separate verdict for each count. This means that you
may reach opposite verdicts on different counts. A deci-
sion on one count does not bind your decision on
another count.’’ (Footnote omitted.) Connecticut Crimi-
nal Jury Instructions 2.6-11, available at https://jud.ct.-
gov/JI/Criminal/Criminal.pdf (last visited January 31,
2023). A footnote to instruction 2.6-11 further cautions
that, ‘‘[w]hen charges involve different victims, the jury
must also be instructed to separately consider the
charges relating to each victim, and the evidence per-
taining to each victim must be clearly distinguished.’’
Id., n.1.
We have no doubt that the trial court would have
instructed the jury in accordance with instruction 2.6-
11 if defense counsel had requested the charge. See,
e.g., State v. Ortiz, supra, 343 Conn. 594 (‘‘a request to
charge that is relevant to the issues in a case and that
accurately states the applicable law must be honored’’
(internal quotation marks omitted)). The state does not
contend otherwise. This court has recognized the
importance of such an instruction in cases in which a
defendant faces multiple charges of sexual misconduct
relating to multiple alleged victims. See State v. Ellis,
270 Conn. 337, 379, 852 A.2d 676 (2004). Accordingly,
in cases involving multiple charges, multiple victims,
or both, we strongly recommend that our trial courts
instruct jurors in accordance with instruction 2.6-11,
whether asked to do so or not.16
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other justices concurred.
* 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 victims or others through
whom the victims’ identities may be ascertained. See General Statutes
§ 54-86e.
Moreover, in accordance with federal law; see 18 U.S.C. § 2265 (d) (3)
(2018), as amended by the Violence Against Women Act Reauthorization
Act of 2022, Pub. L. No. 117-103, § 106, 136 Stat. 49, 851; we decline to
identify any person protected or sought to be protected under a protection
order, protective order, or a restraining order that was issued or applied
for, or others through whom that person’s identity may be ascertained.
** February 6, 2023, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The defendant also was found guilty of two counts of risk of injury to
a child in violation of § 53-21 (a) (2). At sentencing, the trial court vacated
these convictions, as they were lesser included offenses of the two counts
of aggravated sexual assault of a minor.
2
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
3
The right to confrontation guaranteed by the sixth amendment is made
applicable to the states through the due process clause of the fourteenth
amendment. See, e.g., Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065,
13 L. Ed. 2d 923 (1965).
4
As we explain more fully in part II of this opinion, a U visa allows eligible
undocumented immigrants who are victims of crime, and their qualifying
family members, to lawfully remain in the United States if they assist in the
investigation and prosecution of the perpetrator of that crime. See 8 U.S.C.
§ 1101 (a) (15) (U) (i) (2018).
5
The facts and circumstances pertaining to the victims’ initial disclosures
of sexual abuse are taken directly from C’s trial testimony, which was
admitted into evidence pursuant to the tender years exception to the hearsay
rule. See Conn. Code Evid. § 8-10.
6
Evidence adduced at trial indicated that the iPad in question was regis-
tered to C but used by the entire family and referred to within the family
as S’s iPad because S’s father had paid for it.
7
General Statutes § 53a-70c (a) provides in relevant part: ‘‘A person is
guilty of aggravated sexual assault of a minor when such person commits
a violation of subdivision (2) of subsection (a) of section 53-21 . . . and
the victim of such offense is under thirteen years of age, and . . . (5) there
was more than one victim of such offense under thirteen years of age . . . .’’
8
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
. . . (2) has contact with the intimate parts . . . of a child under the age
of sixteen years or subjects a child under sixteen years of age to contact
with the intimate parts of such person, in a sexual and indecent manner
likely to impair the health or morals of such child . . . shall be guilty of
. . . a class B felony . . . .’’
9
‘‘For a petitioner who is subject to an order of exclusion, deportation,
or removal issued by the Secretary [of Homeland Security], the order will
be deemed canceled by operation of law as of the date of USCIS’ approval
of Form I-918.’’ 8 C.F.R. § 214.14 (c) (5) (i) (2022).
10
We note that ‘‘[c]ertifying officials may sign [a] Form I-918B for a nonciti-
zen family member as the indirect victim regardless of whether the direct
victim is a [United States] citizen or a noncitizen (such as a noncitizen
parent of a [United States] citizen child who is the direct victim).’’ Dept. of
Homeland Security, U Visa Law Enforcement Resource Guide (2022) p. 7,
available at https://www.dhs.gov/sites/default/files/2022-05/U-Visa-Law-Enforce
ment-Resource-Guide-2022_1.pdf (last visited January 31, 2023). We further
note that the Department of Children and Families (department) requires
that clients be informed of their eligibility for a U visa and offered assistance
in applying for one. See 2 Dept. of Children & Families, Policy Manual
(effective January 2, 2019) § 21-13, available at https://portal.ct.gov/-/media/
DCF/Policy/Chapters/21-13.pdf (last visited January 31, 2023) (‘‘The [s]ocial
[w]orker shall assist undocumented adult clients with issues related to their
immigration status. . . . If the [s]ocial [w]orker believes that an adult or
child client may qualify for a U visa as a victim of domestic violence or
other specific crime identified by the federal government, the [s]ocial
[w]orker shall consult with the [department] [a]rea [o]ffice [a]ttorney. The
[s]ocial [w]orker shall forward the request to the . . . designee [of the
Commissioner of Children and Families] for certification of the federal form
[I-918B].’’
11
In arguing to the contrary, the state relies on the principle that ‘‘the
jury may not infer the opposite of a witness’ testimony solely from its
disbelief of that testimony.’’ State v. Hart, 221 Conn. 595, 605, 605 A.2d 1366(1992). The state then argues that, ‘‘[r]egardless of how the jury might assess
[C’s and D’s] credibility, based on [the defendant’s] proffer, it could not
have found that [their daughters’] allegations arose from [C’s and D’s desire
to obtain U visas] . . . .’’ The state’s reliance on the cited principle is
misplaced because it is not a rule of admissibility but one of sufficiency.
See State v. Hart, supra, 605–606 (‘‘[o]ur rule barring the inference of the
opposite of testimony has been applied uniformly in both criminal and civil
contexts . . . [and] is an evidentiary [rule] concerning the proper method
of measuring the sufficiency of the evidence’’ (citations omitted)); see also
Walker v. New York, 638 Fed. Appx. 29, 31 (2d Cir. 2016) (‘‘it is hornbook
law that a [party] does not carry [its] burden of proving a fact merely by
having witnesses deny that fact and asking the jury to decline to believe
the denials’’). Evidence of C’s and D’s U visa applications was offered to
demonstrate that C and D had a substantial stake in the outcome of the
case, which bore directly on their credibility. Whether their U visa applica-
tions caused them to falsely implicate the defendant or otherwise influenced
them to cooperate in the prosecution was a question for the jury.
12
The state cites two cases that it argues support the trial court’s determi-
nation that the U visa evidence was irrelevant because the defendant failed
to proffer evidence that C and D knew about the U visa program before J’s
and B’s disclosures. See State v. Buccheri-Bianca, 233 Ariz. 324, 328, 312
P.3d 123 (App. 2013); Quiroz v. State, Docket No. 05-16-01511-CR, 2018 WL
3387362, *2 (Tex. App. July 12, 2018). We find the cited cases unpersuasive
because, in each case, the court applied the same narrow standard of rele-
vance that the trial court applied in the present case. The cited cases are
also procedurally distinguishable because neither involved a confrontation
clause challenge to the trial court’s evidentiary ruling. See State v. Buccheri-
Bianca, supra, 328; Quiroz v. State, supra, *2.
13
The trial court instructed the jury in relevant part: ‘‘Evidence of intent.
What a person’s intention was is usually a matter to be determined by
inference. No person is able to testify that he or she looked into another’s
mind and saw therein a certain knowledge or a certain purpose or intention
to do harm to another. Because direct evidence of the defendant’s state of
mind is rarely available, intent is generally proved by circumstantial evi-
dence. The only way a jury can ordinarily determine what a person’s intention
was at any given time is by determining what the person’s conduct was and
what the circumstances were surrounding that . . . conduct . . . and from
that infer what his or her intention was.
‘‘To draw such an inference is the proper function of a jury, provided, of
course, that the inference drawn complies with the standards for inferences
as explained in connection with [the court’s] instruction on circumstantial
evidence. The inference is not a necessary one. You are not required to
infer a particular intent from the defendant’s conduct or statements, but it
is an inference that you may draw if you find it is reasonable and logical.
While the jury must find every element proven beyond a reasonable doubt
in order to find the defendant guilty of the charged offense, each of the
basic and inferred facts underlying those conclusions need not be proved
beyond a reasonable doubt.
‘‘With respect to individual pieces of evidence . . . [w]hen the evidence
is subject to two possible interpretations, you are not required to accept
the interpretation consistent with innocence. But you are also not required
to accept the interpretation consistent with guilt. You are allowed to choose
the interpretation that seems reasonable and logical. I again remind you
that the burden of proving intent beyond a reasonable doubt is on the state.’’
14
‘‘A two-inference instruction provides that, if two conclusions reason-
ably can be drawn from the evidence, one of guilt and one of innocence,
the jury must adopt the conclusion of innocence.’’ (Internal quotation marks
omitted.) State v. Lemoine, 256 Conn. 193, 205 n.13, 770 A.2d 491 (2001).
15
Although we found the instruction in McDonough to be improper, we
concluded that the error was harmless beyond a reasonable doubt. See State
v. McDonough, supra, 205 Conn. 361–62.
16
We recognize that a trial court is not required to tailor its charge to the
precise language of a request to charge or model jury instruction. ‘‘If a . . .
charge is in substance given, the [trial] court’s failure to give [the] charge
in exact conformance with the words of the request [or the model instruc-
tion] will not constitute a ground for reversal.’’ (Internal quotation marks
omitted.) State v. Ortiz, supra, 343 Conn. 594–95.