State v. Felix R. ( 2015 )

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STATE OF CONNECTICUT v. FELIX R.*
(SC 19278)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued March 19—officially released October 6, 2015
James M. Ralls, assistant state’s attorney, with
whom, on the brief, were Michael Dearington, state’s
attorney, and Michael A. Pepper, senior assistant state’s
attorney, for the appellant (state).
Stacey Van Malden, pro hac vice, with whom, on the
brief, was Robert C. Ross, for the appellee (defendant).
Opinion
ESPINOSA, J. The sole issue in this certified appeal
is whether the Appellate Court properly concluded that
the prosecutor had deprived the defendant of his due
process right to a fair trial by engaging in prosecutorial
impropriety during closing argument. The state appeals,
following our grant of certification, from the judgment
of the Appellate Court reversing the judgment of the
trial court convicting the defendant, Felix R., of two
counts of sexual assault in the first degree in violation of
General Statutes § 53a-70 (a) (1), two counts of sexual
assault in the third degree in violation of General Stat-
utes § 53a-72a (a) (2), one count of sexual assault in
the fourth degree in violation of General Statutes § 53a-
73a (a) (1) (E), and three counts of risk of injury to a
child in violation of General Statutes § 53-21 (a) (2).
The state claims that the Appellate Court improperly
determined that prosecutorial improprieties occurred
and that those improprieties deprived the defendant
of a fair trial.1 We conclude that the majority of the
challenged remarks were not improper. As to the
remaining remark, although the state has conceded that
it was improper, we conclude that that comment did
not deprive the defendant of a fair trial and, accordingly,
we reverse the judgment of the Appellate Court.
The Appellate Court set forth the following relevant
facts, which the jury reasonably could have found. ‘‘The
[victim], the defendant’s daughter, was born in the Dom-
inican Republic to parents who never married one
another. The defendant moved to the United States,
and the [victim] continued to live with her mother in
the Dominican Republic until 2005 when she moved to
the United States to live with the defendant and her
paternal grandmother. At the time she came to the
United States, [the victim] was ten years old and spoke
no English. . . .
‘‘The defendant began to touch the [victim] in a sexual
manner approximately three months after she arrived
in Connecticut. On occasion the defendant tried to kiss
her and have her touch his penis. In 2006, the defendant
took the [victim] to a [child guidance] clinic because
she wept frequently, was having difficulty sleeping, and
was anxious. When she was seen at the clinic, the [vic-
tim] did not mention the defendant’s sexual advances
toward her because the defendant had threatened to
hurt her if she told anyone about it. . . .
‘‘The [victim] attempted to tell her mother about the
defendant’s sexual advances by writing her a letter.
She asked the defendant to deliver the letter when he
traveled to the Dominican Republic. The [victim] does
not know whether her mother ever received the letter.
In late 2007 or early 2008, the [victim] and the defendant
together visited the Dominican Republic. During their
visit, the [victim] told her paternal aunt that the defen-
dant abused her. The paternal aunt confronted the
defendant, who denied the accusations of abuse. . . .
In late 2008, the [victim’s] maternal aunt, Mercedes,
asked the [victim] about a letter in which the [victim]
had stated that she did not want to live with the defen-
dant and threatened to commit suicide. The [victim] told
Mercedes that the contents of the letter were untrue.
In March, 2009, a representative of the Department of
Children and Families (department) visited the [victim]
at her school. When the representative from the depart-
ment asked the [victim] whether she was being sexually
abused, the [victim] gave a negative response. The [vic-
tim] later stated that she was afraid to tell anyone about
the defendant’s sexual advances because she was fear-
ful; the defendant was sometimes aggressive. The [vic-
tim] did not know who had contacted the department
about her situation.
‘‘On the morning of May 9, 2009, when the [victim]
was fourteen, the defendant awakened her by touching
her breasts. The defendant held the [victim’s] hands
above her head and took off her pajamas. The [victim]
asked the defendant to stop, but he covered her mouth,
told her to shut up, and forced her to engage in sexual
intercourse. The defendant used a condom, but it broke.
The [victim] saw ‘white stuff’ in the broken condom
and on her body. The defendant instructed the [victim]
not to tell anyone what had occurred. Later that morn-
ing, the defendant purchased a pregnancy test and Plan
B (morning after pill). He directed the [victim] to take
one of the morning after pills and gave her a second
pill approximately twelve hours later. On May 12, 2009,
the defendant gave the [victim] a pregnancy test, which
produced a negative result. . . .
‘‘On . . . May 28, 2009, the defendant touched the
[victim] while she was sleeping. The [victim] awakened,
pushed the defendant away, and slapped him. The
defendant left the [victim] alone but warned her not to
tell anyone or he would do something to her.
‘‘The [victim] went to school and reported the defen-
dant’s sexual abuse to her guidance counselor. She told
her guidance counselor that the defendant had touched
her breasts that morning and had done so many times
previously. She also told him that the defendant had
penetrated her and threatened to send her back to the
Dominican Republic if she told anyone about it. More-
over, the [victim] also stated that she was afraid to go
home from school. The guidance counselor telephoned
the department hotline to report what the [victim] had
told him. . . . The department placed the [victim] in
foster care that day.
‘‘Later, on the evening of May 28, 2009, department
personnel informed the defendant of the [victim’s] accu-
sations and that she was being removed from his home.
The defendant denied having abused the [victim]. . . .
He claimed that the [victim] was angry with him for
having confronted her about [a] boy. He acknowledged,
however, that during the previous year, the [victim’s]
mother had accused him of having sexually abused
the [victim].
‘‘Detective John Ventura [of the Wallingford Police
Department] interviewed the defendant. The defendant
told Ventura that, on a couple of occasions, he had taken
the [victim] to the hospital for an evaluation because he
thought she was having sex with a boy. The defendant
claimed that the hospital had refused to see the [victim]
on those occasions for ‘ethical reasons.’ The defendant
also informed Ventura that the [victim] slept in his bed
because she was not getting along with her paternal
grandmother, and that he saw nothing wrong with the
[victim] sleeping with him. When Ventura asked the
defendant if he had purchased a pregnancy test for the
[victim], the defendant became excited and extremely
nervous. He denied having purchased a pregnancy test
and claimed that the [victim] had used his credit card
without telling him why. He also denied that he had
bought the [victim] a morning after pill.
‘‘The following day, however, the defendant tele-
phoned Ventura and admitted that he had purchased a
morning after pill and a pregnancy test for the [victim].
The defendant’s credit card statement, a Walgreens
electronic report and its surveillance photographs con-
firmed that the defendant had made the subject pur-
chases at 10:02 a.m. on May 9, 2009. The defendant
explained to Ventura that he had not been truthful when
Ventura was questioning him because he was embar-
rassed that the [victim] was having unprotected sex
with boys.
‘‘On June 1, 2009, a social worker from the Yale Child
Sexual Abuse Clinic, Theresa Montelli, conducted a
forensic interview of the [victim]. Although the [victim]
told Montelli that no one other than the defendant had
ever touched her sexually, she testified at trial that she
had had sex with two boys.
‘‘In early June, 2009, a pediatric nurse practitioner,
Janet Murphy, conducted a physical examination of the
[victim]. According to Murphy, the [victim’s] vaginal
examination was normal, which was not dispositive of
whether the [victim] had had sexual intercourse. The
[victim’s] blood and urine tests, however, indicated she
was pregnant. Within days of Murphy’s examination,
the [victim] had a miscarriage while she was at school.
Although medical tests were inconclusive as to who
had impregnated her, Beth Rackow, an obstetrician and
gynecologist who examined the [victim] on June 8, 2009,
testified that the [victim’s] pregnancy was consistent
with her having had sexual intercourse and become
pregnant on May 9, 2009, notwithstanding the negative
May 12, 2009 pregnancy test. . . .
‘‘In mid-June, 2009, department social workers Ana-
maris Colon and [Tira] Gant met with the defendant to
inform him that the department was considering placing
the [victim] with one of her maternal aunts, either Elka
or Mercedes, in New York. The defendant objected to
placing the [victim] with her maternal aunts . . .
claiming that they would not be good supervisors. He
asserted that, when the [victim] had visited her aunts
during the Memorial Day weekend, she had run away
for fourteen hours and had sex with a boy named Jona-
than. The [victim], Mercedes, and the New York equiva-
lent of the department denied that the [victim] had run
away for fourteen hours. The defendant reported to
Colon and Gant that the [victim] ‘was pretty much loose
with the boys’ and that she had accused him of sexual
assault because she was afraid that he would punish
her. He also reported that the [victim] had posted an
image of her face and a penis on her social network
website. The [victim] provided Colon with access to
the website, but Colon was unable to locate the alleged
image during an extended search. . . .
‘‘The defendant was arrested in January, 2010, and
charged with various crimes. A jury trial was held in
May, 2011. Given the lack of direct evidence, the [vic-
tim’s] credibility was a principal issue at trial. The evi-
dence focused not only on her allegations against the
defendant, but also on when and with whom she had
had sexual relations. The defendant attempted to
impeach the [victim’s] credibility by highlighting incon-
sistencies between her trial testimony and her out-of-
court statements. The jury found the defendant guilty
of all charges.’’ (Footnotes omitted.) State v. Felix R.,
147 Conn. App. 206, 208–15, 83 A.3d 619 (2013). The
defendant appealed from the judgment of conviction
to the Appellate Court, claiming that the prosecutor’s
statements during closing argument violated his right
to a fair trial. Id., 208. The Appellate Court reversed the
defendant’s conviction and remanded the case for a
new trial. Id., 232. This certified appeal followed.
We first set forth the general principles under which
we review claims of prosecutorial impropriety. ‘‘[W]hen
a defendant raises on appeal a claim that improper
remarks by the prosecutor deprived the defendant of
his constitutional right to a fair trial, the burden is on
the defendant to show, not only that the remarks were
improper, but also that, considered in light of the whole
trial, the improprieties were so egregious that they
amounted to a denial of due process.’’ State v. Payne,
303 Conn. 538, 562–63, 34 A.3d 370 (2012). In analyzing
whether the prosecutor’s comments deprived the defen-
dant of a fair trial, we generally ‘‘determine, first,
whether the [prosecutor] committed any impropriety
and, second, whether the impropriety or improprieties
deprived the defendant of a fair trial.’’ State v. Fauci,
282 Conn. 23, 35, 917 A.2d 978 (2007).
I
We first consider whether the prosecutor’s state-
ments were improper. We recognize that ‘‘[impropriety]
is [impropriety], regardless of its ultimate effect on the
fairness of the trial; whether that [impropriety] caused
or contributed to a due process violation is a separate
and distinct question . . . .’’ (Internal quotation marks
omitted.) State v. Warholic, 278 Conn. 354, 361–62, 897
A.2d 569 (2006). When reviewing the propriety of a
prosecutor’s statements, ‘‘we do not scrutinize each
individual comment in a vacuum but, rather, review the
comments complained of in the context of the entire
trial.’’ (Internal quotation marks omitted.) State v.
Fauci, supra, 282 Conn. 45. Finally, when a prosecutor’s
potentially improper remarks are ambiguous, ‘‘a court
should not lightly infer that a prosecutor intends an
ambiguous remark to have its most damaging meaning
or that a jury, sitting through a lengthy exhortation, will
draw that meaning from the plethora of less damaging
interpretations. Donnelly v. DeChristoforo, 416 U.S.
637, 646–47, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974)
. . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Haase, 243 Conn. 324, 336, 702 A.2d
1187 (1997), cert. denied, 523 U.S. 1111, 118 S. Ct. 1685,
140 L. Ed. 2d 822 (1998).
The defendant argues that the prosecutor’s state-
ments during closing argument fall into four distinct
categories of impropriety: (1) appeals to the emotions
of the jurors; (2) commentary on the defendant’s exer-
cise of his right to confrontation under the sixth and
fourteenth amendments to the United States constitu-
tion; (3) expressions of personal opinion as to the defen-
dant’s guilt and the credibility of witnesses; and (4)
reference to a fact not introduced into evidence. We will
examine each category of alleged impropriety in turn.
First, the defendant argues that the prosecutor made
emotional appeals to the jury in order to evoke sympa-
thy for the victim and to raise ire against the defendant.
An appeal to emotions ‘‘improperly diverts the jury’s
attention away from the facts and makes it more diffi-
cult for it to decide the case on the evidence in the
record.’’ State v. Alexander, 254 Conn. 290, 307, 755
A.2d 868 (2000). An appeal to emotions invites the jury
to instead reach a decision based on ‘‘powerful and
irrelevant factors . . . .’’ (Internal quotation marks
omitted.) State v. Singh, 259 Conn. 693, 719, 793 A.2d
226 (2002). The defendant focuses on a particular group
of statements wherein the prosecutor recounted the
difficulties that the victim faced during the investigation
and trial. The prosecutor stated to the jury that the
victim ‘‘was interviewed by strangers . . . was poked
and prodded by doctors . . . had a miscarriage . . .
had to relive the whole experience here’’ and ‘‘had to
recite to you who she had sex with and who she
hasn’t . . . .’’
Although in isolation these statements could under
certain circumstances be construed as fanning the
flames of emotion, when put into the context of the
entire trial and closing argument, the incendiary poten-
tial of the statements is extinguished. The prosecutor
was reiterating the state’s principal theory—that the
victim would not have willingly chosen to undergo such
difficulties if she were lying. We have recognized this
line of argument as acceptable in previous cases. State
v. Warholic, supra, 278 Conn. 365–66 (proper for prose-
cutor to argue that minor complainant would not have
gone through testifying unless telling truth); State v.
Burton, 258 Conn. 153, 170, 778 A.2d 955 (2001) (proper
for state to argue that witness lacked motive to lie).
Furthermore, all of the victim’s travails were already
familiar to the jury, who had heard them described
exhaustively in testimony from social workers, medical
professionals, and the victim herself. Although the
underlying crime was, by its nature, inherently charged
with emotion, the prosecutor did not invite the jurors to
disregard the facts of the case in favor of their emotions.
Rather, the state was summarizing evidence that sup-
ported its theory of the case. Therefore, the prosecutor’s
comments were not improper in this regard.
Second, the defendant argues that the prosecutor
invited the jury to draw adverse inferences from the
defendant’s exercise of his sixth and fourteenth amend-
ment confrontation clause rights. A prosecutor may not
‘‘invite the jury to draw an inference of guilt solely
based on the defendant’s exercise of his constitutional
right to be present at trial and confront . . . wit-
ness[es].’’ State v. Alexander, supra, 254 Conn. 299. The
defendant focuses on the prosecutor’s remarks that the
victim ‘‘had to relive the whole experience here, facing
[the jury] and the defendant, and telling [the jury] what
happened to her . . . [a]nd she had to recite to you
who she had sex with and who she hasn’t . . . I had
to ask her . . . did you ever post a photograph of your-
self on the web with a penis in your face? I had to ask
her that question in front of strangers, because of what
that man said and did to her.’’ (Emphasis added.)
These statements immediately followed the prosecu-
tor’s remarks listing the difficulties that the victim faced
during the investigation. The defendant construes these
remarks as an impermissible comment on his enumer-
ated right to confront the witnesses against him at a
public trial. According to the defendant, in light of the
fact that the state called the victim as a witness, the
prosecutor’s refrain that the victim ‘‘had’’ to relive her
abuse through testifying was a comment on the defen-
dant’s right to proceed to trial and confront witnesses.
Conversely, the state contends that the prosecutor’s
statements were not in reference to the defendant’s
constitutional rights, but, rather, a guileless articulation
of the state’s overarching dual theory of the case: that
the victim had no motive to lie and gained no benefit
in reporting the abuse and that the defendant had a
strong motive to lie and deceive investigators. Indeed,
the entirety of the closing argument is peppered with
iterations of this theme. The prosecutor repeatedly
asked the jury, ‘‘what motive does [the victim] have to
come in here and sit there and say my father sexually
abused me . . . ?’’ He even concluded the state’s argu-
ment by requesting that the jurors ask themselves one
question: ‘‘Why would [the victim] get up on the stand
and say what she did?’’ Thus, in context, it is ambiguous
as to whether the prosecutor was referring to the defen-
dant’s confrontation rights or to the state’s need to
demonstrate the credibility of the victim and the falsity
of the defendant’s statements. An impartial reading of
the remarks reveals that both interpretations are
plausible.
In our prior decisions addressing alleged prosecu-
torial impropriety, we have stated that a prosecutor’s
ambiguous remarks will not be ascribed their most dam-
aging interpretation in the minds of the jurors. See, e.g.,
State v. Ciullo, 314 Conn. 28, 48, 100 A.3d 779 (2014);
State v. Warholic, supra, 278 Conn. 368; State v. Haase,
supra, 243 Conn. 335–36; State v. Marra, 222 Conn.
506, 533–34, 610 A.2d 1113 (1992). Consistent with that
principle, we recognize that ‘‘[c]ounsel must be allowed
a generous latitude in argument, as the limits of legiti-
mate argument and fair comment cannot be determined
precisely by rule and line, and something must be
allowed for the zeal of counsel in the heat of argument.’’
(Internal quotation marks omitted.) State v. Maguire,
310 Conn. 535, 553, 78 A.3d 828 (2013).
We accept the state’s suggestion, proposed at oral
argument before this court, that it would be helpful for
us to clarify the meaning of ‘‘ambiguous’’ in the context
of prosecutorial impropriety. To draw from the realm of
statutory interpretation, language is deemed ambiguous
‘‘when read in context, [it] is susceptible to more than
one reasonable interpretation.’’ (Internal quotation
marks omitted.) State v. Buckland, 313 Conn. 205, 224,
96 A.3d 1163 (2014), cert. denied, U.S. , 135
2
S. Ct. 992, 190 L. Ed. 2d 837 (2015). To be clear, in
furtherance of our policy of not assigning ambiguous
remarks their most damaging interpretation from an
array of less damaging interpretations, in those cases
where a prosecutor’s allegedly improper statements are
genuinely ambiguous, the ambiguity will be construed
in favor of the state. Put another way, for the purpose of
determining whether a challenged remark is improper,
when selecting among multiple, plausible interpreta-
tions of the language, this court will assign the remark
the less damaging, plausible meaning. Accordingly,
because the prosecutor’s comment that the victim ‘‘had’’
to testify ‘‘because of what that man said and did to
her’’ is ambiguous, we read the remark to refer, albeit
imprecisely, to the state’s overarching theme: the victim
had no motive to lie and the defendant did. The remarks,
therefore, were not improper.
Third, the defendant alleges that the prosecutor
improperly provided his personal opinion as to the
defendant’s credibility and guilt. It is a fundamental
principle that ‘‘a prosecutor may not express [his or]
her own opinion, either directly or indirectly, as to the
credibility of a witness or the guilt of the defendant.’’
State v. Alexander, supra, 254 Conn. 304. A prosecutor
may, however, argue that a witness testified credibly
or had a motive to lie ‘‘if such an argument is based on
reasonable inferences drawn from the evidence.’’ State
v. Warholic, supra, 278 Conn. 365. Additionally, ‘‘the
prosecutor may argue for the reasonable inferences
that the jury may draw from the evidence adduced
at trial, including the defendant’s commission of the
crime.’’ Id., 367.
The defendant focuses on the following remarks of
the prosecutor as evidence that the prosecutor opined
on his guilt and credibility: ‘‘[E]very crazy, outlandish
claim the defendant made about his daughter over that
period of time was rebutted. Every time he slandered
her, we find out it’s not true. Why? Why this campaign
of disinformation against his daughter? Well, I sub-
mit, ladies and gentlemen, what would you expect from
someone who molests a twelve year old, even your own
daughter? I submit, ladies and gentlemen, he was trying
to deceive and deflect the investigation of this case from
the very beginning.’’ (Emphasis added.) The defendant
also alleges that the prosecutor’s earlier remark that
the victim had to testify ‘‘because of what that man
said and did to her’’ improperly opined upon his guilt.
Again, we are faced with vying, reasonable interpreta-
tions of the prosecutor’s remarks. The defendant reads
the remarks as the prosecutor informing the jury that
he believed the defendant to be guilty and unreliable,
whereas the state asserts that the remarks reiterated the
prosecution’s theory that the defendant had a motive
to lie during the investigation given the nature of the
charges against him, as a defendant accused of sexually
assaulting his own daughter would not be expected to
freely admit such an act. The state itself acknowledges
that the prosecutor’s words were imprecise and that
they are ambiguous as to whether the prosecutor was
referring to what the defendant did during the investiga-
tion or to his guilt in the underlying crimes. Indeed, the
prosecutor’s phrase ‘‘someone who molests’’ suggests
guilt in a way that a phrase such as ‘‘someone accused
of molesting’’ does not. Conversely, the same comment
may be read as the prosecutor inviting the jury to draw
an inference as to the defendant’s guilt and credibility
based on the evidence at trial, particularly the contra-
dicted and uncorroborated statements he made to
investigators. Due to the multiple reasonable interpreta-
tions of the remarks, we construe the ambiguity in favor
of the state. The prosecutor’s remarks, therefore, were
not improper. We emphasize that our decisions that
have construed ambiguous language in favor of the state
do not establish a bright line rule. The impropriety of
a prosecutor’s remarks is a fact centered inquiry, which
must be determined on a case-by-case basis. For
instance, at a certain point, the sheer number of ambigu-
ous statements that have a possibly improper meaning
made by a prosecutor during the course of a trial deprive
the state of the presumption that such remarks are the
result of inartfulness and instead demonstrate a pattern
of impropriety. The record in the present case does not
demonstrate such a pattern.
Fourth, the defendant argues that the prosecutor
improperly referred to a fact not introduced into evi-
dence. We recognize that ‘‘[s]tatements as to facts that
have not been proven amount to unsworn testimony,
which is not the subject of proper closing argument.’’
State v. Ceballos, 266 Conn. 364, 400, 832 A.2d 14 (2003).
While summarizing the testimony of Murphy, the pediat-
ric nurse practitioner who examined the victim, the
prosecutor stated: ‘‘[Murphy] said the first pregnancy
test we got was positive. . . . We got to administer
this again. It’s shocking for people in the medical pro-
fession. . . . [T]hey administered a second pregnancy
test, which was again positive.’’ (Emphasis added.) The
state concedes that this comment referred to a fact not
in evidence and, indeed, nothing in Murphy’s testimony
suggests that the pregnancy test results were shocking.
Accordingly, the comment was improper and we will
review it as such.
II
We must now determine whether the prosecutor’s
statement that the results of the victim’s pregnancy test
were ‘‘shocking for people in the medical profession’’
deprived the defendant of his due process right to a fair
trial. In conducting our inquiry, rather than analyzing
individual statements in isolation, we ask ‘‘whether the
trial as a whole was fundamentally unfair and [whether]
the [impropriety] so infected the trial with unfairness
as to make the conviction a denial of due process.’’
(Internal quotation marks omitted.) State v. Ceballos,
supra, 266 Conn. 408. In determining whether prosecu-
torial improprieties violated the defendant’s due pro-
cess rights, we examine six factors: ‘‘[1] the extent to
which the [impropriety] was invited by defense conduct
or argument . . . [2] the severity of the [impropriety]
. . . [3] the frequency of the [impropriety] . . . [4] the
centrality of the [impropriety] to the critical issues in
the case . . . [5] the strength of the curative measures
adopted . . . and [6] the strength of the state’s case.’’
(Citations omitted.) State v. Williams, 204 Conn. 523,
540, 529 A.2d 653 (1987). We examine each factor in
turn and conclude that the prosecutor’s statement in
the present case did not impermissibly infringe on the
defendant’s due process rights such that he was
deprived of a fair trial.
First, the prosecutor’s statement was not invited by
any of defense counsel’s conduct or statements at trial.
At no point in the trial did the defense call into question
Murphy’s testimony about the pregnancy test or provide
the prosecutor with any other grounds for his comment.
Second, the prosecutor’s improper statement was not
severe. When evaluating the severity of the impropriety,
‘‘we take into consideration whether defense counsel
objected to any of the improper remarks, requested
curative instructions, or moved for a mistrial.’’ (Internal
quotation marks omitted.) State v. Warholic, supra, 278
Conn. 398. Significantly, defense counsel failed to
object to the impropriety at trial and we therefore pre-
sume that counsel did not consider the impropriety
severe enough to merit an objection. Third, the prosecu-
tor’s impropriety was not frequent. Improper state-
ments that are ‘‘minor and isolated’’ will generally not
taint the overall fairness of an entire trial. State v. Payne,
supra, 303 Conn. 565; id., 567 (defendant’s due process
rights not violated when prosecutor’s improper remarks
were brief and confined to closing argument). In the
present case, the prosecutor’s improper statement was
a single statement buried in a lengthy closing argument
and was not repeated. See State v. Maguire, supra, 310
Conn. 556 (improprieties were frequent when prosecu-
tor’s ‘‘disparaging refrain’’ was ‘‘repeated over and over
for dramatic effect’’); State v. Williams, supra, 204
Conn. 546–47 (prosecutor repeatedly described defen-
dant with pejorative language). Fourth, the improper
statement was not central to the critical issues of the
case. To resolve the case, the jury was required to make
a determination regarding the victim’s credibility, rather
than the accuracy of the pregnancy tests or medical
procedures employed by the various medical personnel
who testified. Fifth, the trial court’s general jury instruc-
tion was sufficiently curative. We recognize that general
jury instructions can cure the potential effects of minor
prosecutorial improprieties. See State v. Payne, supra,303 Conn. 567–68; State v. Haase, supra, 243 Conn. 337.
In such cases, ‘‘we presume the jury . . . followed [the
court’s instruction] in the absence of any indication to
the contrary.’’ State v. Collins, 299 Conn. 567, 590, 10
A.3d 1005, cert. denied, U.S. , 132 S. Ct. 314, 181
L. Ed. 2d 193 (2011). In the present case, the trial court
specifically instructed the jury to disregard ‘‘conclu-
sions of facts which have not been produced in evi-
dence.’’ As that instruction addresses the very
impropriety alleged here, and there is no indication that
the jury did not adhere to it, we conclude that it was
sufficiently curative.
Finally, we analyze the strength of the state’s case.
See State v. Williams, supra, 204 Conn. 540. In sexual
abuse cases, while ‘‘the absence of conclusive physical
evidence of sexual abuse does not automatically render
[the state’s] case weak, that same absence surely does
not strengthen the state’s case . . . .’’ State v. Ceballos,
supra, 266 Conn. 416. The sexual abuse of children is
a crime which, by its very nature, occurs under a cloak
of secrecy and darkness. It is not surprising, therefore,
for there to be a lack of corroborating physical evidence
in cases that are factually similar to the present case,
where the victim submitted to the sexual abuse of her
father in the face of his threats to physically harm her
and send her back to the Dominican Republic if she
told anyone. Given the rarity of physical evidence in
these circumstances, a case is not automatically weak
just because a child’s will was overborne and he or she
submitted to the abuse of his or her own parent. To
conclude otherwise would place an insurmountable
obstacle in the path of many sexual assault prose-
cutions.
We therefore conclude that the state’s case was not
weak due to the lack of conclusive physical evidence
corroborating sexual assault, especially given the cor-
roborating evidence introduced at trial. Much of the
corroborating evidence that the state presented at trial
was untarnished by the prosecutor’s improper remark.
For example, the prosecutor’s comment did not refer-
ence the defendant’s purchase of a pregnancy test and
morning after pills, the corroborating testimony of the
social workers and police that handled and investigated
the victim’s case, or the testimony of the victim herself,
all of which was likely persuasive to the jury. The jury
was in the best position to evaluate the victim’s credibil-
ity against the credibility of the defendant’s pretrial
statements to investigators and the jury ultimately
found the victim’s testimony credible, despite the lack
of corroborating physical evidence.
In sum, we conclude that the defendant was not
deprived of his due process right to a fair trial. Though
the prosecutor’s improper remark was uninvited by the
defense, the severity of the improper comment was
minimal, confined to closing argument, did not bear on
a central issue in the case, and was rectified by the trial
court’s general instructions to the jury. Accordingly, we
do not find it likely that the prosecutor’s brief remark
would have convinced an entire panel of jurors to disre-
gard their sworn duty and return a verdict founded on
impermissible inferences rather than the weight of the
evidence before them.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH and ROBINSON, Js., concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual assault and the crime of risk of injury to a child, we decline
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
We granted the state’s petition for certification to appeal, limited to the
following issue: ‘‘Did the Appellate Court properly reverse the judgment
against the defendant based upon prosecutorial improprieties?’’ State v.
Felix R., 311 Conn. 915, 84 A.3d 883 (2014).
2
The legal definition of ‘‘ambiguous’’ that courts employ when conducting
statutory interpretation is, with minor variations, equivalent to its colloquial
definition. See, e.g., The Random House Dictionary of the English Language
(2d Ed. 1987) p. 64 (‘‘open to or having several possible meanings or interpre-
tations’’); The American Heritage Dictionary of the English Language (5th Ed.
2011) p. 56 (‘‘[o]pen to more than one interpretation’’); Merriam-Webster’s
Collegiate Dictionary (11th Ed. 2003) p. 39 (‘‘capable of being understood
in two or more possible senses or ways’’); The Oxford English Dictionary
(2d Ed. 1989) p. 386 (‘‘[a]dmitting more than one interpretation, or explana-
tion; of double meaning, or of several possible meanings’’). Although the
definition we use here is legal both in its origin and use, that definition of
‘‘ambiguous’’ reflects a common understanding of the meaning of the word.