State v. Michael R. ( 2023 )

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STATE OF CONNECTICUT v. MICHAEL R.*
(SC 20523)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Alexander, Js.
Syllabus
Convicted, after a jury trial, of sexual assault in the first degree, risk of
injury to a child, employing a minor in an obscene performance, assault
in the third degree, criminal violation of a protective order, and stalking
in the first degree in three cases that were consolidated for trial, the
defendant appealed to this court. The defendant had been romantically
involved with R, and his conviction arose from his alleged abuse of R’s
daughter, G. On numerous occasions, the defendant sexually assaulted
G during her weekly sleepovers at the defendant’s house. He also gave
G a cell phone and implemented certain rules, including one requiring
G to send him daily ‘‘selfies’’ and one prohibiting G from letting R see
the phone. At the end of one of G’s visits to the defendant’s house, the
police responded to a complaint that the defendant had refused to return
G to R. After a subsequent visit, R reported to the police that G had
returned from the defendant’s house with a bruise on her buttocks, and
G told her pediatrician that she had been struck with a belt numerous
times. Concerned about certain content that R had found on G’s cell
phone, R gave it to the police. An extraction of the phone’s data revealed
various suggestive photographs and text messages between the defen-
dant and G, including photographs of the defendant lying shirtless in
bed with G, text messages from the defendant instructing G to send
him photographs of G fully and partially nude in various poses, along with
the resulting photographs, and text messages in which the defendant
discussed his plans for punishing G for failing to send him daily selfies.
Thereafter, the trial court issued a protective order prohibiting the defen-
dant from, among other things, following or stalking G. On a subsequent
morning, however, the defendant positioned himself on a bench near
G’s school and made eye contact with her as she passed by in her school
van. About two weeks later, the defendant parked his car along the
route of G’s school van and followed it to G’s school after watching it
pass by. The defendant represented himself at trial. The trial court
denied the defendant’s pretrial motion to sever and granted the state’s
motion for joinder, and the sexual offenses, namely, sexual assault in
the first degree, one count of risk of injury to a child based on sexual
conduct, and employing a minor in an obscene performance, were tried
together with the nonsexual charges of assault in the third degree and
another count of risk of injury to a child unrelated to sexual conduct,
which related to the incident involving the belt, criminal violation of a
protective order, and first degree stalking. At trial, the defendant cross-
examined G and attempted to elicit testimony regarding prior inconsis-
tent statements that she had made during two forensic interviews. During
the first interview, G initially denied any alleged sexual abuse by the
defendant, but, during the second interview approximately six months
later, G indicated that the defendant had touched her private parts with
both his private parts and his hand on more than one occasion. When
the defendant attempted to refresh G’s recollection with her statements
from her first interview, however, the trial court interjected and
instructed the defendant to move on. The defendant also attempted to
offer video recordings of the interviews as substantive evidence through
his expert witness, but the trial court excluded them on the grounds
that there was no foundation for their admission and could not be
authenticated by the expert. On the defendant’s appeal from the judg-
ments of conviction, held:
1. The trial court did not abuse its discretion by consolidating the sexual
offenses and the nonsexual offenses for trial, as the evidence relating
to the sexual offenses was cross admissible to prove the nonsexual
offenses:
The evidence relating to the sexual offenses and the nonsexual offenses
was relevant in each case, as all of the offenses involved the same victim
and tended to prove the state’s theory that the defendant’s motive for
committing all of the offenses was his sexual interest in, and obsession
with, G, and specific evidence suggestive of the defendant’s motive relat-
ing to the sexual offenses included G’s testimony recounting the sexual
abuse, the defendant’s gifting G with a cell phone and prohibiting R from
seeing it, his tracking of G via the phone’s global positioning system and
asking her to send him daily selfies and photographs of her partially or
fully nude, and his positioning himself along G’s school van route.
Moreover, it could be fairly inferred that the defendant’s nonsexual
conduct in following G to school and hitting her with a belt was influenced
by his criminal conduct of sexually assaulting her, all of that conduct
was tied together by the defendant’s obsession with and desire to control
G, and, on the basis of that evidence, the trial court reasonably concluded
that evidence relating to each charged crime would be probative to show
a genuine connection between the defendant’s sexual and nonsexual
conduct, to corroborate crucial prosecution testimony, and to establish
the complete story of the defendant’s sexual abuse of G by placing it
in context.
Although the evidence relating to G’s sexual exploitation was more
severe than the evidence relating to the nonsexual incidents involving
the stalking and the striking of G with a belt, the evidence of the sexual
offenses was more probative than prejudicial with respect to the nonsex-
ual offense charges, and vice versa, and the prejudicial effect of joining
the various charges for trial was mitigated by the fact that there was
only a single victim, with the charges providing context and motive for
the defendant’s sexual and nonsexual actions as to that victim, and by
the trial court’s jury instruction, given on multiple occasions, that the
evidence relating to each charge must be considered separately.
2. The defendant could not prevail on his unpreserved claims that the statute
(§ 53a-196a (a) (1)) prohibiting the employment of a minor in an obscene
performance was unconstitutionally vague as applied to him and that,
because the photographs of G were not obscene, they were protected
by the first amendment to the United States constitution:
a. Section 53a-196a (a) (1) was not unconstitutionally vague as applied
to the defendant’s conduct, as the elements of the offense of employing
a minor in an obscene performance were adequately defined and afforded
the defendant fair and adequate notice that his conduct with respect
to G, namely, directing her to model in suggestive poses and to take
photographs partially and fully nude, was criminal:
Contrary to the defendant’s arguments that there was a definitional
conflict in the statutory scheme governing obscenity related offenses,
the text of § 53a-196a (a) (1) was clear that the defendant was prohibited
from employing a minor to promote an exhibition that, among other
things, depicted a prohibited sexual act, such as a ‘‘nude performance’’
showing certain body parts, and the photographs in the present case
contained a nude performance.
Even if, as the defendant argued, the term ‘‘nude performance’’ was itself
vague in the absence of a judicial gloss that restricted its reach only to
nudity of a sexual nature, decisions from this court and the Appellate
Court provided ample notice that photographs like those recovered from
G’s cell phone were within the ambit of the statute and made clear that,
when the defendant engaged in the conduct at issue, selfies in which a
nine year old child, such as G, is directed to pose fully or partially nude
constitute a nude performance under the statute.
b. The photographs of G, in which she posed fully or partially nude at
the defendant’s instruction, did not warrant first amendment protection:
It is well established that obscenity is not a category of expression
protected by the first amendment, and § 53a-196a (a) (1) prohibits
employing a minor in any material or performance that is ‘‘obscene as
to minors’’ and, thus, ‘‘harmful to minors,’’ which may be established by
demonstrating that the material or performance describes or represents
a prohibited sexual act that predominantly appeals to the prurient, shame-
ful or morbid interest of minors, is patently offensive to prevailing stan-
dards in the adult community as a whole with respect to what is suitable
material for minors, and taken as a whole, lacks serious literary, artistic,
educational, political or scientific value for minors.
Moreover, although nudity by itself is not pornographic, a photograph
can be sexually explicit when it contains a lascivious image, this court
has adopted a case specific approach for assessing whether a display
is lascivious, and, following an independent appellate review of the
photographs at issue, this court concluded that, given G’s age and G’s
sexually suggestive poses at the defendant’s direction, the photographs
of G depicted a degree of sexual activity that was ‘‘harmful to minors’’
and, therefore, obscene.
3. The defendant could not prevail on his claim that the trial court’s improper
exclusion of the video recordings of the forensic interviews violated his
constitutional rights to confrontation and to present a defense, as any
claimed error was harmless beyond a reasonable doubt:
Although the trial court was within its discretion to ensure that the
defendant’s cross-examination of G was not abusive or intimidating, it
should not have interjected when the defendant attempted to refresh
her recollection, especially when the defendant’s questions were neither
tangential nor irrelevant and the prosecutor did not object, and, in this
instance, the trial court’s desire to protect G interfered with the defen-
dant’s attempts to exercise his right to represent himself.
Nevertheless, the trial court’s potentially incorrect rulings with respect
to the admission of the video-recorded interviews were harmless, as the
relevant portions of the first interview were cumulative of trial testimony
that G had, on three occasions, denied any sexual misconduct by the
defendant, if the recording of the first interview had been admitted, it
would have established only what the jury already knew from testimony
about G’s initial denials, the defendant had the opportunity to highlight
any inconsistencies between G’s testimony and her statements during
the first forensic interview when the defendant cross-examined her, and
the defendant’s line of questioning repeatedly made the jury aware of
the existence of the inconsistencies.
Moreover, G’s answers during the second interview about the defendant’s
touching her vagina with his hand did not differ in any material way
from her testimony that his ‘‘parts’’ went inside her private parts a ‘‘little
bit,’’ and the statements in the second interview corroborated G’s testi-
mony and squarely established the necessary element of ‘‘sexual inter-
course’’ in connection with the sexual assault charge by establishing
that penetration, however slight, occurred, such that the admission of
the recording of the second interview would have been damaging to the
defendant’s case.
To the extent that there were any inconsistencies between the statements
in the second interview and G’s testimony regarding the type of penetra-
tion that occurred, the exclusion of the second interview also was harm-
less because the defendant focused his defense on G’s credibility rather
than on whether the state had proven the element of penetration, and
there was substantial evidence corroborating G’s testimony, including
expert testimony explaining the concept of delayed disclosure, evidence
of the defendant’s directing G to send him photographs of G posing
nude, and the photographs themselves.
4. The evidence was sufficient to support the defendant’s conviction of
assault in the third degree, two counts of violation of a protective order,
and two counts of stalking in the first degree:
a. There was no merit to the defendant’s claim that the evidence was
insufficient to support his conviction of assault in the third degree on
the ground that he lacked the necessary intent to cause G to sustain a
physical injury, in view of his and G’s testimony that a blanket was
placed over G’s buttocks so that it would not hurt her when he struck
her with the belt:
The jury reasonably could have inferred the defendant’s intent to inflict
injury from the physical characteristics of the bruise, which was the
size of a ‘‘tangerine,’’ the number of times the defendant struck G, the
defendant’s statements in his text messages indicating that he would
‘‘punish’’ G for failing to send him selfies, and his own consciousness
of guilt, as reflected in his misstatements and changes in statements he
made to an official from the Department of Children and Families regard-
ing the incident.
b. The evidence was sufficient to support the defendant’s conviction of
two counts of criminal violation of a protective order, insofar as the
evidence warranted an inference that, on two separate dates after the
trial court issued the protective order, the defendant had the requisite
intent to stalk and follow G:
The jury reasonably could have inferred that, on the date of the first
incident, the defendant knew that G would be in the van heading to
school, watched the van’s route specifically to see G, and cleared a spot
on a bench that enabled him to wait there until he saw G, and that, on
the date of the second incident, having parked in a nearby parking lot
on the van’s route and having pulled out of the lot once the van passed
by, the defendant followed G to school.
c. The evidence was sufficient to convict the defendant of stalking in
the first degree under the statutory provisions ((Rev. to 2017) § 53a-181c
(a) (2) and (3)) proscribing, respectively, stalking that violates a court
order in effect at the time of the offense and the stalking of a person
under sixteen years of age:
The jury reasonably could have inferred a course of conduct from the fact
that, on the date of the first stalking incident, the defendant knowingly
lay in wait for, monitored, surveilled, or observed G, and the fact that,
on the date of the second stalking incident, the defendant knowingly
followed, lay in wait for, monitored, surveilled, or observed G, and it
was undisputed that a civil protective order, of which the defendant was
aware, was in effect at the time of the stalking, and that G was under
sixteen years of age when the stalking occurred.
Argued October 18, 2022—officially released April 11, 2023
Procedural History
Substitute information, in the first case, charging the
defendant with the crimes of sexual assault in the first
degree and risk of injury to a child, and substitute infor-
mation, in the second case, charging the defendant with
the crimes of employing a minor in an obscene perfor-
mance, risk of injury to a child, and assault in the third
degree, and substitute information, in the third case,
charging the defendant with two counts each of the
crimes of criminal violation of a protective order and
stalking in the first degree, brought to the Superior
Court in the judicial district of Litchfield and tried to
the jury before Danaher, J.; verdicts and judgments
of guilty, from which the defendant appealed to this
court. Affirmed.
Conrad Ost Seifert, assigned counsel, for the appel-
lant (defendant).
Laurie N. Feldman, assistant state’s attorney, with
whom, on the brief, were David Shannon, state’s attor-
ney, and Dawn Gallo, former state’s attorney, for the
appellee (state).
Opinion
ROBINSON, C. J. The principal issue in this appeal
requires us to consider when nude images of a minor
become ‘‘harmful to minors’’ for purposes of our statute
making it a criminal offense to employ a minor in an
obscene performance, General Statutes § 53a-196a (a)
(1).1 The defendant, Michael R., appeals2 from the judg-
ments of conviction, rendered after a jury trial, of one
count of sexual assault in the first degree in violation
of General Statutes § 53a-70 (a) (2);3 two counts of risk
of injury to a child in violation of General Statutes § 53-
21 (a) (1) and (2);4 one count of employing a minor in
an obscene performance in violation of § 53a-196a (a)
(1); one count of assault in the third degree in violation
of General Statutes § 53a-61 (a) (1);5 two counts of
criminal violation of a protective order in violation of
General Statutes § 53a-223;6 and two counts of stalking
in the first degree in violation of General Statutes (Rev.
to 2017) § 53a-181c (a) (2) and (3).7 On appeal, the
defendant claims that (1) the trial court abused its dis-
cretion in consolidating for trial the sexual offenses
with the nonsexual offenses, (2) the obscene perfor-
mance statute is unconstitutionally vague as applied to
his conduct, and the first amendment to the United
States constitution requires us to undertake an indepen-
dent appellate review of that conviction, (3) the trial
court improperly excluded from evidence exculpatory
video recordings of forensic interviews of the victim,
G, which violated the defendant’s constitutional rights
to confrontation and to present a defense, and (4) the
evidence was insufficient to support his conviction of
assault in the third degree, criminal violation of a pro-
tective order, and stalking in the first degree. We dis-
agree with the defendant’s claims and, accordingly,
affirm the judgments of the trial court.
The record reveals the following background facts
and procedural history. Shortly after the defendant
became romantically involved with R, a single mother,
in 2017, he began taking her then nine year old daughter,
G, on outings and movie ‘‘dates,’’ buying her toys, gifts,
and manicures, and having her sleep over at his house
at least once per week. During these visits, the defen-
dant and G would sleep together on a pull-out bed,
where the defendant sexually assaulted G on numerous
occasions. The defendant was not G’s legal guardian,
but he made her refer to him as ‘‘dad’’ or ‘‘daddy.’’
The defendant gave G a cell phone and implemented
certain rules, including one that required G to send him
daily ‘‘selfies’’ using the phone’s camera. The defendant
did not ‘‘want [R] in the phone’’ and instructed G that,
if R demanded to see the phone or asked for its pass-
code, G should tell her, ‘‘sorry, it’s daddy’s phone and
daddy’s rules. . . . Even if she threatens to beat your
ass if you don’t. If she punishes you or beats your ass
as a result, let me know and I’ll call the police.’’ R
had experienced financial difficulties both before and
during her relationship with the defendant, and, when
the electric company shut off her power, the defendant
paid to have it reinstated. At one point, however, the
defendant threatened to withhold financial support if
R did not abide by the rules that he had set for G’s use
of the cell phone, and he conditioned the continuation
of that financial support on his receiving ‘‘legal’’ paren-
tal rights to G.
On November 25, 2017, Sergeant Frank Masi of the
New Milford Police Department went to the defendant’s
house after receiving a call that the defendant had
refused to return G to R at the conclusion of a visit.
Although Masi noted that G appeared hesitant to leave
the defendant’s home and that everyone appeared to
be well cared for, he subsequently contacted the Depart-
ment of Children and Families (department), suspecting
the neglect or abuse of a child. In the following days,
the defendant texted G individually to tell her that they
would have to ‘‘leave each other’s lives’’ because R
refused ‘‘to do what was right, what [the defendant and
G] both wanted, and what was in [G’s] best interest: to
make [the defendant G’s] legal daddy.’’
On November 27, 2017, Masi met with R to discuss
her concerns regarding G’s stay at the defendant’s house
on November 25. R reported to Masi that she and one
of her coworkers observed that G had returned from
the defendant’s house with a ‘‘black and blue’’ bruise
on her buttocks, about the size of ‘‘a tangerine . . . .’’
G told the pediatrician who examined the bruise that
she had been struck with a belt nine times, with a
blanket placed over her buttocks. The defendant later
admitted to Yvette Newton, a supervisor with the
department who investigated the report of suspected
abuse and neglect, that, while G was staying with him,
he had punished her by striking her buttocks with a
belt, but he denied any intent to cause injury.8
When she met with Masi, R also expressed concerns
about certain content that she had found on G’s phone.
When she gave Masi the cell phone and its passcode,
he again contacted the department. A Cellebrite extrac-
tion9 performed pursuant to a search warrant for the
cell phone revealed photographs and text messages
between the defendant and G, including two photo-
graphs of the defendant laying shirtless in bed with G.
The extraction also revealed text messages from the
defendant instructing G to send him nude photographs
of herself in various poses, along with the accompa-
nying photographs. In some photographs, G holds a
stuffed animal (a sloth) that the defendant had given
her, partially covering her otherwise nude body. Various
text messages were also discovered in which the defen-
dant discussed with G his plans for punishing her for
failing to send him ‘‘selfies’’ by turning off the cell phone.
On December 15, 2017, the trial court issued a civil
protective order prohibiting the defendant from, among
other things, contacting, assaulting, threatening, abus-
ing, harassing, following, interfering with, or stalking
R, G, and G’s younger brother.10 Subsequently, on the
mornings of January 3 and 18, 2018, the defendant
waited in the parking lots of two nearby businesses and
then followed G’s school van on her commute to school.
In December, 2017, and June, 2018, Danielle Williams,
a forensic interviewer at the Center for Youth and Fami-
lies, interviewed G regarding the allegations of sexual
assault against the defendant and his hitting G with a
belt, during which G first denied but then later con-
firmed that the defendant had touched her inappropri-
ately on several occasions and had hit her.
Following his arrest, the state ultimately charged the
defendant in three separate informations, which were
consolidated for trial over the defendant’s objection.11
In 2020, the cases were tried to a jury, with the defen-
dant representing himself with standby counsel present.
At trial, the prosecutor advanced the theory that the
defendant was ‘‘obsessed’’ and ‘‘in love with’’ G. The
jury returned verdicts finding the defendant guilty on
all counts. The trial court rendered judgments of convic-
tion in accordance with the jury’s verdicts and imposed
a total effective sentence of thirty years of imprison-
ment with fifteen years of special parole. This appeal
followed. Additional relevant facts will be set forth as
necessary in the context of each claim on appeal.
I
Before we address the principal issue concerning
§ 53a-196a (a) (1), we find it helpful to first consider
whether the trial court properly consolidated for trial
the sexual offenses with the nonsexual offenses. For
purposes of our analysis, the sexual offenses include
the charges of sexual assault in the first degree for the
alleged sexual abuse of G, risk of injury to a child based
on sexual conduct, and employing a minor in an obscene
performance. The nonsexual offenses include the charges
of assault in the third degree unrelated to sexual con-
duct and risk of injury to a child unrelated to sexual
conduct, for hitting G with a belt, stalking, and violation
of a protective order. The defendant claims that the
trial court abused its discretion in denying his motion
to sever the offenses pursuant to Practice Book § 41-1812
and in granting the state’s motion for joinder pursuant
to Practice Book § 41-1913 because the state failed to
meet its burden of proving that he would not be substan-
tially prejudiced by the consolidation. The defendant
argues that evidence relating to the alleged sexual
offenses was not cross admissible to prove the charges
of assault, stalking, or violation of a protective order
and that he was substantially prejudiced by the joinder
under State v. Boscarino, 204 Conn. 714, 722–24, 529
A.2d 1260 (1987),14 because of the shocking and brutal
nature of the alleged sexual offenses and the complexity
of trying the charges together.
The state responds that the trial court properly joined
the charges because the evidence of sexual misconduct
was cross admissible insofar as it was probative of the
defendant’s motive, intent, and absence of mistake as
to all charges, and also completed the story with regard
to the other charges. The state also argues that the
Boscarino factors are inapplicable because, when evi-
dence is cross admissible, the court’s joinder inquiry
ends. Guided by our recent decision in State v. James
A., 345 Conn. 599, 286 A.3d 855 (2022), petition for cert.
filed (U.S. March 23, 2023) (No. 22-7080), we agree
with the state and conclude that, because the evidence
relating to each charged offense was cross admissible,
the trial court did not abuse its discretion in denying
the defendant’s motion to sever and in subsequently
granting the state’s motion for joinder.
The record reveals the following additional relevant
facts and procedural history. In July, 2019, the defen-
dant filed a motion to sever, arguing that joinder and
a single trial of all charges, which appeared in separate
files, would be unduly prejudicial.15 The state opposed
the defendant’s motion to sever, arguing that the trial
court could join the three informations for trial because
they alleged discrete, factually distinguishable scenar-
ios, and the evidence that the state intended to offer
was cross admissible in each case. The state also rea-
soned that, because the evidentiary portion of the trial
was not anticipated to last longer than four days, the
jury could consider the cases separately in light of the
short duration and simplicity of the trial. Ultimately, in
October, 2019, the trial court denied the defendant’s
motion to sever, determining that joinder of the three
informations for trial would not be unduly prejudicial
to the defendant under the Boscarino test. The state
thereafter filed a motion for joinder, which the trial
court granted.
‘‘[The] General Statutes and rules of practice expressly
authorize a trial court to order a defendant to be tried
jointly on charges arising from separate cases. . . . [I]n
State v. LaFleur, 307 Conn. 115, 159, 51 A.3d 1048 (2012),
and State v. Payne, 303 Conn. 538, 544–50, 34 A.3d
370 (2012) . . . we rejected the notion of a blanket
presumption in favor of joinder and clarified that, when
charges are brought in separate informations, and the
state seeks to join those informations for trial, the state
bears the burden of proving that the defendant will
not be substantially prejudiced by joinder pursuant to
Practice Book § 41-19. . . . The state may satisfy this
burden by proving, by a preponderance of the evidence,
either that the evidence in the cases is cross admissible
or that the defendant will not be unfairly prejudiced
pursuant to the factors set forth in State v. Boscarino,
[supra, 204 Conn. 722–24] . . . . Although the state
bears the burden of proof in the trial court, [i]t is the
defendant’s burden on appeal to show that joinder was
improper by proving substantial prejudice that could
not be cured by the trial court’s instructions to the
jury . . . . As we emphasized in LaFleur, our appellate
standard of review remains intact. Accordingly, [i]n
deciding whether to [join informations] for trial, the trial
court enjoys broad discretion, which, in the absence of
manifest abuse, an appellate court may not disturb.’’
(Citations omitted; emphasis in original; internal quota-
tion marks omitted.) State v. James A., supra, 345
Conn. 614–15.
‘‘A long line of cases establishes that the paramount
concern is whether the defendant’s right to a fair trial
will be impaired. Therefore, in considering whether
joinder is proper, this court has recognized that, [when]
evidence of one incident would be admissible at the
trial of the other incident, separate trials would provide
the defendant no significant benefit. . . . Under such
circumstances, the defendant would not ordinarily be
substantially prejudiced by joinder of the offenses for
a single trial. . . . Accordingly, we have found joinder
to be proper [when] the evidence of other crimes or
uncharged misconduct [was] cross admissible at sepa-
rate trials. . . . [When] evidence is cross admissible,
therefore, our inquiry ends.’’ (Citations omitted; internal
quotation marks omitted.) State v. LaFleur, supra, 307
Conn. 155; see Leconte v. Commissioner of Correction,
207 Conn. App. 306, 327, 262 A.3d 140 (‘‘[I]t is well
established that [when] the evidence in one case is
cross admissible at the trial of another case, the defen-
dant will not be substantially prejudiced by joinder.
. . . Our case law is clear that a court considering join-
der need not apply the Boscarino factors if evidence
in the cases is cross admissible.’’ (Internal quotation
marks omitted.)), cert. denied, 340 Conn. 902, 263 A.3d
387 (2021). ‘‘To be cross admissible, the evidence must
be both relevant and more probative than prejudicial.
See Conn. Code Evid. § 4-3 (‘[r]elevant evidence may
be excluded if its probative value is outweighed by the
danger of unfair prejudice or surprise, confusion of the
issues, or misleading the jury, or by considerations of
undue delay, waste of time or needless presentation of
cumulative evidence’); see also State v. Campbell, 328
Conn. 444, 522, 180 A.3d 882 (2018) (‘[f]or prior miscon-
duct evidence to be admissible, it must not only be
relevant and material, but also more probative than
prejudicial’).’’ State v. James A., supra, 345 Conn.
615–16.
With this legal framework in mind, we start by
determining whether the evidence of the sexual and
nonsexual offenses was cross admissible, such that evi-
dence in each case would have been admissible in the
other cases. Under § 4-5 of the Connecticut Code of
Evidence, evidence of other crimes, wrongs, or acts of
a person is generally inadmissible to prove the bad
character, propensity, or criminal tendencies of that
person. Conn. Code Evid. § 4-5 (a).16 Uncharged miscon-
duct evidence, however, ‘‘is admissible [first] if it is
relevant and material to at least one of the circum-
stances encompassed by the exceptions and [second]
if the probative value of the evidence outweighs any
prejudicial effect.’’ (Internal quotation marks omitted.)
State v. Campbell, supra, 328 Conn. 518.
It is well established that ‘‘[e]vidence of other crimes,
wrongs or acts of a person is admissible . . . to prove
intent, identity, malice, motive, common plan or
scheme, absence of mistake or accident, knowledge, a
system of criminal activity, or an element of the crime,
or to corroborate crucial prosecution testimony.’’ Conn.
Code Evid. § 4-5 (c). Thus, the fact ‘‘[t]hat evidence
tends to prove the commission of other crimes by the
accused does not render it inadmissible if it is otherwise
relevant and material.’’ (Internal quotation marks omit-
ted.) State v. Arias, 322 Conn. 170, 183, 140 A.3d 200(2016).
Because our analysis begins with whether the evi-
dence is relevant and material to at least one of the
circumstances encompassed by the exceptions, we
briefly review the relevant exceptions to § 4-5 (a) of
the Connecticut Code of Evidence before considering
their application to this case for purposes of cross
admissibility. First, it is well established that uncharged
misconduct evidence is admissible to prove motive and
intent. See, e.g., State v. Crenshaw, 313 Conn. 69, 87–88
n.11, 95 A.3d 1113 (2014); State v. James, 211 Conn. 555,
578, 560 A.2d 426 (1989), overruled on other grounds
by State v. Douglas C., 345 Conn. 421, 285 A.3d 1067(2022). Second, ‘‘such evidence may be used to com-
plete the story of the crime on trial by placing it in the
context of nearby and nearly contemporaneous happen-
ings.’’ (Internal quotation marks omitted.) State v. Vega,
259 Conn. 374, 396–97, 788 A.2d 1221, cert. denied, 537
U.S. 836, 123 S. Ct. 152, 154 L. Ed. 2d 56 (2002); see,
e.g., State v. Crenshaw, supra, 85 (evidence from both
informations ‘‘would have been admissible to establish
the complete story of what had happened to the vic-
tim’’); State v. Vega, supra, 396–98 (evidence of defen-
dant’s prior misconduct substantiated theory that there
existed system of criminal activity on part of defen-
dant). Finally, uncharged misconduct evidence is also
admissible to corroborate crucial prosecution testi-
mony. See, e.g., State v. Cooper, 227 Conn. 417, 425,
630 A.2d 1043 (1993) (evidence of defendant’s prior
misconduct corroborated other testimony in state’s
case indicating that defendant sold drugs and that victim
was shot for interfering with defendant’s drug related
activity); State v. Gerald A., 183 Conn. App. 82, 100,
107–108, 191 A.3d 1003 (evidence of intimate partner
violence was admissible to corroborate crucial prosecu-
tion testimony, specifically, testimony about why chil-
dren waited to report alleged sexual abuse), cert. denied,
330 Conn. 914, 193 A.3d 1210 (2018).
Our review of the record reveals that the trial court
reasonably concluded that the evidence relating to both
the sexual offenses and the nonsexual offenses would
be relevant in each case—all of which involved the same
victim—to prove the state’s theory as to the defendant’s
motive for committing all of the charged offenses,
namely, that he was motivated by his sexual interest
in, and obsession with, G. See State v. Patrick M., 344
Conn. 565, 598, 280 A.3d 461 (2022) (‘‘evidence of
uncharged misconduct involving the same victim is
especially relevant to demonstrate motive’’); State v.
Gonzalez, 167 Conn. App. 298, 310, 142 A.3d 1227(‘‘[w]hen instances of a criminal defendant’s prior mis-
conduct involve the same victim as the crimes for which
the defendant . . . is being tried, those acts are espe-
cially illuminative of the defendant’s motivation and
attitude toward that victim, and, thus, of his intent as
to the incident in question’’ (internal quotation marks
omitted)), cert. denied, 323 Conn. 929, 149 A.3d 500(2016). Specific evidence suggestive of the defendant’s
motive relating to the sexual offenses included G’s testi-
mony recounting the sexual abuse, the defendant’s gift-
ing G with a cell phone and prohibiting R from seeing
it, the defendant’s tracking of G via the phone’s global
positioning system and asking her to send daily ‘‘selfies’’
and nude photographs, which were indicative of his
motive for hitting G with a belt for not following his
various phone rules, and the defendant’s following G’s
school van route after she had been removed from
R’s care.17
Similar to consciousness of guilt, a defendant’s con-
duct following an alleged criminal act can also be illus-
trative of his motive. See State v. DePastino, 228 Conn.
552, 563, 638 A.2d 578 (1994) (‘‘[i]n a criminal trial, it
is relevant to show the conduct of an accused, as well
as any statement made by him subsequent to the alleged
criminal act, which may fairly be inferred to have been
influenced by the criminal act’’ (internal quotation
marks omitted)). The defendant’s otherwise nonsexual
conduct of watching and following G on her way to
school and hitting her with a belt to punish her for not
complying with his desire for ‘‘selfies’’ ‘‘may fairly be
inferred to have been influenced by the criminal act’’
of sexually assaulting her. (Internal quotation marks
omitted.) State v. Coccomo, 302 Conn. 664, 671, 31 A.3d
1012 (2011). All of these acts, including the sexually
assaultive conduct, are tied together by the defendant’s
obsession with and desire to control G.
From this evidence, the trial court reasonably con-
cluded that, with respect to all of the charges, evidence
relating to each crime would be probative to show a
genuine connection between the defendant’s sexual
conduct and nonsexual conduct, to corroborate crucial
prosecution testimony, and to establish the complete
story of G’s sexual abuse. This evidence was offered
to establish the defendant’s motive and intent as to
each crime, which had a tendency to make it more
probable that the defendant committed each crime. See,
e.g., State v. Esposito, 192 Conn. 166, 169, 471 A.2d
949 (1984) (‘‘evidence of crimes so connected with the
principal crime by circumstance, motive, design, or
innate peculiarity, that the commission of the collateral
crime tends directly to prove the commission of the
principal crime, or the existence of any essential ele-
ment of the principal crime, is admissible’’ (internal
quotation marks omitted)).
We also conclude that, given these circumstances,
the evidence of the sexual offense charges was more
probative than prejudicial with respect to the nonsexual
offense charges, and vice versa. It is well settled that
damaging evidence is inadmissible only if it creates
‘‘undue prejudice so that it threatens an injustice were
it to be admitted. . . . [Accordingly] [t]he test for
determining whether evidence is unduly prejudicial is
not whether it is damaging to the [party against whom
the evidence is offered] but whether it will improperly
arouse the emotions of the jur[ors].’’ (Emphasis altered;
internal quotation marks omitted.) State v. Jacobson,
283 Conn. 618, 639, 930 A.2d 628 (2007). Despite the
relative severity of the evidence relating to G’s sexual
exploitation compared to that of the belt and stalking
incidents, the prejudicial effect of joining the various
charges for trial was mitigated by the fact that this case
involved only a single victim, with the charges providing
context and motive for the defendant’s actions—both
sexual and nonsexual—as to that single victim. Cf. State
v. James A., supra, 345 Conn. 628 (although two sexual
assault cases with two different victims were more bru-
tal and shocking than joined threatening and disorderly
conduct cases, disparity between cases was not so great
that evidence related to sexual assault cases was more
prejudicial than probative in threatening and disorderly
conduct cases). Although testimony regarding sexual
misconduct has the potential to affect a jury’s ability
to consider separate charges fairly and impartially; see,
e.g., State v. Ellis, 270 Conn. 337, 377, 852 A.2d 676(2004); that potential was mitigated in the present case
when the trial court instructed the jury on multiple
occasions that the evidence for each charge must be
considered separately.18 For these reasons, we conclude
that the probative value of such evidence outweighed
any potential prejudicial effect on the defendant.19
Accordingly, we conclude that the trial court did not
abuse its discretion in denying the defendant’s motion
to sever the offenses and in joining the informations
for trial.
II
We next turn to the defendant’s constitutional chal-
lenges to his conviction of employing a minor in an
obscene performance in violation of § 53a-196a (a) (1).
Although he casts one claim as a vagueness due process
challenge and the other as a first amendment challenge,
it appears that both claims challenge the line at which
nude photographs of a minor become criminal in nature.
The record reveals the following additional relevant
facts. The Cellebrite extraction of G’s cell phone revealed
that it contained several nude images of G. In these
photographs, G is either standing or sitting with her
breasts in the center of each image, some with her
naked body partially covered by the stuffed sloth and
some without. There is also a nude photograph of G
with her arms extended on both sides, exposing her
breasts and the top of her pubic area. Accompanying
these photographs is a series of text messages from the
defendant directing G to stand in certain poses, which
correlate to the poses in the photographs. The defen-
dant instructed G that he wanted one ‘‘with slothy’’ and
directed her to ‘‘[w]alk up to the camera to where you[r]
head is at the top of the photo and your feet are at the
bottom.’’ He then instructed her to provide ‘‘one of
slothy by himself and one of you by yourself,’’ one with
‘‘you sitting where slothy was,’’ and to ‘‘[s]it on the
couch just like [how the defendant was sitting] and [to]
make the same pose.’’ ‘‘Almost perfect . . . too much
space above your head . . . can’t see your toes . . .
you’re not sitting up straight . . . and I want you to
hold your hair up with your hands.’’ When the police
executed a search warrant at the defendant’s home,
they found a legal, adult pornographic DVD, which
showed a young woman holding her hair up with her
hands on the cover.20
A
We begin with the defendant’s claim that § 53a-196a
(a) (1), the obscene performance statute, is unconstitu-
tionally vague as applied to his conduct, in violation of
his right to due process, because the statutory elements
are not adequately defined to pass constitutional muster
and fail to provide fair and adequate notice that his
conduct with respect to the photographs of G was crimi-
nal. The defendant’s reliance on the dissenting opinion
in Commonwealth v. Sullivan, 82 Mass. App. 293, 972
N.E.2d 476, review denied, 463 Mass. 1112, 979 N.E.2d
224 (2012), suggests that he challenges the applicable
definitions of the statute’s requisite ‘‘obscen[ity] as to
minors’’; General Statutes § 53a-193 (2); which, as
charged in this case, requires the ‘‘depict[ion] [of] a
prohibited sexual act [that], taken as a whole . . . is
harmful to minors.’’ (Emphasis added.) General Stat-
utes § 53a-193 (2). The ‘‘prohibited sexual act’’ charged
in this case was a ‘‘nude performance’’; General Statutes
§ 53a-193 (3) and (4). Thus, it appears that the defendant
contends that the requisite nudity must be part and
parcel of a sexual act, insofar as he argues that none
of the photographs depicts G engaging in any sexual
conduct, activity, or other ‘‘prohibited sexual act.’’ The
defendant also argues that G’s self-taken, still cell phone
images are not a ‘‘performance’’ under § 53a-196a (a)
(1). In support of his claim, the defendant contends
that there is a definitional conflict between § 53a-193
(11), defining ‘‘performance’’ to require ‘‘play, motion
picture, dance, or other exhibition performed’’; (empha-
sisadded); and § 53a-193 (4), which defines a ‘‘nude
performance’’ to require the ‘‘showing’’ of the ‘‘female
genitals, pubic area, or buttocks’’ or the ‘‘female breast
with less than a fully opaque covering of any portion
thereof below the top of the nipple . . . .’’ (Empha-
sis added.)
The state, relying on State v. Ehlers, 252 Conn. 579,
595–96 and n.19, 750 A.2d 1079 (2000), and State v.
Sorabella, 277 Conn. 155, 188–89, 891 A.2d 897 (2006),
overruled on other grounds by State v. Douglas C.,
345 Conn. 421, 285 A.3d 1067 (2022), contends that
Connecticut case law gave the defendant clear notice
that his conduct was prohibited because these cases
hold that photographs taken for a defendant’s personal
viewing can constitute an ‘‘exhibition’’ and, thus, a ‘‘per-
formance.’’ The state argues that the defendant thereby
had notice of the broader meaning of the term ‘‘exhibi-
tion’’ in child pornography statutes. The state also con-
tends that there is no statutory conflict at issue because
the words ‘‘exhibition’’ and ‘‘showing’’ are synonymous
and because a ‘‘performance’’ need not be ‘‘nude’’ to
be obscene. We agree with the state and conclude that
the statute is not unconstitutionally vague as applied
to the defendant’s conduct because he had fair and
adequate notice that it prohibited nude photographs of
a nine year old child in suggestive poses that were
directed by the defendant in his text messages to G.
It is well established that, under both the federal and
Connecticut constitutions,21 ‘‘[t]he vagueness doctrine
derives from two interrelated constitutional concerns.
. . . First, statutes must provide fair warning by ensur-
ing that [a] person of ordinary intelligence [has] a rea-
sonable opportunity to know what is prohibited, so that
he may act accordingly. . . . Second, in order to avoid
arbitrary and discriminatory enforcement, statutes
must establish minimum guidelines governing their
application.’’ (Internal quotation marks omitted.) State
v. Roy D. L., 339 Conn. 820, 857, 262 A.3d 712 (2021). ‘‘A
party attacking the constitutionality of a validly enacted
statute bears the heavy burden of proving its unconstitu-
tionality beyond a reasonable doubt . . . [and we]
indulge in every presumption in favor of the statute’s
constitutionality . . . . The determination of whether
a statutory provision is unconstitutionally vague is a
question of law over which we exercise de novo review.’’
(Citation omitted; internal quotation marks omitted.) Id.Although the defendant failed to raise a vagueness
claim at trial, we review his claim under State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as
modified by In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015),22 ‘‘because the record is adequate for
our review, and a claim that a statute is unconstitution-
ally vague implicates a defendant’s fundamental due
process right to fair warning.’’ State v. Coleman, 83
Conn. App. 672, 676–77, 851 A.2d 329, cert. denied, 271
Conn. 910, 859 A.2d 571 (2004), cert. denied, 544 U.S.
1050, 125 S. Ct. 2290, 161 L. Ed. 2d 1091 (2005). ‘‘The
proper test for determining [whether] a statute is vague
as applied is whether a reasonable person would have
anticipated that the statute would apply to his or her
particular conduct. . . . The test is objectively applied
to the actor’s conduct and judged by a reasonable per-
son’s reading of the statute . . . . [O]ur fundamental
inquiry is whether a person of ordinary intelligence
would comprehend that the defendant’s acts were pro-
hibited . . . .’’ (Internal quotation marks omitted.)
State v. Roy D. L., supra, 339 Conn. 858; see State v.
Pickering, 180 Conn. 54, 61, 428 A.2d 322 (1980) (‘‘a
penal statute may survive a vagueness attack solely
upon a consideration of whether it provides fair warn-
ing’’). ‘‘[P]ursuant to General Statutes § 1-1 (a), [i]n the
construction of the statutes, words and phrases shall
be construed according to the commonly approved
usage of the language . . . . References to judicial
opinions involving the statute, the common law, legal
dictionaries, or treatises may be necessary to ascertain
a statute’s meaning to determine [whether] it gives fair
warning.’’ (Internal quotation marks omitted.) State v.
Lori T., 345 Conn. 44, 57, 282 A.3d 1233 (2022). ‘‘A
statute is not unconstitutional merely because a person
must inquire further as to the precise reach of its prohi-
bitions.’’ (Internal quotation marks omitted.) Id., 67.
Section ‘‘53a-196a (a) (1) is part of the statutory scheme
governing obscenity related offenses.’’ State v. Ernesto
P., 135 Conn. App. 215, 227, 41 A.3d 1115, cert. denied,
305 Conn. 912, 45 A.3d 98 (2012). We begin with the
statute’s text, which provides in relevant part: ‘‘A person
is guilty of employing a minor in an obscene perfor-
mance when such person . . . employs any minor,
whether or not such minor receives any consideration,
for the purpose of promoting any material or perfor-
mance which is obscene as to minors, notwithstanding
that such material or performance is intended for an
adult audience . . . .’’ (Emphasis added.) General
Statutes § 53a-196a (a) (1). Any ‘‘[m]aterial or perfor-
mance is ‘obscene as to minors’ if it depicts a prohibited
sexual act and, taken as a whole, it is harmful to
minors.’’ (Emphasis added.) General Statutes § 53a-193
(2). Included in the enumerated list of ‘‘[p]rohibited
sexual act[s]’’ in § 53a-193 (3) is a ‘‘nude performance
. . . .’’23 A ‘‘nude performance’’ is statutorily defined in
relevant part as ‘‘the showing of the human male or
female genitals, pubic area or buttocks with less than
a fully opaque covering, or the showing of the female
breast with less than a fully opaque covering of any
portion thereof below the top of the nipple . . . in any
. . . exhibition performed before an audience.’’
(Emphasis added.) General Statutes § 53a-193 (4).
We summarily dispose of the defendant’s arguments
that there is a definitional conflict between the term
‘‘performance’’ in § 53a-193 (11) and the term ‘‘showing’’
in § 53a-193 (4), and that the term ‘‘performance’’ is
not adequately defined. To convict the defendant under
§ 53a-196a (a) (1), the state was required to prove that
the defendant employed a minor ‘‘for the purpose of
promoting any material or performance’’ that ‘‘is
obscene as to minors . . . .’’ (Emphasis added.) General
Statutes § 53a-196a (a) (1). With respect to any ‘‘material
or performance,’’ our statutory scheme related to
obscenity offenses defines ‘‘material’’ as ‘‘anything tan-
gible which is capable of being used or adapted to
arouse prurient, shameful or morbid interest’’; General
Statutes § 53a-193 (10); and a ‘‘performance’’ as ‘‘any
play, motion picture, dance or other exhibition per-
formed before an audience.’’24 (Emphasis added.) Gen-
eral Statutes § 53a-193 (11).
Because § 53a-193 does not define the term ‘‘exhibi-
tion,’’ we look to the common meaning of the word.
See, e.g., State v. Lori T., supra, 345 Conn. 57; Stone-
Krete Construction, Inc. v. Eder, 280 Conn. 672, 677–78,
911 A.2d 300 (2006). Merriam-Webster’s Collegiate Dic-
tionary defines ‘‘exhibition’’ as ‘‘an act or instance of
exhibiting’’ and ‘‘exhibit’’ as ‘‘to present to view . . .
to show or display outwardly [especially] by visible
signs or actions . . . .’’ Merriam-Webster’s Collegiate
Dictionary (11th Ed. 2003) pp. 437–38. Thus, the text
of the statute makes it clear that the defendant was
prohibited from employing a minor to promote an exhi-
bition, which, among other things, depicts a prohibited
sexual act, such as a nude performance showing certain
body parts.25 Photographs, of course, show people or
things in a visual manner. Accordingly, this leaves us
only with the question of whether a reasonable person
would have anticipated that directing a nine year old
child to send posed, nude images was a ‘‘nude perfor-
mance’’ under the statute.
Consistent with the defendant’s reliance on Justice
James R. Milkey’s dissenting opinion in Commonwealth
v. Sullivan, supra, 82 Mass. App. 322, we understand
his argument to be that the term ‘‘nude performance’’
is itself vague in the absence of a judicial gloss that
restricts its reach only to nudity of a sexual nature. See
United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct.
1219, 137 L. Ed. 2d 432 (1997) (requisite clarity ‘‘may
be supplied by judicial gloss on an otherwise uncertain
statute’’). In Sullivan, the majority concluded that the
Dost factors26 were useful in determining whether a
photograph of a girl ‘‘on the cusp of puberty’’ posing
on a beach in a sexually suggestive manner was ‘‘lewd’’
under a Massachusetts child pornography statute.
(Internal quotation marks omitted.) Commonwealth v.
Sullivan, supra, 301, 304–305. Determining that the pho-
tograph constituted a lewd exhibition, the majority con-
cluded that a photograph does not need to be obscene
or to ‘‘capture [a] child engaged in sexual activity’’ to
be considered lewd. Id., 307. In his dissent, however,
Justice Milkey concluded that a visual depiction of a
naked child rises to the level of a ‘‘lewd exhibition’’
only when it ‘‘sexually exploit[s] [a] child in a manner
akin to that done by a photograph of [a] child engaged in
the prohibited sex acts listed in the [statute].’’ (Internal
quotation marks omitted.) Id., 322 (Milkey, J., dis-
senting).
Even if we were to assume that any material must
contain a sexual component to save the term ‘‘nude
performance’’ from a vagueness challenge, Connecticut
case law provides ample notice that a reasonable person
would anticipate that the images at issue in this case
cross that constitutionally imposed line, in light of the
circumstances under which they were created. ‘‘[P]rior
decisions of this court [that] delineate a statute’s reach
can constitute sufficient notice of the acts prohibited
to render the statute constitutional as applied to the
particular facts of a case.’’ State v. Pickering, supra,180 Conn. 63; see, e.g., State v. Sorabella, supra, 277
Conn. 193 (fact that other courts have taken same posi-
tion that defendant argues person of ordinary intelli-
gence would not have understood ‘‘alone provides a
sufficient basis for rejecting the defendant’s constitu-
tional vagueness challenge because the defendant must
be deemed to be on notice of that body of case law’’);
State v. Ehlers, supra, 252 Conn. 589 (defendant could
not prevail on facial vagueness claim, even if statute
was vague in some applications, because first amend-
ment was not implicated, and, because statute was not
vague as applied to his conduct, defendant could not
challenge statute on due process grounds).
An array of decisions from this court and the Appel-
late Court provide ample notice that nude photographs
akin to those recovered from G’s cell phone are well
within the ambit of the statute. See, e.g., State v. Sorabe-
lla, supra, 277 Conn. 186–87 (reiterating that ‘‘nude per-
formance’’ includes ‘‘the showing of the female breast
with less than a fully opaque covering’’ in case involving
photographs of thirteen year old girl, who was naked
from waist up (internal quotation marks omitted));
State v. Ehlers, supra, 252 Conn. 581 (numerous photo-
graphs of nude, young children, some depicting children
performing sex acts); State v. Zarick, 227 Conn. 207,
213, 630 A.2d 565 (photographs depicted breasts and
genitalia of children, naked children in sexually explicit
positions, and ‘‘costumed children wearing heavy makeup
in sexually suggestive poses’’), cert. denied, 510 U.S.
1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State
v. Ernesto P., supra, 135 Conn. App. 218–19 (it was
undisputed that photographs of victim contained exhi-
bitions of genitals, pubic area, buttocks, and breasts
when defendant took photographs of naked victim
exposing such areas); State v. Parsons, 28 Conn. App.
91, 95, 612 A.2d 73 (photographic contact sheet con-
tained numerous photographs, taken by defendant, of
victim clothed only in T-shirt, focusing primarily on
victim’s buttocks), cert. denied, 223 Conn. 920, 614 A.2d
829 (1992). These decisions make clear that directing
a child to pose fully or partially nude for photographs
in an objectively sexual manner is an exhibition or a
showing within the meaning of the term ‘‘nude perfor-
mance’’ and, therefore, violates § 53a-196a (a) (1).
These cases gave fair warning to the defendant that
his conduct in directing and posing G in the photographs
was criminal at the time he engaged in it. The photo-
graphs squarely foreclose any claim that the text of
§ 53a-196a (a) (1) is vague as applied to the defendant’s
conduct, and his textual claims regarding the vagueness
of ‘‘nude performance’’ are without merit. ‘‘This is not
a situation [in which] the state is holding an individual
‘criminally responsible for conduct [that] he could not
[have] reasonably underst[ood] to be proscribed.’ United
States v. Harriss, [347 U.S. 612, 617, 74 S. Ct. 808, 98
L. Ed. 989 (1954)]. On the contrary, this is an instance [in
which] the statute ‘as authoritatively construed [applies]
without question to certain activities.’ Smith v. Goguen,
[415 U.S. 566, 578, 94 S. Ct. 1242, 39 L. Ed. 2d 605(1974)].’’ State v. Pickering, supra, 180 Conn. 64–65.
Accordingly, we conclude that the defendant’s vagueness
challenge fails as a matter of law.
B
The defendant also seeks an independent appellate
review of his conviction for violating § 53a-196a under
the first amendment to the United States constitution,
arguing that the images are not obscene. Although he
never claimed a first amendment violation at trial, the
defendant argues that the images were not obscene as
to minors and that the record is adequate for review
under State v. Golding, supra, 213 Conn. 239–40. In
support of this contention, the defendant relies on State
v. Whited, 506 S.W.3d 416 (Tenn. 2016), and asks us to
review the content of the material at issue to determine
whether it includes a lascivious exhibition of a child,
to support his argument that, viewed objectively, the
images of G are not sexual or lascivious and, therefore,
are protected by the first amendment. The state count-
ers that the defendant’s conviction did not violate the
first amendment because § 53a-196a is consistent with
the United States Supreme Court’s definition of obscen-
ity in Miller v. California, 413 U.S. 15, 24, 93 S. Ct.
2607, 37 L. Ed. 2d 419 (1973), under which sexualized
photographs of children need not depict them explicitly
engaged in sexual acts to be patently offensive and,
thus, harmful to minors. We agree with the state.
Before addressing these arguments, we set forth the
applicable standard of review. ‘‘In certain first amend-
ment contexts . . . appellate courts are bound to apply
a de novo standard of review. . . . [I]n cases raising
[f]irst [a]mendment issues [the United States Supreme
Court has] repeatedly held that an appellate court has
an obligation to make an independent examination of
the whole record in order to make sure that the judg-
ment does not constitute a forbidden intrusion on the
field of free expression. . . . Therefore, even though,
ordinarily . . . [f]indings of fact . . . shall not be set
aside unless clearly erroneous, [appellate courts] are
obliged to make a fresh examination of crucial facts
under the rule of independent review.’’ (Citations omit-
ted; internal quotation marks omitted.) DiMartino v.
Richens, 263 Conn. 639, 661–62, 822 A.2d 205 (2003);
see Miller v. California, supra, 413 U.S. 25 (independent
appellate review of finding of obscenity).
It is well established that obscenity is not a category
of expression protected by the first amendment. See,
e.g., New York v. Ferber, 458 U.S. 747, 754, 102 S. Ct.
3348, 73 L. Ed. 2d 1113 (1982); State v. Zarick, supra, 227
Conn. 220. The constitutional definition of obscenity is
articulated in Miller v. California, supra, 413 U.S. 24.27
See State v. Gagliardi, 174 Conn. 46, 48, 381 A.2d 1068(1977) (in determining what is obscene, trier of fact
must apply Miller guidelines). Section 53a-196a (a) (1)
requires that any material or performance be ‘‘obscene
as to minors’’ and, thus, ‘‘ ‘harmful to minors,’’ to evade
first amendment protection. General Statutes § 53a-193
(2) (B). To be ‘‘harmful to minors,’’ the material or
performance must describe or represent a prohibited
sexual act that ‘‘(i) . . . predominantly appeals to the
prurient, shameful or morbid interest of minors, (ii)
. . . is patently offensive to prevailing standards in the
adult community as a whole with respect to what is
suitable material for minors, and (iii) taken as a whole
. . . lacks serious literary, artistic, educational, politi-
cal or scientific value for minors.’’ General Statutes
§ 53a-193 (2) (B).
Case law has further expounded on the extent to
which images of minors become obscene and thereby
lose their protection under the first amendment. In
Whited, on which the defendant relies, the Tennessee
Supreme Court considered the appropriate standard for
determining what constitutes a ‘‘lascivious exhibition’’
of a minor’s private body areas within the meaning of
Tennessee’s child exploitation statutes. State v. Whited,
supra, 506 S.W.3d 419, 430. In that case, the defendant,
who had utilized a hidden camera to capture videos of
minors in various states of undress, including fully nude,
after showering and while changing clothes; id., 418–19;
appealed his conviction under Tenn. Code Ann. § 39-
17-1005 (a) (1) (2012), which prohibited the production
of child pornography, ‘‘i.e., material that includes [a]
minor engaging in . . . [s]exual activity.’’ (Internal
quotation marks omitted.) Id., 430. At the time,28 Tennes-
see’s criminal code defined ‘‘sexual activity’’ to include,
inter alia, the ‘‘[l]ascivious exhibition of the female
breast or the genitals, [or] buttocks . . . of any per-
son.’’ Tenn. Code Ann. § 39-17-1002 (8) (G) (2012). The
court concluded that ‘‘the offense of especially aggra-
vated sexual exploitation of a minor does not include
as an element of the offense the accused’s intent or
purpose of sexual arousal or gratification.’’ State v.
Whited, supra, 441. In doing so, it rejected the use of
the otherwise well established Dost factors to deter-
mine what constitutes a ‘‘lascivious exhibition’’ under
Tennessee’s sexual exploitation statutes, criticizing it
as a ‘‘one-size-fits-all [multifactor] analysis . . . .’’
(Internal quotation marks omitted.) Id., 438. The court
reasoned that phrases such as ‘‘sexual activity’’ and
‘‘lascivious exhibition’’ are terms that ‘‘lay people are
perfectly capable of understanding,’’ and that they could
be identified through commonsense observation of the
features of the material at issue. (Internal quotation
marks omitted.) Id., 437.
The court in Whited determined that hidden camera
videos depicting two minors changing out of their bikini
swimsuits into dry clothes and entering and exiting the
shower did not rise to a level at which a trier of fact
could reasonably find that the videos objectively included
‘‘sexual activity . . . .’’ (Internal quotation marks omit-
ted.) Id., 447. Although the hidden camera was posi-
tioned to capture the minors’ nude bodies in the center
of the screen, nothing in the videos indicated that the
minors were posed or coached; nor were they in any
unnatural or overtly sexual poses. Id., 446. In addition,
the camera did not focus or ‘‘[zoom] in’’ on the minors’
private areas, and the minors were engaged in everyday
activities that were appropriate for the settings, seem-
ingly unaware of the camera. (Internal quotation marks
omitted.) Id.The line of reasoning in Whited, however, is inconsis-
tent with our recent analysis of a similar issue in State
v. Sawyer, 335 Conn. 29, 225 A.3d 668 (2020). In Sawyer,
we considered whether descriptions in a search warrant
affidavit were sufficient to support an inference that
there was a substantial chance that the defendant was
in possession of child pornography. See id., 36, 39. The
affidavit in Sawyer described one photograph of a
naked boy standing with his genitals exposed and one
photograph of a naked girl with her hand covering her
genital area. See id., 44. In that case, the defendant was
convicted of possession of child pornography in the
second degree, in violation of General Statutes § 53a-
196e. Id., 31. Section 53a-193 (13) defines ‘‘ ‘child por-
nography’ [as] a ‘visual depiction’ involving a person
under sixteen years old engaging in ‘sexually explicit
conduct . . . .’ ’’ Id., 39. Whether the photographs
described in the affidavit supporting the search warrant
in Sawyer depicted ‘‘ ‘sexually explicit conduct’ ’’
turned on whether they involved a ‘‘ ‘lascivious exhibi-
tion of the genitals or pubic area . . . .’ ’’ Id., quoting
General Statutes § 53a-193 (14) (E).
As a matter of first impression in Sawyer, we adopted
a case specific approach to assessing whether a display
is lascivious and stated that ‘‘the Dost factors are gener-
ally relevant and provide some guidance’’ in this evalua-
tion. (Internal quotation marks omitted.) State v. Sawyer,
335 Conn. 41. Accordingly, because the judge reviewing
the warrant in Sawyer reasonably could have inferred
from the description of the girl’s ‘‘hand covering her
genital area’’ that the photograph suggested sexual coy-
ness and that she was posed in that manner by a photog-
rapher, various Dost factors were implicated. (Internal
quotation marks omitted.) Id., 44. Although nudity by
itself is not pornographic,29 we concluded in Sawyer
that the two photographs at issue provided a ‘‘fair proba-
bility’’ or a ‘‘substantial chance’’ that the defendant was
in possession of lascivious images of children for pur-
poses of the court’s probable cause determination.
(Internal quotation marks omitted.) Id., 44–45.
Although Whited and Sawyer are somewhat inappo-
site to the present case given the statutes at issue,30
they nevertheless support our conclusion that the ‘‘self-
ies’’ on G’s phone could be found, under the principles
set forth in both Miller and Dost, to depict the sexualiza-
tion that we assume is necessary to constitute a ‘‘nude
performance’’ and, thus, to be ‘‘harmful to minors.’’ See
General Statutes § 53a-193 (4) (defining ‘‘nude perfor-
mance’’ to require ‘‘the showing’’ of ‘‘[the] female geni-
tals, pubic area or buttocks’’ or ‘‘the female breast with
less than a fully opaque covering of any portion thereof
below the top of the nipple’’). Indeed, under Ferber,
‘‘pornography showing minors can be proscribed
whether or not the images are obscene under . . .
Miller . . . . [The decision in] Ferber recognized that
[t]he Miller standard, like all general definitions of what
may be banned as obscene, does not reflect the [s]tate’s
particular and more compelling interest in prosecuting
those who promote the sexual exploitation of children.’’
(Citation omitted; internal quotation marks omitted.)
Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240,
122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002); see id. (‘‘[p]ic-
tures of young children engaged in certain acts might be
obscene [when] similar depictions of adults, or perhaps
even older adolescents, would not’’).
Unlike the hidden camera video recordings depicting
nude children engaged in everyday, nonsexual activities
in Whited, given G’s age, G’s sexually suggestive place-
ments and poses at the defendant’s instruction through
text messages, both fully nude and partially covered,
taken as a whole, lead us to conclude that the photo-
graphs depict a degree of sexual activity and, as such,
are ‘‘harmful to minors.’’ They were therefore obscene
and not protected by the first amendment.
III
We now consider the defendant’s claim that the trial
court improperly excluded from evidence the video
recordings of two forensic interviews of G. Specifically,
the defendant argues that the first forensic interview
was completely exculpatory, rendering it critical to his
defense against the charges of sexual assault in the first
degree and risk of injury to a child based on sexual
conduct. The defendant argues that the trial court
improperly declined to allow him to refresh G’s recollec-
tion when asking her whether she remembered the first
forensic interview, thereby preventing him from impeach-
ing her with her prior inconsistent statement. The defen-
dant also argues that the trial court abused its discretion
by not giving him a chance to ‘‘authenticate’’ both videos
when he offered them as evidence through his expert
witness. He contends that the improper exclusion of this
exculpatory video evidence prejudiced him and violated
his constitutional rights to confront the complainant and
to present a defense.
The state argues in response that the trial court prop-
erly excluded the forensic interviews because the defen-
dant failed to satisfy the requirements of the Connecticut
Code of Evidence for refreshing recollection, impeach-
ment, or admission of the interviews as exhibits. Alterna-
tively, the state posits that any error was harmless. We
conclude that any claimed error with respect to the video
recordings was harmless beyond a reasonable doubt.
The record reveals the following additional relevant
facts. In connection with the investigation of the allega-
tions against the defendant, G was twice interviewed by
Williams, the forensic interviewer at the Center for Youth
and Families. The recording of the first interview, which
was conducted on December 11, 2017, reveals that Wil-
liams and G used a marker to identify G’s family mem-
bers, as well as the different parts of the male and female
body, on images placed on an easel. During this first
interview, G initially denied any alleged sexual abuse by
the defendant.
The second interview was conducted approximately
six months later, on June 22, 2018. During the second
interview, G disclosed the sexual abuse by the defen-
dant, stating that, at R’s house and when she slept at the
defendant’s house, the defendant, among other things,
‘‘took his private part and touched it with [hers]’’ more
than once. When Williams asked G to clarify the meaning
of the word ‘‘privates,’’ G used a marker to circle the penis
on a photograph of a man and the vagina on a photograph
of a woman. When asked if the defendant’s private parts
had touched G’s private parts on the ‘‘inside . . . out-
side, or something else,’’ G replied that the defendant
had touched her on the ‘‘outside’’ and that it felt ‘‘weird.’’
She also stated that, at the defendant’s house, ‘‘white
stuff’’ would come out of his penis when this would
happen. As the conversation progressed, G indicated
that the defendant had also touched her vagina with
his hand. When asked whether the defendant’s hand
had touched G’s private parts on the ‘‘inside . . . out-
side, or something else,’’ G stated: ‘‘I don’t know. Well,
I do know, but I don’t really know the word for it.’’
When asked again, G stated that it was ‘‘like the middle-
ish’’ and it felt ‘‘weird.’’ G also stated that she did not
have clothes on when this would happen.
At trial, G testified that the defendant had touched
her breasts and vagina with his mouth, fingers, and
penis. When the prosecutor asked whether the defen-
dant’s ‘‘parts ever [went] inside [her] vagina,’’ G replied,
‘‘[a] little bit.’’ When asked whether ‘‘anything [had]
ever come out of his private part,’’ G replied, ‘‘[y]es,’’
and indicated that the substance was white in color.
Following the prosecutor’s direct examination of G,
the defendant asked for time to gather himself and
compose some questions for cross-examination. After
the jury was excused, the defendant informed the trial
court that he was not prepared to cross-examine G at
that time because he could not formulate his questions
the night before, as he lacked access to a pen while he
was incarcerated awaiting trial. The trial court then
asked the prosecutor if he had previously prepared
discovery regarding G’s prior statements and given it
to the defendant. The prosecutor replied that the defen-
dant had an opportunity to watch the forensic inter-
views multiple times, confirmed that ‘‘the same basic
. . . evidence came out on those occasions,’’ and assured
the court that, ‘‘[i]n the second one, same basic—yes.’’
G and the jury then returned to the courtroom.
Before the defendant cross-examined G, the trial
court directed the defendant not to ask questions in a
manner that would be intimidating to a child. During
his cross-examination, the defendant asked G whether
she had previously denied, on several occasions, that
he had done anything inappropriate or touched her in
an inappropriate way. G testified that she had denied
any abuse on three occasions because she had feared
that R would get scared and ‘‘really mad,’’ and that she
did not tell anyone else because she had ‘‘no idea what
was going on’’ at the time. After further attempts to
inquire into whether G could have confided in other
people about the abuse, the defendant asked G whether
she remembered being interviewed by Williams. The
trial court then took a short recess, warned the defen-
dant of its belief that his line of questions was becoming
intimidating in nature, and encouraged him to ‘‘focus
on what matters and not tangential matters that are
not relevant.’’
After that recess, the defendant again asked G if she
recalled sitting for an interview with Williams and if she
recalled using markers. G stated that she remembered
having an interview and using markers but was not sure
who had interviewed her or what the markers were used
for. The defendant then asked, ‘‘[d]o you remember, in
that interview, stating that no one has ever touched
you in [your] private parts?’’ G answered that she
remembered talking about what happened, using mark-
ers, and telling the interviewer ‘‘about the truth but
[she] wouldn’t say—.’’ The defendant interrupted her,
stating, ‘‘[s]o, you said you remember talking about the
truth . . . [a]nd, during that interview, do you recall
telling—or do you recall stating, that no one had touched
you in your private parts?’’
The prosecutor objected to the form of the question,
asking which interview the defendant was referring to,
because G had been interviewed twice. In response,
the trial court stated that ‘‘she recalled an interview.
She’s not sure with whom, so I think the question has
to be about that interview. Do you have any recollec-
tion—so, maybe it would help to focus [on] that.’’ (Empha-
sis added.) The defendant announced that he had the
interviews available, but the trial court again reminded
the defendant that G had testified about an interview
during which she had told the truth, so he could ask
her ‘‘what she recall[ed] about that interview.’’
The defendant then asked G whether she remem-
bered stating, when talking about the truth, that no
one had touched her in her private parts, to which she
replied, ‘‘[n]o. Because why would I lie about—.’’ The
trial court again interjected, stating, ‘‘[n]ext question.’’
The defendant asked G if she recalled stating what she
would do if someone had touched her in her private
parts, to which she replied, ‘‘[n]o. I don’t remember.’’
The defendant attempted to tell the trial court that he
had the video recording of the interview available but
he was, yet again, instructed, ‘‘[n]ext question, Mr. [R].’’
The defendant thereafter asked G, ‘‘[w]ould it refresh
your memory if we played a recording of that material?’’
Although the prosecutor did not object to the question,
the trial court then stated that it was ‘‘not clear that
she said she didn’t have a memory.’’ Instead, the trial
court stated that it understood G’s answer to be that
she did not tell Williams what she would do if someone
had touched her in her private parts. Noting its own
confusion, the trial court suggested that the defendant
clarify his question. The defendant replied that G had
made ‘‘contradictory statements,’’ to which the trial
court stated that it was ‘‘not going to argue the law
right now,’’ and instructed the defendant to ask another
question to help focus what he wanted G to say. The
defendant continued to ask G whether she remembered
things she said during the first forensic interview and
to the pediatrician who examined her bruise but subse-
quently decided to ‘‘move on’’ to questions regarding
the other charges.
Later in the trial, while presenting his defense, and
after he recalled Williams as a defense witness, the
defendant attempted to introduce video recordings of
both forensic interviews as substantive evidence during
the testimony of his expert witness, Nancy Eiswirth, a
clinical psychologist. The prosecutor objected, acknowl-
edging that the defendant was intending to offer the
recordings substantively as prior inconsistent state-
ments; see State v. Whelan, 200 Conn. 743, 753, 513
A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L.
Ed. 2d 598 (1986); see also, e.g., State v. Carrion, 313
Conn. 823, 830–31, 842, 100 A.3d 361 (2014) (forensic
interview of child victim was admissible for substantive
purposes); but argued that they were not admissible
because G had not been confronted with the recordings
pursuant to § 6-10 (b) and (c) of the Connecticut Code
of Evidence. The trial court agreed, ruling that, because
Eiswirth could not authenticate the forensic interviews,
and because they otherwise lacked a foundation, they
would remain marked as exhibits only for identification.
The trial court also denied the defendant’s request to
call G or Williams at a later date to authenticate the
recordings.
We note that the defendant did not raise his constitu-
tional claims at trial and seeks to prevail under State
v. Golding, supra, 213 Conn. 239–40. See footnote 22
of this opinion. ‘‘This court has long recognized that a
violation of the defendant’s right to confront witnesses
is subject to harmless error analysis [under Golding’s
fourth prong].’’ (Internal quotation marks omitted.)
State v. Edwards, 334 Conn. 688, 706, 224 A.3d 504(2020). When ‘‘the defendant’s claim is constitutional
in nature, the state bears the burden of establishing that
this error was harmless beyond a reasonable doubt.’’
State v. Tyus, 342 Conn. 784, 813, 272 A.3d 132 (2022).
‘‘Whether any error is harmless in a particular case
depends [on] a number of factors, such as the impor-
tance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the pres-
ence or absence of evidence corroborating or contra-
dicting the testimony of the witness on material points,
the extent of cross-examination otherwise permitted,
and, of course, the overall strength of the prosecution’s
case. . . . Most importantly, we must examine the
impact of the evidence on the trier of fact and the result
of the trial. . . . If the evidence may have had a ten-
dency to influence the judgment of the jury, it cannot
be considered harmless [beyond a reasonable doubt].’’
(Internal quotation marks omitted.) Id., 804; cf. State
v. Payne, supra, 303 Conn. 553 (‘‘a nonconstitutional
error is harmless when an appellate court has a fair
assurance that the error did not substantially affect the
verdict’’ (internal quotation marks omitted)).
Our review of the record indicates that the defendant
attempted to refresh G’s recollection with her prior
inconsistent statements from the first forensic inter-
view and to offer both forensic interviews through Eisw-
irth for their substance. Although the trial court was
well within its discretion to ensure that the defendant’s
cross-examination was not abusive or intimidating to
G, it should not have injected itself into G’s response
when the defendant attempted to refresh her recollec-
tion, as the questions that the defendant asked at that
point were neither tangential nor irrelevant. Given the
lack of objection from the prosecutor, the trial court
should have permitted G to answer the question asked,
which may have provided the defendant with an oppor-
tunity to refresh her recollection. This is especially so
considering the trial court’s previous suggestion that
the defendant ask G whether she ‘‘ha[s] any recollec-
tion’’ and that ‘‘maybe, it would help to focus [on] that.’’
Although the trial court accommodated the defendant
in other regards consistent with the established policy
of the Connecticut courts to be solicitous of self-repre-
sented litigants when it does not interfere with the rights
of other parties; see, e.g., Burton v. Dept. of Environ-
mental Protection, 337 Conn. 781, 803, 256 A.3d 655(2021); we believe that, in this instance, the trial court’s
understandable desire to protect G interfered with the
defendant’s attempts to exercise his right to represent
himself. We nevertheless conclude that the trial court’s
potentially incorrect rulings, including those relating
to the authentication of the video recordings,31 were
harmless error beyond a reasonable doubt.
With respect to the first interview, we observe that
the relevant portions were cumulative of trial testimony
clearly establishing that G had, on three occasions,
denied any sexual misconduct by the defendant. G’s
trial testimony and her statements during the first foren-
sic interview thus did not differ in any material way.
See, e.g., State v. Francis, 228 Conn. 118, 126, 635 A.2d
762 (1993) (testimony of four witnesses did not differ
in any material way, and trial record would have been
substantially same if one witness had not testified). In
addition, various other witnesses also testified regard-
ing G’s initial denial of the abuse, including two pediatri-
cians and a nurse practitioner who performed a sexual
assault examination on G. Thus, had the defendant been
successful in his efforts to use the recording of the first
interview at trial, that evidence would have established
only what the jury already knew from G and the other
witnesses, namely, that she initially denied that the
defendant had any sexual contact with her. The entirely
cumulative nature of the recording of the first interview
renders its exclusion harmless beyond a reasonable
doubt. See, e.g., State v. Tyus, supra, 342 Conn. 814(expert testimony about forensic ‘‘findings and conclu-
sions was redundant to other evidence presented at
trial’’). But cf., e.g., State v. Colton, 227 Conn. 231, 254,
630 A.2d 577 (1993) (exclusion of evidence bearing on
motivation of state’s chief witness, when no other evi-
dence corroborated material aspects of witness’ testi-
mony, was harmful error).
The defendant also had the opportunity to highlight
any inconsistencies between G’s trial testimony and her
statements in the first forensic interview during his
cross-examination of G. This line of questioning repeat-
edly made the jury aware of the existence of the incon-
sistencies, notwithstanding the fact that the defendant
subsequently changed topics on his own accord.32 See
State v. Brown, 187 Conn. 602, 613, 447 A.2d 734 (1982)
(‘‘It is relevant to the consideration of harmfulness that
the jury [was] made aware of the possibility of [the
accomplice’s] personal interest in the outcome of the
case through the cross-examination of her. Even more
importantly, much of [the accomplice’s] testimony was
corroborated by the testimony of [other witnesses], and
the arresting police officers.’’); see also State v. Ayala,
333 Conn. 225, 238–39 n.12, 215 A.3d 116 (2019) (jury
was fully informed and not deprived of critical evidence
regarding witnesses’ credibility).
As to the second interview, G’s answers during that
interview also did not differ in any material way from
her trial testimony. G’s video recorded statements—
when asked whether the defendant’s hand had touched
her vagina on the ‘‘inside . . . outside, or something
else,’’ that she ‘‘[did not] really know the word’’ for
where the defendant had touched her and that the
defendant’s hand had touched the ‘‘middle-ish’’ of her
vagina—are wholly consistent with her trial testimony
that his ‘‘parts’’ went inside her vagina ‘‘[a] little bit.’’33
Indeed, the trial court’s refusal to admit the second
video into evidence could not have harmed the defen-
dant, as the statements therein corroborated G’s testi-
mony and squarely established the necessary element
of ‘‘sexual intercourse’’ under the sexual assault charge;
see General Statutes § 53a-70 (a) (2); by establishing
that ‘‘[p]enetration, however slight,’’ occurred ‘‘to com-
plete vaginal intercourse . . . or fellatio . . . . ’’
(Emphasis added.) General Statutes § 53a-65 (2); see
State v. Albert, 252 Conn. 795, 809, 750 A.2d 1037 (2000)
(‘‘digital penetration, however slight, of the labia majora
is sufficient penetration to constitute vaginal inter-
course under § 53a-65 (2)’’ (emphasis omitted)); see
also, e.g., State v. Albert, supra, 797, 813–14 (there was
sufficient evidence of sexual assault in first degree
when defendant put his hand underneath three year old
victim’s bathing suit and touched inside her ‘‘crotch’’
with his finger (internal quotation marks omitted));
State v. Gerald A., supra, 183 Conn. App. 93–94 (‘‘[o]n
the basis of [the victim’s] testimony that she flinched
when the defendant tried to put his finger inside of her
vagina because it hurt, she clenched and it hurt, the
jury was free to draw the reasonable inference that
the defendant at least digitally penetrated [the victim’s]
labia majora’’ (emphasis added)). Thus, the admission
of the recording of the second interview would have
been damaging to the defendant’s case.
To the extent that there were any inconsistencies
between the recording of the second interview and G’s
trial testimony with respect to the type of penetration,
the exclusion of the recording of the second interview
was also harmless because the defendant did not focus
his defense on whether the state had proven the element
of penetration but, rather, mounted an attack on G’s
credibility as a complaining witness and attempted to
cast this case squarely as one of ‘‘he said . . . she said.’’
Given the defendant’s focus on G’s credibility, the exclu-
sion of the otherwise inculpatory recording of the sec-
ond interview did not harm the defendant because there
was substantial evidence corroborating G’s testimony.
In addition to testimony from both the state’s and the
defendant’s expert witnesses explaining the concept
of delayed disclosure,34 overwhelming evidence of the
defendant’s conduct with respect to the charge, such
as directing G to send him posed, nude images, and the
images themselves—including one of him shirtless in
bed with her—further support the credibility of G’s
testimony with respect to the charge of sexual assault
in the first degree. Indeed, the two shirtless photographs
of the defendant in bed with G linked them to the
location where G claimed the sexual abuse took place,
and the nurse practitioner testified that she could not
rule out sexual abuse as part of G’s diagnosis. Therefore,
we are convinced that the exclusion of both forensic
interviews was harmless beyond a reasonable doubt.
IV
Lastly, we reject the defendant’s claims that the evi-
dence was insufficient to support his conviction of
assault in the third degree, violation of a protective
order, and stalking in the first degree. Before addressing
the defendant’s specific sufficiency claims, we observe
that a party challenging the validity of a jury’s verdict
on the ground of insufficiency carries a difficult burden.
See, e.g., State v. Rhodes, 335 Conn. 226, 233, 249 A.3d
683 (2020). ‘‘The standard of review we apply to a claim
of insufficient evidence is well established. In reviewing
the sufficiency of the evidence to support a criminal
conviction we apply a [two part] test. First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether [on] the
facts so construed and the inferences reasonably drawn
therefrom the [jury] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Brown, 345 Conn. 354, 369,
285 A.3d 367 (2022). ‘‘On appeal, we do not ask whether
there is a reasonable view of the evidence that would
support a reasonable hypothesis of innocence. We ask,
instead, whether there is a reasonable view of the evi-
dence that supports the [fact finder’s] verdict of guilty.’’
(Internal quotation marks omitted.) State v. Fisher, 342
Conn. 239, 249, 269 A.3d 104 (2022).
A
We begin with the defendant’s claim that the evidence
was insufficient to support his conviction of assault in
the third degree. Specifically, the defendant argues that
he lacked the intent to cause G to sustain the physical
injury necessary to satisfy the elements of § 53a-61 (a)
(1). The defendant contends that the jury could infer
that a slight bruise was caused by the use of a belt,
but, in light of his and G’s testimony that a blanket was
used to cover her during the beating so that it ‘‘wouldn’t
hurt,’’ the state did not prove beyond a reasonable doubt
that he had the requisite intent to injure G. In response,
the state argues that the jury properly inferred the
defendant’s intent to inflict injury from, inter alia, his
conduct of striking G nine times with a belt, his prior
text messages announcing that he would ‘‘punish’’ G,
the physical characteristics of the bruise itself, and his
own consciousness of guilt, as reflected in his misstate-
ments and changes in statements to Newton regarding
the incident.
We find no merit in the defendant’s claim that the
evidence was insufficient to support his conviction of
assault in the third degree. Our review of the record
reveals that the state presented more than sufficient
evidence, including the defendant’s statements, the size
of the bruise, and the number of times that the defen-
dant struck G, to support the jury’s finding that the
defendant intended the natural consequences of his
actions. See, e.g., State v. Lamantia, 336 Conn. 747,
756–57, 765, 250 A.3d 648 (2020) (there was permissible
inference that defendant intended had natural conse-
quences of her voluntary act). Accordingly, we conclude
that sufficient evidence supported the defendant’s con-
viction of assault in the third degree.
B
We next turn to the defendant’s claim that the evi-
dence was insufficient to support his conviction of vio-
lation of a protective order and stalking in the first
degree. The defendant claims that, because he was sta-
tionary when G saw him, he did not violate the protec-
tive order, as required by § 53a-223, and that, even if he
did, the state failed to establish the ‘‘course of conduct’’
element of stalking in the first degree. General Statutes
(Rev. to 2017) § 53a-181d (b) (1) and (2). The state, in
turn, argues that the defendant’s arguments are factual
arguments that are more suited to a jury than an appel-
late court and that sufficient evidence supported the
jury’s verdict. The state further contends that the evi-
dence showed that the defendant twice positioned him-
self on G’s route to school at the time her school van
would pass and made eye contact with her. We agree
with the state.
The jury reasonably could have found the following
additional facts, which are relevant to our review of
this claim. On January 3, 2018, the defendant positioned
himself on a bench located outside of a McDonald’s
restaurant one tenth of one mile away from the entrance
to G’s school, where G made eye contact with him from
inside her school van as it passed by. Upon her arrival
at school, G, visibly shaken, told her school counselor
that the defendant had made eye contact with her and
that she was afraid that he would come into the school
and take her.
On January 18, 2018, the defendant parked his car in
a nearby Feed Barn parking lot, pointing at an intersec-
tion on G’s school van route, and stared at the road
until the school van drove by. Jeannine Begley, a detec-
tive with the New Milford Police Department who was
acting undercover, parked next to the defendant and
took a photograph of the defendant sitting in his car
facing the intersection. Once the van had passed through
the intersection, Begley followed the defendant as he
pulled out of the parking lot, ‘‘[without] delay,’’ to follow
the van to the school, where the children disembarked.
Upon arriving at school, G, again visibly shaken, told
another school counselor that she saw the defendant’s
car in the Feed Barn parking lot, across from the
McDonald’s restaurant, on her way to school that morn-
ing. The defendant was later apprehended.
1
We begin with the defendant’s claim that the evidence
was insufficient to convict him of two counts of criminal
violation of a protective order. Specifically, the defen-
dant argues that the jury could not have found beyond
a reasonable doubt that, based on the evidence adduced
at trial, he stalked G or followed G’s school van on
January 3 or 18, 2018.
‘‘This court has held that proof of the criminal viola-
tion of a protective order pursuant to § 53a-223 merely
requires the issuance of a protective order against the
defendant pursuant to [General Statutes] § 46b-38c (e)
. . . and the defendant’s violation of that order.’’ (Inter-
nal quotation marks omitted.) State v. Fagan, 280 Conn.
69, 76, 905 A.2d 1101 (2006), cert. denied, 549 U.S 1269,
127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). ‘‘[T]he intent
required to prove a violation of § 53a-223 (a) is only
that the defendant intended to perform the activities
that constituted the violation of the protective order.’’
Id., 77. Therefore, in order to convict the defendant of
two counts of violating § 53a-223 (a), the state was
required to prove that the defendant either followed or
stalked G on January 3 and 18, 2018, and that the acts
resulted from intentional conduct rather than accident
or mistake. See id., 77–78.
The jury reasonably could have inferred from the
evidence presented at trial that, on January 3, 2018, the
defendant knew that G would be in the van heading to
school, watched her van’s route specifically to see her,
and cleared a spot to allow himself to wait on the bench
until he did. At trial, Detective Robert Guilbeault of
the New Milford Police Department testified that fresh
snow from the night before had been cleared off the
bench, with fresh footprints directed toward the inter-
section. Further, the jury could have inferred that, on
January 18, 2018, the defendant followed G to school
upon seeing the van drive by because he parked in a
nearby parking lot on the van’s route, waited for the
van to pass, and immediately pulled out when it did.
Although the defendant claimed at trial that he was
unaware that G attended school there, and to the offi-
cers that afternoon that he was looking for his own
children when he followed the van, the jury was not
required to believe him, and the state presented evi-
dence that, during the controlled phone call between
R and the defendant, R told the defendant that G was
attending the same school as before she was removed
from R’s care. Therefore, the evidence presented at trial
justifies the inference that, on January 3 and 18, 2018,
the defendant had the requisite intent to stalk and to
follow G.35 Accordingly, we conclude that the state pre-
sented sufficient evidence to sustain both convictions
of criminal violation of a protective order.
2
Finally, we turn to the defendant’s claim that the
evidence was insufficient to convict him of two counts
of stalking in the first degree. The defendant argues
that the evidence is insufficient to convict him because
‘‘course of conduct’’ requires ‘‘two or more acts,’’ and
the evidence was insufficient to convict him on the
January 3, 2018 charge because there was no evidence
that he violated the protective order on that day. We
disagree and affirm the conviction of stalking in the
first degree.
To convict the defendant of two counts of stalking
in the first degree, as those counts were charged in the
present case, the state had to prove that the defendant
committed one count of stalking in the first degree in
violation of § 53a-181c (a) (2) and one count of stalking
in the first degree in violation of § 53a-181c (a) (3). To
convict the defendant of one count of stalking in the
first degree in violation of § 53a-181c (a) (2), the state
was required to prove beyond a reasonable doubt that
the defendant committed stalking in the second degree,
as provided in General Statutes (Rev. to 2017) § 53a-
181d, and that such conduct violated a court order in
effect at the time of the offense. See General Statutes
(Rev. to 2017) § 53a-181c (a) (2). To convict the defen-
dant of one count of stalking in the first degree in
violation of § 53a-181c (a) (3), the state was required
to prove beyond a reasonable doubt that the defendant
committed stalking in the second degree and that G
was under sixteen years old at the time of the offense.
See General Statutes (Rev. to 2017) § 53a-181c (a) (3).
To satisfy the stalking in the second degree element
of each charge, the state was required to prove beyond
a reasonable doubt that the defendant knowingly engaged
in a ‘‘course of conduct’’ directed at a specific person
that would reasonably cause fear or emotional distress.
General Statutes (Rev. to 2017) § 53a-181d (b) (1) and
(2). ‘‘ ‘[C]ourse of conduct’ means two or more acts,
including, but not limited to, acts in which a person . . .
follows, lies in wait for, monitors, observes, surveils,
threatens, harasses, communicates with or sends
unwanted gifts to, a person . . . .’’ (Emphasis added.)
General Statutes (Rev. to 2017) § 53a-181d (a) (1).
Therefore, for the state to satisfy the stalking in the
second degree element of § 53a-181c (a) as to each
charge, the jury must have found, beyond a reasonable
doubt, that, on more than one occasion with respect
to each charge, the defendant followed or stalked G.
See, e.g., State v. Jackson, 56 Conn. App. 264, 277, 742
A.2d 812 (defendant acted on more than one occasion),
cert. denied, 252 Conn. 938, 747 A.2d 4 (2000).
Construing the evidence presented at trial in the light
most favorable to sustaining the verdict; e.g., State v.
Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993); the
jury reasonably could have inferred that, on January 3,
2018, the defendant knowingly lay in wait for, moni-
tored, surveilled, or observed G, constituting one ‘‘act’’
for purposes of § 53a-181 (a) (1). The jury also reason-
ably could have inferred that, on January 18, 2018, the
defendant knowingly followed, lay in wait for, moni-
tored, surveilled, or observed G, constituting the second
‘‘act’’ for purposes of § 53a-181 (a) (1). See footnote 35
of this opinion. Accordingly, we conclude that the state
established the requisite ‘‘course of conduct’’ necessary
to satisfy the element of stalking in the second degree
by presenting sufficient evidence of the defendant’s
conduct and other circumstantial evidence from which
the jury reasonably could have inferred that the defen-
dant committed two acts with the intent to follow, lie
in wait for, monitor, surveil, or observe G. See, e.g.,
State v. Arthurs, 121 Conn. App. 520, 521, 526, 997 A.2d
568 (2010) (upholding first degree stalking conviction
when defendant followed or lay in wait for victim at
triathlon and church in two different towns on same
day), cert. denied, 310 Conn. 957, 82 A.3d 626 (2013);
State v. Cummings, 46 Conn. App. 661, 664–67, 680–81,
701 A.2d 663 (upholding first and second degree stalking
conviction when defendant followed, lay in wait for,
and violated protective order benefiting victim multiple
times over course of several months), cert. denied, 243
Conn. 940, 702 A.2d 645 (1997).
With respect to the additional factors required for
each conviction under § 53a-181c (2) and (3), it is undis-
puted that the civil protective order was in effect, of
which the defendant was aware, at the time of the
stalking. It is further undisputed that G was under six-
teen years old when the stalking took place. Accord-
ingly, we conclude that the state presented sufficient
evidence from which the jury could have reasonably
found that the defendant violated § 53a-181c (a) (2)
and (3).
The judgments are affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
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.
1
General Statutes § 53a-196a (a) provides in relevant part: ‘‘A person is
guilty of employing a minor in an obscene performance when such person
(1) employs any minor, whether or not such minor receives any consider-
ation, for the purpose of promoting any material or performance which is
obscene as to minors, notwithstanding that such material or performance
is intended for an adult audience . . . .’’
2
The defendant appealed directly to this court pursuant to General Stat-
utes § 51-199 (b) (3).
3
General Statutes § 53a-70 (a) provides in relevant part: ‘‘A person is
guilty of sexual assault in the first degree when such person . . . (2) engages
in sexual intercourse with another person and such other person is under
thirteen years of age and the actor is more than two years older than such
person . . . .’’
4
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child, or (2) has contact with the
intimate parts, as defined in section 53a-65, 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) a
class C felony for a violation of subdivision (1) . . . and (B) a class B felony
for a violation of subdivision (2) . . . .’’
5
General Statutes § 53a-61 (a) provides in relevant part: ‘‘A person is
guilty of assault in the third degree when: (1) With intent to cause physical
injury to another person, he causes such injury to such person or to a third
person . . . .’’
6
General Statutes § 53a-223 (a) provides: ‘‘A person is guilty of criminal
violation of a protective order when an order issued pursuant to subsection
(e) of section 46b-38c, subsection (f) of section 53a-28, or section 54-1k
or 54-82r has been issued against such person, and such person violates
such order.’’
7
General Statutes (Rev. to 2017) § 53a-181c (a) provides in relevant part:
‘‘A person is guilty of stalking in the first degree when such person commits
stalking in the second degree as provided in section 53a-181d and . . . (2)
such conduct violates a court order in effect at the time of the offense, or
(3) the other person is under sixteen years of age.’’
Hereinafter, unless otherwise indicated, all references to § 53a-181c are
to the 2017 revision of the statute.
8
The defendant initially claimed to Newton that he did not know whether
the bruise was from him.
9
‘‘In short, a Cellebrite [e]xtraction [r]eport lists all call logs, contacts,
text messages, and data files on a [cell] phone at the time of the extraction,
which is conducted using Cellebrite technology.’’ Christian v. United States,
United States District Court, Docket Nos. 1:16-cr-207 (LMB), 1:19-cv-1058
(LMB), 2020 WL 3244008, *2 (E.D. Va. June 15, 2020), appeal dismissed, 832
Fed. Appx. 238 (4th Cir. 2021).
10
The department subsequently initiated proceedings to remove G and
her younger brother from R’s care because of the allegations that the defen-
dant had sexually abused G.
11
The first information charged the defendant with one count of sexual
assault in the first degree, alleging that the victim was under thirteen years
of age and the actor was more than two years older, in violation of § 53a-
70 (a) (2), and one count of risk of injury to a child by contact with the
intimate parts of a child under the age of sixteen in a sexual and indecent
manner, and likely to impair the health or morals of the child, in violation
of § 53-21 (a) (2).
The second information charged the defendant with one count of
employing a minor in an obscene performance, in violation of § 53a-196a
(a) (1), one count of risk of injury to a child by unlawfully causing a child
under the age of sixteen years to be placed in a situation that would likely
impair the child’s health or morals, in violation of § 53-21 (a) (1), and one
count of assault in the third degree with intent to cause physical injury, in
violation of § 53a-61 (a) (1).
The third information charged the defendant with two counts of criminal
violation of a protective order, in violation of § 53a-223, one count of stalking
in the first degree, alleging that the defendant’s course of conduct violated
a court order in effect at the time of the offense, in violation of § 53a-181c
(a) (2), and one count of stalking in the first degree, alleging that the
defendant’s course of conduct was directed at a specific person under
sixteen years of age, in violation of § 53a-181c (a) (3).
12
Practice Book § 41-18 provides: ‘‘If it appears that a defendant is preju-
diced by a joinder of offenses, the judicial authority may, upon its own
motion or the motion of the defendant, order separate trials of the counts
or provide whatever other relief justice may require.’’
13
Practice Book § 41-19 provides: ‘‘The judicial authority may, upon its
own motion or the motion of any party, order that two or more informations,
whether against the same defendant or different defendants, be tried
together.’’
14
In State v. Boscarino, supra, 204 Conn. 722–24, we ‘‘identified several
factors that a trial court should consider in deciding whether a severance
[or denial of joinder] may be necessary to avoid undue prejudice resulting
from [the] consolidation of multiple charges for trial. These factors include:
(1) whether the charges involve discrete, easily distinguishable factual sce-
narios; (2) whether the crimes were of a violent nature or concerned brutal
or shocking conduct on the defendant’s part; and (3) the duration and
complexity of the trial. . . . If any or all of these factors are present, a
reviewing court must decide whether the trial court’s jury instructions cured
any prejudice that might have occurred.’’ (Internal quotation marks omitted.)
State v. LaFleur, 307 Conn. 115, 156, 51 A.3d 1048 (2012).
15
The defendant argued that the trial court should grant his motion to
sever, citing the following grounds: (1) the ‘‘[s]ubstantial number of omis-
sions and misrepresentations of material facts and lies by the New Milford
Police Department’’; (2) ‘‘the only related facts of [the] cases are the individu-
als involved’’; (3) ‘‘each case individually represents one, since alleged event,
and . . . the state should be confident enough in the strength and merit of
each case’’ to successfully prosecute each one separately, without reference
to the others; (4) the ‘‘[specious] nature and seriousness of each case sepa-
rately’’; (5) the ‘‘[u]nreliable statements of discreditable . . . witnesses’’;
and (6) the ‘‘[c]urrent political and social climate . . . .’’
16
Section 4-5 (b) of the Connecticut Code of Evidence, which is not at
issue in this case, provides in relevant part that ‘‘[e]vidence of other sexual
misconduct is admissible in a criminal case to establish that the defendant
had a tendency or a propensity to engage in aberrant and compulsive sexual
misconduct if’’ certain safeguards are met.
17
See part IV of this opinion.
18
On the first day of trial, after reviewing the three informations for the
jury, the trial court instructed the jury: ‘‘Each charge against the defendant
is set forth in each information as a separate count, and you must consider
each count and each information separately in deciding this case.’’
Following closing arguments, the court charged the jury: ‘‘The defendant
is charged with a total of nine counts distributed through three different
informations. The defendant is entitled to and must be given by you a
separate and independent determination of whether he 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 reason-
able doubt. . . . You may find that some evidence applies to more than
one count. The evidence, however, must be considered separately as to
each element in each count. Each count is a separate entity.
***
‘‘The defendant is entitled to an independent determination of whether
he is guilty or not guilty as to each of the counts in each of the three
informations. . . . Each of the counts charged is a separate crime. The
state is required to prove each element in each count, in each of the three
informations, beyond a reasonable doubt. . . . You may find that some
evidence applies to more than one count, and it may apply to different
counts in any or all of the three informations. The evidence, however,
must be considered separately as to each element, in each count, in each
information. Each count is a separate entity.
***
‘‘You will recall that I have told you, and I repeat now, you must consider
each count, in each information, separately.’’
19
Because the evidence from each alleged crime would have been cross
admissible in different trials, our inquiry does not address the defendant’s
contention that the shocking and brutal nature of the sexual offenses unduly
prejudiced him under Boscarino. See, e.g., State v. James A., supra, 345
Conn. 629; State v. Crenshaw, supra, 313 Conn. 83–84. We acknowledge,
however, that the trial court was mindful of the risk of unfair prejudice to
the defendant in concluding that the Boscarino factors favoring joinder
outweighed the risk of unfair prejudice to the defendant.
20
The Cellebrite extraction also revealed text messages from the defendant
to the group chat with R and G about G’s breasts, stating that he was ‘‘gonna
call [G’s] boobs ‘[p]uffkins’ ’’ or ‘‘[p]uffy puffkins’’ and that ‘‘[t]hey’re cute
. . . .’’ On December 5, 2017, R placed a controlled phone call to the defen-
dant under Masi’s direction. During the call, R informed the defendant that
her children had been removed from her care due to evidence that he
sexually abused G. Denying any sexual contact with G, and admonishing R
for giving the police ‘‘unrestricted access to everything in [G’s] phone,’’ the
defendant noted that the ‘‘only’’ evidence the police could ‘‘possibly have
is the fucking photo, that’s it.’’ During the phone call, the defendant acknowl-
edged that the photographs could be ‘‘indecent’’ and ‘‘inappropriate’’ but
argued that they did not prove sexual abuse, stating: ‘‘[M]aybe they saw the
one of her [arms] spread eagle, and maybe they think there’s something
wrong with that. I’m not even in that picture. All they have proof of, right
now as far as I know . . . unless they have something that I don’t know
they have . . . is inappropriate pictures. That does not prove any kind of
sexual assault whatsoever. That just proves indecent pictures.’’ The defen-
dant went on to instruct R on how to respond to police questioning regarding
the accusations. Following this phone call, the defendant texted R and G,
asking for G’s cell phone back approximately twelve times within a twenty-
six hour period.
21
‘‘The defendant did not raise separate vagueness claims under the federal
and state constitutions. We previously have equated [the] vagueness doctrine
under the two [constitutions] and have declined to analyze vagueness claims
any differently under the Connecticut constitution.’’ State v. Winot, 294
Conn. 753, 758 n.5, 988 A.2d 188 (2010). In the absence of an independent
state constitutional challenge, we continue to adhere to that approach in
the present case and confine our analysis to the first amendment.
22
‘‘[A] defendant can prevail on a claim of constitutional error not pre-
served at trial only if all of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the defendant of a
fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Gold-
ing, supra, 213 Conn. 239–40; see In re Yasiel R., supra, 317 Conn. 781(modifying third prong of Golding).
23
A ‘‘prohibited sexual act’’ is defined as ‘‘erotic fondling, nude perfor-
mance, sexual excitement, sado-masochistic abuse, masturbation or sexual
intercourse.’’ General Statutes § 53a-193 (3).
24
It is undisputed that the photographs are not a play, motion picture,
or dance.
25
To ‘‘promote’’ any material ‘‘means to manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate,
disseminate, present, exhibit, advertise, produce, direct or participate in’’
it. (Emphasis added.) General Statutes § 53a-193 (12); see, e.g., State v.
George A., 308 Conn. 274, 282–86, 63 A.3d 918 (2013) (video recordings from
defendant’s computer of victim crushing mice with feet, combined with
victim’s testimony of defendant’s related fetishes, was sufficient to sustain
obscene performance conviction).
26
The Dost factors were articulated in the decision of the United States
District Court for the Southern District of California in United States v.
Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff’d, 813 F.2d 1231 (9th Cir.
1987), and aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.),
cert. denied, 484 U.S. 856, 108 S. Ct. 164, 98 L. Ed. 2d 118 (1987). In Dost,
the District Court determined that whether a visual depiction of a minor
constitutes a ‘‘lascivious exhibition of the genitals or pubic area’’ should be
made on a case-by-case basis considering the context of the image, and that
the trier of fact ‘‘should look to the following factors, among any others
that may be relevant in the particular case: [1] whether the focal point of
the visual depiction is on the child’s genitalia or pubic area; [2] whether the
setting of the visual depiction is sexually suggestive, i.e., in a place or pose
generally associated with sexual activity; [3] whether the child is depicted
in an unnatural pose, or in inappropriate attire, considering the age of the
child; [4] whether the child is fully or partially clothed, or nude; [5] whether
the visual depiction suggests sexual coyness or a willingness to engage in
sexual activity; [and] [6] whether the visual depiction is intended or designed
to elicit a sexual response in the viewer.’’ (Internal quotation marks omitted.)
Id., 832. We, like most of the federal courts of appeals, have found the Dost
factors to be helpful in determining whether a photograph is lascivious. See
State v. Sawyer, 335 Conn. 29, 41–43, 225 A.3d 668 (2020).
27
The Miller factors are (1) ‘‘whether the average person, applying contem-
porary community standards would find that the [performance], taken as
a whole, appeals to the prurient interest,’’ (2) ‘‘whether the [performance]
depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law,’’ and (3) ‘‘whether the [performance],
taken as a whole, lacks serious literary, artistic, political, or scientific value.’’
(Internal quotation marks omitted.) Miller v. California, supra, 413 U.S. 24.
28
We note that the Tennessee legislature subsequently amended Tenn.
Code Ann. § 39-17-1002 (8) (G) in 2021 to define ‘‘sexual activity’’ as, inter
alia, the ‘‘[e]xhibition of the breast, genitals, [or] buttocks . . . of any minor
that can be reasonably construed as being for the purpose of the sexual
arousal or gratification of the defendant or another.’’ (Emphasis added.)
Tenn. Code Ann. § 39-17-1002 (8) (G) (2021).
29
It is well established that nudity alone, even when it comes to images
of children, is not sufficient to constitute child pornography or to make
material obscene under Miller. See State v. Sawyer, supra, 335 Conn. 41n.7; see, e.g., United States v. Steen, 634 F.3d 822, 824, 827 (5th Cir. 2011)
(surreptitiously filming nude minor sunbathing did not, without more, consti-
tute producing child pornography); Faloona ex rel. Frederickson v. Hustler
Magazine, Inc., 607 F. Supp. 1341, 1343 n.4 (N.D. Tex. 1985) (nude photo-
graphs of plaintiffs were not ‘‘child pornography’’ under Ferber because
they did not show that plaintiffs engaged in sexual activity or in lewd
exhibition of genitals (internal quotation marks omitted)), aff’d, 799 F.2d
1000 (5th Cir. 1986), cert. denied, 479 U.S. 1088, 107 S. Ct. 1295, 94 L. Ed.
2d 151 (1987); Commonwealth v. Rex, 469 Mass. 36, 47–48, 11 N.E.3d 1060(2014) (there was no evidence to support finding of probable cause to arrest
defendant for possession of child pornography when, viewing images in
light of Dost factors, possession of them would not result in continuing
victimization of children depicted). It is also apparent that the average
person understands the difference between sexually suggestive, posed pho-
tographs of nude children and those contained in legitimate educational or
artistic materials. See, e.g., Commonwealth v. Rex, supra, 37, 48 (no grand
jury could conclude that photographs of naked children excerpted from
National Geographic magazine, sociology textbook, and naturist catalogue
constituted lewd exhibition).
30
Unlike the child pornography statutes at issue in Whited and Sawyer,
Tenn. Code Ann. § 39-17-1005 (a) (1) (2012) and General Statutes §§ 53a-
193 (14) (E) and 53a-196e, respectively, which require the depiction to
constitute a ‘‘lascivious exhibition,’’ the obscene performance statute, § 53a-
196a (a) (1), requires only that that the photographs be ‘‘harmful to minors.’’
General Statutes § 53a-193 (2). Further, § 53a-193 (2) (B) defines ‘‘harmful
to minors’’ using the obscenity factors enumerated in Miller v. California,
supra, 413 U.S. 24, rather than the lasciviousness factors set forth in United
States v. Dost, supra, 636 F. Supp. 832.
31
When the defendant attempted to introduce the recordings of the two
forensic interviews into evidence through his expert witness, the prosecutor
objected on the sole ground that G had not been confronted with her
inconsistent statements. The trial court then declared that ‘‘there’s also no
foundation’’ before acknowledging that the prosecutor was correct regarding
the evidentiary rule for prior inconsistent statements, again noting the lack
of foundation. Thus, the trial court ruled that the recordings of the forensic
interviews would remain as exhibits for identification for both reasons. We
similarly emphasize our disapproval of the trial court’s imposition of its
own basis for excluding the forensic interviews when the prosecutor did not
contest their admission on that ground. Nevertheless, for the aforementioned
reasons, we likewise conclude that any error was harmless beyond a reason-
able doubt.
32
The defendant specifically stated, ‘‘I’m going to move on.’’
33
In addition to G’s testimony that the defendant’s ‘‘parts’’ went inside
her vagina ‘‘[a] little bit,’’ G testified that the defendant touched her vagina
and breasts with his penis, mouth, and fingers, more than once, and that
the defendant used different ‘‘private parts’’ of his every time he touched
her ‘‘private parts . . . .’’
34
Williams testified regarding the barriers to disclosure of sexual abuse
in delayed reporting cases and stated that, because G struggled through
the entire first forensic interview, she considered her disclosure to be an
incomplete one. Audrey Courtney, the nurse practitioner who examined G
and who specializes in sex abuse cases, testified as an expert for the state
as to the reasons why children often deny or delay disclosing sexual abuse,
and the jury heard competing testimony in favor of the defendant on delayed
and incomplete disclosure from Eiswirth.
35
‘‘[The term] following implies proximity in space as well as time. Whether
someone has deliberately maintained sufficient visual or physical proximity
with another person, uninterrupted, over a substantial enough period of
time to constitute following will depend [on] a variety of differing factors
in each case. These are appropriate issues for the trier of fact to decide
. . . .’’ (Emphasis added; internal quotation marks omitted.) State v. Jack-
son, 56 Conn. App. 264, 272–73, 742 A.2d 812, cert. denied, 252 Conn. 938,
747 A.2d 4 (2000).