State v. James K. ( 2023 )

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STATE OF CONNECTICUT v. JAMES K.*
(SC 20693)
Robinson, C. J., and McDonald, D’Auria,
Mullins, Ecker and Alexander, Js.
Syllabus
Convicted of the crime of risk of injury to a child but acquitted of two
counts of first degree sexual assault in connection with the defendant’s
alleged sexual abuse of his daughter, V, the defendant appealed to the
Appellate Court, which affirmed the judgment of conviction. From about
the age of six until twelve, V resided with the defendant, and, during
the earlier part of that time period, V also resided with her half sister,
H. During that time, the defendant allegedly used physical force to
discipline V and H on numerous occasions. Also during that time, there
was an incident in V’s bedroom in which the defendant had contact
with V’s intimate parts. Subsequently, the defendant was arrested on
unrelated charges, and V was placed in the custody of her maternal
grandmother, B. Thereafter, the Department of Children and Families
investigated allegations that the defendant had physically abused V, as
well as B’s complaint that the defendant had acted inappropriately
toward V by kissing her on the lips. A forensic interview of V was con-
ducted, which was video-recorded. In the course of that interview, V
provided details of the incident involving the defendant’s contact with
her intimate parts. During jury selection, the prosecutor indicated that
she would seek to introduce at the defendant’s trial one or more photo-
graphs showing the defendant kissing H on the lips. Defense counsel
objected and argued that it was part of her obligation in selecting a fair
and impartial jury to ask prospective jurors to express their feelings
about whether it was appropriate for parents to kiss their children on the
lips. The trial court precluded defense counsel from asking prospective
jurors about a parent’s kissing a child on the lips because it was too
specific to the facts of the case and limited defense counsel to asking
prospective jurors about the ways in which parents can show physical
affection to their children. Thereafter, the court ruled that the photo-
graph or photographs showing the defendant kissing H were inadmissi-
ble because they were prejudicial to the defendant. During the remainder
of jury selection, defense counsel did not question prospective jurors
about their opinions with respect to displays of affection between par-
ents and their children. In addition, the defendant filed a motion in limine
before trial, seeking to preclude the admission of the video recording
of V’s forensic interview. The defendant claimed that the video had
limited probative value and was unduly prejudicial, insofar as it consti-
tuted cumulative evidence of the facts to be elicited during V’s trial
testimony. The defendant also claimed that the video would improperly
bolster V’s testimony. After V testified at trial, and after hearing argu-
ments from the parties, the trial court admitted the video-recorded
interview into evidence under the medical diagnosis and treatment
exception to the hearsay rule. In affirming the judgment of conviction
of risk of injury to a child, the Appellate Court concluded that the
trial court had not abused its discretion in restricting defense counsel’s
examination of prospective jurors during voir dire, that the defendant
had failed to demonstrate that the trial court’s ruling resulted in harmful
prejudice, and that the trial court had not abused its discretion in admit-
ting the video recording of the forensic interview. The defendant, on
the granting of certification, appealed to this court. Held:
1. The defendant could not prevail on his claim that the trial court had
improperly limited defense counsel’s questioning of prospective jurors
and that the limitation had resulted in harmful prejudice:
This court recognized that there was an inconsistency in the case law
regarding when the trial court’s exercise of discretion in restricting voir
dire will result in reversible error, as the case law had sometimes required
that a party prove both an abuse of discretion and harmful prejudice,
and, at other times, had required that a party prove abuse of discretion
or harmful prejudice.
After reviewing its prior case law, the case law of other jurisdictions,
and similar standards that it had applied when it was called on to evaluate
a trial court’s exercise of discretion, this court clarified that a trial court
has wide discretion in conducting voir dire and that the exercise of that
discretion will not constitute reversible error unless the court has clearly
abused its discretion and harmful prejudice has resulted.
In the present case, even if the trial court had clearly abused its discretion
in precluding defense counsel from asking prospective jurors about their
views on a parent’s act of kissing a child on the lips, the defendant
did not establish that harmful prejudice resulted from that abuse of
discretion.
Defense counsel was permitted to ask prospective jurors about whether
they considered different forms of parental affection appropriate or
inappropriate and was precluded only from asking questions specifically
about their views concerning kissing a child on the lips, and the facts
that defense counsel asked only five of the prospective jurors about
their views on parental affection, availed herself of limited follow-up
with respect to that line of questioning, and stopped asking prospective
jurors about parental affection after the trial court ruled that the prosecu-
tor could not introduce into evidence the photograph or photographs
showing the defendant kissing H suggested that defense counsel did not
consider the issue of parental affection of great importance once the
prosecutor was precluded from introducing the photograph or photo-
graphs.
Moreover, evidence regarding the defendant’s conduct of kissing V on
the lips was not a prominent part of the state’s case, as that conduct
did not form the basis for any of the offenses with which the defendant
was charged, and the prosecutor did not rely on that conduct during
her closing argument.
Furthermore, the jury’s split verdict, whereby it found the defendant
guilty of risk of injury to a child but not guilty of the sexual assault
charges, also weighed against any claim that the defense was hampered
in its efforts to select an impartial jury by virtue of the trial court’s
limitation on defense counsel’s questioning during voir dire.
2. The Appellate Court correctly concluded that the trial court had not abused
its discretion in admitting the video recording of V’s forensic interview:
There was no merit to the defendant’s claim that the trial court had not
engaged in the required balancing of the probative value of the evidence
against its prejudicial effect because, although the court did not conduct
an on-the-record balancing of the evidence, it was not required to do
so, and a review of the entire record, particularly the parties’ arguments
before the trial court, revealed that the court had considered the proba-
tive value of the evidence and its prejudicial effect before making its rul-
ing.
Moreover, the video recording of the forensic interview was probative
of the particular details underlying the defendant’s sexual assault
charges, and, although the defendant claimed that the video recording
had limited probative value because V had testified to the same facts at
trial, the defendant conceded, and a review of the evidence demonstrated,
that there were details revealed during the forensic interview that were
not contained in V’s trial testimony.
Furthermore, the admission of the video recording of the forensic inter-
view was not unduly prejudicial, as the interview contained new or
inconsistent evidence regarding the crimes with which the defendant
was charged.
Nevertheless, this court acknowledged that the interview also contained
a large amount of consistent evidence and cautioned that, when an
alleged sexual assault victim’s prior consistent statements are admitted
in the absence of an applicable exception to the general rule precluding
the admission of such statements, there is a danger that the evidence
will be improperly used to enhance the credibility of the victim.
This court emphasized that defendants can request and trial courts should
consider redacting portions of video recordings of forensic interviews
to limit their prejudicial effect.
In the present case, the trial court could have addressed, by way of
redaction, many of the issues that the defendant raised on appeal with
respect to why the video recording of V’s forensic interview was more
prejudicial than probative, but, at trial, the defense challenged the admis-
sion of the video in its entirety rather than seeking redaction.
Argued March 23—officially released August 29, 2023
Procedural History
Substitute information charging the defendant with
two counts of the crime of sexual assault in the first
degree and one count of the crime of risk of injury to
a child, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before B.
Fischer, J.; thereafter, the court denied the defendant’s
motion to preclude certain evidence; verdict and judg-
ment of guilty of risk of injury to a child, from which
the defendant appealed to the Appellate Court, Prescott,
Moll and Suarez, Js., which affirmed the trial court’s
judgment, and the defendant, on the granting of certifi-
cation, appealed to this court. Affirmed.
Pamela S. Nagy, supervisory assistant public
defender, for the appellant (defendant).
Melissa E. Patterson, senior assistant state’s attor-
ney, with whom were Sarah Hanna, former senior
assistant state’s attorney, and, on the brief, John P.
Doyle, state’s attorney, Maxine Wilensky, former senior
assistant state’s attorney, and Karen Roberg, supervi-
sory assistant state’s attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, James K., appeals from
the judgment of the Appellate Court, affirming the judg-
ment of conviction, rendered following a jury trial, of
risk of injury to a child in violation of General Statutes
§ 53-21 (a) (2).1 On appeal to this court, the defendant
asserts that the Appellate Court incorrectly concluded
that the trial court did not (1) improperly limit defense
counsel’s questions to potential jurors and that this
limitation did not result in harmful prejudice, and (2)
improperly admit into evidence a video recording of
the forensic interview of the victim regarding the crimes
at issue. We disagree and conclude that, even if the trial
court improperly limited defense counsel’s questions
to potential jurors, any error did not result in harmful
prejudice, and that the trial court did not abuse its
discretion by admitting the video recording of the foren-
sic interview into evidence. Accordingly, we affirm the
judgment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following facts, which the jury reasonably could have
found. ‘‘The defendant is the victim’s biological father.
In 2010, when the victim was approximately six years
old, the defendant obtained full physical custody of
the victim as a consequence of drug abuse and mental
health issues affecting the victim’s biological mother.
Initially, the victim resided with the defendant; her step-
mother, M; her half sister, H; and other relatives. The
victim and H are close in age, shared a close bond, and
attended the same school. Later, the defendant, M, H,
and the victim moved to a different residence.
‘‘On numerous occasions, the defendant used physi-
cal force to discipline the victim and H. The defendant
often struck the victim on her buttocks, back, and arms
with his bare hands or physical objects such as a belt
or an extension cord. Occasionally, if the use of force
resulted in visible injuries to the victim, the defendant
would make the victim conceal her bruises with cloth-
ing, or he would keep her home from school.
‘‘One night in 2011 or 2012, when the victim was
seven or eight years of age, the defendant verbally and
physically assaulted M in the victim’s presence, follow-
ing which M and H left the residence. The victim, prepar-
ing to take a shower, went into her bedroom, undressed,
and wrapped herself in a towel. The defendant entered
the bedroom and told the victim that he had received
a telephone call from her teacher and was upset to have
learned that the victim had misbehaved in class. After
the victim and the defendant discussed this matter, the
defendant instructed the victim to remove her towel
and bend over a nearby bed. The victim, expecting to
be struck by the defendant as a form of discipline,
complied with the defendant’s instruction.
‘‘The victim positioned herself on all fours on the
bed. As the defendant stood behind her, at the edge of
the bed, he touched the victim’s anus and her vagina
with his penis. Penetration did not occur.2 As the inci-
dent progressed, the defendant pushed the victim down
so that her head and chest were on the bed. When
the victim told the defendant to stop touching her, he
responded by telling her to be quiet. Despite the fact
that the defendant’s hands were on the victim’s waist,
he stated that he was using ‘his thumb.’ After a few
minutes, the defendant stopped what he was doing, told
the victim to remain bent over until he left her bedroom,
and walked into another room. The victim was confused
by the defendant’s conduct and knew that it was ‘bad
. . . .’ She proceeded to use the shower. After the vic-
tim showered, the defendant told her that they were
going out to get pizza for dinner, and he stated that
‘what happened in the house stays in the house.’ The
victim understood this to mean that the defendant did
not want her to discuss what he had done to her in the
bedroom, and she believed that, if she told anyone about
it, it would either happen again or the defendant would
punish her by beating her.
‘‘The defendant and M later separated, and the victim
thereafter resided with the defendant and his new girl-
friend. The victim resided there until December, 2015,
when the defendant was arrested on charges unrelated
to the present case. The victim was placed in the custody
of her maternal grandmother, B. Thereafter, the Depart-
ment of Children and Families (department) investigated
allegations that the victim had suffered physical abuse
caused by the defendant. The department also investi-
gated concerns expressed by B that the defendant had
acted inappropriately toward the victim because he had
a habit of kissing the victim on the lips. Ultimately, the
victim disclosed to a department social worker that the
defendant had done something that made her uncom-
fortable and that he ‘tried to say it was his finger . . . .’
During a forensic interview at Yale New Haven Hospi-
tal’s child sexual abuse clinic in 2016, the victim pro-
vided details of the incident involving the defendant’s
contact with her intimate parts in her bedroom.’’ (Foot-
note in original.) State v. James K., 209 Conn. App. 441,
444–47, 267 A.3d 858 (2021).
On appeal, the Appellate Court affirmed the judgment
of conviction. Id., 482. The Appellate Court concluded
that the trial court had not abused its discretion by
restricting defense counsel’s examination of prospec-
tive jurors during voir dire and that the defendant had
failed to demonstrate that the trial court’s ruling
resulted in harmful prejudice. See id., 447–59. The
Appellate Court also concluded that the trial court had
not abused its discretion in admitting the video
recording of the victim’s forensic interview into evi-
dence. See id., 459–73.
Thereafter, the defendant filed a petition for certifica-
tion to appeal to this court, which we granted, limited to
the following issues: (1) ‘‘Did the trial court improperly
preclude defense counsel from asking prospective jurors
to express their opinions about the practice of a parent
kissing his or her child on the lips, and, if the answer to
that question is ‘yes’ and the error is subject to harmless
error review, was that error harmful?’’ And (2) ‘‘[d]id
the trial court err in not excluding a video-recorded
forensic interview with the [victim] when the [victim]
gave clear and cogent testimony at trial and the prejudi-
cial effect of the video-recorded interview greatly out-
weighed its marginal probative value?’’ State v. James
K., 342 Conn. 904, 270 A.3d 692 (2022).3
I
Both in this court and in the Appellate Court, the
state identified an inconsistency in our case law regard-
ing when the trial court’s exercise of discretion in
restricting voir dire will result in reversible error. There-
fore, before addressing the defendant’s claim related
to the improper limitation on voir dire questioning, to
adequately address whether reversal is required, we
take this opportunity to clarify the appropriate standard
for evaluating such claims.
It is well established and undisputed that ‘‘[t]he [trial]
court has wide discretion in conducting the voir dire
. . . .’’ (Citations omitted.) State v. Dahlgren, 200 Conn.
586, 601, 512 A.2d 906 (1986). At times, this court has
stated that a party must prove both an abuse of discre-
tion and harmful prejudice resulting therefrom to dem-
onstrate reversible error. See, e.g., State v. Edwards,
201 Conn. 125, 159, 513 A.2d 669 (1986) (explaining that
‘‘[t]he extent to which parties may go in [the examina-
tion of prospective jurors during voir dire] rests largely
in the discretion of the [trial] court, and the exercise
of that discretion will not constitute reversible error
unless the discretion has been clearly abused and one
of the parties has been prejudiced thereby’’ (emphasis
added; internal quotation marks omitted)).
However, at other times, this court and the Appellate
Court have stated that ‘‘the exercise of that discretion
will not constitute reversible error unless it has clearly
been abused or harmful prejudice appears to have
resulted.’’ (Emphasis added; internal quotation marks
omitted.) State v. Skipper, 228 Conn. 610, 625, 637 A.2d
1101 (1994); accord State v. Mota-Royaceli, 186 Conn.
App. 735, 739, 200 A.3d 1187 (2018), cert. denied, 330
Conn. 960, 199 A.3d 20 (2019). Thus, we have been
less than clear about whether the test to determine
reversible error due to a restriction on voir dire is con-
junctive or disjunctive.
Tracing this issue back to its origins reveals that the
standard initially had required both a clear abuse of
discretion and harmful prejudice. More than one cen-
tury ago, in State v. Lee, 69 Conn. 186, 37 A. 75 (1897),
this court held that a defendant is ‘‘not entitled, as a
matter of strict right, to have the [prospective] jurors
sworn as requested,’’ which is ‘‘a matter [that] is left
largely to the discretion of the trial court.’’ Id., 194–95.
In Lee, this court concluded that, in that case, the trial
court’s ‘‘discretion appear[ed] to have been properly
exercised, and the record fail[ed] to show how the
defendant was in any way harmed by the refusal of
which he complains.’’ Id., 195. We later maintained in
Sherman v. William M. Ryan & Sons, Inc., 126 Conn.
574, 13 A.2d 134 (1940), that ‘‘[t]he extent to which
parties should be allowed to go in examining [prospec-
tive] jurors as to their qualifications is a matter largely
resting in the sound discretion of the trial court, the
exercise of which will not constitute reversible error
unless clearly abused, and [when] harmful prejudice
appears to have been caused thereby.’’ Id., 578. And,
then, in State v. Higgs, 143 Conn. 138, 120 A.2d 152(1956), we reiterated that ‘‘the extent to which parties
may go in such an examination rests largely in the
discretion of the [trial] court, and the exercise of that
discretion will not constitute reversible error unless the
discretion has been clearly abused and one of the par-
ties has been prejudiced thereby.’’ Id., 142.
It appears that the main source of the confusion arose
in 1969, in Childs v. Blesso, 158 Conn. 389, 260 A.2d
582 (1969), when this court replaced the ‘‘and’’ with
‘‘or’’ and stated the standard as ‘‘[t]here is no reversible
error in the [trial] court’s exercise of its discretion
unless it has been clearly abused or one of the parties
has been prejudiced.’’4 (Emphasis added.) Id., 394. In
Childs, there was no discussion or explanation for why
the court deviated from the conjunctive standard com-
mon to the case law of this court. Nevertheless, that
version of the standard has been repeated, though not
always consistently.
Even though the more recent iteration of the standard
in the disjunctive did not explicitly require proof of
abuse of discretion and harm, a review of our cases
citing that standard demonstrates that this court typi-
cally engages in an analysis of the harmful prejudice
caused by any abuse of the trial court’s discretion in
order to determine if the error is reversible. See, e.g.,
State v. Fritz, 204 Conn. 156, 162, 527 A.2d 1157 (1987)
(declining to adopt per se rule that limiting defense
counsel’s questioning of prospective juror about testi-
mony of police officer was reversible error and engaging
in harmless error analysis), overruled on other grounds
by State v. Crawford, 257 Conn. 769, 778 A.2d 947(2001), cert. denied, 534 U.S. 1138, 122 S. Ct. 1086, 151
L. Ed. 2d 985 (2002).
Requiring a defendant to prove both that the trial
court clearly abused its discretion and that harmful
prejudice resulted is consistent with the treatment of
these types of claims in other jurisdictions. See, e.g.,
State v. Lovette, 225 N.C. App. 456, 463, 737 S.E.2d 432(2013) (‘‘The regulation of the manner and the extent
of the inquiry rests largely in the discretion of the trial
court. The exercise of such discretion constitutes
reversible error only upon a showing by the defendant
of harmful prejudice and clear abuse of discretion by
the trial court.’’ (Internal quotation marks omitted.)),
quoting State v. Jones, 347 N.C. 193, 203, 491 S.E.2d
641 (1997); see also, e.g., Wright v. State, 374 A.2d 824,
829 (Del. 1977) (‘‘[a]ny limitation on the voir dire
imposed by the [t]rial [c]ourt will not be disturbed
absent a clear showing of abuse of discretion to the
prejudice of the defendant’’); Tate v. United States, 610
A.2d 237, 239 (D.C. 1992) (‘‘the trial court has broad
discretion in the conduct of jury voir dire . . . and its
rulings will be affirmed on appeal unless the record
reveals an abuse of discretion resulting from an errone-
ous ruling coupled with substantial prejudice to the
defendant’’ (citation omitted)).
The use of the conjunctive test is more appropriate
in this type of case. The two factors at issue in the
test—clear abuse of discretion and harmful prejudice—
are both necessary to require reversible error. A clear
abuse of discretion that does not result in harmful preju-
dice would not require reversal. Moreover, the conjunc-
tive test is also more consistent with similar tests we
apply when we are called on to evaluate a trial court’s
exercise of discretion, such as the test for evidentiary
improprieties, which requires that the defendant prove
both an abuse of discretion and harmful error. See, e.g.,
State v. Qayyum, 344 Conn. 302, 316, 279 A.3d 172(2022) (‘‘[i]n order to establish reversible error on an
evidentiary impropriety, the defendant must prove both
an abuse of discretion and a harm that resulted from
such abuse’’ (internal quotation marks omitted)). Accord-
ingly, we clarify that a trial court has wide discretion
in conducting a voir dire and that the exercise of that
discretion will not constitute reversible error unless it
has clearly been abused and harmful prejudice appears
to have resulted.
The following additional facts and procedural history
are relevant to this claim. ‘‘On October 16, 2018, the
second day of jury selection, defense counsel alerted
the [trial] court to the fact that the state was in posses-
sion of photographs depicting the defendant kissing H
on the lips. Defense counsel expressed her belief that
the state intended to introduce these photographs in
evidence over [her] objection. The court, B. Fischer,
J., added that, during the victim’s forensic interview,
the victim indicated that the defendant had kissed her
on the lips. In light of the possibility that evidence of
the defendant’s habit of kissing his daughters on the
lips was likely to be before the jury, defense counsel
opined that some potential jurors would have a very
strong reaction to such evidence. She argued that it
was part of her obligation in selecting a fair and impar-
tial jury to ask prospective jurors to express their feel-
ings about that behavior. Defense counsel provided the
court with the type of inquiry she believed was appro-
priate, stating: ‘I guess I would ask a venireperson,
do they have opinions about how parents might show
affection to their children and . . . might they have
opinions about whether parents kiss their children . . .
as part of showing affection, and might they also have
any strong opinions one way or another about whether
. . . it’s okay for parents to kiss their children on the
lips, in terms of . . . is that a common thing in their
mind in terms of showing affection?’ The prosecutor
objected to any inquiry concerning kissing or ‘physically
showing affections between a parent and child.’
‘‘The court responded, ‘[t]he kissing is too fact spe-
cific. You know, prospective jurors may not be ques-
tioned regarding their predisposition to decide issues
with respect to evidence that may be offered at trial or
with the intent to condition them to prejudge issues
that will affect the outcome of the trial. I have no issues
with a question along the following lines . . . . ‘‘Do
you understand that parents can have different methods
of showing physical affection to their children’’ or a
question like that, but to specifically ask about kissing
on the lips is too fact specific.’ Defense counsel asked
whether a question about kissing on the lips could be
asked in the event that a venireperson raised the issue.
The court stated that such a follow-up inquiry was not
permissible because it would be ‘too fact specific.’ The
court clarified that defense counsel could ask questions
about a parent engaging in ‘different methods of show-
ing physical affection to [his or her] child’ but that
defense counsel could not ask about kissing on the
lips. Defense counsel stated that she disagreed with the
court’s ruling but that she would abide by it.’’ State v.
James K., supra, 209 Conn. App. 447–48.
On the third day of jury selection, after hearing argu-
ments from the parties, ‘‘[t]he [trial] court excluded the
photograph [depicting the defendant kissing H on the
lips] from evidence. The court stated: ‘I’m not going to
allow it in. It is a [photograph] of [H], who is not the
[alleged victim] here. Clearly, as I understand it, there
will be evidence from the [victim] that the defendant
did kiss her on the mouth . . . but we’ll wait to hear
that testimony. But this is separate. This is not the
[victim’s photograph], it’s [H]. The court finds it’s too
inflammatory, too prejudicial to the defendant.’ During
the remaining three days of jury selection that followed
the court’s ruling, defense counsel did not question
prospective jurors about their opinions, if any, with
respect to displays of affection between parents and
their children.
‘‘Prior to the victim’s testimony at trial, defense coun-
sel expressly agreed that testimony about the fact that
the defendant had kissed the victim on the lips was
admissible. The victim subsequently testified that the
defendant had a habit of kissing her on the lips, that
this behavior ‘bother[ed]’ her, and that she asked the
defendant to kiss her on the cheek instead. The victim
testified, however, that the defendant continued to kiss
her on the lips. Kelly Adams, a department investigator,
testified at trial that, when she spoke with B, [B] stated
that ‘she believed something happened because [the
defendant] would kiss [the victim on] the mouth and
[the victim] didn’t like it, she said it made her feel very
uncomfortable . . . .’ Adams further testified that B’s
statements led her to question the victim as to whether
anyone had done something that made her feel uncom-
fortable, and that this inquiry resulted in the victim’s
initial disclosure of [the defendant’s] sexual abuse [of
her]. Adams testified that the defendant mentioned to
her that he was aware of the fact that others had told
her that he had kissed the victim on the lips but that he
had not behaved inappropriately. During [her] closing
argument, the [prosecutor] did not rely on evidence
related to the defendant’s habit of kissing the victim
on the lips.’’ (Footnote omitted.) Id., 451–52.
Even if we assume, without deciding, that the trial
court clearly abused its discretion in precluding defense
counsel from asking the prospective jurors to express
their feelings about parents kissing their children on
the lips, the defendant has not demonstrated that any
such error caused harmful prejudice.
First, in assessing whether the defendant was harmed
by the limitation on questioning, we must ‘‘begin our
analysis by determining the scope of the trial court’s
ruling, i.e., what specific question or questions actually
were prohibited.’’ State v. Lugo, 266 Conn. 674, 684, 835
A.2d 451 (2003). In the present case, the limitation on
defense counsel’s ability to question the prospective
jurors was narrow. Although the trial court prohibited
defense counsel from asking prospective jurors about
their views regarding parents kissing a child on the lips,
the court clarified that defense counsel could ask about
their views on different forms of parental affection.5
Defense counsel still could inquire into the types of
affection that the prospective jurors considered to be
appropriate and those that they considered to be inap-
propriate. See State v. James K., supra, 209 Conn. App.
448–51. The trial court gave defense counsel the oppor-
tunity to ask follow-up questions in this area and to
explore each prospective juror’s views regarding paren-
tal affection, only precluding questions specifically
about kissing a child on the lips. See State v. Lugo,
supra, 687, 690 (concluding that trial court’s limitation
on questioning during voir dire was not reversible error
because defense counsel ‘‘was afforded ample opportu-
nity to uncover each prospective juror’s predisposition
toward gangs’’ in general, even though trial court had
prohibited questions about ‘‘Latin Kings’’ gang).
Second, the manner in which defense counsel ques-
tioned the prospective jurors demonstrates that the trial
court’s limitation on questioning did not cause the
defendant harmful prejudice. Although defense counsel
asked some questions regarding prospective jurors’
views on parental affection, counsel only availed herself
of limited follow-up on this line of questioning and only
asked five of the prospective jurors about their views
on parental affection. After the trial court precluded
the state from introducing into evidence the photograph
of the defendant kissing H, defense counsel stopped
asking prospective jurors about parental affection.
Therefore, because the trial court only prohibited defense
counsel from asking about ‘‘kissing on the lips’’ and
allowed counsel to ask questions about parental affection,
the fact that defense counsel did not avail herself of
this opportunity not only weighs against the defendant’s
claim of prejudice caused by the limitation imposed by
the court, but also reveals that even defense counsel
did not consider the issue of parental affection of great
importance once the state was precluded from introduc-
ing the photograph. See State v. Lugo, supra, 266 Conn.
687 (noting that, although defense counsel did not ask
questions about gangs in general, counsel was not pro-
hibited from doing so by trial court’s limitation).
Third, evidence regarding the defendant kissing the
victim on the lips was not a prominent part of the state’s
case. The jury heard evidence that the defendant had
kissed the victim on the lips and that the victim had
objected to that kissing. The jury also heard evidence
that B was concerned about the defendant’s practice
of kissing the victim on the lips, that she reported that
concern to Adams, and that Adams began investigating
whether the victim had been sexually abused. The
defendant’s habit of kissing the victim on the lips did
not form the basis for any of the offenses with which
he was charged. Also, the prosecutor did not rely on
the evidence regarding kissing the victim on the lips
during her closing argument.
Moreover, as the Appellate Court recognized, in
assessing the impact of the evidence regarding kissing
on the lips, it is important to remember that the jury,
in this case, returned a split verdict. See State v. James
K., supra, 209 Conn. App. 458–59. Indeed, although the
jury found the defendant guilty of risk of injury to a
child, the jury found him not guilty of the sexual assault
charges. See footnotes 1 and 2 of this opinion. The
jury’s ability to assess each charge separately and to
find the defendant not guilty of some of the charges
weighs against the defendant’s claim that the trial
court’s limitation on defense counsel’s questioning dur-
ing voir dire caused harmful prejudice by impacting the
defendant’s ability to choose an impartial jury. See, e.g.,
State v. Dahlgren, supra, 200 Conn. 597–98, 603 (relying
on fact that defendants were each acquitted of some
counts to conclude that trial court’s limitation on ques-
tioning of potential jurors did not cause harmful preju-
dice).
Accordingly, even if we assume that the trial court
clearly abused its discretion in precluding defense coun-
sel from asking potential jurors about their views on
parents kissing their children on their lips, the defen-
dant has not established that harmful prejudice resulted
from that limitation.
II
The defendant next claims that the Appellate Court
incorrectly concluded that the trial court had not abused
its discretion in admitting the video recording of the
victim’s forensic interview because its probative value
was outweighed by its prejudicial effect. Specifically,
the defendant asserts that, contrary to the conclusion
of the Appellate Court, the video recording was not
probative because the victim’s testimony had already
established the elements of the crimes with which he
was charged. See State v. James K., supra, 209 Conn.
App. 466–68. The defendant further claims that the
admission of the video recording constituted harmful
error.6 We disagree.
The following facts, as set forth in the Appellate
Court’s opinion, are relevant to this claim. ‘‘Prior to
trial, the state filed a notice of its intent to offer into
evidence a video recording of the victim’s forensic inter-
view that occurred on March 9, 2016, and that was
conducted by Monica Vidro Madigan, a clinical social
worker employed by . . . Yale New Haven Hospital’s
child sexual abuse clinic. Later, the defendant filed a
motion in limine to preclude the admission of the video.
The defendant assumed for purposes of his motion that
the victim would testify at trial and would be able to
recall and narrate the details of her sexual abuse allega-
tions against the defendant. The defendant expressly
stated that he did not object to the admissibility of the
video on hearsay grounds. Instead, the defendant raised
what he characterized as an objection related to ‘rele-
vance and bolstering . . . .’ The defendant argued that
the video had limited probative value and was unduly
prejudicial to him. In arguing that it was unduly prejudi-
cial, [the defense] argued that it was unnecessary and
cumulative evidence of the facts to be elicited during
the victim’s trial testimony, and it would improperly
bolster the victim’s testimony.
‘‘Following the victim’s trial testimony, on October 24,
2018, the [trial] court heard arguments on the motion.
Defense counsel reiterated that the video would not
add anything to the victim’s trial testimony and argued
that the admission of the video would constitute an
improper bolstering of that testimony. Defense counsel
argued that ‘[the victim] had clear recollection. She did
not have any confusion about the details. This isn’t a
case like some [in which] the child [victim] kind of
broke down and had trouble and, therefore, the state
tried to offer this evidence [of prior disclosure] . . . .
[The victim] had clear detail, clear memory and so I
think to pile on another version of her statement, it’s
very prejudicial and I think it’s cumulative . . . . It’s
really important to be clear about bolstering. And so I
think, here, when you’re allowing . . . the jury to hear
twice, once live in person, once on a [video-recorded]
forensic interview from the same complainant, that
really . . . is highly prejudicial. . . .
‘‘ ‘[T]here’s nothing contained in that forensic inter-
view which was not already testified to by [the victim]
in front of this jury. It would simply be a rerun of
her testimony, of course without any sort of cross-
examination there, and I think . . . its prejudicial
impact outweighs its probative value. I don’t think it
has any probative value. We’ve heard her testimony.’
Defense counsel acknowledged, however, that she was
unaware of any authority to support the proposition
that a forensic interview [such as the one in the present
case] is not admissible evidence.
‘‘Responding to the argument that the evidence was
cumulative, the prosecutor argued that the details pro-
vided by the victim during the forensic interview dif-
fered in some ways from the details provided by the
victim during her trial testimony. For example, the pros-
ecutor stated that the victim provided different descrip-
tions of the alleged anal penetration by the defendant.
The prosecutor also responded that the state was seek-
ing the admission of the video under the medical diagno-
sis and treatment exception to the rule against hearsay.
‘‘The [trial] court stated that ‘the record obviously
reflects that the [victim] did appear . . . at this trial
and was subject to cross-examination, and the forensic
interview will be admitted, and that’s going to be admit-
ted under the medical diagnosis and treatment [excep-
tion] to the hearsay rule, [§ 8-3 (5) of the Connecticut
Code of Evidence], and our existing case law under
State v. Griswold, [160 Conn. App. 528, 127 A.3d 189,
cert. denied, 320 Conn. 907, 128 A.3d 952 (2015)]. You
know, the purpose of the interview is to minimize
trauma so a child doesn’t have to repeat allegations to
numerous officials such as school officials, [the depart-
ment], [the] police . . . and it also . . . assesses med-
ical and mental health needs of the particular child,
and it also advances and coordinates the prompt investi-
gation of suspected cases of child abuse. So, for those
reasons, and no existing case law to support the defen-
dant’s position, I am going to deny the defendant’s
motion.’ The video of the forensic interview was admit-
ted into evidence during the testimony of Vidro Madi-
gan.’’ (Footnote omitted.) State v. James K., supra, 209
Conn. App. 459–62.
Our standard of review for evidentiary claims is well
settled. ‘‘Relevant evidence may be excluded if its pro-
bative value is outweighed by the danger of unfair preju-
dice . . . .’’ Conn. Code Evid. § 4-3. ‘‘Because of the
difficulties inherent in this balancing process, the trial
court’s decision will be reversed only whe[n] abuse of
discretion is manifest or whe[n] an injustice appears
to have been done. . . . On review by this court, there-
fore, every reasonable presumption should be given in
favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) State v. Collins, 299 Conn. 567, 582,
10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,
181 L. Ed. 2d 193 (2011). ‘‘In order to establish reversible
error on an evidentiary impropriety . . . the defendant
must prove both an abuse of discretion and a harm that
resulted from such abuse.’’7 (Internal quotation marks
omitted.) State v. Roy D. L., 339 Conn. 820, 830, 262
A.3d 712 (2021).
‘‘It is well settled that . . . [a]n out-of-court state-
ment offered to prove the truth of the matter asserted is
hearsay and is generally inadmissible unless an exception
to the general rule applies.’’ (Internal quotation marks
omitted.) Id. Section 8-3 (5) of the Connecticut Code of
Evidence excludes from the hearsay rule ‘‘[a] statement
made for purposes of obtaining a medical diagnosis or
treatment and describing medical history, or past or
present symptoms, pain, or sensations, or the inception
or general character of the cause or external source
thereof, insofar as reasonably pertinent to the medical
diagnosis or treatment.’’
‘‘As we have previously noted, the rationale behind
the medical treatment exception [to the hearsay rule]
is that a person’s desire to recover his [or her] health
incentivizes [that person] to tell the truth to individuals
involved in [his or her] medical care. . . . [T]he pre-
sumption that such statements are reliable applies to
statements made during a forensic interview when the
surrounding circumstances could lead an objective
observer to reasonably infer that the victim’s statements
were given in order to obtain medical treatment and
diagnosis.’’ (Citation omitted; internal quotation marks
omitted.) State v. Roy D. L., supra, 339 Conn. 833–34.
In the present case, the defendant does not dispute
that the video recording of the victim’s forensic inter-
view was admissible pursuant to the medical treatment
exception. Instead, the defendant asserts that the trial
court did not engage in the balancing test required by
§ 4-3 of the Connecticut Code of Evidence, and, if the
trial court had done so, it would have precluded the
state from introducing the video recording into evi-
dence because its probative value was outweighed by
its prejudicial effect.
We first address the defendant’s claim that the trial
court did not engage in the balancing test required by
§ 4-3 of the Connecticut Code of Evidence. In doing so,
we are mindful that this court previously has rejected
the idea that a trial court must engage in an on-the-
record balancing or ‘‘use some talismanic phraseology
in order to satisfy this balancing process. Rather . . .
in order for this test to be satisfied, a reviewing court
must be able to infer from the entire record that the trial
court considered the prejudicial effect of the evidence
against its probative nature before making a ruling.’’
State v. Nunes, 260 Conn. 649, 689–90, 800 A.2d 1160(2002).
As we explained previously, the defendant filed a
motion in limine seeking to preclude the entirety of the
video recording of the victim’s forensic interview. In
the motion, the defendant argued that ‘‘[a]ll or most of
the information given by [the victim] to [Vidro Madigan]
during her [March 9, 2016] interview would be the same
as (or less than) that testified to during the trial, making
the prior statement unnecessary and cumulative . . . .’’
(Emphasis omitted.) The defense did not point to any
specific portions of the video recording that were
unduly prejudicial either in the defendant’s motion or
during defense counsel’s oral argument before the trial
court. Instead, in his motion, the defendant asserted
that the video recording, in its entirety, was unduly
prejudicial because it would improperly bolster the
credibility of the victim. Consistent therewith, during
her argument on the motion, defense counsel claimed
that it was prejudicial because it was cumulative and
constituted improper bolstering, and, thus, the entire
video recording should not be admitted.
We acknowledge that the trial court did not conduct
an on-the-record balancing test. As a result, we, as the
reviewing court, must look to see whether we can draw
an inference from the record that the trial court consid-
ered the potential prejudice. A review of the entire
record, particularly the parties’ arguments before the
trial court, reveals that the trial court considered the
prejudicial effect of the evidence against its probative
nature before making a ruling. We agree with the Appel-
late Court that the trial court ‘‘used broad language that
suggests that it had considered and rejected the specific
grounds of the defendant’s objection by stating that it
was unable to identify ‘existing case law to support the
defendant’s position . . . .’ ’’ State v. James K., supra,
209 Conn. App. 464–65. Stated simply, the trial court
appears to have rejected the defendant’s claim of preju-
dice in light of the arguments of the parties. It appears
that the trial court also found the defendant’s claim
unpersuasive in part because there is no existing appel-
late case law requiring the exclusion of a forensic inter-
view of a child victim of sexual assault under § 4-3 of
the Connecticut Code of Evidence.8
We next address whether the trial court abused its
discretion in admitting the video recording into evi-
dence. We conclude that the video recording of the
victim’s forensic interview was probative of the particu-
lar details involving the incident in which the defendant
had contact with the victim’s vagina and anus. As the
Appellate Court explained, ‘‘[t]he defendant was charged
with two counts of sexual assault in the first degree in
violation of General Statutes § 53a-70 (a) (1). One count
was premised on the allegation [of penile-vaginal inter-
course], and one count was premised on the allegation
[of penile-anal intercourse].’’ Id., 466. In the video
recording, the victim described the incident in detail.
The defendant asserts that the video recording had lim-
ited probative value because the victim had testified
to these facts at trial. However, even the defendant
concedes that the victim described different details of
the incident in the video recording than she did at trial.
The defendant explains that, during her forensic inter-
view, the victim ‘‘also described many . . . things in
greater detail or in different ways than [during] her
[trial] testimony, which fortified her allegations and
made her appear sympathetic.
‘‘For instance, [the victim] stated that, after the defen-
dant put his thumb inside her bottom, [he] told her to
open . . . her legs wider, and then she felt something
go inside of her. . . . She did not mention anything
about opening her legs during her testimony. She also
stated that, ever since the assault happened, she had
been worried because, ‘I’m having white stuff come out
of me.’ ’’ (Citation omitted.) A review of the evidence
demonstrates that, although the victim’s testimony at
trial and the statements she made during her forensic
interview overlapped, there were details in the video
recording of her interview that were not contained in
her trial testimony. See, e.g., State v. Gray, 342 Conn.
657, 690, 271 A.3d 101 (2022) (‘‘[i]n precluding evidence
solely because it is cumulative . . . the [trial] court
should exercise care to avoid precluding evidence
merely because of an overlap with the evidence pre-
viously admitted’’ (internal quotation marks omitted)).
Therefore, on the basis of the foregoing, we conclude
that the record establishes that the video recording was
probative.
We next consider whether the trial court abused its
discretion in concluding that the video recording of the
victim’s forensic interview was not unfairly prejudicial.
‘‘To be unfairly prejudicial, evidence must be likely to
cause a disproportionate emotional response in the
jury, thereby threatening to overwhelm its neutrality
and rationality to the detriment of the opposing party.
. . . A mere adverse effect on the party opposing
admission of the evidence is insufficient. . . . Evi-
dence is prejudicial when it tends to have some adverse
effect [on] a defendant beyond tending to prove the
fact or issue that justified its admission into evidence.’’
(Internal quotation marks omitted.) State v. Miguel C.,
305 Conn. 562, 575–76, 46 A.3d 126 (2012). ‘‘All evidence
adverse to an opposing party is inherently prejudicial
because it is damaging to that party’s case. . . . For
exclusion, however, the prejudice must be unfair in the
sense that it unduly arouse[s] the [jurors’] emotions of
prejudice, hostility or sympathy . . . .’’ (Internal quota-
tion marks omitted.) State v. Sandoval, 263 Conn. 524,
545, 821 A.2d 247 (2003).
We agree with the trial court that the video recording
was not unduly prejudicial to the extent that it con-
tained new or inconsistent evidence regarding the
crimes with which the defendant was charged.9 We
acknowledge that, in addition to new or inconsistent
evidence, the video recording contained a large amount
of consistent evidence. We caution that, when the prior
consistent statements of an alleged victim of sexual
assault are admitted in the absence of an applicable
exception to the general rule that such statements are
inadmissible at trial; see Conn. Code Evid. § 6-11 (b)
and (c); there is a danger that the evidence will be
misused to enhance the credibility of the victim.
Therefore, this case brings to our attention an issue
this court has had the opportunity to address recently—
namely, that defendants can request and trial courts
should consider the redaction of video recordings of
forensic interviews to limit their prejudicial effect. State
v. Roy D. L., supra, 339 Conn. 820, is instructive on this
point. In Roy D. L., we explained that ‘‘the trial court
in [that] case [had] assessed the admissibility of the
video recording of the forensic interview in its entirety
and did not assess the admissibility of individual state-
ments made during the interview. We recognize that
the trial court’s approach was likely a reflection of the
position taken by defense counsel, who, in opposing
the prosecutor’s motion to admit the video recording,
argued that the recording should be excluded in its
entirety. In response to defense counsel’s ‘all or nothing’
approach, the trial court remarked, ‘[s]o, it’s either in
or it’s out, and, if it’s in, it can be played in its entirety.’
Given the formulation of defense counsel’s opposition
to the admission of the video recording . . . we believe
that the trial court’s response was reasonable. We do,
however, take this opportunity to emphasize that the
purpose underlying the medical treatment exception to
the hearsay rule does not preclude a party from object-
ing to portions of statements made during forensic inter-
views that are either inadmissible for the purpose they
are offered or are otherwise unduly prejudicial. Under
such circumstances, the [trial] court, particularly during
a jury trial, may exercise its discretion to redact portions
of a forensic interview.’’ Id., 829–30 n.7.
We note that many of the issues that the defendant
now points to as reasons why the video recording of
the victim’s forensic interview was more prejudicial
than probative could have been addressed by redacting
the video. For instance, the defendant asserts that the
video recording was unduly prejudicial because the vic-
tim’s credibility was enhanced when ‘‘[Vidro Madigan]
indicated through her statements to [the victim] that she
believed her allegations.’’ Furthermore, the defendant
claims that the victim’s discussion in the video record-
ing about a favorite picture that she had drawn with
her and her mother’s favorite colors also generated
sympathy for the victim. The defendant also relies on
the fact that the victim discussed and detailed the physi-
cal abuse that the defendant allegedly had engaged in,
including beating the victim with an extension cord,
hitting her with a belt, punching her in the jaw and
leaving bruises on her body.
Although, on appeal, the defendant points to these
portions of the video recording as creating undue preju-
dice, at trial, there was no request to redact the video
or to identify with particularity those portions of the
video that the defendant found particularly prejudicial.
Instead, the defense challenged the admission of the
video recording in its entirety. Without such a request,
we cannot conclude that the Appellate Court incorrectly
concluded that the trial court had not abused its discre-
tion in admitting the video recording of the victim’s
forensic interview into evidence.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse and the crime of risk of injury to a child, we decline
to use the defendant’s full name or to identify the 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
The trial court imposed a sentence of twenty years of incarceration, five
of which are mandatory, execution suspended after sixteen years, followed
by fifteen years of probation. The jury found the defendant not guilty of
two counts of sexual assault in the first degree in violation of General
Statutes § 53a-70 (a) (1).
2
‘‘In reciting the facts that the jury reasonably could have found in reaching
its verdict, we are mindful that, as we noted in footnote 1 of this opinion,
the jury found the defendant not guilty of two counts of sexual assault in
the first degree. One count of sexual assault required a finding that the
defendant had penetrated the victim’s anus, and the other count of sexual
assault required a finding that the defendant had penetrated the victim’s
vagina. See General Statutes § 53a-70 (a) (1).
‘‘The jury found the defendant guilty of risk of injury to a child in violation
of § 53-21 (a) (2), which did not require a finding that penetration had
occurred but required a finding that the defendant had contact with the
intimate parts of the victim in a sexual and indecent manner that was likely
to impair her health or morals.’’ State v. James K., 209 Conn. App. 441, 445
n.2, 267 A.3d 858 (2021).
3
We note that the questions, as certified, focus on the actions of the trial
court, but it is well established that, in ‘‘a certified appeal, our focus is on
the judgment of the Appellate Court . . . .’’ (Citation omitted.) State v.
Nunes, 260 Conn. 649, 658, 800 A.2d 1160 (2002); see also, e.g., Burton v.
Browd, 258 Conn. 566, 570, 783 A.2d 457 (2001).
4
We acknowledge that, in 1908, in State v. McGee, 80 Conn. 614, 69 A.
1059 (1908), this court explained that, ‘‘[u]nder our practice the [defendant]
was not entitled, as a matter of strict right, to examine each [prospective]
juror individually as to his qualifications. It was within the discretion of the
trial court, and unless it appears that the discretion was improperly exer-
cised, or that the defendant was injured by the refusal, it is not [a] ground
for a new trial.’’ Id., 618–19. However, cases citing to McGee have applied
the conjunctive iteration of the standard. See, e.g., Duffy v. Carroll, 137
Conn. 51, 56, 75 A.2d 33 (1950) (‘‘[t]he extent to which parties should be
allowed to go in examining [prospective] jurors as to their qualifications is
a matter largely resting in the sound discretion of the trial court, the exercise
of which will not constitute reversible error unless clearly abused, and
[when] harmful prejudice appears to have been caused thereby’’ (internal
quotation marks omitted)); accord Sherman v. William M. Ryan & Sons,
Inc., supra, 126 Conn. 578.
5
Defense counsel herself framed the inquiry as one involving parental
affection. She initially informed the trial court that she planned to ask,
‘‘do [the prospective jurors] have opinions about how parents might show
affection to their children and . . . might they have opinions about whether
parents kiss their children . . . as part of showing affection, and might they
also have any strong opinions one way or another about whether . . . it’s
okay for parents to kiss their children on the lips, in terms of . . . is that
a common thing in their mind in terms of showing affection?’’ (Internal
quotation marks omitted.) State v. James K., supra, 209 Conn. App. 447–48.
6
The defendant does not assert that the trial court improperly admitted
the video recording of the victim’s forensic interview under the medical
diagnosis and treatment exception to the hearsay rule but, rather, limits
his claim to an allegation that the probative value of that video recording
outweighed its prejudicial effect. Therefore, we do not consider whether
the video recording of the forensic interview was properly admitted under
the medical treatment exception.
7
The defendant does not assert that the evidentiary impropriety is of
constitutional magnitude.
8
In support of his claim that admission of the video recording of the
forensic interview was unduly prejudicial, the defendant cites to a number
of out-of-state cases in which those courts have concluded that video
recordings of forensic interviews are not admissible. To the extent that the
defendant asks us to adopt a per se rule, we decline to do so.
9
We disagree with the defendant’s claim that the fact that the video
recording showed the victim describing these incidents to a stranger at the
age of twelve would unduly arouse sympathy for the victim. The victim
testified to many of these same facts at trial. Without more, the approximately
three year age difference between the video recording and the trial is not
enough for us to conclude that the video recording in this respect would
unduly arouse the sympathies of the jurors. See, e.g., State v. Sandoval,
supra, 263 Conn. 545 (‘‘[i]t is unlikely that the proffered evidence . . . would
have improperly arouse[d] the emotions of the jur[ors] . . . in light of the
victim’s previous testimony’’ (citation omitted; internal quotation marks
omitted)).